Decision #22/01 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on February 17, 2000, at the request of a union representative, acting on behalf of the claimant. The Panel discussed this appeal on several occasions, the last one being January 11, 2001.

Issue

Whether or not the claimant is entitled to payment of wage loss benefits beyond April 29, 1998.

Decision

That the claimant is not entitled to payment of wage loss benefits beyond April 29, 1998.

Background

During the course of his employment as an Equipment Operator Grade II on December 1, 1993, the claimant was entering the driver's side of the employer's van when he slipped on a discarded banana peel. As a result of the accident, the claimant sustained injuries to his right ankle, hip, knee and lower back.

The case was considered by the Workers Compensation Board's (WCB) Review Office in February 1997 and by an Appeal Panel in April 1997. For a complete background leading up to the Appeal Panel's decision dated April 25, 1997, please refer to Appeal Panel Decision No. 91/97.

In brief, Review Office determined that the claimant's L4-L5 disc protrusion was caused by the December 1993 compensable accident and that the claimant's chronic pain behavior syndrome was a sequela of the December 1993 accident. Review Office denied the claimant's entitlement to wage loss benefits subsequent to September 1, 1995, as it was felt the claimant was capable of performing full time alternate work duties. The decision to deny wage loss benefits was based upon the videotape evidence of the claimant's activities in September 1994 and March through May 1996.

In contrast to Review Office's decision, the Appeal Panel did not, in any way, find that the video evidence or the other evidence on file or presented at the hearing established that the claimant is/was capable of performing full time alternate work. The Appeal Panel found that the evidence did not establish that the claimant was capable of employment since September 1, 1995. It was concluded that the claimant was entitled to wage loss benefits subsequent to September 1, 1995 and recommended that he be referred to a multi-disciplinary program for management of his chronic pain.

Following the Appeal Panel's decision, the claimant was interviewed on August 6, 1997 at the WCB's Pain Management Unit. The medical advisor concluded that the claimant had chronic pain syndrome which appeared to be more entrenched than it was two years ago. The claimant was referred to an inter-disciplinary pain management program at the [name] Pain Clinic commencing November 3, 1997. A Vocational Rehabilitation Consultant (VRC) was also in contact with the employer and the claimant was provided with alternate duties in a data entry position which was in keeping with his permanent restrictions of no heavy lifting and no repetitive bending. The claimant was provided with Handi-Transit services to help him commute to and from work.

On November 22, 27, 29, 1997, December 20, 1997 and January 17, 1998, the WCB conducted a second videotape surveillance of the claimant's activities. Based on this new videotape evidence and the comments expressed by a WCB medical advisor in memos dated March 23, 1998 and April 1, 1998, primary adjudication determined the following on April 21, 1998:

  • that the claimant had sufficiently recovered from the compensable injury and was capable of returning to his full pre-accident duties as an equipment operator;
  • that the claimant was capable of operating a motor vehicle and that restrictions were no longer required with respect to his work activities as a result of the 1993 injury; and
  • the claimant was not entitled to wage loss benefits as of November 22, 1997. (The November 22, 1997, date was later amended to April 28, 1998).

On January 27, 1999, a union representative appealed the above decision to Review Office and a submission was also received from the employer dated May 25, 1999.

In a decision dated June 25, 1999, Review Office requested that a Functional Capacity Evaluation (FCE) be carried out prior to its rendering a decision on the appeal for further benefits. As a result, the claimant underwent a FCE at the WCB on July 19, 1999.

In a further decision dated October 8, 1999, Review Office determined that the claimant was capable of performing the duties of a trades helper position and that he was not entitled to payment of wage loss benefits beyond April 29, 1998. Review Office reached its decision based on the July 19, 1999 FCE results, and from reviewing videotape evidence, which depicted the general job site and various duties that a trades helper's occupation would entail.

On February 17, 2000, an Appeal Panel hearing took place at the request of a union representative, acting on behalf of the claimant. After the hearing and discussion of the case, the Panel requested that the claimant be assessed by an independent orthopaedic specialist to determine his current medical status.

Subsequent to the Panel's request, the claimant underwent an MRI of the lumbar spine on June 15, 2000 and had nerve conduction studies carried out on June 30, 2000. On June 26, 2000, the claimant was examined by the independent orthopaedic surgeon. On August 1, 2000, all parties were provided with copies of these reports and were asked to provide comment.

On September 28, 2000, the Panel met to discuss the case and took into consideration final submissions received from both the union and employer dated September 15, 2000. Prior to making a decision, the Panel requested that the Recording Secretary write to the independent orthopaedic surgeon to determine whether or not he took into consideration the results of a Nerve Conduction Study conducted on June 30, 2000, when he prepared his final report of July 4, 2000. On December 28, 2000, a response was received from the orthopaedic surgeon and was forwarded to the interested parties for comment. On January 11, 2001, the Panel met to render its final decision.

