The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that:

1. They are not entitled to wage loss benefits after July 14, 2014, when they discontinued working; and 

2. Their permanent partial impairment rating has been correctly calculated.

A hearing was held on June 8, 2022 to consider the worker's appeal.

Issue

1. Whether or not the worker is entitled to wage loss benefits after July 14, 2014 when they discontinued working; and 

2. Whether or not the worker's permanent partial impairment rating has been correctly calculated.

Decision

1. The worker is not entitled to wage loss benefits after July 14, 2014 when they discontinued working; and 

2. The worker's permanent partial impairment rating has been correctly calculated.

Background

This claim has been the subject of a previous appeal. Please see Appeal Commission Decision No. 105/08, dated August 20, 2008. The background will therefore not be repeated in its entirety.

The worker filed a claim with the Workers Compensation Board (“WCB”) on April 2, 2003, for neck and right shoulder difficulties that they attributed to their workplace activities on March 23, 2003. Permanent restrictions were established to prevent the worker from undertaking any work above shoulder level and any work at shoulder level with the arm in the position of impingement. In September 2006, the employer provided modified duties to the worker within those restrictions.

On April 16, 2007, the WCB assessed worker for a permanent partial impairment (“PPI”) award. The WCB medical advisor assessed a 7.5% rating for the worker’s cervical spine and 7.3% for their right shoulder for a combined award of 14.8%, rounded to 14%. The WCB provided a PPI award for 14% whole body impairment to the worker.

On January 3, 2007, the worker advised the WCB that they could barely move their neck and their arm was tingling and were unsure what caused this as they had not worked since December 30, 2006. On March 9, 2007, the treating chiropractor determined that the worker could work only four hours per day on modified duties. A WCB chiropractic advisor who reviewed the worker's file on July 25, 2007 concluded there was no medical evidence to show that the worker’s condition had deteriorated, and that the worker could perform duties within their restrictions without limiting their working hours. The WCB advised the worker on September 18, 2007 that it was unable to support total disability from work and reduced hours in the workplace as there was no evidence of an appreciable change in their medical condition that would prevent them from working full-time.

The worker's representative requested reconsideration of the WCB's decision to Review Office on December 4, 2007. The representative submitted that the worker’s highly repetitive job tasks caused an aggravation to the tendinopathy of the worker’s right rotator cuff and that it was reasonable for the treating chiropractor to place them on reduced hours to allow for healing. The representative asked Review Office accept the worker’s partial wage loss as a consequence of their compensable condition and further requested the worker’s restrictions be amended to include a restriction of no highly repetitive use of the right arm at any level. On February 21, 2008, Review Office asked a WCB sports medicine consultant to review the worker's file. On February 25, 2008, the WCB sports medicine consultant reported that the worker’s symptoms appeared to be related to non-specific neck pain and a myofascial condition but were not consistent with the diagnosis of right rotator cuff tendinopathy. The consultant noted that rotator cuff tendinopathy was aggravated by positions that cause impingement of the rotator cuff musculature and that none of the duties the worker was performing would do so. Further, the evidence regarding rotator cuff tendinopathy did not support a restriction of no repetitive movements of the right arm at any level. Following a review of all file information including a submission by the employer dated January 28, 2008, and a further submission by the representative dated February 11, 2008, Review Office determined on February 27, 2008 that the worker was not entitled to partial wage loss benefits from March 13, 2007. Review Office relied on the WCB sports medicine consultant’s opinion of February 25, 2008 in determining the worker to be capable of working full-time on modified duties, based on the compensable diagnosis of right rotator cuff tendinopathy, and confirmed that the worker did not require a restriction of no repetitive work with the right arm at any level.

The Appeal Commission, in Decision No. 105/08 dated August 20, 2008, determined the worker was entitled to partial wage loss benefits after March 13, 2007 and that the worker did require further restrictions, returning the worker's file to the WCB for further reassessment pertaining to repetitive work with their right arm. In that decision, the Appeal Commission panel found that the worker had a chronic condition affecting their neck, shoulder and shoulder girdle.

On September 8, 2008, the worker participated in a Functional Capacity Evaluation. On September 30, 2008, the WCB advised the worker, their representative and the employer that the worker's permanent restrictions were: carrying up to 10 pounds frequently; lifting up to 10 pounds frequently from floor to shoulder; lifting up to 20 pounds occasionally from floor to shoulder; no overhead work with the right arm; and no work at shoulder level with the shoulder in a position of impingement.

