The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he had no loss of earning capacity beyond January 20, 2012 in relation to his compensable accident. A hearing was held on September 23, 2013 to consider the matter.

Issue

Whether or not the worker is entitled to wage loss benefits after January 20, 2012.

Decision

That the worker is not entitled to wage loss benefits after January 20, 2012.

Decision: Unanimous

Background

The worker filed a claim with the WCB for injuries he suffered in a work-related accident on January 7, 2011. The worker reported that he slipped on a sidewalk and his feet went out from under him. He landed on his left side back and shoulder. The accident happened around 2:00 p.m. and he finished his shift.

On February 9, 2011, the treating physician reported that the worker's back pain had settled but there was limitation in shoulder movement. The worker was diagnosed with left rotator cuff tendonitis, MFP scapular stabilizers and mechanical mid back pain.

On March 23, 2011, the worker underwent an MRI of his left shoulder which identified AC arthrosis with minor subacromial bursal fluid.

The WCB arranged for the worker to see an orthopaedic specialist as he continued to experience pain and difficulty with his shoulder despite a steroid injection into the subacromial space.

On May 18, 2011, the orthopaedic specialist reported that the worker had cuff pain but no cuff tear. He reported that the worker had enough function in his shoulder to continue with light duties. If the worker's shoulder condition did not improve with exercise, an arthroscopic assessment was recommended.

Due to ongoing shoulder difficulties, the worker underwent shoulder surgery on September 23, 2011. The post-operative diagnosis was a partial thickness articular-sided tearing.

In a follow-up report dated December 21, 2011, the orthopaedic surgeon reported that the worker's shoulder condition was improving and that the worker could return to non-contact work as of December 22, 2011 and to his full regular duties by January 23, 2012.

On January 19, 2012, the worker voiced concerns that he was not ready to return to work on January 23, 2012 as he was stressing out and because his arm was weak with poor range of motion. The worker also noted that he had booked a vacation about six months ago starting January 23, 2012 for ten days.

On January 25, 2012, the case manager spoke with the employer who advised that the physical demands of the worker's job duties were light to very low risk. When told of the nature of the work duties that the worker would be performing, the treating physiotherapist agreed that the worker would be capable of returning to work. The physiotherapist noted that the worker was reluctant to return to work in any capacity but he could not support this in regard to his shoulder status.

In a decision dated January 25, 2012, the worker was advised that wage loss benefits would be paid to January 20, 2012 as it was felt that he was capable of returning to work as of January 23, 2012.

On February 8, 2012, the worker submitted an appeal claiming that he was unable to return to work due to pain in both shoulders and depression which he related to his compensable accident. Prior to considering the appeal, Review Office referred the file back to initial adjudication to decide on the issue related to the worker's psychological condition.

In a follow-up report dated February 23, 2012, the treating surgeon noted that the worker was discharged from his care and could return to his regular duties and activities as far as his shoulder was concerned.

On February 27, 2012, the worker underwent a psychiatric assessment. In the report dated February 28, 2012, it was stated in part that the worker had a history of Major Depression in remission. It was noted that the worker's shoulder injury had been a significant contributor to both his low mood and his poor sleep.

On March 22, 2012, a WCB psychological advisor commented that the current diagnosis related to the worker's mental health status was major depression in remission. She further stated:

In the absence of pre-injury chart notes and mental health history, it is difficult to determine if the symptoms of depression arose as a material consequence of the injury. There is a history of traumatic death of a son, five years ago; assault in the workplace and some workplace issues; and some general health issues (that included symptoms of fatigue). These all would be seen to be related to any current mood symptoms. As well, if there is a continuing medical condition that results in pain, it could be contributing to symptoms of depression. Therefore, unless there is information about past psychiatric history and psychological functioning, if there is a current medical condition that results in pain, it would be seen to be contributing materially to the symptoms of depression in combination with the other factors mentioned above. The worker's symptoms, based on Dr….psychiatric assessment, responded well to the use of antidepressants and are fully in remission. Therefore, there would be no restrictions to return to work.

