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 August 13, 2014. A hearing was held on June 5, 2019 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to wage loss benefits after August 13, 2014.

Decision

That the worker is entitled to wage loss benefits after August 13, 2014.

Background

The worker reported to the WCB that she injured her left elbow - shoulder in an incident at work on August 11, 2008. She described the incident as being "From the work I do." The employer filed an Employer's Accident Report with the WCB on September 11, 2008, noting an accident date of September 10, 2008 and that the worker's injury occurred due to "Repetitive Work."

The worker was seen by her family physician on August 7, 2008. The physician reported "mild to moderate tenderness noted over the lateral epicondyle…no other findings" and referred the worker for an x-ray. The x-ray was taken on August 8, 2008 and indicated "No bone or joint abnormality." At a follow-up appointment with her family physician on September 10, 2008, the worker reported shoulder pain in addition to the pain in her elbow, on abduction and rotation. The physician noted objective findings of limited abduction to just above the horizontal and that the worker reported pain upon rotation, with tenderness on the back of her shoulder. The worker was also diagnosed with a rotator cuff injury and was referred for physiotherapy.

The worker began a graduated return to work program on October 26, 2008, and on December 12, 2008, the employer was advised that the worker's temporary restrictions were to avoid lifting weights over ten pounds, no weights above shoulder level and no repetitive pushing and pulling.

On December 18, 2009, the worker reported another injury to her left shoulder while at work. This injury was initially accepted as a new WCB claim, but after reconsideration by Review Office, was accepted as an aggravation of the September 10, 2008 workplace accident. The worker underwent a left shoulder arthroscopic rotator cuff repair, distal clavicle excision, subacromial decompression and biceps tenotomy on December 14, 2010.

The worker attended a call-in examination with a WCB sports medicine advisor on December 6, 2011 due to ongoing symptoms. The WCB sports medicine advisor opined that the worker's ongoing symptoms were related to her left rotator cuff, which had been surgically repaired but the improvement in pain and function had plateaued. The sports medicine advisor recommended that a Functional Capacity Evaluation (FCE) be arranged to determine the worker's current restrictions.

The FCE was conducted on December 22, 2011. The WCB sports medicine advisor reviewed the results of the FCE and determined, on January 3, 2012, that the results were considered invalid and the following restrictions, based on the diagnosis of a left rotator cuff tear, would be considered permanent and should include:

• limitation of more than occasional use of the left upper extremity above shoulder level and beyond the body frame, and 

• limitation of repetitive resisted left upper extremity pulling, pushing and lifting.

The permanent restrictions were provided to the employer on January 3, 2012. On October 5, 2012, the employer advised that they were unable to accommodate the worker within her permanent restrictions. The worker was referred for vocational rehabilitation services and full wage loss benefits were reinstated.

On July 7, 2014, the WCB received a note from the worker's family physician indicating "…that due to medical reasons [worker] is unable to drive for more than two hours." As a result, the worker was asked to attend a call-in examination with a WCB medical advisor on August 14, 2014. Following that examination, the WCB medical advisor opined:

Many patients are able to return to full activity after a rotator cuff repair. Some do require ongoing restrictions for overhead work, work with the arm outside of the body frame, and heavy lift/push/pull/carry. This worker's current presentation supports that she requires such ongoing restrictions; however, this is based on the worker's report of symptoms and function and her unwillingness to move the arm overhead. The need for restrictions is not based on evidence of structural abnormality. Driving does not require movement of the arm outside the body frame so is not typically a restriction following a rotator cuff repair.

It should be added that the worker has complained of numbness and tingling to the 4th and 5th digits on the left hand since the surgery. She has had NCS which show mild ulnar neuropathy at the elbow. This diagnosis cannot be medically accounted for in relation to the accepted diagnosis of rotator cuff tear. This diagnosis can result from prolonged pressure over the elbow, a direct blow to the nerve, or repetitive bending/straightening of the elbow against force. None of these causes can be medically accounted for in relation to the compensable injury or any treatment for the compensable injury. As such, there is currently no medical evidence to relate this diagnosis to this claim.

On August 30, 2014, after viewing surveillance footage of the worker, the WCB medical advisor reviewed the worker's file and opined, in part:

…the video provides evidence that she does not restrict the use of her left arm outside of work. She demonstrated no limitations in movements. There would be no need for workplace restrictions in relation to this C/I [compensable injury].

On September 3, 2014, Compensation Services advised the worker that they had determined she had recovered from the effects of her workplace injury of September 10, 2008 and her current symptoms were not related to the workplace incident. Compensation Services further advised that as the surveillance of her activity was conducted between August 14 and 16, 2014, her benefits would end as of August 13, 2014, being the date prior to the first surveillance date.

