Decision #169/04 - Type: Workers Compensation
Preamble
An Appeal Panel hearing was held on July 20, 2004, at the claimant's request. The Panel discussed this appeal on several occasions, the last one being October 27, 2004.Issue
Whether or not the claimant is entitled to temporary total disability benefits beyond June 1, 2002; andWhether or not the claimant is entitled to vocational rehabilitation benefits and services beyond June 2, 2002.
Decision
That the claimant is not entitled to temporary total disability benefits beyond June 1, 2002; andThat the claimant is not entitled to vocational rehabilitation benefits and services beyond June 2, 2002.
Decision: Unanimous
Background
On September 8, 1975, the claimant injured his neck and left shoulder when the semi-trailer tractor unit he was driving left the road and flipped. The claimant was treated by an orthopaedic specialist and he was diagnosed with a fracture to the C6-7 portion of his cervical spine. The claim was accepted by the Workers Compensation Board (WCB) and benefits were paid accordingly until the claimant returned to his pre-injury duties.In 1977, the claimant was awarded a 3% permanent partial disability (PPD) award for the residual impairment in his neck. Apart from the PPD award in 1977, there was relatively little activity on this file for approximately 20 years. The claimant continued to be involved in the trucking business as a driver and, for a time, as the owner of a number of units.
On September 24, 1996, the claimant filed a declaration regarding the re-opening of his claim. In his declaration, he indicated "I reopened my claim because it is apparent that my neck hasn't recovered from the original accident. I want a doctor to check me out and tell me whether I should continue to do the job that I do. I don't think that the ride of the truck is what aggravates me. I think that it is having to keep my arms up and on the steering wheel for eight hours at a time."
Between November of 1996 and November of 1997, there were a number of differing opinions expressed as to the relationship between the claimant's symptoms and his compensable injury as well as to the relationship between his ability to work and his symptoms.
On November 19, 1996, a WCB medical advisor indicated that he was unable to find a causal relationship between the claimant's recent neck problems and the 1975 compensable injury. The advisor felt that the claimant's symptoms were a result of degenerative changes related to aging. On November 25, 1996, the treating orthopaedic surgeon notes that "the previously anterior sublux of C6 on C7 is again noted. It has healed anteriorly. With lateral flexion extension views there is no abnormal movement at this level. It looks very solid." In subsequent reports dated December 20, 1996 and May 12, 1997, the treating orthopaedic surgeon observed that it was very hard to relate the present complaints to the 1975 injury.
On October 14, 1997, the claimant was examined by a WCB impairment awards medical advisor who concluded that the claimant had a 22% impairment rating. The medical advisor felt the claimant was capable of all tasks as long as they did not involve repetitive movements of the cervical spine. Tasks involving work above shoulder height were also not recommended.
On November 28, 1997, the section head of healthcare reviewed the file information and expressed the view that the increase in the claimant's impairment was due to both degenerative disease and the effects of the compensable injury. The claimant was placed on temporary total disability benefits. On December 1, 1997, permanent restrictions were outlined. The claimant was directed to avoid repetitive flexion or lateral rotation of the neck as well as static posturing. He was advised not to perform driving or fork lift work as he was unable to shoulder check. Finally, he was told to limit lifting activities.
In March 1998, the case was referred to the WCB's vocational rehabilitation branch to assist the claimant in finding work that respected his permanent restrictions.
In a report dated March 9, 1999, a neurologist reported that the claimant continued to demonstrate numbness in the left arm and hand as well as considerable discomfort in his neck. The neurologist referred to the results of an MRI examination dated February 18, 1999 which did not show any obvious structural abnormality or anything that would be regarded as a surgical lesion. A referral to a physiatrist was suggested.
The claimant was assessed by a physiatrist on June 1, 1999. The physiatrist's impression was that the claimant had significant degenerative changes related to his old injury. It was specified to the claimant that he should attend physiotherapy and seek counseling with respect to depression.
