The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on February 8, 2001, at the request of a worker advisor, acting on behalf of the claimant. The Panel discussed this appeal on February 8, 2001.

Issue

Whether or not the claimant is entitled to wage loss beyond March 2, 2000; and

Whether or not the claimant is entitled to transportation expenses.

Decision

That the claimant is entitled to wage loss beyond March 2, 2000; and

That the claimant is not entitled to transportation expenses.

Background

On April 1, 1998, the claimant submitted a claim for compensation benefits indicating that she began to experience pain in her 3rd and 4th fingers while using a vibrating wizard knife when cutting frozen pork bellies. The claimant's condition was diagnosed as "right long and ring trigger fingers" and on August 19, 1998, the claimant underwent tendon release surgery. In September 1998, the claimant returned to light duties but continued to experience ongoing difficulties with her right arm. In June 1999, the claimant was diagnosed with complex regional pain syndrome [Reflex Sympathetic Dystrophy (RSD)].

In late August 1999, the claimant's family moved to Lac du Bonnet from Winnipeg as the claimant's husband had secured new employment.

On September 21, 1999, a Workers Compensation Board (WCB) psychological advisor interviewed the claimant. The claimant presented with ongoing pain as her primary barrier to recovery. The pain was considered to be very distressing and disabling. The psychological advisor felt that the claimant managed to maintain a high level of activity in spite of her pain and had returned to work at modified duties. The claimant did not present with symptoms characteristic of a major depression or other mood disorder.

During a case conference held at the WCB on October 15, 1999, it was determined that the claimant did not meet the diagnostic criteria for Chronic Pain Syndrome.

In a hand written memo dated December 3, 1999, a WCB case manager documented that the claimant's current job with the employer was ending on December 17, 1999 and that the claimant was offered a new position which was 'out of scope'. The job entailed mainly keyboarding and writing. In a telephone case conference on December 10, 1999, the employer advised the case manager that due to the claimant's emotional status, the claimant needed time off work and that they were not prepared to offer her the light duties again until the first week of the New Year.

In a progress report of January 12, 2000, the attending physician stated that the claimant was very emotional as she was unable to exhibit any grip strength with her right hand. The claimant was considered to be very close to clinical breakdown.

On January 14, 2000, an independent psychiatrist interviewed the claimant. In a report dated January 18, 2000, the psychiatrist was of the opinion that the claimant had a diagnosis of an acute situational reaction, chronic pain disorder and depression. The claimant felt that she could not cope with her light duty job because it worsened her pain condition. The psychiatrist concluded his report by stating that the claimant's barrier to returning to the light duty job was not psychiatric but rather physical/pain related.

On January 24, 2000, a WCB medical advisor spoke with the claimant's treating physician at the Pain Clinic. The pain specialist indicated that the claimant's right hand was swollen, cool and mottled at the last visit and that he was planning a series of stellate ganglion blocks. He recommended that the claimant not perform any keyboarding or repetitive activities. The medical advisor also discussed the case with a WCB case manager and it was determined that the claimant was able to perform light duties which did not involve any repetitive movements of the right hand.

In a memo dated February 2, 2000, a WCB physiotherapy consultant documented that the claimant's current treatment plan was stellate ganglion blocks and that while receiving this treatment the claimant was not to perform keyboarding or repetitive activities and limit use of her right hand. A course of physiotherapy was not considered appropriate.

On February 8, 2000, Rehabilitation and Compensation Services wrote to the claimant. The claimant was advised that she was not considered to be totally disabled and that she should attempt a return to work at modified duties provided by the accident employer following the completion of the stellate ganglion blocks which was ending in mid February 2000. The claimant was further advised that the WCB only pays travel expenses that would be over and above what would normally be incurred based on the place of residence at the time of the compensable injury. As the claimant had been injured while living in the City of Winnipeg and had subsequently moved to Lac du Bonnet for reasons other than the compensable injury, she was advised that the WCB was unable to reimburse her travel expenses from her current place of residence.

In a report dated February 22, 2000, the attending physician outlined six workplace restrictions for the claimant and also stated, "I would recommend continued complete disability status, until we can see a definite improvement in clinical status."

On February 24, 2000, the employer submitted a job description for the claimant. The job entailed operating a hind foot saw using a job stick with the left hand. On March 7, 2000, the WCB case manager advised the claimant that wage loss benefits would be ending effective March 2, 2000, as appropriate modified duties had been made available in the workplace which did not require use of the right hand.

