Decision #133/04 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on August 24, 2004, at the claimant's request. The Panel discussed this appeal on the same day.

Issue

Whether or not the worker is entitled to wage loss benefits beyond November 21, 2003.

Decision

That the worker is not entitled to wage loss benefits beyond November 21, 2003.

Decision: Unanimous

Background

In September 2003, the claimant filed a claim with the Workers Compensation Board (WCB) for progressive left wrist pain that she related to the nature of her job duties which included working with stock and lifting of same. Initial medical reports diagnosed the claimant with left thumb tendonitis. Treatment consisted of physiotherapy and a left wrist brace. The claim was accepted by the Workers Compensation Board (WCB) and the claimant received benefits while receiving treatment and while performing light duties which consisted of supervising cashiers and stocking personnel.

On October 17, 2003, the case was reviewed by a WCB medical advisor who outlined his opinion that the claimant should be able to perform full time duties.

On November 19, 2003, a sports medicine specialist noted that the claimant continued to have pain in spite of her brace and that she was provided with a second cortisone injection. A referral to a hand specialist was suggested.

On November 25, 2003, a WCB case manager advised the claimant that her benefits were being suspended effective November 21, 2003 until such time as she agreed to participate in the return to work plan. The following is a brief excerpt from that letter:
"As I indicated to you in our telephone conversation of November 21, 2003, your file was reviewed by a Workers Compensation Board healthcare Advisor. It was determined that you are capable of returning to work to a position as a cashier supervisor. The duties inherent to this position would not require any use of your injured hand. As a result of this accommodation I am of the opinion that you are capable of working full time at modified duties."
In a report to the WCB dated November 27, 2003, the treating sports medicine specialist recommended that the claimant abstain from work to avoid aggravation of her left arm tendonitis. He was also skeptical that any work available would restrict left arm use totally. He further stated, "If such work is available, she could do a trial of return though I would reassess after 2-3 weeks."

On December 11, 2003, the claimant wrote to Review Office requesting reconsideration of the WCB's decision to cease her benefits effective November 21, 2003. The claimant stated, in part, that she had been told by her treating sports medicine specialist to remain off work for four weeks. The claimant stated that she had followed the advice of all her doctors and that her injury had gotten worse despite being off work.

In January 2004, the WCB received a report from the treating hand specialist dated January 19, 2004 which stated the following:
"This lady's surgery was cancelled ten days ago because her symptoms of tendonitis around her left FCR had settled significantly since her previous visit. However, she was complaining of increased pain all around the 1st MCP joint and her flexor pollicis longus tendons, which were tender to examination. Accordingly, steroid injections were administered to both sites today and we will review her again in two months."
In a decision dated April 30, 2004, Review Office confirmed that the claimant was not entitled to wage loss benefits beyond November 21, 2003 as there was no loss of earning capacity beyond that date. Review Office was of the opinion that the claimant had been given every opportunity by her employer to return to work which did not require the use of her injured hand but she chose not to do so. The claimant's treating sports medicine specialist said she could return to work with no use of her left hand which was agreed upon with a WCB medical advisor. Review Office felt there was insufficient medical evidence to support that the claimant could not return to work in a supervisory capacity with no use of the injured left hand, especially since she was right hand dominant. On May 20, 2004, the claimant appealed Review Office's decision and an oral hearing was arranged.

Reasons

The evidence confirms that the employer had established a modified work program during which the claimant had been instructed not to use her non-dominant hand. This fact was confirmed by both the worker and employer at the hearing. The evidence further confirms that the claimant’s treating physician encouraged her to participate in modified return to work duties.

On October 17, 2003, a WCB medical advisor reviewed the claimant’s file and concluded that the claimant “should be able to perform F.T. [full time] duties.” In addition, the claimant’s treating sports medicine specialist advised the WCB on November 27, 2003, as follows:

“I have recommended continued absence from work to avoid aggravation of left arm tendonitis. I am skeptical that any work available would restrict left arm use totally. If such work is available, she could do a trial of return though I would reassess after 2-3 weeks.” (Emphasis ours)

After having considered all of the evidence, we find that the worker is not entitled to wage loss benefits beyond November 21, 2003. Accordingly, the claimant’s appeal is hereby dismissed.

Panel Members

R. W. MacNeil, Presiding Officer
J. MacKay, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

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

Signed at Winnipeg this 6th day of October, 2004

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