On July 27, 1999, a neurologist reported his findings to the WCB and stated that his neurological examination demonstrated no abnormalities.
On August 11, 1999, the claimant signed an Individualized Written Rehabilitation Plan (IWRP) with the occupational goal of becoming a computer analyst programmer.
On February 4, 2000, a Vocational Rehabilitation Consultant (VRC) observed that the claimant had completed the first term of his computer analyst programmer course but was experiencing increasing headaches from sitting in front of his computer all day and evening which in turn created problems with his neck.
In January 2001, the VRC indicated that the claimant was experiencing daily headaches which were getting worse. On March 5, 2001, the attending physician reported that the claimant complained of daily, moderate to severe headaches, and neck pain associated with head movements which were interfering with his computer course. The physician concluded that the claimant's symptoms, i.e. headaches and fatigue, were related to his 1975 injuries.
On November 5, 2001, the claimant commenced a work experience program at the WCB's Information Technology Department. In a memo dated January 11, 2002, the VRC documented that the claimant was experiencing difficulty with prolonged sitting, headaches and pain in his neck and upper back.
In March 2002, the claimant was diagnosed with major depression and adjustment disorder. On April 5, 2002, a WCB adjudicator determined that the claimant's depression was not related to his compensable incident but that the WCB would provide the claimant with time limited therapy to help him deal with his depression. The claimant also voiced concerns that his occupational goal was not a realistic one as sitting in front of a computer all day aggravated his neck pain and headaches.
In a report dated May 13, 2002, the attending physician reported that the claimant was seen on April 29, 2002 with exacerbation of symptoms related to his pre-accident injuries as well as new injuries related to an April 28, 2002 motor vehicle accident. Based on his examination findings, the physician concluded that the claimant was totally disabled from any type of employment.
The claimant was assessed by a WCB physiatrist and a WCB physiotherapy consultant on May 7, 2002 who found little in the way of findings on clinical examination, especially on the musculoskeletal exam. "There was stiffness of the neck, but with some difficulty with accurate examination of this. There was no evidence that any specific cervical articular structure could be mechanically irritated on the examination. There was no evidence of any definite ligamentous symptoms or muscular symptoms on the current exam, or of any soft tissue involvement contributing to his symptoms. There is no evidence, as well, for any significant neurologic involvement. His paraesthesiae complaints are intermittent and there was no evidence on the most recent radiologic investigation, including an MRI of the cervical spine, for cause of the nerve irritation symptoms."
In early June 2002, the claimant met with WCB staff members for an up-date on the status of his claim. Between May 10 and June 1, 2002, surveillance videotape was taken of the claimant's activities. In the videotape taken on June 1, 2002, the claimant was taped helping move an individual from one apartment block to another. The claimant was shown lifting and carrying various objects and placing them into a van and truck as well as unloading these objects at a second apartment building.
On June 6, 2002, bone scan results revealed the following evidence, "Abnormal uptake is seen in the lower cervical spine, affecting the disc space as well as the lateral aspect. The significance is uncertain, possibly related to post traumatic degenerative changes."
X-rays of the cervical spine were taken on June 6, 2002 and the interpretation of the results were documented as follows, "Anterior spurring is noted in the lower cervical spine and there is anterior bony bridging noted at the C6.7 level. Minor degenerative changes in the C7/T1 level are present and there is a very minimal spondylolisthesis likely degenerative in nature of C5 on C6. There is virtually no change in vertebral body alignment with flexion and extension in the neutral position. The vertebral body heights are intact."
On June 13, 2002, a WCB physiatrist reviewed the case at the request of primary adjudication. The information reviewed included the videotape surveillance evidence. It was the consultant's opinion that the claimant had good function and range of motion in his neck with no apparent discomfort and that these findings suggested no apparent need for any past restrictions.
On June 17, 2002, primary adjudication advised the claimant that it was the WCB's position that he was no longer suffering from the effects of his compensable injury and that the WCB was ending responsibility for his claim effective May 11, 2002. The claimant later appealed this decision and the case was forwarded to Review Office.
