The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that she was not entitled to benefits after August 13, 2015 in relation to her shoulder injury. A hearing was held on November 3, 2016 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to benefits after August 13, 2015.

Decision

That the worker is not entitled to benefits after August 13, 2015.

Background

On April 30, 2014, the worker felt pain and a pop in her right shoulder when lifting a table with a co-worker. Her claim for compensation was accepted by the WCB, and on September 29, 2014, she underwent surgery to repair a full thickness recurrent supraspinatus tear.

Following the surgery, the worker attended physiotherapy treatments, and in February 2015, she returned to work with restrictions. As the worker complained of increased pain and numbness in her shoulder while performing modified duties, arrangements were made for her to be examined by a WCB sports medicine advisor on March 23, 2015.

Following the examination, the sports medicine advisor opined:

• The current presentation was at least in some part medically related to the workplace injury and subsequent surgery. Cog wheeling and give way responses to strength testing suggested a non-organic pain component, which was not medically related to the workplace injury. Recovery was progressing, albeit slowly.
• No further treatment was recommended beyond the functional right shoulder exercises and gradual return to usual activities.
• The current restrictions could continue. Weekly shifts should be increased by one shift per week until full weekly shifts were achieved, following which shift hours should be increased by one hour per week until full shifts were achieved.

On June 16, 2015, the file was referred to the WCB's healthcare branch as the worker continued to report ongoing symptoms related to pain and weakness. The sports medicine advisor reviewed the file and recommended a call-in examination.

On July 20, 2015, the worker was examined by the WCB sports medicine advisor, who opined that there was no clinical evidence of an ongoing right rotator cuff tear. Given the nature of the examination findings, the worker's current presentation was not medically accounted for in relation to the workplace injury. The advisor also opined that notwithstanding the demonstration of non-organic physical findings, recovery of right shoulder range of motion had been satisfactory when comparing measured motion from the March 23, 2015 examination to the July 20, 2015 examination.

On August 6, 2015, the worker was advised that WCB benefits would end effective August 13, 2015 on the basis that she had recovered from her right shoulder compensable injury. On September 2, 2015, the worker appealed the decision to Review Office. On October 8, 2015, the employer's representative submitted to Review Office that they agreed with the WCB's decision to end the claim.

On October 28, 2015, Review Office determined there was no entitlement to benefits beyond August 13, 2015. After reviewing the file evidence and the opinions outlined by the WCB sports medicine advisor, Review Office concluded that the worker's ongoing right shoulder difficulties were not related to the effects of the April 30, 2014 workplace accident and that recovery from the right rotator cuff repair occurred by August 13, 2015. On May 30, 2016, 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 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 27(1) of the Act provides that the WCB "...may provide a worker with such medical aid as the board considers necessary to cure and provide relief from an injury resulting from an accident."

Subsection 39(2) of the Act 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.

Worker's Position

The worker attended the hearing with her husband, who assisted her with her presentation. The worker responded to questions from the panel.

The worker's position was that she still has issues with her shoulder related to her April 30, 2014 workplace injury. She noted this was the second time her rotator cuff had been torn and repaired. She first tore her rotator cuff at work in 2007, and it was repaired in 2010. After she tore it in April 2014, it was repaired again, but her shoulder is not the same. She cannot do what she did before. She still has pain in her arm, shoulder, neck, biceps and sometimes into her fingers. She still has weakness, and cannot return to her job or do any other jobs. She tried to go back to work for quite a while, but ended up doing office work because the repetition at her regular job was not good for her shoulder. She said there are lots of things that she cannot do using her right shoulder, such as doing many of her chores at home, lifting five pounds, starting a lawnmower, and playing badminton.

Employer's Position

The employer was represented by an advocate. The employer's position was that they agreed with the WCB's decisions to end responsibility on the claim effective August 13, 2015.

The employer's advocate submitted that the medical evidence on file, including the notes of the WCB medical advisor's call-in examination on July 20, 2015, indicated that the worker had recovered from the effects of her right shoulder workplace injury. The advocate further submitted that there were no clinical findings to support continued disability related to the workplace injury as of at least August 13, 2015.

Analysis

The issue before the panel is whether or not the worker is entitled to benefits after August 13, 2015. For the worker's appeal to be successful, the panel must find that the worker sustained a loss of earning capacity and/or required medical aid after August 13, 2015 as a result of her April 30, 2014 workplace injury. The panel is unable to make that finding.

Based on our review of all the evidence, both on file and at the hearing, the panel finds, on a balance of probabilities, that by August 13, 2015 the worker had recovered from her April 30, 2014 workplace injury, and her ongoing difficulties and issues beyond that date were not causally related to her compensable injury.

In arriving at that conclusion, the panel placed weight on the following:

• The worker underwent right shoulder rotator cuff surgery on September 29, 2014;
• On January 13, 2015, the treating surgeon reported that the worker had almost full active and passive range of motion with pain at extreme range of motion, and the wound was nicely healed with no evidence of complication. The worker was encouraged to work with more range of motion and to start strengthening exercises;
• The worker returned to work with restrictions in February 2015, starting at 4 hours a day, 3 days a week. The number of days and hours worked were gradually increased to the point where she was working fulltime hours, 5 days a week by August 2015;
• At the call-in examination on March 23, 2015, the WCB sports medicine advisor examined the worker and noted that the recovery from the surgery was progressing, and there was a non-organic pain component which was not medically related to the workplace injury;
• At an examination of the worker on April 7, 2015, the treating surgeon noted that the worker had excellent range of motion almost full, but had not yet started strengthening;
• On June 13, 2015, the treating physiotherapist reported that the worker had made significant gains in the previous month and now had full active range of motion. At that time, the physiotherapist recommended 8 hour shifts, 4 days per week, with restrictions of no more than 2 shifts back to back, push/pull maximum 20 lbs., lifting maximum 15 lbs., with a maximum of 2.5 lbs. for her right arm alone, and to limit repetition;
• On August 13, 2015, the treating physiotherapist reported that the worker was participating in weekly therapy to progress the strength in her shoulder, but that she could not advance the weight at that time as the worker was very fatigued;
• At the hearing, the worker confirmed that she had a number of other significant non-compensable medical conditions, and acknowledged that her fatigue was related to a non-compensable condition.

The panel places significant weight on the July 20, 2015 report of the WCB sports medicine advisor, who examined the worker on both March 23 and July 20, 2015, and having compared the measured range of motion from those examinations, opined that recovery of the worker's right shoulder range of motion was satisfactory. The medical advisor further opined that the worker's current presentation was not medically accounted for in relation to the workplace injury. The panel accepts that opinion.

The panel finds, based on the evidence before us, that there is no clinical evidence of a deterioration in the worker's compensable condition subsequent to July 20, 2015 and no clinical findings to support ongoing disability beyond August 13, 2015 related to her workplace injury.

Based on all of the evidence before us, the panel finds, on a balance of probabilities, that the worker did not sustain a loss of earning capacity or require medical aid after August 13, 2015 as a result of her April 30, 2014 workplace injury.

The panel therefore finds that the worker is not entitled to benefits after August 13, 2015.

The worker's appeal is dismissed.

Panel Members

M. L. Harrison, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

M. L. Harrison - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 29th day of December, 2016