Decision #111/24 - Type: Workers Compensation

Preamble

The worker appealed the decisions of the Workers Compensation Board ("WCB") that:

1. In relation to the accident of December 29, 2017, responsibility should not be accepted for the worker’s left shoulder tear as being a consequence of the December 29, 2017 accident; and 

2. In relation to the accident of December 29, 2017, the worker is not entitled to full wage loss benefits effective March 1, 2021; 

3. In relation to the accident of February 15, 2018, the claim is not acceptable.

A hearing took place on December 4, 2024 to consider the worker's appeal.

Issue

Accident of December 29, 2017 

1. Whether or not responsibility should be accepted for the worker’s left shoulder tear as being related to the December 29, 2017 accident; 

2. Whether or not the worker is entitled to full wage loss benefits effective March 1, 2021; and 

Accident of February 15, 2018 

3. Whether or not the claim is acceptable.

Decision

Accident of December 29, 2017 

1. Responsibility should not be accepted for the worker’s left shoulder tear as being related to the December 29, 2017 accident; 

2. The worker is not entitled to full wage loss benefits effective March 1, 2021; and 

Accident of February 15, 2018 

3. The claim is not acceptable.

Background

Accident of December 29, 2017

On January 2, 2018, the worker reported an injury to their low back and right shoulder that occurred at work on December 29, 2017. The initial chiropractic assessment of January 2, 2018 recorded positive tests in the left sacroiliac and lumbar regions and noted a diagnosis of lumbosacral sprain/strain. The WCB accepted the worker's claim on January 10, 2018.

At follow-up with the treating chiropractor on January 31, 2018, the chiropractor updated the diagnosis to include right acromioclavicular (“AC”) strain, noting the worker reported pulling their right arm at the time of the accident, and that the worker had tenderness and reduced range of motion in that region. On assessment by a sports medicine physician on March 6, 2018, the worker reported increasing pain to their right shoulder since the workplace accident, and the physician noted the worker's symptoms including pain in their right shoulder joint, limited range of motion, and intermittent pain that wakes them at night. The physician recorded positive impingement and rotator cuff injury testing and diagnosed right rotator cuff impingement and strain.

In discussion with the WCB on March 8, 2018, the worker advised they remained at work despite a recommendation to take a week off, and confirmed that at the time of the accident, both their low back and right shoulder were injured. On March 10, 2018, the worker was assessed for physiotherapy, and the treating therapist provided their diagnosis of right shoulder rotator cuff strain, with a possible small right rotator cuff tear. The chiropractic discharge report provided to the WCB on March 23, 2018 indicated the worker's low back injury was resolved and the worker was transferred to a sports injury clinic for treatment of their shoulder injury. A report from the treating sports medicine physician on March 29, 2018 noted the worker's left shoulder was also sore as the worker reported they relied on it more to save their right shoulder.

The WCB accepted the worker's right shoulder strain on April 5, 2018. On April 6, 2018, the worker advised their WCB case manager that they also hurt their left shoulder outside of work and sought treatment for that injury approximately 10 days after their right shoulder. An MRI of the worker's right shoulder from July 30, 2018 indicated a high-grade, partial thickness tendon tear at the junction of the supraspinatus and infraspinatus tendons, mild osteoarthritis of the acromioclavicular joint and a suspected tear of the anterior labrum. On September 6, 2018, an orthopedic surgeon assessed the worker and confirmed the diagnosis of a near full thickness supraspinatus tear, recommending surgical repair; however, the worker chose to continue with conservative treatment involving physiotherapy.

A WCB medical advisor reviewed the worker’s file on September 20, 2018. On October 5, 2018, the WCB advised the worker that it accepted responsibility for the right rotator cuff tear.

On October 22, 2018, in providing an update to the WCB, the worker again advised of an injury to their left shoulder, which they related to the December 29, 2017 workplace accident. The worker indicated the treating healthcare providers knew about their left shoulder difficulties and that an MRI of the shoulder indicated three separate tears. On October 23, 2018, the WCB advised the worker that further investigation of the left shoulder injury was required. On January 11, 2019, the WCB advised the worker it did not accept that their left shoulder difficulties were a secondary injury, noting that the worker initially reported the injury as being unrelated to the workplace injury and as an overuse injury could not be medically accounted for in relation to the compensable right shoulder injury.

