The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel review was held on January 15, 1999, at the request of the claimant.

Issue

Whether the claimant is entitled to payment of wage loss benefits for the period March 13, 1997, to September 23, 1997, inclusive, less any time worked.

Decision

That the claimant is entitled to payment of wage loss benefits for the period March 13, 1997, to September 23, 1997, inclusive, less any time worked.

Background

During the course of his employment as a diamond driller on July 29, 1993, the claimant pulled the muscles of his right shoulder while lifting rods at work. Following the incident, the claimant continued working at his regular duties, but ceased work in January 1994 due to ongoing right shoulder difficulties. The claim was accepted by the Workers Compensation Board (WCB) and benefits were paid accordingly.

On May 16, 1994, an orthopaedic surgeon reported that the claimant appeared to be suffering from a right regional shoulder pain syndrome which he felt was due to the claimant's work activities. The specialist stated the cause of the claimant's pain was not well known, but most likely was a rotator cuff. The differential diagnosis was AC joint pain or a posterior labrum lesion. An MRI was recommended to define the right shoulder lesion.

An MRI of the right shoulder was carried out on October 26, 1994. The impression indicated, "...imaging signs of impingement but no abnormality is seen in the rotator cuff."

The claimant was assessed by a second orthopaedic surgeon on February 13, 1995. He reported that the claimant's symptoms were suggestive of both AC and subacromial pain. A shoulder scope, resection distal clavicle and acromioplasty were suggested. This procedure was later carried out on March 19, 1996, and was accepted as a WCB responsibility.

Following examination on October 18, 1996, a WCB medical advisor noted that the claimant was improving quite nicely from surgery. The medical advisor believed, however, that the claimant was still suffering from mild rotator cuff tendonitis with weakness of his right bicep and supraspinatus muscles. The medical advisor concluded his examination report by stating that the claimant would be able to return to work following completion of a work hardening program.

The claimant subsequently started a physiotherapy program commencing December 13, 1996. On January 22, 1997, the physiotherapist reported that although the claimant had almost full shoulder range of movement he still complained of anterior shoulder joint tenderness with forward flexion at approximately 90 degrees which did not change with exercise.

On March 4, 1997, Claims Services wrote to the claimant to advise that partial wage loss benefits would be paid to March 14, 1997, inclusive and final. It was the opinion of Claims Services, following a consultation with a WCB medical advisor, that the claimant had now recovered from the effects of his July 29, 1993, compensable injury to the point where he was able to return to his pre-accident employment. The claimant appealed this decision to the Review Office stating that he had been in constant touch with his physiotherapist and physician who agreed that it may be too difficult for him to go back on the drills.

Following receipt of the claimant's appeal, the Review Office wrote to the attending physician for additional information. In a response, dated April 28, 1997, the physician indicated that abduction of the claimant's right shoulder on January 13, 1997, was 140 degrees. The physician stated, "I think Mr. [the claimant] has made a fair recovery from his surgery but that his shoulder will not be up to the severe demands imposed by diamond drilling."

On April 2, 1997, the physiotherapist reported that the claimant had achieved three-quarters full forward flexion and abduction of the right shoulder by March 26, 1997. The claimant, however, complained of anterior shoulder pain with forward flexion at 90 degrees which did not change with his exercise program. The physiotherapist encouraged the claimant to continue with his home exercise program. It was mutually agreed that the claimant would be discharged from physiotherapy as of the date of her report.

In a decision dated May 9, 1997, the Review Office confirmed that the claimant was not entitled to payment of wage loss benefits beyond March 13, 1997. The Review Office was satisfied, on a balance of probabilities, the worker was recovered to the point where he was capable of returning to his pre-accident employment. After reviewing the most recent medical information, the Review Office concluded that it provided no findings which would indicate the claimant was not capable of returning to his regular employment.

On July 17, 1997, the attending physician reported the claimant's shoulder lacked 20 degrees of abduction, a few degrees of internal rotation and a few degrees of flexion. The physician stated, "The problem is, Mr. [the claimant] is a diamond driller and the stresses on his shoulder are far above those of a normal job. He is going to give it a try to see how things go."

Subsequent file records show that the claimant returned to work with a different employer between July 31st to August 6, 1997, and from September 2 to September 23, 1997, as a diamond driller. On September 23, 1997, the claimant ceased work due to further right shoulder problems.

On September 26, 1997, the attending physician wrote to the orthopaedic surgeon asking him to reassess the claimant. The physician noted that abduction flexion and external rotation were limited and there was tenderness over the AC joint area.

