The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on October 26, 2005, at the request of a worker advisor, acting on the worker's behalf and the employer's advocate. The Panel discussed this appeal on October 27, 2005.

Issue

Worker's Issues:

Whether or not the worker is entitled to wage loss benefits beyond August 7, 2002; and

Whether or not the worker should be reimbursed for the cost of a tilt board.

Employer's Issue:

Whether or not the claim is acceptable.

Decision

Worker's Issues:

That the worker is not entitled to wage loss benefits beyond August 7, 2002; and

That the worker should not be reimbursed for the cost of a tilt board.

Employer's Issue:

That the claim is acceptable.

Decision: Unanimous

Background

On April 30, 2002, the worker filed a claim with the Workers Compensation Board (WCB) for right shoulder difficulties (i.e. right shoulder impingement, tendonitis, bilateral muscle imbalance) that she related to the following work activity:

"…aggravated chronically using backpacks in my job - this is the 2nd year in a row that it has flared up - close to the end of the winter season (packs are repetitively loaded/unloaded over winter coat and while on worksite visits where no/minimal outerwear is worn".

The date of accident was recorded as being January 8, 1999 and was reported to the employer on April 15, 2002.

The Employer's Accident Report dated May 27, 2002 indicated that the worker's right shoulder injury was apparently a recurrence of a previous, no time loss injury from 1999. The report stated that the worker experienced shoulder pain from loading and unloading equipment bags. A Notice of Injury report was completed by the worker and was forwarded to two supervisors.

A Chiropractor's First Report dated November 5, 2002, indicated that the worker was examined on March 28, 2002. The worker's description of the injury on the chiropractor's report notes, "insidious onset/aggravation of R shoulder P [pain]. Previous injury aggrevated (sic) by computer work and carrying packs of equip. for use @ job sites." The diagnosis rendered was tendinitis of the right supraspinatus/repetitive stress injury. The chiropractor indicated that the worker was disabled and he outlined restrictions for a four week duration.

On September 26, 2002, a sports medicine specialist stated that he had been treating the worker's shoulder difficulties since March 2002. In June 2002, the worker was diagnosed with a rotator cuff strain with chronic rotator cuff tendinopathy and multidirectional glenohumeral laxity. He stated that following several subacromial injections, he decided to arrange an MRI to rule out any significant cuff tear.

An MRI performed on November 17, 2002 of the right shoulder revealed the following condition "Small complete insertional tear supraspinatous not complicated by atrophy nor retraction."

On December 18, 2002, primary adjudication referred the case to a WCB medical advisor to provide an opinion regarding the diagnosis and to state whether it was probable that the diagnosis was related to the loading and unloading of backpacks. In his responses to primary adjudication dated December 23, 2002 and January 7, 2003, the medical advisor stated that the diagnosis was a supraspinatus tear and secondary mid AC arthrosis which was pre-existing. He stated that on a balance of probabilities, it was probable for such an injury to have occurred from lifting, loading/unloading backpacks repetitively.

In a decision dated January 7, 2003, the worker was informed that her claim for compensation was not acceptable as the adjudicator was unable to establish that she suffered a personal injury due to an accident arising 'out of and in the course of' her employment. This determination was confirmed in subsequent decisions dated July 18, 2003 and September 11, 2003. It was concluded that the worker's shoulder injury occurred from non-specific daily tasks rather than any specific work activity.

On September 4, 2003, the worker underwent the following surgical procedures: arthroscopy of the right shoulder, arthroscopic acromioplasty, arthroscopic repair rotator cuff using two suture anchors.

On September 19, 2003, Review Office determined that the claim for compensation was acceptable. Review Office felt there was no evidence on the file to prove that the worker's off work activities either contributed to or caused her shoulder condition. On a balance of probabilities, Review Office believed that the worker's shoulder condition was either caused by or aggravated by her work with the backpack, which weighed upwards of 35 lbs.

On October 3, 2003, a WCB adjudicator advised the worker that her claim had been accepted based on an aggravation of a pre-existing degenerative shoulder tear. In a subsequent telephone conversation with the adjudicator on the same date, the worker stated that she started a business in January 2003 after she quit her other job due to problems with her shoulder and foot as well as other issues. The worker noted that she had to hire an assistant to do the "manual parts" of her work because of the problems she was experiencing.

