Decision #81/03 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on June 18, 2003, at the request of the claimant. The Panel discussed this appeal on June 18, 2003.

Issue

Whether or not the job duties on the butcher coat line are within the claimant's physical restrictions; and

Whether or not there is entitlement to wage loss benefits beyond January 11, 2002.

Decision

That the job duties on the butcher coat line were not within the claimant's physical restrictions; and

That there is entitlement to wage loss benefits beyond January 11, 2002.

Decision: Unanimous

Background

In August 2001, the claimant contacted the call center at the Workers Compensation Board (WCB) to report a work related injury to her left shoulder.

During a telephone conversation with a WCB adjudicator on August 28, 2001, the claimant reported that she has been employed with the accident employer for 14 years as an ironer. Her main duties included ironing sheets, aprons and pillowcases. On August 8, 2001, her job duties changed. Her new duties were to hang coats on a rod for steaming. She had to lift the coats onto a table and then put a coat hanger inside the coat. She reaches with her left arm to place the coats on a rack that takes the coats into a machine to be steamed. She had to reach above her head to do this.

A Doctor's First Report dated August 23, 2001, diagnosed the claimant with myofascial pain of the left upper trapezius. The claim was accepted by the WCB and benefits were paid to the claimant effective August 21, 2001. By October 18, 2001, the attending physician reported that the claimant had minimal discomfort and that she could return to regular duties by October 24, 2001.

On October 26, 2001, the claimant advised the WCB that she worked a full shift on the 24th of October and had no shoulder pain. The next day by mid afternoon she had pain in her shoulder/neck area. She then returned the next day for one hour and the pain was too much. She had not worked since. The claimant had no new accidents and she attributed her difficulties to the overhead work of hanging clothes onto a rack.

On November 21, 2001, a WCB medical advisor reviewed the case at the request of primary adjudication and confirmed that the diagnosis was left shoulder and trapezius myofascial pain and he recommended a short course of physiotherapy treatments. On November 28, 2001, the WCB accepted the claimant's further difficulties as a recurrence and full wage loss benefits were reinstated on October 26, 2001.

A WCB case manager attended the claimant's work site on December 18, 2001. In a memo to file dated December 19, 2001, he made the following comments:
"The claimant was on one of the pressing machines feeding napkins and sheets into one end of the press to be steamed and ironed. She was moved to the station where they hang 'butcher coats' - this is where the onset of problems started.

I was able to watch the line and see how the 5 or 6 workers moved the coats from the pile to a hanger and then onto a hook. The coats are pulled from a pile, shaken with two hands and then placed about chest level onto the hooks.

The line is approximately 5.5 feet from the floor - therefore where the worker grabs the garment to hang it is about chest level.

From my observation of the line the job appears to be within the claimant's current restrictions of no lifting more than 10 lbs. and no lifting above shoulder height. Each coat may weigh about 3 lbs."
After consulting with the WCB's healthcare branch, the case manager telephoned the claimant on January 3, 2002, to advise that the butcher coat line duties were within her current restrictions of no lifting greater than 10 lbs. and no lifting above shoulder height. The claimant advised the case manager that she could go back to her old job but not the line that she was injured on. The case manager told the claimant that both jobs were within her restrictions and that he would be speaking with the employer to facilitate a return to full duties. The claimant was advised that wage loss benefits would be paid up to January 11, 2002 and final.

A report was received from a physical medicine and rehabilitation specialist (physiatrist) dated January 16, 2002. He reported that the claimant's pain arose from soft tissue sources and that review of x-ray reports revealed no bony abnormalities. He felt that the claimant's work contributed significantly to her pain. "She has to work in front of her with her arms outstretched and her head down for a good deal of the time. She also has to reach laterally, pull and twist." Trigger point needling/infiltration was recommended as a course of treatment.

On March 21, 2002, the WCB case manager telephoned the claimant's daughter to advise that the report from the physiatrist had been reviewed by the WCB's healthcare branch. It was felt that the needling treatment recommended by the physiatrist was appropriate, however, it was still believed that the claimant could do the job on the butcher coat line and that no change would be made to the previous decision.

In a submission to primary adjudication dated October 24, 2002, a union representative indicated that she obtained a medical opinion from the physiatrist. It was the physiatrist's opinion that the claimant's physical findings were related to her compensable injury and that there was a need for additional restrictions on her activities. The physiatrist did not feel that the claimant should return to the butcher coat line. Based on this opinion, the union representative requested that primary adjudication rescind its decision to terminate benefits, reimbursing the claimant retroactively. She also requested that the claimant's physical restrictions be amended to reflect her capacities and that consideration be given to vocational rehabilitation services.