On March 24, 2019, the worker requested Review Office reconsider the WCB's decision, noting the treating healthcare providers related their ongoing left shoulder difficulties as an overuse injury as a result of their right shoulder injury. A May 15, 2019 progress report from the worker's treating orthopedic surgeon noted a planned left shoulder surgery on May 21, 2019. On May 28, 2019, the employer provided a submission to Review Office in support of the WCB's decision and noting a concern with the WCB's acceptance of the worker's right shoulder difficulties. When Review Office contacted the employer in this regard, the employer confirmed they wished to appeal acceptance of the right shoulder injury. Review Office advised the worker of the employer's request and requested that the WCB chiropractic consultant review the worker's file. On June 10, 2019, the WCB chiropractic consultant provided an opinion that the worker's right shoulder was not examined, diagnosed or treated prior to January 29, 2018. After Review Office shared this opinion with the worker and employer, both provided additional submissions.

On July 8, 2019, Review Office determined the worker's right shoulder difficulties were not acceptable and as such, the worker's appeal for their left shoulder difficulties was moot. The worker submitted further information to Review Office on September 3, 2019, including their detailed chronology of events, medical journal articles and an August 29, 2019 letter from their treating chiropractor in support of their appeal and requested Review Office reconsider the previous decision. Review Office upheld the previous decision on October 10, 2019.

The worker’s representative filed an appeal with the Appeal Commission on February 26, 2020. After a hearing on August 27, 2020, the Appeal Commission issued Decision No. 93/20, dated September 18, 2020. The Appeal Commission determined responsibility should be accepted for the worker's right shoulder difficulties as a consequence of the December 29, 2017 accident and returned the worker's file to the WCB's Compensation Services for further adjudication.

The worker confirmed to the WCB on September 24, 2020 that right shoulder surgery was scheduled for December 1, 2020, and that they continued to work their regular duties. On September 25, 2020, the WCB received a report from the treating orthopedic surgeon indicating the worker's complaints of anterolateral right shoulder pain, aggravated by forward elevation and overhead positions and noting the July 2018 MRI study findings. On September 30, 2020, the WCB authorized the proposed surgery.

At post-surgical physiotherapy assessment on December 23, 2020, the physiotherapist noted the worker would be off work for 2 months. The WCB received a post-surgery report dated January 4, 2021 which noted the worker’s diminished strength and recommended continuing shoulder range of motion and strengthening physiotherapy. A WCB medical advisor reviewed the worker’s file on January 13, 2021 and outlined proposed restrictions for the worker’s return to work.

On January 15, 2021, the WCB advised the employer of temporary restrictions of no use of the worker’s right arm, no driving and capable of sedentary duties only. On February 23, 2021, the employer advised they could not accommodate the worker, but the next day, the employer advised the WCB that pending the outcome of the worker's next appointment with the orthopedic surgeon, the employer may be able to offer an accommodated position.

On March 1, 2021, the employer contacted the WCB to advise they offered modified duties to the worker to begin on March 1, 2021, but the worker declined to participate. When the WCB spoke with the worker on March 4, 2021 to discuss the modified duties offer, the worker advised they were unable to participate because they were out of province, as the WCB knew. The WCB noted they previously advised the worker if the employer had suitable modified duties available while they were away, they would not be entitled to wage loss benefits. On March 11, 2021, the WCB wrote to the worker confirming they were not entitled to wage loss benefits after March 1, 2021 as they declined the employer's offer of modified duties.

After the orthopedic surgeon saw the worker on March 10, 2021, the WCB updated the worker's restrictions to include no lifting over 20 pounds with the right arm, minimal repetitive overhead work, no lifting over 10 pounds overhead and no lifting outside the body envelope. The surgeon also recommended the worker continue with physiotherapy. The WCB advised the employer of the updated restrictions on March 16, 2021, and on March 22, 2021 the employer confirmed the worker would return to work on a full time basis in an accommodated position. The WCB received further reports from physiotherapy and the treating surgeon, with updated restrictions, until the worker was cleared for return to full regular duties as of May 19, 2021.

