The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that she is not entitled to wage loss benefits after March 31, 2017. A hearing was held on June 7, 2018 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to wage loss benefits after March 31, 2017.

Decision

That the worker is not entitled to wage loss benefits after March 31, 2017.

Background

In a Worker Incident Report filed May 13, 2015, the worker reported that she sustained an injury to her right shoulder in an incident on May 8, 2015, which she described as follows:

I was working…flipping trays and I got a pain in my right shoulder.

On May 11, 2015, the worker attended at a local emergency room where she was diagnosed with a musculoskeletal injury to her right shoulder and it was recommended that she be off work for one week and return to sedentary duties after that. The worker also attended at a physiotherapy appointment on May 11, 2015, reporting "sharp right shoulder pain with overhead use, pain with reaching outside body envelope, weakness." The physiotherapist diagnosed a right rotator cuff strain and queried an underlying tear.

On May 21, 2015, the WCB advised the worker that her claim was accepted and payment of wage loss and other benefits commenced.

An MRI of the worker's right shoulder on July 14, 2015 indicated that the worker had:

1. Full-thickness, partial-width tear involving anterior and mid fibers of the supraspinatus tendon, at the footprint. Background of moderate supraspinatus and infraspinatus tendinosis. 

2. Mild subacromial/subdeltoid bursitis, likely reactive to the rotator cuff tear. 

3. Minimal degenerative changes at the AC joint.

On November 18, 2015, the worker was seen by an orthopedic surgeon, who recommended surgery to repair the rotator cuff tear. On February 4, 2016, the worker underwent surgery which consisted of arthroscopic rotator cuff repair and acromioplasty of the right shoulder.

At a follow-up appointment with the treating orthopedic surgeon on May 25, 2016, it was noted that the worker was still recovering from surgery and was not "fit enough to get back to heavy manual activities." At a further follow-up appointment on August 26, 2016, the orthopedic surgeon noted that the worker had less pain and her range of motion was better, but she still had weakness and was continuing to go to physiotherapy. The orthopedic surgeon opined that:

I think she will probably still get some more improvement is (sic) strength and endurance but it is difficult to know if she would get enough to ever be able to return to her previous job which is quite repetitive. She tells me there are no light or modified duties. She would likely benefit from a Functional Capacity Evaluation to determine what type of work she can do.

In a Discharge Assessment dated September 9, 2016, the treating physiotherapist noted "Recommend reconditioning, sustainable for sedentary duties - light." The worker attended a four-week reconditioning program from September 19 to October 17, 2016. On October 26, 2016, the WCB conducted a job site assessment of the worker's job site. On November 30, 2016, a physiotherapy consultant conducted a Functional Capacity Evaluation.

On December 3, 2016, a WCB medical advisor reviewed the worker's claim, including the Functional Capacity Evaluation and job site assessment and opined that the medical information supported the following restrictions related to the worker's right shoulder, which would likely be permanent:

• Limiting repetitive weighted overhead work or work with the arm away from the body envelope. 

• Limiting bilateral carrying 10 lbs. 

• Limiting lifting to 10 lbs. 

• Limiting pushing or pulling to 25lbs./20 lbs.

The WCB medical advisor further opined that some of the job duties noted on the job site assessment would fall within the worker's restrictions but others reported lifting of objects above shoulder height and pushing carts, which would fall outside the restrictions.

The WCB advised the employer of the worker's permanent restrictions, and on December 14, 2016, the employer responded that they would be able to accommodate the worker within her noted restrictions. On December 14, 2016, the WCB advised the worker of her permanent restrictions, that the employer was able to accommodate her in a packaging position and that she was expected to return to work starting December 19, 2016.

On December 20, 2016, the worker contacted the WCB to advise that she had returned to work, but was only able to work one hour as the job duties she was asked to do caused her pain. It was determined that a worksite meeting would be arranged to review the worker's job duties.

A job site assessment was conducted by the WCB on February 8, 2017. Following that assessment, the WCB requested that the worker's job site be further assessed by a WCB rehabilitation specialist. On March 3, 2017, the worker attended the job site assessment with a WCB occupational therapist and a supervisor.

