Decision #129/19 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he is not entitled to further benefits in relation to the accident of November 7, 2013. A hearing was held on September 25, 2019 to consider the worker's appeal.
Whether or not the worker is entitled to further benefits in relation to the accident of November 7, 2013.
The worker is not entitled to further benefits in relation to the accident of November 7, 2013.
The worker reported to the WCB on November 14, 2013 that he injured his right shoulder while performing his job duties on November 7, 2013. The worker sought medical treatment from his family physician on November 12, 2013 where he was diagnosed with a right rotator cuff injury, which was confirmed by an MRI study on December 28, 2013. The WCB accepted the worker's claim on January 15, 2014.
On March 25, 2014, the worker underwent a right rotator cuff repair. The worker attended a follow-up appointment with the orthopedic surgeon on April 15, 2014 who noted the worker "…already got full active motion" and referred him for a course of physiotherapy, which the worker started on April 24, 2014. The worker was seen again for a follow-up appointment with the orthopedic surgeon on June 25, 2014 where it was noted the worker was "…struggling when he is doing the overhead activities" at physiotherapy and a recommendation was made for the worker to remain off work for a further two months and continue physiotherapy treatment. At the worker's July 3, 2014 physiotherapy session, restrictions for the worker to return to work were no lifting, pushing, pulling with either extremity. These restrictions were provided to the employer on July 11, 2014.
At the request of the worker's WCB case manager, the worker's file was reviewed by a WCB medical advisor on July 17, 2014. The WCB medical advisor opined that the worker's post-surgery rehabilitation was progressing slower than expected and there was agreement with the orthopedic surgeon's recommendation of no work for two months due to the risk of the worker re-tearing his rotator cuff. The WCB medical advisor further opined that the MRI study of December 28, 2013 also indicated the presence of a pre-existing condition of moderate osteoarthritis, which may have led to the delay in the worker's recovery. It was also noted on the MRI that the worker had pre-existing tendinosis of his rotator cuff, which was considered to be a "significant pre-existing condition which increases the risk of re-tear of the rotator cuff and would be expected to delay recovery." The WCB medical advisor also noted that biceps tendon tendinosis was indicated on the MRI, which was also likely a pre-existing condition which would have caused ongoing shoulder pain and would delay recovery.
On September 3, 2014, the worker attended for a five month post-surgery follow-up with the orthopedic surgeon. The treating surgeon indicated that the worker could return to work with temporary restrictions of no repetitive overhead or weighted activity, static overhead activity only and no lifting using right arm greater than ten pounds. The employer was advised of the restrictions on that date. On September 15, 2014, the employer advised the WCB that the worker had refused their offer of modified duties. The WCB spoke to the worker on the same date who advised he had attended at his family physician's office as he was confused about his restrictions and the treating physician recommended that he could not return to his regular job duties permanently and required retraining. The worker was advised that as he refused his employer's offer of suitable modified duties, he would not be entitled to further wage loss benefits after September 12, 2014. The WCB also contacted the worker's treating physiotherapist who reviewed the recommended restrictions from the worker's orthopedic surgeon and the modified duties offered by the employer and confirmed that the worker would be able to perform those duties. On September 16, 2014, the worker was advised that he would not receive wage loss benefits after September 12, 2014. The worker attended for a permanent partial impairment call-in examination with a WCB physiotherapy consultant on March 31, 2015 and was awarded a 3.6% rating.
The WCB received a letter from the worker's treating family physician on January 12, 2017 requesting assistance in having the worker retrained due to ongoing difficulties with the worker's left knee, shoulder and back. The WCB received a further letter from the worker's family physician on June 22, 2017 noting that the worker was "…continuing to suffer significant disability due to his chronic injuries to R (right) shoulder, L (left) knee, and recently L (left) triceps…" The physician recommended that the worker should not continue with his job duties and should be retrained for "…sedentary type work."
