The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The employer is appealing the decision made by Review Office of the Workers Compensation Board ("WCB") which determined that the work accommodation provided to the worker was outside of her work restrictions and that the worker was therefore entitled to wage loss benefits from November 2012 to June 2013. A hearing was held on March 6, 2014 to consider the matter.

Issue

Whether or not the work accommodation beginning in November 2012 was within the worker's restrictions; and

Whether or not the worker is entitled to wage loss benefits for the period November 21, 2012 to June 3, 2013.

Decision

That the work accommodation beginning in November 2012 was within the worker's restrictions; and

That the worker is not entitled to wage loss benefits for the period November 21, 2012 to June 3, 2013.

Decision: Unanimous

Background

On March 24, 2009, the worker injured her right shoulder, neck and upper arm while performing duties on a production line at work. Her claim for compensation was accepted and benefits were paid. The compensable diagnosis was recurrent rotator cuff tear of the right shoulder.

On November 7, 2012, the WCB determined that based on medical information and a Functional Capacity Evaluation, the worker had the following permanent work restrictions regarding her right shoulder:

• No lifting over 5 lbs. with right arm; and
• Limited right arm lifts above shoulder height.

Based on the above work restrictions, the employer offered the worker two alternate duty positions on the production line that involved either removing uteri or removing heart fat. The worker attempted the uteri position but left work on November 21, 2012 as she claimed that the cold environment made her shoulder ache, that she was unable to grab the knife and make any motions with her arms and that the job was too repetitive. She also indicated that her right elbow was swollen. At the advice of her case manager, the worker discussed work restrictions with her family physician.

On November 21, 2012, the family physician completed a medical certificate which stated:

In addition to WCB permanent restrictions with no lifting more than 5 lbs., I advise about avoiding repetitive movement of the Rt shoulder and avoid working in a cold environment for 2 weeks until the patient gets clear clarification from WCB regarding these 2 restrictions.

A further medical certificate dated November 22, 2012 stated that the worker was excused from the work force for the period November 22, 2012 to December 21, 2012.

In a memorandum to file dated November 23, 2012, the case manager documented phone conversations that she had with the worker and the employer on November 22, 2012. The worker stated that despite the new restrictions from her family physician, the employer was sending her back to the same knife job in the same cold environment. She said her blood pressure increased because of all the stress. The worker indicated that she did not feel well and was going home.

The employer advised the case manager that:

• The temperature in the worker's area was 17 degrees Celsius.
• The worker's job was not repetitive. The worker was in training and was told to work at the pace which was convenient for her. She would be checking every fifth tray of product at most.
• There were no repetitive movements of the shoulder and the work was at waist level.
• Knife sharpening with a stone was optional. They would, however, order a mouse trap for her which would make the knife sharpening process easier. Steeling knife required light effort only.
• The worker had been issued a brand new set of knives.

After speaking with the employer, the case manager called the worker to advise that the temperature in the worker's department was 17 degrees Celsius and she did not feel that this was a "cold environment." The worker replied that it was colder in comparison to her previous job. The case manager recommended that the worker put on a warm sweater or jacket under her smock if it was too cold. The worker indicated that she was going to see her doctor again for a complete off work note.

In a decision dated November 26, 2012, the WCB case manager determined that the worker was not entitled to wage loss benefits as of November 21, 2012 as it was felt that the accommodations provided by the employer met the worker's work restrictions as outlined by the WCB and her family doctor. The case manager stated:

• The worker's department was +17 degrees Celsius and was not considered to be a cold environment.
• There was no lifting above 5 lbs in either job. The weight of product was between 0.08 to 0.21 kg.
• There was no requirement to work above shoulder height.
• The physical demand for hand grip was light. There was no requirement of strong, forceful hand grip at all when cutting product or steeling knife.
• The frequency of reaching movements to front was occasional, typically within the radius of 1 foot.
• The worker was allowed to perform the above duties at self pace while in training.

In a medical certificate dated December 29, 2012, the family physician stated that the worker was to avoid lifting more than 3 kg and to avoid repetitive movement of the right arm for one month.

In a progress report dated January 15, 2013, the family physician noted that the worker needed to overcome the pain to be able to work.