On April 4, 2012, the WCB determined that the worker's psychological condition was not related to the effects of the January 7, 2011 workplace accident based on the March 22, 2012 WCB medical opinion. On April 18, 2012, the worker appealed the decision to Review Office stating that he had medical support from his family physician that his depression was directly related to his accident and that it kept him from returning to his pre-accident employment. The worker reported that he had pain in both shoulders with limited movement.

In a decision dated May 28, 2012, the worker was advised that the WCB was unable to relate his right shoulder symptoms to the original workplace accident as there was no evidence of injury or report of a right shoulder injury at or around the time of his compensable accident.

On June 27, 2012, Review Office determined that responsibility should be accepted for the worker's psychological condition. Review Office found the file evidence did not support that the worker developed a significant psychological injury directly from the slip and fall incident of January 7, 2011. It found that the evidence did support that an aggravation of the worker's pre-existing psychological condition had occurred as a consequence of his compensable injury. It concluded that the pain and disability arising from the compensable left shoulder injury contributed to the worker's progression of his psychological condition.

Review Office determined that the worker did not have a loss of earning capacity beyond January 20, 2012. Review Office referred to specific file evidence to support that the worker's back condition had resolved by March 30, 2011 and there was no causal relationship between his right shoulder difficulties and his compensable left shoulder injury. Review Office found that the medical evidence supported that the worker's left shoulder status did not prevent him from performing his regular duties. It found that the worker's pre-planned vacation beginning January 23, 2012 was unrelated to his compensable injury. Review Office felt that the worker's psychological condition did not prohibit him from participating in either modified/light duties or a return to work on January 23, 2012.

On September 12, 2012, the worker provided Review Office with medical information to support that he was unable to perform his regular duties due to his left shoulder problems and therefore he was entitled to benefits beyond January 20, 2012. The medical evidence consisted of reports from his treating physiotherapist and orthopaedic surgeon. The worker also noted that his family physician medically excused him from returning to work and that he was still being treated for complications arising from his psychological condition.

On September 28, 2012, Review Office determined that no change would be made to its previous decision. Review Office stated:

Although the new information you presented speaks to your ability to perform regular duties, the Review Office finds the evidence does not support that you are unable to continue to work in any capacity after January 20, 2012…Review Office does not find the medical evidence to show that your psychological condition would prevent you from participating in either modified/light duties or regular duties. This is based on the information provided by psychiatrists…in addition to the opinion of …a WCB psychological consultant.

Review Office also concluded that the modified/light duty work offered by the employer was considered suitable work in accordance with WCB policy 43.20.25 Return to Work with the Accident Employer.

On April 4, 2013, the worker provided Review Office with a report from his treating psychologist dated January 22, 2013 and reports from his family physician dated December 4, 2012 and April 2, 2013. The worker stated:

I attest, that at all times, I have followed the advice of my physicians, surgeons, physiotherapists, psychologists etc. The modified duties proposed at that time by the employer and the WCB were known to my physician when he medically excused me from work. My wage loss continues to date as a result of a psychological condition previously accepted, and I request that the Board review the aforementioned decision, and in light of my new facts, and find in my favor.

On May 27, 2013, Review Office upheld its decision that the worker was not entitled to wage loss benefits after January 20, 2012. Review Office accepted the opinion of the WCB psychological advisor dated March 22, 2012 that the worker's symptoms responded well to the use of antidepressants and was in remission, and that there would be no restrictions for a return to work. It also considered the report from the clinical psychologist who first saw the worker on December 13, 2012 regarding adjustment to intermittent depressed mood/anxiety, pain, employment uncertainty and several psychosocial stressors (relationship/health). The specialist noted that the worker's concentration, short term memory and attention appeared to be within normal limits. On a balance of probabilities, Review Office was unable to establish that the worker was unable to participate in work activities due to the effects of his compensable injury or to his psychological condition. On May 29, 2013, the worker appealed Review Office's decision to the Appeal Commission and a hearing was arranged.

Reasons

Applicable Legislation and Policy

The worker is employed by a federal government agency or department. His claim is adjudicated under the Government Employees Compensation Act ("GECA"). The GECA provides that an employee who suffers a personal injury by an accident arising out of and in the course of employment is entitled to compensation.