On November 4, 2002, the case manager wrote to the union representative to advise that he was unable to change his decision of November 4, 2002. The case manager noted that the physiatrist last treated the claimant in July 2002 and had not treated her since. The physiatrist also indicated a change in the claimant's restrictions, i.e. not to lift anything greater than 5 lbs. repetitively overhead and she was also to avoid reaching to full arms length, and needed the ability to change positions. Given these new restrictions, the case manager was still of the opinion, based on his December 18, 2001 work site visit and his subsequent conversation with the WCB healthcare branch on January 3, 2002, that the claimant remained capable of performing her job on the butcher coat line. On November 8, 2002, the union representative appealed the case manager's decision and the case was forwarded to Review Office.

In a memo dated December 13, 2002, the case manager recorded that changes were made to the butcher coat line according to the employer. Prior to June 2002, the employer installed a platform for the line workers to stand on which raised the floor by 6 inches. The case manager indicated that he reviewed the claimant's restrictions and had actually stood on the butcher coat line. He determined that the job was within the claimant's restrictions. With the addition of the 6 inch platform, the workers would not be lifting the garments above shoulder height. He confirmed with the employer that a worker can hang one coat at a time and each coat weighed less than 5 lbs.

On February 14, 2003, Review Office concluded that the claimant's regular job duties were within the restrictions outlined by her physician and therefore, the claimant was not entitled to further benefits beyond January 11, 2002. On April 3, 2003, the union representative appealed Review Office's decision and an oral hearing was convened.

Reasons

This case involves a worker who injured her shoulder while employed in a commercial laundry. Her claim for compensation was accepted and benefits were paid accordingly. After a number of months, the board determined that she had recovered sufficiently to return to work. It was determined further that the job she was to return to was within the assigned restrictions.

Her attempt to work at this position was unsuccessful. She maintained that she continued to be in too much pain to continue. Appeals to both the case manager and the Review Office asking that they find the job to be beyond her restrictions were unsuccessful. She then appealed to this Commission.

For her appeal to succeed here, the Appeal Panel would have to find that the job in question was beyond her restrictions. We have come to that conclusion.

In reaching our decision, we conducted a thorough review of the claim file, as well as holding a hearing at which we heard testimony from the claimant and her union representative.

The following findings were persuasive in our deliberations:
  • The claimant had worked for this employer for 14 years prior to the injury. For the most part, she had been engaged in ironing flat items.

  • Two weeks prior to her injury, she was transferred to a different job - hanging coats on a line (as described above.)

  • Two months after her accident, and following physiotherapy treatment, she returned to her duties of hanging coats. Within a couple of days, the pain had returned and she stopped work. Benefits were reinstated.

  • Following a visit to the jobsite, the case manager determined that the job duties were within her restrictions. Benefits were terminated in January 2002.
We took particular note of a report of the physiatrist she was seeing who, on January 16, 2002, wrote:
  • "I feel the work that she is done (sic) has contributed significantly to her pain. She has to work in front of her with her arms outstretched and her head down for a good deal of the time. She also has to reach laterally, pull and twist."
We also note that, in the same letter, he wrote: "There doesn't seem to be a need to change her job."

This one sentence was taken out of the letter by a board medical consultant, to the exclusion of the physiatrist's other opinions. This was, in turn, used by the case manager as further evidence that she was capable of doing the job tasks.

It was argued that this was taken out of context, in that, in the same paragraph, the physiatrist noted that "[t]here are other places that she feels she could work in the workplace …" It was suggested that the physiatrist was saying that she did not have to leave this employer, as there are other jobs she can do, within her restrictions.

The same physiatrist, in a letter, dated October 15, 2002, addressed to the claimant's union representative, reinforced his opinion that her injuries were, on a balance of probabilities, caused by the change in her workplace duties. He noted that she had been able to perform her previous duties for 14 years with few, if any, problems. He felt that a return to the coat-hanging job would increase the stress in the muscles of her neck and shoulders, but that she should be able to manage work that was lower than shoulder height.

We were also persuaded by the fact that the claimant has in 2003 successfully returned to work - in a different position. This was precipitated by a meeting involving the claimant's union representative, the claimant's daughter and the employer. The employer assigned her to a job which involves folding flat items. The work is all done in front of her. She does not have to move side-to-side, nor does she have to lift items extended in front of her.

This sequence of events - the fact that the injury occurred only two weeks after she started the job on the butcher coat line, returned when she attempted a brief return to this same work and has not returned when she was assigned a different job - leads us to the conclusion that the job duties on the butcher coat line are, on a balance of probabilities, not within her physical restrictions.

From this conclusion, it follows that she is entitled to wage loss benefits beyond January 11, 2002.

Accordingly, the appeal is allowed.

Panel Members

T. Sargeant, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

T. Sargeant - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 29th day of July, 2003

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