On September 22, 2014, the worker requested that Review Office reconsider Compensation Services' decision, and submitted reports from her treating orthopedic surgeon and her treating physiatrist. The worker noted in her request that she had not fully recovered from the workplace accident, and due to ongoing symptoms, continued to have issues with pain management. The worker also noted that she felt the surveillance done by the WCB did not indicate any activities that were beyond her restrictions. On September 24, 2014, the worker's request was returned to Compensation Services for further investigation regarding the new medical information submitted by the worker. On October 17, 2014, Compensation Services advised the worker that the new medical information had been reviewed, and the decision of September 3, 2014 remained unchanged.

On December 2, 2014, the worker again requested that Review Office reconsider Compensation Services' decision. The worker submitted letters in support of her request from her family physician and her treating physiotherapist, together with receipts for medications she had been taking. On December 9, 2014, the worker's file was returned to Compensation Services for further investigation.

On February 24, 2015, Compensation Services advised the worker that based on the information provided with her request for reconsideration dated December 2, 2014, the WCB had a work site assessment performed on her pre-accident position on January 21, 2015 and the medical information was provided to a WCB medical advisor to review. On February 19, 2015, the WCB medical advisor provided the following restrictions for the worker:

• no lifting > 30 lbs 

• no pushing/pulling > 50 lbs 

• no sustained or repetitive work with the left arm held ≥ 60° of flexion or abduction o where repetitive would be doing the activity several times per hour over most of the typical work day 

• no ladder climbing.

Compensation Services further advised the worker that based on the restrictions provided and the work site inspection, they had determined she would be capable of safely returning to her pre-accident employment. Therefore, the worker no longer had a loss of earning capacity and was not entitled to wage loss benefits after August 13, 2014. She was, however, still entitled to medical aid benefits.

On April 10, 2015, the worker requested that Review Office reconsider Compensation Services' decision. The worker noted that she continued to have difficulties and had not fully recovered from the workplace accident.

On May 7, 2015, Review Office determined that the worker was not entitled to wage loss benefits after August 13, 2014. Review Office found that the worker was able to participate in the tasks of daily living, including helping her spouse in his business, and in the same way, could return to work within her listed restrictions. Review Office therefore determined that the worker did not have a loss of earning capacity and was not entitled to wage loss benefits beyond August 13, 2014.

On March 21, 2017, the worker's legal counsel submitted further medical information and requested that the WCB reconsider the Review Office decision of May 7, 2015. On April 4, 2017, Review Office advised there was no change to their earlier decision that the worker was not entitled to wage loss benefits beyond August 13, 2014.

On September 12, 2018, the worker's legal counsel requested that Review Office reconsider their decisions of May 7, 2015 and April 4, 2017 and submitted further medical information from an occupational therapist. On September 13, 2018, Review Office advised the worker that the new medical information had been reviewed, but there was no change to their earlier decisions.

On December 13, 2018, the worker's union representative appealed the Review Office decision to the Appeal Commission and an oral 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.

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.

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 27(1) of the Act provides that the WCB "…may provide a worker with such medical aid as the board considers necessary to cure and provide relief from an injury resulting from an accident."

Subsection 39(2) of the Act provides that wage loss benefits are payable until such 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 a union representative, who provided a written submission in advance of the hearing and made an oral presentation to the panel. The worker responded to questions from her union representative and the panel.

The worker's position was that she is entitled to further wage loss benefits as the evidence on file supports that she has an ongoing loss of earning capacity as a direct result of her compensable left shoulder injury.

The worker's union representative submitted that the available evidence supports that the ongoing effects of her compensable left shoulder injury prevented her from returning to the physical demands of her pre-accident employment.

The union representative submitted that the WCB placed too little weight on the medical evidence of the worker's disability while relying far too much on the video surveillance evidence. While it may appear there is some discrepancy between the level of activity the worker reported to the WCB and what is seen on video, it was submitted that the divergence is not sufficient to establish that she had misrepresented her injury and is inadequate to demonstrate her capacity to return to her pre-accident work.

The union representative submitted the WCB medical advisor's interpretation of the worker's reports was overly critical. It was submitted that the worker's activities, as demonstrated in the video surveillance, were not outside her permanent restrictions, and the medical advisor grossly overstated the differences between the worker's reports and her observed activities.

