The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing decisions made by the Workers Compensation Board ("WCB") regarding work restrictions related to his compensable shoulder condition and whether he was capable of minimum wage work within his restrictions. A hearing was held on September 16, 2014 to consider the matter.

Issue

Whether or not the worker's restrictions are appropriate; and

Whether or not the worker is capable of minimum wage work within his restrictions.

Decision

That the worker's restrictions are appropriate; and

That the worker is capable of minimum wage work within his restrictions.

Decision: Unanimous

Background

On April 27, 1989, the worker injured his right shoulder in a work-related accident. His claim for compensation was accepted by the WCB and benefits and services were paid to the worker while he underwent treatment for his shoulder condition. Between 1991 and 1992, the worker was provided with vocational rehabilitation assistance as it was determined that he would not be able to return to his pre-accident employment due to the nature of his shoulder condition. Work restrictions during this time were as follows: to avoid climbing, heavy lifting and working with the right arm above shoulder level.

By January 16, 1992, the WCB deemed the worker capable of earning $320.00 per week. On June 14, 1993, the deem increased to $328.00 per week. In 2006, the worker was provided with full compensation benefits due to increased right shoulder symptoms.

On May 24, 2011, the worker underwent revision right total shoulder arthroplasty followed by physiotherapy treatments.

In a follow up report dated June 9, 2011, the treating orthopedic surgeon stated: "I have told him that he has to work hard to get full range of motion and function. The time to do that is now. He will follow up at the 3-month mark."

On June 14, 2011, the worker's claim was considered by Review Office as the worker argued that he should not have been deemed on January 16, 1992. Following review of all file information which included consideration of the worker's past participation in the vocational rehabilitation process, Review Office determined that it was appropriate to implement the deem, however, the deem should have been at minimum wage.

On June 22, 2011, a WCB orthopedic consultant reviewed the file information and noted that the worker's restrictions leading up to the revision surgery were no above shoulder use, no lifting, pushing/pulling and no grasping, no activity with extended arm. He recommended that the current work restriction should now be no resisted right shoulder activities.

On June 29, 2011, the WCB advised the worker that his current temporary work restriction was no resisted right shoulder activities and that the restriction would be reviewed again in two months.

In a follow-up report dated August 18, 2011, the treating surgeon noted that overall the worker was doing better but he still had difficulties with stiffness and night headaches.

On September 16, 2011, the treating surgeon stated that he had no issues with the worker participating in sedentary classroom activities of at least 20 hours per week.

On October 12, 2011, the WCB orthopedic consultant reviewed the medical information and stated:

It is now five months since right total shoulder arthroplasty surgery. The reports from the orthopedic surgeon are cautiously optimistic and he noted on August 18, 2011: "He has to keep working and it may be a 1-2 year process."

It is now coming up to five months since surgery. Dr. [name], in his report of August 18, 2011, noted flexion 80º degrees, external rotation 30º degrees, and internal rotation to the buttock. The latest physiotherapy report of September 13, 2011 identifies flexion 95º active, 115º passive, abduction 45º active, 95º passive and external rotation 50º. This represents a definite improvement and it appears the claimant has informed WCB that he is improving.

...

From this information, it appears the claimant has advanced beyond the May 24, 2011 pre surgery status. Further, considering the response of the orthopedic surgeon involved, the claimant should be advised to progress in a VR program of at least 20 hours per week as soon as can be arranged.

The worker's file was again reviewed by the WCB orthopedic consultant on October 26, 2011 regarding current work restrictions. The consultant stated that the worker's current work restrictions should be changed from "No resisted right shoulder activities" to the following restrictions:

• no use of ladders
• no working at heights
• no resisted activities of right shoulder
• avoid activities requiring extreme range of motion of the right shoulder

On October 27, 2011, the worker was advised of his new work restrictions as outlined by the WCB orthopedic consultant on October 26, 2011.

