Decision #58/99 - Type: Workers Compensation
An Appeal Panel review was held on January 19, 1999, at the request of the claimant. The Panel discussed this appeal on January 19, 1999, and again on March 15, 1999.
Whether the claimant is entitled to further wage loss benefits after September 3, 1998, in reference to his work related injury on October 1996.
That the claimant is not entitled to further wage loss benefits after September 3, 1998, in reference to his work related injury on October 1996.
A complete background concerning the details of this case can be found in Appeal Panel Decision No. 250/97 dated December 3, 1997, and will not be repeated in its entirety at this time.
Briefly, the claimant injured his right forearm on October 8, 1996, while employed as a roofer. The diagnosis was reported as a right forearm soft tissue injury and right radial neuritis. On December 30, 1996, the claimant underwent surgery to remove a foreign body from the right wrist which was accepted as a Workers Compensation Board (WCB) responsibility. The claimant received wage loss benefits up to April 3, 1997, when it was determined by primary adjudication, after consulting with a WCB medical advisor, that the claimant had essentially recovered from the effects of his injury without restrictions. This decision was upheld by both the Review Office and the Appeal Commission.
Subsequent file documentation revealed that the claimant returned to work in late May 1997 and continued to experience pain in his right forearm. The claimant was referred to a plastic surgeon and on October 3, 1997, and underwent excision of a neuroma and grafting of the radial nerve. This procedure was accepted as a WCB responsibility.
On January 22, 1998, the plastic surgeon reported that the claimant continued to have pain in his wrist scar and further surgery was suggested to excise the radial nerve. On May 22, 1998, the claimant underwent excision of neuromas and tenolysis of tendons which was authorized by the WCB.
By July 2, 1998, the claimant's scar was well healed and non-tender with full range of movement of the wrist. There was decreased strength grip. The plastic surgeon remarked that the claimant felt he would be unable to return to roofing and that there was tenderness proximal to the scar.
The case was reviewed by WCB medical advisor on August 11, 1998, at the request of primary adjudication. Based on the medical advisor's comments, primary adjudication determined the claimant had recovered from the effects of his compensable injury and compensation benefits were paid to September 3, 1998. This decision was appealed by the claimant and the case was referred to the Review Office for consideration.
In a decision, dated October 6, 1998, the Review Office acknowledged that the claimant had continued to experience tenderness in his right arm and hand after September 3, 1998, and may have some degree of residual neurological impairment. However, based on the weight of medical evidence, the Review Office concluded that the ongoing effects of the work related accident were: unlikely to prevent a resumption of regular work activities by September 3, 1998; did not represent a significant increased risk for further injury or damage from the performance of his regular duties; or had probably improved in comparison to the actual findings in April 1997, when WCB wage loss benefits were first discontinued and the claimant returned to his regular employment. The Review Office concluded therefore that the claimant was not entitled to further wage loss benefits after September 3, 1998.
On November 20, 1998, the claimant appealed the Review Office's decision and a non-oral file review was held on January 19, 1999. Following the review, the Appeal Panel requested additional information be obtained prior to rendering a decision. This information consisted of up-to-date reports from the claimant's treating physicians and physiotherapy clinic, as well as a signed statement from the employer. On February 25, 1999, all parties with a direct interest were provided with the additional information that was received by the Appeal Commission and were asked to provide rebuttal argument. On March 15, 1999, the Panel met to render its final decision.
The preponderance of evidence does not support the claimant's contention that he remained disabled beyond September 3rd, 1998. In arriving at our decision, we attached considerable weight to certain comments made by the claimant's plastic surgeon in a letter to the Appeal Commission, dated February 16th, 1999. The surgeon advised that he had last seen the claimant in November of 1998 at which time the claimant continued to complain of pain in his wrist. He further stated:
"This was essentially unchanged from his previous visit of August 27,1998, at which time, the scar at the surgical site was found to be non-tender. He had full range-of-motion of the wrist. His grip strength was limited by subjective control secondary to pain. Over the course of my dealing with Mr. [the claimant], it became apparent that every time the pain at one site is corrected, he starts to complain of pain more proximally. The site of the original problem appears to be completely pain-free. The scar can be touched without any evidence of tenderness. I do not think there is anything further surgically to offer Mr. [the claimant]. My concern is that the pain will just migrate more proximally. On reviewing the notes from the Physiotherapy Department, they describe his grip strength as being self-limited due to pain."
We find in accordance with the evidence that the claimant has, on a balance of probabilities, recovered from the effects of his compensable injury and that he is capable of performing his pre-accident duties. Consequently, the claimant is not entitled to further wage loss benefits after September 3rd, 1998. Therefore, the appeal is hereby dismissed.
R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
B. Leake, Commissioner
Recording Secretary, B. Miller
R. W. MacNeil - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 12th day of April, 1999