Decision #123/16 - Type: Workers Compensation
Preamble
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he was not entitled to wage loss benefits after December 19, 2014 with respect to his compensable shoulder injury. A hearing was held on June 7, 2016 to consider the worker's appeal.
Issue
Whether or not the worker is entitled to wage loss benefits after December 19, 2014.
Decision
That the worker is entitled to wage loss benefits after December 19, 2014 to March 10, 2015.
Decision: Unanimous
Background
On October 2, 2013, the worker filed a claim with the WCB for an injury to his right shoulder and arm that occurred at work on October 1, 2013.
On October 9, 2013, the worker spoke with a WCB adjudicator regarding the October 1, 2013 accident. The worker reported that he was carrying a sheet of drywall by himself and it started to twist. When he tried to hold the sheet up, he hurt his shoulder. Subsequent medical information showed that the worker was diagnosed with a right rotator cuff tear and underwent surgery to repair the tear in February 2014, and again in August 2014.
In a report dated November 4, 2014, the treating orthopedic surgeon noted that the worker continued to report pain that was out of proportion to what would be expected for the postoperative time period. The worker denied any infectious symptoms or wound complications and was working with physiotherapy for early range of motion. The surgeon opined that the worker was unable to work at this point in time due to persistent pain. A subacromial cortisone injection was recommended if the pain persisted.
In a further report dated December 19, 2014, the treating surgeon noted that the worker was able to perform physiotherapy more effectively, but continued to have discomfort when elevating overhead. The surgeon stated: "I am…hesitant to start pushing his functional abilities too quickly in order to avoid relapse. Therefore, I will recommend remaining off of work at this time."
In a follow-up report dated February 18, 2015, the treating surgeon reported that he was unable to explain why the worker continued to have pain and had not improved a great deal despite two attempted rotator cuff repairs. He indicated he would obtain a repeat MRI to assess the integrity of the revision repair, given the worker's persistent symptoms.
On March 4, 2015, the employer's representative advised the WCB case manager that the worker had not been in contact with them and that the case manager had not provided the employer with updated information regarding the worker's current restrictions. The employer indicated that they were able to accommodate the worker with basic light duties.
On March 4, 2015, a WCB medical advisor opined that the worker was able to participate in work-related activities, and at a minimum, would be capable of modified work with no use of the affected right arm.
On March 5, 2015, the WCB case manager spoke with the worker to advise him that based on the current medical information on file and discussion with his treating physiotherapist, the WCB felt he was able to perform light duties with the following work restrictions:
Sedentary duties/light work
No lifting/carrying/pushing/pulling with the right arm
Working only within his body envelope (waist level)
Breaks as needed (within reason)
The case manager advised the worker that his employer had modified duties available which involved inventory work and it was reasonable for him to perform the duties. By letter dated March 6, 2015, the case manager confirmed to the worker that modified duties were available and that the return to work date was March 9, 2015. The worker returned to work on March 10, 2015.
On March 18, 2015, the worker underwent an MRI which identified the presence of a full-thickness tear of the supraspinatus. In a report dated April 2, 2015, the treating surgeon noted that the "tear does not seem to heal despite two previous repairs" and that he was "not sure if a third attempt at repair would have any greater chance of success than the first two." The treating surgeon further noted that the worker did not feel that he was tolerating sedentary desk work well
and commented that restricting him to four to six hours shifts based on his level or tolerance would be reasonable.
The worker was seen at the WCB offices on May 7, 2015 for a call-in assessment by a WCB orthopedic consultant. The consultant's clinical impression following the examination was as follows:
The diagnosis of the workplace injury was a tear of the rotator cuff of the right shoulder.
Two attempts at surgical repair have been unsuccessful and symptoms have deteriorated.
Prominent pain focus is evident. It is unlikely that any further surgery would lead to sustained improvement in function.
It is unlikely that any further passive modalities of physiotherapy would lead to any sustained improvement in function.
The consultant recommended the following workplace restrictions:
No lifting or carrying more than five pounds with the right upper limb.
