The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An appeal panel hearing was held on January 19, 2006, at the request of a worker advisor, 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 May 24, 2003 and September 2, 2003; and

Whether or not the worker is entitled to wage loss benefits beyond January 7, 2005.

Decision

That the worker is not entitled to wage loss benefits between May 24, 2003 and September 2, 2003; and

That the worker is not entitled to wage loss benefits beyond January 7, 2005.

Decision: Unanimous

Background

In January 2003, the worker filed a claim with the Workers Compensation Board (WCB) for bilateral shoulder problems that he related to his job duties as a labourer. Initial medical reports diagnosed the worker with bilateral rotator cuff tendonitis with impingement in the left shoulder. Following an investigation into the onset and reporting of the worker's shoulder difficulties, the WCB accepted the claim and full wage loss benefits were paid to the worker commencing January 20, 2003.

On February 3, 2003, the treating physician indicated that the worker could return to light duties for 3 weeks with restrictions to avoid lifting more than 3 lbs. and no lifting above shoulder height. On February 11, 2003, the worker commenced modified duties which involved padding trays.

In a progress report dated February 19, 2003, the treating physician reported that the worker's shoulder pain became worse even with light duties and he arranged for the worker to be examined by an orthopaedic specialist. The physician authorized the worker to remain off work until he saw the specialist.

On February 28, 2003, the worker's treating physiotherapist advised a WCB case management representative that in his view, the worker should not be performing modified duties. He noted that the worker had a hard time putting on his shirt and he should not be doing any movements above shoulder level or repetitive movements with the arm.

On March 18, 2003, an employer representative advised the WCB that the worker had been fired because of a "3-day rule" for not reporting to work on March 10, 2003 as was requested in a registered letter dated March 5, 2003. The employer representative noted that the employer had tray padding duties available with the assistance of a helper, so that the worker would not have to lift or reach above shoulder level or he could have been placed in "extruding" which was considered a light/tedious position.

On March 18, 2003, the WCB case manager contacted the worker. The worker outlined his position that his termination from employment was not justified. He noted that there was a lot of arm movement with the tray padding duties. The case manager advised the worker that the WCB would continue to pay him benefits until it deemed him capable of performing modified duties.

On May 21, 2003, the worker attended the WCB's offices for an assessment of his bilateral shoulder condition. Following the examination, the medical advisor's opinion was that the most probable diagnosis was left rotator cuff tendinitis with impingement. An MRI was suggested to define the pathology of the rotator cuff and biceps tendon. It was felt that the worker was capable of returning to modified duty work with restrictions until the MRI report was reviewed.

In a decision dated May 26, 2003, a WCB case manager advised the worker that wage loss benefits would be paid to May 23, 2003 inclusive. The case manager pointed out that had the worker's employment not been terminated, his employer would have been willing and able to accommodate him with modified duties that met the restrictions outlined by the WCB medical advisor on May 21, 2003. Given his employer's ability to accommodate the worker within his functional abilities, it was the case manager's opinion that the worker's ongoing time loss from work could have been avoided.

In a June 16, 2003 report, an orthopaedic specialist outlined his position that the worker had a chronic cuff tendonitis and that he had not responded to conservative treatment. He stated that if no tear was found on the MRI assessment, he would proceed with a cuff decompression.

On June 19, 2003, an MRI of the left shoulder revealed a full thickness tear affecting the teres minor. There was no muscle atrophy or retraction noted. In view of the MRI results, the treating orthopaedic surgeon stated on July 4, 2003 that he would carry out decompression surgery and a cuff repair. On July 21, 2003, the WCB accepted financial responsibility for the proposed surgery.

An arthroscopy, bursectomy and acromioplasty of the left shoulder were carried out on September 3, 2003. In the operative report of the same date, the orthopaedic surgeon noted that no evidence was found of a full thickness tear.

