The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he is not entitled to full wage loss benefits for the period March 20, 2017 to June 25, 2017. A hearing was held on February 27, 2019 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to full wage loss benefits for the period March 20, 2017 to June 25, 2017.

Decision

That the worker is entitled to full wage loss benefits for the period March 20, 2017 to June 25, 2017.

Background

On December 20, 2016, the worker reported to the WCB that he injured his right shoulder in an incident at work on December 12, 2016. He described the incident as: 

I was loading my vehicle with some parts (I believe it was a bumper) when I felt something go in my shoulder. 

The worker sought medical treatment for his right shoulder on December 15 and December 20, 2016. An x-ray of the worker's right shoulder on December 20, 2016 indicated: "The glenohumeral joint is intact. There are mild degenerative changes at the acromioclavicular joint. Moderate degenerative changes are seen involving the greater tuberosity and glenohumeral joint. No acute bony abnormalities are identified." 

On December 28, 2016, the worker was seen by a sports medicine physician. The physician noted that the worker's shoulder was tender anteriorly and his range of motion was limited. The worker was diagnosed with a rotator cuff tendinopathy, and restrictions of no lifting, carrying, or pushing/pulling of greater than five pounds, partial use of the right hand and no raising the right arm above shoulder height were recommended. The worker returned to work on modified duties on January 11, 2017. 

At an initial physiotherapy assessment on January 5, 2017, the worker reported sharp pain with certain movements and progressively worse pain when his arms were at shoulder height. The physiotherapist diagnosed the worker with a right rotator cuff strain.

At a follow-up appointment with the treating sports medicine physician on January 26, 2017, the worker's diagnosis was noted to be a rotator cuff/biceps tendinopathy, and it was recommended that the worker continue on light duties for a further three weeks. The restrictions were updated to indicate that the worker could not lift, carry or push/pull greater than ten pounds. 

On March 20, 2017, the worker contacted the WCB to advise that on March 12, 2017, while on holidays, he felt severe pain in his shoulder, and was unable to work due to the pain. On March 22, 2017, the worker attended a follow-up appointment with the sports medicine physician who noted the worker's increased pain after March 12, 2017 and referred the worker for an MRI. The orthopedic surgeon also recommended modified duties of sedentary/office work only with no driving as it aggravated the worker's condition. 

An MRI of the worker's right shoulder on April 12, 2017 indicated: 

Moderate AC [acromioclavicular] and mild glenoid osteoarthritis. 

Cuff tendinosis with partial articular surface tears in the anterior supraspinatus and adjacent cephalad subscapularis. 

On April 21, 2017, the worker's treating sports medicine physician reviewed the MRI with the worker and referred him to an orthopedic surgeon.

The worker's file was reviewed by a WCB orthopedic consultant on April 27, 2017. The WCB orthopedic consultant opined that the worker's current diagnoses related to the workplace accident were tears of the rotator cuff and biceps tendon and the main pain generators were tendinosis of the rotator cuff and biceps. The WCB orthopedic consultant's recommended restrictions, pending the worker being seen by an orthopedic surgeon were: no tasks with the right upper limb above shoulder level; no resisted tasks with the right upper limb away from the side of the body; and no lifting, carrying, pushing or pulling more than 20 pounds with the right upper limb. 

These restrictions were provided to the worker and the employer on April 27, 2017. The worker was advised the employer could accommodate him, with reduced hours, and the worker returned to work on May 1, 2017. The worker contacted the WCB on May 2, 2017 and advised that due to ongoing difficulties with pain in his shoulder, he could not continue working. On May 2, 2017, the worker was seen by the orthopedic surgeon who recommended a subacromial decompression and possible rotator cuff repair and placed the worker on a surgical wait list. 

On May 3, 2017, the worker was seen by the treating sports medicine physician who noted that the worker's pain increased when he returned to work under the restrictions provided by the WCB and provided recommended restrictions of sedentary/office work only and noted "Patient unable to drive due to aggravation of pain. May do light duties if they do not require him to drive." 

On May 8, 2017, the WCB advised the worker that he would continue to be paid partial wage loss benefits until the date he has the surgery as recommended by the orthopedic surgeon, as his employer continued to be able to accommodate the worker within his restrictions. The WCB confirmed that there was no restriction on the worker's ability to drive but the worker had advised he was not able to drive due to ongoing difficulties. On June 1, 2017, the worker was again advised of his temporary restrictions of no tasks with the right upper limb above shoulder level, no resisted tasks with the right upper limb away from the side of the body and no lifting, carrying, pushing or pulling more than 20 pounds with the right upper limb. The WCB confirmed that the medical information from the orthopedic surgeon had been reviewed but there was no change to the restrictions. The worker was reminded that his employer continued to have modified duties available for the worker. 

On June 26, 2017, the worker underwent a subacromial decompression, debridement remnant of long head biceps and right rotator cuff repair. Full wage loss benefits were reinstated. 

On September 12, 2017, the worker's representative requested that Review Office reconsider the WCB's May 8, 2017 decision. The worker's representative advised that they disagreed with the decision that he was not totally disabled from working and that his employer had suitable job duties available. The worker's representative noted that the worker felt he should have received full wage loss benefits for the period of March 20, 2017 to June 25, 2017, as the job duties he did perform aggravated his right shoulder difficulties to such an extent that his treating physician advised him to discontinue the driving at work which was causing the aggravation. It was further noted that no other modified or alternate work was offered. 

On September 26, 2017, Review Office determined that the worker was entitled to partial wage loss benefits for the period of March 20, 2017 to June 25, 2017. Review Office found that the modified duties provided by the employer were suitable and were within the worker's restrictions and as such, the worker was entitled to partial wage loss, based on the return to work schedule of four hours per day, five days per week, for the period of March 20, 2017 to June 25, 2017. 