On August 8, 2002, a WCB orthopaedic consultant's memorandum to file indicated "The noted changes in the C-spine do not preclude driving. He has a stable C-spine and in my opinion there is no necessity for the imposition of restrictions at this late date as a result of the old C.I."
On August 9, 2002, Review Office determined that the claimant was not entitled to payment of temporary total disability benefits (wage loss benefits) beyond June 1, 2002 which was the date that the claimant assisted an individual to move as documented on the surveillance videotape.
Review Office considered evidence from the orthopaedic specialist who saw the worker in 1996 and 1997. Review Office stated that the specialist "…commented that it would be very hard to prove that the worker's present symptomatology was related to the accident of 1975. He noted injuries are usually to one level where there is damage and they usually do not involve multiple levels such as is the case with this worker. Of more importance this specialist also found the C6-7 level to be solid and not unstable." Review Office believed that the video evidence supported this conclusion as the worker was seen to move his neck in all directions with no apparent restriction.
Review Office did not believe that the injury to the worker's cervical spine would require restrictions that would have forced him out of the trucking industry where he worked from 1975 to 1996/97. Review Office was of the view that the WCB should not have entered into a vocational rehabilitation program to take this worker out of the truck driving industry. It therefore concluded that the claimant was not entitled to further vocational rehabilitation benefits and services beyond June 2, 2002. On August 27, 2002, the claimant appealed Review Office's decisions and an oral hearing took place on November 21, 2002.
On December 9, 2002, the claimant was examined by an impairment awards medical advisor with regard to a report related to the consideration of a final PPI award. In her review of the claimant's medical situation, she made reference to a MRI from February, 1999 which noted "At C6-C7 there was mild facet joint degenerative changes resulting in a grade one spondylolisthesis. There was no disc herniation, central spinal canal stenosis or spinal cord compression identified, and the signal intensity within the spinal cord appeared unremarkable."
In her summary of the claimant's complaints, the impairment awards medical advisor also made reference to the claimant's pain. She indicated that the claimant reported that "sometimes he will develop a sudden, severe pain that feels like a sharp jab of pain and an ice pick has been jabbed into his neck. Any type of activities such as driving can cause increased pain."
Finally, the impairment awards medical advisor provided the results of her measurements of loss of range of motion and her calculation of the PPI. She concluded that the "final PPI rating recommended is 14.6%." (emphasis in original) This report was not available to the Appeal Panel during its deliberations.
On January 6, 2003, the Appeal Panel determined that the worker was not entitled to receive temporary total disability benefits beyond June 1, 2002 and that the claimant was not entitled to vocational rehabilitation benefits and services beyond June 2, 2002. In its reasons for decision, the Panel cited the treating orthopaedic surgeon's chart notes of November 25, 1996, December 20, 1996 and May 12, 1997, as well as the February 1999 MRI Cervical Spine, the May 7, 2002 WCB medical examiner notes and the June 6, 2002 X-Ray Cervical spine. Reference was also made to the August 8, 2002 WCB orthopaedic consultant's memorandum to file and the video surveillance tape. For more information concerning the rationale for this decision, please refer to Appeal Panel Decision No. 01/03.
On May 24, 2003, the claimant wrote to the Workers Compensation Board and took issue with its handling of his claim as well as with the concerns it had raised regarding the weight which could be given to the December 9, 2002 report of the impairment awards medical advisor. In terms of the issue of range of movement and his situation prior to the re-opening of his claim in the 1990s, he indicated "[t]his loss of ROM never prevented me from working and if loss of ROM were my only symptom that I had from my injury I would never have re-opened my claim." (emphasis in original). He went to comment that "[t]he Board continues to refer to the movement demonstrated under surveillance. My claim was never about the ROM of my neck as stated over and over and over again."
