Public Decisions | The Appeal Commission

Decision #99/02 - Type: Workers Compensation

Preamble

A non-oral file review was held on July 18, 2002, at the request of legal counsel, acting on behalf of the claimant.

Issue

Whether or not the worker is entitled to benefits beyond May 18, 2001.

Decision

That the worker is entitled to benefits beyond May 18, 2001.

Decision: Unanimous

Background

During the course of his employment as a construction labourer on July 9, 1990, the claimant sustained a compensable back injury when lifting a manhole cover. The claimant was initially diagnosed with a lumbar strain, however, further investigation revealed a left L4-5 disc protrusion which caused mild compression of the L5 nerve root. The Workers Compensation Board (WCB) accepted the claim and various benefits commenced. The claimant also received a 7.5% permanent partial impairment award in recognition of his lumbar spine.

In July 1995, the claimant was seen at the WCB's Pain Management Unit (PMU) for assessment of possible chronic pain syndrome. Following the assessment, primary adjudication agreed with the conclusions reached by the PMU that the claimant's chronic pain syndrome was not a direct result of his 1990 injury and that he was capable of sedentary to light duties with restrictions. Primary adjudication's decision was overturned by the Review Office when it determined that the claimant's chronic pain behavior syndrome was a consequence of his 1990 compensable accident.

On October 15 and 30, 1997, a surveillance videotape was taken of the claimant's activities. An investigation report pertaining to this surveillance is on file dated November 3, 1997.

In a memo to file dated March 13, 1998, a WCB adjudicator recorded that the surveillance videotape was reviewed by herself and by a PMU medical advisor. Based on this review, the PMU medical advisor stated, in part, "It would appear that this man has substantially accommodated to, or recovered, from his Chronic Pain Syndrome. In addition, his fluid and quite substantial range of motion would suggest that he has also made significant physical recovery. These findings would suggest that this individual is capable of returning to gainful employment. "

On April 2, 1998, a second WCB medical advisor reviewed the surveillance videotape and made the following comments:

the claimant was capable of work - more than likely full hours;
a PPI reassessment should be undertaken;
a FCE could be done if required. "He would likely be able to do caretaking at the very minimum."

In a letter dated April 8, 1998, the claimant was informed that he was no longer suffering from chronic pain syndrome in light of the comments expressed by the WCB healthcare advisor and the surveillance videotape evidence. Effective April 8, 1998, the claimant's WCB benefits reverted back to partial wage loss benefits through the vocational rehabilitation branch.

On June 24, 1998, a WCB impairment award medical advisor determined that the claimant incurred a 9.9% permanent impairment award with respect to his lumbar spine.

On December 7, 1998, a WCB medical advisor determined that the claimant likely had no restrictions, or for moderate labour at least, and that he had physically recovered from the compensable injury.

In a letter dated February 25, 1999, the claimant was advised by primary adjudication that there was no evidence to indicate that he was unable to work within the previously outlined permanent restrictions. On March 24, 1999, a Vocational Rehabilitation Consultant (VRC) confirmed that partial wage loss benefits would be payable to the claimant based on an earning capacity of $240 per week. The claimant was also advised that he was eligible for further vocational rehabilitation services to assist him in locating employment within his restrictions.

On February 1, 2001, the claimant was examined at the WCB offices to re-evaluate his current physical status. Following the examination, the medical advisor provided the following impression:

In a letter by primary adjudication dated February 26, 2001, the claimant was informed that on December 7, 1998, a WCB medical advisor found that he was fit to perform moderate labour and that he had likely recovered from the compensable injury. Due to an error, WCB benefits did not end at that time. Based on the February 1, 2001 examination notes, primary adjudication felt that the claimant had recovered from the effects of his compensable injury and that any current problems he had were due to the degenerative changes in his spine. The degenerative changes in the lumbar spine represented a pre-existing condition that was not covered by the WCB. In accordance with Policy 44.30.60, benefits would be extended to May 18, 2001 inclusive. On June 11, 2001, the claimant's solicitor appealed the decision to Review Office.

Prior to considering the appeal, Review Office arranged for the claimant to undergo a CT scan of his lumbar spine and then sought the opinion of a WCB orthopaedic consultant on November 9, 2001.

In response to questions posed by Review Office, the WCB orthopaedic consultant noted that the CT findings of 2001 were essentially unchanged from previous CT scans which were taken in 1993 and those taken in 1990. The results were that of degenerative disc disease and osteoarthritis leading to degenerative stenosis. The consultant was asked to comment on whether or not the claimant required restrictions in relation to the most recent CT scan findings. He responded by stating, in part, "restrictions are based on physical exam and investigative tests and not on C.T. results alone." With respect to whether or not the claimant was capable of performing his pre-accident duties as a labourer in construction, the consultant stated, "The C.T. alone does not rule out this activity."

In a decision dated November 16, 2001, Review Office determined the following:

that the claimant had not recovered from the effects of his compensable injury by December 7, 1998. Review Office felt that the claimant was no longer totally disabled by reason of his chronic pain syndrome but that he had not fully recovered from his injury to the point of being able to return to his pre-accident duties as a construction labourer.
that the claimant had recovered from the effects of his compensable injury as of May 18, 2001. Review Office based this decision on the WCB examination findings of January 31, 2001, the results of the October 15, 2001 CT scan and the comments put forth by the WCB orthopaedic specialist on November 13, 2001.

On May 24, 2002, the claimant's solicitor appealed Review Office's decision and a non-oral file review was arranged.

Reasons

Throughout the history of this file, the claimant's permanent restrictions of avoiding heavy lifting, repetitive or prolonged bending and twisting have remained in effect, and have precluded the claimant from returning to his pre-accident employment as a construction labourer. While recent medical reports note improvement in his physical capacity, we do note that the claimant was provided with a permanent partial impairment award for his physical injuries, and that the permanent compensable restrictions have not been lifted by the WCB. We therefore find that the claimant is not capable of returning to his pre-accident duties, at least in part as a consequence of his compensable injury. Accordingly, the claimant is entitled to benefits beyond May 18, 2001.

The weight of evidence confirms, however, that the claimant is not totally disabled from participating in full-time employment. We note that earlier on in the file the claimant had been deemed capable of earning provincial minimum wage for full-time employment. Specifically this occurred in December 1995 and February 1999. It may be appropriate for the WCB to revisit this process once again.

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 4th day of September, 2002

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