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 not entitled to wage loss benefits. A hearing was held on October 21, 2015 to consider the worker'sappeal.

Issue

Whether or not the worker is entitled to wage loss benefitsafter September 27, 2014.

Decision

That the worker is not entitled to wage loss benefits afterSeptember 27, 2014.

Decision: Unanimous

Background

The worker has an accepted claim with the WCB for bilateral medial epicondylitis. Based on the results of a Functional Capacity Evaluation performed on April 7, 2010, it was determined by the WCB that the worker had the following permanent work restrictions related to his compensable bilateral elbow injury:

• limit push/pull to 50 and 60 lbs respectively
• limit overhead lift to 25 lbs
• limit floor to waist lift to 35 lbs and floor to chest lift to 45 lbs
• limit bilateral carry to 25 lbs and single left arm carry to 9 lbs.

On October 3, 2014, the worker spoke with a WCB staff person advising that his employer took him off work on September 27, 2014 around 2:00 a.m. as they were going to get clarification on his work restrictions. The worker indicated that he was asked to climb vertical ladders which was outside of his permanent work restrictions. The worker stated that in the past, there were not too many trains with vertical ladders but now all the trains had them. He said climbing vertical ladders affected his elbows as he had to pull all his body weight with his arms.

On October 8 and 21, 2014, a WCB case manager gathered further information from the worker and the accident employer related to the worker's position that ladder climbing was outside of his permanent work restrictions.

In a decision dated October 23, 2014, the worker was advised that he was not entitled to wage loss benefits commencing September 27, 2014. The decision stated:

Given that your permanent restrictions with the WCB remain as above and do not include any restriction with ladders, I am unable to accept responsibility for your time loss resulting from your refusal to work with locomotives with vertical ladders. Supporting this would be the lack of any complaints of difficulty with ladders to your employer, the WCB or your medical providers from May 2010 until now.

In evaluating your current ability to use vertical ladders at present time, it is my decision that you are capable of the amount of ladders that you are required to use at work, which I believe to be a rare amount in the course of your work day. After reviewing the information provided by your medical provider and the Occupational Therapist's report of your ability to ascend and descend vertical ladders, it is my opinion that you are capable of the duties of your position and therefore no wage loss benefits will be issued for time loss resulting from you declining in participating your duties.

Following the above decision, the WCB received video evidence which demonstrated the worker getting on and off the train with a vertical ladder.

On November 7, 2014, a WCB medical advisor reviewed the video evidence to determine whether or not the avoidance of vertical ladder climbing should be a new restriction added to the worker's restrictions. In a response dated November 23, 2014, the medical advisor opined that "the description of the use of vertical ladders does not meet the requirements for force and/or repetition, therefore would not be a restricted activity." Based on the WCB medical advisor's opinion, it was confirmed to the worker on December 22, 2014, that no change could be made to the decision rendered on October 23, 2014. The worker disagreed and the case was referred to Review Office for consideration.

On February 26, 2015, Review Office confirmed that there was no entitlement to wage loss benefits beyond September 27, 2014. Review Office noted the worker's argument that his treating physician as far back as 2010 had imposed a restriction to avoid ladders. Based on the comments made by the WCB medical advisor dated November 2014, Review Office accepted that the use of vertical ladders did not meet the requirements for force and/or repetition, therefore it would not be restricted activity.

Review Office acknowledged that there may be some force involved when climbing ladders; however, the frequency of this activity did not meet the definition of repetitive. Review Office concluded that the worker did not require a restriction of no ladder climbing. Given its determination that no changes were required to the compensable restrictions, Review Office felt that the worker's modified duty position was within his permanent restrictions. On March 7, 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.

The worker has an accepted claim for bilateral medial epicondylitis and is seeking wage loss benefits beyond September 27, 2014.

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. Subsection 27(1) empowers the WCB to provide such medical aid as the WCB considers necessary to cure and provide relief from an injury.