By letter dated November 2, 2011, the WCB advised the worker of the WCB medical opinion outlined on October 12, 2011. The letter further stated:

Given the similarity between your present permanent restrictions and your 1991 restrictions on which you were deemed capable of earning minimum wage, and the fact you have advanced beyond your May 24 2011 pre-surgery status, past benefits of $2,600.78 (SAC benefits based on a 0 deem) have now been reduced to $1,396.11 commencing November 2011 (SAC benefits based on a minimum wage deem i.e. $10/hr.). As a result, there would be no further entitlement to vocational rehabilitation benefits and services.

On November 17, 2011, the treating orthopedic surgeon reported that the worker's pain was better than pre-op but that he continued to have significant deltoid dysfunction and atrophy. The surgeon also stated: "I have explained to him that I can do nothing more and the rest is up to him...He can go back to work as listed by WCB in their letter of October 27th with the addition of a "No weight greater that 1 lb. in his right arm" and "No repetitive motion with his right shoulder." He definitely cannot do autobody work, but can go back to office work or be retrained in some area."

On December 9, 2011, the WCB orthopedic consultant noted the added restrictions which were outlined by the treating orthopedic surgeon on November 17, 2011. The consultant stated: "I would have thought that restriction #3 "no resisted activities right shoulder" would address the new recommendation regarding weight, but as this is the direct request of the orthopedic surgeon, the two additional restrictions can be added, also permanent."

By letter dated December 15, 2011, the worker was advised that his permanent restrictions were:

• no use of ladders
• no working at heights
• no resisted or repetitive activities of right shoulder
• avoid activities requiring extreme range of motion of the right shoulder

By letter dated December 21, 2011, a WCB case management supervisor confirmed to the worker's representative that the WCB considered the worker to be suitable for minimum wage work within the restrictions outlined in previous WCB correspondence.

On March 20, 2012, the WCB's orthopedic consultant asked the treating orthopedic surgeon to provide a final opinion with respect to work restrictions for the worker. In a response dated March 22, 2012, the treating orthopedic surgeon stated:

...firstly I do not agree with the shoulder being braced, as I don't think any functional recovery is going to proceed once that has been applied. I have encouraged the patient to stay out of his sling and encourage this not to happen.

I agreed with the "no resisted or repetitive activities of right shoulder" and would think that a 1 lb restriction would be covered by that. Static carrying, he can carry whatever he can tolerate within common sense. If common sense is not applicable, I would guess the 1 lb restriction would have to stay.

The WCB provided the worker with a copy of the orthopedic surgeon's report of March 22, 2012. On April 25, 2012, the WCB advised the worker that his permanent work restrictions were the same as outlined in a previous letter of March 13, 2012:

• no use of ladders
• no working at heights
• no resisted or repetitive activities of right shoulder
• avoid activities requiring extreme range of motion of the right shoulder

On September 13, 2012, the worker asked Review Office to reconsider the decisions made by primary adjudication dated December 15, 2011 and December 21, 2011.

On October 25, 2012, Review Office determined that the worker's current restrictions were appropriate and that the worker was capable of minimum wage work within his restrictions.

Review Office stated it was unable to find that the worker was totally disabled and unemployable as a result of his shoulder condition based on review of WCB medical opinions and opinions on file from the treating physiotherapist and orthopedic surgeon along with video surveillance from December 31, 2010 to January 21, 2011. Review Office noted that the worker's right shoulder after the May 24, 2011 surgery was an improvement to his pre-surgery status at which time the worker was observed performing his day to day tasks with little to no difficulties.

Review Office also noted that minimum wage positions required very little transferable skills and that many of these positions were not labour intensive and were classified as light to sedentary in nature requiring no lifting, pushing or pulling of any kind. Review Office noted that there was no medical information to suggest that the worker's other health issues had prevented him or were currently preventing him from working in a minimum wage job. Review Office felt that the worker's current restrictions of no use of ladders, no working at heights, no resisted or repetitive activities of the right shoulder and avoid activities requiring extreme range of motion of the right shoulder were reasonable and medically accounted for in relation to the April 27, 1989 accident.

On June 16, 2014, the worker's advocate filed an appeal with the Appeal Commission requesting an oral hearing to consider the issues of whether the worker was entitled to full wage loss benefits beyond November 2, 2011 and whether or not the worker could realistically participate in the labour force on a full time basis.

