The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The employer is appealing the decision made by the Workers Compensation Board ("WCB") that the worker was entitled to wage loss benefits after June 12, 2015. A hearing was held on May 18, 2017 to consider the employer's appeal.

Issue

Whether or not the worker is entitled to wage loss benefits after June 12, 2015.

Decision

That the worker is entitled to wage loss benefits after June 12, 2015.

Background

The worker filed a claim with the WCB for a left shoulder injury that occurred on April 26, 2014 when he slipped and caught himself with his left arm during the course of his employment as a truck driver.

On April 30, 2015, the worker sought medical attention and was diagnosed with a partial tear of the left rotator cuff and a left shoulder acromioclavicular strain. In a medical certificate dated April 30, 2015, the treating physician advised that the worker was capable of light duty work for two weeks and was unable to use his left arm for work other than keyboard/paper activities.

On May 11, 2015, the worker advised the WCB that he had been working modified duties since his accident and that his arm was still quite sore.

Medical information showed that the worker attended physiotherapy treatment which was accepted as a WCB responsibility. On May 29, 2015, the treating physician noted that the worker's recovery was not satisfactory and an MRI assessment was suggested.

On June 10, 2015, the worker advised the WCB that his shoulder was better and that the severe pain was gone. He thought he would be back to his regular duties soon and that he was still doing modified work duties - light assembly work.

In a report to the WCB dated June 11, 2015, the treating physiotherapist stated:

Based on the current history and my physical examination, I have determined [worker] can return to regular duties on Saturday June 13, 2015 at [employer]. He will be reassessed in 2 weeks to determine his physical status following his return to work.

In a doctor progress report dated July 10, 2015, the treating physician noted that the worker was "in therapy and still pain with load at rehab, pain with away from body use." The treatment plan outlined for the worker was to continue with rehab and await the MRI results to determine any internal pathologies and treatment options.

In e-mail correspondence dated June 16, 2015, the WCB adjudicator advised the employer that "after receiving confirmation from [physiotherapist], it is in his opinion that [worker] is able to perform his regular duties at work. Since [worker] has returned to work his claim has been completed and has been closed by the Worker's (sic) Compensation Board barring any unforeseen circumstances."

An MRI of the left shoulder taken July 29, 2015 revealed "Mild AC arthrosis with considerable clavicular head edema" and "Cuff tendinosis as described."

On September 1, 2015, the worker advised his case manager that "his shoulder is not doing very good…the employer laid him off at the end of June indicating not enough work but he does not believe that is true as all the other truck drivers are still worker (sic) and still busy."

In a second phone conversation with the WCB case manager on September 1, 2015, the worker indicated "…he was laid off either June 16 or 17. On June 11 he attended the physio and asked if he could return to regular duties. Physio wrote a letter dated June 11/15 - he took it to his employer on June 12/15. The employer indicated they had no loads for him. On June 15 they also indicated there were no loads…On June 16/15 he attended his employer, all his stuff was out of the truck in front of it and the employer indicated they needed to lay him off due to a shortage of work. The worker never worked one day of regular duties…He worked modified duties putting in set screws and separating parts. Worker states his left shoulder still causes pain although not as much…He states he has no power or strength with his arm above shoulder level. Waist to chest level okay, anything above is painful. Holding the phone causes pain on top of shoulder."

On September 28, 2015, the employer advised the WCB case manager that the worker was laid off on June 17, 2015 and that the worker provided a letter indicating he was capable of returning back to regular duties. He said the worker never worked regular duties as there were no loads to go out. On April 17 there were 31 employees laid off in the plant and on May 25 another 27 employees were laid off. The worker was the only driver that was laid off due to seniority on June 17/15.

