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.

Section 22 of the Act (as it was in 2005 when the accident occurred) provides as follows

Practices delaying worker’s recovery

22 Where an injured worker persists in insanitary or injurious practices which tend to imperil or retard his or her recovery, or refuses to submit to such medical or surgical treatment as in the opinion of the board is reasonably essential to promote his or her recovery, or fails in the opinion of the board to mitigate the consequences of the accident, the board may, in its discretion, reduce the compensation of the worker to such sum, if any, as would in its opinion be payable were such practices not persisted in or if the worker had submitted to the treatment or had mitigated the consequences of the accident.

Policy 44.10.30.60 Practices Delaying Worker’s Recovery (the “Policy”) explains the obligations of the worker, the obligations of the WCB and notes the potential consequences to a worker of non-compliance with section 22 of the Act. The Policy provides that if a worker fails to mitigate the consequences of the accident, then the WCB may reduce the compensation paid to the worker to the level, if any, that would likely have been payable otherwise.

Worker’s Position

The worker was assisted by legal counsel in his appeal and the services of a translator were provided at the hearing. It was submitted that the worker clearly suffered a workplace injury. After some time off from work, he underwent a medical examination by the WCB and then was placed in a work hardening program. The work hardening program was not helpful to the worker's condition and his physician confirmed in a report that not only was the program not helping the worker get better, but it was also extremely painful for him. It was submitted that the worker was perceived by the WCB to be uncooperative, but really what he was trying to communicate was that he was in extreme pain and it was not getting any better. Language barriers made the situation more difficult. Overall, it was requested that the worker's benefits be reinstated.

Employer’s position

The employer did not participate in the appeal hearing.

Analysis

The issue before the panel is whether or not the worker is entitled to wage loss benefits beyond January 11, 2008. In order for the worker’s appeal to be successful, the panel must find that by January 11, 2008, the worker either continued to suffer a loss of earning capacity as a result of his compensable injury, or that the worker was not in breach of his obligation to co-operate and mitigate pursuant to section 22 of the Act, thereby affecting his entitlement to wage loss benefits.

The worker's claim was initially accepted in October 2005 as a bilateral shoulder strain. His left shoulder tendonitis resolved, but the right side remained problematic. The worker eventually underwent an acromioplasty in March 2007, following which he developed adhesive capsulitis of the right shoulder. At the hearing, legal counsel confirmed that the only remaining compensable diagnosis was adhesive capsulitis.

It is the panel's understanding that adhesive capsulitis is a condition which causes a reduction in function by virtue of a decreased range of motion of the shoulder joint, and while it can be painful, it is not necessarily completely disabling. An important element of recovery is to engage in physical therapy and to remain active and mobile.

The panel has considered the physical findings identified at the call-in examination of October 2, 2007. Although an interpreter was not present at the examination, the WCB medical advisor was still able to conduct physical tests on the worker's shoulders bilaterally. On the left side, while the worker complained of pain, range of movement and strength were found to be satisfactory. On the right, there was reduced strength and range of movement, but most findings were not markedly impaired (strength was typically 4 to 4 ½ out of 5). Recommended physical restrictions were no work above shoulder level, no repeated lifting, no weights greater than 5 pounds, no extended use of the arm with weights, no use of the right forearm in an extended position, no use of the extended arm lifting weights, and no duties with repetitive functions of gripping, pushing and pulling. In the panel's opinion, the call-in examination findings suggest that the worker was capable of fully participating in a work hardening program, which would gradually ease the worker into a pattern of greater activity.

At the outset of the hearing, it was submitted on behalf of the worker that he did not fully participate in the work hardening program because he was limited by pain and had difficulty communicating his problems to the staff. The worker's evidence through the translator at the hearing, however, was that he had no difficulties with the staff and that there were not many communication problems as a gentleman who spoke his language was available on some days to assist with translation. When asked why he frequently left the program early, the worker's response was that he did not know how long he had to be there and that he would complete his assigned tasks, then be left without anything to do. He felt bad sitting around idle while others were busy so he left and went home. The worker was also questioned about why the discharge report indicated a limited tolerance for performing various functional tasks. The worker indicated that he would feel pain when performing the tasks, but also questioned the accuracy of the data in the report. For example, he was recorded as having a goal of wiping tables for 20 minutes, but was only able to perform the task for two minutes. The worker denied that he only performed the task for two minutes.

The worker relies on medical reports from his physician, which state that while he was in the program, the worker was in severe pain and that his shoulder pain was aggravated significantly. The physician, however, speaks only in general terms and does not explain why the worker's adhesive capsulitis would have been worsened by participating in the program. In the WCB medical advisor's note of March 13, 2008, he indicates that the purpose of work hardening programs is to encourage persons with adhesive capsulitis to apply themselves through training to return to modified duties to encourage increasing function with the injured arm. He also notes that the whole rationale with this condition depends on 100% participation by the worker for his own benefit. This is also the panel's understanding with respect to treatment and management of adhesive capsulitis. For these reasons, we place little weight on the reports from the attending physician.

Overall, the discrepancies in the evidence cause the panel to question whether or not the worker put full effort into the work hardening program. While we acknowledge that he continued to experience some pain with movement, we do not consider this pain to be completely disabling. In fact, given the nature of the program and the worker's condition, some pain was to be expected and endured. We therefore find that there was less than full participation by the worker in the program. As noted earlier, an important part of recovery from adhesive capsulitis is to be active and mobile. In the panel's opinion, had the worker fully participated in the work hardening program, he would have been capable of returning to his pre-accident employment on a graduated basis, as suggested in the work hardening program discharge report.

We note that the WCB discontinued all wage loss benefits effective January 11, 2008, which was the date that the work hardening program was scheduled to end. The program discharge report indicated that at the end of the program the worker was fit for a gradual return to work. By having his benefits fully discontinued effective January 11, 2008, the worker did not have the benefit of a graduated return to the workplace. We therefore find that the worker ought to have been granted partial wage loss benefits beyond January 11, 2008, based on an earning capacity of 4 hours per day for the first two weeks after completing the program, and an earning capacity of 6 hours per day for the next two weeks. The panel finds that after a four week gradual return to work, the worker would have been capable of a full return to his pre-accident level of employment.