The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

A non-oral file review was held on June 11, 2002, at the request of a worker advisor, acting on behalf of the claimant.

Issue

Whether or not the worker is entitled to wage loss benefits beyond November 7, 1997.

Decision

That the worker is not entitled to wage loss benefits beyond November 7, 1997.

Decision: Unanimous

Background

In September 1997, the claimant filed a claim for compensation benefits in connection with a right index finger injury that occurred during the course of her employment as a homecare attendant on August 11, 1997. The claimant later reported that she injured her right shoulder injury in the same accident. In October 1999, Review Office determined that responsibility would be accepted for the claimant's right index finger injury but that no responsibility could be assumed for her right shoulder problems, as these had not been shown to have arisen out of the August 11, 1997 accident.

File information revealed that the claimant was diagnosed with a radial collateral ligament tear of her right middle finger on August 27, 1997. The claimant remained off work for eight days and then returned to her full duties on September 9, 1997. During this period the claimant continued to experience difficulties with her finger and laid off work on September 18, 1997.

Following Review Office's decision, primary adjudication determined that the claimant was entitled to wage loss benefits between August 28, 1997 to September 9, 1997. Primary adjudication found the weight of evidence supported the conclusion that the claimant was capable of performing her regular duties after September 9, 1997.

On October 26, 1999, a worker advisor asked that the Workers Compensation Board (WCB) grant retroactive benefits to the claimant and provide her with vocational rehabilitation assistance. The worker advisor contended that the claimant was unable to work as a homecare attendant due to her compensable right finger injury. The worker advisor also requested that the claimant be considered for a partial permanent impairment (PPI) award.

On November 12, 1999, a WCB medical advisor assessed the claimant with respect to her right finger injury. Based on this examination, primary adjudication advised the claimant on February 28, 2000, of the following:

• That she was not entitled to wage loss benefits beyond September 8, 1997 as the examining medical advisor concluded that there was no evidence of total disability based on the physical findings and no need for work restrictions.
  
  
• That the claimant was not entitled to vocational rehabilitation assistance as the examining medical advisor found that the claimant had normal range of motion and no laxity or instability.
  
  
• That the claimant was not entitled to a PPI award as there were no objective medical findings to warrant a PPI.
  
  
• That the surgery proposed by the claimant's treating physician (i.e. a fusion of the PIP joint to render it stable and painless) would not be approved by the WCB.

On June 26, 2000, the worker advisor submitted additional information prepared by the claimant's treating physician concerning the claimant's functional status and his recommendation for surgery. On July 11, 2000, primary adjudication determined that the new information did not disclose any new evidence or information that would cause the WCB to change its position. The case was then forwarded to Review Office for consideration.

On September 29, 2000, Review Office determined the following:

• That the claimant was entitled to wage loss benefits from September 17, 1997 to November 7, 1997 inclusive and final. Review Office was unable to accept the contention that the claimant's right middle finger injury continued to disable her. Review Office noted that the claimant's own physician reported on October 6, 1997 that the slight deviation of her right third finger at the PIP joint was resolving, with minimal pain and no instability. Subsequent medical examinations revealed little else in the way of findings, only increased pain. Review Office indicated that as the claimant continued to attend physiotherapy treatments for her injured finger and her shoulder until November 7, 1997, that payment of wage loss benefits could be extended until that date.
  
  
• the claimant was not entitled to a PPI award as the request was without merit. Review Office noted the lack of objective medical findings at the time of her November 12, 1999 examination at the WCB.
  
  
• the request for surgical authorization was denied by Review Office based upon the lack of instability of the PIP joint revealed at the WCB examination. Review Office also noted that the claimant's attending surgeon repeatedly found that surgery was not advisable and only relented and agreed to proceed with it based upon the claimant's complaints of pain.

On November 22, 2000, the worker advisor contended that a difference of medical opinion existed between the WCB's doctors and the claimant's treating practitioners and as such a Medical Review Panel (MRP) should be convened pursuant to section 67(4) of the Act. On May 25, 2001, the WCB granted the request for an MRP, which was held on September 17, 2001.

In a letter dated October 29, 2001, the claimant was informed of the MRP's findings and opinion, which concluded that the proposed surgery was not an appropriate form of treatment. The WCB confirmed that no responsibility would be accepted for the surgery.

On November 2, 2001, the worker advisor asked Review Office to reconsider its position given the MRP's findings. The worker advisor noted that the MRP was of the opinion that the claimant had recovered from the effects of her injury with the exception of the disuse-related stiffness. The MRP also agreed that the claimant was unable to perform her regular duties as a home care attendant and that she would require a work hardening program. The MRP agreed that after the work hardening program the claimant would be able to return to her regular duties in a graduated return to work program and that she also required pain management. The worker advisor felt that the claimant was entitled to compensation coverage retroactively and that the claimant be provided with a work hardening program and arrange treatment for pain management.

In a decision dated November 23, 2001, Review Office determined that the claimant was not entitled to wage loss benefits beyond November 7, 1997. Review Office disagreed with the contention the claimant was entitled to retroactive wage loss benefits to November 7, 1997 on the basis that the residual stiffness in the hand was the result of her failing to return to work when the WCB determined that she was capable to do so as well as her reluctance to use her hand in a normal fashion. Review Office believed that any ongoing loss of earning capacity resulted solely from the claimant's failure to mitigate the consequences of her accident. She was therefore not entitled to additional wage loss benefits. Concerning the MRP's comments regarding the claimant's pain behavior, Review Office noted that the claimant had continued to take Tylenol 3's for a period of nine years, a period which significantly predated the date of the claimant's accident at work.

In March 2002, the worker advisor appealed Review Office's decision and a non-oral review was then arranged.

Reasons

A WCB medical advisor examined the claimant on November 12th, 1999 and recorded the following in her examination notes:

"There are minimal objective findings on today's examination. The claimant has no thickening of the PIP joint. She does have 10 degrees of ulnar deviation at the right third finger PIP joint although this is equal to that of the left third finger. I did not find any laxity or instability of the PIP joint. The claimant has full range of motion of the joint although describes pain. Her strength testing appeared to be limited by pain complaints.

I feel the claimant's pain complaints and described level of disability are out of proportion to the injury sustained, length of time since the workplace incident and present findings. I do not feel the claimant is totally disabled from work activities and based on the physical findings, I see no need for restrictions at the present time."

A Medical Review Panel was convened on September 17th, 2001 at the request of the WCB's short-term claims department under section 67(4) of the Workers Compensation Act. We note that the Medical Review Panelists' findings and conclusions were similar to those reached by the WCB medical advisor on November 12th, 1999. In particular, the MRP determined: "In conclusion, there was no discrete abnormality of any static structure or dynamic structure in the right hand compared to the left hand."

The weight of evidence has led us to conclude that the claimant was capable of returning to work without restrictions. We find there was no loss of earning capacity on the part of the claimant subsequent to November 7th, 1997. Therefore, the claimant is not entitled to wage loss benefits beyond this date. Accordingly, the claimant's appeal is hereby dismissed.

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 4th day of July, 2002