On July 3, 2003 another assessment of the cervical range of motion of the claimant was completed. Based upon this assessment, a senior medical advisor for the WCB concluded that the result was acceptable and that the claimant's final PPI was 14.3%. When asked whether the rating was consistent with the range of motion demonstrated by the claimant under surveillance, the senior medical advisor observed that "it is difficult to determine the ROM from looking at the surveillance."
On August 2, 2003, the claimant's permanent partial disability (impairment) award was calculated by the WCB to be 14.3%.
On September 9, 2003, the claimant wrote to a Case Manager, Rehabilitation and Compensation Services, to ask the Board to re-instate his claim. In his letter he indicated that "my claim, as I have stated so many times has never been about loss of range of motion. When I first came to the board it was because I had received strict medical advice from two doctors, an orthopedic surgeon and a chiropractor that I should change my career immediately because of the internal condition of my neck. They and the Board determined that this was due to my 1975 compensable injury. I never made any claims as to not being able to do anything that I was disabled or that the loss of range of motion in my neck was hindering me." (emphasis in original)
On September 29, 2003, a CT report of the claimant's cervical spine was prepared. Its findings in terms of the C5-6 level were "there is no evidence of disc herniation, spinal stenosis or nerve root compression. Hypertrophic degenerative changes are noted the left facet joint." At the C6-7 level, it observed that "there is no evidence of disc herniation, spinal stenosis or nerve root compression."
On November 27, 2003, the claimant reviewed the results of the CT of his cervical spine with a neurologist. On December 2, 2003, the neurologist wrote "we discussed the results of his recent CT of cervical spine. This showed some degenerative changes but no definite evidence of root encroachment or spinal stenosis of significance."
The neurologist went on to indicate "he has a number of questions which I cannot answer: what should be his normal level of activity, what kind of activity could be expected to accentuate his neck problem, either in terms of symptoms or in terms of accelerated degeneration. Unfortunately, I am unable to answer these questions and I am not confident that anybody really can, however I suggested to him that perhaps activities which cause him pain should perhaps be avoided."
On March 4, 2004, the claimant requested that the Appeal Commission reconsider Decision No. 01/03. In his letter to the Appeal Commission, he made reference to his CT scan and to the advice he received from his neurologist. These comments are reproduced for the purposes of comparison with the December 2, 2003 letter of the neurologist:
"Dr [name deleted] requested that I have a CT scan. On a return visit he discussed the results with me saying that there is definite degenerative changes in numerous levels of my neck including the site of the compensable injury. I specifically asked him if it would be wise to go back to trucking and his words were and I quote 'It would be the stupidest thing you could do'. I asked him what I should consider doing regarding work in view of the symptoms I was manifesting. He said it wasn't his place to make these assessments but he said he would send me to see Dr. [name deleted] at [name deleted]. He was very specific about staying away from doing things that caused pain." (emphasis in original)In his March 4 letter the claimant also suggested that on March 1, 2004, he had seen a Physical Medicine and Rehabilitation specialist whose conclusion was "that computer work and long haul trucking were unacceptable fields of work to pursue." (emphasis in original)
On March 12, 2004, the Physical Medicine and Rehabilitation specialist wrote that "[t]his man has several issues, and I was not able to go into work-related or claim-related ones with Workers Compensation to any great extent."
On April 8, 2004 the Chief Appeal Commissioner granted the claimant's request for reconsideration based on the following evidence which arose after the November 21, 2002 hearing:
- December 9, 2002 report from a WCB medical advisor;
- July 3, 2003 range of motion test results;
- July 9, 2003 report from a WCB medical advisor; and
- August 28, 2003 decision by WCB implementing PPD effective May 11, 2002.
Following the hearing and after discussion of the case, the Panel decided to arrange for the claimant to undergo a functional capacity evaluation (FCE) by an independent physiotherapy consultant to gather additional information regarding the claimant's work capabilities.