On May 1, 2013, the worker appealed the case manager's decision to Review Office. On May 8, 2013, Review Office contacted the worker to clarify her appeal. The worker's son indicated that his mother was unable to do the job and was unable to work with a knife as it affected her arm and shoulder. On May 8, 2013, Review Office referred the case back to the case manager to write to the family physician for his opinion on the suitability of the accommodation for the worker, taking into account the full thickness shoulder tear and the worker's complaints about the cold, the use of a knife and work repetition.

On May 23, 2013, the WCB case manager asked the family physician to provide his medical opinion as to whether the medical findings support the worker's ability to perform the work duties of the uteri and heart fat positions. Included with the letter was an outline of the physical demands of the two positions and the employer's Physical Demands Description sheets.

In a response dated May 27, 2013, the family physician stated:

The patient tried the 2^nd Job position 2-removing heart fat. She could not tolerate this position because of the high repetition movement involving the shoulder. She also stated that the working conditions did, on occasion, become cold.

The patient is ready to try to (sic) the 1^st job position-removing uteri providing that she can be accommodated "as tolerated" and to avoid the strain of high repetition movement at the shoulder. She may or may not be able to average 8 cuts per minute, this will again be "as tolerated." The patient will be ready to start these duties in one week-Monday, June 3, 2013.

At the case manager's request, a WCB orthopedic consultant reviewed the file information on June 4, 2013 taking into consideration the family physician's letter of May 27, 2013. The consultant stated:

…the claimant's family physician has recommended that the claimant could return to work as of June 3, 2013. He continues to note that the claimant states that the environment can, on occasion, become cold and feels that, "The patient is ready to try to do the first job position-removing uteri, provided that she can be accommodated, as tolerated and to avoid the strain of high repetitive movement of the shoulder." I have reviewed the details of both available jobs, and although the family physician appears to have some knowledge of the workplace, it does not appear that there is a cold environment or that excessively repetitive movement is required. This applies specifically to the removing uteri job, which involves selecting from a tray, an extremely light activity level. The heart fat job involves use of the cutting hand at waist to chest height. I do not agree that a restriction on "repetitive movement" is required….In my opinion, the claimant is capable of the first job, removing uteri. I disagree with the family physician regarding the second job, and the claimant should be capable of performing all of the requirements of this job within the existing restrictions. The rationale for this is that the proposed added restriction is in response to the claimant's stated loss of function, which should be considered to be unreliable, in view of the claimant's performance at the call-in examination and the Functional Capacity Evaluation.

On June 26, 2013 the WCB case manager made the determination that no change would be made to the decision of November 26, 2012 as it was confirmed that the work duties proposed by the employer (removing uteri and removing heart fat) were within the worker's permanent restrictions and were suitable alternate duty accommodations. The case manager noted in her decision that she visited the work site on June 10, 2013 to verify whether the actual job requirements were consistent with the physical demands outlined by the worker's employer and to specifically address concerns of the work environment being "freezing cold." After observing the work process in the proposed two jobs, the case manager was unable to support the worker's concern that the effort in the offered jobs required highly repetitive shoulder strain nor could she verify that the work environment was cold. She noted that other co-workers wore light/short sleeved uniforms. The case manager agreed with the employer that the temperature in the worker's department was not lower than +15 degrees Celsius. The case manager agreed with the medical opinion on file that the proposed work duties were within the worker's permanent restrictions, either previous or recently reviewed.

On July 16, 2013, Review Office determined that the work accommodation beginning in November 2012 was outside of the worker's restrictions and that the worker was entitled to wage loss benefits for the period November 21, 2012 up to June 3, 2013, the date she returned to work.

Review Office accepted the family physician's recommended work restrictions and found that some of the duties performed by the worker were outside of her restrictions. Review Office indicated that making several cuts with a knife per minute with the arm away from the body for hours at a time was repetitive work affecting the shoulder and was outside the restrictions given by the worker's physician. Review Office felt that the worker had a loss of earning capacity after November 21, 2012 and was entitled to wage loss benefits. Review Office indicated that the "cold" environment for this worker and her related complaints may have more to do with the combined temperature and humidity. This would not be related to the compensable shoulder tear but could be bothersome in an environment of osteoarthritis. Review Office endorsed the recommendations made by the family physician for the worker's return to work in June 2013. On July 19, 2013, the employer appealed Review Office's decision 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.

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.

