Decision #28/07 - Type: Workers Compensation
Preamble
This is an appeal by a worker whose benefits were suspended by the Workers Compensation Board (WCB).
The worker injured his right hand and received extensive treatment and rehabilitation. The WCB determined that the worker should undergo a work hardening program. The worker advised that he was able to participate in a work hardening program, but only to the extent that it involved the use of his injured hand. He was not able to participate in a work hardening program that involved full physical participation due to a non-compensable condition. The WCB suspended the worker’s benefits. The worker appealed this decision.
A hearing was held on January 10, 2007, at the request of a worker advisor, acting on behalf of the worker. The panel discussed this appeal following the hearing on the same day.
Issue
Whether or not the worker is entitled to wage loss benefits beyond February 24, 2005.Decision
That the worker is entitled to wage loss benefits effective when he contacts the Workers Compensation Board (WCB) and is willing to fully participate in a program to aid in returning him to work.Decision: Unanimous
Background
On January 31, 2004, the worker injured his right index finger during the course of his employment as a heavy duty mechanic. As a result of the accident, the worker underwent surgery to repair the extensor tendon of his right index finger. The claim was accepted by the WCB and benefits were paid accordingly.
Following surgery and at a follow-up visit with a specialist with the Pain Clinic, it was found that the worker was experiencing severe pain, swelling, color changes, increased perspiration and marked limitation with his interphalangeal joints of the right hand. The diagnosis rendered was complex regional pain syndrome and he was treated with intravenous blocks, medication and physiotherapy treatment.
On October 15, 2004, the physiotherapist advised the WCB that the worker was unable to achieve full grip strength or range of motion and experienced sensitivity to cold. She stated, “Given the length of time since his injury and his current grip strength, it appears unlikely that he will be able to RTW as a mechanic in the near future”.
On November 22, 2004, the specialist from the pain clinic reported that the worker continued to have ongoing pain in his right hand and restricted range of movement even though his pain and function had markedly improved since the initial assessment. It was suggested that the worker was incapable of continuing his duties as a heavy equipment mechanic because of weak handgrips and that he should be retrained in another line of work.
The worker was examined by a WCB medical advisor on December 6, 2004. Based on minimal clinical findings, the medical advisor felt that the effects of the compensable injury were resolving and she saw no reason to believe that they would not resolve completely. She said there was a likelihood that the worker would be able to return to his pre-accident duties. A Functional Capacity Evaluation (FCE) was recommended to determine the worker’s work capabilities. This was carried out on February 10, 2005 and it showed that the worker’s lifting ability was 33% less on the right side than on the left side.
The worker’s right hand was assessed by a WCB orthopaedic consultant on February 10, 2005. He stated that the tendon repair was well healed and that the lack of movement was due to joint stiffness secondary to inactivity. He found atrophy of the muscles of the right forearm and upper arm. He felt the worker should increase the use of his hand and a work hardening program was recommended along with bilateral x-rays.
X-rays of both hands were taken on February 17, 2005. They revealed no significant bone or joint abnormality and no evidence of osteoporosis.
In a report dated February 21, 2005, a plastic surgeon reported that the worker had full extension of all the digits and he was able to flex them into his palm but could not make a tight fist. The index, middle and ring fingers EIP joints were tight. The worker complained of a snapping sensation at the site of the extensor tendon repair. The specialist thought the worker did not require further surgical treatment and warned him that he may have some residual cold hypersensitivity due to the RSD and some permanent stiffness. He felt the worker could return to work at any time once he felt he could safely and effectively do his job.
The WCB arranged a work hardening program for the worker. The worker then advised the WCB that he had a non-compensable medical condition that may affect his ability to participate in the work hardening program. He indicated that if the program just focused on his hand, this would be okay but if it involved his entire body he would not be able to do this because of his non-compensable medical condition.
The worker attended the work hardening program on February 23, 2005. According to the therapist, the worker did participate with anything in regard to his right hand only but he refused to do any of the physical aspects of the assessment because of his non-compensable medical condition. Given that the worker was not able to fully participate in the program, he was sent home early from the assessment.
