The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on November 27, 2002, at the request of the claimant. The Panel discussed this appeal on several occasions, the last one being September 18, 2003.

Issue

Whether or not the worker is entitled to wage loss benefits beyond November 20, 2001.

Decision

That the worker is entitled to wage loss benefits commencing the date of the hearing and is dependent upon the claimant's active co-operation and participation in a vocational rehabilitation plan and the implementation of any treatment plans.

Decision: Unanimous

Background

While employed as a boilermaker (rigger) on October 22, 1992, the claimant fell down a flight of stairs when the heel of his boot caught a bolt which was located on the staircase. As a result of the accident, the claimant sustained injuries to his neck, back, right knee and elbow and also struck his head. Responsibility for the claim was accepted by the Workers Compensation Board (WCB) and benefits were paid accordingly. In 1995, the claimant was awarded a 15% Permanent Partial Impairment (PPI) award for postural vertigo and for difficulties with station and gait.

Subsequent file records showed that the claimant disagreed with the amount of his impairment award and several appeals were submitted to Review Office in connection with this issue. On May 24, 1996, Review Office increased the claimant's PPI rating from 15% to 25% based upon Class 3 of the Criteria of Vestibular Impairment which carried a range of 10 to 30%. On December 17, 1997, Review Office confirmed the 25% impairment rating and the case was referred to an Appeal Panel for further consideration. In a June 17, 1998 decision, the Appeal Panel determined that the 25% rating was appropriate. For further background details of the case, please refer to Appeal Panel Decision No. 88/98.

On November 20, 2001, the claimant was informed by the WCB that his claim had been reviewed by the WCB's Special Investigations Unit due to concerns related to his functional capabilities and ongoing reported disability. Based upon a review of surveillance videotapes that were taken between November 18, 1998 and November 1, 2001 along with the opinion expressed by a WCB ENT consultant to the WCB, it was determined that there was no evidence to support the claimant's ongoing contention of disability. As a result of this decision, the claimant's wage loss benefits and services were discontinued effective November 20, 2001. The claimant subsequently appealed this decision to Review Office.

In a decision dated January 18, 2002, Review Office determined that the claimant was not entitled to payment of wage loss benefits beyond November 20, 2001. In reaching this conclusion, Review Office took into consideration the opinions/comments that were expressed in the following reports:

• January 10, 1995: A specialist in neurology and neuro-ophthalmology stated that the claimant had a peripheral vestibular disorder and a component of post traumatic migraine. She suggested that the claimant not work at great heights on a permanent basis.
  
  
• May 29, 1997: The specialist reported that the claimant became quite ill while driving in the form of nausea but was not vertiginous.
  
  
• November 19, 1997: The specialist reported that the claimant continued to have difficulty in moving vehicles with significant nausea and vomiting and head movement, even as it pertained to reading or using a computer.
  
  
• August 12, 1999: The specialist commented that the claimant felt that his balance had worsened and that his nausea was constant and that he was easily disoriented.
  
  
• January 16, 2001: An otolaryngologist from Toronto commented as follows, "…this gentleman's symptoms cannot reasonably be ascribed to any ongoing vestibular system abnormality. I say this given their duration, the fact that I can detect no abnormalities during the course of my clinical examination nor indeed were there any noted on the basis of his electronystagmogram. Clearly he is handicapped. I do not feel that he is malingering. Rather, these are a combination of phobic feelings, anxiety and perhaps some degree of depression as a consequence of the desperate strait in which he finds himself in."
  
  
• November 16, 2001: A WCB otolaryngology consultant commented on the activities that the claimant was performing on the surveillance videotapes, i.e. painting, home repairs, driving, climbing, shopping, etc. Based on his observations and the report submitted by the Toronto otolaryngologist dated January 16, 2001, the consultant stated that he could not find any evidence to support the claimant's disability.