WCB Policy 43.20.25, Return to Work With the Accident Employer (the “Return to Work Policy”) outlines the WCB’s approach regarding return to work of injured workers through modified or alternate duties with the accident employer. The Return to Work Policy describes suitable modified or alternative work as follows:

Suitable work is that which the worker is medically able to do, does not aggravate or enhance the injury, and will provide benefits to both the worker and the employer. Suitable work is permanent or transitional employment that takes into account the worker's pre-accident employment, aptitudes, skills, and what work is available. It also considers any safety concerns for the worker or co-workers.

In order to determine if the worker is medically able to perform suitable work, the WCB will compare the worker's compensable medical restrictions and capabilities to the demands of the work.

The employer's position:

The employer was represented by an employer advocate, who appeared in person, and a benefits coordinator and charge nurse who participated in the hearing via teleconference. The employer did not contest that the worker had a shoulder injury however it was submitted that the work accommodation offered to the worker in November 2012 was within her capabilities and accordingly, she was not entitled to wage loss benefits to June 3, 2013. Based on objective medical evidence, there was no reason why the worker could not do the light duties provided during this period. While she had pain, she was nevertheless capable of the light duties. Nothing about the job had changed between November 2012 and June 2013. When the worker returned to work in June 2013, she could in fact perform the light duties and continued to do so even though nothing had changed about her medical picture. It was submitted that there was no reason why she had to be off work under these circumstances for six months.

The worker’s position:

The worker was represented by a union representative in the appeal. While the union advocate appeared at the hearing in person, the worker participated via teleconference. The worker spoke limited English so a translator was present in the hearing room and the worker also had translation assistance provided by a union member at her location. The union representative's submission on behalf of the worker reviewed the earlier history of the worker's claim. He noted that when the worker first reported her workplace accident in 2009, she was diagnosed with a shoulder strain. She was tried in various modified duty jobs, some of which caused her pain and discomfort. It became clear that the worker was not healing as a shoulder strain would be expected to heal. Seven months post accident, on November 1, 2009, an MRI was conducted which revealed that the worker had a torn rotator cuff. After the tear was diagnosed, the worker's modified duty placements were much lighter. In May 2010, corrective surgery was performed and she was off work until August 2010. When she returned to work, the worker performed very light duties in the laundry area until May 2011. The plan was for her to work these very light duties until her shoulder recovered sufficiently to return to her regular duties. However, when she did return to her regular work, she felt a sharp increase in her shoulder pain and was re-assigned to a job in detection, where she was required to mark defective product. She performed these duties for approximately two months until the latter part of June 2011. Once again, the worker tried to resume her regular duties, but lasted only one hour and experienced an increase in pain. She was then moved to another modified job consisting of counting spaces with a clicker. She did this job for approximately 18 months until November 2012. That was when she was assigned to the heart fat removal job.

Just prior to this assignment, the WCB established permanent restrictions of no lifting more than 5 pounds with the right arm and limited working with the right arm above shoulder height. The worker found these work requirements to be painful on her shoulder and it alarmed her. She complained to both her employer and the WCB and eventually saw her family doctor over it. The family doctor filled out a new functional abilities form, with two added restrictions: avoid working in a cold environment and avoid repetitive shoulder movements. When the worker brought in the new functional abilities form to work, the employer did not change her job assignment but instead directed the worker to the same job that had been causing her distress.

It was submitted that not only did the accommodation offered by the employer cause the worker distress to her shoulder, it also did not respect the right epicondylitis which was a secondary injury related to the worker's compensable shoulder condition.

Overall, it was submitted that when one looks at the totality of the evidence, it was apparent that the worker's family physician had support for his recommended restrictions and when it is considered that the worker had a permanently torn rotator cuff, along with epicondylitis, the family physician's recommendations for restrictions were more credible than those of the WCB medical advisor. Similarly, when considering the muscle groups that are required to perform the heart fat job, it was apparent that the WCB was correct in stating that the job of heart fat removal violated the restrictions of avoiding repetitive movements of the shoulder. While the worker was performing this work at the time of the hearing, she had an informal arrangement with her supervisor that allowed her to take breaks, work at her own speed, and essentially slow the whole process down to do what she was able. This was different than the requirement in November 2012. Even with the reduced requirement, the worker still had to work in pain. She continued to seek regular medical attention from her family physician and had to take medication on a regular basis just to do the work.