On April 26, 2018, the worker's representative submitted new medical information and requested that Review Office reconsider their September 26, 2017 decision. The worker's representative submitted a narrative report from the worker's orthopedic surgeon regarding the restrictions placed on the worker prior to the rotator cuff repair in June 2017, together with the worker's summary of events leading up to the June 26, 2017 surgery. 

On May 10, 2018, Review Office determined that it was appropriate to pay the worker wage loss benefits, less an amount the worker would have earned if he had performed the modified duties offered by the employer. Review Office considered the report of the worker's treating orthopedic surgeon who opined that the worker's driving duties may have caused an exacerbation of his shoulder difficulties and that he would have placed further restrictions on the worker when advised that those duties did cause an increase in symptoms. Review Office found that this statement was made months after the worker attempted the modified duties in May 2017. 

Review Office relied and placed weight on the WCB orthopedic consultant's opinion of April 26, 2017 which provided restrictions, but none on the worker's driving. Review Office acknowledged the worker's concerns regarding his right shoulder pain but also found that the employer had provided suitable modified duties, on a part-time basis, that were within the worker's restrictions. Accordingly, Review Office found that it was appropriate to pay the worker wage loss benefits, less the amount the worker would have earned if he had performed the modified duties made available by his employer. 

On May 18, 2018, the worker's representative appealed the Review Office decision to the Appeal Commission and an oral hearing was arranged.  

Following the hearing, the appeal panel requested additional medical information prior to discussing the case further. The requested information was later received and was forwarded to the interested parties for comment. On June 17, 2019, the appeal panel met further to discuss the case and render its final decision on the issues under appeal.

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 provided a written submission in advance of the hearing and made a presentation to the panel. The worker responded to questions from the worker advisor and the panel. 

The worker's position was he was entitled to full wage loss benefits from March 20 to June 25, 2017, as he was unable to continue performing the work duties previously provided because his compensable right shoulder injury was being aggravated by them, which also posed a safety hazard for him and other motorists.

The worker's representative asked that the panel attach greater weight to the opinions of the treating sports medicine physician and orthopedic surgeon over that of the WCB orthopedic consultant. The representative submitted that the restriction recommendations in the treating physicians' opinions accounted for both internal and external factors affecting the worker's right shoulder. It was submitted that this is more in keeping with the Return to Work Policy as regards suitable modified or alternate work. 

The worker's representative noted that it was not that the restrictions which the WCB orthopedic consultant provided were inappropriate, but that they were not expansive enough, in that they did not account for the worker's driving duties. 

It was submitted that the treating physicians stated that the provided job duties aggravated his right shoulder to the point that he could not continue to perform those duties safely. The worker's representative submitted that it was reasonable for the worker to follow the advice of his treating physician and discontinue delivery driving duties that were aggravating his right shoulder. It was further submitted that pain which distracts a driver is a significant safety concern for everyone within the vicinity. 

The representative submitted that it was therefore reasonable for the worker to discontinue the job activity, as recommended, and because the accident employer could not provide any alternate accommodation, the worker experienced a loss of earning capacity for which full wage loss benefits are payable. 

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 full wage loss benefits for the period March 20, 2017 to June 25, 2017. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker sustained a loss earning capacity between March 20 and June 25, 2017 as a result of his compensable injury. The panel is able to make that finding. 

The panel accepts the opinions and ongoing recommendations by the treating sports medicine physician regarding the need for a driving restriction. The panel finds that the driving restriction was appropriate in this instance, given the worker's shoulder diagnosis and subsequent surgery. The panel places weight on the March 23, 2018 opinion from the treating orthopedic surgeon, who opined, in part: 

In many cases patients are able to drive smooth roads without too much discomfort although I have had many patients with rotator cuff disease tell me that extended periods of driving particularly on bumpy road and particularly when driving heavier vehicles such as small and large delivery trucks they had had difficulties because of the increased vibration experienced within those cabs and the pain that it elicits from a symptomatic shoulder. While I would have had no issue with [the worker] attempting this activity I would not have been surprised again if it exacerbated the shoulder and as such would have placed restrictions on him based on that finding…. 

In [the worker's] case specifically he did attempt to go back to what will be considered preliminary restrictions. These were not sufficient and as such I would have modified them at the time to be more encompassing. 

The panel places less weight on the restrictions as suggested by the WCB orthopedic consultant, which were of a very general nature. The panel notes that question which was put to the consultant was simply "6. Please outline restrictions and duration." While "no driving" restrictions had already been proposed by the treating physician, there is no indication that this was brought to the consultant's attention or that he was aware of this or asked to comment on it. 

Similarly, the WCB orthopedic consultant was not asked about the effect of driving on rough or bumpy roads and whether the bouncing associated with driving the employer's delivery vehicle might aggravate or enhance the worker's right shoulder conditions, not did the WCB orthopedic consultant comment on this. 

In the circumstances, the panel finds that it was reasonable and appropriate for the worker to follow the treating physician's recommendation of no driving. The evidence shows that the employer was not able to accommodate the worker with other modified duties. 

Based on the foregoing, the panel finds, on a balance of probabilities, that the worker sustained a loss of earning capacity as a result of his compensable injury between March 20 and June 25, 2017. The panel therefore finds that the worker is entitled to full wage loss benefits for the period March 20, 2017 to June 25, 2017.

The worker's appeal is allowed.

Panel Members

M. L. Harrison, Presiding Officer
J. MacKay, 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