Decision #56/18 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he was not entitled to full wage loss benefits beyond May 17, 2017. A hearing was held on March 5, 2018 to consider the worker's appeal.
Whether or not the worker is entitled to full wage loss benefits after May 17, 2017.
That the worker is entitled to full wage loss benefits from May 18, 2017 to May 26, 2017, and partial wage loss benefits from May 27, 2017 to June 19, 2017.
The worker injured his left shoulder on May 11, 2017 in the course of his employment as a truck driver. In his Worker Incident Report filed May 17, 2017, he described the incident as:
I went to [location] and at 3am, I unhooked the trailer. I hooked a different trailer. While I was cranking the handle to a gear, it won't (sic) go with my right hand. I used my left hand and when I did, the gear jammed. The handle kind of twisted on me and I felt a pinch in my left arm to the shoulder.
I started driving again to [location] but stopped in [location] terminal because I had pain. A co-worker, [name] helped me to replace my trailer to a lighter one. I was able to drive to [location].
The worker saw his family physician on May 12, 2017, who diagnosed him with an "injured shoulder," referred him to an orthopedic specialist and recommended that he be off work. The worker was seen that same day by the orthopedic specialist, who provided the following opinion:
My present impression is that [the worker] is showing some evidence of rotator cuff damage to this shoulder. In order to investigate the probability of rotator cuff tear, arrangements were made for him to have an MRI evaluation fairly soon. In the meantime he was advised to wear a special polysling for comfort.
On May 16, 2017, the orthopedic specialist completed a Functional Capabilities Form ("FCF"). The specialist indicated in the FCF that based on his examination of the worker on May 12, 2017, the worker had a severe injury to his left shoulder at work, was waiting for an MRI evaluation for a rotator cuff tear evaluation and was not capable of resuming work yet.
On May 15, 2017, the worker had an x-ray of his left shoulder, the reported results of which were:
Moderate acromioclavicular joint osteoarthritic changes are present. The glenohumeral joint is intact. Small calcific density is seen superior to the humeral head, likely within one of the tendons and felt to be secondary to calcific tendonitis. No fractures are identified.
On May 17, 2017, the employer advised the WCB that one-handed administrative modified duties were available for the worker consistent with the following guidelines:
• The worker can self-pace and/or take micro breaks.
• Climbing ladders
• Activities using arm above shoulder level, including reaching down
• Activities which require lifting and carrying to light or medium loads.
• Holding the arm outstretched for periods especially while holding weights and applying force
• Lifting and carrying with arm above shoulder level.
Also on May 17, 2017, a WCB medical advisor provided the following opinion:
The worker reported a left shoulder injury at work on May 11, 2017. The attending physician has reported this as a serious injury. The worker should have no no (sic) duties involving work with the left upper extremity for the next month and be reassessed at that time.
On May 18, 2017, Compensation Services advised the worker that his claim for a left shoulder injury was accepted, but wage loss benefits were not authorized beyond May 17, 2017. The worker was advised that based on the information received to date, including the WCB medical advisor's opinion that he was able to return to modified duties not involving his left upper extremity and that his employer could provide him with suitable modified work, there was no entitlement to further wage loss benefits beyond May 17, 2017. The worker did not return to work at that time, stating that he was following his doctor's orders.
On June 20, 2017, the worker returned to work on temporary modified duties, with the restriction of no work with his left arm. The employer provided the following duties:
- Administration type work/assistance to the night dispatcher
- Answering phones, directing calls
- Handing out driver trip sheets and mail bags
- Assembling driver binders
- Duties may be added if available.
The worker was advised he could take recuperative breaks as needed; that the employer would pay for hours worked and the WCB would issue partial wage loss benefits based on his gross earnings.
The worker had an MRI of his left shoulder on July 8, 2017. The results of the MRI were summarized as follows:
1. Calcific tendinopathy affecting the subscapularis and infraspinatus tendons.
2. Mild acromioclavicular joint arthritis.
On July 17, 2017, the worker appealed the WCB's May 17, 2017 decision to Review Office.
On July 18, 2017, the attending orthopedic specialist advised that the worker had recovered sufficiently to return to his routine activities on July 19, 2017.
On September 5, 2017, Review Office determined that the worker was not entitled to full wage loss benefits beyond May 17, 2017. Review Office found that the medical evidence on file indicated that the worker was capable of returning to work as of May 17, and that reasonable restrictions were recommended by the WCB's medical advisor. As the worker's restrictions could have been accommodated by the employer, there was no loss of earning capacity.
Review Office noted that the worker's doctor recommended that the worker remain off work until further diagnostic testing was completed. Review Office was of the view, however, that a confirmed diagnosis was not necessary to provide accurate and safe restrictions for the worker, as the worker was not expected to use his left arm or shoulder in any way.
On September 26, 2017, the worker appealed the Review Office decision to the Appeal Commission, and an oral hearing was arranged.
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.
Under subsection 4(2), 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) 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.
WCB Policy 43.20.25, Return to Work with the Accident Employer (the "Policy"), outlines the WCB's approach to the return to work of injured workers through modified or alternate duties with the accident employer.
