Workplace Safety and Insurance Board
Appeals Resolution Officer Decision
Decision Number: 20100105 Objection By: Worker Employer: Participating Representative: Employer
Issues
The worker seeks the following entitlement:
Temporary total disability benefits:
- May 4-7, 1998; October 27-30, 1998; November 2-6, 1998; December 3-7, 1998; June 15-19, 2000 and September 7-12, 2000
- July 25, 2001 to March 31, 2002 on the basis that no further modified work was available
Temporary partial disability benefits:
- October 26, 2000 to July 25, 2001 on the basis he could only work six hours per day on modified duty
The worker also requests entitlement to a NEL redetermination for his right shoulder injury.
How the Issues Arise
On February 4, 1993, the worker slipped on ice at work and fell injuring his right shoulder. At the time of accident, he was 55 years of age and had worked as a custodian for the accident employer since 1987.
The worker sought medical attention and was diagnosed with a shoulder contusion and sprain. He received conservative treatment and remained off work. Pain symptoms persisted and range of motion of the shoulder did not improve. Following a specialist assessment, the diagnosis was updated to right shoulder tendonitis. An exercise program was recommended with possible steroid injections if difficulties persisted.
Entitlement was accepted and benefits for health care and lost wages were paid until June 22, 1993 when the worker was able to return to his pre-injury duty with accommodation, at no wage loss.
In early 1994, the worker contacted the then Workers' Compensation Board (the Board) to request consideration for permanent impairment of his right shoulder. Although he was performing his regular duties, he reported continuing symptoms and the need for accommodation at work. Continuity of ongoing problems was confirmed.
A permanent impairment was identified with maximum medical recovery occurring in July 1994. It was accepted the worker required permanently accommodated duty that did not involve heavy lifting, repetitive use of his right arm against resistance and above shoulder work.
The worker was assessed for permanent impairment on December 15, 1994 and assigned a four (4) percent non economic loss (NEL) whole person impairment award. Since he was being accommodated by his employer at no wage loss, it was determined he would not suffer future economic loss (FEL) and accordingly a zero FEL benefit was implemented.
Apparently, the worker lost sporadic days from work due to aggravations to his right shoulder injury. Specifically, he missed May 4-7, 1998 (32 hours); October 27-30, 1998 (32 hours); November 2-6, 1998 (40 hours); December 3-7, 1998 (24 hours); Jun 15-19, 2000 (24 hours) and September 7-12, 2000 (24 hours). However, payment of benefits for the lost time was not approved by the adjudicator because of insufficient medical documentation to support he was completely unfit to perform available accommodated duty. Decision letters that explained the denial of the above benefits are dated March 4, 1999, September 13, 2000 and September 25, 2005.
It appears that from October 26, 2000, the worker's treating physician had recommended a 6 hours/day on restricted duty as opposed to the normal 8 hour shift. Apparently, this was not reported to the Board by the employer as it understood from the Board that no further entitlement to benefits existed in the claim.
The worker reduced his daily hours and continued in this fashion until July 25, 2001 at which point he lay off work completely. The worker alleges that after July 2001 modified work was no longer available. The worker then permanently relocated his residence (Newfoundland) on or about August 25, 2001. The file information indicates the worker received his full salary until his sick leave was exhausted on October 16, 2001. It information on file (March 16, 2006 letter from employer) also suggested the worker applied for long term disability benefits but his application was denied.
The worker requested a NEL redetermination through his then representative. Updated medical information was reviewed however it was not established that significant deterioration from the NEL award (4 percent) was evident and accordingly a NEL redetermination was denied on October 16, 2001.
The available information in the record indicates the worker had other right shoulder injuries at work wherein he received lost time benefits. In claim xxxx4162, he received benefits from October 21-31, 1996; in claim xxxx0369 he received benefits from August 26, 1997 to September 15, 1997; in claim xxxx4223, he re-injured his right shoulder and received payment for October 8-31, 1997 and finally in claim xxxx6934 compensation was accepted for lost time from February 28, 2001 to March 5, 2001. He returned to work working six hour shifts in March 2001 until July 2001 as noted above.
The issue of payment for sporadic periods of lost time was raised again in 2005. Due to considerable difficulty by the operating area in sorting out the available and missing information to address the issue, a field investigation was conducted in March 2006. The results of the investigation are on file and include the periods being claimed. The employer was contacted by the investigator and provided all available dates on record of lost time incurred by the worker that reflected a work related injury. As the worker did not retain any of his own records for the lost time he accepted that the periods provided by the employer were correct.
In a file review in memorandum 59, dated December 21, 2006 the investigation report and all available medical information were considered by the adjudicator. It was concluded that the periods of lost time prior to 2000 could not be confirmed and thus payment of benefits could not be processed. It was also confirmed that the medical evidence did not appear to show deterioration from the NEL level for the right shoulder and therefore benefits were denied.
