SUMMARY DECISION NO. 2897/00. Accident (occurrence); Permanent impairment [NEL].

Transcription

1 SUMMARY DECISION NO. 2897/00 Accident (occurrence); Permanent impairment [NEL]. DECIDED BY: Keil; Ferrari; Cremisio DATE: 07/02/2001 NUMBER OF PAGES: 13 pages ACT: WCA

2 2001 ONWSIAT 336 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 2897/00 [1] This appeal was heard in Windsor on November 8, 2000, by a Tribunal Panel consisting of: M.F. Keil : Vice-Chair, A. Cremisio : Member representative of employers, M. Ferrari : Member representative of workers. THE APPEAL PROCEEDINGS [2] The worker appeals the decision of Appeals Resolution Officer R. Biega, dated June 29, That decision concluded that the worker had no entitlement for a left shoulder and neck problems, thoracic outlet syndrome and/or fibromyalgia (CPD). The decision also concluded the worker had no permanent impairment for his left hand/wrist resulting from the compensable accident on September 22, Lastly, the Appeals Resolution Officer concluded there was no entitlement to compensation benefits beyond August 22, [3] The worker appeared and was represented by S. Dajczak, a lawyer. Although the employer was notified of the hearing, it chose not to participate in the proceedings. THE RECORD [4] The Panel had before it as exhibits the Case Record, one Addendum and a letter from the Office of the Vice-Chair Registrar. The worker gave testimony under oath and Ms. Dajczak made submissions. THE ISSUES [5] The Panel must determine the scope and extent of the worker's entitlement following his compensable injury of September 22, THE REASONS (i) Background [6] Although the relationship of the worker's disability and its relationship to his work injury, as well as the nature of the work injury itself, are in dispute, the following background information is a matter of record upon which the Panel has relied: The now 40 year old worker was employed as a carpenter when, on September 22, 1995, a hammer he was using bounced off the chisel and struck him on his left hand. There was no immediate medical treatment but, on October 18, 1995, he was seen at the emergency department of the Chatham Public General Hospital. The treating physician indicated the worker had a 20 year history of left wrist pain and prescribed Tylenol #3. The worker saw

3 Page: 2 Decision No. 2897/00 his then family physician, Dr. B. Gamble on October 23 rd. In his report to the WSIB, the doctor related a history of the worker striking his left wrist with a cement hammer. The worker s complaints later expanded to include his forearm, elbow and left upper arm. On November 29, 1995, he saw physiatrist Dr. J. Clifford. The physician did nerve conduction studies and an E.M.G. He concluded there was no electrophysiological evidence of significant peripheral nerve entrapment to explain the [worker's] symptoms. The physiatrist also noted that, upon neurological examination of the upper extremities, the worker had relatively normal manual testing bilaterally. There was also a relatively full range of motion bilaterally in the elbows. The worker underwent a course of physiotherapy for his left wrist, starting in November of 1995 and concluding on January 5, The discharge report noted the worker had shown objective improvement but was unable to tolerate repetitive use of the left wrist. An MRI of the left wrist done in January of 1996 revealed a carpal joint ganglion or synovial cyst and a questionable ganglion at the bases of the third and fourth metacarpals. By February 6, 1996, when the worker saw orthopaedic surgeon Dr. J. Roth, he was complaining of left sided pain stretching into his shoulder, although the orthopaedist was at a loss to explain all of [the worker's] symptoms. Dr. Gamble s clinical notes from February 16, 1996, indicated that the worker was arrested by police for intoxication. The worker had hand cuffs on and fell, at which point he experienced increased pain in his left arm and shoulder. In a note dated March 27, 1996, the physician expressed concern over the worker's use of Tylenol #3 s and the danger of addiction. Alcoholic gastritis is mentioned by Dr. Gamble in his notation for May 6, In June of 1996, the family physician reported the worker's left wrist was still sore but he was able to play football. Vocational rehabilitation services had been opened for the worker in early He underwent vocational testing in April of The worker told the psychologist that he had worked on and off for approximately six years in his brother s plumbing business and had held different construction positions. The worker indicated a preference for physical work as it helped him burn off excess energy. The worker had not completed Grade 9 and was not bondable owing to several incarcerations. The psychologist was of the opinion the worker would need a great deal of assistance putting together an effective job search campaign. The Board case worker decided that, owing to the worker's pre-accident wages $8.00 per hour retraining was not necessary for the worker to be able to approximate his pre-accident earnings. Accordingly, the focus was to be on a job search. On July 25, 1996, the worker saw physiatrist Dr. T. Miller. On examination the physician found the worker demonstrating exaggerated pain behaviour that did not follow a known peripheral nerve distribution. Dr. Miller did not think that the worker s pain in his arm had anything to do with the ganglion in his wrist. The physiatrist recommended four weeks of therapy and a return to work as soon as possible.

