Decision #33/03 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on October 29, 2002, at the request of both the claimant and the employer. The Panel discussed this appeal on October 29, 2002 and again on February 27, 2003.

Issue

Claimant's Issue: Whether or not the claimant is entitled to compensation benefits beyond December 14, 2001.

Employer's Issue: Whether or not the claim is acceptable.

Decision

Claimant's Issue: That the claimant is entitled to compensation benefits beyond December 14, 2001.

Employer's Issue: That the claim is acceptable.

Decision: Unanimous

Background

On August 20, 1998, the claimant was sleeping in a bunk of a truck while another person was driving, when he experienced pain in his right low back and leg while attempting to get up. Prior to this incident, the claimant felt soreness in his back after moving several crates in the trailer of his truck to avoid being ticketed on August 12, 1998. The claimant was eventually diagnosed with an L5 disc syndrome (initial diagnosis was recorded as sciatica) and has been assigned permanent restrictions to avoid lifting greater than 20 pounds, avoid repetitive bending and lifting and to change positions regularly. The Workers Compensation Board (WCB) then sponsored the claimant into a university program to obtain a degree in agriculture.

In January 2001, a WCB physical medicine and rehabilitation consultant (a physiatrist) examined the claimant. The consultant noted that radiological evidence suggested that the claimant had pre-existing multi-level degenerative changes of the lumbosacral spine; suspect acute L5-S1 disc herniation and right S1 nerve root compression. The consultant noted that the claimant's current symptoms were suggestive of ongoing lower lumbosacral root irritation on the right without definite evidence of lower lumbosacral nerve root compression. The claimant was advised to maintain his overall conditioning and to perform regular fitness activities in spite of lower lumbosacral root irritative symptoms.

A WCB Pain Management Unit intake conference memo dated March 8, 2001 noted that the claimant was no longer attending school due to pain. He found that chiropractic treatment was the only effective form of treatment. Arrangements were then made for the claimant to be assessed by a medical advisor from the Pain Management Unit on May 10, 2001.

At a Pain Management Unit case conference held on May 28, 2001, it was determined that the claimant did not meet the diagnostic criteria for chronic pain syndrome (CPS) as his disability was not proportionate in all areas of functioning. It was decided that it would be beneficial if there was clarification with respect to the claimant's functional status. The case was then referred back to case management for further consideration.

In September and November of 2001, videotape surveillance was taken of the claimant's activities.

In a memo dated December 11, 2001, a WCB medical advisor noted that he had reviewed the file in detail and his conclusions were as follows:
"…the activities carried out by this claimant throughout the three days of surveillance would suggest he is totally recovered from the effects of his prior back complaints although, as previously stated, no specific compensable injury has been identified. Based on review of these videos, this individual should be capable of returning to full work activities without the need for any physical restrictions."
On December 13, 2001, the claimant was advised by primary adjudication that he was considered to have recovered entirely from the effects of his August 20, 1998 compensable accident. Wage loss benefits would therefore conclude on December 14, 2001.

On March 15, 2002, Review Office considered appeal submissions received from the claimant dated December 21, 2001 and January 24, 2002. Review Office also took into consideration a chiropractic report dated December 20, 2001, a clinical psychologist's report dated January 3, 2002 and a report by the attending physician dated January 4, 2002. A submission was also received from the employer's advocate dated February 27, 2002 requesting Review Office to consider the acceptability of the initial claim.

In a decision dated March 15, 2002, Review Office confirmed that the claimant had essentially recovered to the point of returning to his pre-accident duties insofar as the compensable injury was concerned and that he was not entitled to benefits beyond December 14, 2001. Review Office reached this decision after reviewing the opinion expressed by the WCB medical advisor on December 11, 2001. The opinion expressed by a WCB orthopaedic consultant on March 14, 2002, considered the videotape surveillance evidence and section 60(2) (c) & (e) of The Workers Compensation Act (the Act).

With respect to the employer's issue regarding the acceptance of the claim, Review Office referred the case back to primary adjudication to "further investigate the 'event' that apparently led to the claimant having a herniated disc."

