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 after March 24, 2015 as he was considered capable of returning to his pre-accident employment with restrictions. A hearing was held on June 20, 2016 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to wage loss benefits after March 24, 2015.

Decision

That the worker is not entitled to wage loss benefits after March 24, 2015.

Decision: Unanimous

Background

On January 25, 2013, the worker slipped and fell when leaving his work vehicle and sustained injuries to his right ribcage, right shoulder, face and mouth. The worker also had a prior non-compensable partial right rotator cuff tear. On June 6 and December 31, 2013, the worker underwent surgery to his right shoulder which was accepted as a WCB responsibility. The worker has since been awarded a permanent partial impairment rating of 4% for his right shoulder condition.

On March 9, 2015, the worker underwent a Functional Capacity Evaluation ("FCE") and the results were reviewed by a WCB orthopedic consultant on March 11, 2015. The consultant noted that based on the medical reports and the FCE report which showed validity of 4/5, permanent workplace restrictions were outlined as follows:

• No overhead tasks with the right upper limb.

• No lifting and carrying more than 10 pounds with the right upper limb.

• No pushing and pulling more than 10 pounds with the right upper limb.

• No resisted tasks with the right upper limb away from the side of the body.

File records showed that the employer offered the worker a full time permanent accommodation that met his workplace restrictions and that the worker declined the offer.

On March 19, 2015, Compensation Services wrote the worker to advise that wage loss benefits would be paid to March 24, 2015 inclusive and final as the WCB felt he was capable of performing the job duties that were offered to him by his employer.

On March 29, 2015, the worker wrote Review Office as he disagreed with the decision of March 19, 2015. The worker noted that following the FCE, he felt burning and pain in his right shoulder which continued to get worse. The worker stated:

I am unable to drive for any extended periods - local grocery shopping, medical appointments are all I can manage. My position with…entails being on the road for an 8 hour shift. I don't sleep well due to pain, take medication on a daily basis, use a TENS machine twice a day and have to use [NSAID cream] several times a day. Hopefully, when you receive [surgeon's] report and take into account what I have outlined here you will reconsider your decision.

In a submission to Review Office dated April 23, 2015, the employer's representative agreed with the WCB decision to terminate the worker's wage loss benefits. The representative noted in March 2015, their company was able to provide him work that met his medical restrictions but he refused. The employer felt the worker was in violation of WCB Policy 43.40.20 (A) (6) (b).

A copy of the employer's submission was provided to the worker for comment. The worker's response is dated May 17, 2015.

On May 22, 2016, Review Office confirmed that the worker was not entitled to wage loss benefits after March 24, 2015. In making its decision, Review Office referred to the worker's submission, the findings at the FCE and the WCB orthopedic opinion of March 11, 2015 regarding work restrictions. It also considered a report from the worker's treating surgeon dated April 13, 2015 which stated:

[The worker] is seen regarding his right shoulder RC (rotator cuff) tear. He has been cut off from WCB and given a settlement. He was then asked to do a FCE which has made his symptoms much worse. He cannot lift his arm and has constant pain worse than previously.

Review Office was of the view that the surgeon's comments were more in keeping with the worker's self-report rather than medical evidence that would substantiate a change in the worker's restrictions. The restrictions, in Review Office's opinion, were quite limiting; however, they did allow the worker to use his right arm in levels sufficient to meet the basic demands of daily living. Review Office was unable to conclude that the worker was totally disabled as a result of the failed surgeries to his right shoulder.

Review Office referred to the worker's description of his pre-accident job duties that was reported to a WCB adjudicator on January 29, 2013 and found the worker to be medically able to perform the essential duties of his pre-accident employment based on his workplace restrictions. On January 23, 2016, the worker appealed Review Office's decision to the Appeal Commission and an oral 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. Subsection 27(1) empowers the WCB to provide such medical aid as the WCB considers necessary to cure and provide relief from a workplace injury.

The Worker's Position:

The worker was self-represented at the hearing. His position was that he was unable to return to work after his second shoulder surgery. The surgery had failed, leading ultimately to a total right shoulder replacement surgery on September 8, 2015. Following his second surgery in December 2014, his shoulder got worse, not better. The pain in his shoulder caused him serious sleep disruptions and the pain medications that he was taking made him lethargic and only able to drive short distances on an occasional basis. The worker also noted that he used a TENS machine 3 times a day for about 20 minutes each time which caused him to need to disrobe. The worker also used an NSAID cream on an as needed basis. The worker indicated that he was unable to do the driving portion of his job and would not be able to self-treat while at work.

The worker noted that the September 8, 2015 operative report indicated that when his shoulder was dislocated during the procedure, an obvious massive rotator cuff tear was discovered. This confirmed his orthopaedic surgeon's earlier opinions that he was permanently disabled and was not able to do his original job.

In response to questions from the panel, the worker described the two jobs that were offered to him. One of the jobs required him to travel in a vehicle for an eight hour shift in an urban setting, and to leave the vehicle, a small SUV, up to 20 times to operate some handheld equipment. The equipment was light weight, from 4 ounces to 5 pounds, and used within his body frame. The second job involved doing the same job, but walking in an assigned area rather than driving and carrying the equipment on a belt.

The worker indicated that all contact regarding a return to work was between him and his WCB case manager, who in turn spoke with this employer. There was no direct contact between the worker and the employer. This was confirmed by the employer representative at the hearing.