Analysis:

The issues before the panel are whether or not the work accommodation beginning in November 2012 was within the worker's restrictions and whether or not the worker is entitled to wage loss benefits for the period November 21, 2012 to June 3, 2013. In order for the employer's appeal to be successful, the panel must find that the effects of the worker's compensable injury did not disable her from performing the work accommodation provided by the employer. We are able to make that finding.

At the outset, the panel wishes to address the argument put forward by the union representative that the worker's compensable injury included not only the right shoulder condition, but also a secondary right epicondylitis injury. The panel notes that by letter dated November 30, 2011, the WCB adjudicator determined that responsibility was not accepted for the worker's reported right elbow and neck complaints. This decision has not been appealed to Review Office. As such, the Appeal Commission does not presently have the jurisdiction to change this determination and we must decide this appeal based on the assumption that the compensable injury is limited to the right shoulder.

In addition, the panel notes that when revising the worker's restrictions in November 2012, the family physician made no reference to difficulties regarding the right elbow. In the absence of any mention of limitations arising from the right elbow, the panel does not accept that the condition of the worker's right elbow had any bearing on her ability to perform the work accommodation beginning in November 2012.

We turn now to consideration of the worker's restrictions. There does not appear to be any dispute regarding the original permanent restrictions of no lifting over 5 pounds with the right arm and limited right arm lifts above shoulder height. Both the uteri and the heart fat removal positions respected these restrictions.

With respect to the restriction to avoid working in a cold environment, the question is whether or not the 17 degree Celsius workspace where the worker was performing the heart fat duties constituted a "cold environment" in which it was beyond the worker's physical capabilities to work. While the panel acknowledges that the worker's native country was a tropical climate, we nevertheless find that a 17 degree Celsius environment is not so cold as to disable the worker from performing her duties. It was available to the worker to wear additional clothing to keep her warm. The panel also notes that when previously performing other modified duties (detection/marking), the worker was stationed in the same area and was able to remain at that position for four to five months, without the cold affecting her ability to function. On a balance of probabilities, the panel finds that the work accommodation was not in a cold environment which contravened the worker's restrictions.

With respect to the issue of repetitiveness, the question is whether or not the heart fat position is repetitive to the point where it is beyond the worker's capabilities. There does not appear to be any real contention that the uteri position was not highly repetitive.

The family physician indicated that the heart fat position could not be tolerated by the worker because of the high repetition movement involving the shoulder. The WCB orthopedic consultant disagreed with this statement and opined that the worker should be capable of performing all of the requirements of the heart fat job. The rationale given was that the supplemental restriction regarding repetitiveness was added in response to the worker's stated loss of function, and the orthopedic consultant considered this statement to be unreliable, based on earlier medical examinations of the worker.

By the time of the hearing on March 6, 2014, the worker had returned to the workplace since June 4, 2013 and had been performing the heart fat duties for nine months. She had an informal arrangement with her supervisor to take breaks as needed and to perform as much work as she could manage. It is notable that the heart fat position was a "non-yield" task, which meant that it was not critical that the worker remove the fat from each and every carcass which passed by her. The worker's evidence at the hearing was that in one minute, of the 22 carcasses that went by, she would remove heart fat from approximately 12 to 15 of them. When she felt that she needed to take a break, she would let up to two or three go by. Her evidence was that her arm hurt while she was at work, but she would do whatever she could.

The panel takes note that on February 26, 2014, the worker was examined by a WCB medical advisor for assessment for a Permanent Partial Impairment ("PPI") award. A previous attempt had been made in April 2013 to conduct a PPI examination, but the assessment could not be completed on the worker at that time due to symptom limited mobility of the right shoulder. On February 26, 2014, the worker reported that her shoulder was less painful and she had more movement as compared to the April 2013 examination. The assessment was able to be completed. In the panel's opinion, the fact that the worker's shoulder had significantly improved during the time period when she has been performing the heart fat duties suggests that the repetition required by the job duties did not aggravate or enhance or have a negative impact on the worker's shoulder condition. Her condition improved, despite the fact that she was performing the motions on a full-time basis. With the benefit of hindsight, the panel finds that the work accommodation did not exceed the worker's restriction against high repetition movement of the shoulder.

For the foregoing reasons, the panel finds that the work accommodation beginning in November 2012 was within the worker's restrictions and she therefore was not entitled to wage loss benefits for the period November 21, 2012 to June 3, 2013. The employer's appeal is allowed.

Panel Members

L. Choy, Presiding Officer
M. Bencharski, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 2nd day of May, 2014