Public Decisions | The Appeal Commission

Decision #124/99 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on August 12, 1999, at the request of a union representative, acting on behalf of the claimant. The Panel discussed this appeal on August 12, 1999.

Issue

Whether or not responsibility should be accepted for payment of wage loss benefits beyond April 20, 1998, less benefits already paid on May 7, 1998, in relation to the claimant's left shoulder injury of April 15, 1998.

Decision

That responsibility should be accepted for payment of wage loss benefits from April 20, 1998, to June 19, 1998 when the claimant returned to work full time on light duties, less benefits already paid on May 7, 1998, in relation to the claimant's left shoulder injury of April 15, 1998.

Background

The claimant submitted an application for compensation benefits on April 28, 1998, relating her left shoulder difficulties to her employment activities as a chicken packer/checker. On May 6, 1998, the Employer's Report of Injury stated that the claimant was offered light duties and refused. The employer requested that the claim be investigated.

Initial medical reports noted the following:

a Doctor’s First Report dated May 8, 1998, (date of first treatment was April 20, 1998), indicated that the claimant developed left shoulder pain after work on April 15, 1998. The diagnosis was a deltoid strain and left lateral epicondylitis. The physician considered the claimant totally disabled for a total of three days.

a Doctor’s First Report dated April 25, 1998, diagnosed a muscle strain, (repetitive type injury) left shoulder. The claimant was considered totally disabled effective April 22, 1998 for three weeks.

on May 7, 1998, an orthopaedic specialist reported that the claimant had a partial temporary impairment in her left shoulder and would be unable to perform her work as a checker. The claimant was, however, capable of performing light duties lining trays with pads and styrofoam, providing she did not raise her left arm above the horizontal level. The diagnosis was bursitis of the left shoulder associated with painful arc syndrome of the left arm, which the claimant had not yet recovered from.

on May 8, 1998, the attending physician commented that the orthopaedic specialist felt the claimant had a muscle strain but he felt it was a repetitive strain. The physician indicated the claimant was totally disabled effective May 8 to June 1, 1998.

Following a telephone conversation with the claimant on June 10, 1998, an adjudicator from the Workers Compensation Board (WCB) documented the following information:

the claimant was right handed. She had no problems with her left shoulder prior to April 15, 1998.

on April 15, the claimant was working in the drum/thigh area which required the use of both hands and working at a fast pace. Around lunch time she noticed her left shoulder was very sore. She continued working the remainder of the week (April 16 & 17) with ongoing pain. On April 20, 1998, the claimant attended her physician and was given pain medication.

on April 21, 1998, the claimant returned to work and worked until noon with a lot of arm pain. She then asked for light duties. After she returned home she could not lift her arm up and could not sleep due to pain.

on April 22, 1998, the claimant attended a doctor at the clinic. She was told to stay home for a few days and was prescribed Tylenol 3.

the claimant returned to work on June 1, 1998 at light duties but her shoulder problems started again. She continued working up to June 5, 1998, (1/2 day) and then saw her doctor who authorized time loss from work to June 21, 1998.

The WCB adjudicator then spoke with the claimant’s employer on June 10, 1998. The employer advised that the claimant was offered light duties lining styrofoam trays on April 21, 1998, April 24, 1998, May 7, 1998 and June 5, 1998.

On June 15, 1998, Claims Services determined that responsibility would be accepted for medical aid costs and for wage loss benefits for April 20, 1998, (the date the claimant initially attended a physician) and May 7, 1998, (the date she attended an orthopaedic specialist at the employer’s request). Claims Services was of the view that the employer had modified duties within the claimant’s restrictions which would have permitted her to continue working without any loss of earning capacity.

A union representative wrote on July 13, 1998 contending that the claimant was unable to perform any of the duties offered by her employer and that she followed her attending physician’s instructions. In support, the union representative made reference to medical reports dated April 25, 1998, May 8, 1998, June 6, 1998, and June 20, 1998. “The question that has to be answered here, is not whether the employer in fact offered so-called “light duties” but whether the claimant was capable of any work at all. Even work that involved placing liners in styrofoam trays into boxes, requires movements of left and right upper extremities.”

On July 20, 1998, the claimant indicated that she suffered a secondary incident involving her shoulder at home on April 21, 1998 when lifting a pot of water. The claimant stated that after this she felt severe pain in her shoulder, had trouble sleeping, and was unable to continue working. Prior to this incident, she had requested and was provided modified duties which she was able to perform.

The claimant was examined at the WCB offices on August 17, 1998. Following examination, the medical advisor stated, in part, that the claimant had signs of abnormal illness behavior and that the examination showed numerous inconsistencies and some completely non-anatomical findings. As the claimant had developed some muscle wasting because she had not been using her left shoulder as she should have, it was recommended that the claimant return to her regular duties on a graduated basis.

On September 1, 1998, Claims Services determined that modified duties were available to the claimant and were well within her work capabilities. It was further determined that any ongoing medical care or need for modified duties was not directly attributable to the workplace accident sustained on April 15, 1998, but was more likely due to the lifting incident at home on April 21, 1998.

On September 18, 1998, the union representative appealed the decision of September 1, 1998, and the case was referred to the Review Office. In a decision dated December 11, 1998, the Review Office confirmed that responsibility should not be accepted for wage loss benefits apart from benefits paid on April 20th and May 7, 1998. The worker’s ongoing medical care and the need for modified duties were directly attributable to the April 15, 1998, accident.

