The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB")that he was capable of performing the modified duties offered to him by theaccident employer and therefore he was not entitled to wage loss benefits.  A hearing was held on April 23, 2015 toconsider the matter.

Issue

Whether or not the worker is entitled to further wage lossbenefits.

Decision

That the worker is entitled to full wage loss benefits from September 18, 2013 to January 1, 2014;

That the worker is not entitled to benefits from January 2 to January 28, 2014; and

That the worker is entitled to full wage loss benefits effective April 1, 2014.

Decision: Unanimous

Background

While employed as a truck driver on September 14, 2011, the worker suffered a compensable injury when he fell from his trailer and struck his left shoulder.

Based on MRI results, the worker was diagnosed with a large full thickness rotator cuff tear of the supraspinatus and subscapularis. File records showed that the worker was scheduled to undergo left shoulder surgery but due to several factors, surgery was not performed.

Permanent work restrictions were imposed related to his left shoulder. The worker also had previously imposed permanent work restrictions related to his right shoulder based on a prior 2001 WCB claim. The restrictions were as follows:

Left shoulder:

• Avoid use of the left arm above shoulder level
• Avoid heavy lifting or push/pull greater than 20 pounds with the left arm, on an occasional basis
• Avoid use of the left arm outside of the body envelope

Right shoulder:

• No lifting over 10 pounds overhead
• No lifting above 20 pounds
• No repetitive use of the right shoulder

In February 2013, the worker returned to work with the accident employer as a shunt truck operator. Within a few days after starting, the worker reported an increase in pain caused by operating the joystick and levers on the truck. Steering was also problematic. A worksite assessment performed on February 27, 2013 concluded that the shunt truck operator duties were beyond the worker's permanent restrictions.

In May 2013, a WCB vocational rehabilitation consultant considered the worker to be unemployable given that the accident employer was unable to accommodate him with a modified or alternate position which respected his compensable shoulder restrictions.

In July 2013, the accident employer advised the WCB that they had a permanent position for the worker that would meet his compensable restrictions. The job was a scale attendant. The duties included monitoring vehicles as they entered the yard, recording information, communication with the office via two way radio, printing scale tickets, faxing documents and monitoring gates to ensure they were closed.

The worker expressed numerous concerns with the job duties but commenced working as a scale attendant on August 21, 2013.

On September 10, 2013, the worker advised the WCB that he was still at work trying to manage but found it very difficult. He reported having minimal amount of sleep before his shift, high blood pressure and high pain levels. The worker stated that he was expected to work on Saturday and that the bus he takes did not run on Saturdays. On September 18, 2013, the worker advised the WCB that his doctor had taken him off work indefinitely. His last day at work was September 17.

In a memo dated September 27, 2013, the WCB case manager documented that she spoke with the worker's treating physician. The physician's opinion was that the worker suffered from chronic pain and any use of the arm would cause pain. The physician observed the worker putting on his jacket in the office and struggling with pain when doing this. The physician's opinion was that the worker's high level of pain originated from his use of the left shoulder and he was not able to partake in activities of daily living, let alone working.

In a letter dated October 2, 2013, the WCB advised the worker that no responsibility would be accepted for his time loss beyond September 17, 2013. The WCB's position was that the job position provided by his employer was within his current capabilities.

On December 20, 2013, the accident employer advised the WCB that they had a log book administrator position for the worker that would meet his compensable restrictions. The job duties involved feeding log books into a scanner for auditing and training to be provided. The job was available effective January 2, 2014. On January 8, 2014, the worker advised the WCB that he could not perform the modified duties offered by the employer until after he underwent his WCB approved shoulder surgery which was scheduled to take place later that month.

In a letter dated January 9, 2014, the worker was advised that the WCB considered him capable of performing the modified duties offered to him by his employer. As result of the decision, wage loss benefits were suspended effective January 2, 2014. On January 29, 2014, the worker underwent left shoulder surgery and was again placed on full wage loss benefits.

By March 2014, the WCB determined that the worker was fit for modified duties with the following work restrictions:

• No use of the left arm above shoulder level
• No lifting with left arm out of the body envelope
• May perform simple non repetitive lifts of under 5 pounds from floor to bench

On March 26, 2014, the worker advised the WCB that he did not feel capable of returning to modified duties on April 1, 2014.