After reviewing the case along with the surveillance videotapes, Review Office felt that the claimant had been guilty of misrepresenting his circumstances to the WCB as well as to his treating practitioners. Review Office concurred with the opinion expressed by the WCB's otolaryngologist that the evidence did not support the worker's claim of disability. In accordance with Section 39(2) of The Workers Compensation Act (the Act), it was determined that the claimant was not entitled to payment of wage loss benefits beyond November 20, 2001.

On November 27, 2002, an oral hearing was held at the Appeal Commission at the request of the claimant. Following the hearing, the Appeal Panel met on several occasions to discuss the case and it requested and received the following information which was forwarded to the claimant for comment:

• Letters dated December 13, 2002 and March 12, 2003 by the claimant's treating neuro-opthalmology and neuro-otology specialist;
  
  
• Information obtained from the Manitoba's Motor Vehicle Branch;
  
  
• A report by an independent neurologist dated July 10, 2003; and
  
  
• A report by an independent psychiatrist dated August 12, 2003.

On September 18, 2003, the Panel met again to discuss the case and to render its final decision with respect to the issue under appeal.

Reasons

This case involves a worker who injured himself as a result of a workplace accident in 1992. As noted above, he sustained a number of injuries, including injuries to his head. His claim for compensation was accepted and benefits provided accordingly.

Benefits paid included a rating for a permanent partial impairment, as well as wage loss benefits, up to November 20, 2001. At that time, wage loss benefits and other compensatory services were terminated. This decision was upheld upon reconsideration by Review Office. He has appealed that decision to the Appeal Commission.

For his appeal to be successful, the Appeal Panel would have to determine that he has ongoing medical problems that are causally related to his compensable injury and that these medical problems have resulted in a loss of earning capacity. We did come to that determination, within the parameters set out below.

In coming to our decision, we conducted a thorough review of the claim file and held a hearing at which we heard testimony from the claimant. Subsequent to the hearing, we sought further information, as listed above. And, we referred the claimant for further examination by two independent medical examiners.

Owing to the nature of the claimant's injuries and the length of the claim, we were presented with a lot of evidence, some of which was contradictory. In particular, we note that the board conducted a lengthy surveillance of the claimant engaging in activities which would seem to indicate that the claimant was not nearly as disabled as he claimed.

His request that benefits be reinstated was denied based, largely, on the opinion of a board medical specialist who was of the view that the claimant's activities as demonstrated on the videotape were not consistent with the symptoms he claimed and for which he received compensation benefits.

It was also concluded that the videotape evidence showed that the claimant was guilty of misrepresenting his circumstances to the WCB.

In these reasons, we will consider the issues of the surveillance, his past medical problems and his current and ongoing medical problems.

Physical Medical Problems

As already noted, the claimant sustained a number of injuries as a result of his fall. Of particular concern to this appeal were the injuries caused by his head injury.

From the medical evidence on file, we note the following:

• November 1992 - On examination, a neurologist could find no neurological deficit.
  
  
• July 1993 - An otolaryngologist was unable to identify any positional gaze or spontaneous nystagmus, but found that head shaking provoked an after-nystagmus. He concluded that, as a result of his accident, the claimant had suffered an injury to his vestibular system.
  
  
• January 1995 - A specialist in neurology and neuro-ophthalmology noted that the claimant complained of dizziness, as well as throbbing headaches. She found that he had a clockwise and torsional nystagmus in his left eye. She concluded that he had a peripheral vestibular disorder, no evidence of a central nervous system disorder and a component of post-traumatic migraine. She felt he was permanently disabled from working again on narrow surfaces at great height.
  
  
• June 1995 - The neuro-ophthalmologist reported that the claimant continued to get significant motion sickness, that he no longer had the throbbing headaches, but now had ice pick headaches. She felt that his motion sickness was purely a vestibular abnormality, unrelated to the migraines. She also noted that he had profound anxiety associated with the dizziness.
  
  
• Doctor's reports over the next few years indicated that he continued to have problems with motion sickness, related nausea and severe headaches. The headaches were somewhat responsive to medication, but not the motion sickness.
  