4 Page: 3 Decision No. 2897/00 The worker's benefits were terminated in August of 1996, on the basis that the worker was fit to perform the essential duties of his pre-accident work and this finding had been confirmed by Dr. Miller s report. This resulted in the closure of vocational rehabilitation services as well. Orthopaedic surgeon Dr. J. Allen saw the worker in January of The worker was complaining mostly of left shoulder pain at this point and related this to a snapping sensation in his neck while performing overhead work. The orthopaedist thought the worker might have thoracic outlet syndrome and referred him to vascular surgeon, Dr. W. Jamieson, who saw him a month later and agreed with this diagnosis. The surgeon performed a left first rib resection on February 20, In a letter dated May 23, 1997, Dr. Jamieson suggested there was a causal relationship between the worker's employment history of eight years laying tile and the left thoracic outlet syndrome. The surgeon also stated that, following the surgery, the worker was back in fighting shape, his arms are good, he has no pain Around the time of the worker's surgery he had written to the Board advising them of a work incident on October 17, 1995, to which he related his left shoulder problems. This was listed for investigation. In June of 1997, Board investigator B. Russell interviewed the worker. The worker told him that in the summer of 1995 he had been doing a lot of rough carpentry and this had resulted in the hammer blow to his left hand on September 22, He had continued working after this but had stated noticing jolts of pain that extended from his left hand into the upper arm and shoulder. On October 17, 1995, he was installing acoustic ceiling tiles when he felt one of those jolts of pain, this time resulting in the whole arm going numb. Approximately 30 minutes later, while he was installing floor tiles, his left arm gave way and he toppled forward, striking the top of his head. This caused him to develop left sided neck pain and left shoulder pain. He told his employer about the incident and, owing to the pain he was experiencing, he left work early. The following day the worker was seen in the emergency department and he had been troubled by left arm, shoulder and neck problems since that time. The worker asked the Board for ongoing benefits beyond the summer of 1996 and entitlement for his thoracic outlet surgery as a result of the incidents on October 17, By letter dated September 9, 1997, the Board Claims Adjudicator denied the worker entitlement for the thoracic outlet surgery and concluded the worker was fit to perform the essential duties of his pre-accident work as of July 17, He also denied entitlement for a new accident claimed to have occurred on October 17 th, as there was no contemporaneous reporting of such an occurrence. The worker's then representative wrote to the Board asking that entitlement for the thoracic outlet syndrome be granted based on a disablement claim as arising out of the general nature of the worker's duties as a tile installer. Regional Medical Advisor Dr. Heckadon reviewed the worker's file. In a memorandum dated October 28, 1997, he noted that the worker's first complaints of left shoulder pain did not occur until February of In a memorandum from the following day, the physician stated the worker's thoracic outlet syndrome and shoulder problems were not compatible with his work duties.

