The Appeal CommissionThe Workers Compensation Act of Manitoba

Applicable Legislation

The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the Board of Directors.

Under subsection 4(2) of the Act, a worker who is injured in an accident (as defined under the Act) is entitled to wage loss benefits for the loss of earning capacity resulting from the accident.

Subsection 39(2) of the Act provides that the WCB will pay wage loss benefits until such a time as the worker’s loss of earning capacity ends, or the worker attains the age of 65 years.

Subsection 22(1) of the Act imposes an obligation on workers to co-operate and mitigate. It states:

Worker to co-operate and mitigate

22(1) Every worker must

(a) take all reasonable steps to reduce or eliminate any impairment or loss of earnings resulting from an injury;

(b) seek out, co-operate in and receive medical aid that, in the opinion of the board, promotes the worker’s recovery; and

(c) co-operate with the board in developing and implementing programs for returning to work, rehabilitation or disability management or any other program the board considers necessary to promote the worker’s recovery.

WCB Policy 44.10.80.40,“Further Injuries Subsequent to a Compensable Injury” describes the tests used in determining whether the WCB (and this panel) can accept a further injury as being causally related to the original compensable injury. This policy provides, in part:

A further injury occurring subsequent to a compensable injury is compensable:

(i) where the cause of the further injury is predominantly attributable to the compensable injury; or …

Analysis

There are three issues before the panel. Because the decision on the acceptability of the left shoulder condition can have an impact on the first issue (wage loss benefits between January 18 and October 14, 2007), the third issue will be addressed as part of the discussion of the first issue.

Issues 1: Whether or not the worker is entitled to wage loss benefits for the period January 18, 2007 to October 14, 2007.

Issue 3: Whether or not responsibility should be accepted for the worker’s left shoulder complaints.

Worker’s Position

The worker was assisted by a worker advisor in his appeal. As to the first issue, it was submitted, with respect to the specific period of time from January 18, 2007 to October 14, 2007, that the worker had been working in modified duties in early January 2007, which caused him further injury to both his right and left upper extremities, and that he was unable to work after January 17, 2007.

The worker’s position is that the employer’s last offer of modified duties was outside his restrictions, and that he was justified in declining to do those job duties. As to a subsequent decision by the worker to resign from the employer, it was argued that the worker had not intended to resign but to take leave. However, his language barriers did not allow him to communicate this effectively to his employer. It was therefore submitted that the worker was medically unable to work for the employer from January 28, 2007 to October 14, 2007 (the date preceding his right shoulder surgery which resulted in his wage loss benefits being reinstated), and that he was eligible for benefits for that time period.

As to the third issue regarding the acceptance of the worker’s left shoulder complaints, it was submitted that the worker’s job duties were very repetitive in nature. During 2006, the worker experienced increasing right shoulder difficulties as the year progressed, requiring him to use his left arm more, particularly in the last months of 2006 when he was doing more spray painting, and into early 2007 when his modified duties were adjusted again to avoid any use of his right arm, and he shifted over to light sanding and solvent washing jobs which primarily involved the use of his left hand and arm. It was submitted that the worker’s left shoulder difficulties (later diagnosed as a rotator cuff tear) were caused by these repetitive left-handed duties. In the alternative, it was submitted that the worker’s right shoulder condition was sufficiently disabling after his departure from employment in January 2007, that the worker was overcompensating with his left arm which was a further injury arising out of a compensable injury under WCB policy, and was thus compensable on this basis. The worker contends that these left shoulder/wrist/forearm complaints were part of the reason he was unable to work after January 17, 2007, and that they continue to impact his ability to work.

Employer’s position

An employer advocate and the employer’s health services coordinator were present at the hearing on the employer’s behalf. They were opposed to the appeals.

As to the first issue, the employer’s position with respect to the period from January 18 to October 14, 2007, is that no benefits should be payable because the employer had made a meaningful and appropriate offer of modified duties that met the restrictions placed on the worker with respect to use of his right and left upper extremities. They noted that the worker’s decision to decline to work was not reasonable in the circumstances, and that the worker would have been able to receive his pre-accident wages while in that position. The employer also noted that the worker resigned his position with the company shortly thereafter, effectively precluding any future opportunity for the employer to participate in the ongoing management of the claim with respect to wage loss benefits.