On August 8, 2004, the claimant wrote to the Appeal Panel outlining his concerns with respect to the FCE. The claimant stated, in part,
"An FCE according to the research I have done, is used primarily to assess a workers level of ability to perform after an injury has healed. My injury is not healing and is not going to get better; of this fact the Panel is well aware. My neck is in a serious state of degeneration because of the compensible (sic) accident of 1975. Numerous specialists along with WCB's own doctors have stated this. It is the right of every citizen of Canada to work at only what is safe for his or her long-term health. Numerous specialists along with WCB's own doctors have already determined the restrictions with which I must work under. It has been clearly shown that the loss of ROM is real, the serious degenerative nature of my neck is real and these initiated the serious restrictions that I should now be working under to best safeguard my health as long as possible. If the motives of the Panel were in my best interest it would seem the right thing for the Panel to do would be to reinstate the status of my claim and then let the Board do an FCE or any other testing they want to do to determine what I can and cannot do within the restrictions they themselves put upon me, and to carry on from there. …"On September 14, 2004, the independent physiotherapy consultant asked the Appeal Commission to submit documentation of any restrictions on activities for the claimant who was referred for an FCE. The independent physiotherapy consultant indicated that the claimant had described his restrictions as "no lifting over 20 lbs., no repetitive flexion/rotation of the neck, no static posturing, no driving or forklift work as unable to shoulder check". The physiotherapy consultant commented that these restrictions would impact significantly on the FCE and would mean that a large number of test items would be eliminated.
On September 27, 2004, the Panel met to discuss the case. On September 30, 2004, the Appeal Commission's recording secretary wrote to the claimant stating the following:
On October 27, 2004, the Panel met to further discuss the case and considered a submission from the claimant dated October 15, 2004."On September 27, 2004, the Appeal Panel met to discuss your case. The Panel would like to acknowledge your concern for the potential of further injury caused by the FCE, especially if it does not respect the physical restrictions that you outlined in your recent dealings with the FCE service provider. In this regard, it is felt that an FCE performed respecting these restrictions would be of little value in aiding the Panel in its deliberations with respect to the specific issues before them. However, in light of the concerns that you have raised, the Panel have agreed to cancel the FCE.
In view of the FCE cancellation, the Panel will meet to render a decision on your appeal taking into consideration the information that is already on your file…".
Reasons
This is a case marked by conflicting opinions as to the extent and effect of the claimant's work related injuries.In reaching its conclusion, the Panel has been mindful of its obligation to bring a fresh and open view to the record. The Panel's decision is based upon the record in its entirety including the written, oral and video surveillance material. The reasons which follow emphasize those pieces of information that received particular consideration from the Panel.
Is the claimant entitled to temporary total disability benefits beyond June 1, 2002?
In making its determination regarding the claimant's eligibility for temporary total disability benefits, the Panel has focused carefully on the claimant's evidence as well as upon the results of examinations of the claimant's cervical area. The Panel has considered what this information reveals about the claimant's ability to work as a truck driver as well as the relationship between his symptoms and workplace injury in 1975.
In particular, the Panel would point to:
- the results from the clinical x-ray of October 29, 1996 which lead the treating orthopaedic surgeon to conclude that previously injured level at C6/7 was solid and not unstable;
- the report regarding the February 18, 1999 MRI of the cervical spine which states there is "no disc herniation, central spinal canal stenosis, or spinal cord compression identified, and the signal intensity within the spinal cord appeared unremarkable";
- the May 7, 2002 notes of the medical examiner which indicate "on the current clinical examination, there was little to find specifically on the musculoskeletal examination… there is no evidence, as well, for any significant neurological involvement. His paraesthesiae complaints are intermittent and there was no evidence on the most recent radiologic investigation, including an MRI of the cervical spine, for cause of the nerve irritative symptoms";
- the report regarding the June 6, 2002 X-ray Cervical Spine which notes "there is virtually no change in vertebral body alignment with flexion and extension in the neutral position. The vertebral body heights are intact";
- the August 8, 2002 memorandum of the orthopaedic consultant which concludes "the noted changes in the C-spine do not preclude driving. He has a stable C-spine & in my opinion there is no necessity for the imposition of restrictions at this late date as a result of the old C.I."