Even though the period the worker worked partial hours (October 24, 2000 to July 25, 2001) was confirmed by the employer's records, the adjudicator did not accept the medical evidence supported he could not have worked an eight hour shift on accommodated duty.
Finally, it was also concluded by the adjudicator that the worker's departure after July 25, 2001 was related to personal reasons. These decisions were communicated to the worker in a letter dated January 3, 2007.
The worker has since objected to the adverse decisions noted above and the matter was referred to the Appeals Branch for independent review and consideration.
Authority
Operational Policy Manual documents:
11-02-02 Lost Time Claims (previously 02-03-03)
15-03-01 Recurrences (previously 15-02-03)
15-05-03 Determining the Degree of Permanent Impairment (NEL)
18-06-03 Definitions for Adjudicating Pre-1998 Claims (Temporary Disability Benefits)
19-02-02 The Goal of Early and Safe Return to Work (ESRTW) and the Roles of the Parties
Resolution Method & Process
The worker elected to proceed with a decision based on the information available and also made written submissions. The employer is a participant. All written submissions were exchanged between the workplace parties with opportunity given for rebuttals.
Assessment of the Evidence
Temporary Disability Benefits
In 1998 and 2000 the worker lost sporadic time from work, recorded above, due to his compensable condition. The lost time was recorded by the employer and the adjudicator was notified in a timely fashion as supported by the employer's early letters filed in the correspondence section. The worker was paid by advances for his lost time which is this employer's common practice.
It should be noted that the worker was working modified duty since it was determined by the Board that he had permanent restrictions with respect of his right shoulder. These restrictions entailed no heavy lifting, no repetitive use of the right arm against resistance and no above shoulder work. The worker also confirmed that he was "always on modified work' and indicated that he was basically told to do only what he felt he could physically tolerate.
To be entitled to wage loss benefits the clinical evidence on file must show that the inability to work is due to the work-related injury/disease. If a worker does not have clinical authorization to be off work, wage loss benefits or loss of earnings benefits cannot be paid. The information on file indicates that due the death of his original family physician sometime after December 1998, the worker had to find a new physician which he did as of June 1999.
The adjudicator denied payment of wage loss benefits for the earlier periods because there was an absence of supporting medical evidence available. For other periods, benefits were denied as the medical evidence received did not support the worker was completely unfit for his modified duty.
Relevant to the periods claimed, it has been confirmed by the employer's letters that the worker did see his family doctor on May 4, 1998 and October 27, 1998. There was no precipitating cause mentioned pertaining to the May 4, 1998 absence however, the worker reported turning a table over and exacerbating his right shoulder prior to the October 27, 1998 absence. The employer did not forward to the adjudicator any copies of medical notes it may have received from the worker. There is also no medical documentation on file for the November 1998 absence.
In reviewing the worker's medical portion of the claim file, I note a gap in medical documentation between July 1994 and December 1998. The worker was being treated by his original family doctor at that time whose last medical report on file is dated December 3, 1998. It is stressed that there are no medical reports or notes pertaining the above three periods on which to determine the worker's entitlement to benefits. Since there is a report from the original treating physician dated December 3, 1998, I am at a loss to explain why there is nothing reported by the physician for the earlier periods above. I have no option but to deny entitlement to wage loss benefits for the periods May 4-7, 1998, October 27-30, 1998 and November 2-6, 1998 due to a complete lack of any supporting medical documentation.
The medical report pertaining to the worker's visit on December 3, 1998 gives the findings of restricted and painful right shoulder with the diagnosis of right shoulder strain/rotator cuff tendonitis. No actual range of motion measures given and no precipitating incident were recorded. Overall there were minimal details of the worker's condition provided on the form. However, physiotherapy and medication were prescribed and the worker was medically authorized off work. Although no range of motion measures were provided, I note the worker's condition required a referral for active treatment and that he was authorized off work. As such, I am willing to accept he had temporarily worsened from the level recognized by his NEL level. The worker is therefore entitled to temporary wage loss benefits from December 3-7, 1998.
The worker also went off work June 15-19, 2000 and the employer's letter indicated the worker reported increased symptoms due to cleaning windows, a task which requires overhead work and likely exceeded his restrictions. The clinical chart notes on file for a visit of June 19, 2000 indicate the worker was seen for neck and shoulder pain. The findings included reduced range of motion of the shoulder with abduction to about 90 degrees only. The doctor's impression was that of frozen shoulder. Neck and right shoulder x-rays were done on June 19, 2000 with the cervical spine x-ray demonstrating early degenerative changes and the shoulder x-ray reported as normal. Given the objective findings of significantly reduced abduction and the diagnosis of frozen shoulder I am satisfied the worker likely temporarily exacerbated his condition while washing windows and was completely unfit for modified duty from June 15-19, 2000. He is therefore entitled to wage loss benefits from June 15-19, 2000.