5 Page: 4 Decision No. 2897/00 The worker was seen at the Hand & Upper Limb Centre of St. Joseph s Health Centre by Dr. D. Ross in April of On examination, the worker appeared to be a fit, well muscled gentleman. There is no wasting evident. The worker's grip strength was somewhat reduced on the left. Dr. Ross could find no focal cause for his pain nor any evidence of any residual peripheral compression neuropathy. He also reviewed recent EMG s which were essentially normal. On May 8, 1998, the worker saw rheumatologist Dr. D. Collins. The worker told him he had been installing ceiling tiles on October 17, 1995, when he developed a jolting pain from the left lateral neck to mid-trapezius and down the medial left arm to the hand involving all fingers. The rheumatologist noted the worker had 16 of 18 fibrositic tender points and diagnosed the worker as having fibromyalgia, meeting the 1990 ARA criteria for this chronic pain syndrome. The worker s request for extended entitlement to include his left shoulder and neck and left thoracic outlet syndrome and fibromyalgia was denied. So too, was his request for a permanent impairment award for his left wrist, as well as the request for compensation benefits beyond July of In his decision of June 28, 1999, the Appeals Resolution Officer noted that the worker's thoracic outlet syndrome had not manifested itself until two years post injury and thus it could not be reasonably connected to the compensable accident. He made a similar finding in respect to fibromyalgia. The Appeals Resolution Officer did find that Dr. Miller s report would justify temporary benefits for the left wrist until August 22, 1996, at which point there was no medical documentation to substantiate ongoing disability related to the compensable injury. The Appeals Resolution Officer also concluded there was insufficient evidence on which to grant entitlement for the worker's left shoulder and neck problems. The worker now brings these issues to the Tribunal for a final decision. (ii) Testimony [7] The worker testified that he was working as a construction labourer in 1995 hanging doors, laying floor tiles and doing ceramic work. The worker advised he had had surgery on his right hand in 1992, so he relied more on his left hand, even though he was right hand dominant. The worker started to notice problems in June when he would get little jolts in his neck and left shoulder. He was taking Tylenol #3 s for other reasons and this enabled him to carry on. On October 17, 1995, he was putting in ceiling tiles when he felt a jolt in his left shoulder all the way down his arm he realized he now had pain stretching from the left side of his neck all down his arm. He told his boss he could not finish the work because of the pain and asked to be taken home. The next day the worker's pain was so intense he could not move his arm and had to go to the emergency department. At that point he was asked if he had ever hurt his arm before and he remembered hurting himself in Grade 7 so he told the doctor that but he had not had any trouble since that time. When asked why the emergency report only referred to the worker's wrist, he replied that once he told them he was Dr. Gamble s patient they did not even want to talk to him but told him to go see his family physician. The worker testified that everything he said to Dr. Gamble, he sluffed off because of his arrogance. Dr. Gamble sent him for physiotherapy and it hurt him more than it helped at that point his whole arm was throbbing.

6 Page: 5 Decision No. 2897/00 [8] The worker could not get his arm to function and although he looked for one-arm work there was nothing much he could do. The worker did say that the throbbing in his arm stopped after the thoracic outlet syndrome surgery but his wrist still does not work. He described the pain in his arm as disabling continuous and radiating from the base of the neck through his armpit down to the elbow through to the palm side of the wrist across the palm to his two small fingers. He stated the pain was now steady as opposed to the throbbing pain it was before the thoracic outlet surgery. When asked about Dr. Jamieson s comments that he had no pain following the thoracic outlet surgery, the worker explained that he was just telling the physician the throbbing had stopped he assumed the doctor would know the nerves in his arms were still bothering him. [9] The worker was also asked why he had not mentioned his arm and shoulder pains prior to November of He stated the Tylenol #3 s had masked the pain but that he had told the medical practitioners about the October 17 th incident and he did not understand why no one wrote it down. He kept telling doctors about the radiating pain but they told him it was his hand and that he had phantom pain. [10] His representative pointed out to him that Dr. Ross had commented in 1998 that the worker was well muscled with no wasting. The worker told the Panel he was eating protein supplements and that these were keeping his muscles up but there was a difference between his left and right arm. [11] The worker described that on a typical day he would mostly watch television. He could not look for work because of the pain in his arm. His sons do the dishes, take out the garbage and open the cans for food. The worker pays people to come in and do tasks he is unable to perform. On a scale of 1 to 10, the worker described his pain as a constant 7-8. [12] With respect to his past, the worker explained that he had been shot by his brother with a 12 gauge shotgun (a pain that he described as a 10) but he had not been in a motor vehicle accident as stated by Dr. Gamble. From 1985 until 1995, he had worked approximately six months out of every year, except for one year when he was in school and worked only a couple of months. In 1987 he was off work for an extended period of time because he had pneumonia. The worker stated his last incarceration was in 1981; he had changed his ways when he became a father. (iii) Relevant law and policy [13] The relevant section of the pre-1997 Workers' Compensation Act states as follows: 37. (1) Where injury to a worker results in temporary total disability, the worker is entitled to compensation under this Act in an amount equal to 90% of the worker's net average earnings before the injury so long as temporary total disability continues or until the worker begins receiving payments under section 43.

