Public Decisions | The Appeal Commission

Decision #44/02 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on February 27, 2002, at the request of a union representative, acting on behalf of the claimant. The Panel discussed this appeal on February 27, 2002.

Issue

Whether or not the worker is entitled to wage loss benefits beyond June 28, 2001.

Decision

That the worker is entitled to wage loss benefits beyond June 28, 2001.

Decision: Unanimous

Background

During the course of his employment as a butcher/labourer on March 3, 1998, the claimant sustained an open fracture of his left distal tibia and fibula when a power jack ran over his leg. The claimant underwent debridement and irrigation of the wound with intramedullary fixation of the fracture. The Workers Compensation Board (WCB) accepted the claim for compensation and in January 2000, the claimant was awarded an 11% permanent partial impairment award for his left ankle difficulties.

In a June 16, 2000 report, an orthopaedic and rehabilitation medicine specialist noted that the claimant continued to complain of left ankle stiffness and a limp after long periods of standing and walking. The claimant continued to be affected by his inability to maintain any running gait. The specialist noted that this examination was consistent with all of his previous examinations and that he had been involved in the claimant's care since June of 1999. The specialist commented that the claimant was disabled from any type of labour work.

On July 5, 2000, an orthopaedic surgeon reported that the claimant was last assessed on August 4, 1999 with the same soft tissue complaints. The surgeon noted that x-rays demonstrated a healed tibial diaphyseal fracture. There were no other significant subjective or objective findings in regards to the extremity other than some associated weakness for which the claimant was advised to continue with a strengthening program. The surgeon noted that a physical capacity evaluation form was filled out which stated that there might be some deterioration with prolonged standing or walking but with no restrictions otherwise.

A WCB medical advisor assessed the claimant on August 9, 2000, to determine his current status and functional capabilities. The medical advisor stated in part, that based on history and physical examination of the claimant, the functional deficit at the left ankle was minimal and that his primary restriction was in dorsiflexion. The claimant did, however, have 10 degrees of dorsiflexion at the left ankle which was sufficient for normal locomotion. The medical advisor indicated that the claimant would likely never regain full range of motion of the left ankle at this point now 2 years post-fracture although his findings on examination were minimal and should not provide the degree of impairment which the claimant reported. No further investigations were warranted with regard to any neurological difficulties. The medical advisor outlined restrictions to avoid prolonged standing or walking of greater than 2 hours without an opportunity to rest and that he should be reviewed again in 6 month's time.

On April 5, 2001, the claimant underwent a functional capacity evaluation (FCE) and was then interviewed by the medical advisor who had previously examined him in August 2000. In a memo dated April 6, 2001, the medical advisor documented that the claimant felt his symptoms had not changed since the August 9th examination. The claimant said he still continued to have difficulties with his left ankle range of movement. He did not weight bear through his left lower leg. The claimant stated that he seldom experiences pain as he discontinues any activity prior to this being a problem. The claimant was presently involved in the vocational rehabilitation progress and was obtaining his grade 12 education. The medical advisor indicated that once the FCE results became available, restrictions for the claimant would be warranted.

In another memo dated May 9, 2001, the medical advisor documented that she reviewed a surveillance video tape of the claimant which had been recorded between April 6th and 7, 2001. Based on this review along with previous opinions on file that were expressed by two WCB consultants, the medical advisor felt that the claimant did not require any specific restrictions and recommended a return to work or reconditioning program.

On May 15, 2001, primary adjudication wrote to the claimant. The letter indicated that it was the WCB's opinion, based on the weight of evidence including the history and mechanism of injury, diagnosis, expected symptoms duration, subsequent investigations, current clinical findings and the time that has passed that he had recovered from the effects of his March 5, 1998 compensable injury. The claimant was informed that a reconditioning program would be arranged so that he may increase his tolerance and endurance and that his wage loss benefits would be paid for another 6 weeks inclusive and final.

In a further letter to the claimant dated June 1, 2001, primary adjudication noted that the reconditioning program commenced on May 17, 2001 and that he would be discharged on June 28, 2001. The claimant's wage loss benefits would therefore be paid to June 28, 2001 inclusive and final. On July 19, 2001, a union representative appealed this decision to primary adjudication and then to the Review Office.

In a decision dated August 24, 2001, Review Office determined that as of June 29, 2001, the loss of earning capacity in relation to the claimant's injury of March 3, 1998 did not exist. Taking into considering the results of the FCE and the surveillance video tape, Review Office was of the opinion that there was no objective medical evidence on file to warrant the implementation of restrictions at this time and felt the claimant's ankle was functional to a point to be a productive member of the workforce. There was no loss of earning capacity in existence on the claim following the reconditioning program. On December 21, 2001, the union representative appealed Review Office's decision and an oral hearing was arranged.