On September 5, 2003, a WCB case manager informed the worker that his wage loss benefits would be reinstated in light of his recent surgery and would continue until he was again deemed fit for modified duties. The worker noted that he was still waiting to hear about the status of his union appeal to have his job reinstated.

File information revealed the worker's left shoulder status did not improve following surgery and that he continued to seek treatment from his orthopaedic specialist and was assessed at a local pain clinic, by a WCB orthopaedic consultant and by the WCB's Pain Management Unit (PMU).

On November 23, 2004, the WCB's PMU determined that the worker did not meet the diagnostic criteria for chronic pain syndrome (CPS) but appeared to be experiencing a mild degree of major depression.

On November 23, 2004, a WCB orthopaedic specialist reviewed the report from PMU and outlined his opinion that there was no evidence of an orthopaedic diagnosis of a compensable injury which would require the imposition of workplace restrictions.

In a decision of December 9, 2004, the worker was advised of the WCB's position that he no longer had a loss of earning capacity related to his workplace injury and that payment of wage loss benefits would end effective January 7, 2005.

In a submission to Review Office dated May 20, 2005, a worker advisor outlined her position that the weight of evidence did not support the WCB's decisions of May 26, 2003 and December 9, 2004. The worker advisor argued that there was no compelling evidence to confirm that the employer could accommodate the worker's functional ability at any time during his claim, that the worker's depression was work related and that the worker had not regained full function of his shoulder and therefore had not recovered from the effects of his accident.

On July 26, 2005, Review Office confirmed that the worker was not entitled to wage loss benefits between May 24, 2003 and September 2, 2004. Review Office's opinion was that the worker would have been accommodated in a modified duty position if he had not had his employment terminated due to failure to keep in contact with his employer.

With regard to wage loss benefits beyond January 7, 2005, Review Office noted that the worker's impingement was treated surgically and there was no evidence to suggest that the worker ever had sustained a rotator cuff tear. It noted that the worker advised the WCB orthopaedic consultant that he was unable to do anything with his left arm. Review Office felt that this testimony was contrary to the worker's "unfettered use of his left arm during surveillance of his activities in September 2004."

On September 21, 2005, a different worker advisor appealed Review Office's decisions of July 26, 2005 and an oral hearing was arranged.

Reasons

There are two issues before the panel. The first issue is whether the worker is entitled to wage loss benefits between May 24, 2003 and September 2, 2003. For the appeal of this issue to succeed the panel must find that the worker suffered a loss of earning capacity during this time period as a result of his workplace injury.

The panel was also asked to determine whether the worker is entitled to wage loss benefits beyond January 7, 2005. For the appeal of this issue to succeed the panel must find that the worker suffered a loss of earning capacity after the noted date as a result of his workplace injury. On both issues the panel was not able to find that the worker suffered a loss of earning capacity as a result of his workplace injury.

Applicable Legislation and Policy

Under The Workers Compensation Act (the Act) the worker is entitled to receive wage loss benefits where the compensable injury causes a loss of earning capacity. Subsection 39(1) of the Act provides that where an injury to a worker results in a loss of earning capacity after the day of the accident, wage loss benefits are payable to the worker.

Section 40 deals with the calculation of the loss of earning capacity and subsection 60(1)(e) provides that the WCB has jurisdiction to determine the loss.

Evidence and Argument at Hearing

The worker attended the hearing with a worker advisor who made a presentation on his behalf. The worker answered questions posed by his representative, the employer's representative, and the panel.

The employer was represented by a staff member who made a presentation on behalf of the employer. The employer representative answered questions posed by the panel.

The worker provided a description of his accident, attempts to return to work and interactions with his employer. The worker noted that his employment had been terminated by his employer and that he had filed a grievance. He was not aware of the status of the grievance. The employer's representative advised that the grievance was withdrawn by the worker's union.

