The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

A non-oral file review was held on September 28, 2004, at the request of a worker advisor, acting on behalf of the claimant.

Issue

Whether or not the purchase of an automatic tarp covering machine should be authorized.

Decision

That the purchase of an automatic tarp covering machine should not be authorized.

Decision: Unanimous

Background

On October 18, 2000, the claimant sustained a compensable injury to his right shoulder region while in the process of unloading pipe off of a flat bed trailer during the course of his employment as a truck driver. Subsequent medical information confirmed a diagnosis of a right supraspinatous rotator cuff tear. By January 10, 2002, the worker was considered capable of full time employment with the following permanent restrictions:

• no repetitive lifting greater than 20 pounds over the shoulder level with the right arm; and
  
  
• occasional lifting of no greater than 35 pounds using both arms together.

On March 19, 2004, the claimant contacted his Workers Compensation Board (WCB) case manager stating that he was having significant pain/discomfort with his right shoulder area and that he was no longer able to work as a truck driver. Further discussions with the claimant revealed that he was claiming for wage loss benefits, rehabilitation/retraining services as well as the WCB's authorization to purchase an automatic tarp covering machine for his truck.

In a report to the WCB dated April 19, 2004, the treating physician made the following comments with respect to the worker's current medical status:

"This man is finding the weakness of his right shoulder particularly bothersome with doing any of the heavier physical activities such as loading any cargo or opening heavy latches or doors that are part of his job when semi truck driving. He is restricted to very infrequent, light physical activity with any work requiring him to use his shoulder to above 90 degrees in extension or abduction. He is also restricted to light work for all other activities of his right shoulder due to a progressive weakness related to his permanent torn rotator cuff. He is now restricted to only certain jobs as a semi driver that accomodate (sic) his restrictions.

In view of the above although he is capable of semi truck driving he is incapable of doing some of the regular duties required as part of his occupation. It is quite likely that within the near future his disability will progress to the point where he will be incapable of carrying on with his regular activity as a semi truck driver.".

On June 14, 2004, a WCB rehabilitation specialist provided a memo to the file with respect to a job site visit that she performed to review the work activities of tarping a gravel truck.

On June 16, 2004, the claimant was advised of the WCB's position that his job duties fell within his compensable restrictions and as such, he did not have a loss of earning capacity.

On July 18, 2004, a worker advisor, acting on behalf of the claimant, presented argument to Review Office that the claimant required an automatic tarp covering machine for his employment activities.

In a decision dated July 16, 2004, Review Office confirmed that the claimant's job duties as a truck driver fell within his compensable restrictions and that he did not have a loss of earning capacity related to his compensable injury. Review Office was also of the view that medical aid expenses for an automatic tarp covering machine would not be authorized as it was determined that the tarp crank could be operated with either arm. As the claimant and worker advisor disagreed with Review Office's decision, a non-oral file review was arranged.

Reasons

A WCB medical advisor examined the claimant on November 23, 2001 and in his examination notes he recorded the following comments:

"Although Mr. [the claimant] has functional right shoulder mobility and strength, he nonetheless should be limited over the long term from repetitive heavier lifting within the right arm above shoulder level, so as to lessen the risk of aggravation of his right shoulder in relationship to the previous rotator cuff injury."

Eventually, permanent restrictions with respect to repetitive lifting of greater than 20 lbs. over the shoulder level as well as occasional lifting of 35 lbs. using both arms together were imposed by the medical advisor.

A WCB occupational therapist visited the claimant's work site to clarify and establish the physical demands of his job. In a memorandum to file dated June 14, 2004, the occupational therapist outlined her assessment findings as follows:

"Tarping with a crank mechanism is a one handed activity, that could be completed with either hand. Each process would take approx. 30 seconds and there is a break between each action. This would be considered an occasional action, requiring a rotational action of the shoulder through mid to outer ranges of motion (the exact ranges would depend on the height of the driver). The better maintained the cable the easier the action is."

Inasmuch as the tarp crank can be operated with either arm, we therefore find that the manual operation of the tarp covering would not offend the claimant's permanent restrictions with respect to his right shoulder. As stated by the Review Officer, "The tarp crank can be operated with either arm and there is no repetitive lifting of greater than 20 pounds over shoulder level with the right arm required in his job, nor is there any lifting greater than 35 pounds."

We further find that the purchase of an automatic tarp covering machine should not be authorized. Accordingly, the claimant's appeal is hereby dismissed.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
L. Butler, Commissioner

Recording Secretary, B. Miller

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

Signed at Winnipeg this 3rd day of November, 2004