Decision #70/03 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on May 13, 2003, at the claimant's request. The Panel discussed this appeal on May 13, 2003.

Issue

Whether or not the worker is entitled to wage loss benefits beyond May 23, 2002.

Decision

That the worker is not entitled to wage loss benefits beyond May 23, 2002.

Decision: Unanimous

Background

While employed as a cabinet maker on May 23, 2000, the claimant experienced a sharp pain in his left wrist as a result of lifting a heavy sheet of plywood. A Doctor's First Report dated May 26, 2000 diagnosed the claimant with a left wrist strain. The Workers Compensation Board (WCB) accepted the claim and wage loss benefits were paid accordingly.

File records showed that the claimant was assessed by an orthopaedic specialist and by a plastic surgeon regarding his left wrist difficulties. In a letter dated June 18, 2001, the plastic surgeon reported that a recent left wrist MRI was negative and that a previous arthrogram indicated the possibility of a TFCC tear along with a scapholunate tear. He felt that the claimant would benefit from a wrist arthroscopy to delineate his wrist pain better and the ligament tears which were suspected on the arthrogram. Based on the claimant's description of his work activities, the surgeon said it was possible that these ligament injuries could be work related. He stated that an arthroscopy would help to determine whether or not these were traumatic or degenerative in origin. It would also aid in the long-term prognosis and in determining whether or not any other surgical procedure would be of benefit.

On August 28, 2001, the claimant underwent an arthroscopic examination of the left wrist with debridement. The pre-operative diagnosis was "left wrist pain secondary to degenerative changes".

A WCB medical advisor reviewed the operative report on October 23, 2001. He stated, in part, that numerous tiny defects seemed to have been found at the arthroscopy which would lead one to believe that some pre-existing condition was present but exactly how much and what was impossible to determine in retrospect. The alleged mechanism of injury was so brief that it seemed unusual that it could account for these degenerative changes.

On February 11, 2002, a Functional Capacity Evaluation (FCE) was undertaken. Under the heading "Outcome of the Evaluation", the report stated, in part, "The claimant's participation during the FCE was identified not to be a full voluntary effort passing 1 of 5 validity checks."

On May 28, 2002, the claimant advised his case manager that he had a burning sensation in his left wrist and that he had learned to use his right hand only. The claimant indicated that the poor FCE results were due to his nervous state and fear of further injury to his left wrist. The claimant explained that he was always nervous in anything he normally did. He was unable to use his left hand and was therefore limited in performing the activities around the home.

In February, May, June and July 2002, the claimant's activities were videotaped by a private investigator at the request of the WCB.

On August 2, 2002, a WCB medical advisor reviewed the file information and the videotape evidence and afterwards made the following comments:
"Note in May 2002 the claimant was not wearing brace (as for FCE) and was able to lift and handle wood without any noticeable difficulty. This was only short term use. Recent film shows long term use, no brace, and full use of the left wrist. This bears no relationship to FCE findings either in ROM (range of motion) and lifting capacity. It is difficult to assess restrictions on basis of recent evidence."
On August 14, 2002, a WCB case manager informed the claimant that it was the opinion of a WCB medical advisor that there were inconsistencies between what he exhibited on his FCE versus the surveillance information. Therefore, it was the opinion of Rehabilitation and Compensation Services that the claimant was considered capable of performing his pre-accident cabinet maker position effective May 24, 2002. On December 6, 2002, the claimant appealed this decision and the case was forwarded to Review Office for consideration.

In a decision dated December 27, 2002, Review Office noted that the reason why the claimant's benefits were stopped effective May 24, 2002 was because of the surveillance videotape, which showed him carrying lumber and other materials and constructing a deck. This evidence provided a stark contrast to what the claimant contended to WCB staff that he was basically incapable of using his left hand for any productive purpose. Review Office was satisfied that the claimant had purposely misrepresented his disability and that he was not entitled to wage loss benefits beyond May 23, 2002.

In a letter to the WCB dated October 9, 2002, the claimant's treating plastic surgeon indicated that the only surgical procedure available to the claimant was a total wrist fusion and that the claimant was not a good candidate for this procedure at this point in time. The claimant was to avoid any form of repetitive lifting, gripping, pushing, pulling or twisting activities. The surgeon stated, "Overall, it was felt that if the Workers Compensation Board is not helping him his best situation is to go find a job that meets his restrictions."

On April 1, 2003, the claimant appealed the decision of Review Office and on May 13, 2003, an oral hearing took place at the Appeal Commission.

Reasons

Extensive review of the medical evidence and of the surveillance video leads us to conclude that at the time of the termination of benefits there was not, on a balance of probabilities, a loss of functional capacity of the claimant's left wrist, which would preclude his returning to his original occupation. In this regard, we also note the treating hand surgeon's advice to the claimant on August 21st, 2001 that the claimant "attempt to return back to his original occupation." We find based on the preponderance of evidence that the claimant is not entitled to wage loss benefits beyond May 23rd, 2002. 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 24th day of June, 2003

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