On May 10, 2021, the worker's representative requested Review Office reconsider the July 8, 2019 decision the worker's left shoulder difficulties were not a secondary injury to their compensable right shoulder injury. Subsequently, the employer provided a submission, and the worker provided further submissions in response. On August 9, 2021, Review Office determined the worker's left shoulder tear was not compensable.

On August 30, 2021, the worker requested Review Office reconsider the March 11, 2021 decision that they were not entitled to wage loss benefits after March 1, 2021. On September 22, 2021, Review Office contacted the employer to gather further information regarding the modified duties they offered to the worker and on September 23, 2021, the employer provided a job description for the offered position. On October 14, 2021, the WCB requested and received information from the employer regarding the wage the worker would have received if they accepted the accommodated position. After this information was shared with the worker and the employer, both the employer and the worker provided further submissions. Review Office determined on December 6, 2021 that the worker had a partial loss of earning capacity effective March 1, 2021.

Accident of February 15, 2018

On January 30, 2019, the worker submitted a Worker Incident Report to the WCB, reporting an injury to their left shoulder that occurred on February 15, 2018. In their Report, the worker noted that as a result of the injury to their right shoulder, they had to use their left arm more. The worker related the difficulties with their left shoulder to overuse in work activities, confirming they are left-hand dominant. The worker described work activities that include reaching with an outstretched arm, pushing and pulling, operating heavy equipment, wearing heavy protective gear and reaching backward when seated in a work vehicle. The worker stated they first noticed left shoulder symptoms in mid-February 2018 and described feeling “…soreness in my left shoulder from compensating for my injury. I am in constant pain now. Range of motion is fairly decent. I am losing muscle mass and strength. It is to the point now where surgery is recommended. I cannot sleep on either side or I wake up with pain." The worker also reported that a MRI study of both shoulders on July 30, 2018 identified three tears in their left shoulder, and they were scheduled for left shoulder surgery in May 2019.

The employer submitted an Employer's Incident Report on January 31, 2019 noting the worker described "Long Term Cumulative Damage. Repeated impacted (sic). Repeated vigourious (sic) resistive activities of the outstretched limb. All to the L (left) arm/shoulder."

When the WCB contacted the worker on February 27, 2019, the adjudicator noted the worker’s prior claim for a right shoulder and low back injury. The worker advised that they felt their left shoulder symptoms arose out of overuse due to the compensable injury on their other WCB claim. The adjudicator confirmed that the WCB previously decided, in relation to the other claim, that the left shoulder tear was not related to that claim. The worker confirmed they were aware of the decision and now were claiming their left shoulder difficulties related to their many years of performing their job duties. The WCB adjudicator explained the appeal process to the worker and suggested the worker consider filing an appeal on the prior claim. On March 6, 2019, the WCB wrote to the worker confirming this and that the worker did not want to pursue their claim. On May 27, 2019, the WCB wrote to the worker advising the claim was not acceptable as the evidence did not support a relationship between their left shoulder difficulties and their employment.

On August 25, 2023, the worker's representative requested Review Office reconsider the WCB's decision in relation to the worker’s claim for a cumulative left rotator cuff shoulder injury as a result of their job duties. On October 22, 2023, the employer provided a submission in support of the WCB's decision and the worker's representative provided a response on October 30, 2023. On November 7, 2023, Review Office determined that selected documents from the worker's 2017 WCB claim were relevant to this claim and added those documents to the worker's file, with copies provided to the parties. The employer provided another submission on April 16, 2024. On May 6, 2024, Review Office determined that the worker's claim was not acceptable as the medical evidence did not support a causal relationship between the worker's left shoulder condition and their job duties.

Both Claims

The worker's representative filed an appeal with the Appeal Commission for both claims on August 12, 2024 and a hearing was arranged.

Reasons

Applicable Legislation and Policy

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 applicable provisions of the Act and policies are those in effect as of the dates of accident.