The worker advised that he still had pain from the injury. He acknowledged that he can move his shoulder better and that he is doing exercise for the shoulder. He advised that he found employment in January 2005 after his wage loss benefits were terminated. He described his current job duties. In response to a question he stated that in January 2005, he would probably have been able to perform the tray padding job which he had done while on light duties in 2003.

Regarding the first issue, the worker's representative expressed concern about the termination of the worker's employment by the employer for failing to contact the employer. He referred to letters sent by the employer in March 2003. He questioned the employer's information that the worker had not contacted the employer as required by the employer's letter of March 5, 2003. He submitted that the worker had done nothing inappropriate to disqualify himself from benefits during the period from May 24 to September 2, 2003. He also stated that the worker did not self-terminate or do anything intentional. He submitted that the worker should be paid wage loss benefits during this period, notwithstanding that the employer had terminated his employment.

On the second issue the worker's representative argued that as of January 7, 2005 the worker was fit for modified duties only and was not able to perform his pre-accident duties. He referred to a surveillance video and suggested that the surveillance video did not show the worker engaged in any activity that was contrary to what he advised the WCB medical advisor. He noted that the worker found employment on January 20, 2005 and continues to be employed to the date of the hearing. He advised that the worker earns less after January 7, 2005 than he earned at the time of the accident and asked that the worker be paid partial wage loss to compensate for the difference.

The employer representative addressed the matter of the termination of the worker's employment. He stated that the worker did not comply with the letter requesting that he contact the employer regarding light duties employment. He confirmed that the failure to report to work resulted in the termination of the worker's employment. He noted the letter and termination were in accordance with a collective agreement between the employer and the worker's bargaining unit. He stated that the employer could have provided the worker with light duty employment during the period between May 24, 2003 and September 2, 2003 but that the worker "self-terminated". He submitted that the ongoing time loss could have been avoided. He advised that a grievance filed on behalf of the worker was withdrawn.

With respect to wage loss benefits after January 7, 2005, the employer representative agreed with the WCB's decision that the wage loss benefits not be paid after January 7, 2005. He stated that the worker's psychological condition was not directly related to the worker's injury. He also referred to the surveillance video and noted that the worker did not display signs of discomfort. He concluded that the worker's "…reluctance to cooperate with [the employer] and being capable of participating in an alternate or modified duty program brought forth his termination from gainful employment and that it was a psychological condition that prevented him from obtaining future gainful employment and was not the result of a compensable injury, but of a personal nature…."

Analysis

The panel has given careful consideration to the evidence both on the file and presented at the hearing and to the arguments advanced on behalf of the parties.

Regarding the first issue, the panel finds that for the period between May 24, 2003 and September 2, 2003 the worker was fit for modified duties only. There was no disagreement regarding this fact at the hearing. The panel finds that the worker is not entitled to wage loss benefits during this period, as the worker was terminated from his employment in March 2003 due to personal actions unrelated to the workplace injury. The panel accepts the employer's evidence that it could have accommodated the worker with light duties during this period, but the worker was no longer an employee. The termination of the worker's employment for reasons not related to the injury concluded the employer's responsibility to accommodate the worker. The worker's loss of earning capacity was not due to the injury but due to his loss of employment.

The worker has suggested that the termination was not appropriate. This is not an issue which the panel can address. However, the evidence shows that the worker had an opportunity to challenge the termination through the grievance process. The panel notes that a grievance was filed but that it did not proceed and was in fact withdrawn.

The panel also finds that the same reasoning applies to the time period after January 7, 2005. The panel finds that the worker was not fit to return to his regular employment at that time. The panel relies upon the opinions of the pain clinic physician and the worker's treating physician on this issue. The panel notes that at the hearing the worker advised that he could have performed the tray padding job in January 2005, if it had been offered.

We find that the employer could have accommodated the worker in January 2005 and there would be no loss of earning capacity. However, the worker was no longer employed by the employer. Accordingly there is no entitlement to wage loss.

The appeal is denied on both issues.

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 7th day of March, 2006