On June 19, 2013, the treating orthopedic surgeon wrote the family physician stating: "My position remains the same as my last note to them where he could certainly do light duty office work where he is not using his arm for anything physical with no weight greater than 1 lb. in his right arm. He obviously cannot lift at or above shoulder height. I have encouraged him to concentrate on regaining function himself and regaining activity during his days that takes his focus away from his shoulder."

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 Board Policy 44.80.30.20 (the “Deeming Policy”) deals with “Post Accident Earnings - Deemed Earning Capacity.” Loss of earning capacity is defined as the difference between a worker’s average earnings before an accident and what the worker is determined or deemed to be capable of earning after the accident. Among other things, the Deeming Policy specifically describes how deemed earning capacity will be determined for individual claims and states that it must be demonstrated that a deemed earning capacity is reasonable and realistic. Where deemed earning capacity is used, it means that wage loss benefits will be paid as if the worker were actually earning the deemed amount.

Worker’s Position

The worker was assisted by legal counsel at the hearing. The written submission prepared by legal counsel framed the issues in this appeal as whether or not the worker is entitled to full wage loss benefits beyond November 2, 2011 and whether or not the worker could realistically participate in the labour force on a full time basis. The Appeal Commission's jurisdiction is limited to hearing appeals on matters which have previously been considered by the WCB. The issues as framed by legal counsel do not exactly accord with the issues previously considered in the Review Office decision which gives rise to this appeal. The Appeal Commission's jurisdictional limits were discussed at the hearing. There is, however, significant overlap between the two approaches to framing of the issues and the panel is satisfied that it has the evidence it requires in order to determine this appeal.

It was submitted by legal counsel that the worker ought to be entitled to full wage loss benefits because the residual effects of the April 1989 workplace accident left the worker totally disabled. Although the worker had suffered injury on two prior occasions, the April 1989 accident was significant and the resulting shoulder separation would have been the same result even if the prior shoulder injuries had not occurred.

During the period 1999 to 2006, the worker felt he had no choice but to work in the auto body industry and was so employed. The effect of this employment was that the worker used his shoulder every day in a way which was inappropriate in relation to his residual shoulder condition and restrictions. It was submitted that these years of work had a detrimental effect on the worker's shoulder and that by 2006, his shoulder simply wore out and he was left with bone on bone grinding. The worker was critical of the WCB for failing to provide him with vocational rehabilitation during this time period and felt that the WCB should not have allowed him to perform this work which was burdensome on his shoulder.

Eventually, the worker could no longer continue to work in the auto body industry and he underwent surgeries to his shoulder in December 2006 and March 2009. In 2010 the WCB began to discuss vocational rehabilitation with the worker. The worker was sent to an employment preparation centre but it was determined that it was premature to start vocational rehabilitation as the worker continued to experience pain in his shoulder and it was hoped that an upcoming scheduled surgery would help resolve the symptoms. Unfortunately, the surgery did not fix the worker's shoulder and the worker was disappointed that the treating surgeon did not perform the procedure that the worker thought he was going to perform. At the time of the hearing, the worker was awaiting a consultation with another orthopedic surgeon to look into the possibility of putting in a different type of joint into the worker's shoulder.

It was submitted on behalf of the worker that he was totally disabled from working. While the worker was able to achieve a degree of functional ability on "good days" by using pain medication, this was very different than being able to commit to a full time vocational rehabilitation plan or a full-time job. The worker's position was that he had not achieved the level of recovery that the WCB says he achieved, that being an improvement from his pre-surgery condition. There was no rationale for cancelling the worker's vocational rehabilitation and deeming him at minimum wage. At the very least, it was submitted that the worker should have been put back in vocational rehabilitation on a limited basis and continued on for a one to two year process. One to two years was the timeframe for healing which was mentioned on the WCB file.

