Decision #129/07 - Type: Workers Compensation

Preamble

This is an appeal by the worker of Workers Compensation Board (“WCB”) Review Office Order No. 704/2006 holding that she was not entitled to wage loss benefits beyond July 27, 2005.

While working as a night time shelf stocker on March 28, 2005, the worker reported pain in her left wrist that she related to lifting milk crates at work. On May 7, 2005, the worker discontinued modified duties claiming that both wrists were painful. She claimed that her right wrist pain started a week after her left wrist injury and continued to get worse. She felt it was due to overcompensation for her left wrist injury.

On July 6, 2005, initial adjudication denied responsibility for the worker’s right wrist difficulties as being related to her left wrist injury. It also denied the worker’s claim for wage loss benefits from May 7, 2005 onward, on the basis that suitable modified duties were available.

On July 29, 2005, initial adjudication decided to pay the worker full wage loss benefits from May 8, 2005 to July 27, 2005, as the worker was not informed of her treatment plan or work restrictions. As of August 25, 2005, the WCB felt the worker should be back at full duties at regular hours.

The worker returned to work and performed a variety of modified duties until October 10, 2005, at which point she left work, asserting that she could not continue as a consequence of her injuries. A worker advisor argued that the objective medical evidence supported that the worker had not recovered from the March 28, 2005 workplace injury and she was not able to perform her work duties and therefore was still experiencing a loss of earning capacity after October 10, 2005. On November 7, 2006, Review Office determined that the worker was not entitled to additional wage loss benefits and had recovered from the effects of the injury sustained on March 28, 2005 based on all the available evidence and an opinion solicited by a WCB orthopaedic consultant.

The worker appealed to the Appeal Commission and a hearing took place on August 16, 2007.

The worker appeared and provided evidence. She was assisted by a worker advisor. The employer’s District Loss Prevention Supervisor also appeared and provided evidence.

Issue

Whether or not the worker is entitled to wage loss benefits beyond July 27, 2005.

Decision

That the worker is not entitled to wage loss benefits beyond July 27, 2005.

Decision: Unanimous

Background

Medical information:

Early file records show that the worker attended a physician on April 8, 2005 for left shoulder and left wrist complaints due to lifting milk crates. The diagnosis rendered was a sprained wrist and left shoulder.

On March 31, 2005, a different physician diagnosed the worker with left wrist tendonitis.

A hospital emergency report dated April 8, 2005 indicated that the worker injured her left shoulder and left wrist from lifting milk crates and she was diagnosed with a sprained left wrist. On April 15, 2005, a physiotherapist diagnosed the worker with a sprained left wrist and myofascial pain.

In a report dated May 11, 2005, another treating physician noted that the worker tried to go back to work but had to stop because her right arm was bothersome. He assessed the worker with bilateral wrist and forearm pain. He stated there were no objective findings other than mild decrease in grip strength bilaterally. He recommended that the worker stay off work for 2 more weeks and to continue with physiotherapy.

A WCB medical advisor examined the worker on June 27, 2005. He felt the worker’s presentation was consistent with a non-specific muscle strain or tendinopathy of the left wrist. He felt the worker was capable of a graduated return to work once physiotherapy was completed and she was re-established back on her anti-inflammatory medications. Restrictions were to avoid lifting over 10 lbs. and repeated grasping with the left arm starting at 4 hours per shift.

On July 27, 2005, the treating physician advised that in her opinion, both wrist injuries were related to the worker’s employment activities. She stated that the physiotherapy was not re-established until after July 18.

On August 8, 2005, the treating physician noted the worker had already done four shifts at work and had a lot of pain in both hands and elbows. The worker’s job was now putting stock away, cosmetics, health and beauty, which was the same set of lighter duties that she did her first time off work. She assessed the worker with bilateral wrist pain NYD (not yet diagnosed). She felt that even lighter duties such as a greeter or fitting room attendant would be more suitable.

On August 31, 2005, the treating physician noted that the worker was still working nights at unloading cosmetics, socks and underwear. She noted range of motion was fairly normal, tenderness in left and right dorsal wrist, no redness or swelling, no tenderness in forearm but pain shoots into forearm at work with using hands, sensation was normal and grip equal.

On September 28, 2005, the treating physician commented that the worker was doing modified duties as a fitting room attendant and was also putting stock away. She was experiencing pain in both hands that radiated up into her arms. It was felt that the worker should not perform any repetitive duties.

