Decision #91/99 - Type: Workers Compensation
An Appeal Panel hearing was held on May 13, 1999, at the request of legal counsel, acting on behalf of the claimant. The Panel discussed this appeal on May 13, 1999.
Whether the claimant is entitled to payment of any wage loss benefits beyond April 24, 1998.
That the claimant is entitled to wage loss benefits on a partial basis retroactive to April 24, 1998; and
That the claimant is entitled to full benefits for the duration of the rehabilitation program recommended by the Medical Review Panel psychiatric consultant.
During the course of his employment on March 23, 1995, the claimant, a machine operator, twisted his left wrist when opening a manual choke. The initial diagnosis was reported as a left wrist strain and a ganglion. Subsequent to the accident, the claimant was assessed on several occasions by Workers Compensation Board (WCB) medical personnel and by a number of physicians. For complete details of the case, please refer to Appeal Panel Decision No. 169/97 dated July 30, 1997.
File information noted that the claimant returned to work on October 28, 1996, at reduced hours with the employer.
On September 18, 1997, an orthopaedic specialist responded to a WCB adjudicator's request for additional information. Briefly, the orthopaedic specialist diagnosed the claimant's condition as being multiple-chronic left wrist strain of the muscles and ligaments involving the left wrist joint, tenosynovitis of the radial left flexor tendons, mild left carpal tunnel syndrome, and residual myofascial pain syndrome of the wrist extensors and flexors with myofascitis. The specialist commented that the claimant was presently working at the same job as he had prior to the accident and that he could only work for approximately four hours per day, because the pain prevented him from working further.
The claimant was examined at the WCB offices on November 26, 1997, by a neurology consultant, as well as by a medical advisor. The neurologist could find no evidence of any objective neurological abnormality or neurological impairment. There was no indication for further intervention or investigation from a neurological perspective. The neurologist felt the claimant should be encouraged to use his hands in a normal fashion.
The examining medical advisor recorded that the claimant continued to be irritated with respect to his left wrist and that he experienced pain on almost all movements. The medical advisor later discussed the case with a WCB adjudicator on December 4, 1997, and provided the following opinions:
- the claimant aggravated a pre-existing bilateral condition of the wrist which has now long since recovered. The claimant only injured his left wrist at the time of the compensable injury and was currently displaying the same symptoms in both wrists.
- the claimant would not require any restrictions as a result of the compensable injury and was currently not suffering from the effects of the compensable injury.
- the claimant believed that he was more impaired than the findings would suggest as the claimant did not react to various examinations when he was distracted.
The claimant subsequently laid off work on December 22, 1997, stating that he could not stand the pain any longer and that his doctor advised him to remain off work.
On January 26, 1998, a WCB occupational therapist visited the claimant's work site to view the light duty position and his pre-accident duties. On February 4, 1998, the WCB occupational therapist documented her findings.
The case was reviewed by a WCB medical advisor at the request of primary adjudication on March 4, 1998. Based on the medical advisor's comments, primary adjudication wrote to the claimant on March 20, 1998, and stated, in part, the following:
- "...the injury sustained at the time of the compensable injury was a sprain/strain injury which, at this time, would not be the basis for your ongoing problems. The medical advisor indicates that information on file, including bone scans performed, showed indications of bilateral degenerative changes in both wrists. These degenerative changes would be considered a pre-existing condition and not related to the March 23, 1995, compensable injury. The medical advisor also indicated that arthritis was detected two months following the compensable injury in 1995 and it would not be possible for arthritis to have set in at this early of a date in direct relation to the compensable injury two months prior."
Primary adjudication concluded that the claimant had recovered from the effects of the compensable injury and that he would be considered capable of resuming full regular duties at full time hours effective May 4, 1998. It also concluded that the compensable accident was not considered to be contributing to a material degree to a loss of earning capacity and thus there was no basis to extend partial wage loss beyond April 24, 1998. Partial wage loss would be paid based on a return to work schedule. Effective April 27, 1998, the claimant would be back at full-time hours.
On October 30, 1998, a solicitor acting on behalf of the claimant, provided new and additional medical information from the attending physician, dated September 15, 1998. This information did not change primary adjudication's previous decision and the case was then referred to the Review Office for consideration. On November 13, 1998, the Review Office requested a Medical Review Panel (MRP) be convened in accordance with section 67(3) of the Workers Compensation Act (the Act). On February 15, 1999, an MRP was held and all interested parties were provided with a copy of the MRP's findings.
