Decision #14/06 - Type: Workers Compensation
Preamble
An Appeal Panel hearing was held on November 30, 2005, at the request of a worker advisor, acting on behalf of the worker. The Panel discussed this appeal on the same day.Issue
Whether or not responsibility for wage loss benefits and medical treatment should be extended beyond August 30, 2004.Decision
That responsibility for wage loss benefits and medical treatment should be extended beyond August 30, 2004.Decision: Unanimous
Background
On February 12, 2004, the worker sustained a compensable injury to her left index finger during the course of her employment activities as a deli clerk. The worker indicated that she was cutting a plastic tab and stabbed herself with the knife she was using. She stated that she had no feeling in her finger and the surrounding area was sore. The description of accident was confirmed by the employer on February 16, 2004.The worker sought treatment for her left index finger on February 12, 2004. The diagnosis rendered by the treating physician was a laceration to the left index finger. Following a further examination on February 16, 2004, the physician changed the diagnosis to neuralgia.
In a report dated March 1, 2004, a neurologist reported that the worker may be developing reflex sympathetic dystrophy [RSD]. He stated that the worker did have a causalgic type of pain that may have originated from the original damage to the digital nerve at the site of the cut.
On June 17, 2004, the worker underwent a bone scan which showed no evidence of RSD affecting the left arm/hand. The report showed "…focal uptake in the right 3rd metacarpal phalangeal joint, possibly degenerative in etiology."
On July 21, 2004, a Workers Compensation Board (WCB) medical advisor examined the worker and found that she had developed significant pain up her left arm to her neck since her left index finger injury. "While it is difficult to relate all of those symptoms to a simple stab wound, it is possible that she has developed an RSD type picture. Although the bone scan was negative, her symptoms and findings are consistent with that diagnosis." The medical advisor indicated that the worker was unfit for work.
In a follow-up report dated August 3, 2004, the treating neurologist indicated that the worker's symptoms were quite similar to those described in his March 1, 2004 letter. Treatment suggestions included an increase in medication and as a last resort, a sympathetic blockade with the assumption that the worker may have sympathetic dystrophy.
During three days in the month of July 2004, a videotape surveillance was carried out to determine the worker's physical capabilities and daily routines. A report concerning the investigation is on file dated August 10, 2004.
On August 23, 2004, the WCB medical advisor who examined the worker on July 21, 2004 reviewed the videotape. Based on her observations of the videotaped activities, the mechanism of injury and the call-in examination findings, the medical advisor considered the worker fit to return to her full time regular duties.
In a decision dated August 24, 2004, a WCB case manager informed the worker that the WCB was not accepting further responsibility for her claim beyond July 28, 2004. The case manager's position was that the worker had recovered from the effects of her work injury based on the weight of evidence which included the medical opinion on file and the surveillance findings. As the worker had already been paid benefits to August 17, 2004 inclusive, the case manger indicated that the file would be forwarded to the WCB's payment department to calculate the overpayment.
On November 4, 2004, a worker advisor asked the WCB to reconsider its decision based on a report from the worker's treating physician dated November 1, 2004. The worker advisor indicated that the worker was advised by her doctor to be as active as possible and that the worker has both good and bad days. It was suggested that the videotape evidence was not conclusive of recovery as was concluded by the WCB. He noted that the worker had an upcoming medical appointment and that the WCB should obtain the report.
In a report dated November 9, 2004, the attending anesthesiologist stated that the worker was suffering from a complex regional pain syndrome and a treatment plan was outlined.
On November 16, 2004, the case manager referred the file to a WCB medical advisor to review the new medical information. The medical advisor felt that there was no new objective evidence provided in the medical information that would change her previous opinion. The medical advisor commented that a significant part of RSD is severe constant pain and the affected area is usually very sensitive to any touch, even from clothing or a light breeze. She stated that this was not demonstrated on the surveillance and therefore a diagnosis of RSD could not be made. She stated that the effects from the compensable puncture wound had long since resolved.
On January 12, 2005, a WCB physical medicine and rehabilitation consultant reviewed the file information at the request of the case manager. In part, the consultant indicated there was no evidence for a current diagnosis and no evidence of any impairment. He suspected that the prior reported impairment had resolved.
In a letter to the worker advisor dated February 1, 2005, the WCB case manager indicated that she was unable to change her original decision as the evidence did not support that the worker was totally disabled from work. On February 8, 2005, the worker advisor appealed the decision to Review Office.
