Decision #76/01 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on May 3, 2001, at the request of a union representative, acting on behalf of the claimant. The Panel discussed this appeal on May 3, 2001.

Issue

Whether or not the claimant is entitled to payment of wage loss benefits for the period May 6, 1999 to June 11, 1999, inclusive, as well as June 16, July 9 and August 5, 6, 1999.

Decision

That the claimant is entitled to wage loss benefits for the period May 6, 1999 to June 11, 1999, inclusive.

Background

On March 9, 1999, the claimant picked up a 5 gallon pail of degreaser off the back of a truck when he felt a pop and a sharp pain in his right shoulder. Examination by the attending physician on March 17, 1999 diagnosed the claimant with a right biceps tendon rupture and a referral was made to an orthopaedic specialist. The claim was accepted by the Workers Compensation Board (WCB) and benefits commenced on March 10, 1999. The following is a brief summary of medical documentation that has been received on file since the inception of the claim:

  • on March 10, 1999, x-rays of the right shoulder and humerus revealed no soft tissue calcification, bone, or articular abnormality.
  • On March 31, 1999, the orthopaedic specialist stated that the claimant’s biceps tendon was intact distally and that the claimant did not have a popeye sign that was consistent with a complete proximal tear. It was felt that the claimant may have had a soft tissue injury to his shoulder and that it was possible he may have had a biceps rupture that was partial or potentially a rotator cuff tear.
  • in a progress report dated April 6, 1999, the attending physician noted that the claimant’s pain was starting to abate but flexion was still uncomfortable. It was felt that the claimant could start light duties not using his right arm.

On April 22, 1999, the claimant returned to work performing light duties consisting of purging house files.

  • on May 6, 1999, the claimant was seen by a second orthopaedic specialist for an unrelated knee condition and mention was made of his shoulder difficulties. The specialist noted that the claimant had full elbow flexion, but forward elevation was below 100. The elbow resisted motion was very minimal and there was no bunching of the biceps and the long head muscle belly was palpable and appeared intact. It was hard to test the cuff because the claimant was unable to forward elevate enough. The specialist indicated that he was arranging for the claimant to undergo an arthrogram to rule out a cuff tear. He stated that he was happy with the claimant carrying on light duties as long as they were truly light duties, i.e. no lifting.

On May 7, 1999, the claimant advised a WCB adjudicator that he had stopped working on May 6, 1999 as his biceps/shoulder became so sore from repetitively filing and removing information from files and putting it into the garbage.

  • on May 17, 1999, the attending physician noted that the claimant had indicated to him that he was unable to continue to perform filing and lifting of boxes due to pain and weakness in the right shoulder. The physician stated, “I cannot give a definite opinion about whether he is able or not able to do this, and this opinion should be obtained from a specialist in rehabilitation or alternatively, one of your physicians can give an opinion on this.”
  • On May 29, 1999, a WCB adjudicator asked a WCB medical advisor to provide his opinion as to whether the claimant’s inability to continue with light duties beyond May 6, 1999 was consistent and reasonable based on the compensable injury. On May 30, 1999, the WCB medical advisor replied that he could see no reason why the claimant could not perform the light duties.
  • In a progress report dated June 9, 1999, the attending physician indicated that the claimant’s arthrogram was not scheduled until June 18th and that the WCB refused to move it up or get an MRI which delayed definitive treatment and prolonged the patient’s pain. He stated that the claimant could do light duties using the left arm only.

On June 14, 1999, the claimant reported that he returned to light duties but that he was still unable to perform the work.

In a decision letter dated June 15, 1999, the claimant was advised that the WCB was unable to accept responsibility for the time that he had missed from work between May 6, 1999 to June 11, 1999 as it was felt that he was capable of performing the duties of purging house files. This decision was based largely on the comments made by the attending physician, orthopaedic specialist and a WCB medical advisor.

