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 from July 20, 2015 to July 31, 2015. A file review was held on January 29, 2018 to consider the employer's appeal.

Issue

Whether or not the worker is entitled to wage loss benefits from July 20, 2015 to July 31, 2015.

Decision

The worker is entitled to wage loss benefits from July 20, 2015 to July 31, 2015.

Background

The worker injured his left shoulder on July 17, 2015 while employed as a delivery driver. On his Worker Incident Report submitted July 23, 2015, he stated:

I had a stack of cases of pop on my dolly. As I was pulling it back I put my left arm around the product to stabilize the load. I felt a pull in my left shoulder and it started to hurt.

The worker attended at the hospital on July 18, 2015 and was diagnosed with "left rc (rotator cuff) impingement and tendinitis." It was recommended by the physician that the worker be off work for two weeks and to treat with "ice and relative rest" and he was referred for physiotherapy. The physician also completed a Work Abilities/Modifications form noting the "Patient was unfit for any work" and detailing "due to workplace injury involving left shoulder pt to be off work for the next 2 weeks till next MD followup appt."

The employer offered the worker modified duties, effective July 20, 2015, in the form of "Clerical duties - sitting and standing as tolerated." The employer was advised by the WCB on

July 23, 2015 that the worker was entitled to wage loss benefits. The employer was advised that although the worker's healthcare provider was aware of the employer's ability to accommodate the worker, the healthcare provider supported the worker's inability to return to work in any capacity.

The WCB advised the worker, with a copy to the employer, on July 28, 2015 that he was entitled to wage loss benefits from July 20, 2015 to July 31, 2015 inclusive.

On July 31, 2015, the worker returned to his physician for a follow-up appointment and was cleared to return to work with light duties noted as a 5kg lifting restriction and no repetitive movements with his left arm. At his August 20, 2015 doctor's appointment, the worker was cleared to return to his regular duties, which he started on August 24, 2015.

The employer appealed the decision to the Review Office on November 11, 2015. The employer believed the worker was not entitled to wage loss benefits from July 17, 2015 as modified duties were offered to the worker immediately after they were notified of the accident.

In its April 20, 2017 decision, Review Office acknowledged that the employer had a return to work program and that the worker was aware that modified duties were available to him. However, it was also noted that the worker was following his doctor's recommendation to take the time off work and there was no medical evidence to support the worker returning to work on July 20, 2015.

The employer filed an application with the Appeal Commission on September 1, 2017. A file review was held on January 29, 2018.

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 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 4(2) provides an injured worker is entitled to wage loss benefits for his loss of earning capacity on any working day after the accident and no wage loss benefits are payable where the injury does not result in a loss of earning capacity.

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 Board of Directors has enacted WCB Policy 43.20.25, Return to Work with the Accident Employer, which defines suitable work as:

Suitable work is that which the worker is medically able to do, does not aggravate or enhance the injury, and will provide benefits to both the worker and the employer. Suitable work is permanent or transitional employment that takes into account the worker’s pre-accident employment, aptitudes, skills, and what work is available. It also considers any safety concerns for the worker or co-workers.

To determine if the worker is medically able to perform suitable work, the WCB will compare the worker’s compensable medical restrictions and capabilities to the demands of the work.

The WCB Board of Directors has also enacted WCB Policy 44.40.10, Evidence of Disability, which provides "Compensation benefits are payable only when there is medical, or similar, evidence of a disability arising from a compensable incident or condition."

The worker has an accepted claim for a workplace injury. The employer is appealing the WCB decision that the worker is entitled to wage loss benefits from July 20, 2015 to July 31, 2015.

Employer's Position

The employer was represented by a claims management firm. The employer's Appeal of Claims Decision form, dated September 1, 2017 states that:

The worker's physio was only once per week, thus his condition could not have been so severe, the DASH assessment score is a subjective measurement of the worker's perception of pain - it is not an objective measurement of the worker's degree of impairment. The worker would not have been more active at work performing the sedentary duties than his activities at home. The modified work could have been completed with the right arm alone.

