Decision #93/01 - Type: Workers Compensation
Preamble
An Appeal Panel hearing was held on June 7, 2001, at the request of a union representative, acting on behalf of the claimant. The Panel discussed this appeal on June 7, 2001.
Issue
Whether or not the worker is entitled to wage loss benefits beyond August 3, 2000.
Decision
That the worker is entitled to wage loss benefits from August 3, 2000 until her employment was terminated.
Background
In February 2000, the claimant experienced pain in her left shoulder region that she related to her employment activities in a meat processing plant.
When seen for treatment on February 23, 2000, the family physician noted that the claimant had had pain in her left shoulder for three weeks. He stated that the claimant had been placed by the company physician in a light duty position, which involved a lot of arm use. The diagnosis rendered was left biceps tendonitis.
File documentation showed that the claimant was working on the kill floor when the onset of her symptoms occurred. She missed time from work on February 22, 2000 because of her shoulder complaints, but was not compensated for her time loss as there was no medical authorization to do so. Following her initial medical appointment in February 2000, the claimant worked at light duties for two weeks instead of taking two weeks off as requested by her doctor. The light duties involved working the laundry area which consisted of folding shirts, pants and smocks. In March 2000, the claimant returned to ham boning which continued from March to mid May. At no time was the claimant symptom free and on two occasions she asked her lead hand if she could go onto a slower line due to the soreness in her left arm and neck.
In a report dated May 23, 2000, the family physician noted that the claimant complained of constant pain in her neck and upper thoracic spine. Paraesthesias was noted in the entire left hand but it was worse at the left thumb region. The claimant reported right hand troubles for the past week. A different physician had seen the claimant on May 15, 2000 and he found decreased range of motion in the spine and tenderness. The diagnosis was tension pattern headache. With respect to the visit on May 23, 2000, the claimant was diagnosed with left, greater than right, carpal tunnel syndrome, mild tendonitis and back strain. X-rays were taken of the left shoulder and no bone or joint abnormalities were found. X-rays of the cervical spine showed anterior osteophytes at C5-6 with mild disc space narrowing.
File documentation revealed that the claimant had missed work on May 26, 2000 due to her symptoms. A company nurse contacted the attending physician and advised that the claimant needed to work only four hours per shift starting May 30th. The claimant then worked 4 hours each shift from May 30 to June 2 in the laundry area. Starting June 5th the claimant worked eight hours each day in the laundry area and continued to work full time on light duties.
On June 12, 2000, the claimant was assessed by a neurologist who noted that the claimant complained of aching in her left shoulder, neck and entire left arm as well as numbness in her left thumb, index and middle fingers. The claimant also indicated that since her symptoms came on about 2 weeks prior she has had constant and non-descript headaches. The neurologist indicated that the claimant had been seen back in April 1994 for long standing headaches, most of which beared a striking resemblance to a muscle contraction origin. The present examination did not demonstrate any objective neurological deficits and nerve conduction studies and EMG exam were considered normal.
In a letter dated July 13, 2000, the employer indicated that it was no longer able to accommodate the claimant in an alternate work program. The claimant was reportedly placed in many different work placements but she was unable to perform the duties required of her.
On August 2, 2000, a WCB medical advisor reviewed the case. The only possible diagnosis that he could see to the compensable injury was bicipital tendinitis or impingement or maybe myofascial pain at the left shoulder. The medical advisor indicated that there was little objective findings to suggest the claimant could not do the duties of laundry, inventory or outside picking garbage. Restrictions were to avoid use of the left arm at above shoulder, lifting with left arm over 10 lbs and the requirement to extend/flex her neck repetitively for four weeks. A call in examination was suggested.
The claimant returned to light duty work on August 4, 2000 and on August 8, 2000 she was placed in a light duty job position of making boxes and told to work at her own pace. At 1:35 p.m. the claimant returned to the nurse indicating that her headache was getting worse and that she wanted to go home. On August 9, 2000 the claimant returned to box making after seeing her attending physician. The employer received a fax from the attending physician on August 10, 2000, which indicated that the claimant should be off work until after being assessed by her physiatrist. The claimant completed shifts of August 10 and 11 at light duties making boxes. As of August 14th the claimant went off work.
On August 28, 2000, a WCB medical advisor examined the claimant. Under “Summary and Recommendations”, the medical advisor indicated the following:
- history and findings suggest that the claimant’s symptoms and complaints are best explained by the development of myofascial pain syndrome, mild to moderate in degree. This was related in a cause and effect manner to her job duties.
