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 July 28, 2018 to December 9, 2018. A hearing was held on August 29, 2019 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to full wage loss benefits for the period July 28, 2018 to December 9, 2018.

Decision

That the worker is not entitled to full wage loss benefits for the period July 28, 2018 to December 9, 2018.

Background

On April 27, 2017, the worker filed a Worker Incident Report with the WCB reporting that he injured his right shoulder in an incident at work on March 1, 2017. The worker described lifting a five gallon pail of asphalt and feeling a pull in his right shoulder.

In a conversation with a WCB adjudicator on May 2, 2017, the worker confirmed the mechanism of injury. He noted that he completed the shift, and he and his co-worker were put on light duties shortly after that. The worker advised that he tried to work through the pain, but sought physiotherapy treatment on March 7, 2017 when the pain did not go away. The worker said he did not initially file a claim with the WCB as he did not realize how serious his injury was until he underwent an MRI on April 21, 2017, which indicated he had tears in his shoulder.

In a Doctor First Report dated May 9, 2017, the worker's family physician reported to the WCB that she saw the worker on March 23, 2017 regarding his right shoulder. The family physician indicated the worker had reported "Lifting 5 gallon pale (sic) full of concrete into truck with Rt [right] hand while doing abduction motion." The physician diagnosed the worker with a shoulder sprain and placed him off work until April 2, 2017 inclusive.

At a follow-up appointment on April 13, 2017, the family physician queried whether the worker had a rotator cuff tear as per his physiotherapist, and noted decreased active and passive range of motion and "pain at all extremes of movement." The physician recommended the worker continue with physiotherapy, massage and chiropractic treatment, and remain off work until June 30, 2017. At a further follow-up appointment on April 26, 2017, the worker's family physician reviewed the April 21, 2017 MRI report and referred the worker to an orthopedic surgeon.

On May 25, 2017, the worker attended a call-in examination with a WCB orthopedic consultant. The WCB orthopedic consultant opined that the worker's diagnosis was a rotator cuff lesion, which was consistent with the reported mechanism of injury. The consultant further opined that the worker would likely need surgical repair of the rotator cuff lesion. The consultant stated that the worker was not totally disabled from working, and recommended restrictions of no overhead tasks with the right upper limb, no resisted tasks repetitively with the right upper limb away from the side of the body, and no lifting and carrying more than 20 pounds with the right upper limb, to be reviewed in 6 weeks. The recommended restrictions were provided to the employer, who advised the WCB on June 14, 2017 that they could not accommodate the worker within his restrictions at that time.

On February 21, 2018, the worker underwent right shoulder arthroscopy with a superior labral repair and long head of biceps tenotomy. At an initial post-surgery appointment with the physiotherapist on March 27, 2018, the worker's restrictions were noted to be light sedentary duties with the left arm only and no lifting or usage of the right arm. The restrictions were provided to the employer, who advised on April 3, 2018 that they could not accommodate the worker with his restrictions.

On June 7, 2018, the worker attended a further call-in examination with a WCB physiotherapy consultant. The WCB physiotherapy consultant noted that the worker felt he had "plateaued" in terms of function. A reconditioning program was recommended to improve the worker's strength and function. The worker's workplace abilities based on the call-in examination findings were noted as: right arm lifting up to 10 pounds within the body envelope, right arm lifting up to 5 pounds outside the body envelope, no right arm work above shoulder height, and avoid right arm repetitive resisted work outside the body envelope, to be reviewed in 4 weeks.

The employer was advised of the worker's temporary restrictions on June 20, 2018. A gradual return to work was also recommended, starting with 4 hours per day and progressing by adding 2 hours per week, over a course of 4 weeks. The employer confirmed that they were able to accommodate the worker within his restrictions as of June 25, 2018. On June 26, 2018, the employer advised the WCB that the worker was not participating in the graduated return to work plan, as the worker had indicated that his treating physician did not agree with him returning to work and had recommended he remain off work until July 31, 2018.

On June 29, 2018, the WCB's Compensation Services advised the worker that as he had elected not to participate in the graduated return to work program and his employer confirmed they could accommodate him with modified duties to start June 25, 2018, he would be paid wage loss benefits based on the graduated return to work plan as outlined, being 4 hours per day for the week of June 25, 6 hours per day the week of July 2, and the full 8 hours per day as of the week of July 9, 2018.