On October 11, 2005, the worker told her treating physician that she was told by the employer there they were no jobs that did not involve lifting or stocking. She tried a greeter position and had to move a lot of carts and had a lot of pain in her hands.

A sports medicine specialist saw the worker on November 7, 2005. He felt the worker was suffering from chronic regional pain syndrome affecting her forearms and that the most probable diagnosis was flexor tendinopathy. He was unable to identify any significant regional or upper extremity musculoskeletal problem which was contributing to her difficulty.

On November 10, 2005, a WCB medical advisor examined the worker and stated that his examination findings would not be related to the mechanism of injury reported and the workplace injury of March 28, 2005. That injury was consistent with a strain/sprain and would not be responsible for chronic tendinopathy and would not also explain the ongoing symptoms of pain, fatigue and weakness experienced in the area of the left wrist.

An MRI dated February 3, 2006 showed the worker had an ulnar plus variance complicated by ulnar impaction syndrome manifested as cystic change within the lunate and central tearing of the TFCC.

On March 10, 2006, an upper extremity specialist noted that the MRI had findings of ulnar impaction but clinically, the worker did not seem to have much of a problem in this way. Her symptoms seemed to be more of a flexor tendinitis. He was not sure whether the worker’s return to work played in her ongoing symptoms. He did not examine the worker’s right wrist.

On April 3, 2006, a WCB medical advisor reviewed the above report and commented that the worker’s TFCC tear was not related to the workplace injury and it would not preclude the worker from performing modified duties at work.

On November 2, 2006, a WCB orthopaedic specialist opined to Review Office that the compensable injury was most likely a simple strain. He could not associate the worker’s continuing symptomatology with the accident of March 28, 2005.

Modified duties:

Information obtained from the employer indicated that the worker was offered modified duties following the left wrist injury on March 28, 2005 which consisted of stocking shelves in the cosmetic and health and beauty departments.

The employer also advised the WCB that the following job duties were available to the worker as of April 28, 2005:

  1. Greeting;
  2. Customer Service Specialist;
  3. Fitting rooms;
  4. Zoning/light stocking;
  5. Stationery;
  6. Cosmetics/health and beauty;
  7. Lingerie;
  8. Folding and hanging apparel in layaway.

On January 12, 2006, the employer advised the WCB of the following:

  • When the worker commenced modified duties (after March 28), she stocked light merchandise in the cosmetic department or dusting shelves;
  • She was then moved to days where her job entailed fitting room associate, i.e. letting customers into a fitting room to try on clothes;
  • She then moved to a greeter position, as she stated she could not work as a fitting room associate where she was placing stickers onto customer’s shopping bags when they came into the store to return something. She said it hurt to rip the stickers off the roll.
  • The company offered the worker suitable modified duties as per her functional ability form but the worker turned down every position that was offered to her.
  • The worker’s last shift was October 8, 2005.

On January 17, 2006, the employer advised the WCB of the following:

  • Between July 30 to approximately September 16, the worker worked as an overnight stocker;
  • On or about September 16 to September 30 the worker performed duties of an overnight maintenance associate;
  • She worked October 1 and October 5 (approximately) as a greeter;
  • Finally, she worked as a fitting room associate on October 6 and 7 (approximately).

Reasons

To accept the worker’s appeal and provide wage loss benefits beyond July 27, 2005, we must find on a balance of probabilities that the worker had a loss of earnings capacity as a result of a compensable medical condition after that date. The determination of this issue hinges firstly on whether she had recovered from her workplace injury by that date, and secondly, if she hadn’t recovered, whether the worker had fully mitigated the effects of her work injury, in particular, whether her refusal to continue in modified duties with her employer was appropriate.

Legislation

Subsection 39(2) of The Workers Compensation Act (the Act) provides that workers are entitled to wage loss benefits as long as there is a loss of earning capacity that is causally related to a worker’s compensable accident.

Section 22 of the Act places an obligation on a worker to mitigate the effects of a workplace injury. This means, in part, that an injured worker would be required to participate in modified job duties offered by an employer, if those job duties respected and were consistent with the worker’s compensable medical restrictions. This section provides that if the worker does not take on those duties, it is open for the WCB to reduce wage loss benefits accordingly.

Arguments

The worker and her representative argued firstly that the worker had not recovered from the workplace injury by July 27, 2005, and secondly, that the modified duties offered by the employer were beyond her physical capabilities and that her decision to absent herself from work was appropriate. As such, the worker was entitled to wage loss benefits.