On October 16, 2008, the worker's representative contacted the WCB with their concern that the restrictions provided by the WCB did not meet the intention of Appeal Commission Decision No. 105/08 with respect to repetitive tasks, and noted that during the Functional Capacity Evaluation, the worker was not tested for their response to repetitive tasks. The worker's file was reviewed by WCB medical advisors and on November 17, 2008, the WCB advised the worker's representative there would be no change to the worker's restrictions.

The worker's representative requested reconsideration of the WCB's decision on the worker's restrictions to Review Office on December 15, 2008 and on January 9, 2009, the worker and their representative were advised the restrictions should also include no highly repetitive work with the right arm at any level. Discussions took place between the worker, their representative, the employer and the WCB to find an appropriate position for the worker within their updated restrictions. On March 13, 2009, a graduated return to work plan was agreed upon and a letter setting out the worker's permanent restrictions, job duties within those restrictions and a graduated return to work schedule was provided to all parties, with an updated version provided on March 27, 2009.

On April 6, 2009, the worker contacted the WCB to advise that their treating chiropractor placed them off work as of that date. The WCB obtained the note from the chiropractor, which indicated agreement with the opinion of the worker's treating family physician that the worker was "…completely disabled from work." The WCB received a report from the worker's treating family physician for the worker's appointment on April 9, 2009, that noted the worker's neck pain was much worse since the graduated returned to work plan was started. The physician noted decreased range of motion in the worker's cervical spine, right shoulder and thoracolumbar spine along with spasms and tenderness and worsening headaches.

A WCB medical advisor reviewed the worker's file and provided an opinion on May 4, 2009 that the medical information did not support the worker's inability to participate in the graduated return to work plan as agreed to by the parties. On May 5, 2009, the worker was advised that their entitlement to benefits was limited to the hours set out in the plan, with responsibility for partial wage loss benefits ending on May 22, 2009 as they had opted to stop participating in the graduated return to work plan.

The WCB received a copy of an MRI study conducted on the worker's cervical and thoracic spine on April 14, 2009, which indicated no abnormalities in the worker's thoracic spine, a small central and right paracentral disc herniation noted at the C5-6 level, with "…some shallow posterior endplate degenerative spurring" and no compression of the right C6 nerve root. A WCB medical advisor reviewed the MRI and the worker's file on May 25, 2009 and provided an opinion that the MRI findings indicated degenerative changes and there did not appear to be clinical evidence of cervical radiculopathy or neurogenic changes. The WCB medical advisor further opined the worker's neck difficulties likely related to the degenerative changes indicated on the MRI rather than the March 23, 2003 workplace injury. The medical advisor concluded the worker remained capable of participating in the graduated return to work plan provided by the WCB.

On May 26, 2009, the WCB advised the worker that their neck difficulties were not accepted as related to the claim, which was accepted for a diagnosis of a right rotator cuff tendinopathy. The WCB further advised the worker's entitlement to wage loss benefits remained in accordance with the graduated return to work plan, ending on May 22, 2009.

On August 31, 2009, the worker's representative requested Review Office reconsider the worker's entitlement to wage loss benefits and on February 4, 2010, Review Office determined the worker was entitled to full wage loss benefits from April 6, 2009 to no later than July 12, 2009 when the worker returned to work, based on the worker's treating healthcare providers' opinions the worker was not able to work during that time. On July 15, 2014, the worker contacted the WCB to advise they had been placed off work by their treating chiropractor. On July 16, 2014, the WCB received a progress report from the worker's chiropractor, noting the worker's report of headache with nausea, stiffness, discomfort to their right neck, shoulder, and upper back, and a burning feeling in their right thoracic spine while doing the dishes, with 10/10 pain reported. On examining the worker, the treating chiropractor noted stiffness and tightness in the worker's cervical spine and a positive empty can test on the worker's right arm. The chiropractor noted the worker was currently on modified duties but "…the accumulation of soft tissue injuries resulted in not tolerating these modified duties."

The WCB requested review of the worker's file by a WCB chiropractic consultant on July 16, 2014 and on July 18, 2014, the consultant opined that while the worker may be "…disabled by the effects of headache with nausea, I remain of the opinion that disabling headache would not relate to the effects of the compensable injury." On July 21, 2014, the WCB advised the worker they were not entitled to wage loss benefits as their current difficulties has been determined to not be related to the March 23, 2003 workplace injury.

