The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by Review Office of the Workers Compensation Board ("WCB") which determined that he was not totally disabled with respect to his right shoulder condition and therefore he was not entitled to full wage loss benefits. A hearing was held on December 12, 2012 to consider the matter.

Issue

Whether or not the worker is entitled to full wage loss benefits.

Decision

That the worker is not entitled to full wage loss benefits.

Decision: Unanimous

Background

The worker has an accepted claim with the WCB for a right shoulder and hip injury that occurred in the workplace on March 13, 1996. In 1996, the worker had surgery to his right shoulder whereby the rotator cuff tear was repaired by open approach and the anterior portion of the acromion was excised. On August 11, 2006, the worker underwent a second surgery to his right shoulder to repair a complete tear of the rotator cuff with associated atrophy. As of July 17, 2007, the worker has permanent work restrictions related to his right shoulder.

On September 1, 2011, the worker advised his WCB case manager that he could not work at all due to his compensable injury and felt that he should be entitled to full wage loss benefits. The worker noted that he could not drive to work now because of the added change to his medications.

On November 17, 2011, the worker was seen by a WCB orthopaedic consultant for an assessment of his right shoulder condition. The worker reported that he experienced daily pain of moderate to severe degree in the anterior and lateral aspect of his right shoulder. The pain was described as radiating to the right side of the neck and to the back of the shoulder in the right trapezius area. The pain was aggravated by home activities such as sweeping the floor. The worker used his left hand for vacuuming and lawn mowing. When lifting small items like jugs of milk, the worker used his left hand rather than the right hand because he feared he would drop the objects. Following examination of the right shoulder, the consultant's clinical impression was:

"1. By history, there is reported loss of function and symptoms suggestive of impingement syndrome at the right shoulder. Clinical examination supports a diagnosis of impingement syndrome of the right shoulder.

2. Measurement of the girth of the right upper limb does not support the statement that the right upper limb has being (sic) underused over a prolonged period.

3. A follow-up MRI of the right shoulder is being arranged at the [clinic] and scheduled for December 28, 2011."

The MRI of the right shoulder taken December 28, 2011 revealed the following findings: "Post surgical changes related to rotator cuff tendon repair. Moderate to large gap consistent with re-tear."

On January 11, 2012, the WCB orthopaedic consultant reviewed the MRI results of December 28, 2011. It was his opinion that:

• the re-tear of the rotator cuff of the right shoulder was related to the workplace injury.
• the worker would probably be capable of modified work based on the call-in examination findings. There was no evidence of current total disability.
• the listed permanent restrictions were appropriate.

On February 1, 2012, the worker was advised by the WCB that he was not entitled to full wage loss benefits as it was felt that he continued to be capable of employment within the previously outlined permanent restrictions.

On February 14, 2012, the worker appealed the above decision to Review Office. The worker indicated that he re-tore his rotator cuff and that his family physician was making arrangements for him to see a surgeon. He said he could not work even if he could find a job. The worker felt that he should be on full benefits at least until he was seen by the orthopaedic surgeon. The worker also believed that his right shoulder restrictions were not appropriate given the evidence that he had a new tear in his shoulder.

In a report dated February 24, 2012, the treating orthopaedic specialist stated: "MRIs show that he has re-torn his rotator cuff and is currently got (sic) a massive rotator cuff tears on the right side, which is irreparable. His symptoms are directly related to this problem…at this stage, there is no operative options (sic) for this patient to return him to normal function. His rotator cuff tear is too large to repair and his age precludes him from having a reversed (sic) total shoulder. At this point in time, he is permanently unable to perform any of his normal duties. This will not be likely to change or improve."

On April 17, 2012, Review Office determined that there was no entitlement to full wage loss benefits. Review Office agreed with the opinion of the WCB orthopaedic consultant that the worker continued to be capable of work within his previously outlined restrictions. Review Office noted that the measurements of the left arm noted in the call-in examination of November 17, 2011 compared to the measurements of the right arm did not show that the right arm was not being used. It noted that the worker's orthopaedic surgeon reported on February 24, 2012 that he was not fit to return to his normal work duties, but he did not state that the worker was totally incapable of any employment. Review Office said there was no evidence to indicate that the worker was totally disabled. On September 24, 2012, the worker appealed the decision to the Appeal Commission.

In a report dated October 14, 2012, the family physician noted that the worker remained disabled due to a rotator cuff tear. He noted that the worker could not lift his right shoulder to shoulder height, he could not lift 2 kg. of weight away from his body with his shoulder, and he has chronic pain in his shoulder joint.

Reasons

• consulting orthopaedic surgeon's report of February 24, 2012 which indicates the worker is "permanently unable to perform any of his normal duties." 
• family physician's progress report dated October 14, 2012 that notes the worker will never return to his regular duties and suggests restrictions of "Not able to use R arm for physical labour."

The panel notes that the worker's physicians recognize that the worker cannot return to his prior occupation but do consider him capable of working at appropriate duties. They do not declare the worker as being totally disabled from employment.

The panel also relies upon the WCB orthopaedic consultant's report dated January 11, 2012. The consultant examined the worker on November 17, 2011 and reviewed the file again in January 2012 subsequent to the re-injury and the December 28, 2011 MRI. His conclusion included:

1. A re-tear of the rotator cuff of the right shoulder has been identified on MRI dated 28-Dec-2011. This is related to the workplace injury. This will require re-assessment by the attending O/S.

2. Based on call-in examination findings, the worker would be probably capable of modified work. There is no evidence of current total disability.

3. The listed permanent restrictions are appropriate at this time.

At the hearing, the panel and worker discussed the prospect of full-time employment. The worker advised that he would like to work and that he thought he could work full-time provided the employment did not involve the use of his right arm. The panel finds that the evidence, on a balance of probabilities, supports a finding that the worker is capable of working full-time, at a job paying the provincial minimum wage.

The worker's appeal is dismissed

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 17th day of January, 2013