No resisted activities with the right upper limb away from the side of the body.
No tasks with the right upper limb above shoulder level.
In a submission to Review Office received on May 20, 2015, the accident employer indicated that they were appealing the acceptance of the worker's claim on the basis that the alleged injury did not happen at their jobsite. The employer also contended that the WCB did not enforce the return to work policy or keep the employer apprised of the condition of the worker following his second surgery.
On June 11, 2015, Review Office confirmed that the worker's claim for compensation was acceptable. Review Office stated in part, that the worker reported a right shoulder injury to the WCB, his employer and the treating doctor on the day of accident, and the medical information provided clinical and reported evidence of a right shoulder injury. There was no information on file to suggest that the worker injured his right shoulder prior to his reported accident on October 1, 2013.
Review Office also determined that the worker was not entitled to wage loss benefits beyond December 19, 2014. Review Office referred to the treating surgeon's report of November 4, 2014 where he recommended that the worker remain off work due to his pain complaints.
Review Office indicated that there was a lack of clinical findings to support full disability and the file should have been referred to the WCB healthcare branch for a further medical opinion and possible call-in examination. This would have been optimal to help determine the worker's functional abilities/restrictions in order to consider a return to work and what modified duties the employer could offer. This was supported in the December 19, 2014 report to the WCB, where the treating surgeon stated that he was at a loss to explain the worker's severe pain complaints.
Review Office indicated that the worker's ability to perform modified duties was later supported by the WCB orthopedic consultant's examination of May 7, 2015, the results of which confirmed the worker could perform modified duties despite the March 18, 2015 MRI findings of further complications in the worker's right shoulder. On January 14, 2016, the worker appealed Review Office's decision to deny wage loss benefits after December 19, 2014 to the Appeal Commission and an oral 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 WCB's Board of Directors.
Subsection 4(1) of the Act provides that 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 4(2) provides that a worker who is injured in an accident is entitled to wage loss benefits for the loss of earning capacity resulting from the accident, but no wage loss benefits are payable where the injury does not result in a loss of earning capacity during any period after the day on which the accident happens.
Subsection 39(2) provides that the WCB will pay wage loss benefits until such 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 was represented at the hearing by legal counsel. The worker's position, as outlined by his counsel, was that there is a continuing entitlement to benefits past December 19, 2014 into the present and for as long as there is medical evidence suggesting there has not been recovery and there is pain and limitation on the worker's ability to work.
It was submitted that even with the surgeries and physiotherapy, the worker has continued to suffer from the injury he sustained at work on October 1, 2013, and there has been little change in his condition since the beginning. The injury continues to cause him pain, for which he is still prescribed pain medication. He is very limited in the work he can do, and his restrictions prevent him from doing the type of work he has done all his life. He has been told he has reached maximum improvement and has a lifelong impairment.
It was submitted that there should be no dispute in terms of the worker's entitlement to benefits from December 2014 to March 2015, and no fault should be attributed to the worker with respect to any gap or lack of communication during these months. The worker continued to attend his medical appointments and to stay in contact with the WCB throughout this period of time.
It was noted that the worker returned to work on March 10, 2015 at the employer's request, but not to his old job. He was put on a desk job, doing mathematical calculations. He had never done this type of work before and had difficulties. He had trouble sitting at a desk, and still had to take a lot of significant medications. He was not always able to do what the employer asked, such as staying at work for a full day. He attended medical appointments, and was trying to do physiotherapy, but it was not really helping.
It was submitted that the panel should look at the reported and clinical evidence with respect to the worker's level of pain, his level of function and the medical advice he was given. In counsel's submission, it was fairly clear from the reports of a number of doctors that the worker had limited range of motion in his arm and a high level of pain. His doctors were still prescribing significant pain medication and he had made limited gains through physiotherapy.
The worker's evidence at the hearing included that he was able to get up and walk around while working, and to stretch or swing his arm, which eased the pain. He attended physiotherapy appointments twice a week. He felt a sharp pain sometimes in his arm. He would have to take medication for the pain to make it go away. He went home early on a few occasions, when he could no longer handle the pain. He also went home sometimes after his physiotherapy appointments, instead of returning to work.
