The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on November 25, 1999, at the request of a worker advisor, acting on behalf of the claimant. The Panel discussed this appeal on November 25, 1999.

Issue

Whether or not the claimant is entitled to further benefits or services after May 10, 1994 as a result of his March, 1990 compensable injury.

Decision

The claimant is not entitled to further benefits or services after May 10, 1994 as a result of his March, 1990 compensable injury.

Background

The claimant sustained a compensable right shoulder injury while getting out of his semi trailer truck on March 22, 1990. On January 26, 1993, the claimant underwent a capsulorrhaphy reconstruction of the right shoulder for recurrent instability and secondary rotator cuff tendinitis. By early November 1993, the treating orthopaedic surgeon reported that the claimant's shoulder appeared stable and that the shoulder's range of motion was satisfactory. There was also some suggestion of pericapsulitis.

On April 13, 1994, the WCB determined that vocational rehabilitation benefits would be extended to the worker up to May 10, 1994, which marked the completion date of his work hardening program and job search. It was then expected that the claimant would be capable of resuming full work duties in the trucking industry. On August 17, 1994, the claimant contacted the WCB indicating that he attempted to work for a trucking company but had ongoing difficulty with his shoulder. He was currently off work.

A medical report was received from the attending physician, dated June 2, 1997, in which he stated that the claimant was seen on April 28, 1997, regarding his right shoulder. According to the claimant he had no significant difficulties with his right shoulder since approximately July of 1994 when he had attempted to return to work. The physician stated, "He in fact had been having more difficulties with his lower back; which continues to be an ongoing MPIC disability." The physician went on to indicate that it was the claimant's lower back instability that was the main aggravating condition preventing his returning to his pre-accident duties as opposed to his right shoulder injury.

In January 1998, a WCB impairment awards medical advisor examined the claimant. At the examination, the claimant told the medical advisor that he had constant pain in the top part of his right shoulder, with which he had learned to live. The claimant also stated that he had not been able to work as a long distance truck driver since his shoulder operation.

Following examination and review of color photographs, the impairment award medical advisor awarded the claimant a 3% permanent partial impairment rating for his right shoulder. On March 20, 1998, a WCB medical advisor indicated that the claimant did not require restrictions of any kind so far as his right shoulder was concerned. As a result, it was determined that there was no need for any further involvement from vocational rehabilitation.

On May 15, 1998, an advocate acting on behalf of the claimant presented additional medical information received from an occupational health physician, dated May 8, 1998. In this report, the physician summarized the claimant's past history and his examination findings regarding the right shoulder, which included myofascial dysfunction, loss of movement and pain. The physician concluded that the claimant had sustained a significant injury in 1990 with resulting shoulder surgery in 1993. The claimant briefly attempted returning to his usual work as a truck driver one-year later but the physical demands on his impaired right shoulder clearly exceeded his limits. The claimant described a number of driving activities that were beyond the limits of his right shoulder such as shifting manual transmission, prolonged handling of the steering wheel, etc. The physician also commented that the claimant's sensitivities to codeine medications for pain control constituted a hazard for driving. The physician was of the view that based on the above, the claimant was eligible for WCB rehabilitation services.

Following consultation with WCB healthcare personnel, the supervisor of Case Management wrote to the advocate on June 5, 1998. The supervisor indicated there was no basis to change the previous decision that the claimant did not require any restrictions as a result of the compensable shoulder injury and that there was no change in the PPI award. The issue raised regarding the medication taken by the claimant and the effect it was having on his ability to perform his pre-accident duties safely was also the subject of comment. In this regard, it was the opinion of WCB that alternate forms of pain medication could be utilized which would not have the risks associated with the codeine medication that the claimant was currently taking.

On September 18, 1998, the case was considered by Review Office. The review officer decided to convene a Medical Review Panel (MRP) to address the difference of medical opinion with respect to the claimant's work capability and the cause of any disablement from work subsequent to May 1994, resulting from the March 1990 work related accident. An MRP was then arranged for December 16, 1998. A copy of the MRP findings and opinion were forwarded to all interested parties.

In a letter to the claimant, dated February 5, 1999, Review Office made reference to the MRP's responses to specific questions posed by Review Office. In summary, Review Office stated the following:

"Review Office believes there is a weight of evidence which shows that your loss of earning capacity since May 1994, and any handicap to employment in your pre-accident occupation, has been the result of several factorsand that the effects of your work-related accident in March 1990 has not been and is not a significant contributing part of these factors (e.g. but for the consequences of a pain disorder, medication usage unrelated to your right shoulder injury, serious deconditioning, and perhaps, a back problem, you would have likely been able to maintain reasonable employment in the trucking industry)."

On August 6, 1999, a worker advisor wrote to Review Office outlining four new issues which he believed were outstanding on the claim. These issues related to:

• whether or not the claimant had recovered sufficiently from the 1990 right shoulder injury to return to his truck driving occupation;
• whether the use of medication caused a barrier to the claimant's return to work;
• whether the psychological based pain disorder resulted from the right shoulder injury; and
• whether the claimant's deconditioned state was a result of the compensable right shoulder injury.