As to the third issue, the employer submitted that there was not enough use of the left arm and shoulder in his job duties to cause the worker’s current left shoulder rotator cuff tear. His reported difficulties in January 2007 were in his left wrist and forearm, and not his shoulder. The first mention of a left shoulder problem is in a January 7, 2008 medical report, well after the worker stopped working for the employer in mid-January 2007.

Analysis

The first issue before the panel is whether or not the worker is entitled to wage loss benefits from January 18, 2007 to October 14, 2007. In order for the worker’s appeal to be successful, the panel must find that during the relevant time period, the worker had a loss of earning capacity due to a compensable work-related injury. We are able to make this finding, but for only a small portion of the period claimed. The panel finds that the worker did have a compensable loss of earning capacity from January 18 to 26, 2007, for which he is entitled to wage loss benefits, but not for the balance of the period (to October 14, 2007) claimed by the worker.

Dealing with the question of which medical conditions are compensable (work-related) and the basis of the worker’s wage loss entitlements, the panel finds that the worker’s right shoulder complaints and left wrist/forearm conditions were compensable injuries which continued to impact his claim as of mid-January 2007, but that the worker’s left shoulder condition is not accepted as compensable, and responsibility should not be accepted for it (issue #3). Our reasons follow.

To deal with the issue of wage entitlement between January and October 2007, the panel needs to determine:

a. Which of the worker’s right and left upper extremity symptoms in January 2007 are causally related to the worker’s job duties?

b. What was the worker’s work capability (as determined by his compensable medical restrictions) during that period of time?

c. Was the employer able to provide modified job duties that respected the worker’s restrictions? Was the worker’s refusal to accept those duties reasonable?

a. The compensable injuries

As to the worker’s right shoulder injury, the panel notes that the WCB has accepted that the worker’s original compensable injury arose out of an acute injury, a twist to his right shoulder while lifting a heavy object off a conveyor line. His subsequent diagnoses of tendinosis and a rotator cuff tear were eventually considered to be consistent with that particular mechanism of injury. Surgery to the right shoulder was eventually approved by the WCB, after the surgery itself took place in October 2007.

The panel notes that following his January 2006 injury, the worker continued to work full time through the remainder of 2006, and had arranged for modification of his duties to accommodate his increasing right shoulder symptoms. By January 2007 he was reduced to working in left-handed duties only, at which time he reported increasing symptoms in his left hand and wrist. His last day of work with the employer was on January 17, 2007.

Much of the worker’s evidence and arguments focused on descriptions of the nature of his job duties and the various modifications that were provided to him, particularly following his summer 2006 vacation until an illness and company shutdown in December 2006, as well as his job duties for approximately two weeks in January 2007 until he went off work. This evidence was central to the worker’s position that his injuries to his right and left upper extremities were a) work-related, and b) disabling to the point that in mid-January 2007, he was unable to perform any work of any sort with the employer, and that he was justified in declining any further modified job offers from the employer.

With the assistance of a translator, the worker described his various job duties in response to questions posed by his worker advisor and by panel members. Following the hearing, the panel arranged for a work site visit, to gain a full understanding of: the worker’s regular job duties; the first set of modifications provided in the fall of 2006; and the final job duties performed by the worker in January 2007. The worksite visit was undertaken in the presence of the worker, his worker advisor, a translator, the employer advocate, a human resources coordinator, and the worker’s immediate supervisor.

The panel notes that the worker continued to work full time with the employer following the right shoulder injury he suffered in January 2006. He is right hand dominant, and continued to work on his job duties. His duties involved some rotation amongst three areas: Cleaning small parts, or hanging small parts on hangers which moved on a slow overhead conveyor system into and out of a painting area, or painting the small parts with a spray gun. There is evidence that on occasion larger parts would be hung on the hangers and painted as well. Through 2006, the worker complained of right shoulder difficulties to his supervisor and was able to arrange for modification of his duties. In particular, following his summer vacation in 2006, the worker’s modifications had him focus primarily on performing one of his regular duties – painting in a spray booth – for most of the day. The worker is right hand dominant and the modifications that he requested essentially had him continuing to do his job duties with his right hand. His evidence was that he painted mostly with his right hand. He would shift to his left hand later in the day, after his right shoulder symptoms increased. This particular job required the worker to use two different spray guns with an attached hose, weighing around 5 pounds, to spray small parts hanging from a small conveyor belt. From the panel’s viewing of the job, the spraying ranges from chest to waist height and is done in short bursts. The spraying is not constant, with rest cycles between painting tasks. The worker’s opposite hand is usually hanging near the waist, holding the air hose loosely.

