Decision #77/03 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on November 4, 2002, at the request of legal counsel acting on behalf of the claimant. The Panel discussed this appeal on November 4, 2002 and again on May 28, 2003.

Issue

Whether or not the claimant's benefits should have been discontinued effective June 18, 2001.

Decision

That the claimant's benefits should have been discontinued effective June 18, 2001.

Decision: Unanimous

Background

On January 22, 2001, an Appeal Panel hearing took place at the Appeal Commission at the request of legal counsel, acting on behalf of the claimant. For a complete background concerning the details leading up to the January 22, 2001 hearing, please refer to Appeal Panel Decision No. 21/01.

The Appeal Panel ultimately determined that the claimant should not have been cut off from wage loss benefits on May 19, 1999. The Appeal Panel found that the Board was remiss in not pursuing a comprehensive rehabilitation program as recommended by various physicians. The Appeal Panel directed that the matter be referred to the board to arrange for a full assessment of the claimant through the Pain Management Unit of the WCB and subsequent adjudication/management of the claim.

Subsequent to the Appeal Panel's decision, a surveillance videotape of the claimant's activities was conduced on several dates between April 23, 2001 and May 15, 2001. On May 7, 2001, the claimant was assessed by a PMU medical advisor.

In a memo to file dated June 18, 2001, a WCB case manager commented that the videotape surveillance had been reviewed by herself and by two WCB heath care consultants on May 7 and June 15, 2001. It was determined that the claimant's level of functioning and ability observed in the videotape directly contradicted the level of functioning and pain reported by the claimant.

On June 18, 2001, the claimant was informed by letter that wage loss benefits would be paid to June 18, 2001 inclusive and final. The case manager provided details of what was noted on the surveillance videotape. The case manager indicated that the claimant did not show any signs of discomfort or pain and that he was able to bend, stoop and lift weights of approximately 25 pounds with his arms outstretched and was able to carry weight on his shoulders. The claimant was shown to be able to get down on the ground and then rise up again with no apparent distress. It was therefore concluded that the claimant did not require any restrictions for his back and that he had recovered from his work injury. The case manager further noted that a WCB psychiatric consultant had reviewed the videotape evidence. He was of the opinion that the claimant did not qualify for a diagnosis of chronic pain syndrome as the disability was not proportionate in all areas of functioning.

In response to the above letter, a solicitor acting on behalf of the claimant, wrote to primary adjudication on September 5, 2001. The solicitor quoted the following excerpt from the previous Appeal Panel's decision:
"The panel is of the view that the claimant should have been enrolled in a comprehensive work reentry program which includes reconditioning, work hardening, pain management and psychological input as recommended. The future requirement for this type of program will depend on the outcomes of the PMU referral that we have recommended."
The solicitor noted that the claimant, on a number of occasions, had requested that the WCB enroll him in a work hardening pain management program but the WCB had refused. Instead, the WCB was intent on reconstructing events to make a case that the claimant was not disabled as he had indicated. The solicitor pointed out that this was a direct contradiction to the Appeal Commission's findings as well as that of the Medical Review Panel's findings that the claimant's conditions were real and that he was not malingering. The solicitor contended that the videotapes appeared to have been conveniently edited to delete those times that the claimant was reacting to the pain caused by the activities.

On September 11, 2001, the WCB case manager responded to the solicitor's letter of September 5, 2001. The case manager made the following comments:
  • the claimant was referred to the WCB's PMU and his appointment was on May 7, 2001. The claimant was not referred for further treatment or programming as he did not meet the diagnostic criteria for chronic pain syndrome. It was further determined that the claimant did not require any restrictions for his back and that he had recovered from his work injury.

  • the WCB did not edit the surveillance videotapes. In addition to the actual video, there were written notes and observations that were made by the investigator which backed up each tape.

On January 17, 2002, the claimant's solicitor provided the WCB with a medical report dated December 24, 2001 that stated the claimant continued to be totally disabled as a result of his work related injury. The solicitor noted that the video tape evidence presented no grounds for the WCB to terminate the claimant's benefits and that the Appeal Panel had already ruled that the claimant was eligible for benefits. The solicitor commented there was no evidence that there had been a change in the claimant's condition from the date of the previous Appeal Panel hearing to the date that the video was taken.

In a decision dated February 22, 2002, Review Office confirmed that the claimant's benefits should have been terminated effective June 18, 2001. Review Office was of the opinion the claimant had recovered from the effects of the compensable injuries he incurred on January 24, 1998 and there was no evidence to support any ongoing loss of earning capacity beyond June 18, 2001.

Review Office also noted that the previous Appeal Panel's decision concluded that the claimant's benefits were prematurely discontinued without first taking the appropriate steps to determine the existence of a chronic pain condition and any relationship to the compensable injuries. Review Office believed that this had now been investigated and that the evidence did not support the existence of a chronic pain condition being related to the January 24, 1998 compensable injury. On April 24, 2002, the solicitor appealed Review Office's decision and an oral hearing was convened.