A WCB medical advisor reviewed the worker’s file on September 29, 2014 after receipt of a September 5, 2014 MRI study on the worker's right shoulder which indicated "Supraspinatus and infraspinatus tendinosis. Partial-thickness tear of the supraspinatus tendon at the bursal surface with intrasubstance propagation. Moderate sized subacromial hook is demonstrated with impingement upon the supraspinatus tendon at the site of the supraspinatus tendon tear." The WCB medical advisor described the MRI findings as "…normal aging changes within the cuff and would not have been caused by the workplace activities of 11 years ago." The medical advisor also noted there had been no change to the worker's diagnosis or their clinical status and as such, the worker continued to be deemed fit for modified duties. In a narrative report from the worker's treating chiropractor received on October 3, 2014, the chiropractor noted the worker attended for treatment reporting increased right shoulder pain and right neck pain. The chiropractor indicated an empty can test was positive for pain and the worker had weakness in their right shoulder, with burning pain in their right thoracic area down to the deltoid area. On October 3, 2014, the WCB also received a copy of a report from the worker's treating family physician for an appointment the worker attended on July 21, 2014. At that appointment, the worker reported right shoulder and neck pain, and the physician noted decreased range of motion, tenderness at the acromioclavicular area and supraspinatus tenderness, and recommended no use of the worker's right arm. A WCB medical advisor reviewed the new medical information on October 9, 2014 and provided an opinion that the recommendation by the worker's treating family physician for the worker to not use their right arm was not supported by the medical evidence. The medical advisor noted that "Not using a limb entirely can lead to serious disuse complications and would not be part of evidence based treatment for rotator cuff tendinopathy." The medical advisor noted the treating family physician indicated the worker was able to perform modified duties whereas the treating chiropractor provided the worker was totally disabled and stated that when there was a difference in opinion between the treating healthcare providers, best practice medicine should be followed. In the worker's case, the medical advisor stated that "Best practice medicine would support that rotator cuff tendinopathy does not cause total disability and the worker can work within appropriate restrictions."

On October 15, 2014, the WCB advised the worker that the medical information was reviewed and there would be no change to the earlier decision they were not entitled to wage loss benefits as it was determined they remained capable of performing modified duties within their restrictions. The WCB provided a decision letter to the worker on January 3, 2017 advising they were not entitled to wage loss benefits as their ongoing time loss was not related to their workplace injury of March 23, 2003 and the employer was able to accommodate the worker's permanent restrictions. A further decision letter was provided on February 16, 2017 after review of the worker's file, including a copy of their file from the employer's disability insurer by a WCB medical advisor, and the worker was advised there would be no change to the earlier decisions they were not entitled to wage loss benefits. A third decision letter was provided to the worker on October 4, 2017 after discussions between the WCB, the worker, the employer, the employer's disability insurer and the worker's representative. The WCB again determined that the worker was not entitled to wage loss benefits after July 14, 2014 as they were off work due to the employer's inability to accommodate the further restrictions placed on the worker by the employer's disability insurer.

On March 15, 2018, the worker requested reassessment of their PPI award from April 16, 2007. At the request of the WCB, the worker's treating chiropractor provided a narrative report on April 3, 2018, which outlined that the worker continued to struggle with constant pain and ongoing and worsening range of motion and provided a list of dates the worker attended for treatment. The worker attended for a call-in examination with a WCB physiotherapy consultant on May 9, 2018 with regard to a PPI reassessment. On examining the worker, the consultant reported the worker's active guided range of motion with respect to their right shoulder was reduced by 45 degrees as compared to their left and provided a 2.1% rating for the impairment. On May 22, 2018, the worker was advised that based on their examination and the opinion of the WCB physiotherapy consultant, there would be no change to the PPI rating and award previously provided to them.

The worker's representative requested reconsideration of the WCB's decisions to Review Office on March 28, 2019. On June 18, 2019, Review Office returned the worker's file to the WCB's Compensation Services for further investigation. After reviewing the claim file, the WCB case manager advised the worker on July 2, 2019 that their current restrictions remained appropriate and there was no requirement for a further assessment of their PPI rating and award. As the worker's restrictions were determined to continue to be appropriate, the worker was not entitled to further wage loss benefits after July 14, 2014. Further, pursuant to the May 26, 2009 WCB decision, the worker's neck difficulties had been determined not to be related to the March 23, 2003 workplace accident and as such, a reassessment of their PPI rating and award was not required.