In a submission dated March 27, 2000, a worker advisor raised a number of issues with Review Office about the case. The worker advisor was of the opinion that the weight of evidence supported the contention that the claimant's current clinical condition had resulted from her compensable accident and prevented her from participating in alternate duties. New medical information was submitted dated March 11, 2000.

On May 4, 2000, the claimant was assessed at the WCB by a physical medicine and rehabilitation consultant. In part, the consultant commented as follows: "The current examination although restricted due to pain limiting behavior present, suggested ongoing chronic regional pain involvement."

During a telephone case conference held on May 5, 2000, it was determined that wage loss benefits would be reinstated retroactively to March 2, 2000, and would continue for a 12 week period, after which the claimant's fitness for modified duties would be reviewed again.

On May 8, 2000, the claimant's activities were video taped by a private investigation firm and were reviewed by WCB staff involved in the case. It was the consensus of all parties that the claimant had misrepresented herself when she was assessed at the WCB on May 4, 2000 and that she was capable of at least sedentary duties. On June 8, 2000, the WCB informed the claimant that based upon the evidence found on the surveillance video, wage loss benefits would be suspended effective May 11, 2000.

On July 28, 2000, the worker advisor forwarded an appeal submission to Review Office. She appealed the adjudicative decisions of May 16, 2000, a written decision sent by fax, and a June 8, 2000 decision. An advocate acting on the employer's behalf also appealed two issues on the case, mainly whether or not wage loss benefits should have been reinstated effective March 2, 2000, and whether or not there was basis to extend wage loss benefits beyond May 8, 2000.

In a decision dated October 20, 2000, Review Office acknowledged that it was clear from the medical evidence that the claimant was continuing to suffer from problems related to the compensable injury to her right hand. According to Review Office, the issue at hand was to determine the claimant's ability to perform the light duty work which was made available through her employer. Review Office believed that the videotape evidence best represented the claimant's actual functional abilities with respect to her right hand. Review Office concluded that the claimant was consciously attempting to dramatize her disability while attending at the WCB offices. Review Office concluded that the claimant's witnessed activities over a course of almost five hours established her capability of performing the modified duties, which had been offered to her.

Review Office referenced the claimant's inability to handle the 1 hour commute each way to work. Review Office believed that this barrier was created by the worker when she moved to the country, away from her employment and that entitlement to wage loss benefits could not be supported based upon this argument.

On October 30, 2000, the worker advisor appealed Review Office's decision and an oral hearing was arranged.

Reasons

As the background notes indicate, the claimant was put under videotape surveillance by the WCB. In due course, three WCB medical advisors eventually viewed this evidence. Their observations and conclusions with respect to the claimant's condition are contained in a memorandum to file dated May 25th, 2000. We attached considerable weight to the following joint comments by these three consultants:

"It is obvious that the claimant's functional capabilities are far greater than what the claimant stated and demonstrated at the time of the call-in examination on May 4, 2000 as well as what she reported in a Revised Oswestry Questionnaire completed that same day. The claimant had indicated to us that she had difficulty feeding herself, dressing herself or brushing her hair. On exam she demonstrated guarding of her right upper extremity with the inability to actively move (sic) the wrist, elbow or shoulder to any degree without significant pain. On the video the claimant used her right upper extremity freely and vigourously (sic) without any guarding, apprehension or distress. She was noted to move her right wrist, elbow and shoulder smoothly and fluidly all without any hesitation.

At the present time we feel the claimant is at least capable of light office work full days. This opinion is based on the activities she has demonstrated she is able to perform as well as the duration of time she spent carrying out these activities.

Treatment in our opinion should continue as recommended."

We find based on the weight of evidence that the claimant has not, on a balance of probabilities, fully recovered to her pre-accident status. In addition, we further find that there has been no active attempt on the part of the claimant to misrepresent her condition. However, it is apparent that the claimant is not experiencing a total loss of earning capacity, but rather, according to the evidence she is functionally capable of performing some form of light duties.

We cannot over emphasize our genuine concern with the nature and the quantity of prescribed medication being consumed by the claimant, which, in our view, could possibly be retarding her recovery. We suggest that this situation be closely monitored, if at all possible.

With respect to the second issue, the claimant is not entitled to transportation expenses. We find that it was a family decision to relocate to a more rural community and thus it should not be the WCB's responsibility to subsidize the claimant's additional costs in commuting to and from Winnipeg.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

R. W. MacNeil - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 22nd day of March, 2001