Following the hearing and discussion of the case, the Appeal Panel requested that additional information be obtained from the claimant's treating psychologist. A report from the psychologist was later received and was forwarded to the parties with a direct interest for possible comment.

On February 28, 2003, the Panel met again to discuss the case. It was decided that before rendering a decision with respect to the issue under appeal, that the Pain Management Unit at the WCB would be asked to complete all the necessary steps to establish the claimant's functional capacity and to comment on whether or not he qualified for a diagnosis of chronic pain syndrome. On May 13, 2003, all interested parties were provided with the information that was submitted by the Pain Management Unit and were asked to provide comment. On May 28, 2003, the Panel after reviewing a submission from the claimant's solicitor dated May 27, 2003, met to discuss the case.

Reasons

The WCB terminated the claimant’s benefits effective June 18th, 2001 after it determined that the claimant had recovered from the effects of his compensable injury. Review Office decision of February 22nd, 2002 states, in part, as follows: “Based on all the information available, it is opinion (sic) of Review Office that the evidence supports this worker has recovered from the effects of the compensible (sic) injuries incurred January 24, 1998. There is no evidence to support any ongoing loss of earning capacity beyond June 18, 2001”. In a prior decision of the Appeal Commission dated February 8th, 2001, the Panel came to the following conclusion with respect to the issue which was under appeal:

“In hearing this appeal, the panel has taken note of numerous references made by various physicians, including the MRP and WCB consultants, wherein suggestion is made that the claimant may have, or be developing, chronic pain or a chronic pain syndrome. In this regard, we find that the WCB prematurely discontinued the claimant’s benefits without first taking appropriate and clearly indicated steps to determine the existence of a chronic pain condition and, more importantly, its relationship to the compensable event.”

A medical review panel (MRP) examined the claimant on May 12th, 2000. Following its examination, the MRP concluded that there were no temporary or permanent work restrictions that were presently warranted.

In accordance with the foregoing Appeal Panel decision, arrangements were made for the claimant to be interviewed/assessed by the WCB’s pain management unit (PMU) on May 7th, 2001. Under the summary, decisions and comments portion of its report, the PMU medical advisor recorded the following comments: “We reviewed the results of the Claimant’s assessment. It was decided that following clarification of the Claimant’s functional status the Pain Management Unit will then be able to comment on whether or not the Claimant qualifies for a diagnosis of Chronic Pain Syndrome.”

File information revealed that the claimant had been the subject of videotape surveillance for several days during the latter part of April and the early part of May 2001. The PMU medical advisor after viewing the tapes summarized his opinion as to the claimant’s fitness in a memorandum to file dated June 15th, 2001: “Based on the level of function demonstrated by the claimant on the surveillance tapes which were obtained between April 23rd & May 15, 2001, the claimant does not qualify for a diagnosis of Chronic pain Syndrome as the disability is not proportionate in all areas of functioning.”

Prior to arriving at a decision with respect to this case, we were somewhat concerned that a complete clarification of the claimant’s functional status was never carried out by the WCB i.e., no formal functional capacity evaluation was ever conducted as was originally suggested by the PMU. Consequently, we requested Medical Services to assess the claimant’s functional status and have the PMU comment on a possible diagnosis of chronic pain syndrome.

A functional capacity evaluation was performed on March 26th, 2003 at the Workers Compensation Board. The claimant was informed that the purpose of the evaluation was to obtain current information regarding his injury and his existing abilities and capabilities. The Functional Abilities Evaluator concluded her report with the following comments:

“The FCE was marginally valid. The claimant presented with many episodes of sudden back muscle spasms, and needed to lie on the floor to stretch out at one point. He did attempt all the tests. His heart rate was high at resting levels, and increased with exertion, but did not return to resting levels in an expected time frame. This may indicate general de-conditioning. Demonstrated abilities were: carrying 20lb for 30ft, walking very slowly; Lifting 20lb from knuckle to above shoulder occasionally; Crouching for a short time; Climbing/descending one flight of stairs. The claimant is not capable of lifting with two hands from a crouch position, lifting with a flexed spine, repetitive spinal flexion/extension, repetitive stooping or crouching.”

We took particular note of the fact that the FCE was marginally valid. In addition, we found the FCE results to be inconsistent with the claimant’s demonstrated abilities as recorded on the surveillance videos. For instance, we cite the following PMU comments contained in a May 3rd, 2003 memorandum: “In the video surveillance tapes the claimant is observed to undertake numerous physical activities, for example, helping to load items he had purchased into his car, getting down on the ground to fasten a bungee cord to the trunk, move the items which he had purchased from the car to his truck, and while undertaking these activities he appeared to do so with fluid motion and in the absence of any pain behavior or any obvious discomfort. The claimant, while transferring the items from his car to his truck again got down on the ground on the ground as it appeared he was checking the trunk where he fastened the bungee cord. The claimant then returns to a standing position without any apparent discomfort. There is also on occasion when the claimant carries one of his children on his shoulder and, while doing this as well as when he puts him down, there is normal fluid movement and no apparent pain behavior. At that time, the claimant did not appear to be in any discomfort.”