In response to a question from the panel as to whether the modified duties were appropriate, the worker's legal counsel submitted that there were two issues: first, that the worker was not qualified for the kind of work he was being asked to do and had difficulties doing those duties, and secondly, that the worker could not always do the work for 8 hours a day and would have to leave work due to the pain.
It was further submitted that the worker's employment was terminated on May 28, 2015 as a result of his being unable to do the light duties as required. It was noted that from the time of his termination to the present, the worker has still not recovered. He is still in pain, and is limited in his ability to work as a result of his workplace injury.
Employer's Position
The employer was represented by its controller. The employer's position, as outlined by its representative, was that the worker was not entitled to benefits after December 19, 2014.
The employer's representative submitted that they had a well-established return to work program, and the worker could have returned to light duties by December 2014, as he had done following the first surgery. In any event, it was submitted that the worker did receive wage loss benefits from December 19, 2014 until he returned to work in March 2015. The WCB subsequently determined that this was an overpayment that would be written off.
It was noted that the worker returned to work on March 10, 2015, doing light duties. Those duties involved extending numbers for the estimators, who had already done the intricate work. The worker was given a calculator, and had to multiply numbers to arrive at square footages. He was trained several times by the representative. He could and did ask questions, and instructions were given. He said at times that he did not enjoy desk work and would rather do something else, but they explained they could not give him other work given his restrictions and WCB policy. The light duties remained in place up until his dismissal for reasons which were not related to his injury.
In response to questions from the panel, the employer's representative stated that for the first couple of weeks of modified duties, the worker made errors, but his work got better over time. The worker was able to and did walk around and take breaks, and was paid his pre-accident wage. The representative said that the work was useful, and enabled others to go on to do other work.
The representative said that there were some issues with respect to performance, but no indication that the worker was physically unable to do the job. Physiotherapy appointments were a big issue. The worker would leave an hour before his appointment and not come back for the rest of the day. The representative noted that the worker would end up losing pay as a result, as the WCB would only allow him 2 hours pay for an appointment. The representative noted that the worker occasionally said that he had a sharp pain. He also left work on a number of occasions, saying he had stomach flu and was not feeling well.
Analysis
The issue before the panel is whether or not the worker is entitled to wage loss benefits after December 19, 2014. In order for the worker's appeal to be successful, the panel must find that the worker continued to suffer a loss of earning capacity beyond December 19, 2014 as a result of his compensable injury. For the reasons that follow, the panel was able, on a balance of probabilities, to make this finding.
In addressing the issue, the panel looked at three different periods of time: from December 19, 2014 to the worker's return to work in March 2015, from March 10, 2015 to the termination of the worker's employment on May 28, 2015, and from May 28, 2015 onwards.
December 19, 2014 to March 10, 2015
With respect to this period of time, the panel is satisfied, on a balance of probabilities, that the worker suffered a loss of earning capacity as a result of his compensable injury.
In reaching this conclusion, the panel places weight on the following:
On December 2, 2014, the treating physiotherapist noted that the worker's ROM (range of motion) and strength were improving, but he required further treatment to increase ROM and strength to be able to return to work.
On December 19, 2014, the treating orthopedic surgeon recommended that the worker remain off work, and his returning to duties be reassessed in two months' time if he continued to improve.
On January 15, 2015, the treating physiotherapist recorded that the worker was reporting reduced ROM and was not capable of alternate or modified work.
On February 18, 2015, the treating orthopedic surgeon stated that the worker continued to have pain and had not improved a great deal, and that he would obtain a repeat MRI given the worker's symptoms.
On March 4, 2015, the WCB medical advisor opined that the worker was able to participate in work-related activities.