On March 7, 2017, the WCB occupational therapist provided her report, and on March 8, 2017, Compensation Services advised the worker of the recommendations with respect to her job duties as provided by the WCB occupational therapist. Compensation Services further advised that the employer had agreed to the noted recommendations and the worker was expected to commence a graduated return to work in an accommodated position as follows:

- Week #1 (March 13 - 17): Monday, Wednesday, Friday – half days 

- Week #2 (March 20 - 24): Monday, Wednesday, Thursday, Friday – half days 

- Week #3 (March 27 - 31): Monday, Wednesday, Thursday, Friday – full days 

- Week #4 (April 3 - 7): Monday, Tuesday, Wednesday, Thursday, Friday – full days

On March 16, 2017, the employer advised the WCB that the worker had worked her four hours on March 13 but had only worked two hours on March 15, complaining that she could not do the job.

On March 20, 2017, the worker was seen in follow-up by her orthopedic surgeon, who noted that the worker had failed at her attempt at going back to work and that "It appears she is unable to return to work due to her shoulder and the repetitive nature of her job."

On March 27, 2017, a WCB medical advisor reviewed the worker's claim and opined that activities within the body envelope would typically not engage or load the shoulder joint in a significant manner, despite their repetitive nature. The date stamp activity as per the WCB occupational therapist report could be performed within the body envelope. That activity fell within the restrictions as documented by the Functional Capacity Evaluation and concordant with the opinion of the WCB occupational therapist.

On March 28, 2017, Compensation Services advised the worker that she would be entitled to partial wage loss benefits to March 31, 2017 only. Compensation Services advised that the duties offered by her employer fell within her permanent restrictions and the worker would be entitled to partial wage loss benefits to that date as if she had worked in the graduated return to work plan schedule.

On May 1, 2017, a worker advisor acting on behalf of the worker submitted further medical information and requested that Compensation Services reconsider their decision. On May 3, 2017, Compensation Services advised the worker advisor that the further medical information did not provide any new objective medical findings which would warrant another medical opinion from the WCB medical advisor. On May 5, 2017, Compensation Services advised the worker that there was no change to their decision.

On August 31, 2017, the worker advisor requested that Review Office reconsider Compensation Services' decision. The worker advisor submitted that the worker was entitled to further wage loss benefits as the job duties the worker was performing when she returned to work aggravated her compensable right shoulder injury, making the alternate work unsuitable.

On October 10, 2017. Review Office advised the worker that she was not entitled to wage loss benefits beyond March 31, 2017. Review Office found that the job duties offered by the employer were within the worker's restrictions and abilities, and that this was supported by the WCB medical advisor's March 27, 2017 opinion. Review Office acknowledged the March 20, 2017 opinion of the worker's orthopedic surgeon, that the worker failed at return to work and would need to find a new occupation, but found that the orthopedic surgeon did not provide any clinical evidence to support his recommendation.

On December 4, 2017, the worker advisor appealed the Review Office decision to the Appeal Commission and an oral hearing was arranged.

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'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.

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 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 "Return to Work Policy"), outlines the WCB's approach to the return to work of injured workers through modified or alternate duties with the accident employer.

The Return to Work 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.

Worker's Position

The worker was assisted by a worker advisor who made a presentation on her behalf. The worker responded to questions from the worker advisor and the panel.

The worker's position was that the return to work plan was flawed; the modified duties were not suitable, and aggravated her right shoulder injury, resulting in a continuing loss of earning capacity which is related to her compensable injury.

It was submitted that the WCB determined that the date stamp position was suitable for the worker based solely on the opinion of their occupational therapist, but that opinion was flawed. The suitability of that position was made after only eight minutes of observation. An eight-minute assessment was not enough to properly determine whether the activity was suitable and would not aggravate the worker's injury over four hours.

The worker advisor submitted that the date stamp job required repetitive actions that involved the upper arm to shoulder and the evidence supports that the worker was not able to continue with this type of activity due to her compensable right shoulder injury based on the return to work hour schedule. The work placed stress on the right upper extremity which would naturally include the structures attached to the shoulder. The worker was required to hold a stamper weighing approximately one pound and to repetitively hit 500 items an hour, or 2000 items over four hours. This repetitive hammering action of the right upper arm involved movement of the structures connected to the right shoulder.

The worker advisor submitted that the worker cooperated and tried to mitigate the consequences of her injury. She returned to work and attempted the duties she was assigned twice, but could not continue with them.

The worker advised the WCB on March 20, 2017 that she had received a doctor's note indicating that she was not able to return to work. Given that the worker was taken off work by her doctor due to her compensable right shoulder injury, a loss of earning capacity existed and she was entitled to wage loss benefits under the Act.

The treating orthopedic surgeon provided a follow-up report dated April 10, 2017 in which he identified the worker's compensable work restrictions as including no repetitive, heavy or overhead work. Based on that report, the worker's job functions, including those of date stamping, were outside her restrictions.

