The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel review was held on October 23, 1998, at the request of the claimant. The Panel discussed this appeal on October 23, 1998, and January 4, 1999.

Issue

Whether the claimant is entitled to further wage loss benefits after July 3, 1998, in respect of her work related accident in December 1997.

Decision

That the claimant is not entitled to further wage loss benefits after July 3, 1998, in respect of her work related accident in December 1997.

Background

While employed as a food service worker on December 27, 1997, the claimant stated that she slipped on a freshly washed floor and slammed her left side/ribs into a dough mixing machine. The claimant indicated that she used her left arm to break the fall and in the process twisted and over-extended her arm. In addition, the claimant stated that she banged her head. When seen on the same day at the emergency room of a local hospital a diagnosis of soft tissue injuries was identified.

On December 29, 1997, x-rays were taken of the left shoulder. These showed no evidence of calorific tendonitis but, degenerative changes of the AC joint were noted. The left ribs showed no fracture with minimal degenerative changes in the dorsal spine. The attending physician diagnosed a bruised left shoulder and left ribs and recommended rest, ice and analgesics. The claim was accepted as a Workers Compensation Board (WCB) responsibility and benefits commenced December 28, 1997.

A bone scan performed on January 14, 1998, revealed rib fractures on the left side.

The attending physician referred the claimant to an orthopaedic specialist regarding her left shoulder. He was concerned that the claimant may have a rotator cuff injury.

The orthopaedic specialist reported to the attending physician on March 12, 1998, that the claimant had a rotator cuff injury to her left shoulder but, was not sure if it was a full thickness tear. He indicated that the claimant refused a cortisone injection and that a referral was being made for physiotherapy treatments.

A progress report received from the attending physician, dated April 15, 1998, indicated that the claimant seemed to be making headway with physiotherapy and that conservative management of her rib injury was indicated. The claimant exhibited tenderness about the subacromial area of the left shoulder and left thoracic discomfort was decreased. On April 24, 1998, the attending physician reported that the claimant was capable of light work which did not include lifting, overhead work and that she would need the ability to change her posture and rest frequently.

Subsequent file information included a report from a WCB medical advisor outlining his examination findings of the claimant on June 23, 1998, and a surveillance video. Based on this information, the claimant was notified on July 10, 1998, that the WCB considered her recovered from the effects of the December 27, 1997, work injury and that wage loss benefits would end on July 3, 1998. The claimant appealed this decision to the Review Office.

In a decision, dated July 31, 1998, the Review Office confirmed that the claimant was not entitled to wage loss benefits after July 3, 1998. Review Office believed there was, on a balance of probabilities, sufficient evidence to indicate that the claimant had misrepresented the extent of the ongoing symptoms associated with her work related accident and that she had misrepresented any ongoing functional restrictions which may have persisted by June 1998. Review Office further considered that there was little if any objective clinical evidence or finding to indicate the claimant had not recovered from her work related injuries by July 1998.

On August 7, 1998, the claimant appealed the Review Office's decision to the Appeal Commission.

Subsequent to the claimant's filing her appeal, additional medical information was received from the orthopaedic specialist, dated October 5, 1998. Briefly, the specialist reported that the claimant continued to complain of pain, weakness and reduced function of the left shoulder and that an arthrogram showed a full thickness rotator cuff tear. The specialist suggested surgery to repair the rotator cuff if the claimant still had significant pain by mid winter.

On October 23, 1998, a non-oral file review was held at the Appeal Commission following which the Appeal Panel requested additional information. Specifically, the Panel requested:

• a copy of the claimant's job description from the employer; and
• that the job description and surveillance video of the claimant's activities be forwarded to the treating orthopaedic surgeon for opinion/comments.

On December 10, 1998, the orthopaedic specialist provided responses to specific questions posed by the Appeal Panel and the report was forwarded to the claimant and her representative for comment. On January 4, 1999, the Appeal Panel met and discussed the case which included comments from the claimant's advocate dated December 22, 1998.

Reasons

As the background notes indicate, the claimant appealed the Review Office's decision that she was no longer entitled to the payment of wage loss benefits beyond July 3rd, 1998. The claimant contends that she remained totally disabled beyond this date and unable to "... resume regular employment activities without any risk of further injury or damage to my left side, arm or shoulder." After having reviewed and considered all of the evidence, including a surveillance video tape, we reached the conclusion that the claimant did not continue to sustain a total loss of earning capacity past the date on which the benefits were terminated. In fact, we found, in accordance with the weight of evidence, that the claimant had, on a balance of probabilities, sufficiently recovered from the effects of her compensable injury by this date to resume her pre-accident duties.

The claimant was examined by a WCB orthopaedic consultant on June 23rd, 1998. In his examination notes, the orthopaedic consultant recorded the following observations and comments:

"It has been 6 months since she injured herself in the workplace. She presents with many areas of inconsistencies regarding her physical examination, and many of these defy anatomy. Regarding her shoulder, she displayed varying degrees of range of movement and complained of pain in a nonanatomical orientation during many of her orthopaedic tests for her wrists and hands and well as (sic) her shoulder. There is no wasting of her shoulder girdle musculature and, in particular, she shows no evidence of glenohumeral or scapulothoracic irregularity which one would suspect with someone who can barely lift their arm beyond mid-range. It is my view that the claimant likely has recovered from any effects of any fall which had occurred in the workplace, and I am not able to explain, on the basis of any injury, any correlation to her workplace event."

The video tape surveillance of the claimant was conducted over the course of the first two days of July 1998. The claimant was observed performing several activities including: shaking bath mats and hanging them over a fence; pulling a garden hose from the backyard to the front yard; watering plants with a hose and watering can; picking up large flower pots to drain water.

The employer provided the Appeal Panel with a description of the claimant's job duties. As a busser, the claimant would be required to bus tables, push in chairs and straighten tables, pick-up garbage, clean high-chairs and return them to stations and wipe down bus carts. The employer further advised that bussing required frequent bending and stooping but did not require the employee to work in awkward positions. These activities would be performed at fairly constant intervals and require the use of both arms.

We note that the claimant voluntarily withdrew from the workforce. Prior to her compensable injury, the claimant accepted a retirement package that had been offered by the employer and that the effective retirement date was February 28th, 1998.

Prior to making a decision with respect to this case, we requested the treating orthopaedic surgeon to review the claimant's job description as well as the surveillance video. Several of the physician's comments are noteworthy:

"Throughout the video there was no evidence that she was guarding the left shoulder. There was no evidence that she was selectively using the right arm to spare the left shoulder. Although most of the activity was below the shoulder level, she did a considerable amount of reaching, holding and positioning the left arm in space, without showing evidence that the left shoulder was significantly restricted in range by pain or weakness. However, given her relative ease of performing the light work noted in the tape, and her lack of desire for further treatment, does tend to suggest to me that this is not a totally disabling rotator cuff tear. The job description, as described, does show some ability to accommodate an individual who does have a rotator cuff tear."

Based on the foregoing body of evidence, we find that the claimant is not entitled to further wage loss benefits after July 3rd, 1998, in respect of her work related accident in December 1997. Accordingly, the claimant's appeal is hereby dismissed.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
R. Frisken, Commissioner

Recording Secretary, B. Miller

R. W. MacNeil - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 19th day of February, 1999