On August 6, 2019, the worker's representative again requested reconsideration of the WCB's decision to Review Office, relying on their March 28, 2019 submission in which they noted the worker suffered a flareup of their compensable injury in July 2014 when they went off work and since that time, the employer was unable to accommodate the worker’s restrictions. On September 16, 2019, the employer provided a submission in support of the WCB's decision, with the worker's representative responding on October 2, 2019.

Review Office determined on October 8, 2019, the worker was not entitled to wage loss benefits after July 14, 2014 when they discontinued working and that the worker's permanent partial impairment rating was correct. With respect to the worker's entitlement to wage loss benefits after July 14, 2014, Review Office found the worker was accommodated by their employer and performed modified duties until they discontinued working in July 2014 due to a change in their condition that caused the worker to be unable to perform those modified duties. Review Office was unable to find medical evidence to support there was a significant change in the worker's right shoulder condition, related to the workplace accident, and found the worker would have been able to continued performing their modified duties, which the employer was able to continue to accommodate. As such, Review Office found the worker was not entitled to wage loss benefits. Review Office also accepted and agreed with the rating and calculations provided by the WCB physiotherapy consultant after the call-in examination of the worker on May 9, 2018. Review Office found, with the exception of one measurement, the worker had significant overall improvement in their right shoulder function since their previous PPI examination on April 16, 2007. As the worker's function of their right shoulder was improved and their neck difficulties had been found to be unrelated to the March 23, 2003 workplace accident, Review Office found there would be no change to the PPI rating and award previously provided.

The worker's representative filed an appeal with the Appeal Commission on January 5, 2022. A hearing was arranged for June 8, 2022. Prior to the hearing, on June 7, 2022, the worker’s representative made a request in writing to submit additional documents in evidence at the hearing on the basis that the information was important and related to the worker’s claim. The panel met before the hearing commenced and reviewed the brief description of the information provided in advance of the hearing. On the basis of the information provided by the worker, the panel determined that the further documents would not be accepted as they did not contain new information and could have been provided within the time limit required under the Appeal Commission Rules of Procedure. The panel conveyed this decision to the worker and their representative in the hearing prior to hearing submissions and evidence.

Reasons

Applicable Legislation and Policy

As the worker was employed by a federal government agency or department, their claim is adjudicated under the Government Employees Compensation Act (the "GECA"). Section 4(1) of the GECA provides that an employee who is caused personal injury by an accident arising out of and in the course of their employment is entitled to compensation. "Accident" is defined in s 2 of the GECA to include "a wilful and an intentional act, not being the act of the employee, and a fortuitous event occasioned by a physical or natural cause." Section 4(2)(a) of the GECA provides that a federal government employee in Manitoba is to receive compensation at the same rate and under the same conditions as a worker who is covered under The Workers Compensation Act (the "Act").

The Appeal Commission and its panels are bound by the provisions of The Workers Compensation Act, regulations under the Act and the policies established by the WCB's Board of Directors. The provisions of the Act in effect as of the date of the worker’s accident are applicable.

A worker is entitled to benefits under s 4(1) of the Act when it is established that a worker has been injured as a result of an accident at work. Under s 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.

When the WCB determines that a worker has sustained a loss of earning capacity, an impairment or requires medical aid because of an accident, compensation is payable under s 37 of the Act. Section 39(2) of the Act sets out that wage loss benefits are payable until the worker's loss of earning capacity ends or the worker attains the age of 65 years. Medical aid is provided for under s 27 of the Act which states 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.

The WCB’s Policy 44.90.10, Permanent Impairment Rating (the "PPI Policy”) describes how permanent impairment ratings are calculated as a percentage of impairment as it relates to the whole body. The Policy provides that the degree of impairment will be established by the WCB's Healthcare Services Department in accordance with the Policy, and that whenever possible and reasonable, impairment ratings will be established strictly in accordance with the PPI Schedule which is attached as 

Schedule A to the Policy. Schedule A to the Policy provides that permanent impairment from a workplace injury is evaluated for the following deficits: 

• loss of a part of the body; 

• loss of mobility of a joint(s); 

• loss of function of any organ(s) of the body identified in the Schedule; and 

• cosmetic disfigurement of the body. 

The impairment rating for loss of range of motion resulting from direct injury or related surgical procedures will be determined by a WCB Healthcare Advisor, through clinical examination or assessment of the medical information on file, based on the loss of active guided movement of the affected joint(s). For the loss of movement to be ratable using the Schedule, the examining WCB Healthcare Advisor must be satisfied that the end-feel at end range of the best attainable active guided movement was valid.