- the September 29, 2003 CT of the cervical spine which observed "there is no evidence of disc herniation, spinal stenosis or nerve root compression."
The Panel notes that the claimant did not attempt to have his Class 1 license reinstated after the conclusion by the WCB physiatrist in June, 2002 and the WCB orthopaedic consultant in August, 2002 that no restrictions were necessary. The Panel observes that its review of the video surveillance tapes does nothing to dispel its view that the claimant could work at his pre-injury occupation without restrictions.
The Panel also concludes that it is difficult to relate the claimant's pain symptoms to the objective findings related to the claimant's cervical spine. In particular, the Panel finds it difficult to relate the claimant's symptoms to the primary site of the original workplace injury, the C6-7 level, which is solid with "no evidence of disc herniation, spinal stenosis or nerve root compression."
The claimant appears to place considerable weight on the outcome of his November 27, 2003 meeting with his neurologist. The claimant suggests that the neurologist indicated that going back to trucking "would be the stupidest thing you could do." However, the claimant's characterization of that report is not fully born out by the December 2, 2003 letter of the neurologist who noted "no definite evidence of root encroachment or spinal stenosis of significance."
Moreover, the neurologist does not express a view as to claimant's ability to work. Instead, he observes that the claimant "has a number of questions which I cannot answer: what should be his normal level of activity, what kind of activity could be expected to accentuate his neck problem, either in terms of symptoms or in terms of accelerated degeneration. Unfortunately, I am unable to answer these questions and I am not confident that anybody really can, however I suggested to him that perhaps activities which cause him pain should perhaps be avoided."
The claimant also focuses upon the outcome of his March 1, 2004 meeting with a Physical Medicine and Rehabilitation specialist. The claimant suggests that the specialist advised him that "computer work and long haul trucking were unacceptable fields of work to pursue." However, that characterization of the conversation is not fully supported by the March 12, 2004 letter of the Physical Medicine and Rehabilitation specialist who writes "this man has several issues, and I was not able to go into work-related or claim-related ones with Workers Compensation to any great extent."
Given the outcome of the most recent range of motion evaluations, it might be argued that they suggest that the claimant is unable to work as a truck driver. However, the distinction between an impairment and a disability should be kept in mind. "There is a difference between an impairment and a disability. An impairment is the inability of a certain part of the body to function properly. A disability occurs when the impaired bodily function inhibits personal, social, or occupational demands. (Source: Impairment Rating - Medical Proof of Injury)
In considering whether the impaired bodily function inhibits the claimant's occupational demands, it is important to recall the claimant's repeated characterization of the factors limiting his ability to work as a truck driver. The claimant goes to considerable lengths to argue that any loss of range of movement that did occur did not prevent him from working.
- Letter dated May 24, 2003 - "[t]his loss of ROM never prevented me from working and if loss of ROM were my only symptom that I had from my injury I would never have re-opened my claim." (emphasis in original);
- Letter dated September 9, 2003 - "my claim, as I have stated so many times has never been about loss of range of motion. When I first came to the board it was because I had received strict medical advice from two doctors, an orthopedic surgeon and a chiropractor that I should change my career immediately because of the internal condition of my neck. They and the Board determined that this was due to my 1975 compensable injury. I never made any claims as to not being able to do anything that I was disabled or that the loss of range of motion in my neck was hindering me." (emphasis in original).
Eligibility for Vocational Rehabilitation Benefits
Given the absence of ongoing restrictions with respect to the claimant's pre-accident duties, we find there is no loss of earning capacity. As a consequence, the claimant is not entitled to vocational rehabilitation benefits and services beyond June 2, 2002.
Panel Members
B. Williams, Presiding OfficerP. Challoner, Commissioner
B. Malazdrewich, Commissioner
Recording Secretary, B. Miller
B. Williams - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 14th day of December, 2004