On February 17, 2005, Review Office indicated that the worker showed no pain behavior over the three days of surveillance and demonstrated a fully functional left hand which was used for numerous activities. It agreed with the position taken by the WCB medical advisor that if the worker truly had RSD, she would have had pain on the left index finger simply by coming into contact with anything. Review Office noted that the bone scan was negative which did not support the contention that the worker had an active RSD. Review Office felt that the worker should receive wage loss benefits up to and including August 30, 2004 instead of August 17, 2004 (i.e. one week post the date of the August 24, 2004 decision letter) which was in keeping with normal WCB procedure. As such, the extension of wage loss benefits to August 30, 2004 eliminated the overpayment.
The worker advisor provided a further report from the treating anesthesiologist dated May 3, 2005.
On June 8, 2005, the WCB medical advisor who had examined the worker in July 2004, indicated that she reviewed the new medical report and felt there was no new medical information to change her previous opinion.
Due to the inconsistencies demonstrated between the worker's presentation on July 21, 2004 as compared to the videotape evidence, Review Office felt that the new medical information did not provide grounds to rescind its previous decision. On August 18, 2005, the worker advisor appealed Review Office's decision and an oral hearing was arranged.
Reasons
The issue before the Panel is whether responsibility for wage loss benefits and medical treatment should be extended beyond August 30, 2004. During the course of the appeal, it was noted that the worker's benefits were paid to August 30, 2004 as per Review Office's decision of February 17, 2005. Accordingly, the Panel has amended the issue to reflect this date.For this appeal to succeed, the Panel must find that the worker continues to have a loss of earning capacity beyond August 30, 2004 due to the compensable injury and that the medical treatments are required as a result of that injury. The Panel did reach this conclusion. The Panel finds that the responsibility for wage loss and medical treatment should be extended beyond August 30, 2004.
Evidence and Argument at Hearing
The worker attended the hearing with a worker advisor who made a presentation on her behalf. The worker answered questions posed by her representative and the Panel.
The worker described the accident and the resulting injury and symptoms. She also described the various treatments that she received.
The worker addressed the issue of the surveillance that was conducted by the WCB in July 2004. She noted the activities that were shown on the surveillance video and stated that "…I did nothing wrong. I'm trying to use my arm. Actually one of my exercises at physio was carrying a can in my left hand in a bag and walking with it, trying to swing."
The worker described her pre-accident duties as a deli clerk. She was in charge of making all the hot meals, working in the cooler, scrubbing and peeling potatoes in tubs of cold water, lifting supplies, and cutting meat.
The worker advised that she initiated a return to work to lighter duties in December 2004. She asked her employer to accommodate her and consulted her family doctor who provided a note for her return to work. The worker stated that she is continuing to work full time at these duties but continues to have symptoms related to the injury.
When asked what changed between the summer of 2004 and December 2004 when she returned to work, the worker responded that the pain clinic helped her. She had four treatments in November 2004 before she returned to work and had also done a lot of exercises. She indicated that she could not have performed modified duties at an earlier date.
The worker's representative referred to medical reports which support the worker's contention that she continues to exhibit symptoms and has not recovered from her compensable injury. With respect to the surveillance video the representative commented that it does not demonstrate that the worker had fully recovered and is capable of performing her pre-accident duties.
Analysis
The Panel has considered the entire file, including the evidence provided at the hearing, and finds, on a balance of probabilities, that the worker had not recovered from the compensable injury by August 2004 and continued to suffer a loss of earning capacity due to the injury. Accordingly responsibility for wage loss benefits and medical treatment should be extended beyond August 30, 2004.
In arriving at this decision, the Panel notes and relies upon the opinion of the treating neurologist, the treating physician and the treating anesthesiologist.
- the treating neurologist, in a report dated September 13, 2004, confirms his opinion that the worker is suffering from RSD. In another report of the same date he notes that he considers the worker to be disabled from work.
- the treating physician reported on November 1, 2004 that:
"The patient is disabled from abusive use of her left hand such as holding, grasping, pulling, and pushing. No use of power tools/utensils, no exposure to vibrations, and no exposure to termperature changes, all of the above will exacerbate her symptoms. Dr. [neurologist] diagnosed Ms. (the worker) as having RSD."
- the treating anesthesiologist examined the worker and notes in a November 9, 2004 report that:
"On physical examination her hand was mottled and cool with excessive perspiration on the palmar surface. There was bluish discoloration. There was marked swelling of the interphalangeal joints and limitation in the range of motion. She has some trophic changes involving her hand."
The Panel accepts the worker's evidence at the hearing and in particular her evidence that her pain can vary from day to day. The Panel notes that she has consistently described her symptoms. The Panel also notes that the worker pursued treatment after her benefits were discontinued and ultimately arranged a return to lighter duty employment with her pre-accident employer.
The worker's appeal is allowed.
Panel Members
A. Scramstad, Presiding OfficerA. Finkel, Commissioner
M. Day, Commissioner
Recording Secretary, B. Miller
A. Scramstad - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 19th day of January, 2006