The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on March 6, 2000, at the request of the claimant. The Panel discussed this appeal on March 6, 2000 and April 19, 2000.

Issue

Whether or not the claimant is entitled to further wage loss benefits beyond October 1, 1999.

Decision

That the claimant is not entitled to further wage loss benefits beyond October 1, 1999.

Background

While performing his employment as an automotive technician on December 13, 1996, the claimant was helping a coworker lift a three-speed transmission when the coworker let go. The claimant tried to save the transmission from hitting the ground and injured his right wrist and shoulder in the process. The claim was accepted as Workers Compensation Board (WCB) responsibility and benefits commenced on December 16, 1996.

On October 6, 1997, a hand specialist noted that the claimant continued to suffer from ulnar sided wrist pain and an arthrogram was ordered. The arthrogram later revealed that the claimant sustained a tear of the triangular fibrocartilage in the right wrist as a result of the accident. On October 30, 1997, the claimant underwent surgery to repair the tear of the triangular fibrocartilage of the right wrist.

In a follow-up report dated December 4, 1997, the hand specialist reported that the claimant's right wrist was improving but he still had not regained full range of motion and strength sufficient enough for him to return to his job as a mechanic. The claimant was advised to continue with physiotherapy treatments.

On March 27, 1998, the hand specialist indicated that the right wrist had dorsiflexion of 60 degrees and palmar flexion of 70 degrees. His grip strength remained weaker on the right. On May 4, 1998, the claimant's grip strength on the right was 45 kgs. and 50 kgs. on the left and his pain was diminishing. The hand specialist indicated that the claimant insisted he needed retraining, and the physician indicated that he would leave that decision to the WCB.

Following a Functional Capacity Evaluation (FCE) on June 19, 1998, the WCB imposed restrictions for 3 - 6 months of no lifting weights greater than 50 pounds, and avoidance of frequent pronation/supination/dorsiflexion of the right wrist.

In January 1999, the case was referred to the WCB's vocational rehabilitation branch for an assessment of the claimant as it was determined he was fit for suitable work with restrictions as noted above. It was noted that the accident employer was unable to accommodate the claimant with light duties. On March 23, 1999, a vocational rehabilitation plan was outlined for the claimant.

On February 5, 1999, the pre-accident employer contacted the WCB indicating that the claimant was seen riding a bike with a dog on a leash and that he had applied for another mechanics position with another car dealership.

On May 26, 1999, the claimant was assessed at the WCB regarding a permanent partial impairment (PPI) award. He was awarded a 3.2% PPI rating for loss in range of motion of his right wrist and forearm.

In a progress report dated August 4, 1999, the attending physician reported that the claimant's range of motion was normal but there was a loss of grip strength in his right hand and that strength was only 80%.

File documentation revealed that a video surveillance of the claimant's activities was undertaken on August 4, 5, and 6, 1999. In a letter by primary adjudication dated September 24, 1999, the claimant was advised that the WCB would no longer be accepting responsibility for any time loss from work after October 1, 1999. This decision was reached based on the following commentary:

"...On August 4 and 5, 1999, you were identified on the tennis court. The surveillance footage showed that you were able to grip the racket for prolonged periods of time. It also demonstrated full range of motion with the right wrist. In reviewing the surveillance tapes, there was found to be no evidence of a reduced effect of grip or range of motion with your right wrist. Based on the observations in the surveillance video, it was the opinion of the medical advisor at the Workers Compensation Board of Manitoba, that restrictions were no longer required on your right wrist from any work activities."

On October 29, 1999, Review Office considered the case based on an appeal from the claimant dated October 15, 1999. The claimant argued that he always informed his doctor and physiotherapist of all his activities and that he followed their instructions to the letter. He stated that his doctor instructed him to appeal as his injury was permanent and that the injury kept him from returning to work as a mechanic.

In its decision of October 29, 1999, Review Office found that the claimant was not entitled to further wage loss benefits beyond October 1, 1999. Review Office took into consideration reports on file from the claimant's physiotherapist dated October 13, 1999, the hand specialist dated October 22, 1999, and the comments made by a WCB medical advisor who reviewed the video tapes, of the claimant's tennis activities. After reviewing the surveillance tapes, Review Office was of the opinion that the claimant had shown no evidence of any functional impairment of the right wrist. Review Office supported the decision of September 24, 1999 that the claimant was not entitled to benefits.

On December 21, 1999, the claimant appealed Review Office's decision and an oral hearing was held on March 6, 2000. The hearing was adjourned as the claimant did not have a copy of the surveillance videotapes conducted on August 4, 5 and 6, 1999. The claimant was later provided with a copy of the surveillance videotape and the hearing was reconvened on April 19, 2000.

