The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on April 20, 2005, at the request of an advocate, acting on the worker's behalf. The Panel discussed this appeal on the same day.

Issue

Whether or not the worker's entitlement to vocational rehabilitation assistance (defined as wage loss and/or services) should have been suspended subsequent to October 25, 2002; and

Whether or not the worker has a total loss of earning capacity beyond May 28, 2003 due to his wrist injury.

Decision

That the worker's entitlement to vocational rehabilitation assistance (defined as wage loss and/or services) should have been suspended subsequent to October 25, 2002; and

That the worker does not have a total loss of earning capacity beyond May 28, 2003 due to his wrist injury.

Decision: Unanimous

Background

This case was previously the subject of an Appeal Panel hearing where it was determined the vocational rehabilitation plan of retraining the worker as a ward clerk was appropriate. For complete details of the case leading up to this issue, please refer to Appeal Commission Decision No. 07/05 dated January 5, 2005.

As a brief background, the worker was diagnosed with an acute ganglion to his left wrist following a work related accident that occurred on January 28, 1993. On April 29, 1998, the worker was involved in another work related accident and injured his right shoulder and was diagnosed with a rotator cuff tear. As it was determined that the injury precluded the worker from returning to his pre-injury occupation as a hospital nursing assistant, the worker was provided with vocational rehabilitation assistance.

On October 15, 2002, the worker was advised that the WCB was suspending his benefits as of October 25, 2002, as it was felt that he had not fully cooperated in his vocational rehabilitation plan which was outlined in the Individualized Written Rehabilitation Plan (IWRP) dated February 6, 2002.

In late March 2003, the worker underwent a left volar wrist ganglion excision. In a follow-up report dated April 7, 2003, the treating surgeon indicated that the worker's left wrist was still tender and bruised. On April 17, 2003, a WCB medical advisor was asked to review the operative report and to comment on whether or not the worker would be capable of participating in a VR plan that involved some computer work and written work. The medical advisor answered "yes".

On April 17, 2003, a WCB case manager advised the worker that he would be paid full wage loss benefits from the date of surgery to April 18, 2003 inclusive. The case manager considered that as of this date, the worker was capable of participating in the vocational rehabilitation plan; however, as the plan had been terminated for non-participation, the worker had no entitlement to wage loss benefits.

In a follow-up report dated May 12, 2003, the treating surgeon noted that the worker had persistent swelling and pain involving the lateral cutaneous nerve of his forearm. The surgeon recommended that the wrist be rested until such time as resolution had taken place.

In late May and early June 2003, video surveillance of the worker's activities took place.

In a decision dated June 17, 2003, a WCB case manager noted that the video surveillance showed the worker opening and closing his vehicle door with no hesitation or evidence of pain. This confirmed to the case manager that the worker was physically capable of participating in his vocational rehabilitation program.

On June 23, 2003, the treating surgeon reported to the WCB that the worker's neuromatous pain had not resolved and that he should "rest this wrist which means that at this moment in time he is capable only of work with his right hand".

On August 25, 2003, the treating surgeon noted that the worker's wrist was still tender and he still had neuromatous pain on certain movements. Further surgery was recommended.

On November 24, 2004, the worker underwent a "left radial sensory nerve neuroma, excision, and nerve segment burial". Financial responsibility for this surgery was accepted by the WCB.

In March 2004, the worker's advocate appealed the WCB's decision to suspend the worker's benefits as of October 25, 2002 to Review Office. The advocate referred to various medical reports on file received from the worker's treating physicians and psychologist. He concluded that the worker was incapable of performing many of the responsibilities outlined in the ward clerk position and asked the WCB to design a vocational rehabilitation plan that better accommodated the worker's capabilities/restrictions and to reinstate his wage loss benefits as of October 25, 2002.