With respect to the possible diagnosis of chronic pain syndrome, we received for our consideration a memorandum clarifying this issue from the PMU medical advisor dated May 3rd, 2003. The memorandum, which we found to be impressively direct and decisive, stated in part as follows:

“In order to qualify for a diagnosis of Chronic Pain Syndrome as per WCB Manitoba diagnostic criteria, there must be pain which ‘results in a marked disability that affects proportionately their occupation and social and recreational areas of functioning. Disability affecting solely or disproportionately the occupational area of functioning only is not an indication of Chronic Pain syndrome’. The video surveillance obtained between April 23 and May 15, 2001 did, in fact, supply the functional clarification requested in the Pain Management Unit Assessment conference notes of May 11, 2001.

Given the level of the claimant’s function, his ability to undertake numerous activities with the absence of any obvious pain behavior or discomfort, the inconsistencies between his report in the Pain Management Unit interview of May 7, 2001 when compared with the observed activities of the video surveillance tapes obtained between April 23 and May 15, 2001, and as stated previously in the memorandum to file dated June 15, 2001 from the Medical Advisor to the Pain Management Unit, it is the opinion of the Pain Management Unit that the claimant does not meet the diagnostic criteria for Chronic Pain Syndrome ‘as the disability is not proportionate in all areas of functioning.’ As the functional clarification required by the Pain Management Unit was obtained and as an opinion as to whether or not the claimant qualified for a diagnosis of Chronic pain Syndrome was rendered, it does not appear necessary for the claimant to undergo any further assessment by the pain Management Unit.”

The claimant’s treating physician was called as a witness at the hearing. He was asked several questions by the panel members regarding the claimant’s prospect of recovery, treatment and work capabilities.

Q. Just one last question. I think you kind of answered this in some of your quotes, but what is your long-term prognosis then for [the claimant]?

A. I firmly believe that, you know, an attempt at a lengthy rehab program and that, I think we’d get some gains. Whether [the claimant] would be able, you know, go back driving a truck or painting, probably not. But I think there are still avenues that, you know that he could find employment. I believe that.

Q. And I think you’ve been pretty clear, Dr. [name], in your recommendations around a comprehensive back program for functioning conditioning. Can you be a little bit more specific? I know you’ve talked about a lengthy rehabilitation program. If you were to recommend specifically to the Board what you would hope to see happen, can you elaborate a little bit on that rehab program? Would it be physiotherapy? Would it be work hardening? What kinds of things?

A. And I think it would be all of those. I think it would be work hardening. It would be physiotherapy. It would be clinical psychology for pain management. Because all of those, you know, are part of this whole process. You know, in Manitoba, the only program that I’m aware of is the one at the Rehab, you know, the power program. And through that. And I think they’re the ones who also, you know, have the expertise in terms of saying, you know, here’s how you have to push because that becomes part of the overall process that you try to get people to go through the pain saying, “You know, your days have been crummy and you’ve had lots of pain but, you know, stay with us for, you know, 12, 16 weeks and you’ll be able to see that you’re able to do more. Maybe your pain isn’t all that different but you’ll get a bit more functional.” And with that, it, you know, helps from a mindset and physically people do better.

Q. And would it be also fair to say that you’ve indicated that, albeit that these are significant problems for Mr. [the claimant], he’s not totally disabled, that he would be able to perform some work or job function other than his pre-accident duties?

A. Yes. I believe that. I mean, if, you know, appropriate duty to accommodate in terms of position, limitations with respect to lifting, extended positions, yes, I think there are some jobs that would be possible.

Q. Having said that, what if any restrictions would you think would be applicable to Mr. [the claimant] at this time? Bearing in mind that back, right at the initial examination by the Board, they suggested the following limitations in the workplace atmosphere: minimized prolonged sitting or walking, minimized frequent stooping especially when twisting of the spine is involved, avoid lifting of greater than ten pounds from the ground.

A. I could agree with all of those.

Q. And they would still be applicable in your opinion today?

A. H’mm - H’mm.

After a careful and thorough review of all of the evidence including the video surveillance tapes, we find that the claimant has, on a balance of probabilities, recovered from the effects of his compensable injury. In contrast to the treating physician’s opinion that the claimant has ongoing restrictions it should be noted that the independent Medical Review Panel following its May 12th, 2000 examination was “unable to describe or quantify any physical restrictions” for the claimant. We also accept the evidence that the claimant does not qualify for a diagnosis of chronic pain syndrome. We further find based on the preponderance of evidence that the claimant’s ongoing difficulties relate more to his non-compensable physical de-conditioning. As such, the claimant’s benefits should have been discontinued effective June 18, 2001. Accordingly, the claimant’s appeal is hereby dismissed.

Panel Members

R. W. MacNeil, Presiding Officer
P. Challoner, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

R.W. MacNeil - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 9th day of July, 2003

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