On August 24, 2004, the worker and a worker advisor met with two WCB staff members to discuss wage loss benefits and medical aid costs associated with the claim. The worker was told that she was eligible to receive wage loss benefits for the period March 26, 2002 to August 7, 2002 inclusive. Regarding acceptance of wage loss benefits post resignation, the worker was advised that the WCB would not be able to cover this time period as the adjudicator could not establish that there was a loss of earnings for the period in question. He noted that the worker had removed herself from the workplace and started her own business and he could not establish the loss needed to forward wage loss replacement.

In a memo to file dated December 29, 2004, a WCB adjudicator documented a discussion that took place between the worker, worker advisor and himself as to why the worker left her employment with the accident employer. The worker indicated that the main issue between her and her employer was that the employer was not willing to accommodate her doctor's request for her to work from her home location (medical note dated May 1, 2002). The worker indicated that this was due to the fact that she needed to carry her equipment long distances in and out of the office from and to her car while in her work environment. The adjudicator noted in the memo that the report from the sports medicine specialist dated September 26, 2002 noted the worker's current objective findings but did not support the need for her to work from home.

On December 29, 2004, the adjudicator asked the employer to comment on what steps were made to accommodate the worker's need to work from her home; whether a disability management program was in place, etc. A response from the employer is on file dated March 8, 2005.

In a decision dated March 17, 2005, a WCB adjudicator confirmed that the worker was not eligible to receive wage loss benefits past the date that she left her employment with the accident employer. It was also confirmed to the worker that the WCB would not cover the costs for a pair of ergonomic arm supports, an ergo mouse pad and a tilting work surface. The letter stated, "The order date and shipping date on this bill denotes September 4, 2004. In his report dated January 25, 2004 of your residence and work station Rehab Specialist [name] photographs similar devices already in place. I have had a chance to discuss your requirement for new devices and he feels that they would not have been required. I therefore will not be covering the costs of these."

On March 17, 2005, the worker wrote to Review Office. The worker outlined her position that she was entitled to wage loss benefits after she left her employment with the accident employer. On June 2, 2005, a worker advisor appealed the WCB's decision to deny responsibility for the coverage of ergonomic devices on the worker's behalf.

On July 6, 2005, a WCB review officer met with the worker at her residence to discuss aspects of her claim. A memo pertaining to this visit is on file dated July 8, 2005.

On July 7, 2005, an advocate, acting on the employer's behalf, responded to the worker's submission of March 17, 2005.

In a decision dated July 12, 2005, Review Office determined that the worker was not entitled to receive wage loss benefits subsequent to August 7, 2002. Review Office was of the view that the employer would have been able to accommodate the worker in some capacity and at no wage loss. As the worker removed herself from the pre-injury employment setting and thereby denied the employer the opportunity of accommodating her, she did not have any entitlement to ongoing wage loss benefits.

Review Office also determined that the worker should be reimbursed for the ergonomic arm supports and ergo mouse pad but not for the tilt table. Review Office felt that the purchase of the tilt table was made necessary by the worker's decision to leave her employer and work exclusively from her home and therefore she could not be reimbursed for the costs resultant from that decision.

On July 14, 2005, the worker advisor appealed Review Office's decisions of July 12, 2005. On July 21, 2005, the employer's advocate appealed Review Office's decision to accept responsibility for the claim. On October 26, 2005, an oral hearing took place to consider both the worker's and employer's appeals.

Reasons

This case involves three issues and appeals by both the worker and employer. Regarding Issue 1 which was raised by the worker, the Panel was asked to determine whether the worker is entitled to wage loss benefits beyond August 7, 2002. For the appeal to succeed on this issue the Panel must find that the worker continues to suffer a loss of earning capacity as a result of the workplace injury. The Panel did not reach this conclusion. The Panel did find that any loss of earning capacity which the worker may experience after August 7, 2002 is due to personal decisions made by the worker and is not the result of the workplace injury.

The worker also raised Issue 2, whether the worker should be reimbursed for the cost of a tilt board. For the appeal to succeed on this issue, the Panel must find that the tilt board was required as a result of the workplace injury. The Panel did not reach this conclusion. Based upon the worker's testimony at the hearing the Panel found that the tilt board was required as a result of other medical conditions, and that reimbursement should not be made.