The worker's claim file was reviewed by a WCB medical advisor on October 13, 2015. He stated that the initial diagnosis related to the workplace accident was a left shoulder/acromioclavicular joint sprain/strain. He noted that material/functional recovery would typically be anticipated over a period of weeks, but not typically months. Based on the doctor's report of September 15, 2015 and the July 29, 2015, MRI findings, it was probable that the worker's current shoulder complaints were accounted for in relation to the workplace incident of April 26, 2015. The treating physician proposed a shoulder injection and the medical advisor indicated that this would be a reasonable approach.

On October 14, 2015, the WCB case manager spoke to the treating physiotherapist regarding his letter dated June 11, 2015. The physiotherapist indicated "the worker had asked him for the note to return to regular duties although the physio was of the understanding that he was going to do a lighter duty job of just driving and not loading and unloading. He did not feel the worker was back to pre-accident status and therefore he was to be reassessed 2 weeks after returning."

On October 21, 2015, the employer advised the WCB case manager that the worker's last day of work was June 15/15 which the employer will pay him 3 hours to clean out his truck. The adjudicator advised the employer that WCB would be paying the worker 5 hours on June 15 and full wage loss from June 16 to present.

In a decision to the employer dated October 21, 2015, the case manager stated, "The worker is eligible for wage loss benefits as of June 15, 2015 as the worker did not work his regular duties confirming he was capable of doing so, he was laid off from his employ and medical documentation on file indicates he had not recovered from his compensable injury. As such, wage loss benefits have been paid from June 15, 2015 to present."

On April 13, 2016, the employer's representative appealed the WCB decision to pay the worker wage loss benefits after he was laid off by the employer. The representative said the file evidence was clear that the worker was fully fit to resume work without any physical or other restrictions, as of at least June 16, 2015. After that date, there was no compelling medical or other evidence to indicate that the worker was disabled from work. The representative noted that the employer delayed any lay off of the worker (for economic reasons) pending his recovery from the work injury. It was only after the employer was advised that the worker was recovered and was physically capable of working his full duties without restrictions that they layed him off, after delaying his lay off for his sake.

On May 12, 2016, Review Office determined that the worker was entitled to wage loss benefits after June 12, 2015. Review Office stated that the file evidence supported that the worker had a continuance of his compensable injury and was disabled beyond June 12, 2015. Review Office attached weight to the October 19, 2015 discussion the case manager had with the physiotherapist. It also referred to other file evidence to support that the worker could not perform his pre-accident duties as of June 12, 2015. Review Office concluded that the worker had a compensable loss of earning capacity after June 12, 2015 and was entitled to wage loss benefits.

On July 19, 2016, the employer's 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 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.

The WCB has accepted the worker's claim. The employer disagrees with the Review Office decision that the worker is entitled to benefits after June 12, 2015.

Employer's Position

The employer was represented by its Safety Manager who was accompanied by two other officers of the employer.

The employer representative advised that the worker was employed by the firm for 112 days, from February 24, 2015 to June 16, 2015. He explained that the worker was injured while working and trying to remove a piece of plastic wrapping that had come loose while he was driving his tractor trailer down the highway. He noted that the worker said the wind blew him off his truck and trailer, and he injured his shoulder trying to hang on. He also noted that the wind that day was eight kilometers an hour.

Regarding the worker's return to work, the employer representative noted:

• around June 11, 2015, the worker received permission to return to work. He told the WCB representative that he could return to full duties.

• slow sales during 2015 lead to the permanent layoff of 40 employees, including the worker.

• the employer received documentation from both the worker's physiotherapist and the WCB prior to layoff, that the worker could return to regular duties.

• the employer representative personally spoke to the WCB representative and stated that our intent was to lay off the worker due to a decline in orders, and to ensure that everything was acceptable for the layoff.

• the WCB representative confirmed by phone and by e-mail, that the worker may return to his full regular duties.

• as the worker was the most junior driver on their team his position remains unfilled to this day.

• the worker then claimed his shoulder was now not good enough to return to work, and he would need to receive further therapy for this injury. This information was not given to the employer for four months afterwards. The employer was not aware that the worker was still injured.

