The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that there was no loss of earning capacity beyond February 18, 2011 as a result of her compensable accident. A hearing was held on March 22, 2017 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to wage loss benefits effective February 18, 2011.

Decision

That the worker is not entitled to wage loss benefits effective February 18, 2011.

Background

The worker filed a claim with the WCB for injury to her right thumb and wrist with the accident date of December 15, 1992. The compensable diagnosis initially accepted by the WCB was regional myofascial pain syndrome involving the right shoulder and de Quervain's tendonitis of the right wrist. The WCB later accepted responsibility for Chronic Pain Syndrome.

On July19, 2012, a hearing was held at the Appeal Commission as the worker disagreed with the WCB decision that her current right shoulder difficulties were not related to the December 1992 accident. On June 17, 2014, the Appeal Commission determined that the worker's problem with her right supra scapular and right supraspinatus were related to the 1992 compensable injury. Complete details regarding claim history and the panel's decision can be found under Decision No. 77/14.

On June 23, 2014, Compensation Services advised the worker that she was entitled to medications and any other treatment cost or medical aid benefits and wage loss to attend medical appointments until she went off work in 2011. She was not entitled to full wage loss benefits given that the Appeal Commission "found that her shoulder injury had never fully resolved and although the pain didn't prevent her from working, there was a continuity of symptoms."

On May 29, 2015, the worker's legal representative asked the WCB to reinstate the worker's wage loss benefits as the worker recently had surgery to her right hand/wrist.

The surgical report dated May 25, 2015 reported "this lady has a tight band on the right thumb possibly a Dupuytren's disease. She also had a contracture."

In e-mail correspondence dated July 6, 2015, the worker's legal counsel made reference to the appeal panel's findings under Decision No. 77/14. He stated:

After this decision, the WCB should have taken the steps to implement restrictions, and it is my position that my client should have been placed on full wage loss benefits. With regards to the latest surgery on her wrist, this further bolsters the argument that restrictions should have been implemented in 2011. Based on the Appeal's Commission's decision regarding the 1992 claim for my client's shoulder and wrist, I am requesting that the WCB retroactively pay my client full wage loss benefits from February 2011 until she turned 65 years of age.

On July 8, 2015, a WCB physiatry consultant reviewed the operative report and stated, in part:

There is no scientific literature evidence that this condition (Dupuytren's) is related in any way to any prior trauma, nor does this condition have any known association with inflammatory conditions such as De Quervain's tenosynovitis. Therefore it would be improbable that the 1992 injury to the worker's thumb would have led to the development of Dupuytren's disease. Also therefore the May 25, 2015 surgery would not be medically related to the workers original injury of December 15, 1992, now 23 years remote.

On August 13, 2015, Compensation Services advised the worker that no responsibility would be accepted for the May 25, 2015 surgery as it was not related to her work injury.

On March 3, 2016, the WCB physiatry consultant reviewed the file information regarding the need for restrictions and concluded, given the Appeal Commission decision, there was no evidence to support the medical requirement for the placement of further restrictions as related to the right shoulder soft tissue component of the original WCB claim from 1992 that has been accepted by the Appeal Commission.

In a decision dated March 8, 2016, Compensation Services advised the worker that there was no entitlement to wage loss benefits from February 18, 2011 up to age 65 as she continued to work her regular work duties up until she went off work due to her non-compensable shoulder condition and there was no medical evidence to support the need for restrictions. On April 18, 2016, the worker's legal representative appealed the decision to Review Office.

On May 13, 2016, Review Office determined that the worker was not entitled to wage loss benefits as of February 18, 2011.

Review Office noted that the Appeal Commission accepted that the worker was still experiencing pain in her shoulder, specifically around her right supra scapular and right supraspinatus. They noted while the worker had this discomfort, she was capable of working her normal duties which she did for a period of approximately twelve years until 2011. Sometime thereafter, she developed conditions in her shoulder and her right wrist that were not related to the compensable accident: a right rotator cuff bursal tear, degenerative osteoarthritis and impingement, as ruled on by the Appeal Commission, and a Dupuytren's contracture to her right wrist.

Review Office found that the worker's compensable ongoing condition did not create a loss of earning capacity as it was manageable as demonstrated for 12 years. When the worker experienced further non-compensable problems to her shoulder and wrist, it led logically that these created the disability and the loss of earning capacity, as they were not present when the worker was capable of working her full duties while managing her compensable condition.

Review Office determined that the Dupuytren's contracture was unrelated to the compensable accident. The evidence supported that the worker's compensable right shoulder and wrist conditions were stagnant, not deteriorating and no longer, to a material degree, causing a loss of earning capacity as evidenced by the 12 years of continued work in her full duties to February 18, 2011. The worker's right shoulder and wrist are afflicted with degenerative conditions, which were deteriorating and causative of her symptoms. Review Office determined that the worker's symptoms causing her disability are related to the pre-existing conditions in her right shoulder and wrist and that she was not entitled to wage loss benefits.

On June 13, 2016, the worker's legal representative 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.

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 27(1) provides that the WCB may provide the worker with such medical aid as the board considers necessary to cure and provide relief from a work injury.

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.

Worker's Position

The worker was represented by legal counsel who made a presentation on her behalf.  The worker was also assisted by an interpreter.

The worker is appealing the WCB decision that she is not entitled to wage loss benefits effective February 18, 2011.

The worker's representative acknowledged that the issue under appeal is limited to the conditions accepted by the prior panel in Appeal Commission Decision 77/14.  The representative said that he is asking the panel to adjudicate whether or not the worker should have had permanent restrictions and full wage loss benefit from 2011 going forward until she turned 65 years old.