On July 24, 2018, the worker saw his family physician, who noted that the worker could "perform light duties per PT assessment by WCB, functional limitations specified in assessment; Gradual return to work with very light duties as specified in PT assessment by WCB…"

On June 29, 2018, the worker began the recommended reconditioning program, with an expected completion date of July 27, 2018. In the July 27, 2018 discharge report completed by the physiotherapist, it was noted that the worker "…has not been responsive in our attempts to strengthen his shoulder" and that the worker felt he would not be able to tolerate any tasks he would be required to do if he returned to work.

On July 30, 2018, based on the July 27 discharge report and a telephone conversation with the attending physiotherapist, the WCB physiotherapy consultant noted the worker's current workplace abilities to be pushing up to 45 pounds, pulling up to 60 pounds, right hand carrying up to 20 pounds within the body envelope, and right arm lifting outside the body envelope and above shoulder height up to 5 pounds, to be reviewed in 4 weeks. The worker and the employer were advised of the worker's restrictions on July 31, 2018.

By letter dated August 8, 2018, the worker's family physician advised the WCB that the worker was unable to return to work as of July 18, 2018 "…due to Rt shoulder pain and insomnia." The physician noted that the worker had informed her that the worker's treating orthopedic surgeon had recommended the worker was not fit to return to work and she was awaiting his recommendations and consults.

On August 29, 2018, a WCB sports medicine consultant reviewed the worker's file with respect to a proposal by the treating orthopedic surgeon for diagnostic surgery. On September 6, 2018 the sports medicine consultant advised the surgeon that the WCB accepted financial responsibility for the proposed diagnostic procedure.

On September 12, 2018, the WCB sports medicine consultant reviewed the worker's file relating to his ability to participate in return to work activities. The sports medicine consultant opined that the worker would be able to perform light activities in keeping with basic activities of daily living, as this appeared to be the minimum level of function the worker was displaying. The consultant recommended restrictions of right arm lifting up to 5 pounds within the body envelope, right arm lifting up to 5 pounds outside the body envelope, no right arm work above shoulder height, and to avoid right arm repetitive resisted work outside the body envelope, to be reviewed one month after the proposed diagnostic surgery. On September 17, 2018, Compensation Services advised the worker that there was no change to their decision that he was not entitled to wage loss benefits after July 9, 2018, as a relationship between his time loss from work and his compensable injury had not been shown to exist.

On October 10, 2018, the worker's union representative requested that Review Office reconsider Compensation Services' decisions. In his submission, the worker's representative stated that it was not reasonable for the worker to participate in the reconditioning program recommended by the WCB and his gradual return to work program at the same time. The representative noted that the worker's treating orthopedic surgeon confirmed the worker's initial right shoulder surgery had failed and a second surgery would be required. The representative submitted that the evidence on file did not establish that the employer had suitable modified or alternate duties available, and submitted that the return to work plan was premature and not supported by the available evidence.

On November 23, 2018, the worker's union representative submitted a November 18, 2018 medical report from the worker's treating orthopedic surgeon, in which the orthopedic surgeon stated that he did not believe it was appropriate for the worker to return to modified duties as of June 25, 2018. The orthopedic surgeon stated that in his opinion, the worker was not doing well at any point in his recovery and there was a failure that had necessitated a second shoulder surgery to address the ongoing pain issues. On December 5, 2018, the employer's representative provided a submission in support of Compensation Services' decisions, and the worker's representative responded to that submission on December 17, 2018.

On December 19, 2018, Review Office determined that the worker was entitled to additional wage loss benefits beyond June 24, 2018. Review Office found that the job duties outlined for the graduated return to work were appropriate and within the worker's abilities. Review Office acknowledged the worker's representative's expressed concern with the vagueness of the graduated return to work, but noted that most return to work plans are not set in stone when they begin and adapt to the needs and abilities of injured workers as they progress. Review Office found, however, that the worker should have begun his graduated return to work program after completion of the reconditioning program and not before.

On January 30, 2019, the worker's union representative 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.

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.

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) 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.