The worker advisor contended that the MRP's findings weighed heavily in the claimant's favour and as a result, the claimant was entitled to retroactive benefits together with the development of a rehabilitation plan to assist in appropriate retraining.

On September 10, 1999, a different review officer wrote to the worker advisor with respect to his letter of August 6, 1999. The review officer stated that it was not the mandate of the WCB or Review Office to provide alternate hypotheses explaining various circumstances and conditions. The mandate was to determine whether or not a worker's loss of earning capacity and/or disability was related to a compensable injury.

The review officer believed that the previous review officer, in his letter of February 5, 1999, put forward his position concerning all of the matters brought forward by the worker advisor. He was of the view that the MRP's findings did not weigh heavily in the claimant's favour for the reasons set forth in the letter. Review Office suggested that the worker advisor present his arguments to the Appeal Commission as the next level in the appeal structure.

On September 10, 1999, the worker advisor requested an oral hearing to determine five issues. On October 6, 1999, the Acting Registrar at the Appeal Commission wrote to the worker advisor stating the issues raised relating to recovery, use of medication, psychological based pain disorder and the deconditioned state would be more in the nature of arguments related to the following issue:

"Whether or not the claimant is entitled to further benefits and services after May 10, 1994 as a result of his March 1990 compensable injury."

On November 25, 1999, an oral hearing was convened.

Reasons

In November 1993, the treating orthopaedic specialist reported to the WCB that the claimant's shoulder appeared stable and its range of motion was satisfactory. The claimant was advised to continue with self-administered exercises, as there was no longer any need for formal physiotherapy. There are no further medical reports received on the WCB's file until June 2nd, 1997, when a copy of the treating physician's letter to the claimant's advocate is received. In that letter the physician reported as follows:

"I had the opportunity to examine Mr. [the claimant] on April 28, 1997, specifically for the determination of ongoing disability regarding his right shoulder. According to Mr. [the claimant], he has had no significant difficulties with his right shoulder since approximately July of 1994, when he had attempted to return to work at that time. He in fact had been having more difficulties with his lower back, which continues to be an ongoing MPIC disability."

At the request of Review Office, a Medical Review Panel was convened on December 16th, 1998. We attached considerable weight to the responses to the following questions posed to the MRP.

Q. Based on the medical information and examination findings available to the WCB in May 1994, is it probable that the claimant had recovered sufficiently from the effects of his work-related accident to resume regular truck driving activities without any significant (increased) risks of further injury or damage to the right shoulder region?

A. The Panelist agree that there is little information of a medical nature available from the files relating to May 1994.

The last notes from his physician are dated November 6,1990, October 27, 1993 and November 6 1993 respectively. Restrictions are noted as follows: Avoid heavy lifting or strenuous upper body work. Fit for sedentary or light work. Avoid strenuous or overhead use of arm. It would appear to the Panelists that he would not at that time be fit to return to long distance truck driving.

Unfortunately, there are no medical notes from that time until his Workers Compensation benefits were discontinued in May 1994 without further examination. History obtained from Mr. [the claimant] suggests that he did return to work as a long distance driver shortly after his benefits were discontinued in May 1994. He states that he was only able to function for a short period of time, "about three weeks", and was forced to discontinue truck driving because of concern about his performance by his co-driver and his employer.

Unfortunately, we have no medical notes from that period until his appeal based on a note from an examining physician dated May 8, 1998.

The Panelists will therefore agree that there is insufficient medical information to make a decision as to whether Mr. [the claimant] was fit to perform long distance truck driving in May 1994.

Q. Does that panel believe there are other "medical matters" which ought to be considered in regard to the claimant's right shoulder impairment and/or handicaps to regular employment activities? If so, please outline the panel's opinion in these matters and the reasons for this opinion.

A. The Panelist were concerned about:

1. Mr. [the claimant's] use of Tylenol #3 which he admits cause drowsiness and would not be appropriate to employment.

2. Mr. [the claimant] appears to be in a seriously deconditioned state at this time. The Panelist agree that for these and lower back problems Mr. [the claimant] would not be capable of performing as a long distance truck driver. Alternate employment must be a consideration.

We find that the claimant is not entitled to further benefits or services after May 10th, 1994. We arrived at this conclusion in light of the foregoing comments by the Medical Review Panel together with the fact that there was no medical evidence introduced at the hearing to support any on going disability as a result of the compensable injury. There was just too great of a gap in time where there was no record of any active medical treatment. Accordingly, the claimant's appeal is hereby dismissed.

Panel Members

R. W. MacNeil, Presiding Officer
P. Challoner, Commissioner
C. Monk, Commissioner

Recording Secretary, B. Miller

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

Signed at Winnipeg this 10th day of December, 1999