Decision #81/10 - Type: Workers Compensation
Preamble
The employer is appealing a decision made by Review Office of the Workers Compensation Board ("WCB") which determined that the worker was incapable of performing modified duties from September 9, 2009 to September 23, 2009 due to pain generated from a compensable rotator cuff tear. A file review was held on July 29, 2010 to consider the matter.Issue
Whether or not the worker is entitled to wage loss benefits from September 9, 2009 to September 23, 2009.Decision
That the worker is entitled to wage loss benefits from September 9, 2009 to September 23, 2009.Decision: Unanimous
Background
During the course of her employment as a driver on May 2, 2009, the worker suffered injuries to her face, neck and shoulders after being assaulted by a passenger. The claim for compensation was accepted and benefits were paid to the worker while she underwent treatment for a right shoulder and neck strain.
On May 27, 2009, the treating physiotherapist outlined work restrictions for the worker as follows:
- no movement of affected limb (right) into position of impingement ie flexion/internal rotation/slight abduction --- combined movement
- no functional internal rotation of affected (right arm)
- no overhead movement of affected arm
- no lifting greater than 5 lbs. from floor to shoulder height
- no prolonged postures (eg: sitting) - requires frequent position changes (approx. every 20 min.) - secondary to aggravation of neck pain.
On June 9, 2009, the worker returned to light duty work as a dispatcher.
When seen for an examination by a WCB physiotherapy consultant on July 14, 2009, the worker reported a deep ache in her right shoulder when she elevated her arm. Following consultation with a WCB medical advisor, arrangements were made for the worker to undergo an MRI of the right shoulder on July 14, 2009. The results revealed a small full thickness insertional tear at the supraspinatus region.
In a doctor's progress report dated September 9, 2009, the treating physician reported that the worker's arm was hurting too much at work and that the MRI showed a full thickness tear of the supraspinatus. He stated that the worker "cannot work anymore, until surgery".
On September 10, 2009, the worker advised her WCB case manager that she was in a considerable amount of pain and it was hard to sleep. She noted that her doctor advised her to stay off work until her surgery date. The case manager advised the worker that her employer had the right to accommodate her unless she was totally disabled and that he would not approve any time loss until he received further information from the treating physician. On September 16, 2009, the case manager asked the treating physician to provide a report describing the objective findings from his examination of September 9, 2009.
On September 24, 2009, the worker underwent arthroscopic surgery to repair the rotator cuff tear. In a follow-up report dated October 5, 2009, the orthopaedic surgeon reported that the worker required right shoulder physiotherapy and could not work for a minimum of 3 weeks.
On October 18, 2009, the treating physician responded to the case manager's letter of September 16, 2009. He stated:
"[The worker] has a full thickness tear of the supraspinatus tendon. The pain at work was increasing to the point where just the effects of gravity would cause her to have unbearable pain. I discussed that she should stay off work until her surgery. Her previous restrictions were set prior to the MRI of her shoulder. The physiotherapist did not know that she would require a surgical repair."
In a decision dated November 3, 2009, the worker was advised that she was not entitled to wage loss benefits from September 9, 2009 to September 23, 2009 as her employer was able to accommodate her within her restrictions and because her physician was unable to provide objective and measurable medical findings. On November 16, 2009, the worker appealed the decision to Review Office. The worker argued that she was unable to do modified duties during the noted time period due to unbearable pain in her right arm caused by the torn rotator cuff.
On January 4, 2010, the employer's representative submitted to Review Office that there was no credible evidence to support the worker's inability to perform light duties between September 9, 2009 and September 23, 2009. He stated in part that the worker was capable of performing the assigned light duties during the three months prior to September 9 which highlighted her physical capabilities.
On January 15, 2010, Review Office determined that the worker was entitled to wage loss benefits from September 9, 2009 to September 23, 2009. Review Office accepted that there were objective findings to support that the worker was unable to continue with her modified duty program on September 9, 2009 based on the results of the MRI, the fact that the worker required surgical intervention related to the compensable injury and the post-operative findings that the rotator cuff tear was approximately 2 cm to 3 cm. Review Office accepted the treating physician's opinion that the effects of gravity would cause the worker to have unbearable pain given the significant tear noted on the operative report.
On January 20, 2010, the employer's representative appealed Review Office's decision to the Appeal Commission and a file review was arranged.