Reasons

The issue in this appeal is whether or not the claimant is entitled to further wage loss benefits beyond October 1, 1999. The relevant subsection of The Workers Compensation Act (the Act) is subsection 39(2) which provides for the duration of wage loss benefits.

Subsection 39(2) states:
Duration of wage loss benefits
39(2) Subject to subsection (3), wage loss benefits are payable until

1. the loss of earning capacity ends, as determined by the board; or
2. the worker attains the age of 65 years.

In this appeal we reviewed all the evidence on file including the video surveillance tapes and that given during the hearing process. We find that the evidence supports a finding, on a balance of probabilities, that the claimant is not entitled to further wage loss benefits beyond October 1, 1999. In arriving at this conclusion we noted the following evidence.

On December 13, 1996 the claimant injured his right wrist while helping to lift a transmission assembly. Ultimately the claimant was diagnosed as having sustained a tear of the triangular fibrocartilage of his right wrist. Surgery for debridement of the tear was performed on October 30, 1997. Following an examination at WCB on May 26, 1999 the claimant was awarded a permanent partial impairment award of 3.2%. The claimant continued to receive benefits until October 1, 1999.

We find that the video surveillance of the claimant playing tennis reveals that the claimant has reasonable function of the wrist. This function is evident without the necessity of wearing the brace which both his therapist and his attending physician have indicated the claimant has been wearing, or needs to wear, for playing tennis. We further note that while the claimant has a permanent partial impairment of the right wrist, this impairment does not result in significant restrictions that would preclude the claimant from gainful employment consistent with his pre-accident earnings.

We note the evidence on file reveals that the claimant has consistently maintained he is unable to perform his pre-accident duties as a heavy duty mechanic and has been focused on retraining. The claimant has also asserted that both the attending physician and the consultant orthopaedic specialist have indicated this to him. While we note that the claimant's attending physician has given his opinion that the claimant cannot perform the duties of a heavy duty mechanic we note, however, in a report dated May 4, 1998 the attending orthopaedic specialist indicated:

" Mr. [the claimant] was seen again on the 30th of April, 1998. His grip strength on the right was 45kgs and on the left 50kgs. His pain is diminishing. He insists that he will need retraining and I will leave this decision up to the Workers Compensation Board to make. Please has (sic) your physicians assess him in the near future with regard to return to work or retraining."

We also note in a further report dated October 22, 1999 the attending specialist indicates:

" This patient was reassessed on October 21, 1999. He apparently started retraining, but was also able to play tennis at the same time and has been returned to his original job.

Examination revealed a range of motion of his right wrist, which was identical to previous measurements. The grip strength on the right was 50kg., and on the left 54kg. I have nothing further to offer this gentleman and have referred him back to the board."

We also note the findings of the WCB medical advisor who indicated in a memorandum to file dated September 9, 1999:

" Based on my observations of surveillance videos, this C. [claimant] has no restrictions relative to his right wrist."

The claimant was referred to Vocational Rehabilitation in March 1999 with temporary restrictions which were to be reviewed in three to six months. We note in a report dated March 23, 1999 that the claimant was identified to have many transferable skills such as being very familiar with computers and being able to keyboard up to six hours at a stretch without difficulty. His work history also reveals that he has worked at a variety of jobs within the mechanical fields as well as being a shop foreman. We further note in a report dated August 3, 1999 that the following was recorded:

" Mr.[the claimant] indicated that, although he always started off working "on the bench", as an automotive technician, he would eventually end up as foreman. He stated that he preferred working as an automotive technician, because he could earn more money than working as a shop foreman. We discussed working as an automotive technician, with specialization in a specific area (i.e.) diagnostics where the work would be less physically demanding, while still potentially recouping his pre-accident earnings." (emphasis added)

At the hearing the claimant confirmed his ability to work as a shop foreman, in customer service, or as a service writer as well as his ability to work in areas of specialization within the field of mechanics for example automotive diagnostics and electronics. The claimant indicated that he knew such jobs were available but also that he had not applied.

We note from the file evidence that the claimant's benefits were based on pre-accident earnings of $39,520.00 annually. We accept the evidence of the employer at the hearing who indicated that due to the claimant's extensive experience he would be fully qualified to be employed within the field of specialization, in customer service, or as a service writer in which position, due to his experience he would be paid at the higher end of the rate reported to be approximately $42.000.00 per annum. We further accept the employer's evidence that jobs are available in the industry in these positions.

In summary, based on the weight of the evidence, on a balance of probabilities, we find that the claimant does not have a loss of earning capacity that would extend beyond October 1, 1999. The claimant's appeal is therefore denied.

Panel Members

D.A. Vivian, Presiding Officer
A. Finkel, Commissioner
R. Frisken, Commissioner

Recording Secretary, B. Miller

D.A. Vivian - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 10th day of May, 2000