  
• November 2000 - The neuro-ophthalmologist summed up his condition, at that time as "a documented vestibulopathy …, secondary to his head trauma … post traumatic migraines consisting of throbbing headaches and ice pick headaches, … reasonably well controlled on Verapamil … continues to have motion sickness, which is likely a function of both his vestibulopathy and his migraines, and the prognosis for this is poor." She also wrote that she did not "feel he could in any way perform the job for which he has been trained."
  
  
• January 2001 - The claimant was referred to a specialist in otolaryngology, in Toronto, for examination and assessment. This doctor wrote:

"Nystagmus was absent. … It is my opinion that this gentleman's symptoms cannot reasonably be ascribed to any ongoing vestibular system abnormality. I say this given their duration, the fact that I can detect no abnormalities during the course of my clinical examination nor indeed were there any noted on the basis of his electronystagmogram."

This outline of his medical problems shows that one of his principal physical problems was unsteadiness, which manifested itself in a number of ways, including, motion sickness, dizziness, light-headedness and, at least in the early years, involuntary eye movement.

In response to a query from the Appeal Panel, the treating neuro-ophthalmologist reported that, based on a May 2002 examination, she was of the view that "the vestibular abnormalities … have now fully compensated."

The above outline also shows that, throughout the period from the accident to the present, the claimant has had regular, often severe, headaches. In her letter to us, the neuro-ophthalmologist reported that, at the time of her original examination in 1995, "there was evidence for motion sensitivity secondary to migraine." She continued that, while "there has been significant improvement since … 1995, … the migraine induced motion sensitivity remains somewhat problematic. … It is well recognized that migraine can induce both vertigo and motion intolerance."

She also noted that the Toronto otolaryngologist did not address this issue.

Surveillance

Based on reports that the claimant was engaging in activities seemingly at odds with his disabilities, the board initiated an investigation that continued for some time and that included videotape surveillance of him doing things beyond the work restrictions placed on him.

These activities included:

• Driving his vehicle on a regular basis, often for relatively lengthy periods;
  
  
• Performing tasks around the home, including working on his truck or painting his porch; (On one occasion, he was seen standing, rather precariously, on the top step of a ladder, while painting.)
  
  
• Driving a motorcycle; on at least one occasion, fast enough to get a speeding ticket;
  
  
• Shopping at a supermarket.

While these may seem like rather innocuous activities, some of them go beyond what he claimed he could do when he applied for an increase in his impairment rating.

At least in respect of driving, we note that his treating neuro-ophthalmologist reported, in May 1997, that "he is not precluded from the operation of a motor vehicle, as he does not become vertiginous with motion sickness, simply nauseated." The Toronto otolaryngologist wrote that "the issue of him driving an automobile is left to him. Clearly if he feels capable of doing so with encouragement he should in fact be allowed."

In an interview with the board investigator, the claimant denied doing any of these things, until confronted with the videotape evidence. In his testimony before the Panel, the claimant was able to explain to us, satisfactorily for some, that he was able to do certain things in spite of his ongoing problems with dizziness. Nonetheless, we did find the contradictions posed by the videotapes to be quite disturbing in our consideration of the issues before us.

The videotape evidence suggests to us at least two possible explanations:

• One, that the claimant was less than forthright in his co-operation with the board in respect of his abilities. If so, this would lead to a failure to fully mitigate the consequences of his injuries. And, it would have worked against the success of the various rehabilitative efforts initiated by the board.
  
  
• Two, that the vestibular dysfunction was not always at play, that, at times, he was able to carry out some activities. This could be the case if we assume that he had either recovered from, or compensated for, the vestibular problems and that his motion problems were brought on by his regular, albeit not constant, headaches.

We are inclined to believe that elements of both were at play. We do not believe that the claimant was deliberately misleading the board or that he was committing a fraud on the board. However, we also do not believe that he was as cooperative with the board as he should have been.

The surveillance evidence will play a significant role in our final disposition of this appeal.