In a letter dated June 4, 2002, primary adjudication advised the employer that, following a review of the circumstances surrounding the events leading to the claimant's back symptoms on August 20, 1998, it was unable to establish that an injury arose out of and in the course of the claimant's employment and therefore the claim was denied. "Due to the lack of acute symptoms consistent with the initial diagnosis, the ability to continue working regular duties, and the lack of reporting or seeking medical attention, Rehabilitation and Compensation Services is unable to establish that an accident as outlined in Section 1(1) arose out of and in the course of Mr. [the claimant's] duties, in respect to the events surrounding August 12, 1998. Considering the specific incident that occurred on August 20, 1998, Rehabilitation and Compensation Services is unable to establish a cause and effect relationship between the work activities and the initial diagnosis, therefore the claim for compensation was denied."

On August 30, 2002, Review Office considered an appeal submission received from the claimant's solicitor dated July 10, 2002, in which he disagreed with the WCB's decision that the claim for compensation was not acceptable. Review Office ultimately determined the file evidence established that the claimant sustained personal injury by accident arising out of and in the course of his employment on August 20, 1998. Review Office noted that the claimant reported his accident and injury in a timely manner to his employer and sought medical attention which confirmed a diagnosis of sciatica. On a balance of probabilities, Review Office found that the diagnosis was consistent with the compensable accident.

An Appeal Panel hearing took place on October 29, 2002 at the request of the claimant's solicitor who appealed Review Office's March 15, 2002 decision that the claimant was no longer entitled to benefits beyond December 14, 2001. The Appeal Panel also considered an appeal by the employer's advocate who appealed Review Office's decision of August 30, 2002 with respect to claim acceptability.

Following the hearing and discussion of the case, the Appeal Panel requested that an independent specialist examine the claimant with respect to his lower back status. A physical medicine and rehabilitation specialist assessed the claimant and his report dated January 27, 2003 was forwarded to the interested parties for comment.

On February 27, 2003, the Panel met further to discuss the case and, in addition, considered final submissions received from the claimant's solicitor, the claimant and the employer's advocate.

Reasons

As the background notes indicate, both the employer and the worker have brought separate appeals forward. We will deal with the employer's appeal first, that being claim acceptability.

Section 4(1) of the Act provides for the payment of compensation benefits to a worker where he or she sustains personal injury by accident arising out of and in the course of employment.
"Where, in any industry within the scope of this Part, personal injury by accident arising out of and in the course of the employment is caused to a worker, compensation as provided by this part shall be paid by the board out of the accident fund, subject to the following subsections."
In keeping with this section, the Panel must, initially, be satisfied that there has been an accident within the meaning of section 1(1) of the Act. An accident is defined as, "a chance event occasioned by a physical or natural cause; and includes
  1. A wilful and intentional act that is not the act of the worker,
  2. any
    1. event arising out of, and in the course of, employment, or
    2. thing that is done and the doing of which arises out of, and in the course of, employment, and
  3. an occupational disease
and as a result of which a worker is injured.

The evidence has revealed that the claimant first began to experience his low back difficulties possibly on or about August 12th, 1998 when he physically readjusted improperly loaded freight that he was hauling. The claimant sustained further work related back discomfort on August 20th, 1998 while resting in the sleeper in the back of the transport truck in which he was riding. Upon awaking, he immediately encountered pain in his lower back that radiated into his buttock and down his right leg. A few days following this event, the worker sought medical attention at a local hospital. The emergency report form recorded a diagnosis of sciatica. The treating physician's first report proffered a diagnosis of "lumbar nerve compression secondary to muscle spasm and possible disc disease". A subsequent CT scan of the claimant's lumbosacral spine confirmed an L5-S1 disc herniation together with some posterior displacement and compression of the right S1 nerve root. We note that this radiological finding was entirely consistent with the claimant's clinical presentation.

Based on the preponderance of evidence we find that the claimant's low back condition arose out of and in the course of his employment. The claimant's having the opportunity to lay down and sleep while travelling in the truck was clearly made available to him by the employer and expected in a tandem truck-driving scenario. We further find that the claimant's back difficulties could and did, on a balance of probabilities, develop as a consequence of truck vibration caused by a combination of factors such as road conditions, weather and traffic in general. In coming to this conclusion, we paid particular attention to certain comments made by an external independent medical specialist that are contained in his report of January 27th, 2003. "On balance of probability, the claimant's discopathy was the result of a gradual process with a proximate cause that occurred when he awoke on August 20, 1998. However, it appears that were it not for exposure to sleeping in a vibrating cab, that the clamant (sic) would not have become symptomatic on August 20, 1998."

