The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on March 17, 2005, at the request of an advocate, acting on behalf of the worker. The Panel discussed this appeal on March 17, 2005 and again on May 30, 2005.

Issue

Whether or not the worker's wage loss benefits should have been suspended effective June 16, 2004 on the basis that the worker was fit to participate in the graduated return to work program.

Decision

That the worker's wage loss benefits should have been suspended effective June 16, 2004 on the basis that the worker was fit to participate in the graduated return to work program.

Decision: Unanimous

Background

On August 19, 2002, the worker sustained a compensable injury to his right lower arm during the course of his employment as a painter. On the same day, the worker underwent a surgical procedure to repair the "Gustilo Grade 1 open right ulnar shaft fracture".

Post-operatively, follow-up reports were received from the treating orthopaedic surgeon along with physiotherapy reports. On August 20, 2003, the worker underwent further surgery to remove the hardware from his right forearm.

The worker was interviewed at the WCB's Pain Management Unit (PMU) in July 2003. On August 21, 2003, it was determined by the PMU that the worker did not meet the diagnostic criteria for chronic pain syndrome but was experiencing symptoms of post traumatic stress disorder (PTSD) and depression. On September 4, 2003, the WCB referred the worker for psychotherapy to treat his PTSD and depressive symptoms.

The worker underwent a reconditioning program from October 28 to November 28, 2003. In a final report dated December 8, 2003, the physiotherapist indicated that the worker was very pain focused and that he made frequent referrals to his pain and function of his right arm. The worker had poor perception of function but had normal range of motion and strength without pain complaint. The physiotherapist concluded that the worker "is capable of his job based on minimal objective findings and demonstrated functional level however he does not perceive that he if (sic) fit for RTW [return to work] and is limited by his pain."

On February 16, 2004, the worker was assessed by a WCB medical advisor. Based on his assessment, the medical advisor was of the view that the worker still had a problem with pain barrier, whether real or non-organic, preventing him from returning to full function. Recommendations were made for a consult with the Pain Clinic and for a bone scan. Current restrictions were listed as being "no repeated pushing, pulling, no weights greater than 10 pounds. No repeated grasping for 4 weeks."

A bone scan dated February 24, 2004, revealed "persisting bone reaction at the site of the previous fixation. This is probably more than one would expect 18 months post surgery. There is no significant hyperemia to suggest infection but the ongoing activity at the site of the screws raises the question of micro motion."

In a report to the WCB dated March 27, 2004, the specialist from the Pain Clinic believed that the worker was suffering from right ulnar neuropathy and suggested nerve conduction studies (NCS) be conducted. On April 20, 2004, NCS were considered to be within normal limits.

On May 13, 2004 a WCB medical advisor reviewed the file information and stated that the worker should attempt a return to work starting at 4 hours per day for two weeks and gradually increasing his hours until he was back to full time regular work.

On June 10, 2004, a WCB case manager met with the employer and the worker to discuss increasing the worker's hours in the modified duty program. During the meeting, the worker expressed concerns that he still had pain in his arm.

On June 10, 2004, the WCB outlined a return to work schedule for the worker which entailed painting tasks and working on a punch and drill press. It was anticipated that the worker would be back at full duties effective July 26, 2004.

In a medical certificate dated June 14, 2004, the attending physician stated that light work at four hours per day was recommended for the worker and that he was presently unable to tolerate regular duties.

On June 14 and June 15, 2004, the worker attempted modified duties but claimed that the duties aggravated his arm. In a letter dated June 21, 2004, the WCB advised the worker that his benefits were being suspended effective June 16, 2004 as it remained of the opinion that he was capable of returning to full and regular duties. The worker disagreed with this decision and the case was forwarded to Review Office for consideration on June 24, 2004.

In an August 25, 2004 decision, Review Office confirmed the WCB's position of June 21, 2004. After reviewing all the medical information on file and after considering the time that had elapsed since the August 2002 injury, Review Office felt there were no clinical objective organic explanation for the worker's belief that he was disabled from cooperating with a return to work on modified duties. On October 5, 2004, the worker appealed Review Office's decision to the Appeal Commission and an oral hearing was arranged.

Following the oral hearing, the Appeal Panel requested additional medical information be obtained from the worker's treating physician prior to discussing the case further. A report from the treating physician was received dated May 9, 2005 and was forwarded to the interested parties for comment. On May 30, 2005, the Panel met to discuss the case further and to render its final decision.

Reasons

As the background notes describe, the worker got his right arm caught between rollers and bars on a conveyor. This incident resulted in a fracture of his right forearm. During the course of his recovery period, the worker became very pain focused.

However, there is nothing contained in the medical reports on file to suggest that the worker's right forearm condition in June of 2004 was anything less than when he resumed full time duties in September 2004. Therefore, we find nothing to have precluded the worker from continuing with the return to work program, which was established in May 2004. In other words, the worker was fit to participate in the graduated return to work program. Accordingly, we further find that it was appropriate to suspend the worker's wage loss benefits effective June 16, 2004.

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 28th day of June, 2005