The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing decisions made by Review Office of the Workers Compensation Board ("WCB") related to her right shoulder difficulties and the appropriateness of her vocational rehabilitation plan and subsequent decision to deem. A hearing was held on March 11, 2014 to consider these matters.

Issue

Whether or not responsibility should be accepted for the worker's right shoulder difficulties in relation to her claim for bilateral CTS;

Whether or not the vocational rehabilitation plan for the NOC - 6623 Other Elemental Sales is appropriate; and

Whether or not the implementation of a deemed post-accident earning capacity of $380.00 per week effective November 26, 2010 is appropriate.

Decision

That responsibility should not be accepted for the worker's right shoulder difficulties in relation to her claim for bilateral CTS;

That the vocational rehabilitation plan for the NOC - 6623 Other Elemental Sales was not appropriate; and

That the implementation of a deemed post-accident earning capacity of $380.00 per week effective November 26, 2010 was not appropriate; and

That the worker was entitled to wage loss benefits from November 26, 2010 to March 17, 2011 inclusive.

Decision: Unanimous

Background

In July 2006, the worker filed a claim with the WCB for pain in both wrists which she related to her work duties as a school custodian. The claim for compensation was accepted based on the diagnosis of bilateral carpal tunnel syndrome ("CTS") and the worker underwent surgery to both wrists in 2007. Despite wrist surgery, the worker continued have difficulties with her hands and wrists and permanent work restrictions were implemented to avoid vibratory tools, repetitive pushing and pulling and lifting greater than 10 pounds.

As the accident employer was unable to accommodate the worker with a position that met her compensable restrictions, an Individualized Written Rehabilitation Plan ("IWRP") was developed under National Occupational Classification ("NOC") 6623, Other Elemental Sales. The plan duration was between June 28, 2010 and November 26, 2010.

On November 8, 2010, it was determined by the WCB's Deem Committee that the worker was fully employable in NOC 6623 and effective November 26, 2010, the worker's benefits would be reduced by the starting wage within NOC equal to $380.00 per week. The worker's employment services file was then closed by the WCB.

On January 24, 2011, the worker's family physician reported that the worker continued to have painful wrists bilaterally and that she was also developing right rotator cuff tendinitis.

On February 27, 2011, the worker started a job position in NOC 6623. She worked 2 to 3 days in this position, then did not continue.

On March 18, 2011, the worker started a job position in a retail store (NOC 6421).

In April 2011, the worker contacted the WCB to advise she was experiencing increased pain. On April 29, 2011, a WCB case manager spoke with the worker by telephone to obtain additional information. The worker indicated that she found employment as a telemarketer and then with a retail store. She said the telemarketing job caused her hands to tingle and go numb and that the job at the retail store caused her right shoulder difficulties. The worker stated:

• The pain in her hands/wrists never went away since her injury and surgeries.
• Working caused her condition to continuously worsen.
• She had tingling in both hands and sharp pains in her wrists. She said her fingers go cold.
• Prior to the retail job, she started having problems with her arms, specifically her right shoulder.
• She could no longer perform household duties such as folding clothes or making beds.
• She was seeing her doctor for wrist and shoulder difficulties every 2 to 3 weeks.

The WCB obtained medical information which showed that the worker had bilateral rotator cuff tendinopathy, worse on the right.

On August 22, 2011, a WCB medical advisor reviewed the worker's file and noted that the first mention of right shoulder symptoms was in January 2011, based on a report from the treating physician. The medical advisor concluded that the worker's right shoulder condition diagnosed as rotator cuff tendinopathy was not related to the worker's compensable condition. On September 23, 2011, the WCB advised the worker that it could not relate her right shoulder difficulties which began in January 2011, diagnosed as rotator cuff tendinopathy, to her bilateral CTS condition or to the new job duties she started in March 2011.

On January 13, 2012, the worker underwent a right shoulder MRI which identified a full thickness insertional tear of the supraspinatus region.

On April 17, 2012, the worker requested Review Office to reconsider the decision of September 23, 2011 that her right shoulder difficulties were unrelated to her bilateral CTS condition.