After the panel’s review and observations of the painting duties, the panel finds that the painting duties performed in the fall of 2006 were not causative of the worker’s right shoulder difficulties, but would have continued to aggravate the worker’s injured right shoulder, in particular the tendinosis and rotator cuff tear, which the WCB has accepted as having resulted from a lift/twist incident in January 2006.

However, the panel finds on a balance of probabilities that the painting job duties (performed up to the time of his December 2006 illness and subsequent plant shutdown) did not in any way cause the worker’s left upper extremity problems that were later documented in January 2007 and beyond. In support of this conclusion, the panel notes that the worker had himself selected the painting job as being the easiest for him to perform with his right hand. He was able to do this job for months, on a known injured shoulder, before his increasing symptoms led to him use his uninjured left arm as the day progressed. The panel finds that the job duties did not involve the types of repetitive work at or above shoulder level that would normally be associated with the development of left rotator cuff problems in a normal uninjured shoulder. The panel further notes that the spray guns are light, and there is considerable variation in spraying heights (waist to chest), and rest cycles between the painting of parts. The left arm was only used for a small part of the day, and only in the later stages (in later 2006) of the worker’s performance of the painting modified duties. The panel also notes that the worker did not complain of any left hand/forearm/shoulder problems to either his supervisor or to the health unit during this time, and also did not report any left upper extremity symptoms to his attending physician when he was first seen, after an extended treatment gap, on December 13, 2006. As such, the panel finds that there is no causal relationship between the worker’s left wrist/forearm/shoulder problems and his work duties in 2006.

The final consideration for the panel is the modified duties performed by the worker in January 2007. The panel notes, in its review of the file evidence, that the WCB adjudicator was aware in early January 2007 of the worker’s complaints of left wrist and forearm soreness while performing modified duties that respected his right shoulder difficulties. These duties had the worker sanding parts using only his left hand (in compliance with medical restrictions that suggested no use of the right arm), and the panel had the opportunity to view this job during its worksite visit. This job required the worker to brace different sized parts in a variety of ways, and to sand (remove the shine from) these pieces, using only the left hand. The job did require awkward positioning of the left hand and wrist, to perform the duties successfully with one hand only. These duties were all done either on a table that was waist-height, or on objects held between the worker’s knees.

The worker’s evidence at the hearing and in response to questions at the worksite was that these sanding duties led to the development of his left wrist/forearm pain. He also indicated that he experienced left shoulder pain as well. This is noted as well on a green card filed by the worker in January 2007. The worker clarified to the panel that this shoulder pain was shooting pain coming up from his wrist/forearm, and not shoulder pain originating inside the shoulder area.

The attending physician’s report of his examination of January 9, 2007 first notes pain in the left wrist after trying to sand with the left hand. His later report of January 17, 2007 also notes that the worker had been given lighter duties to do with his left hand, and notes objective findings of “++ pain in L forearm and wrist” and notes a “tender extensor [?] of L forearm and volar wrist.”

While the WCB adjudication on file does not explicitly accept that these left wrist/forearm duties were related to these particular modified duties, the file information does suggest that the WCB was comfortable in proposing work restrictions for the left lower arm difficulties, and by inference, the panel concludes that the WCB had accepted the left wrist/forearm problems as having arisen from the repetitive nature of the modified duties (in accommodation for the right shoulder problems) performed by the worker.

The panel, after its review of the duties performed by the worker in January 2007, concurs with these findings, that the left wrist/forearm difficulties arose out of the worker’s performance of his modified duties, and in particular would qualify under WCB policy 44.10.80.40 as a further injury that was predominantly attributable to a compensable injury.

