The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on March 2, 2004, at the request of legal counsel, acting on behalf of the claimant. The Panel discussed this appeal on March 2, 2004 and again on April 26, 2004.

Issue

1. Whether or not the claimant's permanent partial impairment rating has been correctly calculated;

2. Whether or not the claimant's permanent partial impairment rating should have been reduced by 50%;

3. Whether or not the financial award for the permanent partial impairment has been correctly established;

4. Whether or not the claimant is entitled to further wage loss benefits after May 10, 2001.

Decision

1. Issue was withdrawn by legal counsel at the hearing;

2. That the claimant's permanent partial impairment rating should have been reduced by 50%;

3. Issue was withdrawn by legal counsel at the hearing.

4. That the claimant is not entitled to further wage loss benefits after May 10, 2001.

Decision: Unanimous

Background

On December 27, 1997, the claimant sustained injuries to the left side of her ribs, left arm and left side of her head when she slipped on a wet floor. Subsequent file records revealed that the claimant incurred a full thickness left rotator cuff tear from the accident and that she underwent surgery to correct the condition on May 21, 1999.

Follow-up reports were received from the treating orthopedic specialist which showed that the claimant was experiencing pain in her neck and left shoulder along with pain in her left hand, elbow, arm and wrist. On February 16, 2000, a physical medicine and rehabilitation specialist (a physiatrist) commented that the claimant received only partial relief from her rotator cuff symptomatology and that her remaining symptoms were related to myofascial trigger point activity. He also suggested that a chronic pain scenario may be in existence at this time.

On May 25, 2000, a Pain Management Unit (PMU) Case Conference took place at the Workers Compensation Board (WCB) and it was determined that the claimant met the diagnostic criteria for chronic pain syndrome and that this was related to the effects of her compensable accident.

By September 2000, the treating physiatrist suggested that the claimant was ready to commence a work experience program starting the first week of October 2000 starting at 2 hours per day and progressing to 8 hours per day.

Subsequent information revealed that the claimant completed an eight week multidisciplinary work hardening program at AARC. In the final discharge report of November 27, 2000, it was concluded that the claimant should be provided with a gradual return to work situation and that the claimant may continue to require ongoing therapy and pain management upon her return to work on a diminished basis over the course of subsequent weeks.

In a progress report dated January 15, 2001, the family physician noted that the claimant had attempted a work placement and had so much discomfort and pain in her left arm that she wasn't able to continue. Objective findings included weakness of left arm shoulder girdle and hyperesthesia.

In a decision letter dated February 20, 2001, a WCB case manager confirmed to the claimant that wage loss benefits would be payable up to and including May 10, 2001. The case manager noted that it was the opinion of a WCB medical advisor that the claimant had recovered from the effects of her injury and was capable of returning to her pre-accident employment. Note was also made of the opinion expressed in the work hardening program's discharge summary that the claimant was capable of performing tasks within the light physical demand level required for her pre-accident position as a cafeteria assistant.

On April 10, 2001, the treating orthopaedic surgeon reported that the claimant's shoulder had improved gradually but not completely. Further treatment was not indicated.

On April 17, 2001, the claimant was examined by a WCB impairment awards medical advisor. At this examination, it was determined that the claimant was entitled to a 5.3% permanent partial impairment (PPI) for her left shoulder condition.

At a PMU case conference held on April 20, 2001 and May 3, 2001, it was determined that the claimant was capable of functioning at a level sufficient to meet the demands of the Graduated Return to Work with restrictions.

On May 19, 2001, a WCB medical advisor was asked by primary adjudication to comment on whether the claimant's pre-existing osteoarthritis contributed in either a major or minor degree to her impairment. The medical advisor responded that the claimant had x-rays performed on December 29, 1997 which described degenerative changes in the AC joint. X-rays in September 1998 showed AC joint osteoarthritis. The medical advisor felt that these findings would have bearing on function which could be significant.

In a decision letter dated May 25, 2001, a WCB case manager confirmed to the claimant that the previous decision of February 20, 2001 remained unchanged as it was still the WCB's opinion that she was capable of functioning at a level sufficient to meet the demands of light work. With respect to the claimant's entitlement to a PPI award, the case manager referred to Board policy 44.10.20.10 Pre-existing Conditions. As it was determined that the claimant's pre-existing left shoulder AC arthrosis significantly contributed to her disability, her PPI award would be reduced by 50%.