On July 3, 2017, the WCB received a Chiropractor's First Report from the chiropractor who was treating the worker. The report noted an injury to the worker's right shoulder from a work injury and made reference to a new WCB claim for the worker. The WCB contacted the worker on July 13, 2017 and advised that further medical information would be requested regarding his ongoing symptoms. In a further discussion with the worker on August 11, 2017, the WCB case manager noted that for the worker's WCB claim for an injury on February 6, 2017 to his right shoulder, the worker had reported to his WCB adjudicator on April 6, 2017 that he was working his full regular duties, he had recovered from his injuries and had obtained a gym membership to continue working out. The worker was seen by a sports medicine physician on August 21, 2017 who reported that the worker had chronic issues with his shoulder and that since his surgery in approximately 2014, the worker had "…injured the shoulder again at work. He stated he tore his trapezius muscle at that time." The sports medicine physician diagnosed the worker with a rotator cuff tendinopathy in his right shoulder. On December 1, 2017, the worker was advised by the WCB that his current right shoulder difficulties could not be related to his November, 2013 workplace accident and he was not entitled to further benefits.
The worker's representative requested reconsideration of the WCB's decision to Review Office on May 16, 2018. As the worker's representative's submission included a copy of an MRI study of the worker's shoulders conducted on November 16, 2017, Review Office returned the worker's file to the WCB's Compensation Services for further investigation and review. The worker's file, including the new medical information, was reviewed by a WCB medical advisor on July 12, 2018. The WCB medical advisor noted that the November 16, 2017 MRI indicated a right shoulder rotator cuff tear (full thickness tear of the supraspinatus), acromioclavicular (AC) joint osteoarthritis, biceps tendinosis and labral tearing with cyst formation. It was opined that the rotator cuff tear was not related to the November 7, 2013 workplace accident as the March 25, 2014 operative report noted a "…good surgical repair of the footprint of the supraspinatus…" On August 2, 2018, the worker was advised that it had been determined he was recovered from the right shoulder injury sustained on November 7, 2013 and his current right shoulder difficulties were not related to that claim.
On August 9, 2018, the worker's representative again requested reconsideration of the WCB's decision to Review Office. In their submission, the worker's representative noted that when the worker returned to work after his right shoulder rotator cuff repair in 2014, he felt the duties he was asked to do were outside of his restrictions and he felt that it was not safe for him to continue working with the employer.
Review Office determined on October 30, 2018 that the worker was not entitled to further benefits. Review Office relied on medical evidence on the worker's file including a December 23, 2014 report from the worker's treating orthopedic surgeon noting that the worker had full range of motion of his right shoulder, which supported that the worker had recovered from the March 25, 2014 surgery as well as a January 25, 2015 opinion from a WCB orthopedic consultant that the worker could return to his regular pre-accident job duties. Review Office accepted and placed weight on the July 12, 2018 WCB medical advisor's opinion that the right rotator cuff noted on a November 16, 2017 MRI was not related to the November 7, 2013 workplace accident as good surgical repair was noted on the March 25, 2014 surgical report. Accordingly, Review Office could not establish a relationship between the worker's current right shoulder difficulties and the November 2013 workplace accident and the worker was not entitled to further benefits.
The worker's representative filed an appeal with the Appeal Commission on March 18, 2019. 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.
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."
Section 37 provides that, where, as a result of an accident, a worker sustains a loss of earning capacity or an impairment, or requires medical aid, the following compensation is payable:
(a) medical aid, as provided in section 27;
(b) an impairment award, as provided in section 38; and
(c) wage loss benefits for any loss of earning capacity, calculated in accordance with section 39.
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.
WCB Policy 220.127.116.11, Pre-Existing Conditions (the "Policy") addresses the issue of pre-existing conditions when administering benefits. The Policy states that:
The Workers Compensation Board (WCB) will not provide benefits for disablement resulting solely from the effects of a worker's pre-existing condition as a pre-existing condition is not "personal injury by accident arising out of and in the course of the employment." The WCB is only responsible for personal injury as a result of accidents that are determined to be arising out of and in the course of employment.