Section 22 of the Act provides that the worker must take all reasonable steps to reduce or eliminate any impairment or loss of earnings resulting from an injury, and that the WCB may reduce or suspend compensation payable to the worker if the worker fails to comply.

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 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 his representative and from the panel.

The worker's position was that the evidence supports that the persistent effects of his compensable right shoulder injury prevented him from returning to work in any capacity between July and December 2018. Further, even if the worker was able to return to modified or alternate work, the employer failed to demonstrate that suitable duties were available and to confirm that what had been presented was a suitable accommodation.

The worker's representative submitted that the medical evidence demonstrates that the worker failed to recover following the February 2018 surgery and the effects of his injury effectively rendered him totally disabled. The representative submitted that the worker continued to have persistent pain and dysfunction with his right shoulder despite the surgery. The treating orthopedic surgeon reported in August that the worker was not improving and had significant pain, and the repeat surgery was required. An MRI was ordered. It was submitted that the December 5, 2018 MRI showed further rotator cuff tearing, and repeat arthroscopic surgery was performed with full support from the WCB on December 10, 2018. The representative submitted that this second MRI confirmed the source of the worker's persistent symptoms and validated his ongoing complaints and concerns that something was structurally wrong with his shoulder.

The worker's representative noted that even before the MRI, on September 12, 2018, the WCB sports medicine consultant expanded on the workplace restrictions, even though his symptoms remained the same. The change in restrictions was not, however, conveyed to the employer, nor was the employer's ability to accommodate reassessed. The representative submitted that evidence on file demonstrates the employer was consistently unable or unwilling to accommodate the worker within restrictions similar to those outlined on September 12, 2018.

The worker's representative submitted that while the employer reported they might be able to accommodate the worker doing part of a particular position, that accommodation was not suitable and never actually materialized. The representative stated that the decision to discontinue wage loss benefits was based on the employer's subsequent report that the worker could be accommodated at his pre-accident work location which, it was submitted, was not sufficient to conclude that the employer had suitable work. The worker's representative submitted that the employer failed to present a comprehensive return to work plan, and the WCB undertook no earnest evaluation of the purported offer to see if it was suitable or sustainable.

In conclusion, the worker's representative submitted that the worker is entitled to full wage loss benefits because the evidence supports he had ongoing difficulties due to undiagnosed structural difficulties in his shoulder which prevented him from returning to work in any capacity. The representative further submitted that even if the worker was capable of alternate or modified work, there is insufficient evidence to reasonably conclude that the employer had suitable work as of July 2018, and would have continued to have suitable work up until December 2018.

Employer's Position

The employer was represented by its Workers Compensation Specialist.

The employer's representative began his submission by stating that after listening to the worker at the hearing, he was conflicted in his position. The representative noted that he did not believe the worker did not want to return to work and thought that the worker's reasoning was valid in terms of what he believed.

The employer's representative noted that the worker indicated he was not able to return to work because of his pain. The representative submitted that it would be up to the panel to decide the degree to which pain limited the worker's ability to work and what weight to give to that evidence.

The employer's representative noted that he did not think any healthcare provider during this period of time specifically said that the worker was completely disabled from any work. Rather, information on file from the treating physiotherapist and the WCB physiotherapy consultant indicated that the worker could return to work with modified duties, as did information from the family physician at one point and from the reconditioning program physiotherapist.

It was submitted that information on file, including the position description provided by the employer, showed that in or around the end of June 2018, the employer identified a position which involved tasks which the worker could easily have done based on his medical restrictions. The representative noted that whether the worker's restrictions varied during this period of time was not material, as the duties that comprised the available positions were generic duties which clearly complied with the nature of the restrictions.

The representative noted that we do not know whether the worker would have been capable of completing the available duties, as he did not attempt them. The representative submitted that the duties were legitimate and could at the very least have been tried. The worker had an obligation under the legislation to attempt to do the work, but chose not to do so.  

Analysis

The issue before the panel is whether or not the worker is entitled to full wage loss benefits for the period July 28, 2018 to December 9, 2018. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker was not fit to return to work to perform modified duties during the relevant period of time and/or that the employer did not provide suitable duties to the worker. The panel is unable to make these findings, for the reasons that follow.