On March 2, 2005, the worker was notified that his benefits were being suspended effective February 24, 2005 based on his failure to participate in the work hardening program because of his non-compensable medical condition. This decision was later appealed by a worker advisor to Review Office. She submitted that the goal of the work hardening program to prepare the worker for a return to his pre-accident employment was an unrealistic expectation which unreasonably led to the suspension of his benefits. She submitted that the ongoing effects of the compensable injury permanently precluded the worker from returning to his pre-accident duties and resulted in a loss of earning capacity beyond February 24, 2005. The worker’s inability to participate in the work hardening program because of a non-compensable medical condition was immaterial to the specific circumstances of the case.
On June 29, 2005, the physician from the pain clinic reported that the worker still had restricted range of motion in his hand which precluded him from returning to work as a mechanic. This was primarily due to the fact that the worker had difficulty gripping tools and had increased pain when he touched cold metals.
On March 23, 2006, Review Office confirmed that the worker was not entitled to wage loss benefits beyond February 24, 2005. It felt that the work hardening program could have improved the worker’s range of movement of his handgrip and that the medical information on file did not support that the worker would have remained unfit for his pre-accident work had he completed the work hardening program.
On May 19, 2006, the worker advisor asked Review Office to reconsider its March 23, 2006 decision based on further medical information dated May 1, 2006. She stated that the medical information supported that the work hardening program would have exacerbated the worker’s problems with his hand. She noted that the worker previously expressed his willingness to participate in the work hardening program as long as the focus was confined to his injured hand. She felt that the work hardening program could reasonably have accommodated the worker’s non-compensable condition. She noted that the worker had explored training/upgrading possibilities in order to enhance his employability.
The file was reviewed by a WCB impairment medical advisor on April 11, 2006. Based on the assessment results of an occupational therapist, the worker had no loss of passive range of motion of his right index finger. It was therefore determined that the worker did not have a ratable permanent partial impairment (PPI) except for a 1% PPI for scarring.
On June 5, 2006, Review Office indicated that no change would be made to its previous decision. Review Office stated in part, that the specialist did not provide any rationale as to why a work hardening program would exacerbate the worker’s problems. Information from the occupational therapist who assessed the worker for the work hardening program said the worker could not do anything physical and therefore they did not complete the assessment. The worker would not do bilateral carries or push/pull testing. There was no new evidence to support that the worker would not have been capable of his pre-accident duties at the completion of a work hardening program.
The worker advisor appealed Review Office’s decision and a hearing was arranged. In January 2007, the worker advisor provided the Appeal Commission with report from the physician at the pain clinic dated September 21, 2006 for consideration.Reasons
Worker’s Position
The worker attended the hearing with a worker advisor who made a presentation on the worker’s behalf. The worker answered questions posed by his representative and by the panel.
The worker described the treatment he received for his injury. This included extensive rehabilitation of his injured hand and pain treatment. He expressed the opinion that he cooperated fully with all recommended treatments. He advised that he is not currently receiving treatment for his hand.
He described the current status of his hand as being the same as when his benefits were suspended. He stated that “The level is the same. Like the movement and everything is the same. That’s why I say, it plateaued there.” He demonstrated that he is unable to close his hand tight. This limits his grip strength. He advised that his hand remains sensitive to cold, that it stiffens up and stays cold. His hand is also sensitive to vibration.
The worker described his job duties as a heavy duty mechanic. He noted that the job involved use of heavy equipment and tools. Parts can weigh over 100 pounds. The job involved use of vibrating tools, often in cold conditions. He showed the panel a truck starter and demonstrated the difficulty of working with heavy parts, such as the starter, in awkward positions. He also brought in hand tools and demonstrated the use of the tools and the difficulty he has in gripping certain tools.
The worker advised that he suffers from a non-compensable medical condition. He advised that he suffered from the condition all his life but that it had previously been misdiagnosed. He advised that physical activity worsens his condition and makes him very sick. He also advised that there is no treatment for his condition but that he is able to monitor the condition himself. He feels sick and has no energy when the condition is worsening. In February 2005 when the work hardening program was to commence, he advised that his treating family physician informed him that he should not engage in physical activity due to this condition.
The worker advised that he was aware he had a problem while he was working as a mechanic but was not aware of what was wrong. He knew that if he pushed himself he would get sick.
With regards to the work hardening program he advised that his family physician was concerned about his participation in the program because it involved physical, full body weightlifting.
The worker advised that he attended the work hardening assessment to see what was involved and once the program started on full body weightlifting, he advised that he could not participate in that part of the program. He submitted that he was willing to participate in the program as it related to his injured hand. He advised that the therapist said the work hardening program could work around his non-compensable medical condition and provide just a program for his hand, but that the WCB refused this option.