Worker's Position

The worker was self-represented. He explained his reasons for appealing the WCB Review Office decision that he was not entitled to wage loss benefits beyond September 27, 2014.

He advised that at no time was his ability to climb a vertical style ladder on a locomotive ever been in doubt. He said that "The issue at hand is, can performing such an activity repeatedly exasperate, exacerbate, ... my existing permanent injury to my left elbow?" He said that his injury has been classified by the WCB as permanent. He said that what is at issue is the scope of the restrictions placed on him in the performance of his regular work duties.

The worker advised there is a functional abilities form (FAF) from 2010 on his WCB file that specifies no vertical ladders without lateral handholds, and made reference to the WCB-determined permanent restrictions. He noted that the WCB medical advisor referred to grip strength but did not consider the amount of weight, in a pulling motion, that his left arm has to bear when he climbs up a vertical ladder. He said he weighs 260 pounds and carries 25 pounds of equipment when he climbs the vertical ladders.

The worker said that "The weight that I bear through my arms, while using a vertical ladder, would easily exceed the 60 pounds pulling limit that I have in my permanent WCB restrictions."

The worker noted that:

It had been determined in a previous Appeal Commission hearing that the reoccurrence of symptoms in my right elbow was not work related, but, as I was favouring that elbow, the left began to give me more difficulty, and the left is the one that I have the permanent injury in.

The worker advised that in September 2014, he refused to work on a train at his away-from-home terminal because all of the locomotives had vertical-style ladders, and he was concerned about the pain he was experiencing in my elbows. He said that he believed he was justified in his refusal because of the 2010 FAF that specified the vertical ladder restriction.

The worker advised that as a result of his actions, he was unable to return to work until the issue of his restrictions was clarified. He advised that it was eventually agreed that his restrictions, as written, were suitable, and had to be processed through Occupational Health Services for his return to work. He was finally cleared and allowed to return to work to his normal duties on November 27.

The worker noted that he was not offered alternate duties, and that all accommodations that were discussed that might allow him to work as a locomotive engineer with the restrictions imposed by his physician were rejected until the physician's final letter was received.

The worker submitted that the restrictions recommended by his physician were to protect the permanently injured left elbow, as well as the right. He submitted that he was not allowed to work with those restrictions and that his time off should fall under his existing claim for the injured left elbow, and wage replacement for the period in question should be allowed.

Employer's Position

The employer was represented by its WCB specialist with assistance from its return to work specialist.

The employer representative advised that the employer agrees with the WCB Review Office decision. She advised that the worker has been working in an accommodated capacity since June 2010. The worker's permanent work restrictions are to limit push/pull to 50 and 60 pounds respectively, limit overhead lift to 25 pounds, limit floor to waist lift to 35 pounds, and floor to chest lift 45 pounds, and finally, limit bilateral carry to 25 pounds, and single left arm carry to 9 pounds. Climbing ladders is not listed as one of the worker's restrictions.

The representative noted that the worker reported to WCB that the employer was making him work outside his restrictions of no vertical ladders, and that he would no longer go on trains with vertical ladders. She noted that prior to this, the worker had not reported to anyone that he was having difficulty with vertical ladders, and this time period also includes when an ergonomic evaluation was completed in May 2014.

The employer representative referred to video on file in which the worker demonstrated how he climbs vertical ladders. She noted that:

In an average 10-hour shift, the least amount of times to ascend and descend ladders is two times, and the most would be up to 22 times, and this would be on very rare situations. So, average in a 10-hour shift is four to six times.

She also noted that the WCB medical advisor stated the combination of force and repetition is thought to cause symptom increase. The description of the use of vertical ladders does not meet the requirement for force and/or repetition, and, therefore, should not be a restricted activity. She added that the amount of times the worker has to ascend and descend a ladder during his shift is minimal, and, therefore, there is a lack of repetitiveness, and he would not be restricted to climbing ladders.