Psychological Concerns

Given the nature of his injury - a head injury - and the inevitable difficulties associated with coping with lengthy medical problems, the claimant has been examined by psychologists or psychiatrists on a number of occasions. Following are some of the findings in this regard:

• January 1995 - A psychologist reported that tests indicated "a mild-moderate level of anxiety, moderate level of depression and somatic complaints (e.g. headaches, faintness, pains in heart and chest, heart racing and pounding, nausea and upset stomach, and feeling weak in parts of his body)." He also noted a high frequency of sleep and weight disturbance. He felt that the patient needed to increase his sense of control over his vertigo and decrease the associated anxiety.
  
  
• April 1995 - Another psychologist concluded that the claimant met the DSM-IV criteria for mild Depressive Disorder. In a follow-up in July 1995, he noted that the potential existed for development of an anxiety disorder.
  
  
• April 1996 - A psychiatrist found "no evidence of a major psychiatric syndrome that would account for [the claimant's] ongoing disability. Specifically there was no evidence of depressive disorder, anxiety disorder, post-traumatic stress disorder, or psychotic disorder."
  
  
• July 1999 - the psychologist reported that the claimant was showing many signs of a "free-floating" anxiety.
  
  
• January 2001 - The otolaryngologist, in noting that his vestibular problems seemed to have resolved, attributed his symptoms to "a combination of phobic feelings, anxiety and perhaps some degree of depression …" He recommended that the claimant be referred for further psychological treatment.

Current Medical Condition

Following the hearing, we were left with many unanswered questions. To that end, on two occasions, we sought further information from the treating neuro-ophthalmologist. After receiving and reviewing her reports, we referred the claimant for independent medical examinations by a neurologist and by a psychiatrist.

In a December 2002 letter, the neuro-ophthalmologist reported to us that, based on a May 2002 examination, the claimant's current condition is:

• Right peripheral vestibular loss, now fully compensated but evidenced currently by retinal slip with head motion.
  
  
• Migraine induced motion sensitivity, manifested by motion induced nausea and vomiting, ice pick headaches, and responsivity to Verapamil. She noted that "it is well recognized that migraine can induce both vertigo and motion intolerance."
  
  
• Anxiety induced symptoms; possible panic attacks. She noted "it is well documented in the literature that vestibular problems can induce anxiety and panic attacks in susceptible individuals."

Following further queries from the Panel, she responded to us in March 2003 as follows, in part:

• The vestibular lesion is for the most part resolved, however there is still evidence of its prior existence on my most recent examination.
  
  
• The claimant's current motion sensitivity is not due to migraine attacks, but is a very common concomitant of migraine.
  
  
• "The migraine condition was exacerbated as a result of the 1992 accident." While she notes that "It is quite common for people with post traumatic migraines to have a pre-existing migraine or migraine predisposition", she does not conclude that he had a pre-existing condition. She adds that "the accident caused post-traumatic migraines."
  
  
• His current motion sensitivity is not due to anxiety attacks. Anxiety will exacerbate the motion sensitivity or, conversely, the motion sensitivity may provoke attacks of anxiety.
  
  
• Noting that she is not qualified to say whether his anxiety disorder is a direct result of the 1992 accident, she poses the possibility that the vestibular dysfunction and vertigo may have led to the anxiety disorder.
  
  
• His current motion sensitivity is multifactorial in its causation, each factor being significant at different times in his clinical course. The vestibular loss, migraine headaches and anxiety have all played role, at different times.

The psychiatrist, to whom we referred the claimant, reported:

• The claimant "experiences a significant degree of emotional distress in response to the specific symptomatology resulting from the injury (the headache and vertigo) functional impairment and economic hardship. These emotional responses cannot be characterized as a primary mental disorder but rather are considered to be usual and expected reactions to the provoking circumstances."
  
  
• "The psychological sequelae of the injury as described cannot be separated from the medical and social consequences of the injury. It is not possible to attribute employment disability to the emotional sequelae in and of themselves. The emotional sequelae are part and parcel of the entire situation and without the injury and subsequent development of symptomatology and loss of functional impairment would not exist."