7 Page: 6 Decision No. 2897/00 (2) Where temporary partial disability results from the injury, the compensation payable shall be... b) where the worker does not return to work, a weekly payment in the same amount as would be payable if the worker were temporarily totally disabled, unless the worker, (i) (ii) fails to co-operate in or is not available for a medical or vocational rehabilitation program which would, in the Board's opinion, aid in getting the worker back to work, or fails to accept or is not available for employment which is available and which in the opinion of the Board is suitable for the worker's capabilities. [14] Temporary total disability, according to Board Operational Policy Document # , is defined in the following manner: Temporary total disability is the complete inability to earn full pre -accident wages for a limited period of time as a result of the physical and psychological effects of the injury and the necessity for medical treatment. A worker who is unemployable as a result of a combination of a work-related injury and a number of personal and vocational (noninjury-related) factors is not considered totally disabled. [15] Temporary partial disability is subsequently defined as a reduction in the ability to earn full pre-accident wages for a limited period of time. Board policy specifies that a worker who is judged to have a temporary partial disability as a result of a work-related injury and has not returned to work is entitled to proportionate benefits if the worker has failed to either: co-operate in a medical or VR program which in the Board's opinion, will assist in returning the worker to gainful employment; or be available for suitable employment that is available. [16] The CPD policy provides the following explanation for the adjudication of chronic pain cases: Not all claims involving persistent pain are adjudicated according to this policy. If pain is predominantly attributable to an organic cause or to the psychiatric conditions of posttraumatic stress disorder or conversion disorder, the worker will be compensated pursuant to the Board's policy on that organic or psychiatric condition. If however, the chronic pain arises predominantly from psychological sources (other than post-traumatic stress disorder to conversion disorder see ) or undetected organic sources, the pain will be considered for compensation purposes under the CPD policy. [17] The Board has compiled a chart to outline how the criteria for chronic pain disability are to be assessed:

8 Page: 7 Decision No. 2897/00 Condition A work-related injury occurred. Chronic pain is caused by the injury. The pain persists 6 or more months beyond the usual healing time of the injury. The degree of pain is inconsistent with organic findings. The chronic pain impairs earning capacity. Evidence A claim for compensation for an injury has been submitted and accepted. Subjective or objective medical evidence of the worker s, continuous, consistent and genuine pain since the time of the injury, AND a medical opinion that the characteristics of the worker s pain (except its persistence and/or its severity) are compatible with the worker s injury, and are such that the physician concludes that the pain resulted from the injury. Medical opinion of the usual healing time of the injury, based on the nature of the injury, the worker s pre-accident health status, and the treatments received, AND subjective or objective medical or non-medical evidence of the worker s continuous, consistent and genuine pain for 6 or more months beyond the usual healing time of the injury Medical opinion which indicates the inconsistency. Subjective evidence supported by medical or other substantial objective evidence that shows the persistent effects of the chronic pain in terms of consistent and marked life disruption. [18] There is no statutory mention of how one determines whether a second injury is related to the original work accident. Board Operational Policy Document # on "Recurrent Disabilities" addresses the procedure to follow in making such a determination. The policy states that a decision-maker will recognize a recurrence when there is obvious medical compatibility or an appropriate combination of medical compatibility and continuity, and an absence of a new accident. [19] The Board policy goes on, in respect to continuity enquiries, to require that decisionmakers determine whether there have been ongoing - complaints to supervisors/co-workers - symptoms - work restrictions/modifications