It was submitted that the worker never claimed to be totally disabled as a result of her injuries, and her willingness to work has been adequately demonstrated through her prior participation in modified work plans. The evidence supports that the worker was eager to do what she could to get back to work throughout the lengthy process, but raised legitimate concerns with the WCB's underdeveloped plans. The WCB found that the worker had other factors limiting her employability including a lack of formal education and limited computer skills, as well as limitations which existed in a rural setting.

The union representative submitted that regardless of how the worker's activities are interpreted, they do not establish she is capable of returning to work. It was submitted that the evidence from the worker's healthcare providers shows that the worker cannot perform her previous job duties.

The union representative submitted that the worker is entitled to further wage loss benefits because the evidence supports that her ongoing left shoulder dysfunction, which the WCB has acknowledged is a direct result of her compensable injury, results in restrictions and limitations which are incompatible with the physical demands of her pre-accident work.

While the worker had previously reported the capacity to do many of her job requirements despite her injured left arm, her employer determined they could not accommodate her based on the restrictions provided by the WCB at that time. She was optimistic that she would be able to return to her pre-accident job, but this option was eliminated when the employer decided that she would be unable to return to her pre-accident position and that a suitable permanent accommodation could not be identified.

It was submitted that the worker has not worked since October 2012, not because she is disabled, but because her permanent compensable injury prevented her return to a pre-accident job and limited her employability elsewhere.

Employer's Position

The employer did not participate in the appeal.

Analysis

The issue before the panel is whether or not the worker is entitled to wage loss benefits after August 13, 2014. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker sustained a loss of earning capacity after August 13, 2014 as a result of her August 11, 2008 workplace injury. The panel is able to make that finding, for the reasons that follow.

The panel notes that the worker's benefits were terminated largely based on the video surveillance of the worker. The panel is satisfied that the video surveillance evidence is not compelling enough that the worker's benefits should have been discontinued.

The panel is not satisfied, based on our review of that evidence, that the motions and activities the worker was performing and the length of time she was performing them were inconsistent with what she had reported being capable of doing.

The panel also carefully reviewed the notes and findings from the August 14, 2014 call-in examination, as well as the findings from the previous call-in examination by the WCB sports medicine advisor on December 6, 2011 and an examination by a physiatrist on May 11, 2016. The panel notes that the results from the December 6, 2011 and May 11, 2016 examinations are similar, and both indicate significantly greater levels of functioning than the August 14, 2014 results. In the circumstances, the panel finds that the results from the August 14, 2014 call-in examination are not a true representation of the worker's function.

The panel puts no weight on the evidence of the worker helping her husband with his business. In our review of the video surveillance, the panel notes that the worker was helping with light duties and was mostly using her right arm to do so.

The panel also notes that information on file indicates that when Compensation Services determined that the worker could safely return to her pre-accident employment, with restrictions, they did not contact the employer to advise them of this or determine whether the worker could in fact return to her pre-accident employment. The worker's evidence at the hearing was that she did not contact the employer after that, and never even thought to do so, as she understood that she was no longer employed by the employer, her employment having ended in 2012 when the accommodation ended.

In the circumstances, the panel is satisfied that the worker's wage loss benefits should not have been terminated as of August 13, 2014 and that the worker is entitled to such benefits after that date.

Given our finding that the worker is entitled to benefits, the panel is satisfied that the whole matter of vocational rehabilitation needs to be explored. The panel makes no specific findings with respect to the length of that process or the duration of any vocational rehabilitation plan, including any potential issues of mitigation, retraining and relocation.

In this regard, the panel notes that we are satisfied that the worker is not totally disabled. The panel generally accepts the physical restrictions which were in place in February 2015. The panel reviewed each of these restrictions with the worker at the hearing, and the worker agreed that they were accurate and appropriate.

The panel notes that a number of pre-existing, non-compensable cognitive restrictions have also been identified by the WCB, which limit the worker's employment opportunities, as well as limitations or challenges based on the geographic area and the nature and aspects of a small rural community and labour market.

The panel finds that issues concerning the worker's employment status with respect to the accident employer (or its successor) and whether the worker would be successful in returning to her previous employment are unclear. The panel leaves this and numerous other matters relating to this decision to be considered and adjudicated by the WCB, including matters relating to employment obligations, the worker's vocational rehabilitation status and plan, and the application of various WCB policies in this case.

Based on the foregoing, the panel finds, on a balance of probabilities, that the worker sustained a loss of earning capacity after August 13, 2014 as a result of her August 11, 2008 workplace injury. The panel therefore finds that the worker is entitled to wage loss benefits after August 13, 2014.

The worker's appeal is allowed.

Panel Members

M. L. Harrison, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

M. L. Harrison - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 2nd day of August, 2019