The neurologist, to whom we referred the claimant, reported:

• "… he has residual vertigo from the 1992 accident."
  
  
• "The headaches have migrainous features … it would appear that the headaches also have resulted from his accident in 1992 and the associated head injury."
  
  
• "Right now he is disabled from any type of work."
  
  
• "The anxiety, which also seems to be part of his post accident clinical state, could be a contributing factor …"
  
  
• "… I do believe that he suffers from a form of migraine. The prominent symptoms are constant daily aching with ice pick features, nausea, vomiting, and dizziness. These are worsened by motion. I believe his migraines are a result of the workplace injury in October 1992. At the moment it is difficult to sort out which is the most disabling symptom, that is the vertigo, migraine or anxiety. Certainly the migraine is playing a role in him being unemployable."

Findings

From the foregoing evidence, we make the following findings:

• The claimant did sustain a vestibular disorder as a result of his workplace accident, from which he had recovered or for which he had learned to compensate, by no later than January 2001. This recovery or compensation may well have occurred earlier than that.
  
  
• The claimant's continues to suffer from migraine and/or ice-pick headaches. The preponderance of evidence supports a conclusion that the migraines were caused by the compensable injury. He has a residual vertigo as a result of these headaches.
  
  
  • We note that his headaches are of variable intensity and frequency. While these headaches have been treated in the past with medications with reasonable success, the evidence suggests that he has not been receiving such treatment recently. The independent medical opinions, received by the Panel, suggest that he should again be treated for his headaches.

• The claimant's current and ongoing anxiety condition is a sequela of the compensable injury.
  
  
• The claimant is currently unable to resume his pre-accident employment, as a result of these two ongoing problems. This is supported by the otolaryngologist, who wrote: "Clearly he is handicapped. I do not feel that he is malingering." The independent neurological examiner wrote that he is currently disabled from any work. It is our opinion that, with treatment aimed at the residual medical conditions and the cooperation of the claimant, his medical restrictions will evolve and he should be able to return to some type of work appropriate to his new medical restrictions.
  
  
• The claimant withheld information from the board in respect of his travel restrictions, which led to the board defining him as housebound, which constrained the development of a successful vocational rehabilitation plan.

Section 22 of The Workers Compensation Act states:

Where an injured worker persists in unsanitary or injurious practices which tend to imperil or retard his or her recovery, or refuses to submit to such medical or surgical treatment as in the opinion of the board is reasonably essential to promote his or her recovery, or fails in the opinion of the board to mitigate the consequences of the accident, the board may, in its discretion, reduce the compensation of the worker to such sum, if any, as would in its opinion be payable were such practices not persisted in or if the worker had submitted to the treatment or had mitigated the consequences of the accident.

We also find that the claimant did engage in practices which imperilled his recovery and that, through his less-than-full cooperation with the board, he failed to fully mitigate the consequences of his injuries. This is based, in large part on our viewing and consideration of the surveillance evidence and driving record.

Disposition

From the foregoing, we conclude that the claimant continues to have a loss of earning capacity owing to his workplace injury in 1992. Accordingly, he is entitled to compensation benefits.

We have also concluded that, based on the surveillance evidence and section 22 of the Act, the board was justified in terminating his benefits as of November 20, 2001. We would, however, substitute the word "suspend" for "terminate".

We have determined that the suspension should continue from November 20, 2001 to November 27, 2002, the date of the appeal hearing. We found it challenging to select a date at which to reinstate benefits. We chose to do so as of the date of the appeal hearing on the basis that, following the hearing, we commenced a process of medical review and consideration that led to the findings and conclusions set out in this decision, which allow for reinstatement of benefits.

We attach a condition to the continuation of benefits and that is that the claimant must actively co-operate with and participate in any vocational rehabilitation plans and any treatment plans put forward by the board. He must also avoid any practices which might affect his recovery. Failure to do so could well result in suspension or termination of benefits.

The appeal is allowed, as set out above.

Panel Members

T. Sargeant, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

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

Signed at Winnipeg this 28th day of October, 2003