The worker was seen also on September 14, 2000 due to right shoulder symptoms. He was again unable to abduct his shoulder beyond 90 degrees which represents 50 percent of normal function of this motion. This would constitute in my view a temporary deterioration from his NEL level (abduction 140 degrees in 1994). He was authorized off work for one week. Although the worker was medically seen after returning to work I accept his condition was likely the same or worse during his absence September 7-12, 2000. He is therefore entitled to full wage loss benefits for this period.
Partial Wage Loss October 26, 2000-July 25, 2001
There is no dispute the worker was performing modified duties prior to and during the above period at the xxxx Junior Public School, where he had worked since approximately 1998. This is not disputed by the worker or the employer.
In the investigation report, the worker explained that his duties consisted of cleaning/sweeping and wet mopping floors at his own pace and lifting was restricted to light lifting only. The head caretaker was interviewed and indicated the worker was not required to wet mop or remove snow and was to work at his own pace. As far as he could recall the worker worked a reduced shift due to his shoulder. He was not aware of any other health problems the worker had. The head caretaker did not comment on why the worker remained off work after July 2001.
The employer indicated it was under the impression the worker's decrease in hours starting October 26, 2000 was for personal reasons as this is what was recorded in its system. This may explain why the Board was never notified about the worker's reduced hours until sometime in January 2001 when the worker's representative submitted a copy of the Caretaker's Modified Work Assessment (CMWA) dated October 25, 2000. This form, completed by the worker's family doctor, outlined all the duties the worker was capable of performing at his job and also recommended a six hour shift "indefinitely" starting October 30, 2000. The October 25, 20000 CMWA however is not a medical report and therefore did not provide medical findings useful in the determination of whether or not the worker medically required reduced hours.
In reviewing the clinical chart notes of the same period, I note the worker's visit of October 25, 2000 shows he was having shoulder pain with abduction at about 90 degrees with pain, findings which had been consistent since June 2000. The worker was not interested in going for physiotherapy treatment. Next he was seen on December 19, 2000 and it is recorded his shoulder was improving with modified duty. There is no mention by the family doctor of the need for reduced hours on modified duty because of his shoulder injury. Over the next monthly medical visits, and up until July 2001, the worker is encouraged by the physician to continue with his regular modified duty.
There is a functional abilities form (FAF) in the correspondence section dated April 5, 2001 pertaining to the worker's right shoulder. The FAF limits the worker's physical exertion to "as tolerated" and lists functional restrictions on lifting, bending, twisting and repetitive use of the shoulder. Of particular importance is that the FAF does not indicate the worker requires a reduced shift.
After carefully considering the information pertaining to partial benefits, I am not persuaded the worker required a reduction in the hours from 8 to 6, in order to make the job he performed more suitable. Prior to October 2000, the worker was able to work modified duty on a full shift and there is no indication his work duties changed in October 2000. The tasks he was required to perform did not involve heavy lifting or overhead duties and he could work at his own pace. Moreover he was free to take all the necessary breaks he required throughout the day.
Given that the duties the worker performed were physically suitable for his right shoulder injury, there is no medical reason he could not work a full 8 hour shift. Although the family physician recommended reduced hours on October 25, 2000, there was no explanation provided as to why this was medically necessary. As noted earlier, the FAF dated April 5, 2001 did not indicate a need for reduced hours.
In summary, there is insufficient evidence to support the worker could not work a full shift on modified duty and therefore conclude he is not entitled to partial wage loss benefits from October 26, 2000 to July 25, 2001.
Full Wage Loss July 25, 2001 to Retirement (March 31, 2002)
The worker requests entitlement to full benefits from July 25, 2001 on the basis that he was told no further modified duty was available. The worker alleges that after asking for light duty his head caretaker indicated there would be none and that he would be expected to work at two schools instead of one. The worker believed he would not be able to manage this, that the work would exceed his restrictions and expressed this to his employer. He alleges he was told not to report for work if he could not work out of two schools and so the worker did not return to work after July 25, 2001.
After carefully reviewing all of the information available I am not convinced that after July 25, 2001 the employer no longer could accommodate the worker.
The worker was already on permanent modified duty and therefore it is curious why he would have to ask for light duty. I am not persuaded that after making modified duty available to the worker for many years the employer should indicate that no further modified work was available. The worker confirmed he obtained nothing in writing from the employer to support this contention. The worker stated he contacted his adjudicator after being told modified work was being eliminated for him however I do not see any evidence of this on the file.
