The Appeal CommissionThe Workers Compensation Act of Manitoba

Introduction

This appeal deals with the worker’s ability to work at his regular duties on a full time basis after November 23, 2006.

Background

On May 23, 2006, the worker suffered a compensable injury which was diagnosed as a strain/sprain of his right scapula, shoulder and neck. He was referred for 10 sessions of physiotherapy in June 2006 and once again in September 2006.

By June 26, 2006, the worker was authorized by his attending physician to return to his regular work duties starting at four hours per day. By August 15, 2006, he increased his hours to six hours per day.

On October 14, 2006, his attending physician noted that the worker continued to have tenderness at the right shoulder scapular area and pain in both shoulders. He recommended continuation of physiotherapy and 6 hours per day of modified work. With respect to returning to regular duties the physician noted “unknown at this time.”

A call-in medical examination by a WCB medical examiner on October 19, 2006 noted the worker had mild discomfort with palpation along the lower medial scapular border on the right. The WCB medical advisor felt the worker had non-specific tenderness of the soft tissues along the right medial scapular border and that he was capable of performing his regular work duties with an opportunity to alternate the heavier aspects of his work duties with some of the lighter duties. The worker continued to attend physiotherapy and eventually returned to his full time regular duties on January 2, 2007.

Position of the Parties

The worker says that he should be entitled to partial wage loss benefits from November 23, 2006 to December 31, 2006 as he was unable to work his full time regular duties until that time.

The employer did not provide any submissions.

Analysis

To accept the worker’s appeal, we must find on a balance of probabilities that the worker had not fully recovered from his compensable injury and as a result was not able to return to his full time regular duties on November 23, 2006. We are able to make that finding.

The evidence before us is that the worker continued to have discomfort in the area of his compensable injury after November 23, 2006. His family physician did not think he was able to increase his work hours beyond 6 hours a day and recommended continuing physiotherapy which the worker did. While the WCB medical advisor thought the worker would be able to return to his regular duties on a full time basis, this was contingent on the worker’s ability to alternate the heavier aspects of his work duties (which includes lifting 40 to 60 lbs.) with some lighter duties. There is no evidence before us that this accommodation was made available to the worker. In any event, it suggests that the worker had not made a full recovery when seen by the WCB medical advisor.