The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on May 13, 2004, at the request of legal counsel, acting on behalf of the claimant. The Panel discussed this appeal on May 13, 2004 and again on October 21, 2004.

Issue

Whether or not the worker is entitled to wage loss benefits beyond July 11, 2003.

Decision

That the worker is not entitled to wage loss benefits beyond July 11, 2003.

Decision: Unanimous

Background

On June 16, 2001, the claimant was prying a sheet of plywood when the plywood snapped and he fell landing on a concrete block injuring his left shoulder.

In a report dated June 20, 2001, an orthopaedic specialist noted that the claimant had tenderness over the anterolateral humeral head. Impingement sign was positive. There was weakness of the supra-spinatus. The orthopaedic specialist concluded that the claimant may have a rotator cuff tear and an arthrogram procedure was recommended. The specialist noted that x-rays showed some evidence of chronic cuff tendonitis.

The claim was accepted by the Workers Compensation Board (WCB) and the claimant commenced receiving compensation benefits as of June 18, 2001.

On September 18, 2001, an MRI assessment of the claimant's left shoulder revealed mild AC arthrosis. No other significant abnormality was detected.

In a memo to file dated September 25, 2001, a WCB adjudicator noted that it was the opinion of a WCB medical advisor that the MRI results showed no rotator cuff tear but the results could not rule out a tendonitis.

In a report dated September 26, 2001, the treating orthopaedic specialist reported that the claimant probably had left shoulder rotator cuff tendonitis and AC joint arthritis. A cortisone injection in the subacromial space was recommended along with physiotherapy treatments.

In an assessment report dated November 28, 2001, the orthopaedic specialist noted that the claimant's condition was not getting better and a left shoulder arthroscopy and arthroscopic acromioplasty was suggested.

On January 3, 2002, a WCB orthopaedic consultant commented that there was a continuing cause and effect relationship between the claimant's rotator cuff tendonitis and possible rotator cuff tear and he agreed that the claimant's AC arthritis was a pre-existing condition. Authorization for the proposed surgery was confirmed.

A left shoulder arthrogram dated January 28, 2002 revealed no evidence of a rotator cuff tear.

The claimant underwent a left shoulder arthroscopy and arthroscopic acromioplasty on March 13, 2002. The postoperative diagnosis was left shoulder rotator cuff tendonitis.

The claimant underwent a Functional Capacity Evaluation (FCE) on September 16, 2002. The results showed that the claimant's participation during the FCE was not a full voluntary effort passing 0 of 4 validity checks.

Following a call-in examination at the WCB's offices on December 18, 2002, the examining medical advisor felt that the claimant was pain focused, that a significant regional myofascial pain component and sleep disorder had developed and that the claimant exhibited symptoms of depression.

On June 10, 2003, the claimant was assessed by a WCB orthopaedic consultant who reported that the claimant felt there had been some improvement in the active range of motion of the shoulder and improvement in his ability to lift from floor to waist. Further improvement was not anticipated in either range of motion, strength or perception of pain. He felt that further physical treatment would not alter the claimant's situation and that the WCB should proceed with vocational rehabilitation.

A videotape surveillance of the claimant's activities was conducted between May 23 and May 29, 2003. The videotape evidence was reviewed by the WCB's orthopaedic consultant on July 2, 2003 and he believed that the claimant had overstated his symptoms and had exaggerated his loss of function. His examination showed a restriction of active left shoulder movement significantly less than demonstrated on the surveillance video. Based on this new information, the consultant stated he had no alternative but to rescind the opinion and recommendations that he made on June 10, 2003.

Based on the videotape evidence, the claimant was advised of the WCB's position that he was capable of returning to his pre-accident duties full time with no restrictions and that wage loss benefits would be paid to July 11, 2003 inclusive and final.

In a letter addressed to the WCB dated August 21, 2003, a solicitor, acting on behalf of the claimant, contended that there was nothing in the surveillance video that would discount the very clear conclusion that the claimant was unable to return to work as a labourer. On September 5, 2003, a WCB case manager advised the solicitor that he was not prepared to alter his previous decision even though the solicitor's interpretation of the surveillance tape differed from the WCB's interpretation. On October 9, 2003, the solicitor appealed this decision to Review Office.

On October 31, 2003, Review Office determined that wage loss benefits were not payable to the claimant beyond July 11, 2003. When reaching its decision, Review Office considered the file evidence which included the opinions expressed by the claimant's attending physicians, the results of the FCE testing and the videotape surveillance. Review Office agreed with the WCB's orthopaedic consultant that the claimant had exaggerated and overstated his lack of functional capabilities with his left shoulder. Note was made that the constant pain in the shoulder that the claimant commented on to his physicians was not evident at all in the surveillance video.

In December 2003, the claimant's solicitor submitted new medical information from a physical medicine and rehabilitation specialist dated October 22, 2003 for consideration. On January 23, 2004, Review Office advised the solicitor that the new medical evidence was basically the same as the findings of the WCB's orthopaedic consultant from June 2003 and that no change would be made to its earlier decision to deny benefits to the claimant beyond July 11, 2003. The solicitor appealed Review Office's decision and an oral hearing was held on May 13, 2004.

Following the hearing and after discussion of the case, the Appeal Panel arranged for an independent orthopaedic specialist to assess the claimant, prior to rendering its final decision. The examination by the orthopaedic specialist later took place on August 26, 2004 and the final report was forwarded to the interested parties for comment. On October 21, 2004, the Panel met to further discuss the case and considered a submission from legal counsel dated October 6, 2004.

Reasons

A WCB orthopaedic consultant examined the claimant on June 10, 2003. Following his examination, the consultant recommended that the claimant "avoid all lifts upper limb above shoulder" for a duration of one year. On or about June 26, 2003, the consultant reviewed a surveillance videotape, which chronicled some of the claimant's activities that occurred 12 days prior to the call-in examination on June 10. The consultant recorded his impressions in a memorandum to file:

"From this new information, I believe the claimant overstated his symptoms and exaggerated his loss of function. The examination showed a restriction of active left shoulder movement significantly less than demonstrated on the surveillance video.

Based on this new information, I have no alternative but to rescind the opinion and recommendations of June 10, 2003. The claimant is considered capable of returning to work, regular duties, full time with no restrictions."

Inasmuch as the assessed difficulties with respect to the claimant's left shoulder appeared to have changed so radically, we decided to have him examined by an independent medical examiner. The claimant was examined by an orthopaedic surgeon on August 26, 2004. He reported in part as follows:

"I obtained a plane x-ray of his shoulder which shows a good subacromial space, reasonably well preserved AC [acromioclavicular] joint.

In summary, I cannot determine any mechanical causes for Mr. [the claimant's] left shoulder pain. The pain is of a subjective nature only and appears to be, if anything, of a soft tissue nature only. Whatever underlying pathology there is, significant amplification is demonstrated by the surveillance video, the inconsistencies on physical examination and also on the inconsistencies in the functional capacity evaluation."

Although we took into consideration all of the evidence in arriving at our decision, we nevertheless preferred to attach more weight to the independent medical examination findings and conclusions. Therefore, we find that the worker is not entitled to wage loss benefits beyond July 11, 2003. 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 17th day of November, 2004