On July 7, 2004, Review Office rendered several decisions with respect to the worker's 1993 and 1998 claims. In particular, Review Office determined that the worker was not entitled to vocational rehabilitation assistance after October 25, 2002 and that he was entitled to full wage loss benefits from April 19, 2003 to May 28, 2003 on his 1993 left wrist claim. With respect to the first decision, Review Office agreed with the WCB's decision to suspend the worker's wage loss benefits in October 2002. It stated that doing so was consistent with WCB policy 44.80.30.20, Post Accident Earnings - Deemed Earning Capacity and policy 44.10.30.60, Practices Delaying Worker's Recovery.

With regard to further wage loss benefits following the March 2003 wrist surgery, Review Office considered the reports submitted by the treating surgeon in May and June 2003 which stated that the worker was not capable of using his left hand. Review Office also considered the videotape surveillance taken between those dates. Review Office noted that the worker was riding his motorcycle in August 2003 which activity required the use of both hands. Based on these factors, Review Office felt that the worker was not capable of performing the ward clerk position up until the date of the surveillance which found the worker engaged in activities using his left wrist, i.e. May 29, 2003. Review Office therefore determined that the worker was entitled to full wage loss benefits from April 19, 2003 to May 28, 2003 inclusive.

In March 2005, the worker's advocate appealed Review Office's decisions that the worker was not entitled to vocational rehabilitation assistance subsequent to October 25, 2002 and that he did not have a total loss of earning capacity due to his wrist injury. On April 20, 2005, an oral hearing took place to consider the two issues.

Reasons

The worker advanced the argument that his left wrist/ganglion difficulty was the primary factor in his inability to participate fully in the vocational rehabilitation plan in 2002, and therefore the WCB's suspension of the vocational rehabilitation plan in October of 2002 was inappropriate. We carefully and thoroughly reviewed the file documentation to find corroborating evidence in support of the worker's assertion.

In carrying out this exercise, we came across several memorandums documenting weekly meetings between the worker and his vocational rehabilitation consultant throughout 2002 wherein the worker described numerous pain complaints and barriers to his completing his retraining program. However, nowhere in these documents was there any mention by the worker of ganglion or wrist issues as being an impediment or areas of pain complaint. On the contrary, all references to any physical distress were directed to back and neck complaints together with difficulties in sitting.

We therefore find based on the weight of evidence that the worker's left wrist was not, on a balance of probabilities, a factor affecting his ability to accomplish the vocational rehabilitation plan or in its eventual suspension. Also, we note a previous Appeal Panel determined on January 5, 2005 that the vocational rehabilitation plan of retraining the worker as a ward clerk was appropriate and that the worker's continuing left wrist difficulties were not, on a balance of probabilities, significant enough to prevent the worker's continuing with his IWRP (individualized written rehabilitation plan). The evidence confirms that the worker was not willing to participate fully in the IWRP given his sporadic attendance at the training institute. We further find that the worker's entitlement to vocational rehabilitation assistance (defined as wage loss and/or services) should have been suspended subsequent to October 25, 2002.

With respect to the second issue under appeal, the worker and his advocate clarified that they were seeking a determination that the worker experienced a total loss of earning capacity from May 28, 2003 to November 24, 2004 being the date of his fourth surgery.

After the worker's third surgery, the medical evidence received on file from the treating surgeon advised that the worker should rest his left hand and that he was able to use his right hand. However, there was no medical evidence to support the contention of total disability throughout this period of time. In addition, the worker testified that he licensed and rode a large and heavy motorcycle in the summer of 2003 and again in July and August of 2004. We are satisfied that the activity of operating a motorcycle requires considerable use of the left hand and wrist and that such activity is not consistent with the worker's assertion of total disability or of a total inability to work during the period of time in question. The worker also indicated that between his third and fourth surgeries his sole difficulty was a painful left wrist and that his right shoulder, lower back and neck were not causing any problems. These right shoulder, lower back and neck complaints were symptoms arising at the time of the compensable injury. However, these symptoms have long since resolved and as determined by the previous Appeal Panel, did not prevent the worker from continuing with his IWRP.

Based on the weight of evidence we find that the worker did not, on a balance of probabilities, have a total loss of earning capacity beyond May 28, 2003 due to his wrist injury. Accordingly, the worker's appeal of the two issues 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 14th day of June, 2005