Decision #84/02 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on June 18, 2002, at the request of the claimant. The Panel discussed this appeal on June 18, 2002.

Issue

Whether or not the worker is fit to perform his pre-accident duties as of June 29, 2001; and

Whether or not the worker is overpaid temporary total disability benefits from June 29, 2001 to August 7, 2001.

Decision

That the worker was fit to perform his pre-accident duties as of June 29, 2001; and

That the worker was overpaid temporary total disability benefits from June 29, 2001 to August 7, 2001.

Decision: Unanimous

Background

In August 1990, the claimant filed a claim with the Workers Compensation Board (WCB) for a right shoulder injury that occurred during the course of his employment as a mechanic. Initial medical reports revealed that the claimant had degenerative changes in his right shoulder and a normally aligned acromioclavicular joint. On April 16, 1991, the claimant underwent an excision of the right distal clavicle and on June 14, 1993, an arthroscopic acromioplasty. The claim was accepted by the WCB and the claimant received various benefits which included vocational rehabilitation services.

In 1998, the claimant experienced further right shoulder difficulties and was assessed by a WCB medical advisor. The medical advisor diagnosed the claimant with rotator cuff impingement syndrome which was related to the original compensable injury. It was concluded that the claimant was not totally disabled, but he was not fit to return to his pre-injury duties involving heavy lifting and repetitive shoulder movements. There was no significant loss of passive ROM (range of motion) of the right shoulder movement noted.

On August 31, 1999, the claimant underwent surgery and a small tear was found on the most lateral aspect of the rotator cuff. A referral for physiotherapy was made.

On May 7, 2000, an orthopaedic surgeon arranged for an MRI of the right shoulder as the claimant was experiencing persistent discomfort and pain. The MRI noted no gross re-tear of the rotator cuff tendon and the comment was made that a metallic artifact may obscure a smaller tear. To exclude a small re-tear, an arthrography was recommended. On December 19, 2000, a right shoulder arthrogram revealed post surgical changes. Also, no rotator cuff tear was identified. On January 31, 2001, the treating orthopaedic specialist suggested further physiotherapy so the claimant could regain some function and decrease his pain.

The claimant, on March 18, 2001, was assessed at a local hospital complaining of right shoulder pain. An x-ray of the right shoulder taken on the same day did not identify any acute processes.

On April 5, 2001, the treating orthopedic specialist noted that the claimant still had pain at the attachment of the deltoid to the clavicle in the area of the old incision plus some subacromial pain. The specialist indicated the only thing that he could offer the claimant was a direct arthroscopic examination of the glenohumeral joint in order to rule out any mechanical problem. He could open the old incision and explore the attachment of the deltoid to see whether or not it was indeed detached.

In a May 14, 2001 report, a different orthopaedic surgeon assessed the claimant. He was of the opinion that there was less chance of success with surgery to revise the previous surgery in view of the multiple procedures. But he felt that there may be some partial or full thickness recurrent cuff tearing or other scar tissue in the area which would benefit from further repair and/or debridement.

On May 18, 2001, a WCB orthopaedic consultant reviewed the case. In brief, the consultant was of the view that the surgeons involved in the case were trying to treat pain on the assumption that there must be pathology to explain it. The consultant did not recommend approval of any further surgical procedures and was of the opinion that the claimant's permanent restrictions as previously outlined on April 27, 2001, should continue.

On June 25, 26, 27, 28, 29 and 30, 2001 a videotape surveillance was conducted surrounding the claimant's activities and the tapes were reviewed by the WCB orthopaedic consultant. In a memo to file dated August 2, 2001, the consultant was of the opinion that there was no evidence of right shoulder loss of function. It was recommended that the WCB cancel the claimant's restrictions and that the claimant had no evidence of loss of earning capacity arising out of injury of the claim.

In a letter dated August 3, 2001, primary adjudication confirmed to the claimant that as of June 19, 2001 (later amended to June 29, 2001), based on the evidence shown on videotapes and the opinion expressed by the WCB's orthopaedic consultant, that he had no loss of right shoulder function and as a result he was considered fit to perform his pre-accident duties. This resulted in an overpayment retroactive to June 19, 2001 in the amount of $4,469.40 (the overpayment amount was later amended to $3,476.20 effective June 29 to August 7, 2001). On September 26, 2001, the claimant appealed the decisions and the case was forwarded to Review Office for consideration.

After review of the surveillance videotapes in conjunction with the file contents, Review Office obtained a job analysis of the claimant's pre-accident duties as an automotive mechanic.

On January 15, 2002, the claimant underwent a right shoulder scope, arthroscopic acromioplasty and mini-open deltoid repair. The post-operative diagnosis was incomplete acromioplasty and deltoid detachment.

On February 4, 2002, a WCB orthopaedic consultant assigned to Review Office, was asked by Review Office to review the case and to provide his opinion with respect to the medical information on file. He responded to Review Office in a memo dated February 6, 2002.

On February 8, 2002, Review Office determined that the claimant was capable of performing his pre-accident duties as an automotive mechanic effective June 29, 2001 and that he was overpaid temporary total disability benefits from June 29, 2001 to August 7, 2001. Review Office's rationale for these decisions were as follows:
  • it was clear to Review Office that the claimant had excellent function and significant strength in his right shoulder after taking into considering the surveillance videotapes of June 25 to 30, 2001 and the surgical report which confirmed that the claimant had a detached deltoid which may have existed at the time of his moving activities in June 2001. There was no evidence which showed that the claimant favored his right shoulder and there were no signs of stress considering that he was shown moving heavy pieces of furniture/objects in a sustained position at and above shoulder level for two full days. The right shoulder had full mobility and obviously no functional impairment.

  • after reviewing the job analysis of the claimant's pre-accident duties and comparing these duties to the claimant's demonstrated activities as seen in the videotape surveillance, the claimant was capable of performing his pre-accident duties. This was supported by the orthopaedic consultant's opinion that there was no evidence of loss of right shoulder function and the claimant had no loss of earning capacity arising out of the injury.

  • Review Office found that the claimant was not entitled to temporary total disability effective June 29, 2001 and that the claimant was therefore overpaid. The file was being referred back to primary adjudication for follow-up and consideration under WCB policy No. 35.40.50 Overpayment of Benefits.
On March 1, 2002, the claimant appealed Review Office's decision and an oral hearing was then arranged.

Reasons

We have undertaken a complete and thorough review of all the evidence on file together with the video surveillance and the claimant's oral testimony. We accept and concur with the opinion expressed by the WCB orthopaedic consultant in his memorandum of August 2nd, 2001 in which he states:
    "In my opinion there is no evidence of loss of R. shoulder function. Restrictions of my memo June 21.01 are cancelled. Claimant has no evidence of loss earning capacity arising out of injury of this claim."
Therefore, we find that the worker based on the evidence, and on a balance of probabilities was fit to perform his pre-accident duties as of June 29th, 2001.

Accordingly, we further find that the claimant has been overpaid temporary total disability benefits from June 29th, 2001 to August 7th, 2001. 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

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