The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he did not have a loss of earning capacity after August 21, 2012 in relation to his compensable injury. A hearing was held on May 20, 2014 to consider the matter.

Issue

Whether or not the worker is entitled to wage loss benefits after August 21, 2012.

Decision

That the worker is not entitled to wage loss benefits after August 21, 2012.

Decision: Unanimous

Background

On July 13, 2012, the worker suffered an injury to his right shoulder during a training program at work. The worker described the injury as follows:

...I was selected to drag someone on the ground (fellow worker - fire marshall) and I took the person (mannequin) from the bed and put them on the floor on a bed sheet and I was pulling on the bed sheet. There was 2 of us pulling on the bed sheet with a person laying on it, I was pulling with my right hand, I was walking forward with my right arm behind me and pulling behind me and I felt a pop in my right shoulder. I didn't think it was serious and I went back to work after and I started feeling my right arm was warm and something was wrong, but I kept working, I didn't realize it was serious and later I realized it was serious. This happened around 3:30 pm, this was when I started my shift.

A doctor first report showed that the worker attended for treatment on July 16, 2012 indicating that he was pulling someone on the floor during a drilling exercise. The worker complained of "pain in the neck, right shoulder shooting to forearm." The diagnosis was a brachial plexus

injury. The treating physician was of the opinion that the worker should not lift for at least two weeks and that he would benefit from an office job.

The claim for compensation was accepted and the worker returned to work on July 20, 2012 performing full time modified duties that involved resident audits. On July 24th, the worker ceased working due to arm symptoms.

When next seen on July 25, 2012, the worker reported that he was writing something when he experienced severe pain in his right shoulder/plexus shooting down his arm. The worker had tenderness on firm palpation over the right shoulder and pain on deep palpation in the brachial plexus region. A medical note dated July 24, 2012 indicated that the worker was unfit for work from July 25 to July 31, 2012.

On August 13, 2012, the employer confirmed that the worker left work on July 24 because of pain complaints. The light duties he performed included paperwork and feeding patients.

On August 14, 2012, the treating physician reported that the worker had right shoulder pain with swelling of the joint and limited range of motion.

On August 14, 2012, the worker underwent an MRI of his right shoulder which showed that the rotator cuff tendons were intact and rotator cuff muscle bulk was normal. The acromioclavicular joint had a normal appearance and the acromion was in a neutral position. The long biceps tendon was intact and normally positioned. No muscular strain was demonstrated and there was no evidence of nerve entrapment.

When seen by a physiotherapist on August 15, 2012, the worker was diagnosed with a right shoulder sprain/strain. On August 21, 2012, the treating physiotherapist advised the WCB that the worker's current presentation was not accounted for in relation to the noted mechanism of injury and the time that had elapsed.

In a note to file dated August 22, 2012, the WCB adjudicator recorded that she spoke with an employer representative to clarify the code green practice drill and the mechanism of injury.

On August 23, 2012, the worker was advised that the medical information did not support total disability and that the WCB was unable to extend full wage loss benefits. The worker indicated that he was having difficulties with the muscle in his hand and was losing feeling in his hand.

A WCB medical advisor reviewed the claim file on August 28, 2012 and opined that the current diagnosis was nonspecific right shoulder pain, that the current presentation was not pathoanatomically related to the workplace injury, and that total disability was not demonstrated by the clinical presentation or MRI results.

By letter dated September 4, 2012, the worker was advised that no responsibility would be accepted for his time loss from work after July 19, 2012 or for medical treatment after September 4, 2012. This was based on the normal MRI results and the fact that a pathoanatomical injury to the right shoulder was not identified in relation to the workplace injury.

In a telephone conversation with the case manager on September 13, 2012, the treating physician agreed that the worker's diagnosis had been variable but felt that it could be related to a nerve impingement in his neck.

On October 30, 2012, the worker underwent a cervical CT scan which showed no nerve root compression at any of the cervical vertebrae.

On November 7, 2012, the treating physician referred to her examination findings of July 16 and July 29 with regards to the worker's neck and right shoulder and opined that the worker's benefits should be reinstated and that he required further physiotherapy treatment.

On November 8, 2012, the WCB case manager advised the worker that the new medical information did not add any new significant clinical information regarding his neck or shoulder to warrant a change to the previous WCB decision. He said the WCB remained of the view that a pathoanatomical injury to the right shoulder or cervical spine could not be identified in relation to the workplace injury of July 13, 2012.

On February 6, 2013, the worker's representative requested reconsideration of the September 4, 2012 decision and provided a letter from the treating physician dated January 22, 2013. It was argued that the medical information from the treating physician supported total disability beyond July 19, 2012 related to the worker's right shoulder injury and that the worker should be entitled to a full session of physiotherapy treatment (up to October 3, 2012) to minimize the impact of his injury.