The Employer's Position

The employer was represented by its Human Resource Manager and a regional manager. Their submission was that they were advised by the WCB of the workplace restrictions for the worker, and then offered either a mobile or walking position to the worker. The worker had done these jobs before his accident and it was their view that the jobs were within the physical restrictions that were set out by the WCB.

The human resource manager advised that the job offers were communicated twice to the worker via registered email and it was their understanding that the job offers were discussed between the worker and the WCB case manager. The worker did not respond to the job offers and did not show up at work for those jobs. As the job was within the physical restrictions, the worker was not entitled to wage loss benefits after March 24, 2015.

In response to questions from the panel, the Human Resources Manager advised they were not aware of and, hadn’t been advised by WCB or the worker, of any restrictions for driving, medication issues, or the need to use a TENS machine during the workday.

Analysis:

The worker is seeking wage loss benefits after March 24, 2015. For the worker to succeed on his appeal, the panel would have to find that the job duties offered by the employer were outside the medical restrictions placed on the worker by the WCB and/or that the medical restrictions placed on the worker were incorrect and should be expanded, making the offered job duties outside those new restrictions. The panel was unable to make these findings, for the reasons that follow.

At the hearing, the worker acknowledged that the physical restrictions set out by the WCB orthopaedic consultant on March 11, 2015 were appropriate. These restrictions were set shortly after an FCE at the WCB offices on March 9, 2015, and were set at: No overhead tasks, no lifting/pushing/pulling over 10 lb with the right upper extremity, and no resisted tasks with right upper extremity away from the side of the body.

The panel thoroughly canvassed the worker's job duties with both the worker and the employer at the hearing. There was general agreement that the majority of the job would require either driving or walking. Over the course of the shift either evening or night shift, the worker would likely be involved in up to 20 transactions. Each transaction would take approximately 5 minutes, including use of a stylus pen to input data into a small hand held device, and taking up to three photos with a small digital camera. The panel finds that all these movements were in front of the worker, with hands close to the worker, elbows fairly close to the worker's sides, and all tasks well within the worker's body envelop. The panel finds that both the mobile and walking job duties offered by the employer were within the physical restrictions outlined by the WCB on March 11, 2015.

At the hearing, the worker relied on his surgeon's opinion that the worker could not return to work with his employer. The panel notes that on February 6, 2015, the worker's surgeon noted that the worker was still quite limited by pain, weakness and range of motion. He also notes that "his employer has suggested that he return to work doing an outdoor job that involves repetitive activity of his arm. He has quite a bit of pain that regularly requires the application of [an NSAID cream] and a TENS machine to control the pain. The job doesn’t seem conducive to these treatments….A Functional Capacity Evaluation may help clarify what he can realistically do."

In the panel's view, the opinion of the worker's surgeon is based on a misapprehension of what the worker's job duties actually were. His reference to the worker returning to a job involving repetitive activity of his arm is not consistent with our findings as to the actual nature of the job duties, and we therefore place less weight on his opinion as to the suitability of those job duties for the worker. Indeed, the surgeon did recommend that an FCE be performed to evaluate and establish realistic workplace restrictions. The panel notes that this was done within a matter of weeks, and the panel places greater weight on the restrictions that were established as a result of the FCE and the hearing testimony of the worker's job duties by the worker and the employer.

It should also be noted that while the worker did describe his shoulder as worsening throughout this period, (which was borne out by the third surgery in September 2015), the worker's surgeon did not consider the worker to be totally disabled from work during this time, even while he had been proposing a shoulder replacement surgery to the worker since April 2014.

The panel therefore finds that the proposed job duties were physically within the WCB restrictions that were proposed by the WCB orthopaedic surgeon on March 11, 2015 and adopted by the WCB at that time.

For the panel, the question next turns to whether there were further medical restrictions that should be added to the March 11, 2015 list. At the hearing, the worker suggested that his shoulder condition made it impossible for him to work those jobs. He stated he was sleep deprived, as he kept waking up at night when he rolled over; he had been taking 6 T3s per day which made him lethargic and he therefore should not be driving because of the safety issues involved; he needed to use his TENS machine three times a day (morning, mid-day and at night) for pain relief, which required him to disrobe; and he needed to apply an NSAID cream, as needed, which also required him to disrobe. As a result of these issues, he could not do these job duties.

The panel has carefully reviewed the medical information on file and has determined that no further restrictions are warranted. The evidence generally supports the worker's comments that he is in pain from his injury, and that the prospect of a failed surgery had been identified soon after the December 2013 injury, which led to the worker being prescribed T3s which he continued to take on an ongoing basis. However, there are no references in the surgeon's regular reports or the physiotherapist notes of the worker reporting or being concerned about significant sleep disruptions or of cognitive or concentration issues because of his use of T3s. Again, the panel notes that the surgeon's February 6, 2015 report expresses concern only over the repetitive nature of the job duties, with no reference to the worker's mental or emotional capacity to work in those jobs.

The panel therefore finds that there is no medically supported basis to add further restrictions to those set out on March 11, 2015.

On the whole, the panel finds, on a balance of probabilities, that the worker no longer suffered a loss of earning capacity after March 24, 2015, to the date of his third surgery on September 8, 2015.

The worker's appeal is therefore denied.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc

A. Finkel - Commissioner

Signed at Winnipeg this 21st day of June, 2016