Section 4(1) of the Act provides for compensation to be paid by the WCB where a worker has sustained personal injury by accident arising out of and in the course of employment. Accident is defined in s 1(1) of the Act as a chance event occasioned by a physical or natural cause, which includes any event arising out of, and in the course of, employment, or thing that is done and the doing of which arises out of, and in the course of employment, and an occupational disease, as a result of which a worker is injured.

Under s 4(2) of the Act, a worker injured in an accident is entitled to wage loss benefits for the loss of earning capacity that results 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. Section 22 of the Act outlines the responsibility of a worker to take all reasonable steps to reduce or eliminate any impairment or loss of earnings resulting from an injury, to seek out, cooperate in and receive medical aid that promotes their recovery and to cooperate with the WCB in developing and implementing programs for returning to work. When a worker fails to comply with those responsibilities, the WCB may reduce or suspend the compensation payable to the worker. If the WCB determines that a worker has 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.

The WCB established Policy 44.10.30.60, Co-operation and Mitigation in Recovery, (the “Mitigation Policy”) to detail workers’ responsibilities under s 22 of the Act. The Policy sets out that a worker mitigates the negative effects of a workplace injury by reasonably participating and cooperating in medical treatment and services, and by participating fully in return to work and other programming the WCB considers beneficial to the worker's recovery and return to work.

The WCB established Policy 44.10.80.40, Further Injuries Subsequent to a Compensable Injury (the “Further Injuries Policy”) which applies to a separate injury that is not a recurrence of the original compensable injury, but where there may be a causal relationship between the further injury and the original compensable injury. This Policy sets out that a further injury occurring subsequent to a compensable injury is compensable:

(i) when the cause of the further injury is predominantly attributable to the compensable injury; or 

(ii) when the further injury arises out of a situation over which the WCB exercises direct specific control; or 

(iii) when the further injury arises out of the delivery of treatment for the original compensable injury.

The WCB also established Policy 43.20.25, Return to Work with the Accident Employer (the “Return to Work Policy”) to outline the WCB’s approach to return to work of injured workers through modified or alternate duties with the accident employer. This policy sets out that employers are expected to consider the following objectives in the following sequence:

1) Return to the same work with the accident employer. 

2) Return to modified work with the accident employer. 

3) Return to different (alternate) work with the accident employer.

The Return to Work Policy encourages employers to provide modified or alternate work to injured workers as part of a process of safely returning those workers to work and helping them to regain their earning capacity, and provides that if a worker refuses to participate in suitable work, wage loss benefits will be reduced or eliminated by the amount the worker would have earned in the suitable work.

Worker’s Position

The worker was represented in the hearing by a worker advisor who made an oral submission on behalf of the worker and relied upon an additional submission provided in advance of the hearing. The worker offered testimony through answers to the questions posed by the worker advisor and by members of the appeal panel.

The worker’s position, as outlined by the worker advisor, is that as a result of the compensable workplace accident of December 29, 2017, the worker sustained injury to their left shoulder, because the right arm injury caused the worker to over-rely on their left arm. The worker submits the evidence confirms their left shoulder injury is predominantly attributable to the compensable right shoulder injury, and therefore, the WCB should accept responsibility for the left shoulder tear as a subsequent injury.

The worker’s position in relation to their entitlement to wage loss benefits as of March 1, 2021 is that they should be entitled to full wage loss benefits as they were not cleared for return to work by their treating medical providers at that time, and reasonably acted on the instructions of those providers by refusing the employer’s offer of modified duties.

In relation to the accident claim of February 15, 2019, the worker’s position is that the worker’s left shoulder tear injury is the result of their continuing participation in a physically demanding occupation after their right shoulder injury, with the result that the demand, or load upon the worker’s left shoulder increased and caused the damage evidenced in the July 2018 MRI study. The worker advisor confirmed that it is the worker’s position that their left shoulder injury is a cumulative injury occurring over time and is not the result of any specific incident or event or accident.

Employer’s Position

The employer was represented in the hearing by its Workers Compensation Coordinator, who made an oral submission on behalf of the employer and answered questions from members of the appeal panel.

