The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on April 15, 1999, at the request of a union representative, acting on behalf of the claimant. The Panel discussed this appeal on April 15, 1999.

Issue

Whether the claimant is entitled to payment of wage loss benefits during the period of March 25, 1998 to August 25, 1998 in relation to his work related left shoulder injury.

Decision

That the claimant is not entitled to payment of wage loss benefits during the period March 25, 1998 to August 25, 1998 in relation to his work related left shoulder injury.

Background

On March 27, 1996, the claimant was pulling cow hides from a large box when he wrenched his left shoulder. On the day of the injury, a chiropractor diagnosed the claimant's condition as a medial strain of the posterior deltoid and wrist extensor musculatures. On April 1, 1996, the family physician made a diagnosis of left shoulder tendonitis and left elbow epicondylitis. The claim was accepted as Workers Compensation Board (WCB) responsibility and benefits were paid accordingly.

By August 27, 1997, the claimant was considered capable of light duties with the following restrictions for a three month period: to avoid lifting greater than 50 pounds; to avoid repetitive lifting greater than 20 pounds and to avoid work above shoulder level. On August 28, 1997, the claimant returned to modified duties with the accident employer.

In April 1998, the accident employer contacted the WCB stating that the claimant was off work as of March 24, 1998, and that he was attributing his time loss to the 1996 left shoulder injury. The WCB in turn obtained sworn statements from the claimant and employer, as well as, medical information from the attending physician.

In a sworn statement, dated April 29, 1998, the claimant indicated that he has never been pain free since the original injury and that he did not sustain any new accidents or injuries to his left shoulder. The claimant described the modified duties which he performed in August 1997 consisting of piling leather ranging from 500 to 1000 pieces. He would hang the pieces of leather on carousels to allow the leather to dry. Effective January 12, 1998, the claimant applied for and started a new position in a "Pastors" job which entailed lifting wet pieces of leather weighing 15 to 20 pounds off of a table and placing them on moving frames. He used a slicker with both hands and would apply pressure to the slicker in order to remove air from underneath the leather. The claimant took the job not thinking that it would cause further left shoulder problems but rather help his condition. The claimant added that he sought medical treatment a few times subsequent to August 1997 and was scheduled to see a specialist on April 30, 1998, and another specialist on June 18, 1998. The claimant stated that he was unable to work at this time and had given the light duties offered by the employer a fair chance, but was still unable to perform them without feeling pain in his left shoulder.

The employer's statement, dated May 6, 1998, indicated the claimant followed all the restrictions that the WCB outlined when he returned to modified duties in August 1997 and was coping well. There were no ongoing complaints about pain or discomfort of any sort. When the claimant applied for the pastor's job he was warned that the job was very physically demanding, but the claimant stated his shoulder was fine and that he was totally capable of performing the new duties. The supervisor indicated the claimant adapted well to his new job and there were no ongoing complaints about any pain or discomfort. He performed the Pastor's duties up until March 24, 1998, and then phoned in sick on March 25, 26, 27. On March 30, 1998, the claimant came to work and requested a short term disability form. The claimant informed his supervisor that he needed the form as his shoulder was sore and had been for some time. The claimant also took a WCB form as he thought it might be related to his previous injury. The claimant was offered modified duties by the employer, but stated that he was not interested in same and indicated that he wanted to go back to school.

The attending physician, in a report dated May 3, 1998, indicated that he saw the claimant on February 27, 1997, regarding a prescription to help ease the pain in the claimant's shoulder. This was the first time that he had seen the claimant since his last visit on July 17, 1996. The physician stated that the claimant was seen several times after February 27, 1997, regarding pain prescriptions and for severe insomnia which the claimant related to the pain in his left shoulder.

On May 21, 1998, primary adjudication wrote to the claimant indicating that no further responsibility could be accepted for his claim as a definitive diagnosis and a relationship to the March 27, 1996, injury, could not be established. On July 28, 1998, primary adjudication confirmed that the claimant was capable of light duties on March 25, 1998, and that light duties were offered by the employer which were within his restrictions. The claimant was also informed that the WCB would be accepting responsibility for left shoulder surgery (the claimant was diagnosed with rotator cuff tendinitis on June 18, 1998, and would undergo arthroscopic evaluation and acromioplasty on August 26, 1998) and that wage loss would be reinstated.

On September 30, 1998, a union representative appealed primary adjudication's decision of July 28, 1998, and submitted further documentation received from the attending surgeon stating that the claimant was only capable of desk work with no lifting for the period June 18th to August 26, 1998. Documentation submitted from the attending physician stated the claimant was unfit for any part-time or modified duties.

The case was considered by Review Office on November 27, 1998, which took into consideration all file documentation including a submission submitted by the employer's advocate, dated November 18, 1998. The Review Office determined that on a balance of probabilities, the claimant's work-related left shoulder injury did not restrict his ability to do the light duties which had been offered by the employer to be performed between March 25 and August 25, 1998, and that wage loss benefits were not payable to the claimant for this period under Section 39 of the Workers Compensation Act (the Act). The Review Office's rationale for its decision was as follows:

• it did not find any significant evidence to demonstrate that the claimant's left shoulder problem in March 1998, included a loss of function which prevented his performing the light duties offered to him or that these light duties were likely to result in increased risk of further damage to the shoulder.
• it was satisfied that the claimant made no attempt to try what seemed to be a suitable offer of light duties and consequently failed to mitigate the effects of his work-related injury.

On April 15, 1999, an Appeal Panel hearing was held at the request of the union representative in regards to the Review Office's decision of November 27, 1998.

Reasons

The claimant initially suffered his compensable injury on March 27th, 1996. The working diagnosis, according to a WCB medical advisor, was left shoulder rotator cuff tendinitis. The claimant was eventually able to return to work on August 27th, 1997, performing modified light duties that were considered compatible with his shoulder condition. There is little, if any, evidence of ongoing medical treatment of the claimant's left shoulder between August and December 1997. In fact, the claimant confirmed that he did not seek medical attention during this period because, "I thought it was useless actually because I was running back and forth from the doctor and the doctor would send me back to do light duties."

In mid December, the claimant applied for a position that was physically much more demanding than the light duties he had been performing for the previous four months. The claimant continued in this new position until March 24th, 1998, when he complained that he had further aggravated his left shoulder condition. There had been no mention of any difficulties prior to this date. The employer offered the same modified light duty job to the claimant that he had been doing when he returned to work in August 1997. However, the claimant declined the employer's offer as he said that he "couldn't do it."

At the hearing, the claimant was asked the following question:

Q. You mentioned that the light duties didn't help you. Would it also be fair to say that they didn't hurt you?

A. They didn't hurt me, no.

The medical evidence does not support the claimant's contention he had suffered such a loss of function in his left shoulder that it would necessarily have prevented him from performing the modified light duties.

We find that the claimant did not incur a total loss of earning capacity as a consequence of his recurrence in March of 1998. In addition, we further find that the modified light duties offered by the employer could, on a balance of probabilities, have been performed by the claimant. Accordingly, the claimant is not entitled to payment of wage loss benefits during the period of March 25th, 1998, to August 25th, 1998, in relation to his work related left shoulder injury. Therefore, the claimant's appeal is hereby dismissed.

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 21st day of May, 1999