Schedule A defines "expected range of motion (ROM)" as the “expected ROM is the measured active guided ROM of the non-injured symmetric joint. This value is compared to the measured active guided ROM of the affected side. The difference is the loss of ROM of the injured joint.” For assessment of upper extremity range of motion, Schedule A sets out the following method:

Step 1 Measure the "Expected ROM" of the symmetric non-injured side. Record in 5° increments. When the symmetric body part is rendered abnormal by pre or co-existing injury or disease, refer to section 3.5 to determine the "Expected ROM", then continue with the steps below. 

Step 2 Determine the "Measured ROM" of the injured side. Record in 5° increments. 

Step 3 Determine the difference between the Measured ROM and the Expected ROM. 

Step 4 Multiply the difference by the Maximum Impairment Rating for the appropriate body part, as indicated in section 3.3. 

Step 5 The result is the PPI rating for loss of ROM.

Worker’s Position

The worker appeared in the hearing with a representative who made a submission on behalf of the worker and posed questions to the worker. The worker also provided additional documents to the attention of the appeal panel by a submission received May 30, 2022, shared with the employer prior to the hearing. This submission included a medical note from the treating chiropractor dated October 17, 2012, copies of documents outlining the various workplace restrictions in effect for the worker from 2005 onward, copies of various documents from the worker’s WCB claim file, a copy of an October 15, 2018 email exchange between the disability insurance provider and the worker, and a copy of a July 23-24, 2014 email exchange between the employer and the disability insurance provider. The worker provided evidence in the hearing through answers to questions posed by their representative and by members of the appeal panel.

The worker’s position, with respect to the question of entitlement to wage loss benefits after July 14, 2014, is that they were unable to work after July 9, 2014, as a result of the workplace injuries sustained in 2003 and the restrictions place upon them arising from those injuries. Therefore, the worker’s loss of earning capacity after that date is the result of the compensable workplace injury and the worker should be entitled to wage loss benefits. Specifically, the worker believes they should be entitled to wage loss benefits from July 2014 through to 2030, which would have been their year of retirement had they remained in employment with the employer. The worker’s representative submitted that the 2008 Appeal Commission decision confirms that the compensable diagnosis arising out of the 2003 workplace injury is a chronic injury to the worker’s neck, shoulder and shoulder girdle. The worker was removed from work by their treating chiropractor as of July 9, 2014 due to symptoms arising from the injury to their neck, shoulder and shoulder girdle, including headache caused by that injury and therefore the worker should be entitled to wage loss benefits after that date.

Further, the worker’s representative noted that the worker was not made aware of their restrictions, including a limitation of fine manipulation, grasping and grabbing more than 5 times during the workday, such that the worker unknowingly worked outside their restrictions until July 2014, thereby causing further aggravation of their symptoms. The worker’s job duties include repetitive sorting of items, with volumes increasing at particular times of the year and the worker was not able to keep up with the expectations in terms of volume and speed of sorting if they only used one hand to do this task. As a result, their symptoms were irritated from time to time. The worker indicated their belief that the WCB was aware of their ongoing difficulties with the accommodated employment as the treating chiropractor provided regular reports to the WCB.

On questioning by members of the appeal panel, the worker confirmed that they did receive a letter from the disability insurance provider in January 2013 notifying them of their restrictions in place at that time, including the new restriction on fine manipulation but stated that they did not understand it because the employer did not discuss it with them. The worker also noted that these restrictions were provided as a result of a review of the worker’s absences from work in 2012.

The worker’s representative also noted that the employer did not have modified duties available that were appropriate for the additional restrictions put in place related to the workplace injury, after 2014. As such, the worker could not return to their employment after July 9, 2014. The worker stated that the WCB did not try to facilitate a return to work after July 2014 although the WCB had been very involved in that process before 2010. In the intervening years, the worker indicated that they had some time loss due to their injury, but WCB did not provide any benefits. The worker confirmed they did not advise the WCB of any absences during that period but stated that the WCB was aware as the worker’s chiropractor would report regularly.

The worker described to the panel the impact of their injury on their daily living, noting that they experience constant symptoms, tedious small tasks irritate the injury, sleeping in the wrong position can cause difficulty in using their right arm and that they rely on home treatment with a TENS machine to get through their days, with pain medication as a last resort.

The worker indicated that their treating medical practitioners did not recommend a return to work after July 2014 and that they remain totally disabled from all right arm work due to continuing pain of flare-ups.

For these reasons, the worker believes they should be entitled to wage loss benefits after July 14, 2014.