In relation to the accident claim of December 29, 2017, the employer’s position is that the evidence does not establish any causal relationship between the worker’s left shoulder tearing and the injuries sustained in the workplace accident of December 29, 2017 and therefore the WCB should not accept responsibility for the left shoulder injury. The employer’s representative noted the Further Injuries Policy provides that a secondary injury, if predominantly attributable to the injuries sustained in the accident, is compensable, but in this case, the evidence points to the worker’s left shoulder injuries as resulting from a non-compensable incident that took place in early March 2018.

Further, the employer’s position is that the worker is not entitled to full wage loss benefits effective March 1, 2021 as the evidence confirms that the employer offered appropriate modified duties to the worker, which aligned with the restrictions imposed by the WCB on January 15, 2021, to begin on March 1, 2021, but that the worker did not accept that offer and was unavailable to work as of that date due to their personal circumstances and choices. As such, the worker should not be entitled to full wage loss benefits as of March 1, 2021.

In respect of the accident claim of February 15, 2018, the employer’s position is that the claim is not acceptable as the evidence does not support a finding that there is any causal relationship between the worker’s continuing job duties, neither before nor after the workplace accident of December 29, 2017, and their left shoulder injuries.

Analysis

In determining this appeal, the panel must decide whether the worker’s left shoulder injury is compensable in that it arose out of the worker’s employment, either as a secondary injury to the right shoulder injury sustained in the accident of December 29, 2017 or, in relation to the 2018 claim, as a cumulative injury arising out of and in the course of the worker’s employment. The panel must also decide whether the worker is entitled to full wage loss benefits as of March 1, 2021, in relation to the accident of December 29, 2017. As detailed in the reasons that follow, the panel determined that the worker’s left shoulder tear is not compensable as a secondary injury arising out of the compensable injuries sustained in the accident of December 29, 2017, and further, is not compensable as a cumulative injury arising out of and in the course of the worker’s ongoing job duties. The panel also determined, for the reasons set out below, that the worker is not entitled to full wage loss benefits as of March 1, 2021.

Is the worker’s left shoulder injury compensable? 

The questions on appeal relating to the worker’s left shoulder injury, although different and arising out of two separate WCB claims, are based on essentially the same facts and circumstances, and therefore the panel considered these questions together, in the context of all the available file information and evidence. The worker’s position is that either the left shoulder injury is a secondary injury arising from the compensable right shoulder injury of December 29, 2017, or it is a cumulative injury arising from the worker’s continuing participation in their regular job duties after the accident of December 29, 2017.

The panel reviewed the Further Injuries Policy, which applies to injuries arising as a consequence of a previous workplace accident. That Policy outlines that a further injury occurring subsequent to a compensable injury is compensable when that subsequent injury is predominantly attributable to the compensable injury. There are other possible circumstances where a secondary injury can be found to be compensable; however, the panel finds that those are not relevant in the present case.

The panel is satisfied that the evidence does not support a finding that the worker’s left shoulder injury is “predominantly attributable to” their compensable right shoulder injury. In support of our finding, we noted that the most contemporaneous medical reporting and file documents point instead to the worker’s left shoulder concerns as arising out of another, non-compensable activity in early March 2018. The worker initially advised the WCB on April 6, 2018 that they injured their left shoulder outside of work. This is consistent with the information the worker provided to the treating chiropractor on March 13, 2018 and to the treating physiotherapist on March 14, 2018. The panel accepts and relies upon these reports as well as the physiotherapist’s November 22, 2018 report which confirms the worker first reported left shoulder symptoms on March 14, 2018 as being related to an incident that took place outside of work and concludes that:

“…the left shoulder injury appears to have it’s (sic) genesis in a sports injury in early March of 2018. In the intervening period from March 2018 through late October 2018, given the concurrent involvement of [the worker’s] right shoulder, the left shoulder will have been exposed to strain at home and at work, and resulting from left side sleeping all of which might periodically exacerbate pain. While [their] work might periodically exacerbate the original injury, I am unaware of a specific work related new trauma incident date during this time period.

Any requirement at work to perform work with the left hand high overhead, to lift heavily with or to jerk the left shoulder, or to accelerate faster would place strain on the left rotator cuff and worsen inflammation or tissue tearing there. This effect while significant would likely be less than the original left shoulder damage that appears to date back to the … incident in March of 2018.”

