The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker filed a claim with the Workers Compensation Board (“WCB”) on November 1, 2005 for a right shoulder injury that occurred at work on October 18, 2005. The claim for compensation was accepted and the worker was paid wage loss benefits to January 12, 2006 when it was determined by primary adjudication that he had recovered from the effects of his compensable injury. This decision was confirmed by Review Office on two occasions. The worker’s advocate disagreed and filed an application to appeal with the Appeal Commission. A hearing was then held on August 7, 2008 to consider the matter.

Issue

Whether or not the worker is entitled to wage loss benefits after January 12, 2006.

Decision

That the worker is not entitled to wage loss benefits after January 12, 2006.

Decision: Unanimous

Background

On October 18, 2005, the worker reported that he was using a wrench to remove part of a brake when he felt a tearing sound coming from his right shoulder. He continued working following the accident but later experienced a burning pain in his shoulder which prompted him to attend for medical treatment.

On October 19, 2005, the worker attended at an emergency department where he was diagnosed with a possible right rotator cuff injury and was advised to go to a sports medicine clinic.

On November 1, 2005, the worker was treated at a sports medicine clinic and was diagnosed with a rotator cuff tear. The claim for compensation was accepted and wage loss benefits were paid to the worker while he attended physiotherapy treatment.

On December 15, 2005, the worker’s shoulder condition was assessed by a WCB medical advisor. At the examination, the worker indicated that he was having ongoing burning discomfort in the front of his right shoulder which became worse with activities that involved the use of his arm at or above shoulder level. There was no particular radiation of pain to the more distal portion of his right arm nor was there radiation to the proximal shoulder or right neck. He had occasional numbness in some fingers of his right hand however this was intermittent and somewhat vague. Based on history and physical examination, the medical advisor confirmed that the worker presented with a clinical scenario of right rotator cuff strain and/or tear. He noted that pain and decreased range of motion as well as weakness were the main current issues that interfered with the worker’s inability to return to work.

In a report dated January 11, 2006, the attending physician reported that the worker complained of pain, weakness, and an inability to sleep along with loss of mobility. An injection to the shoulder was carried out. In a follow-up report dated January 27, 2006, the treating physician reported that the worker’s right shoulder was no better after receiving the injection and an MRI examination was suggested.

On January 27 and January 30, 2006, a surveillance videotape was taken of the worker’s activities and the videotape evidence was commented on by a WCB medical advisor on February 2, 2006.

In e-mail correspondence dated February 3, 2006, a WCB special investigations advisor reported that the worker commenced new employment on January 16, 2006 and worked 14 days up until February 1, 2006. His job title was a warehouse helper and he assisted in assembling window sills and loading/unloading freight as required.

In a decision dated February 3, 2006, a WCB case manager advised the worker that wage loss benefits would be paid to January 18, 2006 inclusive and final as the weight of evidence supported that he was no longer suffering from the effects of his compensable injury. In reaching his decision, the case manager noted that the worker’s abilities in terms of range of motion, fluidity of same and lifting abilities shown on the video differed significantly from what he reported to medical professionals who examined him. This suggested that the original diagnosis was incorrect and that the worker, at worst, had a sprain/strain in his shoulder or else the rotator cuff tear was so minimal that it had now essentially resolved. The case manager also considered the opinion of the WCB medical advisor that there was no evidence that the worker was continuing to suffer from the effects of his compensable injury.

The worker underwent an MRI examination on April 18, 2006. The radiologist’s findings showed a delaminating type tear in the supraspinatus tendon focally and AC joint arthrosis. There was also a posterior labral tear noted with a small associated paralabral cyst.

Ultimately, in May 2007, the worker underwent arthroscopic surgery to repair the rotator cuff tear and posterior labral tear.

On November 7, 2006, an advocate asked Review Office to overturn the decision made by the case manager and to reinstate the worker’s benefits. The advocate contended that the worker attempted a return to work at a light duty job on January 12, 2006 at the advice of his physician. With regard to the video surveillance, the advocate said there was no evidence to show that the worker was performing any heavy duties; that the surveillance took place six weeks after the call-in examination and that the worker had already received injections to his shoulder. The advocate indicated that the issue was not whether the worker was capable of performing some kind of work but rather whether he had recovered to the point where he was capable of performing his pre-accident employment.