As to the left shoulder difficulties, the panel finds on a balance of probabilities that the modified duties in January 2007 did not cause the worker’s left shoulder difficulties, later diagnosed as a rotator cuff tear. Although the worker was performing only left handed duties, these duties were all at waist height or lower, and with the worker’s left arm mostly held close to his body. The panel finds that the nature of those job duties does not provide a mechanism of injury consistent with the development of a rotator cuff problem in the shoulder. The panel further notes that the worker’s complaints of left shoulder problems in January 2007, with descriptions of pain shooting up into the shoulder from the wrist/forearm to the shoulder are more consistent with referred pain from his lower arm medical conditions than a pathology within the left shoulder. The panel also notes that the medical reports and physiotherapist reports from early 2007 do not identify any clinical examinations or findings to suggest the existence of a left shoulder pathology at that time. Reports of left shoulder difficulties do not appear until his orthopaedic surgeon’s report dated January 22, 2008 where he notes that: “He has been having trouble with his left shoulder as it compensates for the right side. Pain is primarily on the lateral aspect of the shoulder and increased with overhead activities…By history and examination it is suspicious of a rotator cuff tear.” This very late identification of the left shoulder rotator cuff problem is very far removed in time from when the worker had last worked, lending further support to a non-work-related cause to the development of this condition.

As to the argument that the left rotator cuff tear was a compensatory injury because of his right shoulder problem (and a qualifying “further injury predominantly attributable to a compensable injury”), the worker’s evidence was that he participated very little in household tasks using either arm since he had last worked in mid-January 2007, not just because of his shoulders but also because of other (non-compensable) problems he describes related to his back and legs.

Based on the entire analysis, the panel finds on a balance of probabilities that none of the worker’s job duties were causative of his left shoulder rotator cuff tear. The panel notes as well the significant delay in the identification and onset of left rotator cuff symptoms in this regard. Given the worker’s level of inactivity, the panel also finds that the worker’s left rotator cuff symptoms are not compensatory to his right shoulder problems and do not qualify as a further injury arising from a compensable injury, under WCB policy. Therefore, under Issue #3, the panel finds that the WCB should not accept responsibility for the worker’s left shoulder condition.

b. Medical restrictions

Based on our findings above, as of January 17, 2006, the relevant compensable medical conditions are the worker’s right rotator cuff tear and the worker’s left wrist/forearm condition.

The panel notes that the worker’s physician had been supportive generally of the worker’s participation in modified duties, and was able to communicate with the worker in his native language. In his examination of December 13, 2006, he identified only the right shoulder difficulties and cleared the worker for modified duties. He also referred the worker to a physiotherapist, who assessed the worker on January 9, 2007. He noted right rotator cuff pathology, and queried the onset of adhesive capsulitis. His restrictions were for no overhead work, no lifting greater than 5 lb, and no activities requiring repetitive “flex/abd/ext rotation” of right shoulder.

As noted earlier, the worker was performing left handed duties at this time. The January 17, 2007 report of the attending physician notes the worker’s left wrist and hand symptoms, and indicates that the worker is not capable of alternate or modified work, with duration unknown at that time. An email from the employer dated January 30, 2007 documents a conversation held between the employer’s physician and the worker’s attending physician on January 25, 2007. It indicates that the attending physician agreed that the worker could return to work “if repetitive tasks using the left arm/hand were avoided and if weights were limited to less than 10 lb.” This memo also lists two modified duties positions that would have accommodated those restrictions: moving single parts from one bin to a rack, and pricking holes in certain signs.

The panel accepts the attending physician’s decision to completely remove the worker from the workforce, based on his findings in his examination of January 17, 2007. The panel notes however, that this was not a long term decision. The physician did examine the worker on January 22, 2007 and would have used his direct knowledge of the worker’s condition, in agreeing three days later to the worker’s return to modified duties with the employer. The panel therefore finds that the worker was no longer totally disabled from work as of January 26, 2007, and would have been in a position to return to work on Monday, January 29, 2007, when the worker was asked to return to work, under the restrictions noted above. Accordingly, the worker is entitled to wage loss benefits from January 18, to 26, 2007.

3. Was the employer able to provide modified job duties that respected the worker’s restrictions? Was the worker’s refusal to accept those duties reasonable?

As a general comment, the panel notes that the employer has a well-developed modified duties program in this particular workplace. In this regard, the panel notes that in 2006, the worker had been able to make arrangements with his direct supervisor on a number of occasions for modification of his job duties. These modifications were provided without the requirement of medical certificates, and were willingly provided by the direct supervisor to the worker when requested. These modifications were made well before a WCB claim was initiated by the worker in January 2007.