Based on these reports, we are satisfied that the worker’s left shoulder injury as initially identified in March 2018 and confirmed in July 2018, is not predominantly attributable to the compensable right shoulder injury.

The panel then considered the worker’s alternative position that their left shoulder injury is a cumulative condition, stemming from their long term employment in a physically demanding role and that having continued in that role after the accident of December 29, 2017 relying primarily on their left arm, they were more vulnerable to developing a cumulative injury. The panel considered the evidence that the worker is left-hand dominant and physically fit, having demonstrated they are capable of meeting the physical demands of their job for more than 20 years with no evidence of any prior ongoing or chronic left shoulder difficulties. The panel also considered evidence that, in the spring of 2018, the worker repeatedly advised their medical providers that while they continued working, they were in a supervisory role that was less physically demanding. Further, the treating chiropractor, with whom the worker has a longstanding professional relationship, confirmed the worker did not have any left shoulder problems “prior to several months after the original incident” in December 2017, but first reported a concern with their left shoulder on March 13, 2018. While the chiropractor stated in October 2018 that “It is plausible that the increased load placed on [the worker’s] left shoulder damaged the muscles as it took the majority of work from [their] right shoulder”, we noted the chiropractor did not address the potential impact of the other, non-work-related incident that also occurred in early March 2018.

The panel acknowledges that the worker continued with their regular duties following the December 2017 accident and we accept that the worker’s occupation is physically demanding and requires, from time to time, the application of significant effort and force against resistance; however, we are satisfied the evidence does not support the finding that those duties caused an injury to the worker’s shoulder. While the reports provided by the treating sports medicine physician and the treating orthopedic surgeon suggest the worker’s left shoulder issues arose gradually out of the worker’s continuing job duties, undertaken primarily with their left arm, those opinions are based at least in part upon information that the panel finds to be inaccurate. For example, the treating sports medicine physician referenced that the worker indicated they “did bang the lateral shoulder at the time of [their] injury for the right shoulder” but this is not supported by the evidence. Further, the treating orthopedic surgeon in their September 21, 2020 report referenced a gradual onset of left shoulder symptoms but does not appear to have been advised of the worker’s March 2018 injury to their left shoulder which both treatment providers from that time indicate was the point of symptom onset.

The panel also noted that the WCB medical advisor opined that the worker’s left shoulder pathology “…could be caused by repeated impacts, repeated vigorous resisted activities of the outstretched limb, or by repeated tractions injuries. Although the pathology of the contralateral shoulder would not be the initial cause of the left shoulder pathology, using the left upper limb more than usual would be expected to lead to painful symptoms in the left shoulder during such activities.” The worker submits that this opinion supports the finding that the left shoulder injury is the result of the worker’s overreliance on that shoulder after the right shoulder injury, but that is not how the panel interprets this opinion. Rather, we understand that the WCB medical advisor is indicating it is possible that the worker’s job duties could cause an increase in left shoulder symptoms rather than causing an injury, and further, that there is no imaging available to confirm when the worker’s injury occurred, although the panel noted that by July 30, 2018, the evidence confirms the worker’s left shoulder had a number of issues, some of which were degenerative in nature.

The panel further finds that the chronology of events does not support the worker’s position that their left shoulder injury is the result of cumulative use after December 29, 2017. There is, as noted previously, evidence the worker had no prior left shoulder concerns and that after working just over two months after their right shoulder injury, they reported symptoms. We find it is not probable that the worker developed a rotator cuff tear injury as was suspected by mid-March 2018 and confirmed in July 2018, based on cumulative activities such as the WCB medical advisor described over such a brief period.

Although the worker later attributed their left shoulder issues to trauma sustained at the time of the accident, the panel also finds there is no evidence to support that explanation.

Based on the evidence and on the standard of a balance of probabilities, we are satisfied that the worker’s left shoulder tear is not compensable as a secondary injury and is not compensable as a cumulative injury arising out of and in the course of the performance of their job duties. Therefore, responsibility should not be accepted for the worker’s left shoulder tear as being related to the December 29, 2017 accident, and furthermore, in relation to the accident of February 15, 2018, the claim is not acceptable.