In fact, the worker does not contact the Board to report that his lay off subsequent to July 25, 2001 is due to the elimination of modified duty until many years later. I note a letter to the Board dated January 16, 2004 from the worker's representative which requests reimbursement for partial hours to July 25, 2001. Of interest, is that in this letter, the representative indicates the worker went on disability (non compensable) in July 2001. What is interesting is that there was no request made for benefits beyond July 25, 2001.
In the worker's hand written letter, sent by his representative on June 13, 2005, the worker states that he was supposed to continue working modified duty until his retirement, but could not continue because of his shoulder problems and stress causing an enlarged heart and was unable to work and under the doctor's care. Oddly, the worker never mentioned the employer was unable to continue to accommodate him.
When questioned by the investigator in April 2006, the area supervisor Mr. Doyle had no recollection of why the worker stopped working in July 25, 2001. He subsequently provided a written statement to say he had no recollection of asking the worker to work two schools before his layoff. Mr. MacLellan, the head caretaker was also questioned by the investigator however there was no inquiry made of him with regards to why the worker went off work in July 2001. By the same token, Mr. MacLellan did not volunteer any information about why the worker went off work. I attempted to contact Mr. MacLellan personally on two occasions and left messages requesting a call to discuss the situation however I did not receive a reply.
On March 23, 2010 the worker's daughter and a friend personally visited Mr. MacLellan to try and obtain a statement confirming the circumstances surrounding the worker's layoff and this letter has been submitted to file. This information constitutes third party information and I am unable to place any weight on the document. Specifically, the letter does not contain a written and signed statement from Mr. MacLellan personally confirming the elimination of modified duty or that the worker was required to work two schools.
Information from the employer, and confirmed by the worker, indicates the worker was off on vacation from July 30, 2001 to August 27, 2001 and never returned to work. The worker then applied for long term disability benefits but was declined. If the reason the worker stopped working in July 2001 was due to the fact modified duty was no longer available as he contends, it is curious why he would feel the need to take vacation time and apply for disability benefits instead of contacting the Board. I note the worker could have involved his representative who had been assisting him March 2001 in other file matters, to also assist him in his modified work situation.
According to the clinical chart notes for a medical visit of June 27, 2001, one month before leaving work, the worker informed his doctor he was leaving the province for good on August 14, 2001 (he actually left on August 25, 2001). I submit a major move of this nature would require significant planning and so it would seem more likely than not that it had been planned weeks or even months earlier. Clearly then, the worker had pre-arranged plans to leave the province long before his lay off and this strongly suggests he had no intention of continuing with modified duty after July 25, 2001for personal reasons. By leaving the province, the worker effectively removed himself from his employment thereby preventing the employer and the Board in assisting him to maintain suitable employment at no wage loss. After the worker's scheduled vacation ended in August 25, 2001, the employer would have no reason to contact the worker and offer modified work since he left the province and would not have been available to accept it. The worker also confirmed he did not contact his employer after July 15, 2001 either.
The FAF on file dated August 14, 2001 supports the worker would have been able to continue with modified duty as far as his compensable and non compensable health problems were concerned. The worker's wage loss subsequent to July 25, 2001 therefore cannot be solely attributable to his compensable injury.
In summary, I conclude that on the balance of probabilities the evidence supports the worker voluntarily left his employment due non compensable reasons and not because suitable work was no longer available. The medical and non medical information supports he remained fit for suitable and available duties. As such, he is not entitled to full wage loss benefits after July 25, 2001 up to retirement of March 31, 2002.
NEL Redetermination
I have reviewed the medical information on record, in particular the clinical chart notes which demonstrate deterioration in the worker's right shoulder abduction measures. Given the number of recurrences since his original injury and that he was last assessed for a NEL benefit in 1994, I believe it would be worthwhile to arrange for a current evaluation of permanent shoulder impairment.
The operating area is directed to make the necessary out of province arrangements for a NEL redetermination of the worker's permanent right shoulder tendonitis injury. The decision with respect to maximum medical recovery is left to the operating area.
Conclusion
On the basis of the rationale provided in the body of this decision I find the worker has entitlement to the following:
Total temporary disability benefits from December 3-7, 1998 (24 hours lost); June 15-19, 2000 (24 hours lost) and September 7-12, 2000 (24 hours lost).
A right shoulder NEL redetermination
The worker is not entitled to:
benefits for May 4-7, 1998; October 27-30, 1998 and November 2-6, 1998 due to a complete absence of medical information.
partial wage loss benefits from October 26, 2000 to July 25, 2001.
full wage loss benefits from July 25, 2001 to March 31, 2002
The objection is allowed in part.
DATED May 13, 2010
D. DeRose Appeals Resolution Officer Appeals Branch