The worker’s position with respect to whether the PPI rating has been correctly established is that the rating is not correctly established as the WCB failed to conduct a sufficiently thorough examination to assess the worker’s mobility in 2018, noting that a physician conducted the 2007 examination, but a physiotherapist conducted the more recent examination. The worker also noted that the 2007 PPI rating included measurement of the deficit of their neck mobility, but the 2018 PPI rating did not take neck mobility into account. As such, the worker believes the PPI rating was not correctly established.

Employer’s Position

The employer did not participate in the hearing of the appeal but provided a written submission to the appeal panel in advance of the hearing, which was shared with the worker prior to the hearing.

The employer’s position as outlined in the written submission dated June 1, 2022 is that the worker is not entitled to wage loss benefits after they discontinued working in July 2014 and that the PPI rating has been correctly calculated.

The employer’s written submission notes that after the worker transferred to another province in August 2010 the employer accommodated the worker within their permanent restrictions. Prior to the transfer, the employer was already accommodating the worker’s WCB-imposed workplace restrictions, and after the worker changed work locations in 2012, they continued in the same position with no change in duties until July 9, 2014 when the treating chiropractor advised the worker to cease working. The employer noted that the worker was accepted for short-term disability benefits as of July 9, 2014, which continued for six months until the worker was accepted for long-term disability benefits on February 4, 2014. The employer noted that when the disability insurance benefits began, the employer considered not only the worker’s WCB permanent restrictions but also the additional physical restrictions placed on the worker by the disability insurance provider.

The employer submitted that the evidence confirms the worker’s time loss after July 9, 2014 is not related to the compensable injury, noting that the worker “experienced a change in [their] medical status in July 2014, as [the worker] was unable to return to work.” The employer noted the WCB medical consultant’s opinion that the 2014 MRI study of the worker’s right shoulder, which was taken after the worker ceased working, documented changes that were not the result of the March 23, 2003 workplace accident. Further, the evidence confirms that the worker had additional non-occupational restrictions related to conditions that did not arise from the compensable workplace injury and it was as a result of “the combination of occupational and non-occupational restrictions and limitations” that the employer could no longer accommodate the worker. As the worker’s additional medical conditions that prevents them from working are not related to the 2003 workplace injury, there should be no entitlement to time loss beyond July 2014.

With respect to the PPI rating calculated in May 2018, the employer noted that the worker’s previous rating included both the worker’s right shoulder and neck deficits, for a total body impairment rating of 14%. The employer submitted that the measurement and calculations of the worker’s right shoulder mobility deficit in 2018 were correctly performed as detailed in the WCB physiotherapy advisor’s memoranda of April 3, 2018, and May 9, 2018 which indicate that the worker’s right shoulder mobility has improved over time.

In sum, the employer’s position is that the evidence does not support the worker’s entitlement to wage loss benefits after July 14, 2014, and does support a finding that the worker’s PPI rating has been correctly calculated.

Analysis

There are two questions for the panel to consider in this appeal by the worker. Firstly, is the worker entitled to wage loss benefits after July 14, 2014 when they discontinued working, and secondly, whether the worker’s PPI rating has been correctly established by the WCB.

Is the worker entitled to wage loss benefits after July 14, 2014? 

For the worker’s appeal on this question to be granted, the panel would have to determine that the worker sustained a loss of earning capacity related to the compensable workplace injury of March 23, 2003 beyond July 14, 2014. As detailed in the reasons that follow, the panel was not able to make such a finding and therefore the worker’s appeal on this question is denied.

The panel noted that the WCB accepted the diagnosis of right rotator cuff tendinopathy as the compensable injury. As outlined in the Appeal Commission’s prior decision, No. 105/08, this is a chronic condition that affects the worker’s neck, shoulder, and shoulder girdle regions. This diagnosis was confirmed by the WCB upon reviewing the September 5, 2014 MRI study of the worker’s right shoulder. That study revealed findings of: “Supraspinatus and infraspinatus tendinosis. Partial-thickness tear of the supraspinatus tendon at the bursal surface with intrasubstance propagation. Moderate sized subacromial hook is demonstrated with impingement upon the supraspinatus tendon at the site of the supraspinatus tendon tear.” These findings were interpreted by the WCB medical advisor on September 29, 2014 as revealing:

“…normal aging changes within the cuff and would not have been caused by the workplace activities of 11 years ago. They may, however, be contributing to [the worker’s] rotator cuff symptoms. It would be impossible to determine what cuff symptoms/findings are related to the [compensable injury] and what are related to these aging changes, so there would have to be presumed a combined effect.”