At the time of the hearing, the worker had changed his longtime painkiller prescription to a stronger medication. It started with two tablets a day and had progressed up to eight. It was submitted that the worker was living an "artificial existence" and that once the pills stopped working, the worker would not be able to remain in the workforce unless the next orthopedic surgeon was able to put in a new shoulder joint and somehow bring the worker back to some sort of acceptable existence where he could commit to regular employment. As things stood, it was argued that the worker was unemployable because he had good and bad days and may not be able to report for work if he had a bad night or because he was in too much pain.

On the issue of the appropriateness of restrictions, it was submitted that realistically, the worker's right arm was rendered useless for working. The overriding issue, however, was not mechanical. It was more a question of being able to function in life without the assistance of pain-killers. It was a global issue of the pain and the insomnia and the side effects from the shoulder injury, coupled with other workplace injuries to his toes and knee.

Analysis

The two identified issues before the panel are whether or not the worker's restrictions are appropriate and whether or not the worker is capable of minimum wage work within his restrictions. We will address each one separately.

Whether restrictions are appropriate

The first issue is whether or not the worker's restrictions are appropriate. In order for the worker's appeal to succeed, the panel must conclude that the medical evidence supports the finding that the worker's restrictions do not adequately accommodate the permanently disabling effects of the worker's compensable right shoulder condition. On a balance of probabilities, we are not able to reach that conclusion.

The permanent restrictions outlined by the WCB for the worker are as follows:

• no use of ladders
• no working at heights
• no resisted or repetitive activities of the right shoulder
• avoid activities requiring extreme range of motion of the right shoulder

On the WCB file, there was some debate as to whether or not these restrictions encompassed the specific restrictions of: "no weight greater than one pound in the right arm and no repetitive motion with the right shoulder." For clarity, it is our opinion that these specific restrictions are included in the more wide-ranging restriction of: "no resisted or repetitive activities of the right shoulder."

At the hearing, the worker's evidence was that his shoulder condition continued to cause him pain and limitation. He had recently switched to a stronger pain medication and the amount he was taking had been steadily increasing. While taking the medication, the worker found he was able to function, but as soon as the medication wore off, he was not able to do much.

In order to assess the appropriateness of the restrictions, the panel referred to the medical opinions on file. The worker's last major medical procedure was on May 24, 2011 when he underwent revision right total shoulder arthroplasty. Following the surgery, the worker participated in physiotherapy and experienced a slow but progressive recovery. As of October 12, 2011 (five months post-surgery), the WCB orthopedic consultant noted that the physiotherapy reports showed definite improvement with the flexion, external rotation and internal rotation ranges of movement being advanced beyond the worker's pre-surgery status. Based on this information, the WCB orthopedic consultant outlined the restrictions which are reproduced above.

The worker's position was that he had not recovered from the May 2011 surgery to a level where he was improved over his pre-surgery condition. Based on the WCB orthopedic consultant's review of the measured ranges of movement reported by physiotherapy, we do not accept the worker's position. The clinical findings would suggest otherwise.

On November 17, 2011 the treating orthopedic surgeon's report from the six month follow-up examination indicated that the worker's pain was better than pre-operation however he continued to have significant deltoid dysfunction and atrophy. The treating surgeon opined that the worker could go back to work with the additional restrictions of no weight greater than one pound in the right arm and no repetitive motion with the right shoulder. The worker definitely could not return to autobody work but he could perform office work or be retrained.

An update from the treating surgeon dated June 19, 2013 indicated that since the worker was last seen in November 2011, his pain had been the same and he had made no progress. The treating surgeon could not give a mechanical reason for the pain and could only encourage the worker to work on pendular motion and active assisted motion. He confirmed his opinion that the worker could do light duty office work where he was not using his arm for anything physical.

The most recent medical report on file is a doctor's progress report from the worker's attending family physician dated June 10, 2014. The progress reports through early 2014 all report persistent pain and limitation, with some increasing pain in May and June 2014. The worker had requested a second opinion from a specific orthopedic surgeon who specializes in shoulder injuries, and a referral had been made. At the hearing, the worker advised that he had no idea when he might be able to see this orthopedic surgeon as he has an extremely busy practice.