  • on June 17, 1999, the attending physician stated the following under treatment plan: all light duties require using right hand, no work using R hand; only can use left arm not able to write at all – I don’t see how he can do any work using R arm...”.
  • the claimant underwent a right shoulder arthrogram on June 28, 1999 and the results indicated there was no evidence of a rotator cuff tear.
  • on July 5, 1999, the treating orthopaedic specialist indicated that with a normal cuff on arthrogram, it was felt that the claimant definitely had a sore, inflamed cuff based on his injury at work, and a scope and acromioplasty was suggested.
  • the claimant was examined by a WCB medical advisor on July 5, 1999. Under discussion and opinion, the medical advisor indicated that the clinical examination date was non-contributory showing exaggerated pain behavior in all directions. There was lack of voluntary movement of the right upper limb. This did not correspond with the neurological examination of that limb. There may be slight evidence of torn muscle fibres of the right biceps. The imaging studies including x-ray of chest and arthrogram did not confirm evidence of rotator cuff tear in the claimant. The treatment plan was for the claimant to continue with light duties and do his best to persevere with activity at his current level.
  • on August 25, 1999, the claimant was assessed by both a WCB chiropractic advisor and a physiotherapy consultant. Although pain behaviors were evident during the examination, it was the impression of both consultants that there was an underlying pathology which should be investigated further.

On September 15, 1999, a union representative wrote to Review Office disagreeing with the decision of June 15, 1999, which denied wage loss benefits to the claimant between May 6, to June 11, 1999. The union representative also noted that the claimant was unable to perform alternate duties on June 16, 28, 29, July 9 and August 5 & 6, 1999. The union representative contended that the claimant was not fit to perform the modified work of purging files during the above dates and that the WCB failed to take the appropriate and proper measures to determine the claimant’s fitness for the position.

Prior to considering the appeal, Review Office arranged for a WCB occupational therapist to attend the work site and to obtain additional details regarding the light duty employment, which the claimant had previously been performing.

In a decision dated February 18, 2000, Review Office determined that the claimant was not entitled to payment of wage loss benefits for the period May 6, 1999 to June 11, 1999 inclusive. Review Office noted that the light duty job, which had been provided to the claimant of purging files fell within the restricted activity imposed by the attending physician, i.e. no lifting or pulling using the right arm for a period of weeks or months. Review Office indicated there was no valid medical reason that the claimant could not have continued to work in the capacity of purging files as this work was extremely sedentary in nature and contained no production requirement and could be handled primarily in a one handed manner. Review Office further noted the following factors when reaching its decision:

-when the claimant was informed on June 11 that he would not be paid wage loss he immediately resumed work on June 14 doing the exact same position of purging files.

-in May the claimant had apparently been working on his garage or in his garage although there was no evidence to indicate exactly what he was doing at the time.

-video tape surveillance taken in the fall of 1999 clearly showed the claimant was capable of more activity than he claimed to be able to do, thus calling into questions the claimant’s sincerity, credibility and motivation to mitigate the consequences of his accident.

On July 24, 2000, the union representative filed an application to appeal Review Office’s decision of February 18, 2000. As primary adjudication had not been given an opportunity to rule on the claimant’s entitlement to payment of wage loss benefits for time loss incurred on June 16, 28, 29, July 9, and August 5 & 6, 1999, the case was sent back to the WCB to render a decision with respect to these dates. On September 19, 2000, primary adjudication determined the following:

§ the time loss of June 16, 2000 was not acceptable as communicated to the claimant in a telephone conversation with his former adjudicator, i.e. the adjudicator told the claimant that the time loss would not be covered if the decision regarding light duties was upheld – the claimant was advised that he would be paid out of sick time.

  • the time loss of June 28, 1999 was acceptable as the claimant was under the direct control of the WCB.
  • July 9, 2000 was not authorized or acceptable as the time loss was not for a medical appointment.
  • August 5 and 6, 1999 – time loss was not acceptable as the claimant was not attending a doctor’s appointment nor was he in attendance for a WCB’s doctor’s appointment.

On October 27, 2000, the union representative requested Review Office to provide him with a decision regarding the compensability of the outstanding dates that were denied by primary adjudication, i.e. June 16, 2000, July 9, 2000 and August 5 & 6, 2000.