The medical advisor also confirmed that there was ongoing evidence of “chronic rotator cuff tendonopathy” and therefore the permanent restrictions remained appropriate and should continue, but that there was no change in the worker’s diagnosis or clinical status relating to the compensable injury.

The WCB medical advisor provided a further opinion on October 11, 2014, after reviewing the September 10, 2014 report received from the worker’s treating physician for an examination on July 21, 2014, the July 16, 2014 report from the treating chiropractor for examinations on July 10 and 14, 2016 and the October 3, 2014 report from the treating chiropractor. The medical advisor noted no new findings were reported, but that the treating chiropractor stated the worker could not continue the modified duties due to suspicion of a rotator cuff tear; whereas the physician stated the worker was capable of modified duties but could not use their right arm. The WCB medical advisor noted this difference of opinion in terms of the worker’s capabilities and concluded that best practice medicine should be followed, which would support that “…rotator cuff tendonopathy does not cause total disability and the worker can work within appropriate restrictions. The worker’s permanent restrictions remain appropriate for the [diagnosis] related to the [compensable injury], since that has not changed.”

The panel also noted the July 18, 2014 opinion of the WCB chiropractic advisor, on reviewing the treating chiropractor’s July 16, 2014 report of the worker’s reported neck stiffness and decreased mobility, as well as headache with nausea. The chiropractic advisor stated that the worker’s shoulder and cervical spine range of mobility as described “…would not preclude performance of workplace duties within [their] level of restrictions. While the claimant may be disabled by the effects of headache with nausea, I remain of the opinion that disabling headache would not relate to the effects of the compensable injury.”

The panel further considered the June 30, 2014 report provided to the WCB by the worker’s treating chiropractor, which indicated that the worker’s “subjective information is consistent” with pain note in the right rotator cuff muscles, cervical and thoracic spine and migraine with aura and sinus headaches. We note that the contents of this report are consistent with prior reporting from the treating chiropractor and did not raise any new concerns. The chiropractor concluded that the worker’s workload continued to be “an extrinsic stressor” to their injury.

The panel further noted that the orthopedic surgeon who assessed the worker on December 3, 2014 also confirmed the diagnosis of right rotator cuff tendinopathy and noted the worker to be capable of modified work with restrictions.

The worker testified that they applied for disability insurance benefits in July 2014 because the WCB denied coverage for wage loss; however, the panel noted that the documentation in the claim file indicates that the worker did not notify the WCB of their removal from work as of July 9, 2014 on July 14, 2014, which is the same date as the worker made the application for disability insurance benefits. The WCB did not make any decisions as to the worker’s entitlement to wage loss benefits until July 21, 2014 after seeking further information and the above-noted opinion from the WCB chiropractic advisor.

We further note that the evidence confirms the worker continued to work within the permanent restrictions established by the WCB from 2010 until 2014. There were no wage loss claims related to the compensable injury during this period. Although the worker believes that the WCB was aware of the worker’s injury-related absences during this period based upon the chiropractor’s reporting, the panel does not find that to be the case based upon the contents of those reports and the WCB’s response to them.

The panel accepts and relies upon the opinions of the WCB medical advisor and chiropractic advisor that there are no clinical findings to support the worker’s position that they were unable to continue working beyond July 9, 2014 due to, or as a result of the compensable diagnosis of right rotator cuff tendinopathy. The medical reporting from the treating practitioners during this period confirms the worker’s ongoing symptoms related to the compensable diagnosis but does not provide evidence to support a finding that the worker’s right rotator cuff injury is the reason for or cause of the worker’s time loss.

The worker submitted that they were unable to continue working as a result of their compensable injury and that the restrictions put in place in early 2013 without the worker’s knowledge, put the worker into the position of unknowingly working outside their restrictions. The worker referenced, specifically, the restriction against fine manipulation/grasping/grabbing more than 5 times through the workday, noting that their job involved frequent sorting of various items that would be outside this restriction. The panel noted however that this restriction was not required by the WCB in relation to the compensable workplace injury but was a restriction placed on the worker by the disability insurance provider on January 4, 2013, and furthermore, that the worker was informed of the restriction when it was placed.

