The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The employer is appealing a decision made by the Workers Compensation Board ("WCB") which determined that the worker had a loss of earning capacity beyond May 10, 2010 in relation to his compensable shoulder injury. A file review was held on November 1, 2011 to consider the matter.

Issue

Whether or not the worker is entitled to wage loss benefits after May 10, 2010.

Decision

That the worker is entitled to wage loss benefits after May 10, 2010.

Decision: Unanimous

Background

On December 5, 2008, the worker injured his right shoulder at work when he slipped on ice when stepping off a ladder. His claim for compensation was accepted based on the diagnosis of an acromioclavicular ("AC") joint separation/dislocation and benefits and services were paid to the worker. In March 2009, the worker returned to work performing modified duties but experienced further difficulties with his shoulder due to a work-related maneuver. On May 8, 2009, the worker attended a hospital emergency facility and was diagnosed with a right AC sprain.

On June 19, 2009, an MRI of the right shoulder identified widening of the AC joint with distortion of the coracoclavicular ligaments. There was no significant adjacent osseous or soft tissue edema which suggested the injury was remote. The appearance suggested a prior grade 3 AC injury. There was supraspinatus tendinosis with low grade interstitial tearing. There was infraspinatus tendinosis.

On August 5, 2009, a WCB orthopaedic consultant responded to questions posed by the WCB case manager. The consultant commented as follows:

• the diagnosis related to the December 5, 2008 accident was a minor first degree right shoulder AC sprain in the environment of a June 1994 right third degree AC shoulder separation, treated in 1994 by open reduction and internal fixation.

• since the workplace accident, the worker's persistent right shoulder symptoms were to some extent accounted for on the basis of an impingement syndrome, which would be consistent with the June 19, 2009 right shoulder MRI finding of a low grade interstitial tearing at the supraspinatus insertion. The mechanism of injury on December 5, 2008, a fall onto the lateral shoulder, was concordant with an acute low grade interstitial supraspinatus tendon tear.

• the probable diagnosis related to the May 8, 2009 mechanism of injury (reaching to grab an item on a line at work) appeared to be symptomatic aggravation of an impingement syndrome.

• if acute, the low grade interstitial tearing of the supraspinatus would be consistent with aggravation of a pre-existing albeit asymptomatic tendinosis.

On November 27, 2009, an orthopaedic specialist recommended right shoulder surgery which was carried out on March 9, 2010. The post-operative diagnosis was right shoulder AC joint pain and impingement with rotator cuff tendinosis. The WCB reinstated the worker's wage loss benefits as of March 9, 2010 while he recovered from surgery.

In a report dated March 19, 2010, the treating surgeon noted that the worker would be off work for three months in total recovering from his shoulder surgery.

On March 31, 2010, a WCB orthopaedic consultant advised primary adjudication that: "After this type of surgery I would expect he would be totally disabled for work with the right shoulder at this time. He could probably RTW at 2 months on modified duties. I would advise the following work restrictions with the right arm at 2 months after the surgery of March 9, 2010: "No work above shoulder height and no lifting over 5 lb below. Re-assess these work restrictions at 3 months after surgery."

On April 28, 2010, the treating surgeon noted that the worker's shoulder was slowly improving but he still had a significant amount of pain. He opined that the worker was unable to return to work until at least mid-July 2010.

On May 31, 2010, the treating surgeon advised the WCB case manager that it was not advisable for the worker to perform one hand modified duties. If these duties were present, they would likely lead to significant overuse symptoms in the contralateral extremity.

In a follow up report dated August 25, 2010, the treating surgeon indicated that the worker had no improvement from surgery and he was still tender subacromially and over the AC joint. The surgeon noted that the worker will have permanent restrictions and will need retraining for his job as a forklift operator.

The family physician reported on September 30, 2010 that the worker had no functional improvement post-operatively and he agreed with the treating orthopaedic surgeon that "usage of the right arm in a work environment is best avoided."

On October 8, 2010, primary adjudication wrote the accident employer to advise that the worker was fit for work based on the following restrictions: no overhead activities with the right upper limb and no lifting, carrying, pushing or pulling with the right upper limb.

At a return to work meeting held on October 21, 2010, the worker voiced concerns about his medication usage and how it would affect his driving and working.

On November 3, 2010, a WCB orthopaedic consultant stated: "Based on the physician's recommendation, the worker is currently using more T3's than prescribed. Were they to be taken as the physician advised, the effect on driving would be minimal. Seven T3's a day would induce drowsiness and be unsafe for driving."

In a submission to Review Office dated March 23, 2011, the employer indicated that it was appealing the duration of wage loss benefits paid to the worker beyond May 10, 2010 as it was their position that the worker could have been accommodated as a production inspector and would not have experienced any loss of earning capacity related to his workplace injury. It was felt that the worker could have been able to participate in a modified return to work at full hours.

On May 5, 2011, Review Office determined that the worker continued to experience a loss of earning capacity due to the effects of his compensable injury after May 10, 2010. The decision was based on the reports from the treating orthopaedic surgeon, the treating physiotherapist and the WCB orthopaedic consultant from April 28, 2010 through to April 14, 2011. On May 24, 2011, the employer appealed Review Office's decision to the Appeal Commission and a file review was arranged.

Reasons

The only report upon which the employer might rely is that of the WCB orthopaedic consultant who reviewed the operative report but did not examine the worker. The consultant opined on March 31, 2010 that the worker “could probably” return to work two months after surgery on modified duties. We note that this opinion is inconsistent with the evidence of the orthopaedic surgeon, as well as the worker’s own physician and physiotherapist and we give more weight to their evidence.

While we are satisfied that the employer was willing to accommodate the worker as early as May 11, 2010, the facts are that the worker was not medically able to return to work at that time and the worker's return to work restrictions were not established until October 8, 2010. We note as well that the worker was cooperative with the medical treatment regimen and reasonably relied upon his physician's advice as to when he was able to take steps toward a return to work.

We find that the medical evidence before us does not support the employer’s position that the worker was no longer experiencing a loss of earning capacity as a result of the compensable injury after May 10, 2010. We are satisfied that the evidence before us does establish on a balance of probabilities that after May 10, 2010, the worker was entitled to wage loss benefits for a loss of earning capacity resulting from the compensable injury.

For the reasons stated above, the employer’s appeal is dismissed.

Panel Members

K. Dyck, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

K. Dyck - Presiding Officer

Signed at Winnipeg this 15th day of December, 2011