The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on January 29, 2004, at the request of the claimant. The Panel discussed this appeal on January 29, 2004 and again on March 23, 2004.

Issue

Whether or not a compensable loss of earning capacity exists beyond August 8, 2003.

Decision

That a compensable loss of earning capacity does exist beyond August 8, 2003.

Decision: Unanimous

Background

In early January 2003, the claimant telephoned the call centre at the Workers Compensation Board (WCB) to report a right elbow injury that occurred on December 11, 2002 when he pushed "really hard" to crank down the trailer of his truck to a lower height. On December 22, 2002, the attending physician diagnosed the claimant with tendonitis of the elbow. The claim was accepted by the WCB and the claimant was paid benefits starting December 27, 2002.

Subsequent file records revealed that the claimant underwent physiotherapy treatments and was prescribed anti-inflammatories and a tennis elbow strap. On January 23, 2003, a physician at the Pan Am Clinic reported that the claimant had pain over the medial and lateral epicondyles and that grip strength was normal. It was recommended that the claimant continue with physiotherapy treatments.

On January 31, 2003, a physiotherapy report noted that the claimant had been diagnosed with right lateral epicondylitis.

In April 2003, the claimant attempted a return to work but he experienced increasing pain in his lateral and medial epicondylar areas.

On June 30, 2003, a WCB medical advisor assessed the claimant. It was determined that the claimant was suffering from lateral greater than medial epicondylosis, with no signs of myofascial activity around the elbow itself. Further treatment recommendations included a steroid injection into the lateral epicondylar area and acupuncture treatments. The medical advisor felt that the claimant was capable of modified duties with restrictions.

On July 14, 2003, a WCB adjudicator spoke with the accident employer. It was determined that the employer did not have any modified duties for the claimant. The employer expressed concerns that the claimant had dropped off information about custom tailgates showing the claimant as owner of the business.

On July 14, 2003, the adjudicator spoke with the claimant about his work capabilities and the work that he normally performed. The claimant didn't think that he could perform his regular duties because driving stressed his arm. The claimant acknowledged that while he did not do a lot of manual loading or unloading he never knew how much of that he would be required to do when crossing the border. The claimant indicated that he was not working now.

Reports were received from the acupuncture specialist regarding the claimant's progress with treatment. He stated that the claimant agreed to commence a trial of acupuncture type dry needling once per week. In a follow-up report dated August 13, 2003, the specialist noted that the claimant had been treated twice with gentle acupuncture type dry needling of the elbow muscular and that following his first treatment, the claimant complained of shoulder pain. The specialist commented that the claimant's shoulder had not been treated. The claimant cancelled his follow up appointment.

On August 14, 2003, an investigation report was placed on file with respect to video tape surveillance of the claimant that had taken place on July 28, 29, 30, and August 8, 2003. On September 11, 2003, a transcript of the audio portion of the video tape was placed on file.

On August 15, 2003, the claimant was advised by his WCB adjudicator that his wage loss benefits were being terminated because the surveillance information revealed that he was working and had an active business. The surveillance also revealed the claimant's lifting an object and that he appeared to have a full range of motion in his shoulder and elbow. On August 26, 2003, the claimant appealed this decision to Review Office.

In a decision dated September 26, 2003, Review Office confirmed that a compensable loss of earning capacity did not exist beyond August 8, 2003 based on the following rationale:

• the claimant was involved in at least two self-employed ventures and was earning an income.
  
  
• the claimant attempted to convince a WCB medical advisor that he was disabled from a task such as mowing the lawn, and that he made no mention of the work he was performing through self-employment ventures while being on WCB wage loss benefits;
  
  
• the claimant advised his adjudicator on July 14, 2003 that he wasn't working. According to Review Office, this was an attempt to mislead the WCB and to keep his activities unknown.
  
  
• the surveillance video revealed that the claimant did not exhibit any pain behavior and it brought into question the claimant's credibility.

On January 29, 2004, an oral hearing was held at the Appeal Commission as the claimant disagreed with Review Office's decision of September 26, 2003. Following the hearing and discussion of the case, the Panel requested up-dated medical information from the claimant's treating physician. A report was later received from the physician dated March 5, 2004 and was forwarded to the interested parties for comment. On March 23, 2004, the Panel met to render its final decision with respect to the issue under appeal.

Reasons

We note that a WCB medical advisor reviewed the claimant’s file on May 22^nd, 2003 and concluded that there was an ongoing relationship between the original work injury and the claimant’s current condition. Approximately five weeks later, the claimant was requested to attend a call-in examination at the WCB offices. In his examination notes dated June 30^th, 2003, the medical advisor recorded the following comments:

“On the basis of today’s examination, Mr. [the claimant] is suffering from lateral greater rather than medial epicondylosis, with no signs of myofascial activity around the elbow itself. Acupuncture treatment was discussed with Mr. [the claimant] and arrangements have been made through the WCB for a referral to Dr. [name] for assessment and treatment, if he deems necessary. Mr. [the claimant] would be capable of working under modified conditions, which would involve no lifting greater than 15 lbs, no excessive repetitive flexion/extension of the right wrist, and no use of vibratory equipment. These restrictions should be in place for two months and reviewed at that time.” (Emphasis ours)

We found the claimant to be a very credible witness and we were impressed by the fact that he mitigated his right elbow difficulties by continuing with physiotherapy at his own expense. It should be noted as well that the employer did not have any modified duties, which could have been offered to the claimant and which would have respected the restrictions imposed by the WCB medical advisor.

After having thoroughly considered all of the evidence, we find that the claimant had not, on a balance of probabilities, returned to his pre-accident status by the time his benefits were terminated. We further find based on the weight of evidence that a compensable loss of earning capacity does exist beyond August 8^th, 2003. However, the evidence confirms that the claimant did fully recover from the effects of his compensable injury and that he was able to return to his regular work duties on October 23^rd, 2003.

The claimant’s appeal is hereby allowed.

Panel Members

R. W. MacNeil, Presiding Officer
P. Challoner, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

R.W. MacNeil - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 26th day of April, 2004