Decision #03/04 - Type: Workers Compensation

Preamble

A non-oral file review was held on November 14, 2003, at the request of a worker advisor, acting on behalf of the claimant.

Issue

Whether or not a Medical Review Panel should be convened under subsection 67(4) of The Workers Compensation Act; and

Whether or not the worker is entitled to wage loss benefits beyond December 18, 2002.

Decision

That a Medical Review Panel should not be convened under subsection 67(4) of The Workers Compensation Act; and

That the worker is not entitled to wage loss benefits beyond December 18, 2002.

Decision: Unanimous

Background

The claimant submitted a claim to the Workers Compensation Board (WCB) in July 1999 for difficulties he was experiencing with both hands as a result of his employment activities. The diagnosis rendered by the attending physician was an acute tenosynovitis of the left third and fourth fingers. The claim was accepted by the WCB and the claimant underwent surgical release of the left third and fourth trigger fingers in October 1999.

On December 6, 2002 the claimant was notified by primary adjudication that wage loss benefits would end effective December 18, 2002 as it determined that he had recovered from the effects of his workplace injury. Primary adjudication relied on the following information in reaching its decision:
  • Memo dated August 23, 2002 - a WCB medical advisor outlined his opinion with respect to surveillance videotape evidence that was taken of the claimant's activities on July 18 and July 19, 2002. In part, the medical advisor noted that the claimant appeared to use his left hand in a normal and spontaneous fashion. The claimant moved both his shoulders through a full and unhindered range in flexion/abduction and horizontal adduction. There was full flexion mobility of both elbows and full functional elbow extension bilaterally. A reverse Phalen's position at the wrists supported symptomatic and functional improvement of what had previously been reported to be a disabling process involving the wrist/finger flexors/carpal tunnel. The medical advisor suggested that the claimant be examined at the WCB to clarify his medical status and the issue of workplace restrictions.

  • Examination notes dated October 31, 2002 - the WCB orthopaedic consultant concluded that there was no clinical diagnosis to explain the apparent loss in range of motion in both upper limbs and he was of the opinion that the claimant had long recovered from his workplace injuries. There were no upper limb restrictions arising out of the workplace injuries.

  • Memo dated November 21, 2002 - the above orthopaedic consultant noted that he had reviewed the videotape evidence of July 18 and July 19, 2002. He noted no loss in range of motion to either of the claimant's shoulders, elbows, wrists or fingers. There was no evidence of weakness or loss of dexterity in the upper limbs. The consultant indicated that his opinion of October 31, 2002 remained unchanged.
In a letter dated March 6, 2003, a worker advisor, acting on behalf of the claimant, made reference to a medical report dated February 28, 2003, which he felt confirmed the notion that the claimant had not recovered from the effects of his compensable injury. In the event that the WCB did not reinstate wage loss benefits or extend further vocational rehabilitation assistance to the claimant, then a Medical Review Panel (MRP) was requested to resolve the difference of medical opinion.

On April 15, 2003, a WCB case manager wrote to the worker advisor indicating that no change would be made to the previous decision as the new medical information did not provide sufficient objective medical evidence to warrant any change. The case manager also noted that the recent surgery which took place to the claimant's left hand/elbow was not authorized by the WCB and therefore no ongoing costs or effects associated with the surgery could be accepted by the WCB.

On May 2, 2003, a WCB medical advisor responded to questions posed by primary adjudication dated April 15, 2003, in which the medical advisor was asked to review the file information including a report by an orthopaedic surgeon dated March 31, 2003. Based on this review, primary adjudication advised the claimant on May 5, 2003, that no change would be made to its previous decision of December 6, 2002. The case was then forwarded to Review Office for consideration.

In a decision dated May 16, 2003, Review Office confirmed that the claimant was not entitled to wage loss benefits beyond December 18, 2002. Review Office was of the opinion that there was significant conflict in the claimant's presentation before medical practitioners while performing examinations of his upper extremities and his observed physical presentation during the surveillance video. Review Office found no evidence of pain behavior throughout the two days of video surveillance. Review Office fully agreed with the medical advisor's findings dated August 23, 2002 with regard to the claimant's left hand function.

With respect to the convening of an MRP, primary adjudication wrote to the worker advisor on June 10, 2003. The request for an MRP was denied as it was felt that the new medical information did not meet the requirements of Section 67(4) of The Workers Compensation Act (the Act). This decision was later confirmed by the Review Office on July 18, 2003. In August 2003, the worker advisor appealed Review Office's decisions of May 29th and June 10, 2003 and a non-oral file review was arranged.

Reasons

As the background notes indicate, the claimant was diagnosed as having trigger middle and ring fingers, which required surgical splitting of the flexor tendon sheath. He was also found to have a mild bilateral carpal tunnel syndrome, which did not require surgical intervention.

With respect to the first issue under appeal, we have carefully reviewed the treating physicians' reports and have compared these reports with the WCB medical advisors' reports. A close analysis reveals that the treating physicians' reports refer to the claimant's non-compensable ailments and do not specifically address whether these ongoing difficulties relate to the claimant's compensable injury. It should be made positively clear that the WCB accepted the worker's claim on the basis of his injuring the 3rd and 4th fingers of the left hand and then later on bilateral carpal tunnel syndrome. The claimant's other complaints dealing with his upper extremities have not been accepted by the WCB.

We find that there is no difference of opinion concerning the claimant's left hand 3rd and 4th trigger fingers and the bilateral carpal tunnel syndrome. Consequently, we find that there is no difference of medical opinion as contemplated by section 67(4) of the Act to warrant the referral to a medical review panel. Accordingly, this particular issue under appeal is hereby dismissed.

Concerning the second issue under appeal, we find that the worker is not entitled to wage loss benefits beyond December 18th, 2002. In arriving at this decision, we thoroughly reviewed the written evidence on file in conjunction with the videotape surveillance and we are in complete agreement with the WCB medical consultant's numerous findings, which are recorded in his memorandum to file, dated August 23rd, 2002 and are described in the background notes. In addition, we attached considerable weight to the following examination findings and conclusions reached by the WCB's orthopaedic consultant:
  • October 31st, 2002 examination notes - "The workplace injury was diagnosed as stenosing tenosynovitis of the left middle and ring fingers. Surgical release was authorized. There was electrophysiological evidence of a mild carpal tunnel syndrome. This evaluation was complicated by gross symptom magnification, non anatomic sensory blunting, apparent weakness breakaway pattern and multiple areas of apparent acute tenderness over bone and soft tissue. There is no clinical diagnosis to explain the apparent loss of range of motion in both upper limbs. In my opinion, the claimant has long recovered from the workplace injuries detailed above."
  • November 21st, 2002 memorandum to file - "Today I viewed video surveillance tape of July 18 and 19, 2002. On this tape there is no evidence of loss of ROM [range of motion] of - either shoulder; either elbow; either wrist or fingers. My opinion of October 31, 02 is unchanged."
Based on this evidence, we find, on a balance of probabilities, that the original compensable injuries were no longer factors with respect of any loss of earning capacity suffered by the claimant beyond December 18th, 2002.

The second issue under 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 2nd day of January, 2004

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