• the worker received compensation for his injury, and the WCB eventually advised the employer that the worker was receiving benefits. The employer suggested that during that time the worker could have returned to modified duties.

• on October 13th, a WCB medical advisor reviewed the worker's claim and, in part, opined: Considering the MRI findings and the ongoing clinical findings, it is probable that the worker's current shoulder complaints are accounted for in relation to the April 26, 2015 incident."

The employer representative noted that while on WCB benefits, the worker complained of two additional injuries. He submitted that the worker did not wish to participate in modified duties and the return to work program.

The employer representative was asked about the July 29, 2016 MRI which indicated that mild AC arthrosis was present and a considerable edema was identified within the distal clavicle. He replied that:

We don’t know what has occurred from that time on. That wasn’t identified on the original report.

In further discussion, the Manager raised the possibility that the injury recorded on the MRI was caused by an intervening event because it was taken 6 weeks after the worker had been declared fit to return to work.

The employer representatives agreed that it is their positon that the worker was no longer injured from the initial injury by June 12, 2015. They attached weight to the July 11, 2015 note from the treating physiotherapist and a June 16, 2015 e-mail from the WCB adjudicator.

Worker's Position

The worker did not participate in the hearing.

Analysis

This is an employer appeal. The employer disagrees with the WCB Review Office decision that the worker is entitled to wage loss benefits after June 12, 2015.

For the employer's appeal to be approved, the panel must find, on a balance of probabilities, that the worker's loss of earning capacity and need for medical aid assistance after June 12, 2015 was not related to the accepted workplace injury. In other words, the panel must find that the worker had recovered from the workplace injury. The panel was not able to make this finding.

The panel finds, on a balance of probabilities, that the worker continued to sustain a loss of earning capacity and continued to require medical aid after June 12, 2015.

The panel reviewed the complete file and considered the written and oral submissions of the employer in considering this appeal. The panel has also carefully reviewed the medical evidence relating to the worker's injury. The panel finds there is an abundance of evidence after June 12, 2015 supporting the WCB decision that the worker had not recovered from his work accident by June 12, 2015.

The panel attaches weight to the following medical evidence that arose through the ongoing management of the worker's claim:

• July 10, 2015 treating physician report that the worker was still in therapy and had pain with certain movements.

• July 29, 2015 MRI of the worker's left shoulder which revealed mild AC arthrosis with considerable clavicular head edema and cuff tendinosis.

• September 15, 2015 treating physician report that the worker had limited use above the shoulder and that he was continuing rehab at home. He also advised that he would consider an injection for pain.

• October 23, 2015 opinion of the WCB medical advisor who reviewed the medical information and concluded that the worker's current shoulder complaints were accounted for in relation to the workplace incident.

The employer placed significant weight on the June 11, 2015 medical note from the treating physiotherapist. He also relied upon the e-mail note, dated June 16, 2015 from the WCB adjudicator and the conversations with the adjudicator at that time.

In regards to the physiotherapist's June 11, 2015 note, in a later conversation with the adjudicator, the physiotherapist explained that "the worker had asked him for the note to return to regular duties although the physiotherapist was of the understanding that he was going to do a lighter duty job of just driving and not loading and unloading. He did not feel the worker was back to pre-accident status and therefore he was to be reassessed 2 weeks after returning."

The panel finds the physiotherapist's actions and explanation are consistent with the evidence on file and supportive of the conclusion that the worker had not recovered by June 12, 2015.

The panel notes that at the hearing, the employer representative indicated that the employer should be entitled to cost relief and also expressed dissatisfaction with the impact of the worker's pre-existing conditions and his prolonged recovery. The panel noted that the issue of cost relief had already been dealt with by the Appeal Commission.

Given the panel's findings, the employer's appeal is dismissed.

Panel Members

A. Scramstad, Presiding Officer
R. Hambley, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 15th day of June, 2017