Reasons

This file was the subject of a previous Appeal Commission hearing in April of 1997, at which time the Panel found that the claimant was entitled to wage loss benefits subsequent to September 1, 1995. As part of its reasons, the Panel concluded:

“We further find that the evidence does not establish that the claimant was capable of employment since September 1, 1995.

We believe the claimant’s disability has been due to his chronic pain behaviour syndrome and L4-5 disc protrusion.

The claimant may well have degenerative disc disease as has been stated.

We do not find however, that the evidence on file establishes such degenerative disc disease is the cause of the claimant’s complaints, in a non compensable way.”

In addition to the foregoing, the Panel also recommended that the claimant participate in a multi-disciplinary program for the management of his chronic pain. Following the Appeal Commission’s 1997 decision, the WCB’s Pain Management Unit referred the claimant for attendance and participation in an out-of-province pain management program beginning on November 3rd, 1997. According to the discharge summary forwarded to the WCB, the claimant made excellent progress while at this facility.

“Although initially off to a somewhat of a slow start, Mr. [the claimant] has proven to be a very motivated, active, and diligent participant in the pain management program. He has improved physically, psychologically, and behaviorally. He is gradually doing activities to improve his strength, endurance, and flexibility. He has identified a list of positive and achievable goals for the future and understands that he may need to modify his goals. Overall, Mr. [the claimant] has proven to himself that he can manage his pain much better. We anticipate that Mr. [the claimant] will continue to make improvements in the future.”

It is significant to note, as well, that the claimant acknowledged to us at the hearing that he was presently coping considerably better with his pain management.

Q. How are you managing now relative to then in terms of the pain focus issues?

A. I’m managing a lot better than I was before [name of pain management facility] and before I even learned some of the techniques that they taught me.

Q. Okay. And the second part is on the physical side. They obviously did some work with you physically?

A. Yes.

Q. How is your back now compared to the way it was at the end of the [name of pain management facility] visits?

A. My back is – I don’t think my protrusion has changed any. As far as my back goes, I don’t really notice that big a difference, other than I don’t focus on the pain anymore, through the techniques that were taught to me in [name of pain management facility]. …

We find, in accordance with the evidence, that the claimant’s chronic pain is not, on a balance of probabilities, a barrier to his returning to the workforce.

We further find that there are no residual physical effects resulting from the claimant’s compensable injury of 1992, which would lead to the imposition of compensable restrictions. In arriving at this conclusion, we attached considerable weight to the following body of evidence:

  • Medical assessment report dated November 6th, 1997 prepared by Medical Director of out-of-province facility wherein he states in part, “Mr. [the claimant] has low back pain as a result of a slipping injury in December 1993. Examination was very difficult today because of copious pain behaviours expressed; however, I am not convinced that he has any clear clinical evidence of nerve route (sic) compression. I note his MRI scan does show probable L5 nerve root involvement; however, his symptoms are much more widespread than the L5 nerve root would suggest.”
  • The videotape evidence quite clearly confirms that the claimant is more than capable of performing physical tasks, which involve lifting, bending, twisting and repetitive back movements without any difficulty.
  • June 10th, 2000 MRI Lumbar Spine – “At the L4-5 level, there has been a previous right laminectomy. There is some mild posterior disc bulging without definite evidence of residual or recurrent disc herniation and without evidence of spinal stenosis or nerve root compression. There is no significant enhancing epidural scar tissue.At the L5-S1 level, there is shallow posterior disc bulging without evidence of disc herniation, spinal stenosis or nerve root compression. There is no other evidence of disc herniation, spinal stenosis or nerve root compression at any of the other imaged levels. No other significant abnormality is identified.”
  • July 4th, 2000 independent external examination report by an orthopaedic specialist. “The patient had an MRI the 9th of April of 1995. The MRI demonstrated that the patient had a large left L4-5 disc herniation with compression of the thecal sac and probable compression of the L5 nerve root. The patient, however, did have the last MRI on the 10th of June 2000. I do note that this MRI reports things quite differently. I note that now the MRI demonstrates that the patient has only mild posterior disc bulging without evidence of residual or recurrent disc herniation at this L4-5 level. It also demonstrates that the patient has no spinal stenosis, no nerve root compression, and no significant enhancing scar tissue.  The patient in my opinion has recovered from the effects of the disc herniation at L4-5, which occurred in 1993. It is my opinion that the patient does not have any physical work restrictions as a result of the accident the patient had in 1993. It is my opinion that the patient has recovered from the physical effects of that particular accident. Any physical restrictions the patient would have would not be as a result of the accident of 1993.”

In light of the foregoing conclusions, we find based on the weight of evidence that the claimant has, on a balance of probabilities, recovered from the effects of his compensable injury and that he is capable of returning to his pre-accident work duties. Accordingly, he is not entitled to the payment of wage loss benefits beyond April 29th, 1998.

Panel Members

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 7th day of February, 2001

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