The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on March 20, 2002, at the request of a worker advisor, acting on behalf of the claimant. The Panel discussed this appeal on March 20, 2002.

Issue

Whether or not the worker is entitled to wage loss benefits beyond July 23, 1999; and

Whether or not the worker is entitled to further vocational rehabilitation services.

Decision

That the worker is entitled to wage loss benefits beyond July 23, 1999; and

That the worker is entitled to further vocational rehabilitation services.

Decision: Unanimous

Background

While employed as a customer service and cashier clerk on September 14, 1997, the claimant sustained a compensable fracture of the right radius and ulna when she slipped and fell placing her right arm out to stop from falling.

On February 10, 1998, a plastic surgeon reported that the claimant’s fractured right distal radius was treated with open reduction and internal fixation and that her postoperative course was complicated by reflex sympathetic dystrophy (RSD). The claimant continued to receive aggressive physiotherapy and splinting and was being managed at the Pain Clinic. Clinical examination showed a significant reduction in range of motion of all digits and the wrist. Pronation and supination of the forearm were limited. The claimant had a frozen shoulder. The surgeon was of the opinion that the claimant may have some permanent pain and stiffness to the involved upper extremity.

In an up-dated report of May 29, 1998, the above specialist noted that the claimant’s hand and wrist still remained significantly stiff. There was moderate swelling in the hand and it remained very cold. The IP joints were stiff to some degree on passive range of motion. X-ray examination confirmed the presence of a volar T plate and the fracture appeared healed. The specialist noted that the RSD component of the wrist may take a number of months to settle down and that the claimant would have some degree of permanent stiffness and pain to her hand. The claimant was to avoid any form of repetitive activity with the right hand such as lifting or gripping activities.

On August 10, 1998, a WCB medical advisor assessed the claimant. The medical advisor felt that the claimant’s condition had improved significantly in terms of range of movement of the right shoulder along with improvement in the range of movement of the right wrist and fingers. He agreed with the treating specialist that the claimant may have some residual stiffness. The medical advisor believed there may be some tethering of the flexor and extensor muscle tendon causing the fingers stiffness. The claimant was found not totally disabled and could perform sedentary work. Restrictions were outlined to avoid repetitive movement and heavy lifting of more than 5 pounds and that the restrictions should be in place for 3 to 6 months.

In a November 3, 1998 report, the plastic surgeon indicated that the claimant had some degree of tenosynovitis of the 1^st and 2^nd extensor compartments and that she was given an injection into each compartment to help alleviate some of her symptoms. The claimant had been discharged from physiotherapy as there had been no significant improvement. The specialist commented that the claimant’s pain and loss of motion was going to be permanent.

On December 21, 1998, the WCB determined that the claimant was fit to perform some form of work with the restrictions of avoiding repetitive movement (gripping and turning) with the right hand and lifting greater than 5 pounds.

In February 1999 the claimant commenced a return to work program as a file clerk. The duties of this position entailed running reports through a bursting machine, stapling of reports, interfiling reports and filing of invoices into cabinets.

Subsequent reports showed that the action of filing reports into filing cabinets caused the claimant pain and swelling in her wrist. In a February 26, 1999 memo to file, a vocational rehabilitation consultant (VRC) documented that a WCB rehabilitation specialist visited the work site. The claimant was shown certain techniques on how to modify the work. In a further memo dated March 3, 1999, the VRC noted that the claimant tried to apply the techniques to modify the work, but was still in a great deal of pain. On April 9, 1999, the claimant advised the VRC that she did not feel the position was appropriate given her physical limitations.

In May 1999, a WCB physical medicine and rehabilitation consultant assessed the claimant. His impression from clinical examination suggested that the claimant’s prior chronic regional pain syndrome had likely resolved and that there was no significant de Quervain’s tenosynovitis present. There was, however, restriction in range of movement at the wrist, distal forearm and fingers. The consultant remarked that the claimant would likely require permanent restrictions with respect to her right upper extremity and that arrangements should be made to return her to work duties within her restrictions.

On June 10, 1999, the VRC noted that she had spoken with the above WCB consultant and that it was his opinion the alternate position provided to the claimant by the employer was within her capabilities and restrictions.