Reasons
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.
Pursuant to subsection 37 of the Act, where as a result of an accident, a worker sustains a loss of earning capacity or an impairment or requires medical aid, compensation is payable. Subsection 39(2) provides that wage loss benefits are payable until the loss of earning capacity ends, or the worker attains the age of 65 years.
Employer’s submission:
The written submission by the employer argued that there was no credible evidence on file that would support the worker's inability to continue in the accommodation provided to the worker by the employer during the period September 9 to 23, 2009. It was noted that in June 2009, the treating physiotherapist set out work restrictions for the worker which the employer was able to accommodate. After the worker was informed that the accommodation was available, she obtained authorization from her physician to remain off work until July 2, 2009. The matter was discussed with the adjudicator and following these discussions, the worker returned to work in the accommodated light duties on June 9, 2009.
On June 16, 2009, the worker presented a medical note to the employer which effectively called for a reduction of her workday to 4 hours per day. After consideration, the WCB determined that there was no basis for a reduction to 4 hours per day, and the worker continued to perform her light duties without reducing her hours.
On September 9, 2009, after performing light duties for approximately 3 months, the worker produced a medical note from her general practitioner stating that she could not work anymore until surgery. She was therefore off work from September 9 to 23, 2009 inclusive.
It was submitted by the employer that the general practitioner's recommendation for total work abstention was medically unwarranted. The worker had worked within her prescribed restrictions for a full 3 months in an accommodation provided by the employer. It was noted that the same physician had earlier recommended that she abstain from work from June 2 to July 2, 2009 and reduce her work day to 4 hours. Both of these recommendations had been determined to be medically unwarranted. It was submitted that the latest recommendation for total work abstention until surgery was similarly unwarranted.
Overall, it was submitted that there was no credible evidence and no objective findings to support the worker's stated inability to continue in the extremely light duty position made available by the employer during the period September 9 to 23, 2009. The fact that the worker performed the assigned light duties during the 3 months prior to September 9 merely highlighted her physical capabilities and suggested that she was in fact capable of continuing in the light duty position contrary to the attending physician's opinion. The employer therefore requested that the Review Office decision of January 15, 2010 be set aside.
The worker did not make a submission in response to the employer's appeal.
Analysis:
The issue before the panel is whether or not the worker is entitled to wage loss benefits from September 9, 2009 to September 23, 2009. For the employer’s appeal to be successful, we must find on a balance of probabilities that during those dates, the worker had no loss of earning capacity as a result of her compensable injury. For the reasons outlined below, we are not able to make that finding and therefore the appeal must fail.
The medical evidence indicates that the worker suffered a full thickness insertional tear of the supraspinatus. According to the MRI, there was also moderate acromioclavicular arthrosis present in her right shoulder. Arthroscopic surgery confirmed an approximately 2 to 3 cm tear of the rotator cuff, as well as some degenerative change in the glenohumeral joint, fraying of the superior labrum, and evidence of a complete biceps tendon rupture. The injury was clearly more severe than the original diagnosis of a soft tissue injury to the right shoulder, which was the working diagnosis in place when the work restrictions were recommended by the physiotherapist. Given the multiple conditions present in the worker's shoulder, the panel accepts that her complaints of steadily increasing pain were legitimate.
The employer argues that the fact that the worker was able to perform modified duties for 3 months indicates that she was physically capable of continuing to work until the time of her surgery on September 24, 2009. The panel disagrees. The file demonstrates a declining ability to function on the part of the worker. She did try to work, but it would appear that her condition got worse. The increasing complaints of pain are well documented on the file. Her condition worsened to the point where she was having difficulty performing basic activities of daily living, such as showering, washing her hair, putting her arm through a shirt to get dressed and driving a vehicle. The panel accepts that with that level of disability, she would have problems performing even the light sedentary duties offered by the employer.
Given the treating physician's medical authorization to remain off work until surgery and the evidence of the worker's declining function, the panel accepts that the worker had a total loss of earning capacity from September 9, 2009 to September 23, 2009. The worker is therefore entitled to wage loss benefits for that period of time. The employer’s appeal is dismissed.
Panel Members
L. Choy, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
L. Choy - Presiding Officer
Signed at Winnipeg this 26th day of August, 2010