Pursuant to subsection 4(2)(a) of the GECA, a federal government employee in Manitoba is to receive compensation at the same rate and under the same conditions as a worker covered under The Workers Compensation Act (the “Act”).

Subsection 39(1) of the Act provides that wage loss benefits will be paid: “…where an injury to a worker results in a loss of earning capacity…” 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.

The WCB Board of directors has enacted WCB Policy 44.10.20.10 (the "Pre-Existing Conditions Policy") which addresses the issue of pre-existing conditions when administering benefits. The policy provides definitions for the terms aggravation and enhancement. It sets out the circumstances when the WCB will be responsible to pay benefits for a pre-existing condition. In this case the worker has been diagnosed with a condition which may be classed as pre-existing.

The worker has an accepted claim for compensation arising from a workplace injury. He is seeking wage loss benefits after January 20, 2012.

Worker's Position

The worker attended the hearing with his wife. He provided a written submission and verbally outlined his reasons for appealing the WCB's decision. The worker's wife assisted the worker. The worker answered questions posed by the panel.

The worker expressed frustration and disappointment with his dealing with the WCB. He said that his difficulties on the claim began when the treating surgeon opined that he could return to work. He said he was not fit to return to work but the WCB disagreed. The worker said that the WCB selectively chose parts of medical reports and failed to capture the "gist" of the reports.

The worker advised that he never refused to return to work and never refused light duty work. He said that he was willing to return to work but that his family physician and physiotherapist told him he was not medically able to work.

The worker was asked about his current condition, both psychological and physical. He responded that he continues to have sleep problems and pain in his left shoulder. He said that due to the injury he takes medication for depression which has side effects. He advised that the WCB still pays for counseling and medications for his depression. In answer to a question he advised that he is now 70 to 80% mentally well.

Regarding his left shoulder, he said that he has limited strength and movement, but advised that by July 2013 he had obtained full range of motion. He noted that prior to the surgery, his left arm was his dominant arm. He said that his right arm is becoming sore due to compensating for his left arm. He acknowledged that he can work but not at his pre-accident duties.

The worker said there was conflicting medical information on file. He said that the orthopaedic surgeon who said he was fit to return to regular duties was not aware of his job duties and did not perform a proper assessment. He noted the surgeon's report of August 30, 2012 which he suggested recanted that surgeon's earlier opinion that the WCB had relied upon.

In answer to questions, the worker advised that after January 2012, he did not contact the WCB about returning to work and did not approach his employer about returning to work. He said he did not do this because his family physician had given him a medical note that he was not fit to return to work. The worker said that he suffered a panic attack after he spoke with the surgeon about returning to work. He knew he could not work in his regular position as he could not defend himself.

Regarding restrictions, the worker agreed that the restrictions in place before surgery were appropriate and agreed that they were valid after the surgery.

The worker advised that after the WCB refused to fund further physiotherapy treatments, his physiotherapist permitted him to work out at his clinic at no cost.

The worker advised that he has not worked since the surgery and, due to financial reasons, is considering taking early retirement, and had started the paperwork.

Employer's Position

The employer did not participate in the hearing.

Analysis

The issue before the panel is whether the worker is entitled to wage loss benefits after January 20, 2012.

For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker continued to have a loss of earning capacity after January 20, 2012 as a result of the workplace injury, or, in other words, the worker was unable to work after this date due to his workplace injury. The panel was not able to make this finding. While the panel does find that the worker was not fit to return to return to his regular pre-accident duties, the panel does find that the worker was fit, physically and mentally, to participate in a return to work to modified duties. The panel finds that the worker was advised that light duties were available and that he declined to participate in any return to work. Therefore, the panel is not able to attribute the worker's loss of earnings to his injury.

In this case, the worker suffered both physical and psychological injuries as a result of the accident. At various times the worker claimed he was unable to return to work due to one or both conditions. The panel considered both conditions in assessing the worker's ability to return to work.

Shoulder Condition:

As previously noted, the worker injured his left shoulder in a fall at work in January 2011. The issue for the panel to determine is the condition of his shoulder in January 2012.