9 Page: 8 Decision No. 2897/00 - medical treatment - or a change in lifestyle that establishes a connection between the original condition and subsequent problems. [20] The relevant section with respect to initial entitlement states: (iv) 4(1) Where in any employment, to which this Part applies, personal injury by accident arising out of and in the course of employment is caused to a worker, the worker and the worker's dependants are entitled to benefits in the manner and to the extent provided under this Act.... (3) Where the accident arose out of the employment, unless the contrary is shown, it shall be presumed that it occurred in the course of the employment and, where the accident occurred in the course of the employment unless the contrary is shown, it shall be presumed that it arose out of the employment. (4) In determining any claim under this Act, the decision shall be made in accordance with the real merits and justice of the case and where it is not practicable to determine an issue because the evidence for or against the issue is approximately equal in weight, the issue shall be resolved in favour of the claimant. Submissions [21] Ms. Dajczak submitted that the initial problems with clear reporting should not be held against the worker. He was in pain when he was seen in the emergency department and that report was extremely brief in any event. There may have been some confusion with the treating physicians as to whether the pain radiated down from the shoulder and neck or up from the hand. Nonetheless, the entire arm was implicated. She asked the Panel to consider the arduous and physically demanding nature of the worker's employment duties. There was lots of repetitive movement involving the upper extremities, extensive arm movements and awkward postures. She suggested that the focus of the case had been on a specific accident rather than on a disablement process, as would have been more appropriate. Ms. Dajczak noted that Dr. Jamieson had been supportive of a causal connection between the worker's strenuous employment duties and the development of his thoracic outlet syndrome. She suggested that weight should be given to him as a recognized specialist in the field. The representative also argued that the worker's symptoms had never completely subsided and his current symptomatology had been diagnosed as fibromyalgia by a rheumatologist. Ms. Dajczak asked that the worker's entitlement be expanded to include his left shoulder, neck and thoracic outlet syndrome. She also suggested that ongoing compensation benefits were in order beyond August of [22] Ms. Dajczak also asked if she could have a couple of months to see if there were any more recent additional medical evidence that would be of assistance to the Panel. (v) The Panel's findings [23] It has been approximately three months since the hearing and we have not received any additional medical documentation from the worker or his representative. Moreover, the determinations we are being asked to make will rely on the contemporaneous documentation.