On February 26, 2013, the WCB case manager was unable to establish that the worker was disabled beyond July 19, 2012 as a result of his compensable injury or that the compensable injury required physiotherapy treatments beyond August 22, 2012.

On March 11, 2013, the worker was seen by a physical medicine and rehabilitation consultant.

On May 10, 2013, the WCB case manager determined that the March 11, 2013 report did not contain a diagnosis or document any objective medical findings to support the worker's claim of disability and that the decision to end benefits would stand.

The worker's representative submitted a May 22, 2013 report from the treating physical medicine and rehabilitation consultant to support that there was a relationship between the worker's current

neck and shoulder difficulties and the compensable workplace accident. On June 13, 2013, the WCB case manager stated that the report merely restated the worker's belief but made no comment regarding the veracity of same. On June 19, 2013, the worker's representative appealed the WCB decisions of May 10 and June 13, 2013 to Review Office.

On October 3, 2013, Review Office reviewed the file information which also included a submission by the employer's representative dated July 26, 2013 and a further submission by the worker's representative dated August 7, 2013.

Review Office determined that the worker continued to have a loss of earning capacity related to his compensable injury after July 19, 2012 and that the worker's compensable injury had resolved by October 30, 2012. The decision to pay wage loss benefits beyond July 19, 2012 was based on the medical evidence from the worker's treating physician who felt that the worker was not capable of performing any work until further investigations were carried out to diagnose a potential neurological injury. The decision to end benefits on October 30, 2012 was based on MRI and CT scan results which were negative for any muscle strain injury, neurological injury or other abnormality to account for the worker's symptoms. Review Office also concluded that by August 22, 2012, the worker had been fit to return to work with restrictions, however, it was not clear as to whether or not the employer had suitable duties available to the worker at this time or if any such offer of suitable duties were made to the worker.

The WCB subsequently contacted the employer and the worker to ascertain what efforts were made to facilitate a return to work on August 22, 2012.

On October 15, 2013, the worker advised the WCB that he provided a doctor's note to his employer in November 2012 and that the note did not outline restrictions. He said his employer would not allow him to return to work and they referred him to another doctor who told him that he was not fit to return to work until he had physiotherapy. The worker indicated that he was not offered any alternate or modified duties by his employer.

In a memo dated October 16, 2013, the case manager documented the following information that she obtained from the employer:

Note dated August 14, 2012 - unfit August 14 to September 14

Note stated patient waiting for physiotherapy assessment and MRI

October 12 was next note received. Stated totally disabled

November 7, 2012 note said patient was seen, improved, light task duties recommended. Office duties, no lifting more than 5 lbs.

All notes to this point were [treating physician]

Quit job on July 26, 2013

[Employer] confirmed [the worker] would have been offered light duties immediately had he brought in a note advising that he could return to work. If the audits were already completed he would have been able to feed residents, socialize with residents, provide oral, nail and hair care, tidy night tables, put away light clothing in drawers, pass out juices or snacks.

On October 17, 2013, the WCB determined that the worker was not entitled to wage loss benefits after August 21, 2012 based on the following rationale:

• the worker abandoned his July 24, 2012 return to work program and only contacted his employer once on August 14, 2012 to provide a medical note. He made no further attempts to contact the employer to re-establish a return to work plan until November 2012.
• the worker was aware that the WCB did not support total disability and he was aware that his employer had suitable modified and/or alternate duties available. The employer had a long history and practice of providing suitable accommodations to its employees.
• there was no loss of earning capacity as of August 22, 2012.

In a submission dated October 24, 2013, the worker's representative outlined the position that the accident employer did not make any tangible offer to accommodate on or after August 22, 2012. To support the position, the worker's representative referred to the information obtained by the case manager from the employer on October 16, 2013. She stated that the employer confirmed that the medical notes did not support any return to modified or alternate work until November 2012. The employer also confirmed that there were no offers of accommodation made to the worker, either verbally or in writing, on or after August 22, 2012. The first actual return to work program started on July 15, 2013. Based on Review Office's direction, the evidence supported that there was an entitlement to wage loss benefits from August 22, 2012 to October 30, 2012.

On December 23, 2012, Review Office determined that the worker did not have a loss of earning capacity after August 21, 2012 due to his compensable injury. Review Office acknowledged that the employer did not formally offer the worker modified duties on or around August 22 but it also disagreed with the treating physician that the worker was unable to work in any capacity after this time. Review Office did not find evidence to show that the employer would not have been able to provide the worker with alternate duties in August 2012 as it was one month prior (July 2012).

On January 10, 2014, the worker's representative 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.

The worker has an accepted claim for a workplace injury and is seeking benefits beyond August 21, 2012.

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 outlines the WCB's approach to the return to work of injured workers through modified or alternate duties with the accident employer.