In its March 30, 2017 submission to Review Office, the employer representative submitted, in part:

The July 23, 2015 decision letter confirms entitlement to wage loss benefits on the basis that the worker suffered an injury on July 17, 2015 and the worker's physician simply states he has an inability to work. The decision references the Worker's Compensation Act as the basis for this decision. And while the WCA does allow for wage loss benefits to be payable in a situation where a worker is disabled from work due to a workplace injury, the same act also declares issues to be determined based on the balance of probabilities. In this particular case, the balance of probabilities would support the worker being able to return to the modified duties offered by the employer.

The employer representative noted that the worker injured his shoulder on July 17, 2015 and that the employer offered modified duties for his next shift, on July 20, 2015. The modified duties consisted of clerical work in the warehouse, sitting and standing as tolerated.

The employer representative noted the physician recommended that the worker remain off for two weeks, but also referred the worker to physiotherapy. The employer representative submitted that:

On the balance of probabilities, if the worker was capable of undertaking physiotherapy treatment 2-3 times per week as of July 20, 2015, he would be just as capable of participating in the clerical duties offered to him for modified work by his employer. The facts established in the claim do not support a total disability for the period of July 18 - July 31, 2015 as the worker was capable of beginning physiotherapy treatment.

Worker's Position

The worker did not participate in the appeal.

Analysis

In this case the worker has an accepted claim for a July 17, 2015 injury and has been provided with wage loss benefits. The employer has appealed the WCB decision to pay the worker wage loss and is seeking a determination that the worker is not entitled to wage loss benefits for the period July 20, 2015 to July 31, 2015.

For the employer's appeal to be approved, the panel must find that the worker did not sustain a loss of earning capacity as a result of the July 17, 2015 injury for the period of July 20, 2015 to July 31, 2015. The panel was not able to make this finding.

The panel finds, on a balance of probabilities, that the worker sustained a loss of earning capacity for the period from July 20, 2015 to July 31, 2015 and was entitled to wage loss benefits for this loss of earning capacity.

In making this decision the panel has considered the information on the file.

With respect to the medical information, the panel notes that the worker attended for medical care on July 18, 2015. The following information is noted from this visit:

• Work abilities/Modifications form completed by physician indicated that "Patient is unfit for any work" and "due to workplace injury involving left shoulder pt to be off work for the next 2 weeks till next MD follow-up appt."

• Physical/Athletic/Massage Therapy Referral form was completed which provided a referral to physiotherapy.

• Clinic Patient Face Sheet completed. This form noted presenting problem "…felt sharp pain to his left SHD with an aching/numb sensation down the arm. He has decreased ROM due to pain, taking Advil prn, radial pulse present…No previous SHD issues…"

• On examination "tender distal RC insertion, NV intact, pain with impingement signs, no obvious swelling or ecchymosis." It provided a diagnosis of "left rc impingement and tendinitis". Physio was prescribed and off work for 2 weeks.

On July 30, 2015, a Physiotherapy Initial Assessment form was received. It indicated that "Worker reports intermittent pain (aching/shooting) down to forearm. Numbness/tingling into arms and fingers constantly. Increased pain with lifting." It noted numeric pain rating of 6 and a Disabilities of Arm, Shoulder, and Hand (DASH) score of 55.

On July 31, 2015, the worker saw a physician who reported subjective complaints : "still sore, more mobility but difficult lifting, doing PT and helping, have days where throbbing, states about 80% better, naproxen bothering stomach". The Treatment Plan indicated "cont PT, LD or off work, fup 3 weeks, tylenol, LD as per form".

Based on our assessment of the available medical information, the panel finds, on a balance of probabilities, that the worker was not fit for modified duties between July 20, 2015 and July 31, 2015.

Upon consideration of the above information, the panel finds, on a balance of probabilities that the worker sustained a loss of earning capacity between July 20, 2015 and July 31, 2015, and is entitled to wage loss benefits during this period.

The employer's appeal is dismissed.

Panel Members

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

Recording Secretary, J. Lee

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

Signed at Winnipeg this 28th day of February, 2018