10 Page: 9 Decision No. 2897/00 More recent medical reports will not aid us in a determination of the worker's physical state in 1995 and 1996 (as we have the relevant materials for that time frame) nor will it assist in our deliberations as to the accident histories. Thus, we cannot find there is any prejudice in proceeding to reach a final decision on the issues before us. [24] We will start with the issue of expanded entitlement to include either an incident on October 17, 1995 and/or entitlement as a result of the worker's employment duties as a tile installer. It is often the case with disputed initial entitlement cases that there are no direct witnesses to the event (or events) in question. In these instances, one must have regard for the circumstantially compelling evidence: that is, was the medical diagnosis compatible with the injury sustained, was there mention to co-workers or a supervisor within a short time and, does the accident history correspond with the work being performed or is it reasonably congruent with what might be expected to occur in the particular work place? Finally, even accepting that the above are relevant, the worker's own testimony may often be determinative as to whether the Panel finds that the accident happened in the manner described. [25] Assessing credibility is a delicate exercise. Often, there is genuine disagreement as to facts or their interpretation. An individual may, quite naturally and honestly, wish to provide his or her perspective in the best possible light. This is by way of acknowledging that there are situations where strikingly different versions of events can be presented without loss of credibility to any of those offering a perspective. However in the case before us, certain versions must be preferred as more likely and/or more plausible than others. This is so because certain aspects of the events for the time in question are mutually exclusive and cannot all be true. It follows that the Panel must carefully explain why it prefers the evidence that it does. [26] The assessment of the credibility of interested witnesses has been discussed as follows in the following decision of the British Columbia Court of Appeal, Faryna v. Chorney (1951), 4 W.W.R. (N.S.) 171, (which was quoted with approval by the Ontario Court of Appeal in Phillips v. Ford Motor Co., [1971] 2 O.R. 637): The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness is such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions. [27] In this case the only direct testimony we have is that of the worker. For contemporaneous recording we must have reference to the documentation provided on file. It is undeniable that the worker's testimony is at variance with much of the information available. The worker has testified that, from the beginning, he had told his treating practitioners and his employer about the jolts to his neck and left shoulder, as well as the pain through his entire arm. He clearly believed that Dr. Gamble had some enmity toward him and did not understand why the other practitioners had neglected to write down the correct history. [28] The Panel can accept as a hypothesis that, occasionally, owing to poor communication, temporal constraints, language barriers, etc., there will be a misstatement in medical records or

11 Page: 10 Decision No. 2897/00 other reporting forms. However, it seems very unlikely to us that the emergency department, Dr. Gamble, the employer, and the physiotherapist not only all failed to write down the correct version of events but all wrote down the same incomplete facts. If one has regard for the early reporting, there is consistent mention of the worker striking his left hand with a hammer and no mention of jolts to the neck and left shoulder. In the presence of such unanimity, the Panel finds it probable that this was the history of accident presented by the worker in the fall of [29] Moreover, even if the physicians failed to take down the correct accident history, it seems unlikely to us that if the worker complained of left shoulder and neck pain from the beginning, there would be no mention of these complaints when he was examined. Yet the first mention of left shoulder pain (and even here there is no mention of pain radiating from the neck) does not come until February of Interestingly, in this report, the pain was described as radiating from the wrist upwards, and not from the neck downwards as depicted by the worker in testimony. [30] We do acknowledge that there was one notation, dated October 20, 1995, in Dr. Gamble s clinical notes, of the worker having left arm pain radiating from the worker's neck. The physician also commented that the worker had a good range of motion and there was no history given for this pain. The doctor s next notation related to the September 22 nd wrist injury with the hammer and the fact that he would send in a form 8 to the Board. There is no further mention of pain radiating from the neck and left shoulder, save for that incurred in February of 1996 when the worker was apparently arrested and put in handcuffs. This one brief mention of neck pain without any accompanying history does not outweigh the preponderance of other reporting. [31] Moreover, the Panel was struck by the disparity between the worker's own contemporaneous, reported history of accident and early progress reports and his testimony at the hearing. In the early documentation there is no mention of neck and left shoulder problems nor of any incident on October 17 th. The only accident referred to by the worker was the blow to his left hand with the hammer on September 22 nd. Even if the Panel were to accept that everyone else failed accurately to take down the worker's actual history of accident and recount the full extent of his problems, it is difficult to understand why the worker would have failed to do so as well. [32] For the above reasons, the Panel cannot accept the worker's testimony as to the injury on October 17th th and prefers to rely on the contemporaneous documentation. Thus, we do not find the worker had a separate work injury on October 17 th to his neck and left shoulder. [33] We turn now to the argument that the worker's strenuous and repetitive employment duties as a tile installer led to the development of his thoracic outlet syndrome and left shoulder problems. It is true, as pointed out by Ms. Dajczak, that Dr. Jamieson, the vascular surgeon, favoured such a relationship. However, it is also the case that he based this on acceptance of the worker's employment history provided to him. That history was of working very hard laying ceramic tiles and he spent about eight years on his knees using his left arm to hold himself up and his right arm to put the tiles down. Firstly, the Panel notes that the worker testified that, between 1985 and 1995, he had worked approximately six months of every year, with the exception of one year when he was in school and one year when he had pneumonia. If we were

