The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on December 8, 2004, at the request of a union representative, acting on behalf of the worker. The Panel discussed this appeal on the same day.

Issue

Whether or not the worker is entitled to wage loss benefits between April 21, 2003 and May 30, 2003.

Decision

That the worker is entitled to wage loss benefits between April 21, 2003 and May 30, 2003.

Decision: Unanimous

Background

In January 2003, the worker reported left shoulder difficulties to her employer which she attributed to the nature of her job duties which involved lifting and pulling boxes weighing approximately 30 kg each. The initial diagnosis rendered by the attending physician was a left shoulder bursitis. The claim was accepted by the Workers Compensation Board (WCB) and benefits were paid to the worker. On February 3, 2003, the worker returned to her regular duties while undergoing physiotherapy treatments.

On April 9, 2003, the worker called the WCB to indicate that she left work on this date because of pains in her left shoulder, armpit, breast and neck. The worker noted that her symptoms had worsened since stopping physiotherapy and that her doctor advised that she was having chest pain secondary to her compensable injury.

Until April 14, 2003 the worker was working at modified duties, which involved tray padding, then she asked to be removed from the cold environment as it was causing her neck and shoulder to tense up. The accident employer accommodated her with office duties between April 14 and 18 which she felt were outside of her restrictions as any reaching/pulling caused her left arm symptoms to flare-up.

In a progress report dated April 21, 2003, the treating physician recorded that the worker was capable of modified work, i.e. "very light duties - no labor with left arm." In a subsequent report dated April 22, 2003, the physician outlined the worker's physical restrictions as "no work with arm above shoulder. No lifting with left arm. No repetitive movt's."

On April 23, 2003, the WCB contacted the worker. The worker confirmed that she was claiming time loss from April 9 to April 11, 2003 as she had been having trouble breathing since the incident of April 9, 2003. The worker advised that she had been seen by an orthopaedic specialist on April 14, 2003 and who told her that she had a lateral tear in her left shoulder with broken cartilage. The doctor wanted her off work until she underwent an MRI assessment.

On May 4, 2003, the treating orthopaedic specialist reported to the WCB that he was arranging for the worker to undergo an MRI assessment as she may have some degree of underlying instability in her shoulder as well as a possible labral tear. While awaiting the MRI assessment, the surgeon suggested that the worker could perform modified duties.

On May 8, 2003, the worker clarified with the WCB that her job duties prior to being off work consisted of going through binders and folders at her desk along with filing. She stated that she had to reach for the binders above her on a shelf and lifting a lot of bundles. When asked why she didn't ask for help, the worker indicated that no one was around in the office.

In a May 15, 2003 telephone conversation with a WCB adjudicator, the employer confirmed that the worker was going through files and that some files were in boxes on the floor but the worker was advised not to lift any boxes and to get help with this task.

On June 5, 2003, the WCB informed the worker that her time loss from work between April 21 and May 30, 2003 could have been avoided as it was felt that the modified duties available in the office were appropriate and were respectful of her functional abilities. With respect to the performance of duties outside of her restrictions, the WCB noted that the employer requested she work within her limitations and that she ask for assistance with tasks that she felt aggravated her condition. On August 13, 2003, the worker's union representative disagreed with this position and forwarded an appeal submission to Review Office to consider.

On February 27, 2004, Review Office confirmed that the worker was not entitled to wage loss benefits between April 21, 2003 and May 30, 2003. Review Office was of the view that the worker was not instructed to remain off work by her doctor as she contended on April 21, 2003, but rather was instructed to continue working within the identified work restrictions. Review Office believed that in this instance the employer did provide duties which were suitable and respected the restrictions identified. On June 2, 2004, the union representative appealed Review Office's decision and an oral hearing with the Appeal Commission was then arranged.

Reasons

The essence of this appeal concerns the appropriateness or suitability of modified duties provided to the injured worker by the employer. As the background notes indicate, the Case Manager concluded that the employer had furnished suitable modified work duties during the period in question and as such no wage loss benefits were therefore payable. This decision was subsequently upheld by Review Office.

In a progress report submitted to the WCB by the treating physician, he indicated that the worker was capable of alternate or modified work but with restrictions. Those restrictions were "very light duties no labor with left arm" and were to be in effect for several weeks. In a subsequent communication, the treating physician further clarified the restrictions as follows: "No work with arm above shoulder. No lifting with left arm. No repetitive movt's."

A thorough review of the office duties revealed that such duties could involve many and varied tasks. The worker testified that a component of her initial exposure to the office duties involved tasks such as lifting and moving binders and boxes, which aggravated her symptomology. In addition, it was very clear according to the evidence that the employer had sufficient office tasks available, which would without question respect the worker's restrictions and that same would be available throughout the period in question. We find that the worker would in all likelihood have been, on a balance of probabilities, capable of performing these clerical duties.

However, it became very apparent at the hearing that the availability of these ongoing clerical tasks was never discussed or investigated by the worker, the employer and the WCB. It is at this juncture where the system broke down. The parties for whatever reason failed to investigate the reasons which forced the worker to leave the work site in April of 2003, namely the aforementioned lifting and moving of the binders and boxes that certainly aggravated her shoulder condition.

The WCB received a letter from the treating orthopaedic surgeon on or about May 8, 2003, in which he advised: "She will be seen following the MRI with further recommendations, and in the meantime shoulder restrictions against her regular duties, but can do modified and light duties". We note that a series of meetings and discussions took place subsequent to this May 8 letter, but the worker was not ultimately cleared for a return to appropriate modified duties until May 30, 2003.

After having considered all of the evidence, we find that the worker is entitled to wage loss benefits between April 21, 2003 and May 30, 2003. Accordingly, the worker's appeal is hereby allowed.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

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

Signed at Winnipeg this 27th day of January, 2005