Decision #38/04 - Type: Workers Compensation
Preamble
An Appeal Panel hearing was held on February 2, 2004, at the claimant's request. The Panel discussed this appeal on the same day.Issue
Whether or not the claimant is entitled to the payment of wage loss benefits beyond November 30, 2001.Decision
That the claimant is not entitled to the payment of wage loss benefits beyond November 30, 2001.Decision: Unanimous
Background
During the course of his employment as a carpenter on September 28, 2001, the claimant injured his lower back region after carrying a cabinet. Initial medical information diagnosed the claimant with a lumbar radiculopathy/lumbar disc compression. The claim was accepted by the Workers Compensation Board (WCB) and benefits and services were paid to the claimant.On January 14, 2002, the claimant was assessed by an orthopaedic specialist who reported that the claimant's condition may be musculoligamentous back pain or perhaps discogenic back pain in view of its longevity. His leg symptoms and some of his lower back symptoms had somewhat improved. A CT examination was suggested in order to determine whether the claimant had an associated ongoing disc problem.
The claimant was assessed by a WCB medical advisor on January 15, 2002. During the interview portion of the examination, the claimant reported that he was able to sit for short periods of time for 10 or 15 minutes and that he had difficulty rising from the chair. The claimant was able to walk one block and could stand about five minutes. He limited his use of stairs. The claimant indicated that he was unable to stoop, bend and crouch at home. Examination findings revealed a high index of suspicion of involvement of the L4-5 disc on the right side, particularly related to muscle power. The other concern was of the right sacroiliac joint which was to some degree, dysfunctional. The medical advisor outlined restrictions and suggested that the claimant should possibly undergo further physiotherapy treatments and that a CT scan was being ordered.
In March 2002, the WCB carried out a surveillance of the claimant's activities which revealed that he was working at a Laundromat. The surveillance videotapes were also reviewed by a WCB medical advisor on April 19, 2002 and he provided primary adjudication with his comments/observations about the claimant's capabilities with respect to flexion, extension, etc. It was his opinion that the claimant exhibited no significant pain limiting function.
On April 24, 2002, the claimant attended the WCB's special investigations unit and an interview was conducted. Details surrounding the interview are contained in a report dated May 3, 2002.
In a letter to the claimant dated May 7, 2002, a WCB case manager noted that the claimant began duties at the Laundromat approximately 6 days a week, 12 hours per day, as of December 1, 2001. As a result, wage loss benefits were payable to November 30, 2001 inclusive and final as a loss of earning capacity did not exist beyond December 1, 2001. This decision also meant that the claimant had been overpaid WCB benefits in the amount of $8168.48 inasmuch as he did not advise the WCB that he had begun working as of December 1, 2001. On April 9, 2003, this decision was appealed by a worker advisor, acting on behalf of the claimant, to the Review Office.
On May 30, 2003, Review Office determined that a compensable loss of earning capacity did not exist beyond November 30, 2001 and confirmed the overpayment to the claimant. Review Office noted in its decision that the videotape evidence revealed that the claimant was observed loading the trunk of his vehicle with supplies for the Laundromat and that he was clearly seen bending forward, with arms fully extended and placing large cans of Coffee Mate into the back of the truck. The claimant showed no pain behavior throughout the four days of surveillance. Review Office noted that the claimant's activities would put significant stress on a healthy lumbar spine let alone a spine subject to chronic pain. On November 17, 2003, the claimant appealed Review Office's decision and an oral hearing was convened.
Reasons
The differential diagnosis of the claimant’s condition at the time of the compensable injury was lumbar radiculopathy/lumbar disc compression and bilateral sciatica. An analysis of the radiological evidence together with the surveillance video has for all intent and purpose ruled out the continuation of these problems. The November 26th, 2001 x-ray of the claimant’s lumbosacral spine revealed as follows: “There is osteoporosis. There is well marked degenerative spurring at the upper three Lumbar disc levels and moderate narrowing of the disc at L3-4. No other abnormality is seen.” Additionally, the April 30th, 2002 CT scan of the lumbar spine confirmed no evidence of a disc herniation and a mild L5-S1 spondylolisthesis. It should be pointed out as well that the claimant’s sciatica was discounted and ruled out by the treating orthopaedic surgeon on January 15th, 2002.
In conjunction with the foregoing evidence, we also attached considerable weight to the comments recorded by a WCB medical advisor in his memorandum to file of April 19th, 2002.
“Reviewed video surveillance – 4 separate days – several demonstrations of functional recovery, including sustained forward flexion, flexion, rotation while carrying objects. He moved quickly, easily and demonstrated periods of walking, sitting, squatting, fully, pushing fully loaded shopping carts etc. In my opinion, there was no significant pain limiting function.”
There is no question that the claimant made a conscious decision to acquire and operate a Laundromat business and the servicing of five (5) sub-depots in November 2001. This undertaking necessitated his organizing the necessary financing as well as his working full-time as the proprietor of the business. The evidence suggests that this business acquisition was a long term commitment on the claimant’s part given that he either assumed or negotiated a lease of the premises for a five (5) year term. The claimant’s conduct necessarily implies that he was prepared to abandon any possibility of returning to work with either the accident employer or a different employer as of December 1st, 2001, being the date of possession and adjustment of the business acquisition.
We find based on a balance of probabilities that the claimant’s compensable injury was minor in nature, that it resolved in a relatively brief period of time and that the claimant’s continuing difficulties relate to his non-compensable osteoporosis and degenerative changes in the lumbar spine. It necessarily follows therefore that any suggested physical restrictions in our view relate to his non-compensable conditions and not the compensable injury. After carefully and thoroughly reviewing all of the evidence, we further find that the claimant is not entitled to the payment of wage loss benefits beyond November 30th, 2001.
Panel Members
R. W. MacNeil, Presiding OfficerA. Finkel, Commissioner
M. Day, Commissioner
Recording Secretary, B. Miller
R.W. MacNeil - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 18th day of March, 2004