The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on November 29, 2005, 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 was capable of performing her pre-accident duties as of August 2, 2002.

Decision

That the worker was not capable of performing her pre-accident duties as of August 2, 2002.

Decision: Unanimous

Background

In September 2001, the worker filed a claim with the Workers Compensation Board (WCB) for a right elbow injury that occurred in the workplace on July 11, 2001. The worker stated that she was picking up bundles of jeans to put them on a wagon and thought she had pulled a muscle. The worker said she did not think too much about her injury but as time went on her arm started to bother her more and more.

Initial medical information revealed that the worker was seen by a physician on August 3, 2001. The diagnosis rendered was lateral epicondylitis of the right elbow.

The WCB accepted the claim for compensation and benefits were paid to the worker. On September 24, 2001, the worker returned to her regular duties but noticed a flare-up of symptoms in her right elbow one to two weeks later and saw her physician for treatment.

In a medical certificate dated November 2, 2001, the physician noted that the worker had limitation of movement and exacerbation of pain and that further work activity aggravated her present condition. Effective November 5, 2001, the WCB reinstated the worker's compensation benefits.

On November 13, 2001, the employer advised the WCB that the worker was laid off as of November 9, 2001 due to restructuring and that the lay off would be long term.

File records showed that the worker was treated by an orthopaedic specialist and underwent physiotherapy treatments. On March 1, 2002, the worker underwent the following surgical procedure which was accepted as a WCB responsibility: "Excision lateral epicondyle right elbow."

On March 28, 2002, the orthopaedic specialist indicated that the worker's right elbow joint still had a flexion deformity of about 10 degrees. The wrist movements were getting better but the elbow was still tender and painful.

On May 22, 2002, the orthopaedic specialist indicated that the worker had complete range of movements but complained of pain and tenderness in the lateral aspect of the elbow. There was some pain in the thumb. Movements of the hand and neurological status of the right upper limb were within normal limits. The specialist indicated that the worker did not need more physiotherapy and should think of going back to work on a graduated basis. Medical restrictions were outlined to avoid lifting more than 20 lbs. at a time.

On July 17, 2002, the worker participated in a Functional Capacity Evaluation (FCE) to assess her current work capabilities. On July 23, 2002, a WCB medical advisor reviewed the FCE results and determined that the worker would be able to return to work if she did not have to pick up bundles of clothing.

Based on the weight of medical evidence, a WCB case manager determined that the worker had recovered from the effects of her work related injury and that wage loss benefits would be paid to August 1, 2002 inclusive and final. The case manager referred to the opinion expressed by the WCB medical advisor that the only thing that the worker would have difficulty with was lifting bundles of clothing. The case manager noted that he had contacted the employer and that the worker's job description of a quality control inspector only required that she lift one garment at a time.

On November 21, 2002, a worker advisor referred to medical information which supported his position that the worker had not recovered to her pre-accident state. He also noted that the employer had laid off the worker permanently. Based on these factors, he requested retroactive reinstatement of benefits along with rehabilitation assistance.

In a letter to the worker advisor dated December 9, 2002, the WCB case manager noted that a WCB orthopaedic specialist reviewed the file on November 28, 2002 and he concluded that there was no relationship whatsoever between the worker's right wrist and shoulder complaints and the original right elbow injury. Based on these findings, the case manager indicated that the WCB would not be responsible for any lost wages or treatment related to these areas. He stated that the worker was not entitled to wage loss benefits beyond August 1, 2002 based on subsection 39(2) of The Workers Compensation Act (Act) as it was felt that the worker was fully capable of returning to her pre-accident duties if they were available.

On July 15, 2003, a WCB impairment awards medical advisor determined that the worker's impairment award for her right elbow condition was 2.46%.

In a report dated July 23, 2003, the orthopaedic specialist stated that the worker's elbow condition had not really changed. He stated the surgical scar was well healed and the worker had a flexion deformity of about 5 to 10 degrees.