The Review Office believed that the requirement for modified duties was directly attributable to the April 15, 1998, accident. With regard to wage loss benefits, it was clear to Review Office that the attending physician was never informed by the worker of the light nature of the work available to her. It was noted that the worker was right hand dominant and could have performed the light duties strictly utilizing her right hand without using the injured left extremity. Review Office believed that the job of placing liners on styrofoam trays would have been within the restrictions imposed upon the worker and that she could have participated in this particular job if she chose to do so. There would have been no requirement for the worker to be have been involved in repetitious motions utilizing her left arm and shoulder. The worker was therefore not entitled to payment of further wage loss benefits.

On May 12, 1999, the union representative appealed the decisions rendered by the Review Office on December 22, 1998 and April 12, 1999 (under Claim No. 9805 3835/8M). However, in subsequent file correspondence, the union representative asked to postpone the issue related to Claim No. 9805 3835/8M. On August 12, 1999, a hearing was held at the Appeal Commission.

Reasons

The issue in this appeal is whether or not responsibility should be accepted for the payment of wage loss benefits beyond April 20, 1998, less benefits already paid on May 7, 1998, in relation to the claimant's left shoulder injury of April 15, 1998.

The relevant subsection of the Workers Compensation Act (the Act) is subsection 39(2) which provides for the duration of wage loss benefits for a work related injury.

We reviewed all the evidence on file and given during the hearing process and conclude that the evidence supports a finding, on a balance of probabilities, that the claimant is entitled to wage loss benefits from April 20, 1998 to June 19, 1998 less any benefits already received in relation to the left shoulder injury of April 15, 1998.

The evidence reveals that the claimant attempted to return to work on several occasions on light duties but could not manage and was advised not to work by her physicians on several occasions. In this regard we note that the claimant first developed left shoulder pain at work on April 15, 1998 but attempted to keep working at her regular duties. She saw an attending physician April 20, 1998 who found her disabled from work for three days. The claimant went back to work the next day, worked regular duties for half a day and light duties for the balance of the day. On April 22, 1998 the claimant did not work and saw a second attending physician who diagnosed a left shoulder strain/bursitis and indicated that the claimant should not work for the next two days and should see her regular attending physician.

The claimant subsequently saw her regular attending physician on or about April 24, 1998 who diagnosed a repetitive-type left shoulder muscle strain and advised the claimant she should remain off work for three weeks. We note in a narrative report dated December 3, 1998 the attending physician gave her opinion, " when I saw Ms. (the claimant) on April 24, 1998 it was my opinion that she (the claimant) had a repetitive strain injury of the left shoulder and should not be doing anything repetitive in nature, unrespective (sic) of weight." Although in the narrative report of December 3, 1998 the physician indicates that the claimant had not informed her about the offer of light duties in April we note in the Employer's Return to Work Form, dated May 1, 1998 and signed by the claimant's attending physician, the claimant's attending physician indicates that the claimant is not able to return to regular or alternate duties based on her examination of April 25, 1998.

The claimant was subsequently seen by an orthopaedic specialist on May 7, 1998 who diagnosed bursitis of the left shoulder associated with painful arc syndrome of the left arm and indicated that the claimant had not yet recovered from this condition. He states:

2. In my opinion she should be able to perform light duties lining trays with pads and styrofoam, providing she does not raise her arm above the horizontal level.

In my opinion she should be able to return to her work in two weeks time but will need to have restriction to the left shoulder and arm above the horizontal level for an additional one month."

The employer has argued that the claimant could have returned to work as suitable light duties were offered to the claimant. While we appreciate the employer's efforts to accommodate injured workers in light duties, in this case we find that the light duties offered were inappropriate and not within the claimant's restrictions. Testimony given at the hearing revealed that the light duties were very repetitive, and involved much greater use of the left arm than, in our opinion, was contemplated by the orthopaedic specialist at the time of his report.

We find that the description of the liners and styrofoam trays by weight alone has given a mistaken impression on the file that the task was very easy and this appears to have diverted attention from the fact that the work was highly repetitive, that parts of the job involved lifting, stacking and separating the trays and, in our opinion, would involve quite extensive use of the left arm and lifting of the left arm beyond the horizontal level.

In the context of this claim we note the comments of the WCB medical advisor in a memorandum to file dated June 11, 1998 where he indicates:

" Cause of bursitis is either a contusion or overuse (Sport Injury Assessment and Rehabilitation pg. 902) On page 950 of same text subacromial bursitis ' is aggravated by motion and is frequently worse during the night and first thing in the morning. With an acute intense inflammatory response in the bursa, the patient may lose all capacity to abduct the arm, and the pain may refer as far as the elbow or wrist."

The claimant's attending physician examined the claimant on June 18, 1998 and indicated that the claimant's recovery was satisfactory; that the claimant was doing better with physiotherapy; and that range of motion was full. The attending physician authorized the claimant to return to work on light duties for two weeks and to resume regular duties after two weeks.

Therefore we conclude that the claimant is entitled to wage loss benefits from April 20, 1998 to June 19, 1998, when she returned to work full time on light duties, in relation to the left shoulder injury of April 15, 1998, less any benefits already paid. The claimant's appeal is allowed.

Panel Members

D. A. Vivian, Presiding Officer
A. Finkel, Commissioner
R. Frisken, Commissioner

Recording Secretary, B. Miller

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

Signed at Winnipeg this 27th day of August, 1999

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