In a decision dated March 26, 2014, the WCB advised the worker that the job duties of scanning logs into a scanner were within his compensable work restrictions and that wage loss benefits would be paid to March 31, 2014 inclusive as he was not mitigating the effects of his injury.

On May 29, 2014, the worker appealed the WCB adjudicative decision to Review Office stating he tried returning to work but that shoulder pain and high blood pressure prevented him from doing so. The worker asked Review Office to consider medical information from his doctor and physiotherapist in support of his position.

On September 18, 2014, Review Office determined that the worker was not entitled to wage loss benefits. Review Office said the worker had non-compensable conditions/barriers including diabetes, sleep apnea, headaches, elevated body mass index, high blood pressure and transportation difficulties. Nevertheless, the job duties proposed by the employer consisting of scale attendant and log book administrator were within the worker's restrictions even when taking the non-compensable considerations into account. Review Office therefore confirmed the WCB decisions of October 2, 2013 and January 9, 2014.

With respect to the adjudicative decision of March 26, 2014, Review Office felt the worker had recovered from shoulder surgery to the point where compensable restrictions were implemented. When the worker was advised that the log book position was available on April 1, 2014, the worker stated that he was struggling with the activities of daily living and was to commence physiotherapy and he was not going to return to work. The worker did not improve with physiotherapy and he continued to object to attempting a return to work advising that his blood pressure was the reason he was unable to attend the workplace. The WCB then obtained medical reports and a WCB medical advisor provided the opinion that the blood pressure was not an impediment to the proposed return to work. Review Office accepted the WCB medical opinion that the job offered by the employer was not expected to be any more taxing than basic activities of daily living.

Review Office concluded that the job offer beginning April 1, 2014, was within the worker's compensable restrictions. As it was expected to pay wages at his pre-accident level, there was no loss of earning capacity after April 1, 2014. The worker's cited condition for declining the position was his hypertension, a non compensable condition. The worker was therefore not entitled to wage loss benefits beyond March 31, 2014. On January 14, 2015, the worker appealed Review Office's decision to the Appeal Commission and a hearing was arranged.

Reasons

Applicable Legislation

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 to the 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. (emphasis in original)

The worker’s position:

The worker was self-represented at the appeal. The worker stated that he did not understand why his wage loss benefits were discontinued. His treating doctors and physiotherapists all stated that he was not able to work, yet the WCB said that he had to work. The worker submitted that on two occasions he tried to return to work but the pain prevented him from continuing. He stated that he would like nothing more than to be able to return to employment but the pain and limitation he experienced in both his shoulders prevented him from doing so. He wished that somehow his shoulder could be repaired so that he could be sent back to work.

The employer's position:

The employer was represented by its owner and an employer advocate. It was submitted that the employer had provided two offers of alternate employment to the worker which were within his restrictions. The duties were sedentary and respected the worker's compensable restrictions. The advocate noted that there were also non-compensable health issues affecting the worker which formed a barrier to employment. Even when these issues were considered, the alternate job duties were suitable. It was therefore submitted that wage loss benefits were not warranted.

Analysis:

The issue before the panel is whether or not the worker is entitled to further wage loss benefits. In order for the appeal to be successful, the panel must find that the effects of the compensable injury prevented the worker from performing the alternate duties offered by the employer. There are three relevant time periods. We will address each one separately.

September 18, 2013 to January 1, 2014

The alternate job position offered by the employer during this period of time was the scale attendant position. The worker attempted to perform these duties from August 20 to September 17, 2013, but found that he could not continue. At the hearing, the worker's evidence was that in order to fulfill the duties, he was required to write information on pages attached to a clipboard. He would have to hold the clipboard in his left hand and this would tend to aggravate his left shoulder. As the day progressed, the pain in his shoulder would steadily increase. At the hearing, the worker provided the panel with a copy of the log reports he completed on September 13 and 16, 2013. There were 77 and 83 entries, respectively, in the log reports and, as the worker pointed out, his handwriting became significantly messier by the end of the day. The panel accepts the worker's submission that this was indicative of his increasing pain and decreasing function.