The panel notes that no offer of modified duties was communicated to the worker between December 2014 and February 2015. While the employer's representative submitted that modified duties were available, in particular the duties which the worker had performed following his first surgery, the employer did not contact the worker and no offer was made which was specific to the worker's condition following the second surgery. Restrictions were first identified by the WCB medical advisor on March 4, and communicated to the worker by the case manager on March 5, 2015. A formal offer of work based on those restrictions was made to the
worker on March 6, 2015, and the worker returned to work on modified duties on March 10, 2015.
Based on the evidence, the panel therefore finds that the worker was entitled to full wage loss benefits from December 19, 2014 to March 10, 2015.
March 10 to May 28, 2015
Based on the evidence which is before us, the panel is satisfied that the worker is generally not entitled to further wage loss benefits for the period from March 10 to May 28, 2015.
The worker returned to work on a full-time basis on March 10, 2015, performing modified duties. Work restrictions were set and communicated to the worker by the WCB on March 6, 2015, based on the recommendations of the worker's physiotherapist. Following receipt of the March 18, 2015 MRI results, which identified the full thickness tear of the supraspinatus, the worker was seen for a call-in assessment by the WCB orthopedic consultant, who provided a list of restrictions similar to his previous restrictions, noting that it was likely that restrictions would be long-term or permanent in nature.
The panel also notes that there was no suggestion at the hearing that these restrictions were not appropriate. The panel therefore finds that the physical restrictions as identified, both before and after the March 18, 2015 MRI, were appropriate.
Based on the information on file and the evidence given at the hearing, the panel is further satisfied that the modified duties which the worker was performing in March 2015 fell within those restrictions, were generally appropriate, and of value. There was no complaint that the duties themselves were physically hurting the worker. While there were indications that the worker was looking for reduced hours on his return to work, that request was considered by the WCB medical advisor who opined, on March 10, 2015, that there was "no medical reason to require reduced hours when considering the very light nature of the job duties proposed." When asked by the panel whether any doctor had told him that he could not work full-time, the worker responded:
They said, do what I can do. They asked me what I can do, I said, well, I can do anything as long as it doesn't concern my arm here, and I don't feel the pain, I just do whatever.
The panel notes that information on file and at the hearing discloses that the worker was paid his pre-accident wage by the employer for the hours he worked. He was also paid wage loss benefits by the WCB for attending appointments during this period of time.
The evidence also indicates, however, that there were times when the worker would not have been paid by either the employer or the WCB, in particular, for time lost due to leaving work early or not returning to work after physiotherapy appointments.
The panel notes that evidence on file and at the hearing indicated that the worker left work on several occasions due to "stomach flu." The information also indicated that the worker would suffer sharp pain, for which he would take significant pain medication. It is the panel's understanding that the particular medication often causes gastro-intestinal problems. The issues with respect to these absences have not been addressed by the WCB to date.
In the circumstances, the panel has identified the following two issues that the worker may choose to address with the WCB:
1. Whether the worker is entitled to partial wage loss benefits for time immediately following his physiotherapy appointments, given the findings of the March 18, 2015 MRI and the worker's continuing pain issues.
2. Whether the worker is entitled to partial wage loss benefits for absences due to possible side effects of his pain medication and gastro-intestinal issues.
In summary, the panel finds that the worker is not entitled to further wage loss benefits for the period from March 10 to May 28, 2015, subject to consideration of the above two issues.
After May 28, 2015
With respect to wage loss benefits subsequent to the termination of the worker's employment on May 28, 2015, the panel is satisfied that we do not have jurisdiction to address this issue at this time.
The matter of any ongoing wage loss subsequent to the termination of the worker's employment by the employer has been addressed by the WCB's Compensation Services, but had not yet been considered by Review Office at the time of the hearing.
In the absence of a decision by Review Office, the panel finds that we have no jurisdiction to address the worker's entitlement to wage loss benefits subsequent to May 28, 2015.
In conclusion, the panel finds that the worker is entitled to wage loss benefits after December 19, 2014 to March 10, 2015, as set out above.
The worker's appeal is allowed in part.
Panel Members
M. L. Harrison, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
M. L. Harrison - Presiding Officer
Signed at Winnipeg this 3rd day of August, 2016