The case was reviewed again by a WCB medical advisor on October 27, 1997, at the request of primary adjudication. The medical advisor stated, on a balance of probabilities, there was a relationship between the claimant's present symptoms and the compensable injury. Wage loss benefits were reinstated on September 24, 1997.

On November 12, 1997, the orthopaedic specialist reported his clinical examination showed very mild tenderness subacromially. There was no visible wasting. The claimant had elevation to 160 degrees increasing passively to 170 degrees. The claimant otherwise had a full range of motion and impingement signs were positive. The specialist thought that the claimant had improved after his operation, but not to the point where he could return to strenuous work such as diamond drilling. He recommended the claimant continue with modified activities and he outlined permanent restrictions that the claimant avoid repetitive overhead activities or lifting over the shoulder level.

In a memo to an adjudication supervisor, dated February 3, 1998, an adjudicator documented that the claimant was claiming benefits retroactive to March 1997. On February 20, 1998, the adjudication supervisor agreed with the Review Office's decision that the claimant was fit to return to work. "The claimant did not begin work until July 1997, so there is no loss of earnings from March 13, 1997 until July 31, 1997. In addition, the medical information from the claimant's physician dated July 17, 1998 does not provide any objective findings to support total disability." On February 23, 1998, the claimant was notified that Claims Services would not reinstate benefits retroactive to March 13, 1997.

On June 26, 1998, the claimant's right shoulder was assessed by a WCB medical advisor. Following this examination, the medical advisor stated that claimant should refrain from any overhead work and excessive lifting of heavy weights. The medical advisor was also of the view that the claimant would not be able to return to the rigors of a drill operator. On August 9, 1998, permanent restrictions were placed on the claimant to refrain from any overhead work and excessive lifting of heavy weights.

In March and August 1998, the claimant appealed the decision that he was not entitled to wage loss benefits between March 13, 1997, and September 23, 1997. On October 23, 1998, the Review Office stated there was no basis to change its earlier decision of May 9, 1997. Review Office felt, despite all the information available at the time of their earlier decision, there was no reason why the worker could not have returned to work in March of 1997 just as he had in September. "Although he has had a recurrence in September, I feel that this is no a basis for paying benefits to him from March 13, 1997 to September of 1997."

On January 15, 1999, a non-oral file review was conducted at the Appeal Commission.

Reasons

The overwhelming preponderance of evidence confirms to us that the claimant is entitled to the payment of wage loss benefits for the period of March 13th, 1997, to September 23rd, 1997, inclusive less any time worked. Specifically, we attached considerable weight to the following body of evidence:

• April 2nd, 1997, letter from the physiotherapist to the WCB. "I reassessed him March 26, and reviewed his home exercise program. He has full forward flexion and abduction of his shoulder. He complains of anterior shoulder pain with forward flexion at 90 which does not change with his exercise program."
• April 28th, 1997, letter from the treating physician to the Review Office. "I think Mr. [the claimant] has made a fair recovery from his surgery but that his shoulder will not be up to the severe demands imposed by diamond drilling."
• July 17th, 1997, letter from the treating physician to the WCB. "Mr. [the claimant] was in to see me today. He has a fairly strong shoulder. Movement only lacks the last 20 degrees of abduction, lacks the last few degrees of internal rotation, and lacks a few degrees of flexion. The problem is, Mr. [the claimant] is a diamond driller and the stresses on his shoulder are far above those of a normal job. He is going to give it a try to see how things go."
• September 26th, 1997, letter from the treating physician to the claimant's Orthopaedic Surgeon. "Thank you for reassessing this gentleman who had right shoulder surgery recently and got back to near normal function thereafter. He went back to his regular job of diamond drilling which is a high impact upper body job. He can not tolerate this and his pain is back and his abduction flexion and external rotation is limited. He also has distinct tenderness over the A/C joint area and is unable to go back to his regular job."
• October 27th, 1997, WCB medical advisor's memorandum to file. "On balance, there is likely a relationship between present symptoms and CI."

We find that the claimant had not, on a balance of probabilities, returned to his pre-accident status at the time his benefits were terminated. Although the claimant attempted a return to work following the termination of his benefits, this was not successful because of his ongoing problems. We have no hesitation in allowing the claimant's appeal.

Panel Members

R.W. MacNeil, Presiding Officer
A. Finkel, Commissioner
R. Frisken, Commissioner

Recording Secretary, B. Miller

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

Signed at Winnipeg this 26th day of February, 1999