Is the worker entitled to full wage loss benefits as of March 1, 2021? 

The panel considered whether the evidence supports the worker’s position that they are entitled to full wage loss benefits as of March 1, 2021 because they were not, at that time, cleared for a return to work by their treating medical providers. The panel noted the September 30, 2020 opinion of the WCB medical advisor outlined that post-surgery, the worker would require physiotherapy “…starting three to four weeks after complete rest of the upper limb. Use of the dominant left upper limb would be unaffected. Gradual increase in capability of the right upper limb for lifting and carrying would be determined by physiotherapy findings, leading to expected unrestricted use six months after surgery.” We accept that this opinion outlines the typical course of recovery for the surgery that took place on December 1, 2020.

On reviewing the post-surgical medical reporting, the panel noted there is no evidence of any complications during or following the surgery of December 1, 2020, and in the post-surgical physiotherapy assessment of December 22, 2020 the physiotherapist recommended the worker remain off work for eight weeks. In follow-up with the orthopedic surgeon’s office on January 4, 2021, there were no concerns noted with the worker’s recovery, and the physician recommended continuing physiotherapy to increase strength and mobility with follow up in two months. Of particular note, the physician did not comment on the worker’s ability to return to work nor suggest any restrictions. The panel further noted the WCB medical advisor, on January 13, 2021, also concluded there were no complications in the worker’s recovery which was progressing as expected, and noted “The post-operative protocol would include no resisted shoulder motion for six to eight weeks, followed by gradual resisted exercises to strengthen the shoulder.” The medical advisor recommended restrictions of no tasks with the right upper limb, noting the worker would be unable to drive or take part in most workplace activities.

Based on the medical reports and opinions, the WCB determined the worker was capable of sedentary work that did not involve use of the worker’s right arm and advised both the worker and the employer of those on January 15, 2021. The panel noted the worker did not appeal that decision although they stated in the hearing that they took issue with the terms of those restrictions.

The panel reviewed the Return to Work Policy which encourages employers to provide modified or alternate work to injured workers to support a safe return to work and to help them regain their earning capacity and provides that if a worker refuses to participate in suitable work, wage loss benefits will be reduced by the amount the worker would have earned in that work. The panel also reviewed the Mitigation Policy which requires workers to participate fully in return to work and other programming the WCB considers beneficial to their recovery and return to work. These policies are applicable to the present issue.

There is evidence confirming that the employer communicated an offer of modified duties to the worker on February 24, 2021 and February 25, 2021, with work to begin on March 1, 2021, and that on February 26, 2021, the worker declined that offer. While the worker argued they reasonably relied on their medical providers assessment that they were totally disabled, the WCB did not agree that the worker was totally disabled from all employment, as evidenced by the restrictions established on January 15, 2021 and the panel accepts the WCB’s conclusion in this regard. The medical reporting does not indicate that the worker was totally disabled from all employment at six weeks post-surgery, although the worker remained disabled from their own employment at that time. The panel is satisfied that the employer met its responsibility in terms of offering suitable modified or alternative duties, and that the WCB appropriately advised the worker of their responsibilities in relation to any offers of modified duties and of the potential consequences if they refused such offers or were not available for work. We note that the WCB’s conversations with the worker occurred in January and again in February, before the worker left the province. As such, the panel finds that the worker’s unavailability was not due to the injury nor to the medical advice received but was the result of their personal choice to leave the province and subsequently, the related requirement to quarantine upon return to Manitoba. We are satisfied that in these circumstances, the worker had an obligation to mitigate their loss of earning capacity by taking part in the modified duties offered by the employer, which we find were available to the worker effective March 1, 2021, and that the worker failed to do so.

Based on the evidence and on the standard of a balance of probabilities, we are satisfied that the worker’s loss of earning capacity as of March 1, 2021 is not causally related to the injuries sustained in the accident of December 29, 2017. As such, the worker is not entitled to full wage loss benefits as of that date, and the 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 13th day of December, 2024

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