The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on March 22, 2005, at the worker's request. The Panel discussed this appeal on the same day.

Issue

Whether or not wage loss benefits should have been discontinued effective May 31, 2004.

Decision

That wage loss benefits should have been discontinued effective August 9, 2004.

Decision: Unanimous

Background

In December 2003, the worker contacted the call centre at the Workers Compensation Board (WCB) to report injuries to his right elbow, shoulder, neck, arm and back that developed due to the nature of his job duties as a "caster". The worker stated that his difficulties started about six months prior and were progressively getting worse. The accident date was recorded as being November 19, 2003 and was reported to the employer on the same day. Following review of the accident history and medical reports on file, the WCB accepted the claim on the basis of a right elbow, shoulder and neck strain.

On February 23, 2004, the worker attended the WCB's offices for an examination by a WCB medical advisor. Following this examination, the medical advisor concluded as follows:

"…The worker has clear clinical evidence of right lateral epicondylitis with associated brachioradialis muscle involvement causing zones of reference into the hand. The worker also has some muscular discomfort in the trapezius and rhomboids on the right side. There is no evidence today of any neurological complaint or vascular complaint. There is no evidence of brachial plexus involvement. The worker does have evidence of a mild biceps tendonitis and may, in fact, have acromioclavicular arthritis on the right side with no evidence of impingement in the shoulder joint."

The medical advisor then referred the worker to an orthopaedic specialist for a further assessment.

In a March 9, 2004 report to the treating physician, a rheumatologist stated the following after his examination of the worker:

"He has persistent work-related right lateral epicondylitis as well as right shoulder impingement and mechanical neck discomfort with regional myalgias affecting the right trapezius. --- If his symptoms persist beyond even an injection, then he may be a future candidate for surgery for the persistent right tennis elbow, but at this point it is premature to suggest that he would need surgery. The positive rheumatoid factor at the unspecified level is clinically insignificant. There is no evidence for an inflammatory connective tissue disease."

In a report to the WCB dated March 11, 2004, the orthopaedic specialist outlined his examination findings and stated that the worker had a variation of common extensor tendonitis. The specialist commented that much of the worker's pain was in the extensor musculature and that surgical intervention was contraindicated.

On May 18, 2004, the worker was examined by a WCB physiotherapy consultant who stated that her findings were in keeping with the call-in examination of February 23, 2004. The consultant further stated, "It is somewhat difficult to explain the continuation of the worker's symptoms as well as reported deterioration in status over the three month time interval. However, there certainly are objective findings in keeping with the worker's complaints in the absence of any noted abnormal pain behavior."

On July 27, 2004, a WCB medical advisor reviewed a May 31, 2004 surveillance videotape of the worker's activities. Based on this review, he stated, in part, "…it is quite evident the worker is quite functional with his right elbow and forearm. He does not use it (sic) any protective fashion. He is able to do many functions as described in the text with the use of his right arm and hand. Based on reviewing the text of the examinations and also the current video on this worker, this worker should now return to his pre-accident occupation with no restrictions."

On July 30, 2004, primary adjudication notified the worker that based upon the weight of information which included the surveillance videotape, the WCB felt that he no longer had a loss of earning capacity and that wage loss benefits would be paid to July 22, 2004 inclusive and final.

On September 3, 2004, the employer advised the WCB that the worker submitted his resignation as of August 9, 2004.

The employer's advocate presented a submission to Review Office dated September 27, 2004. Given the inconsistencies in reporting by the worker and in his presentations during medical examinations, the employer took the position that the worker was capable of returning to his regular duties by April 5, 2004 (i.e. six weeks after the February 23, 2004 call in examination) or possibly May 18, 2004 (i.e. the date of the WCB physiotherapy call-in examination). Review Office forwarded this submission to the worker for comment. A rebuttal submission was later received from the worker dated October 11, 2004.

On October 22, 2004, Review Office determined that the worker's wage loss benefits should have been discontinued effective May 31, 2004. Review Office stated that the worker's benefits were stopped based on the comments made by the WCB medical advisor who had reviewed the worker's actions on May 31, 2004 on the surveillance videotape. Review Office considered the employer's request to end benefits on April 14, 2004 or May 18, 2004 but believed that the most reasonable decision was to stop wage loss benefits on the date that his documented physical activity showed his being capable of working without restrictions.

On November 8, 2004, the treating orthopaedic specialist examined the worker again for right elbow and forearm pain. Examination of the right elbow showed no obvious deformity. The worker had some tenderness of the common extensor musculature about 4 cm distal to the lateral epicondyle. The lateral epicondyle was not particularly tender. The specialist wondered whether the worker had some degree of myofascial pain component to his symptoms. A referral was suggested to a physiatrist for treatment.

On November 30, 2004, the worker filed an application to appeal Review Office's decision of October 22, 2004 and an oral hearing took place on March 22, 2005.

Reasons

It would appear that the WCB terminated the worker's benefits primarily on the basis of the videotape surveillance without actually having one of its medical advisors physically examine the worker. A review of the medical evidence before and after May 2004 confirms that the worker was experiencing ongoing right arm difficulties. On May 18, 2004, the worker was examined by a physiotherapy consultant to the WCB. She recorded the following comments in her examination notes: "Today's examination reveals significant muscular irritability to the right forearm including palpable taut bands, twitch responses and zones of reference distally. The worker's forearm remains hyperirritable and would not respond well to aggressive exercise at this point." A physiotherapy report dated July 1, 2004 confirmed that any over stress to the worker's forearm easily aggravated his symptoms.

At the hearing both the employer and the worker agreed that the worker's pre-accident job duties were repetitive and heavy especially when the tongs to lift product from the mold were being used. As well, the employer also acknowledged that subsequent modifications with respect to the design of these tongs were made so as to reduce forearm difficulties to future employees.

We reviewed the videotape surveillance and concluded that while the worker was seen using his right arm for completing occasional activities this can in no way lead one to conclude that he would therefore be capable of performing his pre-accident duties over a full work shift. The worker voluntarily resigned his job on or about August 9, 2004 as he could not perform his pre-accident job duties. However, we note that the worker possessed a class 5 building engineer's certificate and that he was able to find full time employment in this field in December 2004 and at a pay rate which exceeded his pre-accident earnings. According to the worker's evidence his building engineer job duties were light in nature, "nothing heavy".

We found no medical evidence on file that would preclude the worker from performing the duties of a class 5 building engineer after August 9, 2004. However, subsequent to his voluntarily choosing to resign his job, the worker decided to take an eight week computer class "to fill in some time". This decision in our view was without question a personal choice and which amounted in a failure to mitigate his loss of earning capacity.

The evidence further discloses the employer did not have modified duties available that were suitable for the worker's condition. Such being the case, wage loss benefits should not have been discontinued effective May 31, 2004. Therefore, we further find that the worker is entitled to ongoing wage loss benefits following the date of termination up to and including the date of his voluntary resignation on August 9, 2004 and not beyond.

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 2nd day of May, 2005