On May 29, 2012, Review Office confirmed that no responsibility could be accepted for the worker's right shoulder difficulties. Review Office noted that the worker had not worked between September 2009 and March 2011. It commented that an acute rotator cuff tear was normally the result of a fall or lifting a heavy object and that a degenerative tear would most likely be the result of repetitive shoulder movements.

Review Office concluded that there was no evidence to support that the worker would have developed right shoulder difficulties due to compensating for her wrist difficulties during a period in which the worker was not performing any employment-related activities.

The worker subsequently provided Review Office with a report from her treating physician dated June 18, 2012. The physician's opinion was that the worker's arm symptoms were directly related to her bilateral CTS condition.

In a letter dated June 27, 2012, Review Office advised the worker that no new information had been provided to allow a change to its previous decision. Review Office noted that the worker had not worked between September 2009 and March 2011 and that she developed right shoulder difficulties in January 2011. It found no evidence to support that the worker would have developed right shoulder difficulties due to compensating for her wrist difficulties during a period of reduced activity.

On September 9, 2013, the Worker Advisor Office submitted to Review Office that the evidence on file did not support the WCB's decision to pursue a vocational rehabilitation plan in "Other Elemental Sales" or to reduce the worker's wage loss benefits based on a deemed earning capacity.

On November 22, 2013, Review Office determined that the vocational rehabilitation plan for NOC 6623 was appropriate for the worker and that the implementation of a deemed post accident earning capacity of $380.00 per week effective November 26, 2010 was also appropriate. Review Office stated in its decision that the worker's work restrictions met the physical demands required for occupations in NOC 6623. It felt that the worker's education and transferable skills met the employment requirements for NOC 6623. It found that the worker was compliant in her participation in the VR plan with the exception of limiting her job search to within a certain radius of her home, which then limited the worker's potential employment opportunities. Review Office felt that there was enough of a labour market within NOC 6623 for which the worker met the minimum education and skill requirements, with job postings providing for a start wage consistent with, and in some cases, higher than $380.00 per week.

Review Office determined that following the job search period of the VR plan, effective November 26, 2013, it was appropriate to implement the deemed post accident earning capacity of $380.00 per week.

On December 6, 2013, the worker advisor office appealed Review Office's decisions to the Appeal Commission and a hearing was arranged.

Reasons

Applicable Legislation and Policy:

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(1) of the Act, where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid to the worker by the WCB.

Pursuant to subsection 27(20) of the Act, the WCB may provide academic, vocational and rehabilitative assistance to injured workers. Subsection 27(20) provides

Academic, vocational and rehabilitative assistance

27(20) The board may make such expenditures from the accident fund as it considers necessary or advisable to provide academic or vocational training, or rehabilitative or other assistance to a worker for such period of time as the board determines where, as a result of an accident, the worker

(a) could, in the opinion of the board, experience a long-term loss of earning capacity;

(b) requires assistance to reduce or remove the effect of a handicap resulting from the injury; or

(c) requires assistance in the activities of daily living.

WCB Policy 43.00 Vocational Rehabilitation (the “Voc Rehab Policy”) explains the goals and describes the terms and conditions of academic, vocational and rehabilitative assistance available to a worker under subsection 27(20). The Voc Rehab Policy states that: “The goal of vocational rehabilitation is to help the worker to achieve a return to sustainable employment in an occupation which reasonably takes into consideration the worker’s post-injury physical capacity, skills, aptitudes and, where possible, interests.”

Worker's Position:

The worker appeared at the hearing and was assisted by a worker advisor. It was submitted that the worker was employed as a custodian for over sixteen years. This occupation and the physical demands associated with it took a significant toll on her body. She developed bilateral CTS, which was accepted by the WCB in relation to her work as a custodian. The worker had two surgeries on her dominant right hand and one on her left. After each procedure, she experienced an abatement of symptoms but she returned each time to her same position and eventually the symptoms recurred.

The worker loved her job as it was close to home, had good pay and benefits, and was a supplement to her household income. Importantly, the job offered the worker solace from the struggles she experienced in her personal life with the tragic loss of a family member.