Worker's Position

The worker participated in the hearing by teleconference. He was represented by a worker advisor who made a submission to the panel. The worker and his representative answered questions posed by the panel.

The worker's representative noted that the October 3, 2013 Review Office decision determined that wage loss benefits were payable from July 19, 2012 to October 30, 2012. She noted that the WCB sought clarification of the Review Office decision regarding the payment of wage loss after August 22, 2012. The clarification indicated that:

"The Review Office verified that payment of wage loss after August 22/12 is dependent upon whether, or not the accident employer had made a tangible offer of accommodation, either verbally, or in writing, on or after August 22, 2012."

The worker's representative submitted that no offer was made to the worker and that he was entitled to further benefits. She also submitted that the worker continued to be symptomatic after August 22, 2012. She referenced reports from the worker's physician, physiotherapist and a physical medicine and rehabilitation consultant in support of the worker's claim that he was unable to return to work. She submitted that the medical information confirmed the worker continued to have symptoms and did not authorize the worker to return to work.

The worker advised that he stopped using his arm after he tried modified duties in July 2012. Regarding the type of injury he sustained, the worker said that the physiotherapist explained that when a person has a muscle problem the person can keep straining their arm, making it worse. He advised that he did not have clearance from his physician to return to work.

In answer to a question, the worker advised that the last physician he saw was the physical medicine and rehabilitation consultant on March 11, 2013. He also advised that he received physiotherapy treatment in 2013 for a one month period at 4 hours per day. The treatments were aimed at preparing him for a return to work. He said by the end of the treatments he was about 80% recovered.

Employer's Position

The employer was represented by an advocate. The employer's RTW (return to work) Coordinator was also present. The employer representative advised that the employer agrees with the December 23, 2013 Review Office decision that the worker was not entitled to wage loss benefits after August 21, 2012.

The employer representative reviewed the July 16, 2012 report from the worker's treating physician indicating the worker was fit for modified duties. She advised that modified duties were provided but that the worker stopped work after 2 days and provided a new report from his treating physician that indicated he was unfit for work. She said the worker's symptoms worsened but that there was no medical explanation for the worsening. She noted that an MRI was conducted on August 14, 2012 which demonstrated no abnormality of the shoulder. She also noted the WCB physiotherapy consultant's August 21, 2012 memo indicates that the worker's physiotherapist could not account for the worker's symptoms given the mechanism of injury and a WCB medical advisor's August 22, 2012 opinion that the medical evidence on file did not support total disability.

Regarding the question of whether the employer had made a tangible offer of accommodation, either verbally, or in writing, on or after August 22, 2012, the employer representative said that it is clear on the file that the employer already provided the worker with sedentary duties which continued to be available had he provided a note to the employer indicating that he was able to resume working.

The employer's representative suggested that the worker is aware of the employer's return to work program.

Analysis

The issue before the panel is whether or not the worker is entitled to wage loss benefits after August 21, 2012. In order to determine the appeal, the panel must consider whether or not the worker suffered a loss of earning capacity due to his workplace injury beyond this date. On a balance of probabilities, the panel finds that the worker did not have a loss of earning capacity as a result of his workplace injury and is not entitled to wage loss benefits after August 21, 2012.

The panel notes that the worker has an accepted claim for a shoulder strain. The panel has reviewed the August 29, 2012 report of the worker's physiotherapist. He notes "worsening neurological symptoms over the past couple wks." These included losing sensation in his right hand and signs of radiculopathy. The panel is not able to relate these symptoms which were identified after August 21, 2012 to the July 13, 2012 workplace injury.

Upon review of the medical information, the panel finds that as of August 21, 2012, the worker would have been able to RTW to modified duties which had previously been offered. The panel relies on the August 28, 2012 opinion of the WCB medical advisor. The medical advisor commented that:

"1. The current diagnosis is nonspecific right shoulder pain.

2. On balance the worker's current presentation is not pathoanatomically related to the

workplace injury...

3. Total disability is not demonstrated by the clinical presentation or the MRI

results..."

The worker's representative submitted that the worker had medical support for his inability to return to work. The panel acknowledges that there were reports indicating that the worker could not work but the panel was not able to relate the findings in these reports to the workplace injury as noted above.

Regarding the assertion that there must be a formal offer of modified duties, the panel finds there was an offer which the worker initially accepted in July 2012 when he returned to work on modified duties. Based upon the evidence before it, the panel finds that the offer continued to be available to the worker by his providing a medical report indicating that he was fit to return to light duties employment. The worker did not provide such a report. Rather, the medical information he provided indicated that he could not return to work. Unfortunately, the reasons advanced as to why he could not return to work are not related to his workplace injury. The panel finds that the employer met its obligation to offer suitable duties that respected the restrictions associated with his compensable injury.

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 6th day of June, 2014