With respect to the employer’s ability to accommodate the worker’s restrictions related to the compensable injury, the employer stated, in their submission, that it was when the disability insurer put additional physical restrictions on the worker, in 2015 following a functional capacity evaluation, that the employer could no longer accommodate the worker within their restrictions and could not find alternative employment for the worker. The employer confirmed that it was able to accommodate the worker’s restrictions as provided by the WCB, as demonstrated by the worker’s accommodated employment until July 9, 2014. The panel accepts the employer’s statements in this regard, noting the evidence that there were a number of additional restrictions put in place after July 9, 2014 that do not appear to relate to the compensable right rotator cuff tendinopathy.

The evidence before us supports a finding that although the worker experienced a change in their health status in July 2014, this was not related to the compensable workplace injury of March 23, 2003, as there was no change in terms of the worker’s compensable diagnosis of right rotator cuff tendinosis and the worker could have continued to work within the restrictions in place related to that compensable injury. Further, we find that the employer was able to continue to accommodate the worker’s restrictions related to the compensable workplace injury beyond that date.

On the basis of the evidence before us and on the standard of a balance of probabilities, the panel finds that the worker’s loss of earning capacity as of July 14, 2014 is not causally related to or the result of the compensable workplace injury of March 23, 2003. Therefore, the worker is not entitled to wage loss benefits after July 14, 2014 and the appeal of this question is denied.

Is the worker’s Permanent Partial Impairment rating correctly established? 

For the worker’s appeal of this question to be granted, the panel would have to determine that the WCB failed to correctly apply the provisions of the Policy in measuring the worker’s permanent partial impairment rating. As outlined in the reasons that follow, the panel was unable to make such a finding and therefore the worker’s appeal on this question cannot be granted.

The panel considered that the Appeal Commission in decision 105/08 found “…that the worker has a chronic condition affecting [their] neck, shoulder and shoulder girdle.” The panel accepts and relies upon this finding. We acknowledge that the worker has ongoing pain and discomfort in their neck as a result of their compensable, chronic right shoulder condition, but the panel also noted that as a result of the subsequent cervical spine MRI study on April 14, 2009, the WCB determined that the worker’s cervical spine symptoms related to the noted degenerative changes, rather than to the March 23, 2003 workplace injury. As set out in a memorandum dated May 25, 2009, the WCB medical advisor confirmed the worker’s neck symptoms were not related to the compensable injury.

The panel also noted that the medical file review conducted by the WCB physiotherapy advisor on April 13, 2018, concluded that:

In relation to a potential PPI rating on this claim, the specific diagnosis is a right rotator cuff tendinopathy. This would result in an examination specific to the shoulder joint.

Although the WCB has funded supportive care to adjunctive regions (neck, upper back, scapular region) there is no accepted diagnosis on file for which permanent mobility deficits are accounted for in relation to the March 23, 2003 workplace injury, beyond the shoulder joint….

Therefore any potential PPI rating will be specific to the shoulder joint. A PPI call-in exam will be arranged to evaluate left vs right active guided shoulder mobility. Cervical mobility measurements may be taken for documentation purposes only to assist in the potential determination of restrictions and assistance in the return to work planning.

In respect of the worker’s shoulder impairment, the panel is satisfied that the Policy provisions have been correctly applied. The shoulder range of motion measurements taken, as detailed in the PPI Examination Notes dated May 9, 2018 were conducted in accordance with the Policy requirements for active guided left and right shoulder mobility as set out in Schedule A to the Policy. The assessment of the worker’s active guided range of motion in their injured right shoulder as compared to their left shoulder revealed a deficit of 45 degrees of range of motion in total, or 8.3%. This percentage deficit range of motion was then multiplied by the maximum rating for a fused shoulder of 25% as per the Policy provisions to result in a 2.1% whole body impairment rating.

While the worker expressed a concern that the present PPI examination was conducted by a WCB physiotherapy consultant whereas the initial PPI examination in April 2007 was conducted by a WCB physician consultant, the only requirement noted in the Policy is that clinical assessment of the injured worker will be undertaken “by a WCB Healthcare Advisor or a healthcare advisor chosen by the WCB”. The panel is satisfied that the assessment of the worker by the WCB physiotherapy consultant meets this requirement.

The panel noted that the examination findings indicate that the worker’s mobility has increased since the previous PPI examination in 2007, both in terms of measured shoulder and neck mobility. In the result, the worker would not be entitled to any additional award in respect of a permanent loss of mobility, even if the cervical range of motion had been included in the rating calculation as it was in 2007.

On the basis of the evidence before us and on the standard of a balance of probabilities, the panel finds that the worker’s permanent partial impairment rating has been correctly established. The worker’s appeal on this question is denied.

Panel Members

K. Dyck, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

K. Dyck - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 8th day of July, 2022