With respect to wage loss eligibility, the Policy states, in part that:
When a worker has:
1) recovered from the workplace accident to the point that it is no longer contributing, to a material degree, to a loss of earning capacity, and
2) the pre-existing condition has not been enhanced as a result of compensable injury arising out of and in the course of the employment, and
3) the pre-existing condition is not a compensable condition,
the loss of earning capacity is not the responsibility of the WCB and benefits will not be paid.
The worker, with the assistance of a worker's advocate, discussed the reasons for his appeal and answered the questions of the panel.
The worker described the November 2013 injury and the surgical repair which was undertaken in March 2014. He explained that, following his return to work, the employer agreed to place him on light duties but that there were no light duties available and he was required to undertake activities such as sorting heavy pieces of inventory, which were not within the restrictions proposed by his doctor. The worker stated that he was required to do tasks which were beyond his capabilities but thought that he would be fired if he refused to comply with the employer's directions. He quit his job with the employer in September 2014.
The worker described, in particular, an incident where he was unloading a heavy 45-gallon drum which, in order to avoid it falling and causing injury and damage, he was required to catch. As a result of catching the drum, he stated that his right arm was re-injured in the same area as the November 2013 injury.
The worker also stated that, following his return to work, he was required to work in a very cold environment which he said caused him to catch pneumonia, resulting in his being off work.
The worker said he faces many challenges and is in constant pain which he attributed to the 2013 injury. Accordingly, he asked the panel to consider an award for wage loss benefits to be provided for all periods since the November 2013 injury during which benefits were not paid, and that such benefits should continue until he reaches 65 years of age.
The worker's employer was not represented at the hearing.
In this appeal, the panel was called upon to consider whether the worker's right shoulder condition is related to his 2013 compensable injury; and whether he is entitled to further benefits in relation to the 2013 injury.
At the hearing, the worker focused on the fact that, following the 2013 injury, he attempted a return to work but was required to undertake duties which he felt were beyond his restrictions, thus he had no alternative but to quit his job, resulting in a loss of wage benefits. He placed emphasis on the incident which he described as having to catch a 45-gallon drum, whereby he re-injured his shoulder. The panel canvassed the timing of this incident with the worker at great length: it was initially described as having occurred in February 2015; then corrected to February 2014; and further corrected to have occurred some time after the March 2014 surgery while working for the accident employer on what was to have been modified duties.
The compensable injury occurred on November 7, 2013 and the worker was absent from the workplace until January 27, 2014 when he returned to modified duties. Modified duties continued until his surgery on March 25, 2014 but it is noted that the worker was absent from work on a number of occasions or worked reduced hours between those dates. If the 'drum incident' occurred in February 2014, then it would have been addressed in the March 25, 2014 surgery. The worker did not return to work with the accident employer in any capacity after the surgery, therefore the drum incident, if it occurred at any time post-surgery, could not have occurred while working with this employer.
Medical reports after the November 2013 accident contain no reference or medical information which supported an injury from an event involving a 45-gallon drum. No WCB claim was filed in relation to the drum incident. The orthopedic surgeon considered the worker capable of returning to work, with modified duties, in September 2014. The orthopedic surgeon saw the worker a number of times up to March 2015, yet no reference was made to a re-injuring of the right shoulder within that timeframe.
The panel also noted that a letter issued by the WCB on August 2, 2018 to the worker stated "You contacted the WCB in July 2017, to report ongoing difficulties. In review of your file, you described an injury in the summer of 2017, associated with lifting a 45 gallon drum". The panel finds this comment also supports the incident involving a 45 gallon drum did not occur while working for the accident employer.