On October 23, 2003, the worker advisor asked Review Office to reconsider the case. As the worker had decreased range of motion and restrictions of no lifting over 20 lbs., the worker advisor questioned whether the worker was able to perform her pre-accident duties.

On November 7, 2003, the orthopaedic specialist indicated that the worker complained that her right upper limb was not functioning and that her wrist and shoulder were painful. The worker's elbow flexion was complete but the worker had a flexion deformity of approximately 20 degrees.

In a decision dated December 5, 2003, Review Office outlined its position that there was no evidence to support the contention that the worker was unable to perform her pre-accident duties as of August 2, 2002. Review Office felt that the worker was capable of inspecting one item of clothing at a time and that the restriction to avoid lifting more than 20 pounds could easily have been accommodated by the pre-accident employer.

On June 23, 2005, the worker advisor asked Review Office to consider additional medical information from the worker's treating physician dated December 6, 2004 and from an occupational health physician dated April 13, 2005. In a decision dated August 24, 2005, Review Office determined that the new medical information did not alter its previous decision. On September 12, 2005, the worker advisor appealed Review Office's decision and an oral hearing was arranged.

Reasons

The Panel was asked to determine whether the worker was capable of performing her pre-accident duties as of August 2, 2002. For the appeal to succeed, the Panel must find that the worker was not capable of performing her pre-accident duties as of August 2, 2002. The Panel found that the worker was not capable of performing her duties as a quality control inspector as of August 2, 2002.

Evidence and Argument at the Hearing

The worker attended the hearing with a worker advisor who made a submission on her behalf. With the aid of an interpreter, the worker answered questions posed by the Panel.

The worker's representative reviewed medical information which supports the worker's position that she was not able to perform her pre-accident employment as of August 2, 2002. He noted that the worker continues to have symptoms and restrictions as a result of her injury.

With respect to the worker's pre-accident duties, he noted that the worker was employed as a quality control inspector at the time of the accident. He noted that her duties consisted of not only checking the quality of the work done but also lifting heavy bundles of clothing and other heavy tasks. He described her as a hands-on type of employee who did whatever was needed. The representative stated that on August 2, 2002, the worker could not return to her duties because she could not do the necessary heavy lifting. He noted that the worker's ability to resume her pre-accident employment has to be assessed based on the true nature of her regular duties which involves heavy lifting.

The representative noted that the worker is seeking wage loss benefits and rehabilitation assistance.

The worker confirmed that her permanent position at the time of the injury was in quality control. She also confirmed that this position involved lifting heavy objects. She described her current condition and listed her current medications. She feels that she has not recovered from the injury. She advised that she began working as a cleaner this year and gets help from her husband and son.

Analysis

The Panel finds, on a balance of probabilities, that the worker was not capable of performing her regular pre-accident duties as of August 2, 2002.

The Panel finds that the worker's regular duties as a quality control inspector involved moving heavy bundles of clothing which held up to 30 pairs of jeans. The Panel also finds that as of August 2, 2002, the worker was restricted from lifting more than 20 lbs. This restriction was recommended by the treating orthopaedic surgeon in a report dated May 22, 2002. This restriction was also recommended by the WCB medical consultant in a memo dated November 28, 2002.

The Panel notes that in addition to the lifting restrictions, in August 2002 it was evident that the worker's elbow had not recovered. The orthopaedic surgeon noted a flexion deformity of 5-10 degrees. In 2003, the worker was awarded a permanent impairment award in recognition of this impairment.

The WCB determined that the worker could perform her pre-accident duties provided that she did not move the bundles of clothing and only moved one garment at a time. The Panel finds that this restriction would only have allowed a return to modified duties which could not be accommodated due to the restructuring of the employer's workforce in late 2001.

Accordingly the appeal is allowed.

Panel Members

A. Scramstad, Presiding Officer
J. MacKay, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

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

Signed at Winnipeg this 11th day of January, 2006