The panel notes that the worker underwent surgery and had physiotherapy treatment subsequent to the surgery. In January 2012, the orthopaedic surgeon opined that the worker could return to his regular duties. In a report dated August 30, 2012, the surgeon commented that "This gentleman has a partial thickness articular-sided cuff tear for which we have no complete anatomic solution." The panel accepts that the worker may have a permanent injury arising from the accident. The panel notes the orthopaedic surgeon has provided numerous reports recommending that the worker return to work. In his report of August 30, 2012, the surgeon notes that "Thus far, he feels he is not capable of attempting a return to work." He notes that the worker is concerned about using his arm in violent situations and agrees that this would be an appropriate restriction. The surgeon's opinions support the panel's finding that the worker is fit to return to modified duties. Indeed, at the hearing the worker agreed that he can work.

The panel also relies upon the opinion of the treating physiotherapist. In a report dated January 20, 2012 the physiotherapist opined that the worker was fit for alternate or modified work with restrictions of "no interaction with inmates, would not be able to defend himself because of shoulder problems." On January 25, 2012, the case manager reviewed the worker's job description with the treating physiotherapist who agreed that the worker would be capable of working at his pre-accident job and would be capable of moderate duties. The treating physiotherapist provided a copy of a Functional Capacity Evaluation of the worker, dated July 30, 2012, which concluded that the worker:

"…has excellent strength below 90 degrees of flexion and abduction. In a normal work place [the worker] would be able to return to regular duties however in a environment where the strength of your arm above 90 degrees is the difference between life and death [the worker] is not safely able to return to his job as …"

The panel accepts the evidence of the orthopaedic surgeon and treating physiotherapist and finds that these reports support our finding that the worker was physically capable of working, in full time modified duties, by January 20, 2012.

Psychological Condition

The worker has argued that he was not able to return to work because of his psychological condition. The panel notes the family physician referred the worker for a psychiatric assessment. The psychiatrists noted that the worker fell at work in January 2011 and subsequently became quite depressed especially between March and May 2011. They also noted that the worker had other significant stressors in his life.

The psychiatrists concluded that the worker has a history of Major Depression in remission. A WCB psychological advisor reviewed the psychiatric report and concluded that "the worker's symptoms, based on [doctor's] psychiatric assessment, responded well to use of antidepressants and are fully in remission."

The worker advised that he continues to attend sessions with a psychologist. The panel notes the psychologist reported on January 22, 2013 that "[worker's] mental status was considered stable on the occasions of contact noted" in his report.

At the hearing, the worker advised that he takes two medications for his depression and that these medications have been effective.

The panel accepts that the injury and related pain/disability may have aggravated the worker's pre-existing condition but finds that the aggravation once treated with appropriate medication has not prevented the worker from returning to work.

The panel also notes that the family physician has opposed the worker's return to any work. However, in a letter dated April 2, 2013 to the worker, the physician wrote that "On review of the chart, I opine that you were not able to return to regular duties and that initially you were unable to return in any capacity relating to mental health issues. At the most recent appointment, I advised and discussed that you would be capable of sedentary-type duties away from the regular duties which may involve "confrontation" with prisoners in the correctional institute…"

The panel notes, however, that the other evidence on file and at the hearing suggests that the worker's depression was treated effectively at a much earlier date, and we therefore place less weight on this report.

The panel finds that the evidence does not support a finding that the worker was unable to return to work in any capacity relating to his mental condition. This opinion is not consistent with that of the consulting psychiatrists, nor the opinion of the WCB psychological advisor and the worker's treating psychologist.

Conclusion

In conclusion the panel finds, on a balance of probabilities, that the worker did not sustain a loss of earning capacity as a result of the workplace accident and is not entitled to wage loss benefits after January 2012.

At the hearing, the worker commented that he was not aware of the return to work process to explain why he did not take any action to facilitate a return to work. Specifically, he did not contact the WCB or the employer to discuss a return to work or modified duties. The panel notes that the worker had 10 prior claims and advised the panel that, as a member of the union executive, he was familiar with the employer's return to work program. The panel is not able to accept his professed lack of knowledge as a mitigating factor.

The worker's appeal is dismissed.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
M. Lafond, Walker, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 2nd day of October, 2013