Issue 3 was raised by the employer. The Panel was asked to determine whether or not the claim is acceptable. For this appeal to succeed, the Panel must find that the worker's injury did not arise out of or in the course of the worker's employment with the employer. The Panel did not reach this conclusion. The Panel found that the worker's pre-existing condition was aggravated by her workplace duties, therefore the claim is acceptable.

Attendance at the Hearing

The worker attended the hearing with a worker advisor who made a presentation on her behalf. The employer was represented by an advocate, its human resource consultant and its former branch director. The advocate made a submission on the employer's behalf.

The worker called two witnesses in support of her position. The employer called one witness.

Evidence at Hearing

The worker described her job duties at the time of the accident. She described her work in these words "it is heavy, it is awkward, it's very physically demanding…" She also noted that she would typically visit two or three sites a day so that she packed materials and equipment in her car trunk for these visits.

The worker described the incident in 1999 which she believes was the cause of her injury. She also described hauling the work equipment to job sites primarily with backpacks. She believes this worsened her injury. She described medical treatments she has received and the current state of her shoulder.

With respect to accommodation the worker noted that the employer would not permit her to work from home. She described her concerns regarding working at the office which include moving equipment, parking her vehicle, and the locking system on doors. She acknowledged that she worked in the field most of the time. She advised that most of her equipment was stored at her home.

She advised that the employer was not able to provide her with assistants ("somebody else that could be my two right hands"). She also noted that the employer refused to provide her with a fleet vehicle. Her personal vehicle was a standard which bothered her shoulder.

The worker acknowledged that she resigned from her position. She also acknowledged that the employer had offered to accommodate her in the office. She said this offer "…came very late in the game…" She also acknowledged that the employer asked her to provide further medical information and that she did not supply the information.

The worker advised that she is asking for benefits beyond August 7, 2002 because she has not been able to work full time since she left her employment.

The worker called as a witness an engineer in training who is working with her firm. The witness described the worker's current work duties. He noted the duties involve a variety of physically demanding or awkward actions and the manipulation of analytical and other equipment. He stated that static loading of the body is often required. He observed the worker performing her duties and noted that discomfort is readily apparent. He stated that her rate of work appears reduced from normal. He advised that he often has to transport her equipment to jobsites to minimize the worker's pain and discomfort. When asked about the worker's duties with the employer, he responded that he was "…not privy to experiencing those job functions."

The worker also called as a witness her treating chiropractor who provided evidence regarding the worker's shoulder. The chiropractor also provided evidence regarding the worker's foot injury which is not included in this summary.

The chiropractor advised that he first saw the worker on June 23, 2001 on referral from the worker's treating physician. At that time he was seeing her for her neck and upper back. During an examination he noted that the worker had signs of impingement in the right shoulder.

With respect to the use of backpacks, he noted from his research that "The most common injuries that are seen are actually in the loading and unloading of the backpack onto the shoulder." On the relationship between her injury and backpack use he commented: "I don't attribute all her shoulder problems to specifically the backpack use, I think its one of the many variables that could cause the symptoms that she came in with."

In response to questions from the employer's representative, the chiropractor advised that he spoke to the worker about her job and has seen pictures of the equipment that she used. In response to questions regarding swimming, the chiropractor explained the motions used in swimming and benefits of swimming. He noted that he has not seen many swimmers in his practice which deals with sports injuries.

He commented on a medical report prepared by an orthopaedic surgeon on behalf of the employer. He did not agree with the conclusion reached by the orthopaedic surgeon regarding the worker's predisposition to shoulder impingement.

The worker submitted various photos of equipment and of her participating in activities in various industrial locations. The worker described the contents of each photo and answered questions posed by the employer and Panel regarding the photos.

The employer called its director of human resources as a witness. He provided evidence surrounding discussions with the worker around the issue of working from home and other accommodation. He referred specifically to two meetings that were held with employer representatives and the worker who was accompanied by her union representative. The director's recollection was that the focus of the meetings was on the worker's request to work from home. He stated that the employer did not agree to this request but asked the worker what other accommodation she would require. He stated that she was asked to provide a report from her physician regarding other accommodations. The director advised the Panel that the worker never supplied the requested information. At the last meeting which was held on July 23, 2002, the worker advised that she was resigning from her position.