The panel finds that the medical evidence generally supports that the worker was capable of modified duties during this period of time. The panel notes, in particular, that:

• The treating physiotherapist reported on May 22, 2018 that the worker was capable of alternate or modified work, and outlined restrictions; 

• The WCB physiotherapy consultant outlined current workplace abilities or restrictions based on his call-in examination of the worker on June 7, 2018; 

• The WCB physiotherapy consultant outlined the worker's current workplace abilities again on July 30, 2018, based on the July 27 discharge report from the reconditioning program and a conversation with the reconditioning program physiotherapist; 

• The WCB sports medicine consultant opined on September 12, 2018 that the worker would be capable of performing light activities and outlined restrictions, based on his review of the worker's file.

The panel notes that the worker's family physician also indicated on July 24, 2018 that the worker could perform light duties on a graduated return to work While the family physician retracted that advice on August 8, 2018, stating that the worker was "unable to return to work as of July 18, 2018 due to Rt shoulder pain and insomnia" the panel notes that the physician indicated that the retraction was based on the worker's having informed her that his surgeon "has instructed him that he is not fit to return to work in his condition" and that she was "currently awaiting his consult note." The physician therefore noted that she did "not feel comfortable recommending a return to work program at this time" and recommended that the worker "remain off work until I have more information." While the worker saw the treating orthopedic surgeon on August 9, 2018, one day after seeing his family physician, there is no mention in the orthopedic surgeon's report of the visit of return to work considerations.

The panel recognizes that the treating orthopedic surgeon stated in his letter of November 18, 2018, which was addressed to the worker's union in response to an apparent request, that based on his assessment of the worker and the general trajectory of his recovery, the surgeon did not believe the worker was appropriate for a return to modified work as of June 25, 2018. The panel notes that previous medical reports on file from the orthopedic surgeon do not refer to the worker being unable to return to work.

The panel further notes that the orthopedic surgeon had been provided with a copy of the notes of the WCB physiotherapy consultant's June 7, 2018 call-in examination listing the worker's current restrictions, with a request that the surgeon contact him if he wished to discuss any aspect of his findings. When asked at the hearing about the lack of any earlier medical information from his orthopedic surgeon indicating he was not fit to return to work, the worker stated that the orthopedic surgeon "never said that I…maybe you should go try to work."

The panel acknowledges the worker's concerns and complaints of significant pain and insomnia as detailed at the hearing, but is not satisfied that these concerns and complaints should have precluded him from returning to work or at least attempting a return to work.

The panel is further satisfied that the return to work duties as offered by the employer were suitable and appropriate. In the panel's view, the duties of the positions as listed in the June 13, 2018 email from the employer, on file, would fit within the worker's restrictions. A further email from the employer on that date states that the worker had said that he did not think he would be cleared medically to work the extended hours that would sometimes be required for those positions, but the panel has not identified medical information supporting such a restriction with respect to work hours.

In a further email dated June 25, 2018, the employer stated that they were prepared to bring the worker back to work, returning to his pre-accident location and assigning him light duties, and pairing him up with someone to tackle any duties outside of his restriction. The worker had simply indicated, however, that he did not agree that he was ready to return to work and his physician did not recommend a return to work. In further conversation with the WCB case manager on September 12 and 19, 2018, the worker indicated that he was not disputing the modified duties which had been outlined, but could not work because he was not getting enough sleep due to his pain and would be a hazard.

Information on file and at the hearing indicates that the worker underwent diagnostic surgery on December 10, 2018 and was therefore not available for work as at that date. While it was argued that the worker was unable to work prior to that date, as further surgery was being contemplated, the need for which was confirmed by the December 5, 2018 MRI, the panel is unable to accept that position. The panel notes that the evidence does not indicate that there was any significant further event or change in the worker's condition at that time, and that what was contemplated was diagnostic surgery based on ongoing complaints.

Based on the foregoing, the panel finds, on a balance of probabilities, that the worker was fit to return to work to perform modified duties between July 28, 2018 and December 9, 2018 and that the employer provided suitable duties to the worker. The panel therefore finds that the worker is not entitled to full wage loss benefits for that period of time.

The worker's appeal is dismissed.

Panel Members

M. L. Harrison, Presiding Officer
P. Challoner, Commissioner
D. Neal, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 28th day of October, 2019