The employer provided evidence as to the varied modified duties that were available to the worker, as well as the various conversations that took place with the worker. The employer argued that the workplace accommodations were reasonable, and fell within the medical restrictions that they believed to be in place.

Analysis

In March 2005, the worker suffered a compensable injury to her left wrist area. The medical information on the file suggests that there is some confusion on the medical file as to the appropriate diagnosis of her medical condition, with diagnoses ranging from a simple strain to flexor tendinosis/tendinopathy to neurological problems to a chronic regional pain syndrome, and finally a TFCC tear identified in a February 2006 MRI report. The medical information is further confounded by the worker’s complaints of left shoulder difficulties attributed to this workplace incident, as well as complaints shortly thereafter of pain in both wrists and elbows.

The panel asked questions of the worker on exactly what the worker was doing when she was injured at work, as well as the information on file describing the incident. The panel notes that the worker had her wrist in a neutral position at the time of the incident when she was lifting milk crates, and that her arm was not in a position that would have involved the shoulder. This suggests to the panel that the worker’s injury was relatively minor, and would not have led to a TFCC tear or to the longstanding and bilateral wrist/elbow and arm symptoms that are reported to the worker’s treating physicians.

In considering the likely diagnosis of the worker’s workplace injury, the panel notes that the worker was examined by a WCB medical advisor on November 10, 2005, who concluded that the mechanism of injury was most consistent with a simple sprain/strain, and could not be correlated with the worker’s continuing reports of pain, fatigue, and weakness in her left arm, or with a diagnosis of chronic flexor tendonitis. After consideration of all the medical information on the file and the mechanism of injury, the panel agrees and adopts the conclusions of the WCB medical advisor, that the worker suffered a sprain/strain of her left wrist.

The panel further agrees with and adopts the conclusions of the WCB medical advisor and later comments by a WCB orthopedic consultant that the worker’s continuing symptoms are not related to the compensable injury. The panel has also examined the modified duties that the worker was performing after her workplace injury and finds they did not contribute to an ongoing wrist strain injury or to a delay in recovery by July 27, 2005. Accordingly, the panel finds on a balance of probabilities that the worker was no longer suffering from the effects of a compensable injury as of July 27, 2005. As there is no compensable injury in play as of that date, there is no compensable loss of earning capacity (or access to wage loss benefits) under subsection 39(2) of the Act.

The panel notes that even if it had concluded otherwise (that the worker still had a compensable injury with associated compensable medical restrictions as of July 27, 2005), it would not have provided wage loss benefits to the worker. In particular, the panel would have found that the employer’s modified duties positions accommodated the worker’s restrictions that had been set out, and that the worker’s refusal to continue in those duties was unreasonable and not medically supported. As such, the worker did not mitigate the effects of her accident.

The panel notes that several modified positions were offered by the accident employer in an attempt to accommodate her restrictions. Two such positions included fitting room attendant, and a store greeter. The accident employer described both of these positions as being very sedentary in nature and self-paced. At the hearing and under questioning of the panel members as to the specific tasks performed by the worker in these positions, the worker expressed difficulties with both of these jobs.

At the hearing, the panel canvassed the modified duties positions offered by the employer very carefully with both parties, and compared them to the medical restrictions that had been placed on the worker. These positions were available to the worker in late July 2005. The panel finds that the two positions noted -- the greeter position and the fitting room attendant positions -- require very occasional use of the arms, are very much self-paced, and we find considerable difficulty equating the level of pain complaints noted by the worker to the specific demands of those two jobs.

Based on this evaluation, the panel finds that the modified duties were within the worker’s stated medical restrictions at that time, and were therefore appropriate for her, as of July 27, 2005. The panel therefore would find that the worker’s refusal to perform these modified duties was not reasonable, on a balance of probabilities. Under section 22 of the Act, the worker would have failed in her responsibility to mitigate the consequences of her injury.

As to the appropriate reduction in wage loss benefits under section 22, the panel notes that the worker had been paid her pre-accident wages while in the modified duties program with her employer. As such, she would not have been in a wage loss (loss of earning capacity) situation, if she had continued in her modified duties with the employer.

Panel Members

A. Finkel, Commissioner
W. Leake, Commissioner

Recording Secretary, B. Kosc

- Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 1st day of October, 2007

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