She said that the worker's physician's medical opinion, the WCB medical advisor’s opinion, and Review Office all agree that the worker does not have to be restricted from climbing ladders and he’s capable of the duties of this position.

She submitted that:

All evidence supports that [worker's] loss of earning capacity was not related to the compensable injury beyond September 27, 2014. There were no changes required to the

modified-duty position as it was already within his permanent work restrictions. [Worker] chose to remove himself from employment. No wage loss benefits should be issued for the time loss resulting from his declining to participate in his duties.

Analysis

The worker has an accepted claim for bilateral medial epicondylitis. The panel notes that in Appeal Commission Decision No. 23/15, it was determined that the worker's right sided medial epicondylitis had resolved and that his more recent right elbow complaints were unrelated to his accepted claim. The panel notes that the worker's left sided medial epicondylitis is considered to be permanent.

The worker is seeking wage loss benefits for the period between September 27, 2014 and November 27, 2014. For the worker's appeal to be approved the panel must find that the worker's wage loss during this period was due to his left medial epicondylitis. The panel was not able to make this finding.

The worker's position was that he was unable to operate certain locomotives which had vertical ladders without further worsening his compensable left elbow condition. He said that he had to use his injured left arm to assist with mounting and dismounting the locomotives and that this was aggravating his left elbow injury. He advised that he had refused to operate the locomotives with vertical ladders because he believed that this exceeded his compensable restrictions. He said that his employer refused to allow him to work until the restrictions regarding the left elbow were clarified.

The worker advised that he was seeking wage loss benefits for the period between September 27 and November 27, 2014, because his employer refused to let him work.

Having reviewed all the evidence, the panel was not able to find, on a balance of probabilities, that the worker was off work due to his compensable injury.

While the worker said that the duties were aggravating his left arm condition, the evidence on file does not confirm this assertion. With respect to the day that he first refused to work, the evidence does not establish that the worker suffered a significant exacerbation of his left elbow condition. In this regard, the panel accepts the employer's evidence that prior to this event the employer had no record of complaints from the worker regarding vertical ladders.

The worker said there is no problem with angled ladders, but with vertical ladders his left arm is placed under pressure. The panel finds that the worker's position is not supported by the evidence on file.

The panel has considered the work restrictions which have been approved by the WCB with respect to the worker's return to work. The panel notes that based upon a Functional Capacity Evaluation performed on April 7, 2010 the worker's permanent restrictions related to his compensable bilateral elbow injury are:

- limit push/pull to 50 and 60 lbs respectively

- limit overhead lift to 25 lbs

- limit floor to waist lift to 35 lbs and floor to chest lift to 45 lbs

- limit bilateral carry to 25 lbs and single left arm carry to 9 lbs

The panel finds that these restrictions do not describe forces that are consistent with the ongoing use of a vertical ladder and therefore do not preclude the use of a vertical ladder.

The panel attaches significant weight to the November 23, 2014 opinion of the WCB medical advisor who was asked whether the worker could go up and down either type of ladder (vertical or lateral) up to 22 total times in the course of a 10 or more hour shift, and whether there is need for additional permanent restrictions on the use of vertical ladders at work. The medical advisor stated that:

"It is the combination of force and repetition that is thought to be causative or provocative of epicondylopathy. For the elbow, force and repetition are defined as:

· Force - equal or greater than 10-14 lbs grip strength. This would be demonstrated by the tendons over the knuckles becoming prominent and blanching.

· Repetition - doing the same upper extremity activity several times per minute (cycle time less than 30 seconds) over at least 2/3 of the work day.

The description of the use of vertical ladders does not meet the requirements for force and/or repetition, therefore would not be a restricted activity."

The panel also notes that the restrictions provided by the worker's family physician in a letter of November 13, 2014, acknowledge that the worker can climb ladders at work but should keep ladder climbing to a minimum.

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 2nd day of December, 2015