It was submitted that while the WCB rightly decided that vocational rehabilitation was appropriate for the worker, it failed to address barriers which were identified in the initial assessment, specifically that the worker was very depressed, she had ongoing symptoms of CTS, dated work experience, no high school diploma, only self-taught computer skills, and that she did not have access to a car which limited her ability to look for work at that time. The WCB only offered the worker a resume writing workshop and then the minimum job search period. The panel was asked to accept the appeal and enable the WCB to do a proper assessment which actually dealt with the challenges to the worker's re-employment.

With respect to the right shoulder difficulties, it was submitted that an occupational health physician, the family physician and the worker's massage therapist all related the development of the shoulder condition to the worker's bilateral CTS and the fact that her severely symptomatic wrists caused the worker to do more with her arms and shoulders. Despite the fact that both the CTS and the shoulder condition were becoming progressively worse, the WCB refused any further responsibility for the worker's claim. It was submitted that responsibility for the further injury that occurred to her right shoulder as a result of the CTS should be accepted.

Analysis:

1. Whether or not responsibility should be accepted for the worker's right shoulder difficulties in relation to her claim for bilateral CTS

The first issue before the panel concerns the cause of the worker's right shoulder difficulties which became symptomatic in January 2011. In order for the worker's appeal to succeed, the panel must find that the right shoulder condition is related to the worker's compensable bilateral CTS. On a balance of probabilities, we are not able to make that finding.

In order to relate the worker's right shoulder condition to her compensable injury, the panel would have to be satisfied that the pain she experienced in her wrists from the bilateral CTS caused the worker to use her shoulder in a compensatory manner which resulted in damage to the rotator cuff. Unfortunately, the panel has difficulty reaching this conclusion. The first report of right shoulder difficulties was in January 2011. At this time, the worker was out of the workforce and had been off work for over one year. At the hearing, the worker's evidence was that while at home, she only did regular household activities. She did not do any heavy lifting or activities of that nature. Hanging laundry on the clothesline was the only significant overhead activity. Any snow shoveling was done with a little snow shovel and she had a self-propelled lawnmower. She would self-pace and only do a little bit of work at a time. Her life was less active than when she performed the retail sales position. Given this period of reduced activity, the panel does not accept that there would be any significant wear and tear to the right shoulder resulting from changed body mechanics to compensate for the bilateral CTS. Despite generalized support from the worker's family physician and registered massage therapist for secondary stress/strain to the shoulder joint, the panel is not satisfied that there was sufficient activity to cause tendinitis and a rotator cuff tear. While the occupational health physician's report of March 6, 2013 cites the cumulative effect of shoulder exertions which were predominantly work-related, the evidence does not support that this was the case. The worker was off work and less active during the period when she developed the shoulder issues and even when she did re-enter the workforce in March 2011, her job duties did not involve much in the way of loading of the rotator cuff. The work did not require significant overhead or extended reaching with weight. The panel agrees with the assessment of the WCB medical advisor who opined that he could not relate the shoulder findings to the CTS.

We therefore find that responsibility should not be accepted for the right shoulder difficulties in relation to the worker's claim for bilateral CTS. The worker's appeal on this issue is dismissed.

2. Whether or not the vocational rehabilitation plan for NOC - 6623 Other Elemental Sales is appropriate

The second issue before the panel concerns the appropriateness of the vocational rehabilitation plan. The WCB provided the worker with vocational rehabilitation assistance aimed at re-employing the worker in NOC - 6623 Other Elemental Sales. In order for the worker’s appeal on this issue to be successful, the panel must find that the vocational rehabilitation assistance provided to the worker did not reasonably take into consideration the worker’s post-injury physical capacity, skills, aptitudes and, where possible, interests. On reviewing the facts of this case, we are able to make that finding.

A factor which weighed heavily in the panel's deliberations, but was not reflected much in the WCB file, was the psychological/emotional status of the worker at the time of the workplace accident. At the hearing, the worker explained that in October 2004, she suffered a tragic death in her family, as a result of which she developed a deep depression. She was off work for a few months, tried to return, but then suffered a nervous breakdown. She went off work again and received treatment. Eventually she was able to return to work, and when she did, her workplace was a "safe haven" for her. She worked the evening shift where she was alone a majority of the time. This gave her the space to mourn by herself and an opportunity to keep busy. She continued to suffer from grief which affected her ability to think and concentrate, but she could manage to perform her duties in the largely solitary environment. When the CTS worsened to the point where she could no longer work as a custodian, she was devastated. Not only had she lost a secure job which was close to her rural home, but she also lost the refuge this job afforded to her.