- the degree of disability expressed by the claimant seemed out of keeping for the specific diagnosis and at present it appeared that the claimant’s most disabling feature was a constant headache. This appeared to be a pre-existing condition aggravated by the present workplace related problems. The medical advisor felt the claimant was at considerable risk for medication rebound headaches because of her prolonged use of narcotic and non-narcotic analgesics.
- The claimant did not appear to be completely disabled from any work. Temporary restrictions were outlined with respect to the left hand, arm and neck for four weeks.
On September 5, 2000, primary adjudication determined the weight of medical evidence did not support a total loss of earning capacity from August 8, 2000 onward given the nature of the modified duties available. Subsequent file documentation revealed that the claimant’s employment with the accident employer was terminated effective September 14, 2000 due to a non-work related incident.
The case was considered by Review Office on January 12, 2001, following receipt of an appeal from the claimant’s union representative dated November 20, 2000. Review Office determined that the claimant was not entitled to wage loss benefits beyond August 3, 2000.
Review Office noted the union representative’s contention that the claimant’s headaches were related to her employment. Review Office was of the view the file evidence clearly established that the headaches were part of the claimant’s life long before her employment with the employer of record. After review of the light duties in which the claimant had been involved in, Review Office did not consider the claimant totally disabled beyond August 8, 2000. On February 6, 2001, the union representative appealed Review Office’s decision and an oral hearing was convened.
Reasons
A WCB medical advisor examined the claimant on August 28th, 2000 and recorded the following comments in her examination notes:
“Attempts at return to work at modified duties appear to have been difficult, and it is not clear as to why this should be, as there seems to be some difference in the descriptions from the employer and descriptions from the worker as to what exactly the modified duties involve. The claimant does not at this point appear to be completely disabled from any work, and an attempt should be made to reintegrate the claimant into work with temporary restrictions against lifting of greater than 7.5 lbs. with the left hand in isolation or greater than 15 lbs. with both hands together. As well, there would be restrictions against resisted movements involving the left arm at or above the shoulder level and against forceful pushing or pulling with the left arm. In addition, restrictions against repetitive flexion, extension of the neck or sustained positions of extension or flexion would be in effect as well. These restrictions should be for the next 4 weeks.”
The claimant provided evidence at the hearing with respect to the job duty to which she was assigned in August.
Q. I note that you went back to work at the beginning of August, you went on to box making. First of all, can you describe to us what box making is?
A. Okay. Actually, when I was sent to the box making, when they commented that you work at your own pace, that’s not true at all. I was considered – I wasn’t considered an extra worker; I was considered a worker. When I went in there what happened was they had an extra one, so they took one and they pushed – like there’s different box areas, so they just pulled somebody else away. And they’re combo boxes and they’re probably about here on me.
Q. Pointing to your neck?
A. Yes.
Q. Is this from the ground or from the waist, or the table?
A. From the ground. Like where I stood, I stood like this, and these boxes stand about this and you have to have both arms to bring the boxes in, tuck it in, to make the box. So again, I was working up here with my left arm, and you can’t make a box with one arm.
Q. So are these boxes lined up against the wall, or what? How do you do this?
A. They were laying on the floor, and you picked them up. They bring them over on whatever you call those things that you pull them, I’m not sure, and then we just opened them up and you lift them up. Two, you make them one at each end. And I’d also like to mention too, while I was in box making I didn’t refuse to do that job, I was moved. I was there for awhile and I was told by a supervisor that I was to go back down to ham boning that they had jobs for me.
Q. Are you talking in August still?
A. Yes.
Q. Let’s talk about this last - -
A. And when I went back this time as well, I was in box making and I didn’t refuse to do the job. It was hurting my shoulder a lot and stuff, but I did do it and they actually told, asked me to go back down to the floor, that they had light duties downstairs for me, and I went back to the floor and I was, it was a short period after that that I was terminated.
It is readily apparent to us that the claimant’s light duty jobs, as described by her, did not coincide with the restrictions outlined by the WCB medical advisor’s examination notes of August 28th, 2000. We further note that the employer at the hearing did not controvert the claimant’s evidence with respect to the assembly of boxes.
After having considered the evidence as a whole, we find that the claimant is entitled to wage loss benefits subsequent to August 3rd, 2000 up to the date when her employment was terminated. Although the claimant was not totally disabled during this period, she had not sufficiently recovered from the effects of her compensable injury to allow her to perform the duties assigned to her in August. We note, however, that the claimant did work for the period of September 8th to 12th 2000.
Panel Members
R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner
Recording Secretary, B. Miller
R. W. MacNeil - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 18th day of July, 2001