The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on February 17, 2005, at the worker's request. The Panel discussed this appeal on the same day.

Issue

Whether or not the worker is entitled to wage loss benefits for the period September 4, 2003 to May 4, 2004, inclusive.

Decision

That the worker is not entitled to wage loss benefits for the period September 4, 2003 to May 4, 2004, inclusive.

Decision: Unanimous

Background

During the course of her employment as a customer service agent on January 29, 2003, the worker felt a pull in her left arm while moving baggage. The claim was accepted on the basis of a left shoulder strain and wage loss benefits were paid to the worker beginning March 11, 2003.

In May, 2003, the worker was assessed by a rheumatologist at the request of her attending physician. In a report dated May 20, 2003 the rheumatologist provided a diagnosis of "left rotator cuff tendinitis +/- small rotator cuff tear."

The worker was examined by a WCB physiotherapy consultant on May 20, 2003. The consultant's examination findings were consistent with a rotator cuff tendinitis subacromial impingement. The worker had good range of motion and strength. On May 28, 2003, the physiotherapy consultant recommended a graduated return to work program with the following restrictions: to avoid pulling, pushing or lifting more than 20 lbs. on an occasional basis.

The worker began a graduated return to work program commencing May 30, 2003 but began to experience discomfort after two shifts. On June 26, 2003, a WCB case manager visited the work site to view the positions and to make necessary modifications. In July 2003, the worker again returned to modified duties but experienced further discomfort. Further changes were made to the job duties to accommodate the worker.

On July 28, 2003, an orthopaedic specialist assessed the worker with regard to her left shoulder injury. He agreed with the clinical diagnosis of a left rotator cuff tendinitis and that the worker did not appear to exhibit any signs or symptoms of a rotator cuff tear. As the worker was not responding to non-operative management, the specialist recommended an arthroscopic subacromial decompression. The specialist said he suggested doing an MRI arthrogram to rule out any intra-articular pathology pre-operatively but the worker wished to proceed directly with surgery.

On August 18, 2003, the worker advised the WCB that she had resigned from the accident employer as of September 8, 2003 and that she was starting work with another employer. Based on this information, the worker was advised that no further compensation benefits would be forthcoming as of September 8, 2003 and that the WCB would continue to monitor the incoming medical information.

On August 27, 2003, a WCB healthcare advisor wrote to the orthopaedic specialist to indicate that the WCB wanted to proceed with a MRI examination to identify the pathology within the worker's shoulder, prior to authorizing the proposed surgery.

On November 16, 2003, the worker underwent an MRI examination of her left shoulder. The results revealed a Type II acromion without significant anterior nor lateral down-sloping and well preserved articulation. There was no evidence of a rotator cuff tendon tear.

In December 2003, the orthopaedic specialist noted that the MRI did not demonstrate any abnormalities with the rotator cuff but that the worker did have findings consistent with impingement. He noted that the worker wished to proceed with a subacromial decompression with or without WCB approval.

On March 3, 2004, a WCB medical advisor wrote to the orthopaedic specialist to advise that the WCB was not authorizing surgery as the MRI demonstrated no demonstrable lesion resultant from the effects of the compensable injury.

On May 5, 2004, the worker underwent a left arthroscopic subacromial decompression.

In a follow-up report dated June 24, 2004, the orthopaedic specialist noted that the worker's pain was much better than prior to surgery and that her range of motion was excellent. The worker still had some lack of forward elevation and abduction strength and her main problem was lack of endurance. It was felt that the worker could return to work on a half time basis on July 5, 2004.

On July 12, 2004, the worker wrote to the WCB, stating that her shoulder was stronger with little or no pain since undergoing surgery. The worker felt that she was entitled to wage loss and other benefits from September 4, 2003 to July 4, 2004 inclusive.

On July 27, 2004, a WCB medical advisor reviewed the file which included the operative report. He stated that the OR findings confirmed no pathology resultant from the compensable injury, only pre-existing arthrosis, treated by acromioplasty and distal clavicle excision.

Based on the opinion expressed by the WCB medical advisor on July 27, 2004, the WCB advised the worker on August 30, 2004, that the file evidence did not support an ongoing causal relationship between the work injury and her ongoing shoulder difficulty. The WCB also noted that the worker resigned from the accident employer on September 8, 2003 and that no further benefits would be issued as the accident employer was able to accommodate her with modified duties. On September 6, 2004, the worker appealed this decision to Review Office.

Prior to considering the worker's appeal, Review Office asked a WCB orthopaedic consultant to review the case and to provide his opinion as to whether or not the May 2004 surgery was related to the compensable injury given that the non-operative medical treatment did not resolve her tendonitis symptoms. His response to this query was as follows "The surgical procedure performed on the worker's L shoulder was a rotator cuff decompression acromioplasty for rotator cuff tendonitis with impingement unresponsive to non-operative medical treatment."

In a decision dated September 14, 2004, Review Office determined that the need for surgery was related to the compensable injury and was the WCB's responsibility.

Review Office also determined that the worker was not entitled to wage loss benefits after September 3, 2003 on the basis that her employer was able to provide modified duties that respected her restrictions and that the WCB would not be responsible for any lost wages due to the worker's decision to quit her employment. On November 16, 2004, the worker appealed Review Office's decision regarding her entitlement to wage loss benefits after September 3, 2003. On February 17, 2005, an oral hearing was held to consider the worker's appeal.

Reasons

A thorough review of the evidence confirms that the employer accommodated with what can best be described as appropriate modified work duties. There was no medical evidence presented or referred to which would suggest that the worker was/or would be unable to perform the modified duties arranged by the employer. It is important to note that the worker unilaterally decided to leave her job with the accident employer. In addition, at the time of tendering her resignation, the worker was definitely aware that the WCB’s authorization for her proposed surgery was required.

We adopt and endorse the following reasons enunciated by Review Office:

“While the worker may be of the opinion that her modified duties would not continue indefinitely, there had been no indication of this from the employer. The employer provided her with modified duties that respected her restrictions. There were several instances where the worker required adjustments to the modified duties in order to continue working and the employer made these adjustments without difficulty. There was no indication from the employer that the modified duties would be time limited or that the worker would not be accommodated. In fact, the worker was still performing modified duties at the time she resigned her position.”

We find the WCB should not be responsible for any lost wages as a consequence of the worker’s decision to leave her employment voluntarily. Accordingly, the worker had no loss of earning capacity and therefore, is not entitled to wage loss benefits for the period September 4, 2003 to May 4, 2004 inclusive. The 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 6th day of April, 2005