The worker disputed that the employer provided him with appropriate modified duties. Again, documentation available to the panel indicates that the worker did not return to the workplace following his March 2014 surgery, notwithstanding that modified duties were offered. On September 15, 2014 the WCB sent the worker a letter advising they were discontinuing wage loss benefits based on the worker’s refusal to return to work on modified duties. A file note dated September 24, 2014 states that the worker left a message with the WCB that he was now "going on permanent disability, no longer with WCB".
A Functional Capacity Evaluation completed on December 11, 2014 verified there were no further restrictions associated with the November 2013 accident. In addition, a permanent partial impairment (PPI) rating assessment was conducted on March 31, 2015. The worker was assessed with a 14.4% deficit in range of motion in his right shoulder compared to his left.
The worker was employed full time with another employer from August 27, 2016 until February 2017 when he was laid off. He sustained another injury to his right shoulder on February 6, 2017 which was the subject of a separate WCB claim, resulting in his being off work for approximately 6 days. The employer confirmed the worker had returned to work on February 11, 2017 to full regular duties but he was almost immediately laid off. In a discussion related to the 2017 claim, the worker advised WCB on February 21 that he felt he had reached pre-accident status and had obtained a gym membership and continued working out. Further, he reported the symptoms associated with this injury had resolved and he was no longer seeking medical treatment. At the hearing, the worker denied that he attended at a gym.
Given the conflicting information, the panel was unable to determine the date when the 'drum incident' might have occurred but the worker's assertion that he reinjured his arm when he returned to work with the accident employer after his March 2014 surgery is not supported by the information available to the panel as it appears that he never returned to work with the accident employer following his surgery. Accordingly, the panel is unable to find a causal connection between any such incident and the November 2013 compensable injury.
Medical reports indicate progress post-surgery in 2014 and that the worker could return to work, with some restrictions. The worker did obtain employment with another employer. While the MRI conducted in 2017 showed on-going issues related to the worker's right shoulder, the panel, after reviewing the medical reports, is unable to relate those on-going issues to the November, 2013 injury. The panel therefore concludes that the worker's on-going right shoulder condition is not related to the 2013 compensable injury.
With respect to the worker's appeal of the denial of additional wage loss benefits, while it was clear that the worker did not trust the accident employer, he was advised by the WCB that if he did not return to work it would result in a discontinuance of wage loss benefits. He was advised that he was entitled to refuse work that was not within in restrictions and to notify the WCB if this situation occurred. Instead, the worker relied on a past, rather difficult, relationship with the employer as the reason not to return to work. There is a file note where the employer acknowledged that, on his first day returning to modified duties post-accident, the worker may have been asked to undertake activities outside his noted restrictions but that had been corrected and they confirmed duties were offered which complied with the worker’s restrictions were assigned. The panel does not accept speculative concerns regarding safety as grounds for the worker not to attempt a return to work.
The WCB advised the worker on September 15, 2014 that wage loss benefits were being discontinued based on his refusal to return to work on modified duties and the panel sees no reason to interfere with this decision. The panel reviewed the periods of time where the worker was not paid wage loss benefits. The worker described other workplace injuries which the panel is unable to consider as they are not related to the 2013 accident, thus are not within the parameters of this appeal. Further, wage loss benefits are not payable in relation to periods of time during which the reason he did not work was unrelated to the 2013 compensable injury, such as absences from work due to the flu or having cut his head shaving. The worker claimed that wage loss benefits should be paid for the days when he was absent from work due to pneumonia, based on his belief that this condition was caused by his having to work in a cold environment. There was no medical evidence supporting the worker's assertion that working in such an environment caused the worker's pneumonia.
The panel also finds that loss of wage benefits would not be paid for periods during which the worker determined to work 4 hours per day rather than 8 hours per day, given the lack of evidence that the duties offered by the employer required a daily time restriction.
The panel finds that the worker is not entitled to further benefits in relation to the 2013 injury.
Accordingly, the appeal is dismissed.
K. Gilson, Presiding Officer
P. Challoner, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
K. Gilson - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 31st day of October, 2019