The worker strongly argued that his non-compensable medical condition should not be seen as a reason for his not completing the work hardening program. He stated that he had cooperated throughout with the WCB and was willing to participate in a work hardening program as it related to his hand.
The worker advised the panel that since his benefits were suspended, he worked for local farmers in the summers of 2005 and 2006 as a truck driver hauling grain. He advised that currently he is attending school. With respect to other activity, he advised that he is capable of working on his car at home.
The worker’s representative submitted that the issue of the work hardening program is not the relevant issue, rather that the main issue in this case is whether the worker was able to achieve a level of recovery from his compensable condition with or without the work hardening program, sufficient that he could return to his pre-accident duties.
The representative referred to medical reports from the treating physicians which she considered supported the position that the worker could not return to his pre-accident employment as a heavy duty mechanic. She submitted that the worker is entitled to full wage loss benefits.
Analysis
Before addressing the issue, the panel accepts the worker’s evidence that his pre-accident position involved working with heavy parts, in awkward positions and would be difficult to perform with an injured hand. The panel also accepts the worker’s evidence that he continues to be unable to fully hold and grip tools with his right hand.
The issue before the panel is whether the worker is entitled to wage loss benefits beyond February 24, 2005. For the appeal to be successful the panel must find that the worker suffered a loss of earning capacity after February 24, 2005 as a result of the workplace injury. The panel was able to make this determination but subject to the condition that the worker’s entitlement does not arise until he contacts the WCB and is willing to participate fully and voluntarily in a suitable program established by the WCB to return the worker to work.
Although the worker argued that his non-compensable medical condition should not be considered the reason that he did not participate in the work hardening program, the panel finds that the evidence demonstrates the contrary. Information on the worker’s file indicates that the worker first disclosed to the WCB that he had a non-compensable medical condition in a telephone conversation with his case manager on February 22, 2005, the day before the work hardening program was to begin. This is referred to in a memo from the case manager dated February 22, 2005 which notes that the worker was told by his family doctor that he has a non-compensable medical condition and that he will never work again. The memo does record the worker’s willingness to participate in the work hardening program if it just focuses on his hand.
The worker’s non-compensable medical condition is next referenced in a memo from the case manager dated February 23, 2005. The memo notes that the therapist responsible for the work hardening program informed the case manager that the worker will not participate with physical aspects of the work hardening program as a result of a non-compensable medical condition. The memo also refers to a telephone conversation between the worker and the case manager where the worker is advised that his benefits are being suspended. The memo records the case manager’s impression that the “Clmt (claimant) seemed confident that he will never have to work again due to the non-compensable [medical] condition.”
The panel finds that the decision to suspend the worker’s benefits was appropriate at the time it was made. The panel finds, on a balance of probabilities, that the worker refused to participate in the work hardening program due to his non-compensable condition and that he informed the WCB that he would not likely be able to work again. The worker provided no medical reports to the WCB to support his assertion that he could not participate in the full work hardening program and to this day has not provided medical support for his position. The panel finds that the worker’s loss of earning capacity was due to the intervening non-compensable medical condition.
The worker’s representative submitted that the worker’s participation in the work hardening program is not relevant as the worker would not have been capable of returning to work. The panel does not accept this position. In making the decision to refer the worker to a work hardening program the WCB relied upon medical information from the WCB’s orthopedic consultant who examined the worker on February 10, 2005 and recommended the work hardening program. As well, the worker’s treating plastic surgeon commented in a report dated February 21, 2005, that the worker could return to work when he felt he could do so safely. With not having attempted the program, it is unknown whether the worker could have returned to work.
The panel notes that the worker’s benefits initially were suspended and not terminated. The panel recognizes the worker’s concerns about his ability to return to his pre-accident employment, and notes the worker’s evidence at the hearing and recent medical information regarding the ongoing effects of his compensable injury, and the heavy nature of his pre-accident job duties. The panel finds that the worker is entitled to benefits, commencing from the date upon which he contacts the WCB and is willing to participate in a suitable program established by the WCB to aid in returning the worker to work. In establishing a program for the worker, the WCB should take into account the current condition of the worker’s right hand and medically reasonable restrictions that may arise from the worker’s non-compensable condition.Panel Members
A. Scramstad, Presiding OfficerA. Finkel, Commissioner
M. Day, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
Signed at Winnipeg this 7th day of March, 2007