It was submitted that the return to work plan was clearly not suitable for the worker's injury and the WCB should have amended it, as required by the Return to Work Policy, which states that suitable work is work that the worker is medically able to do by not aggravating or enhancing the injury. The date stamping clearly aggravated the worker's compensable right shoulder by increasing her pain level to the highest level and caused a decrease in function to the point that she was unable to tolerate any load with movement. It was submitted that return to work plans should be flexible and amended as needed, but this was not done in the worker's case.

As the evidence supported that the WCB was not willing to amend the plan, and the employer subsequently terminated the worker's employment due to her inability to work because of her compensable right shoulder injury, a loss of earning capacity existed and continued to exist as related to her compensable injury. As such, it was submitted that the worker is entitled to wage loss benefits after March 31, 2017.

Employer's Position

The employer provided a written submission for the panel's consideration and did not attend the hearing.

The employer's position was that they tried to modify duties and accommodate the worker as much as possible, given her restrictions. She was given the opportunity to move to the packaging unit where there was no physical stress. The function in that unit was modified, as suggested by the WCB, so the worker did not have to move her right arm above her head, as that was her main problem. As the worker was not happy doing that function, she was reassigned to the date stamp function, as suggested by the WCB. The worker complained about that function as well, and left the job. The employer noted that the worker also seemed to find the commute to work difficult and tiring.

Analysis

The issue before the panel is whether or not the worker is entitled to wage loss benefits after March 31, 2017. For the worker's appeal to be successful, the panel must find that the worker suffered a loss of earning capacity after March 31, 2017 as a result of the work-related incident. The panel is not able to make that finding, for the reasons that follow.

The panel reviewed the worker's job duties with her in detail at the hearing. With respect to the date stamp position, the panel observed that the duties themselves involved a movement of inches. Based on our review of those duties, the panel notes that the tapping or "hammering" of the product with the stamp would not be reflected at the shoulder joint.

The worker underwent an extensive four-week reconditioning program in September and October 2016. The panel accepts the findings and results of the reconditioning program, which showed an improved activity tolerance and fitness and improved functional capacity. In his report, the treating physiotherapist recommended contact with the work site to discuss a graduated return to work and if necessary a work site analysis. The panel notes that the assessing physiotherapist commented that there were some psychological barriers in the worker's return to work and that she feared re-injury.

The panel notes that there is a lack of medical evidence to support any deterioration of the worker's right shoulder condition subsequent to the time of the reconditioning program.

The panel places significant weight on the March 3, 2017 report of the WCB occupational therapist who conducted a work site and job analysis, and stated as follows with respect to the essential functions of the date stamping position:

• Worker required to pick up [items] with left upper extremity and date stamp them using a sticker gun with the right upper extremity. 

• Physical demands include: left upper extremity movement (flexion, extension, abduction and abduction), lifting up to 2 lbs., with left upper extremity, standing, fine finger movement, grasping.

The occupational therapist further opined as follows, based on the observed physical demands of that function:

This essential function does fall within [worker's] current medical restrictions. She was asked to demonstrate this function for approximately 8 minutes. She reported no increase in right shoulder pain and was able to complete the function completely with no reported or demonstrated issues. This function does not require any movement or lifting of the right shoulder rather the worker uses their left upper extremity to transfer the [items]. The supervisor reported that [worker] would be able to complete this function and would not have to rotate throughout the day.

The panel notes that in response to questions from the panel, the worker indicated that the same action would be repeated approximately eight times per minute, and that there was nothing different in that job that the occupational therapist would not have seen during the eight minute period referred to in her report.

The panel finds that the worker's demonstrated abilities and the job duties, as described by the WCB occupational therapist and as described and demonstrated by the worker at the hearing, support that the worker would be capable of performing these duties.

The panel has carefully considered but is unable to place much weight on the reports of the worker's orthopedic surgeon and the family physician dated April 10, 2017 and April 18, 2017, respectively. The panel finds that those reports were not based on a full understanding of the worker's job duties. The panel further finds that the comments by the orthopedic surgeon and the family physician are not supported by medical or clinical information.

Based on the foregoing, the panel finds, on a balance of probabilities, that the graduated return to work plan was suitable and the worker did not suffer a loss of earning capacity after March 31, 2017 as a result of her work-related incident. The worker is therefore not entitled to wage loss benefits after that date.

The worker's appeal is dismissed.

Panel Members

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 August, 2018