In a letter dated December 5, 2000, Review Office noted that the claimant did not attend a doctor for the specific dates in question and that the claimant possibly took it upon himself to stay off work without proper medical authorization for doing so. Review Office therefore agreed with primary adjudication that the claimed loss of earning capacity on these dates was not supported by medical evidence, which would justify his remaining away from the available modified duty employment on these specific dates.

On May 3, 2001, a hearing took place at the Appeal Commission to consider the union representative’s appeal.

Reasons

Chairperson MacNeil and Commissioner Leake:

The claimant sustained a compensable injury on March 9th, 1999 when he lifted a 5-gallon pail of degreaser off of the back of a truck. The initial diagnosis was a right biceps tendon rupture. The attending physician eventually referred the claimant to an orthopaedic specialist for examination, which took place on March 31, 1999. The orthopaedic surgeon advised the treating physician as follows:

“I think this gentleman may have had a soft tissue injury to his shoulder. It is possible he may have had a biceps rupture that is partial or potentially a rotator cuff injury. I have told him to start physiotherapy in two weeks and have given him naprosyn 375 mg p.o. b.i.d. for six weeks with one repeat. I will see him back on the 21st to gauge and see how he is doing in terms of his shoulder.”

Throughout the next several weeks the claimant continued to experience pain, tenderness and significant weakness with his right arm and shoulder. However, the general prognosis was for a “good but slow recovery.” The claimant was able to participate in the performance of light duties for a period of time up to May 5th, 1999.

A WCB medical advisor reviewed the file on May 4th, 1999 and concluded that prior to his arranging for a call-in examination of the claimant, it would first be necessary to review the orthopaedic surgeon’s report (scheduled evaluation April 21st) and plans for follow-up. In a progress report dated May 7th, 1999, the WCB was advised by the treating physician of the following: the claimant “had more discomfort in rotator cuff region posteriorly,” a second orthopaedic specialist had taken over from the first and the second specialist was of the opinion that a rotator cuff tear might possibly be present.

On May 10th, 1999, the WCB wrote to this second orthopaedic specialist requesting an updated report. This report was subsequently received at the WCB on May 31st, 1999 and stated in part: “It is very hard to test his cuff because he cannot forward elevate enough. I think we need to rule out a cuff tear. I am going to schedule an arthrogram and once that is done will get back to him. In the meantime he should continue with active and passive range, working on it as tolerated.” (Emphasis ours) The arthrogram ultimately determined that there was no evidence of a rotator cuff tear.

The treating physician examined the claimant on June 9th, 1999 and concluded that the claimant “could do light duties using left arm only.” The WCB examined the claimant on July 5th, 1999 and we note in particular the following findings:

“The clinical examination date is non-contributory showing exaggerated pain behaviour in all directions. There is lack of voluntary movement of the right upper limb. This does not correspond with the neurological examination of that limb. There may be slight evidence of torn muscle fibres of the right biceps. The imaging studies including x-ray of chest and arthrogram do not confirm evidence of rotator cuff tear in this claimant.”

The medical advisor recommended that the claimant “should continue with light duties and do his best to persevere with activity at his current level.”

We find, after having taken into consideration all of the evidence as a whole that the claimant is entitled to the payment of wage loss benefits for the period of May 6th, 1999 to June 11th, 1999 inclusive. However, we do not consider that this same body of evidence further confirms the claimant’s inability to perform the light duties beyond the above date of June 11th, 1999. Therefore, the claimant is not entitled to wage loss benefits for the dates June 16, July 9 and August 5 & 6 1999.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
B. Leake, Commissioner

Recording Secretary, B. Miller

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

Signed at Winnipeg this 11th day of June, 2001

Commissioner's Dissent

Commissioner Finkel’s Dissent:

The claimant suffered a work-related injury to his right arm/shoulder on March 10, 1999, and was subsequently placed in a light duty position with the accident employer, which the claimant held until November 1999. The claimant is seeking the payment of wage loss benefits for absences while on the light duty position, which included the period May 6, 1999 to June 11, 1999, as well as four job absences on June 16, July 9, and August 5-6, 1999.