The Policy describes suitable modified or alternate work as follows:
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 worker was self-represented. The worker made a presentation at the hearing, and responded to questions from the panel.
The worker's position was that he did not refuse to go back to work on light duties; he was simply following his doctor's orders. He had been hurt at work. He had no problem going back to work light duties, but needed his doctor's authorization and signature before doing so. He had to wait a couple of days to see his doctor. When he saw him, his doctor would not authorize him returning to work. His doctor wrote on the FCF that the worker could not resume work yet. The worker said that he was not going to go back to work when his doctor told him not to do so.
The worker said that when he had been hurt before and was on compensation, he had been told to stay home until he got better. He felt pressured in this case. He was in pain and on medications. He had not been offered physiotherapy or anything, and had simply been told to go back to work on light duties.
The employer was represented by its Human Resources Director. The representative advised that the employer agreed with the Review Office decision that the worker was not entitled to full wage loss benefits beyond May 17, 2017.
The representative submitted that the medical information indicated that the worker suffered an injury to his left arm and shoulder only. He was not fully disabled. He was familiar with return to work programs and the ability to work with restrictions. The employer had over 300 non-driving positions in their office, and was definitely able to accommodate the worker.
It was submitted that the worker openly admitted to not returning to work for reasons which were not related to his injury, including employment-related issues. Information on file showed that the worker had also advised that he did not want to do the work being offered as he felt it was boring, and that he had informed his doctor he could not manage.
The issue before the panel is whether or not the worker is entitled to full wage loss benefits after May 17, 2017. For the worker's appeal to be successful, the panel must find that the worker was totally disabled or unable to return to work with modified duties after May 17, 2017 as a result of his May 11, 2017 workplace injury. The panel is able to make that finding, in part.
The panel finds that the worker is entitled to full wage loss benefits from May 18 to May 26, 2017, and partial wage loss benefits from May 27 to June 19, 2017, for the reasons that follow.
The panel notes that the worker confirmed at the hearing that the issue related to a loss of earning capacity and wage loss benefits between May 18, 2017 and June 19, 2017.
Based on the evidence which is before us, the panel finds that the worker was not able to return to work as at May 18, 2017. The panel notes that information on file shows that the employer provided an FCF, to be completed by the attending physician, on May 15, 2017. This was just four days after the accident. It was indicated in a handwritten noted on the FCF that the employer could accommodate the worker in the office with one-handed duties.
The attending orthopedic specialist completed the FCF one day later, on May 16, 2017, by writing across the boxes representing possible limitations or accommodations that the worker "cannot resume work yet." The specialist expressly noted on the FCF that the worker had a "severe injury" to his left shoulder and his shoulder was "very painful and stiff." The panel accepts the orthopedic specialist's assessment, based on his examination of the worker, that the worker was not yet capable of working at that time as a result of his workplace injury.
The panel is further satisfied that the evidence supports that the worker was able to return to work on modified duties as of May 27, 2017.
In this regard, medical information on file shows that the worker was seen by the attending orthopedic specialist at a follow-up examination on May 26, 2017. In his letter to the WCB dated June 5, 2017, the orthopedic specialist stated that the range of motion of the worker's left shoulder was slightly better on May 26, 2017. The specialist went on to state that under the circumstances, he felt that the worker was not fit to return "to his usual work." While the worker has argued that his doctor was telling him not to work, the panel is of the view that the specialist's statement clearly shows that he was no longer supporting that the worker was totally disabled or that the worker should be taken off work completely as of May 26, 2017.
The panel notes that the worker did go back to work on modified duties on June 20, 2017. The worker confirmed at the hearing that the work he was performing at that time consisted of various one-handed administrative duties and he had no problem doing them. In response to questions from the panel, the worker acknowledged that he would have been able to do these same duties one month earlier, and that the status of his shoulder remained steady during that period of time.
The panel further notes that a memorandum with respect to a return to work meeting on June 19, 2017 indicated that the available modified duties would be less than full-time. It was noted that the employer would pay for hours worked, and the WCB would review the worker's earnings to see if he would be entitled to a "top up." Information on file also shows that the worker was in fact paid partial wage loss benefits from June 20, 2017 to July 19, 2017, when he returned to his full regular duties.
Based on our review of all of the evidence which is before us, the panel is satisfied that the modified duties which the worker was performing from June 20, 2017 onward would have been suitable and available on May 26, 2017. The panel therefore finds that as of May 27, 2017, the worker was able to return to work with the same type of modified duties as the administrative duties he was performing approximately one month later. To the extent that those duties would have been less than full-time, the panel finds that the worker would have suffered a loss of earning capacity and is therefore entitled to partial wage loss benefits on that basis.
Based on the foregoing, the panel finds, on a balance of probabilities, that the worker suffered a loss of earning capacity and is entitled to full wage loss benefits from May 18, 2017 to May 26, 2017 inclusive, and to partial wage loss benefits thereafter, from May 27, 2017 to June 19, 2017 inclusive.
The worker's appeal is therefore allowed, in part.
M. L. Harrison, Presiding Officer
A. Finkel, Commissioner
M. Payette, Commissioner
Recording Secretary, J. Lee
M. L. Harrison - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 3rd day of May, 2018