In a decision dated December 7, 2006, Review Office confirmed that the worker was not entitled to wage loss benefits beyond January 18, 2006. In arriving at its decision, Review Office relied on the following findings:

· On January 11, 2006 and January 27, 2006, the treating physician reported that the worker was unable to work in any capacity which was contrary to the advocate’s contention that the attending physician advised the worker to resume light duty work;

· The worker purposely misrepresented his physical condition to his own doctor. The worker completed a WCB form on January 31, 2006 stating that he had not returned to either part-time or light duties. Review Office considered this to be an obvious attempt by the worker to hide the fact that he was employed and collected both employment income and WCB wage loss benefits at the same time.

· The comments made by a WCB orthopaedic consultant that there were pre-existing findings on the MRI of April 18, 2006 that were unrelated to the accident of October 18, 2005. He stated that the tear of the supraspinatus tendon portion of the rotator cuff could have occurred on October 18, 2005 but considered it to be of relatively minor significance and not necessarily functionally incapacitating.

On October 10, 2007, the worker’s advocate asked Review Office to consider a September 17, 2007 report by an upper extremity specialist. In this report, the specialist responded to questions that were posed by the advocate. He stated:

· as far as he knew, the worker’s only injury to his right shoulder occurred on October 18, 2005. This suggested that the labral tear was not pre-existing and was caused by the compensable injury;

· it was unlikely that the worker would have been able to work as a mechanic prior to his surgery as he had a painful shoulder that can make it difficult to do heavy work. These findings were confirmed at the WCB examination (December 2006);

· it was too early to say whether the worker would be able to return to his pre-accident employment as a mechanic but he had a lot less pain and an improved range of motion. He was going to physiotherapy to work on strength and hopefully he would be able to return to work.

On October 24, 2007, Review Office advised the advocate that no change would be made to its earlier decision. Review Office noted that the specialist made no reference to the surveillance videotape or the subsequent comments of the WCB medical advisor that there was no evidence of any functional impairment. Review Office stated that it was of the belief that the worker purposely misrepresented his disability to his treating physician and WCB staff members and that his benefits were rightfully discontinued effective January 18, 2006. On March 17, 2008, the worker’s advocate appealed Review Office’s decision to the Appeal Commission and an oral hearing was arranged.

Reasons

Analysis:

It was acknowledged on behalf of the worker that as of January 2006, he was not totally incapacitated and that as of that time, he was capable of earning minimum wage in a light duties position. In view of the foregoing, the issue in this case becomes whether the worker fulfilled his duty to co-operate and mitigate pursuant to section 22. In the panel’s opinion, by failing to perform modified duties which were available from the accident employer, the worker did not take all reasonable steps to reduce or eliminate his loss of earnings and therefore he is not entitled to wage loss benefits after January 18, 2006.

At the hearing, the employer’s evidence was it was one of the first employers in Manitoba to develop a structured return to work program for injured workers and that since the late 1980’s, it has accommodated all of its workers who suffer a workplace injury. The employer testified that modified duties are universally offered to all employees and when performing modified duties, workers receive the same hours and the same rate of pay as they earned prior to their injury. The employer testified that in January 2006, a fully paid position would have been available to the worker had he disclosed that he was capable of performing light duties.

The worker denied that he was aware that modified duties were available through his employer. The employer was also unable to confirm that information regarding the availability of modified duties for injured workers was routinely disseminated to its employees. Nevertheless, the panel is of the opinion that had the worker disclosed his ability to perform light work to his doctor, the WCB or his employer, he would have been informed that his employer had light duties available for him and that there would have been no loss of earnings. The worker’s lack of forthrightness cannot now be relied upon by him to say that he was unaware of the availability of modified duties. We find this lack of disclosure to be a failure to mitigate.

The panel notes that one of the arguments made on behalf of the worker was that following his surgery on May 17, 2007, the worker should be entitled to a period of full wage loss benefits during his period of recuperation, then partial wage loss benefits up until April 3, 2008, when he obtained his current job position. As our decision is based on the failure of the worker in his obligation to mitigate his loss of earnings under section 22, we make no finding regarding any future entitlement the worker may have in relation to ongoing cause and effect between the compensable injury and his subsequent surgery. We also note that the issue of whether the surgery is related to the compensable injury has not previously been addressed by the WCB and as such, we are without jurisdiction to consider this issue.

For the reasons set out above, we find that the worker failed to mitigate by failing to take all reasonable steps to reduce his loss of earnings resulting from the injury. As such, the worker is not entitled to wage loss benefits beyond January 18, 2006. The appeal is denied.

Panel Members

L. Choy, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 11th day of September, 2008