With respect to modified duty job offers in 2007, the employer and the worker’s attending physician discussed and confirmed appropriate medical restrictions on January 25, 2007, as noted earlier. These involved certain non-repetitive job duties involving the left hand only. A memo from the human resources coordinator to the WCB adjudicator on January 30, 2007 notes a conversation on January 26, 2007 between the coordinator and the worker, which outlined the previous day’s conversations with his doctor, and set out the two modified duties that would be available to him. The worker was asked to report to work on Monday, January 29, 2007. The worker advised that he would not return to work, but asked instead for termination papers to be sent out to him.

In the panel’s view, the employer had offered modified duties to the worker that were consistent with the medical restrictions that had been established by and in concert with the worker’s attending physician. As such, the worker would have been in a position to resume full time work, and to receive his full wages, as of Monday, January 29, 2007. Although the worker chose to terminate his employment apparently because of his self-perceived level of total disability, the panel does not find evidence to support that the worker would have been unable to perform those modified duties as of that date. Accordingly, the panel does not find the worker’s refusal to accept those duties at that time to be reasonable. The panel finds that the worker would have been able to continue in modified duties with the employer (and suffer no loss of earning capacity) until the date of his October 14, 2007 surgery.

The panel therefore finds that the worker did have a compensable loss of earning capacity from January 18 to 26, 2007, for which he is entitled to wage loss benefits being the period when the worker’s left wrist/forearm condition flared up, but not for the balance of the period (to October 14, 2007) claimed by the worker.

2. Whether or not the worker is entitled to wage loss benefits after January 1, 2008.

Worker’s Position

With respect to the claim for wage loss benefits after January 1, 2008, it was submitted that the WCB had incorrectly applied a 12 week recovery period from the date of the October 14, 2007 surgery. The worker advisor noted that there had been a significant delay in the WCB’s authorization of the surgery, which did not occur until December 6, 2007, and that the anticipated post-surgery physiotherapy did not in fact start until January 2008, with some recovery noted by May 1, 2008. It was submitted that the worker had not in fact recovered from the surgery by January 1, 2008, and that wage loss benefits should be extended beyond that date.

Analysis

In order to find that the worker is entitled to benefits after January 1, 2008, we must find on a balance of probabilities that he continued to suffer a loss of earning capacity after that date.

We note that the worker was provided with wage loss benefits starting on October 15, 2007, which was the surgery date for his compensable right shoulder rotator cuff injury. We note that the WCB assumed a 12 week recovery period for that surgery, and discontinued wage loss benefit entitlement as of January 1, 2008. This decision and supporting rationale is noted in a decision letter dated April 23, 2008 which states: “Upon reviewing the medical information on file, it is not unreasonable for you to have been off work recovering from your right shoulder surgery for a period of 12 weeks.” It would appear that this assumption was based on a normal recovery period which would include access to recommended physiotherapy following surgery.

However, the panel notes that in this case, the worker’s access to physiotherapy was delayed due to the late approval of this claim. Although the surgery took place on October 15, 2007, authorization for physiotherapy treatment was not given until January 30, 2008. According to the orthopedic surgeon’s notes of October 30, 2007, he planned to refer the worker to physiotherapy in mid-December. In fact, physiotherapy did not commence until February 1, 2008. The surgeon’s notes of May 1, 2008 indicate that the worker continued to make slow progress, that he had been seen by physiotherapy and was much better than when he was last seen. At that time, the orthopedic surgeon was of the opinion that light duties should remain in place at that time.

In the panel’s opinion, although the typical recovery norm for a rotator cuff surgical repair would be 12 weeks, the worker in fact did not recover until May 1, 2008. This was largely due to the delay in receiving physiotherapy treatment. We therefore find that the worker is entitled to an extension of full wage loss benefits to May 1, 2008, as he suffered a complete loss of earning capacity until that date.

With respect to the period after May 1, 2008, the panel notes the surgeon’s May 1, 2008 comments that the worker would have been fit for light duties. In the panel’s view (and consistent with the rationale used in Issue #1), the worker was fit for modified duties with the employer as of May 1, 2008, and would have been in a position to earn his full wages with the employer as of that date. The panel finds that the worker was not suffering a continuing loss of earning capacity, and therefore is not entitled to wage loss benefits beyond May 1, 2008.

The worker’s appeal on this issue is therefore allowed in part.