The family physician's report of October 1, 2013 referred to significantly worsening pain on returning to work with increasing pain and analgesics, and worsening sleep. Changes in medication were to be trialed to see if there would be any improvement in pain control. The family physician opined that: "Ultimately, [the worker] needs to be off work indefinitely as his pain and functional ability are significantly worsened by work."

The panel finds on a balance of probabilities that the scale attendant duties did require the worker to make some use of his left shoulder and that these duties contributed to an aggravation of the worker's pain symptoms. We accept that the aggravation was sufficient to render the duties unsuitable for the worker. The panel is satisfied that the worker made a bona fide attempt to perform the duties of a scale attendant, but found that the position was beyond his functional abilities. The worker is therefore entitled to full wage loss benefits for the period September 18, 2013 to January 1, 2014.

January 2, 2014 to January 28, 2014

The employer subsequently offered the worker another alternate job position as a log book administrator, effective January 2, 2014. At the hearing, the employer indicated that this position involved feeding single log book pages into a top loading drop through scanner. The work was sedentary, and modifications could be made to the workstation to accommodate the worker's physical restrictions. Only one hand was required to feed the papers into the scanner, so the worker could use his right arm if his left arm was causing him difficulty.

The worker declined to even attempt to perform these alternate duties. At the hearing, the worker admitted that he did not even know what the job position entailed. The panel is of the view that there was an obligation on the worker to at least attempt to perform the alternate job duties offered by the employer. As he did not, the panel finds that the worker is not entitled to wage loss benefits for the period January 2 to January 28, 2014. On January 29, 2014, the worker underwent compensable surgery on his left shoulder and therefore full wage loss benefits were properly reinstated as of that date.

April 1, 2014 onwards

Following the January 29, 2014 surgery, the worker's recovery did not go well. He described an incident which occurred shortly after the surgery where he felt a pop like "something let go" in his left shoulder and stated that the pain had been worse since that time. The worker showed the panel the lump which subsequently appeared in his biceps. The worker stated that the pain was relentless after the surgery and the only way he could lessen the pain was by holding his left arm close to the body and by moving as little as possible.

The reports of the attending surgeon confirm that the worker's recovery did not go well. The May 21, 2014 report indicated severe left shoulder pain which was poorly managed and that it was highly unlikely that the worker would ever return to any meaningful physical labour. The August 20, 2014 report stated that the worker was doing very poorly and the prognosis for full recovery was extremely poor. In the surgeon's opinion, the worker was not capable of the work that had been assigned to him as he could not even dress himself.

The WCB determined that the worker was capable of performing modified duties as of April 1, 2014. The panel does not agree with this assessment. The worker's first post-operative physiotherapy appointment was on March 28, 2014 and he had therefore barely even commenced his rehabilitation at the time he was expected to return to work. In the panel's opinion, it was premature to find that the worker could have attempted to perform the modified duties as of April 1, 2014.

By the time of the call-in examination of June 17, 2014, the worker had developed a provisional diagnosis of adhesive capsulitis of the left shoulder. This diagnosis was later confirmed by the attending surgeon in his report of October 22, 2014 noting it as persistent post operative adhesive capsulitis. At the hearing, it was evident that the worker was severely limited in his left shoulder mobility.

The worker participated in 15 physiotherapy appointments. Unfortunately, the physiotherapist's report of August 25, 2014 indicated that there was "zero to minimal improvement" with treatment. The physiotherapist felt that there would be no further treatment of benefit and suspected that there may be some degree of internal derangement of the left shoulder, plus adhesive capsulitis.

The panel finds that since the January 29, 2014 surgery, the worker has not achieved any significant degree of recovery, and in fact, his condition may have deteriorated. He certainly has not yet reached a point where he has regained sufficient functional ability to attempt a return to work at the alternate log book administrator duties offered by the employer. The panel is hopeful that the worker will achieve a better recovery, but as of the date of the hearing, the panel finds that the worker remained totally disabled from attempting any form of return to work. The worker's evidence was that he was commencing a course of treatment at a pain clinic and it was hoped that if his pain could be brought under control, he could attempt further physiotherapy to aid in recovery. The panel shares the worker's hope that he will experience some improvement.

The panel therefore finds that the worker is entitled to further wage loss benefits effective April 1, 2014. The worker's appeal is allowed.

Panel Members

A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

P. Walker - Commissioner

Signed at Winnipeg this 11th day of May, 2015