The director advised that the majority of the worker's work was, performed out in the field and that working from home was not seen as necessary. He estimated that five to ten percent of the worker's time over a 40 hour week was spent in the office.

The director was asked whether the employer would have been able to accommodate the worker in some capacity within the employer's operations. He replied, "Oh, definitely, and I think we did all we could to accommodate her." He noted that the employer receives many requests for accommodation and is able to implement most of them.

Issue 1

The worker submitted that the employer was not willing to accommodate her leaving her with no alternative but to resign. The worker notes that the employer refused to authorize the worker to work from home and failed to provide other accommodations.

The employer's representative submitted that the worker voluntarily left her position and there would be no loss of earning capacity had the worker not resigned from her position because the employer would have accommodated the worker.

Having considered all the evidence on the claim file and that presented at the hearing, the Panel finds that the worker is not entitled to wage loss benefits beyond August 7, 2002. The Panel finds that the worker's loss of earning capacity is not due to the workplace injury but to the worker's personal decision to resign from her employment. In this regard the Panel finds that any loss of earning capacity caused by the workplace injury has ended in accordance with subsection 39(2) of The Workers Compensation Act (the Act). The Panel accepts the evidence of the employer's witness that the employer would likely have been able to accommodate the worker had the worker remained in their employ.

The Panel also notes the evidence confirmed by both worker and employer that the worker was requested to provide further medical evidence to assist with the accommodation and that the worker did not provide the information. The Panel finds that the worker failed to cooperate in establishing an accommodation by failing to provide medical information on possible accommodations.

The Panel also finds that the worker failed to mitigate the consequences of her accident by removing herself from her employment and in accordance with section 22 of the Act, the worker would not be entitled to wage loss benefits, if she had a loss of earning capacity.

The worker has pointed to the employer's refusal to permit her to work from home as evidence of the employer's unwillingness to accommodate her. The Panel notes and accepts the evidence that the worker attended the office as little as 5 to 10 percent of her time each week. The Panel also accepts the evidence that the worker was not required to report to the office each day. The Panel also accepts the evidence that the worker stores most of her equipment at her residence and is not required to move the equipment to and from the office. The Panel notes the evidence does not support the worker's assertion that this accommodation is required for her workplace injury. The Panel notes there was no medical restriction precluding her from attending and working at the office.

Issue 2

The worker argued that the tilt board was required for both recreational and business purposes and accordingly, she should be reimbursed the cost of the tilt board.

The Panel notes the worker's evidence at the hearing that the tilt board allows the neck to remain in a neutral position while writing and reading. The Panel considers that the tilt board was acquired primarily for her neck condition which is not compensable. The Panel also finds that the primary use of the tilt board is for business purposes. The Panel finds that the worker should not receive reimbursement for the cost of the tilt board.

Issue 3:

The employer's representative argued that the worker's claim is not acceptable. The employer relied upon the opinion of an orthopaedic surgeon that the worker would be particularly prone to a degenerative tear. The employer also relied upon the opinion of a WCB healthcare consultant.

The employer disputed the worker's description of her duties and in this regard argued that photos provided by the worker were not relevant and should be given no weight.

The worker supported the Review Office decision accepting her claim. The worker's representative noted that the employer's orthopaedic surgeon did not examine the worker and did not provide evidence to support that the worker's right shoulder condition did not result from her work duties.

The Panel finds on a balance of probabilities that the worker's claim is acceptable. The Panel finds that the worker's duties and particularly the use of backpacks in transporting materials and equipment resulted in an accident in accordance with subsections 1(1) and 4(1) of the Act. We find the evidence of the worker's treating chiropractor with respect to the worker's use of backpacks as helpful in arriving at this decision. The Panel also preferred the opinion of the treating chiropractor to the opinion of the employer's orthopaedic surgeon. The chiropractor examined and treated the worker and was familiar with the worker's job duties.

The Panel finds that the worker's pre-existing shoulder condition was aggravated by the worker's work activities. The Panel further finds that the aggravation is acceptable in accordance with Board of Director's Policy 44.10.20.10, Pre-existing Conditions.

The Panel did not rely on the photos submitted by the worker in reaching its decision that the claim is acceptable.

The employer's appeal is declined.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

A. Scramstad - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 6th day of December, 2005