We are satisfied that the claimant did sustain an accident resulting in personal injury, which arose out of and in the course of his employment. Accordingly the claim is acceptable and the employer's appeal is hereby dismissed.

With respect to the second issue, the evidence on file as well as the opinion provided by the independent external medical specialist confirms that the claimant had not returned to pre-accident status as a long distance truck driver and that medical restrictions were still applicable to his condition at the time benefits were terminated. The evidence further establishes that although the claimant had not totally recovered from the effects of his compensable injury at this time he nevertheless was not suffering a total loss of earning capacity.

In light of the foregoing, we are of the view that it may have been premature on the part of the WCB to terminate as opposed to having reduced the claimant's benefits in their entirety when it did. There is no question that in accordance with the obligation created by section 22 of the Act, the claimant failed to mitigate the consequences of his accident and as such his benefits should have been reduced to such sum as would be payable if the worker "had mitigated the consequences of the accident". The video surveillance tape clearly exhibits the claimant's ability to perform light/medium activities. We note as well that even while benefits were being paid to the claimant, he for whatever reason unceremoniously withdrew from participation in vocational rehabilitation.

In assessing the claimant's degree of diminished earning capacity, we attached considerable weight to the opinion provided by the external independent medical specialist, especially the following remarks:
"The video surveillance clearly indicates that the claimant is capable of performing a variety of tasks safely, estimated at up to medium-level work. This probably represents a safe minimum capacity for him to perform on an intermittent basis. It shows that he is able to perform a variety of light to sedentary activities and able to operate a vehicle. His range of motion is within reasonably normal limits, consistent with the current and some prior physical examinations.
The above does not lend support to the conclusion that the claimant's lumbar disc herniation has healed. Rather, it supports that in his current state of mild dural irritation and probable right S1 nerve irritation, that he is able to perform a variety of activities safely.
That he doesn't show pain behaviour on the surveillance videotapes attests to the improbability of a chronic pain or other somatoform disorder. It does not constitute evidence that his pain has resolved nor does it support the conclusion that he is fit to perform the essential tasks of a long distance truck driver."

"His current condition has likely been perpetuated to some degree by his relative inactivity/deconditioning and perhaps also by psychosocial factors. The latter has likely arisen from the manner in which this claimant's benefits were terminated."

"The primary limiting factor preventing the claimant from returning to his former occupation is his report of sitting intolerance. While this is consistent with a lumbosacral disc herniation, he is capable of sitting consistently for a prolonged period both in this examiner's office and on the video surveillance while operating a motor vehicle. This suggests that he may be able to tolerate shorter distance driving using vehicles associated with less vibration. Accordingly, he would be fit to perform similar activities that require bending, lifting and driving but perhaps not yet at the long distance truck driving level."

After thoroughly considering all of the evidence on file, the video surveillance tapes, the claimant's oral evidence, the arguments advanced by the parties as well as the external independent medical opinion, we find that the claimant was not totally disabled at the time his benefits were terminated, but rather, he was, on a balance of probabilities capable of performing light/medium work activities. At the very least, he is entitled to partial wage loss benefits beyond December 14th, 2001. When calculating the claimant's current earning capacity, the WCB should, of course, take into consideration the medical restrictions enumerated by the external independent medical specialist in his report of January 27th, 2003. Notwithstanding the foregoing determination, we further conclude that the amount of compensation (i.e., partial wage loss benefits), which would ordinarily be payable to the claimant beyond December 14th, 2001 up to and including the date of this decision (March 28th, 2003), should be reduced in its entirety during this period inasmuch as he has failed to mitigate the consequences of his accident in accordance with section 22 of the Act. In addition, qualification for other benefits beyond this partial loss of earning capacity level would be dependent upon the claimant's full participation and cooperation with the WCB's discretionary implementation of a mutually agreed upon vocational rehabilitation plan.

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 28th day of March, 2003

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