In a memo to file dated July 14, 1999, the VRC noted that the claimant had been advised of the WCB’s position the file clerk job was within her restrictions and that the job was still available to her. In a later telephone conversation with the VRC, the claimant indicated that she could not perform the job as it was outside of her restrictions. The VRC concluded by saying that as of July 24, 1999 benefits would be discontinued because of the claimant’s non-participation in the proposed return to work plan.

On October 26, 1999, a worker advisor contended that the alternate work position provided by the employer was unsuitable for the claimant in view of her restrictions. He requested benefits be reinstated on a retroactive basis and that a proper rehabilitation plan be developed and implemented. In support of his position, the worker advisor referred to a report received from the plastic surgeon dated September 29, 1999. On December 16, 1999 the worker advisor was informed by primary adjudication that no change would be made to its previous decision as it was still the WCB’s view that the filing clerk position was within the scope of the claimant’s restrictions.

In May 2000, a submission was received from the worker advisor appealing the decisions of vocational rehabilitation and primary adjudication dated July 14, 1999 and December 16, 1999. Included with the appeal was a report dated March 28, 2000 from the treating plastic surgeon.

On July 14, 2000, Review Office determined that the claimant was not entitled to wage loss benefits subsequent to July 23, 1999 and that she was not entitled to further vocational rehabilitation services. Review Office based its decision on the results of a functional capacity evaluation that the claimant had undergone in June 2000. Review Office was of the opinion that the weight of evidence did not support the claimant’s contention that she could not perform the work offered to her by her employer.

On June 27, 2001, the worker advisor submitted additional medical reports for consideration by Review Office. The worker advisor contended that the claimant had not been given the appropriate rehabilitation services necessary for her to regain her pre-accident earning capacity. He was also of the view that the weight of medical evidence showed that the claimant was unable to perform the type of work made available by the accident employer.

In a decision dated October 19, 2001, Review Office confirmed its previous decisions, i.e. that the claimant was not entitled to wage loss benefits subsequent to July 23, 1999 and that there was no entitlement to further vocational services. Review Office based its decision on the following rationale:

“….the weight of medical information on file regarding the return to the modified duty employment in 1999 did not, as stated in policy 43.20.20.01 Modified/Alternate Work Programs, ‘establish a material risk of a negative impact on the worker’s health.’ On the contrary, the Physical Medicine and Rehabilitation Consultant to the Board suggested on September 27, 1999 that it was ‘extremely important she increase use or her arm gradually and maintain some use of the right arm in employment despite being symptomatic.’”

“….the claimant’s functional capacity and the modified employment complemented each other particularly if the task modifications suggested by the occupational therapist were followed.”

“….a valid job existed with the employer from the date of the accommodation until recently as reported by the employer. Review Office considers that ongoing participation in the work by the injured worker was reasonable given the injured worker’s post-injury physical capabilities at the time of the accommodation. It follows that the loss of earning capacity has reasonably ended and further vocational services are not to be provided.”

On February 7, 2002 the worker advisor appealed Review Office’s decision and an oral hearing was convened on March 20, 2002.

Reasons

As a consequence of her compensable injury, the claimant has been assigned permanent restrictions of avoiding repetitive movement such as gripping and turning with her right hand and of avoiding lifting over 5 pounds with her right hand. By no means is the claimant totally disabled. We find based on the weight of evidence that the claimant is capable of performing full-time work within her restrictions with an earning capacity of at least minimum wage level.

We note that a graduated return to work program was developed for the claimant in 1999 and that a few of her work duties may not have been entirely within the scope of her permanent physical restrictions. However, it should also be acknowledged that since the termination of her WCB benefits, the claimant has demonstrated little or no initiative in attempting to secure suitable employment, which respects her permanent restrictions.

In keeping with section 22 of the Act, we are of the opinion that the wage loss to which the claimant would ordinarily be entitled following the premature cancellation of her benefits should be reduced by the applicable provincial minimum wage rate or rates as the case may be.

With respect to the issue of entitlement to further vocational rehabilitation services, we are of the view that additional assistance should be provided to the claimant, which will promote her return to the workforce at an occupation within her restrictions. However, the provision of such rehabilitation services, inclusive of wage loss benefits, will depend upon the complete and active co-operation and participation on behalf of the claimant.

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 25th day of April, 2002