12 Page: 11 Decision No. 2897/00 to accept the worker's testimony, this would signify eight years where he worked only half the year.. [34] Secondly, the Panel doubts that the worker spent all eight years laying tiles, a fairly specialized profession. He was working as an unskilled labourer in 1995, earning approximately $8.00 an hour. The worker told the Panel he had done various work with the accident employer. He told his Board case worker that he had been employed as a butcher and told the psychologist he had worked for eight years in the plumbing business with his brother. It seems to us more likely than not that the worker had varied kinds of employment, involving different activities and that none of them would have been on a full-time, year round basis. On balance, the Panel cannot accept that the worker had eight years of the kind of work relied upon by Dr. Jamieson. Therefore, while it is possible that the worker's employment contributed to his thoracic outlet syndrome, we do not find it likely. Consequently, entitlement on a disablement basis is denied. [35] Based on the above, the worker's compensable history is limited to the hammer blow to his left wrist in September of We can find no medical evidence to suggest that such an injury would cause or significantly contribute to arm, shoulder and/or neck problems. Accordingly, the worker's entitlement is limited to his left hand/wrist. In a similar vein, we cannot relate the diagnosis of fibromyalgia, some three years post-accident, to his injury to the left hand. We note there is no medical opinion on file in support of such a diagnosis. [36] Finally, we turn to the question of compensation benefits beyond August 22, We do this mindful of the fact that we are only considering the worker's left hand symptoms. There is an extensive report on file by physiatrist Dr. Miller, dated July 25, The specialist observed that the worker s pain behaviour did not follow a known peripheral nerve distribution and that he had a negative Tinel s and Phalen s sign at the level of the wrist. Strength testing of the wrist was essentially normal. The physiatrist recommended four weeks of physiotherapy and four weeks of modified duties. There is no suggestion that Dr. Miller thought there would be any further restrictions necessary. The Panel has relied on this report, given its completeness of examination and findings. Since Dr. Miller was of the opinion the worker would not be fully recovered for approximately two months, we can only conclude that benefits should not have been terminated four weeks following the date of his report. [37] We note that the Appeals Resolution Officer allowed the worker a further four weeks of benefits because of Dr. Miller s suggestion that he would need four weeks of therapy. We agree with this. However, the physician also recommended four weeks of modified work following the therapy. Documentation from the Board case worker satisfies us that there was no suitable, modified work available with the accident employer. The last memorandum from the case worker, dated July 9, 1996, indicated the worker was prepared to participate in a job search. In the end result, no such job search assistance was offered because benefits were terminated. It is commonly held in Tribunal jurisprudence that a worker is under some obligation to look for work or engage in a medical rehabilitation program (even without Board direction) in order to qualify for full temporary benefits when a worker is only partially disabled. In this case, there is no evidence that the worker sought employment in any meaningful way or was undergoing active medical treatment. Accordingly, a reduction to 50% temporary partial disability benefits would be in order for a four week period following August 22, 1996.

13 Page: 12 Decision No. 2897/00 [38] In the Panel's view, there is no good medical evidence on file to suggest a continuing disability of the left hand beyond that point and the worker s request for a permanent impairment award is denied. THE DECISION [39] The worker's appeal for initial entitlement for a work injury on October 17, 1995, and/or on a disablement basis is denied. The worker's claim for entitlement for his left shoulder, neck, thoracic outlet syndrome and fibromyalgia is denied. His claim for a permanent impairment award for his left hand resulting from his compensable accident on September 22, 1995, is denied. The worker is granted 50% temporary partial disability benefits for a four week period following August 22, 1995, to reflect the medical opinion on file that he was not totally recovered. DATED: February 7, SIGNED: M.F. Keil, A. Cremisio, M. Ferrari.