The Appeal CommissionThe Workers Compensation Act of Manitoba

Applicable legislation

The worker is employed by a federal government agency or department and her claim is, therefore, adjudicated under the Government Employees Compensation Act (the “GECA”). Under the GECA, an employee who suffers a personal injury by an accident arising out of or in the course of employment is entitled to compensation. Pursuant to subsection 4(2) (a) of the GECA, a federal government employee in Manitoba is to receive compensation at the same rate and under the same conditions as a worker covered under The Workers Compensation Act (the “Act”).

The Appeal Commission and its panels are bound by the Act, regulations and policies of the Board of Directors.

Subsection 4(2) and Section 37 of the Act provide that where a worker sustains a loss of earning capacity, wage loss benefits are payable. Subsection 39(2) of the Act provides that wage loss benefits are payable until such a time as the worker’s loss of earning capacity ends, as determined by the WCB. Subsection 60(2) (e) of the Act provides that the WCB has exclusive jurisdiction to determine the loss of earning capacity resulting from an accident.

Worker’s Submission

The worker was represented by a union representative who made a submission on her behalf.

The worker’s representative submitted that the Review Office erred in focusing solely on the rotator cuff tendonopathy and ignoring that the worker’s compensable condition was not confined to the rotator cuff. He noted that the worker was assessed a 7.5% PPI for her cervical spine and 7.3% for her shoulder. He stated that the worker’s compensable injury is to the neck and shoulder joint, affecting all the muscles in between.

The representative disagreed with the opinion of the WCB sports medicine consultant. He noted this physician did not examine the worker. He noted that the worker’s treating chiropractor and physiatrist reported objective findings in the neck and shoulder area, with the chiropractor recommending reduced hours due to increased symptoms in her shoulder and neck.

With regard to the worker’s request to extend her restrictions to include no repetitive work at any level, the representative advised that the tasks of keying and flip-sorting are highly repetitive tasks which involve relatively light forces. He noted that the worker already has repetitive strain injuries to her neck and shoulder which have been accepted as compensable and permanent. He submitted it is reasonable to expect that, being already injured, her injured muscles would react negatively to repetitive work much more readily than if she were not injured.

Employer’s Position

The employer was represented by its WCB Specialist who made a submission on the employer’s behalf.

The employer’s representative noted that the worker’s permanent restrictions were identified to be:

a. no above shoulder work

b. no work at shoulder level with the arm in the position of impingement

The representative advised that all tasks assigned involved working at waist level without putting her right arm in the position of impingement. She also stated that the assigned tasks do not have her reaching and maintaining her hands away from her body. She reviewed the various tasks that the worker performs, including flip-sorting and described the activities associated with each task.

The representative noted that the worker was involved in a non-work incident in January 2007 which may have contributed to the worker’s pain.

The representative noted the opinion of the WCB sports medicine specialist that the worker’s symptoms appear to be related to a non-specific neck pain and myofascial condition. She submitted that the worker’s request for restriction of no repetitive work at any level is not consistent with her diagnosis of right rotator cuff tendinopathy. She also submitted that the request for partial wage loss due to the reduced hours is not related to the compensable condition.

Analysis

Whether the worker is entitled to partial wage loss benefits from March 13, 2007

Commencing in March 2007, the worker reduced her hours of work from eight to four hours per day. This reduction was based upon the recommendation of her treating chiropractor. The worker is seeking partial wage loss benefits arising from the reduced hours. For the appeal of this issue to be successful the panel must find that the worker’s loss of earning capacity was caused by the compensable injury. The panel makes this finding. The panel finds that the worker is entitled to partial wage loss benefits arising from the reduction in her work hours as recommended by her treating chiropractor, in a note dated March 9, 2007.

The panel relies upon the opinion of the treating chiropractor in accepting this appeal. In a report dated July 13, 2007, the chiropractor explained that notwithstanding the permanent restriction, in March 2007, the worker’s condition was increasing in severity but she continued working as much as her shoulder pain, headaches and neck/back/arm discomfort would allow her to. In her June 27, 2008, report, the chiropractor opines that the worker’s neck and shoulder pain are related to an overuse type injury caused by the repetitive nature of her work and aggravated by the tendonopathy in her rotator cuff.

The chiropractor’s report is consistent with the early information on file indicating that the worker injured her neck and shoulder. The panel notes that the Worker’s Accident Report identifies the area of injury as neck and right shoulder. The panel also notes that the worker was awarded a 14% PPI for her cervical spine and shoulder.

The panel also notes that the sports medicine physician who assessed the worker in September 2003 reports the worker as “having right-sided neck and shoulder girdle difficulties which have been recurrent.” In a further report of March 2, 2006, this physician notes that the worker “…still has evidence of mild right rotator cuff tendonopathy with muscular dysfunction in about the chest wall, shoulder girdle and neck.”

The treating physiatrist also reports treating the general neck and shoulder area. In a February 20, 2007, report, the physiatrist notes that the shoulder and neck are the major regions that are treated. The physiatrist goes on to comment that “The treatment improves her pain considerably and can keep her relatively comfortable but the work she does significantly aggravates her condition.”

In accepting this appeal the panel accepts a broader description of the injury than noted by the Review Office in its decisions of June 2006 and February 2008 and by the WCB medical advisor in a memo dated February 25, 2008. The panel finds that the worker has a chronic condition affecting her neck, shoulder and shoulder girdle.

The panel finds that worker is entitled to partial wage loss benefits from March 13, 2007.

The worker’s appeal on this issue is allowed.

At the hearing the worker advised that she returned to full time work in September 2007. Since this date she has missed approximately 3 days per month due to flare-ups / aggravations of her injury. She is seeking wage loss benefits for the missed dates. As the issue before the panel relates to payment of partial wage loss benefits arising from the reduced hours of work, the panel is unable to address the request for payment after she returned to full-time work.

Whether the worker requires a restriction of no repetitive work with the right arm at any level

At the hearing the worker’s representative advised that the worker is seeking a restriction of no “highly” repetitive work with the arm at any level. The worker provided evidence that her work duties continue to aggravate her compensable injury and that further restrictions are needed.

For the appeal of this issue to be approved, the panel must find that the restriction arises from the compensable injury.