Decision #19/05 - Type: Workers Compensation
Preamble
An Appeal Panel hearing was held on October 28, 2004, at the claimant's request. The Panel discussed this appeal on October 28, 2004 and again on December 16, 2004.Issue
Whether or not the claimant is entitled to wage loss benefits beyond March 27, 2003.Decision
That the claimant is not entitled to wage loss benefits beyond March 27, 2003.Decision: Unanimous
Background
In August 1996, the claimant injured his left knee during the course of his employment as a construction labourer. On November 15, 1996, a left knee arthroscopy found "chondromalacia grade III medial femoral condyle". Responsibility for the claim was accepted by the Workers Compensation Board (WCB) and wage loss benefits were paid to the worker.Subsequent file information revealed that the claimant continued to experience ongoing difficulties with his left knee and an MRI assessment was carried out on March 2, 1998. The results revealed evidence of osteochondritis desiccans involving the medial femoral condyle. On May 4, 1998, the worker underwent an arthroscopy and repair of the osteochondritis dessicans of the left knee which was accepted by the WCB's Review Office as being directly related to the compensable injury.
On October 5, 1998, further surgery was performed, namely, the removal of two screws with debridement at the medial femoral condyle of the left knee. This surgery was also accepted as a WCB responsibility.
On June 9, 2000, a Medical Review Panel (MRP) was convened based on a difference of medical opinion between the claimant's treating orthopaedic surgeons and WCB orthopaedic consultant as to whether or not he could return to construction work and whether or not he required left knee restrictions. Ultimately, the MRP determined the following:
- the claimant sustained an articular cartilage lesion involving the left femoral condyle at the time of his compensable injury;
- there was no evidence of a pre-existing condition in the left knee;
- the claimant required permanent left knee restrictions; and
- the claimant demonstrated an abnormal pain behaviour which, if successfully treated, may result in his becoming productive in the work force.
Between November 30, 2002 and January 9, 2003, videotape surveillance was undertaken of the claimant's activities. In a memo to a WCB medical advisor dated February 5, 2003, a WCB case manager noted that the claimant
"…was observed assisting with the construction of a garage. He was quite active in cutting 2x4's with a skill saw and going up and down a ladder to pass things to his partners who were working on the trusses. As noted in the surveillance, the best example of Mr. [the claimant's] level of functioning is demonstrated when he and his partner attempted to free a car which was stuck on ice. Mr. [the claimant] was observed chipping at the ice under the wheels of the car, using both hands and exhibiting good balance. He is also observed moving freely and unassisted while trying to move this vehicle. He was observed pushing the car from the front and he and his friend attempted to back it into the garage. During the period of surveillance which I watched, there was no apparent evidence of a limp, as Mr. [the claimant] displays when he is away from his residence. In fact, there many instances when Mr. [the claimant] does not use his cane."Based on the surveillance evidence, the medical advisor stated that the claimant did not require restrictions relative to his left knee injury and that the claimant had recovered sufficiently from the effects of his injury and would be capable of his pre-accident employment.
On March 17, 2003, the WCB advised the claimant that his wage loss benefits would be paid to March 27, 2003, inclusive and final as it was felt that he had misrepresented his level of disability and functional capabilities and that he was considered to have recovered from the effects of his compensable injury. On June 16, 2004, the claimant disagreed with this decision and the case was forwarded to Review Office for consideration.
In a letter to the claimant dated July 23, 2004, Review Office agreed with the position taken by the case manager that the claimant was capable of returning to his pre-accident employment based on a review of the file evidence which included the videotape surveillance. On August 5, 2004, the claimant appealed Review Office's decision and an oral hearing was held on October 28, 2004.
Following the hearing and after discussion of the case, the Appeal Panel requested additional information be obtained from the claimant's attending physician. This information was later received by the Panel and was forwarded to the claimant for comment. On December 16, 2004, the Panel met further to discuss the case and considered a final submission received from the claimant dated December 13, 2004.
Reasons
At the very outset, we would like to state that the claimant has been diagnosed with a number of medical conditions, which have not been attributed or related to the August 26, 1996 compensable injury by the WCB and all of which may be affecting his ability to return to his pre-accident employment. Consequently, our comments will deal specifically with the claimant's compensable injury involving his left knee.The claimant underwent examination by a Medical Review Panel (MRP) on June 9, 2000. Following its examination, the MRP concluded that the claimant had sustained "an articular cartilage lesion involving the left femoral condyle" at the time of his compensable accident and that the claimant had not recovered from the compensable injury. The MRP further suggested that the following permanent restrictions were applicable to the claimant: "Crouching, Climbing ladders, Standing more than one hour and Lifting weights of more than 25 pounds."
As the background notes indicate, the claimant was the subject of a videotape surveillance commencing on November 30, 2002 and finishing on December 16, 2002. A WCB medical advisor was asked to review the claimant's file in conjunction with the videotape surveillance. After completing his review, the medical advisor arrived at several conclusions:
- That the claimant would not require restrictions with respect to his left knee injury.
- That the claimant has recovered from the effects of his injury sufficiently enough such as he would be capable of his pre-accident employment in construction.
- "I believe the surveillance tape has established the clmt's [claimant's] functional ability, but I believe WCB should still cover nsaid [non-steroidal anti-inflammatory drug] & analgesic".
Panel Members
R. W. MacNeil, Presiding OfficerA. 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 January, 2005