On August 10, 2001, the case was considered by Review Office following receipt of an appeal by the claimant dated June 15, 2001. Review Office determined that the claimant's impairment rating of 2.65% (50% of 5.3%) had been correctly established and was in accordance with workers compensation legislation and board policy with respect to the Impairment Awards Schedule.

In addition to the above, Review Office determined that the 50% reduction in the claimant's impairment rating was correct. Review Office noted that WCB policy 44.10.20.10 stated that a pre-existing condition which was deemed to be major would be assigned a rating equivalent to 50% of the total combined rating. Review Office found that the claimant's pre-existing degenerative changes contributed significantly to the worker's rotator cuff tear. It was therefore considered reasonable by Review Office and in compliance with WCB policy to reduce the total impairment by 50%.

Review Office determined that the financial award for the permanent impairment in the amount of $410.40 (as outlined in the WCB's letter dated May 29, 2001) was correct. This decision was based on Section 38(2) and 38(3) of The Workers Compensation Act (the Act).

With respect to the issue of whether the claimant was entitled to payment of wage loss benefits after May 10, 2001, Review Office noted that the claimant's pre-accident position was that of a part-time food service worker. The evidence supported the contention that the claimant was capable of performing the physical demands level of light work as defined by the Canadian Classification of Dictionary of Occupational Titles of Canada (CCDO). Review Office was of the view that the claimant's pre-accident job met these requirements. Therefore, Review Office determined that the claimant had essentially recovered from the effects of her compensable injury and was capable of performing her pre-accident duties. There was no longer any loss of earning capacity as a result of the compensable injury and therefore the claimant was not entitled to payment of wage loss benefits after May 10, 2001.

On March 2, 2004, an oral hearing was held at the Appeal Commission at the request of legal counsel, acting on behalf of the claimant. At this time the Panel considered all file information including additional medical information which was submitted by legal counsel dated March 19, 2002, May 6, 2002 and September 5, 2003.

Following the hearing and discussion of the case, the Appeal Panel requested clarification from the WCB's healthcare branch with respect to the medical advisor's comments as outlined in the memo to file dated May 19, 2001. On March 18, 2004, clarification was received from the WCB's healthcare branch and the report was forwarded to the interested parties for comment. On April 26, 2004, the Panel met to render its final decision with respect to the issues under appeal.

Reasons

With respect to the second issue under appeal, we find that the claimant is not entitled to further wage loss benefits after May 10, 2001. The preponderance of evidence suggests that the claimant would be capable of performing light work after this date. In arriving at this conclusion, we attached considerable weight to the following body of evidence.

• November 27, 2000 treating physical medicine and rehabilitation specialist’s discharge summary report – “Ms. [the claimant] has been off work for a period of greater than 2 years, and prior to the work hardening program the rehabilitation experience had been far more passive in nature, not promoting an overall increase in Ms. [the claimant’s] function. Ms. [the claimant] did present with some physical limitations within the clinic setting, which would necessitate the need for physical restrictions of not lifting or carrying greater than 15 lbs, not lifting above shoulder height, and non-frequent to occasional overhead reaching. Thus in light of the progress Ms. [the claimant] has made to date within her active rehabilitation program, it is of this clinic’s opinion that should (sic) Ms. [the claimant] be provided with a gradual return to work situation. She should achieve a safe and successful return to work at her pre-injury occupation of a Cafeteria Attendant, without causing harm to herself.”
• January 15, 2001 treating physician’s progress report in which he indicated that the claimant’s current work capability would be “sedentary at best”.
• May 3, 2001 WCB’s Pain Management Unit’s case conference summary – “Based on the reassessment of April 9, 2001, in the opinion of the Pain Management Unit, the Claimant is capable off functioning at a level sufficient to meet the demands of the Graduated Return To Work with the restrictions as described in the Discharge Summary from [treating physical medicine and rehabilitation specialist] on file dated November 27, 2000.”

The claimant’s appeal is hereby dismissed.

Panel Members

R. W. MacNeil, Presiding Officer
J. MacKay, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

R.W. MacNeil - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 14th day of May, 2004