Decision #16/04 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on December 1, 2003, at the request of an advocate, acting on behalf of the claimant. The Panel discussed this appeal on the same day.

Issue

Whether or not the claimant is entitled to wage loss benefits between June 12, 1998 and August 19, 1999 other than the period of recovery from surgery between January 12, 1999 and June 12, 1999; and

Whether or not the an overpayment in the amount of $10,310.00 exists on file.

Decision

That the claimant is entitled to wage loss benefits between June 12, 1998 and June 12, 1999.

That an overpayment in the amount of $10,310.00 should be reduced to reflect the wage loss overpayment made between June 13, 1999 to August 19, 1999.

Decision: Unanimous

Background

On September 4, 1997, the claimant was carrying drywall up a flight of stairs when he dislocated his left shoulder. This diagnosis was confirmed by the attending physician on September 5, 1997. The claim was accepted by the Workers Compensation Board (WCB) and wage loss benefits commenced on September 5, 1997. File records also revealed that the claimant had sustained previous dislocations to his left shoulder on a number of occasions and that he had undergone a capsulolabral reconstruction on May 21, 1996.

On June 10, 1998, the claimant's treating orthopaedic surgeon recommended a "redo open stabilization" to the left shoulder. On July 9, 1998, a WCB medical advisor accepted financial responsibility for the proposed procedure which was later carried out on January 12, 1999. The claimant then under physiotherapy treatments with respect to his left shoulder region.

In May 1999, the orthopaedic surgeon instructed the claimant to avoid strenuous work long term and to retrain into a lighter type job. In a further report dated July 15, 1999, the specialist noted that the claimant was doing well post-operatively but was unable to use his arm above shoulder height for strenuous work and that this was likely permanent. The specialist again recommended that the claimant be retrained.

At the advice of two WCB medical advisors, primary adjudication made arrangements for the claimant to undergo a Functional Capacity Evaluation (FCE) at the WCB's offices. A report dated September 13, 1999 concerning this assessment is on file.

Between August 21, 1999 and August 22, 1999, a surveillance videotape was taken of the claimant's activities while he participated in a rodeo. File information also contained information which showed that the claimant had participated in rodeos between June 13, 1998 and October 4, 1998 and between June 12, 1999 and September 19, 1999.

In a memo dated October 9, 1999, a WCB medical advisor commented that he did not see any restrictive or protective posturing of the claimant's shoulder when reviewing the surveillance videotape evidence. He further stated, "He used it as aggressively as necessary during the rodeo and without hesitation. He holds it abducted and flexed without difficulty. I do not believe this claimant requires any restrictions regarding the use of his shoulder, nor does he regain any rehabilitation or strengthening."

On October 22, 1999, primary adjudication informed the claimant that he would be paid WCB benefits to August 19, 1999 inclusive and final. This decision was reached following a consultation with a WCB medical advisor and a review of the videotape evidence, which revealed the claimant no longer required restrictions as a result of his compensable injury. The letter also indicated that further decisions might possibly be forthcoming after investigating his past participation in rodeo events.

On January 19, 2000, the claimant was informed by the WCB that he was entitled to wage loss benefits from January 12, 1999 up to and including June 12, 1999, which represented the period of his recovery from his January 12, 1999 left shoulder surgery. The claimant, however, was not entitled to wage loss benefits during the time when he participated in rodeo events from June 13, 1998 to August 19, 1999. The claimant had therefore been overpaid benefits in the amount of $10,310.00.

In a report dated July 26, 2000, the treating orthopaedic specialist outlined his position that the claimant could have engaged in vigorous activities such as hockey, basketball or a rodeo following his rehabilitation of his January 1999 surgery. The physician believed that the claimant was in no way trying to take advantage of his WCB claim status while participating in his rodeo events. On November 10, 2000, a WCB medical advisor reviewed the orthopaedic specialist's report and commented that there would be no change to his previous opinion with respect to the claimant's capability.

On December 7, 2000, a WCB orthopaedic consultant reviewed the file contents along with the surveillance videotape evidence. The consultant disagreed with the opinion expressed by the treating orthopaedic specialist that the rodeo activities did not pose the same risk to the claimant's left shoulder as his regular duties in construction. The WCB consultant felt that the claimant had demonstrated a full recovery of function with no on-going risk arising out of his regular occupation.

On May 20, 2003, an advocate, acting on behalf of the claimant, appealed the October 22, 1999 decision. A further written submission was forwarded to Review Office on July 9, 2003.

On July 18, 2003, Review Office determined that the claimant was not entitled to wage loss benefits between June 13, 1998 and August 19, 1999, other than for the period of recovery from surgery between January 12, 1999 and June 12, 1999. Review Office noted that the normal recovery time from shoulder dislocation surgery was up to six months. There was no evidence on file to show that the claimant did not have a successful rehabilitation following his January 1999 shoulder surgery. On June 13, 1999 the claimant participated in a rodeo which was 9 months post injury. The recovery period provided the claimant's left shoulder with ample time to return to his pre-accident state. The claimant obviously had enough confidence in his shoulder to engage in rodeo activities.

Review Office considered the video evidence, which did not reveal the claimant's exhibiting any pain behavior or any functional impairment of his left shoulder. Review Office did not feel there was any evidence indicating that the claimant was disabled from his regular work duties beyond the normal range of recovery norm for such a condition. Review Office was also of the opinion that if the claimant was able to participate in rodeos in the manner in which he had been captured on video then he was able to return to gainful employment.

On August 20, 2003, an advocate for the claimant appealed Review Office's decision and an oral hearing was arranged.

Reasons

Throughout the period of June 12th, 1998 to December 31st, 1998, the claimant's left shoulder problems were continuous and this precluded him from entertaining his pre-accident job duties. We accept the claimant's evidence that in his first year of rodeo (summer of 1998) his team performed extremely poorly and his sole function in these events was to rope cattle, which required little or no use of his left arm in extreme positions.

We note that the WCB authorized and accepted responsibility for the claimant's left shoulder surgery on January 12th, 1999 as well as his anticipated recovery period of approximately four to six months. After June 12th, 1999, there is little or no medical information on file to suggest that the claimant was incapable of performing construction duties, with the exception of the specific restriction outlined by a WCB medical advisor on November 10th, 2000. "The only restriction would be for him to avoid the position of dislocation - extremes of external rotation and abduction for anterior as well as lifting in an uncontrolled fashion for inferior dislocation." In our view, this restriction would not lead to the claimant's experiencing a loss of earning capacity given the broad range of construction job duties available.

Based on the weight of evidence, we find that the claimant is entitled to wage loss benefits between June 12th, 1998 and January 12th, 1999 and the period of his recovery from surgery between January 12th, 1999 and June 12th, 1999 inclusive. The claimant is therefore not entitled to wage loss benefits from June 13th, 1999 to August 19th, 1999.

In light of our decision with respect to the first issue, the overpayment in the amount of $10,310.00 should be reduced to reflect the period of the claimant's entitlement to wage loss. In other words, the claimant has been overpaid from June 13th, 1999 to and including August 19th, 1999.

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 19th day of January, 2004

Back