The worker's representative noted that: 

…as a result of the worker's employment in 1992, she sustained a right shoulder injury. That claim was accepted, and up until February of 2011, she continued to work at her employment. However, throughout the years, she experienced much discomfort and immobility of her right shoulder. So [worker] stopped working in February of 2011 because of her right shoulder injury.

He submitted that, from his reading of the decision of the prior panel, a decision was never made whether or not the worker was entitled to wage loss benefits beyond 2011.

The worker's counsel noted that the worker underwent treatments for years and submitted that no one should be expected to work in pain.  He stated:

…a person should not be subject to decades of pain and suffering, and dependent on injections and other pain management techniques ongoing, monthly basically, just to be able to perform her duties at work.

The worker's representative submitted that restrictions the worker is seeking from 2011 onward, should have been in place decades ago and that the worker should have been retrained.  He submitted that:

…my position is, there should have been restrictions all the way back to 1993. And that, because there were no restrictions, my client’s shoulder became worse and worse over the years...2011, it came to a head, and there is the 2013 and 2014, and the 2013 specifically says they don’t expect that it is worse, and they don’t expect it to be getting any better any time soon, basically, is what the medical report says…

The fact that the prior panel said, because she was getting the injections, the pain didn’t prevent her from working…

And without those injections, she certainly wouldn’t have been able to work, okay. And it is common knowledge that, when somebody’s getting this type of pain management over the years, it becomes less effective.  And I think that’s clear in the 2013 report, that basically, there was no expectation, everything has, in the shoulder was getting worse and there was no expectation that it would just automatically get better.

In support of this position, the worker's representative referred to the medical information on the file, and specifically to a September 29, 1993 WCB medical advisor who opined that the worker had a permanent injury. He noted that the WCB medical advisor put her on full restrictions in 1993 and said she should be able to return to modified duties.

The worker's representative noted that this WCB medical advisor provided a completely different opinion about the worker's condition in 2016.

The worker's representative also commented on the constitutional argument raised at the prior hearing by the worker's former representative.  He stated that he agreed with the former representative that all the tribunals, including the Appeal Commission, need to abide by the decisions of the Supreme Court. 

The worker was asked by the panel whether her physicians ever told her that "you will never be able to work again, that you’re totally disabled?", the worker replied:        

They never said anything like you can go to work, or not go to work.

She also advised that the physiotherapist never said anything about working or not working.

Employer's Position

The employer did not participate in the hearing.

Analysis

The worker has an accepted claim for a workplace injury on December 15, 1992.  As noted above, the worker's claim was subject to an Appeal Commission hearing with a resulting decision in 2014. The panel is not permitted to re-adjudicate the issues or findings made by that panel and are bound by Decision 77/14.  This appeal deals with the issues raised regarding the WCB's implementation of Decision 77/14.

The issue raised by the worker is whether she is entitled to wage loss benefits effective February 18, 2011.  For the worker's appeal to be approved, the panel must find, on a balance of probabilities, that the worker sustained a loss of earning capacity after February 18, 2011 as a result of her December 15, 1992 workplace injury.  

In addressing this appeal, the panel has considered the medical information on the worker's file that is relevant to the accepted compensable injury.  In this regard, the panel notes that in Decision 77/14, the Appeal Commission determined that the worker's soft tissue complaints in the right suprascapular area were related to the 1992 accident.           

The panel also notes that in Decision 77/14, the Appeal Commission found that the following right shoulder injuries/conditions were not related to the 1992 workplace accident:

• rotator cuff bursal tear
• degenerative osteoarthritis and impingement  

The panel reiterates that it is bound by the findings of the prior panel in Decision 77/14.

Regarding the worker's claim for wage loss benefits after February 18, 2011, the panel finds, on a balance of probabilities, that the worker is not entitled to wage loss benefits effective February 18, 2011 arising from her 1992 injury.  The panel considered the condition that was accepted by the prior panel and reviewed the evidence to determine to what extent, if any, the accepted medical condition had changed from when the worker was working full-time in the period from 1999 to February 2011.  The panel found that the evidence does not indicate or provide support that the worker's accepted medical condition had changed significantly to the extent that she was not able to work at her duties.

Regarding the worker's medical condition, the panel accepts the March 3, 2016 opinion of the WCB physiatry consultant.  The consultant opined that:  

• there is no evidence to support the medical requirements for the placement of restrictions to the right shoulder soft tissue component of the original WCB claim from 1992.
• there are no accepted findings that would support total disability.  Specifically the apparent right shoulder soft tissue complaints would not be expected to support total disability.
• the claimant has been documented as performing her regular work duties from 1999 to 2011 despite having apparent right shoulder soft tissue complaints, and therefore there would not be any contraindication for her continuing to do so.  

The panel places significant weight on the information on the worker's file which indicates that the worker had not missed work between 1999 and 2011 in relation to her 1992 injury.  She continued to work full hours.  In addition to her attendance at work, the accident employer advised that the worker had not complained about her shoulder during that time.

The panel acknowledges the worker's representative's argument that no one should work in pain for 20 years.  As noted previously, the evidence that the worker worked full duties and did not miss any time from work during the period from1999 to 2011 and did not complain of pain is not consistent with the worker's representative's assertion.  The panel also notes that prior to returning to work in 1999, the worker attended a pain treatment facility on a full-time basis, which resulted in her successful return to work.

The panel finds, on a balance of probabilities, that the worker is not entitled to wage loss benefits effective February 18, 2011. The panel cannot attribute the worker's inability to work to the compensable diagnosis.  The panel notes that the worker has other conditions which have not been accepted by the Appeal Commission and which may be impacting her ability to work.

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
(on behalf of the panel)

Signed at Winnipeg this 3rd day of May, 2017