The Voc Rehab Policy sets out guidelines for developing an individualized written rehabilitation plan for workers. Paragraph 5 provides as follows:

5. The WCB will reasonably ensure that the plan is based on a realistic goal. A realistic goal is one which is within the worker's physical, intellectual, vocational, and emotional capacities. In helping a worker establish a goal, the WCB will apply knowledge of the worker's vocational profile, medical aspects of the worker's condition, the worker's interaction with the environment and the effort and persistence the worker demonstrates in the face of obstacles. (underlining added)

The WCB identified NOC 6623 Other Elemental Sales as an appropriate new occupation for the worker. The nature of the work in NOC 6623 is the selling of goods or services during home demonstrations or by telephone soliciting, retail exhibitions or street vending. Most commonly, this NOC involves telemarketing. At the hearing, the worker advised that she did apply for telemarketing positions and secured a job in this field. She attended for two or three days after which she felt like she was going to have a nervous breakdown. The worker's evidence was that the physical demands of the position caused her some difficulties with her arms and wrists due to the computer work involved, but she could handle it. The social demands, however, were incompatible with her emotional status. Given her depression and ongoing grief, she lacked the emotional ability to telemarket and solicit sales. She stated that she could not take the mental aspect of the job.

On a balance of probabilities, the panel accepts that given the worker's psychological and emotional status, NOC 6623 was not a realistic occupational goal for her. The work in NOC 6623 is based almost entirely on personal interaction. The worker was suffering from depression and had not worked in the customer service field for over twenty years. The panel accepts that the intensive degree of personal interaction required in NOC 6623 was beyond the worker's emotional capacities. We therefore find that the vocational rehabilitation plan for the NOC 6623 Other Elemental Sales was not appropriate. The worker's appeal on this issue is allowed.

3. Whether or not implementation of a deemed post-accident earning capacity is appropriate

As noted above, the panel feels that re-employment as a telemarketer was not appropriate for the worker. That is not to say, however, that the worker was completely disabled from working in the customer service field. On March 18, 2011 the worker obtained employment in NOC 6421 Retail Salespersons and Sales Clerks and she was able to maintain this employment until early January 2012 when her shoulder pain became so severe that she had to stop working. The worker's job duties mostly involved unloading inventory and placing it on shelves, and sometimes working as a cashier and providing assistance to customers. The worker started part time but would take as many shifts as she could and was working 7-8 hour shifts totaling approximately thirty-seven hours per week by the Christmas season. The job duties did cause the worker some increased numbness and shooting pains in her wrists, but stated that she could deal with it. It was her shoulder pain which caused her to go off work. The worker's evidence was that she loved working at the retail store as she got along well with the people and the work kept her busy.

In the panel's opinion, the worker has demonstrated that she is capable of earning $380.00 per week. The only reason why she discontinued working was because of her right shoulder condition, which the panel has determined is not related to her claim for bilateral CTS. She was able to maintain this employment for almost ten months and although the transferable skills analysis performed by the WCB identified concerns with the physical lifting requirements of work in the NOC 6421 category, she was nevertheless able to function. The panel feels that while there will be some jobs in NOC 6421 which are beyond the physical restrictions resulting from her bilateral CTS, the worker is nevertheless capable of maintaining employment in a NOC 6421 job position which earns $380.00 per week.

With respect to timing, the panel finds that the implementation of the deemed post-accident earning capacity of $380.00 effective November 26, 2010 was premature. Telemarketing was not an appropriate occupation for the worker and her assisted job search efforts were directed at this NOC. The worker on her own accord self-initiated a job search in a different NOC and eventually secured the retail position on March 18, 2011. In the circumstances, the panel finds that the implementation of the deemed post-accident earning capacity should be delayed until the date the worker secured the retail position. We therefore find that the worker is entitled to wage loss benefits from November 26, 2010 to March 17, 2011 inclusive.

The worker's appeal is allowed.

Panel Members

L. Choy, Presiding Officer
A. Finkel, Commissioner
C. Anderson, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 1st day of May, 2014