Following distribution of the MRP findings to all interested parties, the claimant's solicitor wrote to the Review Office on March 5, 1999, and noted the MRP's responses to various questions. Based on the MRP's responses, the solicitor contended that the claimant had not recovered from his workplace injuries by April 1998, and therefore was entitled to further benefits.
On March 5, 1999, the Review Office determined that the claimant was not entitled to payment of any wage loss benefit beyond April 24, 1998. The Review Office paid particular attention to the MRP's findings with regard to the claimant's bilateral upper extremities. As well, Review Office noted the following:
- that although the MRP felt the claimant may not have recovered from the full affects of the compensable accident, there was no nerve injury sustained in the accident of March 23, 1995, and that an exact diagnosis could not be ascertained from the record.
- the MRP noted 11 diagnoses which had appeared on the record. The Panelists were unable to support any of the diagnoses as explaining the claimant's restricted use of his left hand and arm.
- the Panelists agreed that the claimant did not present with a classic myofascial pain syndrome;
- the Radiologist Consultant at the MRP commented that none of the examinations revealed evidence of any injury and that any changes seen were age-related.
- the Panelists agree that there was evidence that the left hand was presently being used.
The Review Office accepted the report of the MRP. Review Office was satisfied that the claimant had been using his left hand as confirmed in the examination notes of the MRP. Review Office was also satisfied that the claimant was not disabled by reason of the compensable injuries sustained on March 23, 1995. Therefore the claimant was not entitled to payment of any wage loss benefit beyond April 24, 1998.
In March 1999, the solicitor appealed the Review Office's decision and an oral hearing was held on May 13, 1999.
This case was the subject of a previous Appeal Panel decision (No. 169/97) in which it was decided that the claimant had not fully recovered from the effects of his compensable injury and that he was entitled to continued wage loss benefits together with appropriate vocational rehabilitation services. In his appeal presentation, the claimant's legal counsel alleged that the claimant was still experiencing a total loss of earning capacity and therefore entitled to the reinstatement of benefits on a retroactive basis to the date of termination.
We find the evidence fails to support the suggestion that the claimant has a total loss of earning capacity. In this regard, we note that the claimant was capable of working for four hours per day prior to his layoff and benefit termination. In addition we took into consideration several comments and observations recorded by the MRP in its examination notes of February 15th, 1999:
- "The Panelists agree that there is evidence that the left hand is presently being used."
- "A significant psychological overlay to his experience of pain is evident."
- "The Panelists are unable to find any evidence of organic rather than functional disease."
- "The Panelists note that the following diagnoses have appeared on the record: Bilateral degenerative process of the carpal joints, Tendonitis, Tenosynovitis, Synovitis, Wrist sprain, Arthritis, Post traumatic degenerative joint disease, Degenerative changes, Repetitive strain of the wrist joint, Ligamentous and soft tissue injuries, Residual myofascial pain syndrome. The Panelists are unable to support any of the above diagnoses as explaining Mr. [the claimant's] restricted use of his left hand and arm."
- "The Panelists agree that as of the time of benefits being ended on April 24, 1998 there remains evidence that Mr. [the claimant] had developed chronic pain, left upper extremity secondary to disuse and at that time had probably developed Chronic Pain Syndrome."
- "The Panelists have agreed that he had not recovered from the effects of his accident at that time. [ie. date of termination of benefits]
- "The Panelists consider that Mr. [the claimant] has not been effectively rehabilitated."
As the claimant made no attempt to mitigate his situation following the termination of his benefits, we are not predisposed to reinstate full wage loss benefits retroactively to the date of termination. However, as the evidence confirms that the claimant had not fully recovered and that he was capable of working at least four hours per day, we consider the claimant is entitled to partial wage loss on a retroactive basis. In addition, we endorse the recommendations made by the Psychology Consultant to the MRP: "For Mr. [the claimant] to be able to resume full time employment in any position he is likely to require an intensive rehabilitation programme of physiotherapy, psychoeducational treatment for chronic pain and work hardening." The claimant's entitlement to full benefits during the rehabilitation process is, of course, contingent upon his full and active participation.
R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
B. Malazdrewich, Commissioner
Recording Secretary, B. Miller
R. W. MacNeil - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 17th day of June, 1999