The panel had the benefit of reviewing all the information on file and of hearing the evidence of the claimant and the submissions of the employer and the claimant’s union representative. After consideration of all the evidence, I find that the evidence on a balance of probabilities supports a finding that the claimant’s light duties fell within the medical restrictions that were in place at the time of his absences from the workplace. As such, I find that the claimant’s absences from work were not justified and thus not compensable.

In reaching this conclusion, I have relied on the following evidence.

The claimant fell from a truck and was initially diagnosed with a torn right biceps, with later consideration given to a possible rotator cuff problem. A number of tests could not establish a specific medical problem.

On April 22, 1999, the claimant started a light duty job with the employer, sorting files. This job was part of a special project required by the employer, and many of the positions were filled by workers on modified or light duties.

His job duties entailed sitting at a desk for most of day, with exception of up to 10 trips to a nearby cart to pick up a bin of files that weighed 5 – 7 pounds. The claimant brought the bin to his desk, where he sat, opened a file, and leafed through each loose-bound file page by page, culling the files and discarding non-essential documents. When each bin was completed, the claimant returned the bin to the cart and picked up another. There was no production quota, and as noted earlier, these positions were for the most part occupied by other injured workers. The light nature of the duties and the performance expectations had been reviewed by a WCB occupational therapist who visited the site and was confirmed by the claimant during the hearing.

Other job tasks that were referenced in a file videotape – moving the cart, storing the bins, and micofiching documents -–were not part of the claimant’s job duties at the time in question.

On May 6, 1999, the claimant went off work, stating he could not do this job. In determining whether this absence was justifiable, I have placed particular weight on the findings from the claimant’s visit with a medical specialist on that date, and on the circumstances associated with his return to work on June 14.

The claimant was examined by an orthopaedic surgeon on May 6, 1999, after calling in absent that day from work. The specialist provided a report of his examination findings, which noted there was no apparent problem with the biceps, and that he wished to schedule a rotator cuff arthrogram to rule out any rotator cuff pathologies. The surgeon does however indicate that the claimant was capable of doing light duties. I note that the report notes similar findings as in previous and subsequent reports, and does not mention any subjective complaints by the claimant as to an increase of symptoms as would be expected, if the claimant was unable to work that day and presumably at a point when the flare-up of symptoms would have been most obvious.

The claimant continued off work from May 6, 1999 while the file and medical findings were reviewed, and on Friday, June 11, 1999 , he was told by his adjudicator that he would not be entitled to wage loss benefits for his job absence since May 6. I note that the claimant immediately returned to work, and did so without even consulting a doctor. I also note that the adjudicator indicated that if the specific file sorting job was too difficult, that the claimant should speak to his employer about other light duty jobs that were available.

Even with this option available to him, the claimant chose to return to his original light duty job on the Monday, and was able to work the whole day. In fact, with the exception of a day missed on the Wednesday of that week and a day in July, the claimant worked two months straight without any absences, in the same light duty position he had occupied until his absence on May 6, 1999.

During this period from May and on, the medical evidence did little to illuminate the claimant’s apparent symptomology. The claimant’s rotator cuff arthrogram on June 28, 1999 showed no evidence of a rotator cuff problem. As well, a WCB medical advisor examined the claimant on July 5, 1999 and found that:

“The clinical examination date is non-contributory showing exaggerated pain behaviour in all directions. There is lack of voluntary movement of the right upper limb. This does not correspond with the neurological examination of that limb. There may be slight evidence of torn muscle fibres of the right biceps. The imaging studies including x-ray of the chest and arthrogram do not confirm evidence of rotator cuff injury in this claimant.”

I find that the totality of this evidence leads me to conclude that issues of motivation or voluntary participation in the return to work program were much more at play than a true inability by the claimant to perform the light duty jobs offered by the accident employer. Based on the evidence -- in particular the claimant’s demonstrated ability to manage the light duties before and after the May absence without any change in medical status or a noted increase in symptoms to warrant an absence or subsequent recovery – supports the conclusion that the claimant was indeed able to perform those duties during the periods in question. Accordingly, I would deny the claimant’s appeal.

A. Finkel, Commissioner

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