Reasons

This case involves a person employed as a butcher/labourer who incurred a serious fracture to his left ankle in a workplace incident. His claim for compensation was accepted and benefits paid accordingly.

His entitlement to wage loss benefits was terminated, initially, on June 4, 1999. An earlier decision by this Commission reinstated his benefits. As noted in the Background, benefits were again terminated on June 29, 2001. Upon reconsideration, Review Office upheld that decision. He has appealed that decision to this Commission.

The issue for the panel to consider was whether or not his benefits should have ended on that date. For his appeal to be successful, the Panel would have to determine that the claimant had a continuing loss of earning capacity beyond June 28, 2001. We have so determined.

In coming to this finding, we made a thorough review of the claim file and we held an oral hearing, at which we heard testimony from the claimant, as well as argument from his representative.

In concluding that the claimant no longer had a loss of earning capacity from the effects of his accident, the board placed considerable weight on the evidence contained in a surveillance tape of the claimant. In one incident, in particular, the claimant is seen leaving the premises of the WCB. Initially, he is seen to be limping noticeably. As he gets further from the building, his limp appears to become somewhat less pronounced. A board medical advisor, upon viewing this tape, determined that the claimant need not have any restrictions placed upon his ability to return to work.

We, however, looked at more evidence than just the surveillance video. This included the results of a Functional Capacity Examination (FCE) conducted the same day as the first surveillance, as well as the medical history in the file. In addition, we had the advantage of further medical reports, based on examinations conducted after the termination of benefits.

First, we note that, in January 2000, the board awarded the claimant a permanent partial impairment award, this being concrete evidence that he would never recover completely form his workplace accident.

Second, we note that the board, in early 2001, concluded that the claimant would never be able to return to his pre-accident type of work and referred him for vocational rehabilitation. At the time of the surveillance and prior to being cut off from benefits, the claimant was actively involved in a retraining program.

We gave some weight to the results of the above-noted FCE. The therapist who conducted the examination reported that the "claimant's participation during the FCE was identified to be a full voluntary effort passing 5 of 5 validity checks." Her report noted the following:

The claimant consistently placed all his weight on his right leg;
While heel-to-toe walking, he reported/demonstrated "very poor balance";
While braided walking, he reported/demonstrated "very poor balance";
His lifting ability - both isometrically bilaterally and dynamically bilaterally - was rated at a medium rate of work capacity;
During the lifting exercise, his heart rate response was higher than expected; due to de-conditioning; and
She recommended restrictions in respect of crouching and stooping.

The medical advisor, who ultimately decided he needed no restrictions, interviewed him immediately following the FCE and reported the following:

"It would appear the claimant has plateaued. Further treatment will unlikely provide any significant benefit." She also noted that "once the FCE is reviewed the claimant's restrictions will be formulated." However, there is no evidence on file that this was ever done. We can only conclude that, once the surveillance was conducted, no other evaluation was considered.

Prior to terminating his benefits, the board sent the claimant for a six-week period of re-conditioning. In her final report, the physiotherapist reported the following:

The patient worked hard and did all he was asked to do;
He has permanent limitations at his left ankle - limited range of motion, limited sensation, limited function; and
She recommended that his return to work be with restrictions/retraining.

We gave considerable weight to medical reports and opinions not available to the adjudicator or Review Officer at the time of their decisions to terminate benefits.

In October 2001, in two separate letters, the physiotherapist who had treated him during two reconditioning sessions - in 1999 and 2001 - wrote the following:

In December 2001, the claimant was examined by an orthopaedic consultant, who wrote, in conclusion:

"By my assessment, he does have restrictions in ankle range of motion. These have been documented by his treating physiotherapist who has more extensive contact with [the claimant] and [is] in a better position to judge. This kind of restriction would likely affect balance and agility in climbing, walking and working on construction. I understand this is the main reason he was accepted for retraining once it was clear that his injury employer could not offer him a suitable replacement job. In my opinion, the video footage is insubstantial evidence to override the physiotherapist assessment and the functional capacity evaluation used to better assess his impairments." Finally, in February 2002, his regular physician reported the following:

In respect of the video, this doctor wrote:

"I think it is totally unrealistic and poor evidence that he is recovered from his compensable injury." Based on the foregoing, we have concluded that the claimant does have ongoing restrictions and that - on a balance of probabilities - these restrictions are a result of his workplace accident of March 3, 1998. Thus, he has a continuing loss of earning capacity and the board has continuing responsibilities to work with him to address these restrictions. The claimant is therefore entitled to wage loss benefits beyond June 28, 2001.

Accordingly, the appeal is allowed.

Panel Members

T. Sargeant, Presiding Officer
J. MacKay, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

T. Sargeant - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 18th day of April, 2002

Back