At the hearing, the worker was asked whether his attending physician had talked to him about his functional abilities or about the number of hours he could work or whether his medications affect his ability to work. He indicated that he had not had any such conversations with his physician. There is therefore no medical opinion which would support the imposition of further restrictions.

Based on the foregoing, the panel finds that there is insufficient evidence to support a change to the restrictions. In our view, the restrictions adequately address the worker's symptoms of pain and limited mobility in his right shoulder by essentially restricting any resisted or repetitive activities, or extreme range of motion with the shoulder. While the restrictions do not prohibit any use of the right arm, the panel finds that the worker is capable of some limited use of his right arm. His evidence at the hearing was that he is capable of performing activities of daily living and as well is capable of assisting with the upkeep and maintenance of his household by performing such tasks as mowing the lawn, vacuuming and washing ceilings. He still participates in some limited recreational activities such as fishing (no netting) or short (half hour) snowmobile rides. He is able to drive a vehicle for two hour stretches. The panel acknowledges the worker's evidence that he can only do limited amounts of these activities on his "good days" but we find that this nevertheless is indicative of some limited degree of functional use of the right arm. His right arm is not totally ineffectual.

The panel therefore finds that the worker's restrictions are appropriate. The worker's appeal on this issue is dismissed.

Whether capable of minimum wage work within restrictions

The second issue before the panel is whether or not the worker is capable of minimum wage work within his restrictions. In order to decide the appeal, the panel must consider the evidence regarding the worker’s post-accident condition and abilities and determine whether the worker is capable of earning at least this amount or whether his compensable injury disables him from achieving this level of earning capacity. After reviewing all of the evidence, the panel finds that the worker is capable of minimum wage work within his restrictions.

At noted above, the worker is capable of performing activities of daily living and is able to contribute to the upkeep of his household. He is not totally disabled. He has full use of his legs and left arm. He also has use of his right hand and elbow, so long as the shoulder is supported. The worker can use his right hand to write and type.

Through WCB vocation rehabilitation, the worker received some educational upgrading. To his credit, the worker has continued on his own to pursue further upgrading in basic math and English skills and has progressed up to a grade 9/10 level. A letter of commendation from his current educational instructors was read at the hearing and indicated that the worker's strengths are in his interpersonal skills and strong work ethic. Thus, although the worker has a limited educational background, the panel finds that he nevertheless possesses sufficient skill to participate in the workplace in a minimum wage occupation.

With respect to the submission that the worker could not report regularly to work, there is no medical opinion supporting reduced hours or any other limitation to the amount which the worker is capable of working.

At the hearing, the worker expressed a willingness to attempt to participate in the job force. He was receptive to some of the potential occupations suggested by the panel. He indicated that he was willing to try given the state that he is in now. At the time of the hearing, the worker was able to successfully manage his pain through the use of prescription medication. Concern was expressed by his legal counsel, however, regarding the efficacy of the pain relief medication in the future and what would happen "if" (or, as was submitted by counsel, "when") the medication no longer gave relief.

The panel cannot base its decision on speculation as to what will occur in the future. We can only base it on the evidence available to date. The evidence dating back to October 2011 is that the worker is capable of minimum wage work within his restrictions. We cannot say where his condition will take him in the future, but the evidence to date convinces us on a balance of probabilities that the worker is capable of minimum wage work within his restrictions. Legal counsel characterized the situation as a "conundrum" and suggested that the worker be afforded full disability benefits, and then any hours he is able to work be deducted from his benefits. The panel cannot find entitlement to benefits in this manner. The worker must make a bona fide attempt to apply himself in the workplace. The panel also notes that the position of full disability is at odds with a request for further vocational rehabilitation services.

As a final note, the panel acknowledges legal counsel's submissions regarding the relief sought by the worker. Vocational rehabilitation and any entitlement to benefits for impaired earning capacity resulting from other WCB claims are not issues which are before the panel and we therefore make no comment with respect to the worker's entitlements in that regard. It remains open to the worker to appeal these issues if he chooses to do so.

The worker's appeal is dismissed.

Panel Members

L. Choy, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 29th day of October, 2014