Decision #63/05 - Type: Workers Compensation
Preamble
An Appeal Panel hearing was held on February 1, 2005, at the worker's request. The Panel discussed this appeal on February 1, 2005 and again on March 8, 2005.Issue
Whether or not the worker is entitled to wage loss benefits beyond May 28, 2004.Decision
That the worker is not entitled to wage loss benefits beyond May 28, 2004.Decision: Unanimous
Background
The worker was carrying a 60 lb. compressor on April 7, 2003 when he slipped on a patch of ice and fell down onto the sidewalk. The following day, the worker sought medical treatment and was diagnosed with an acute L-5 strain. The claim was accepted by the Workers Compensation Board (WCB) and benefits were paid to the worker commencing April 8, 2003.On June 3, 2003, a WCB medical advisor reviewed the file information and reported that the worker had multi-level degenerative changes with no disc herniation or nerve root compression (CT scan of May 28, 2003). As it was eight weeks post injury, the medical advisor suggested a call-in examination should the worker not return to work in the next three weeks.
On June 13, 2003, the treating physiotherapist contacted the WCB and advised that the worker's progress was slow and that the worker had pain down his leg and into his lower back. The physiotherapist felt that the worker was incapable of a return to work because of pain limitations.
On June 24, 2003, the worker was seen by a rehabilitation psychologist, who recommended short term individual psychotherapy treatment to assist the worker with effective pain and stress management skills.
The worker was assessed by a WCB medical advisor on July 23, 2003. During the clinical examination, the worker demonstrated some pain focus and abnormal pain behavior gestures. The physical findings were reportedly consistent with mechanical low back pain and possibly myofascial pain originating in the left buttock and posterior thigh muscles. The medical advisor felt that the worker was unable to return to his previous workplace activities. He also referred to the findings of a CT scan, which revealed multilevel degenerative lumbar disc disease and facet arthropathy. He stated that the worker's injury was an aggravation of a pre-existing condition.
A report was received from a Pain and Injury Clinic dated October 8, 2003. The treating physician reported that the worker appeared to be suffering from severe muscular de-conditioning and mechanical low back pain. The suggested treatment plan was a change in medication, screening blood work and needling aimed at the left piriformis muscle.
Arrangements were made for the worker to participate in a reconditioning program from December 15, 2003 through to January 16, 2004 inclusive. On December 23, 2003, the worker was discharged from the reconditioning program as he was unable to complete all of the exercises due to significant pain complaints.
On January 15, 2004, the Pain and Injury Clinic physician stated that the worker would be treated five more times with dry needling of the lumbar paraspinal musculature.
A report was received from a psychiatrist dated March 15, 2004. It was the psychiatrist's opinion that the worker had a diagnosis of chronic pain from a work related back injury and secondary depression. The level of the claimant's depression fluctuated in response to his pain experience. The psychiatrist felt that the worker's depressive symptoms did not meet full DSM criteria for a major depressive disorder.
On March 24, 2004, the physician at the Pain and Injury Clinic advised the WCB that he was not sure if the worker's pain had changed. The worker was taking long acting narcotics, which helped with his pain. The worker was not booked for any follow-up appointments.
The worker was interviewed at the WCB's Pain Management Unit (PMU) on March 23, 2004. At a subsequent May 13, 2004 case conference meeting, the PMU determined that the worker did not meet the diagnostic criteria for a chronic pain syndrome as per WCB criteria as his disability was not proportional in all areas of functioning. In addition, the worker was not currently experiencing a major depressive episode and appeared to have responded to Effexor. The PMU concluded that the worker should continue with his graduated return to work program (started on May 10, 2004) with a view to his returning back to regular full time duties.
On May 19, 2004, primary adjudication advised the worker that the WCB would continue to pay his wage loss benefits during the graduated return to work plan. Effective May 31, 2004, he would be considered fit to perform his work duties on a full time basis and no further wage loss benefits would be paid beyond May 28, 2004.
Between May 7 and 13, 2004, a surveillance videotape was taken of the worker's activities.
On June 1, 2004, a WCB case manager wrote to the worker confirming that she had reviewed his claim information along with the surveillance video commencing May 7, 2004. As the videotape evidence showed the worker walking with a normal gait, running and squatting without any apparent pain limitation, the case manager determined that the worker had misrepresented himself to the WCB and that he had recovered from his compensable injury by May 6, 2004.
On July 10, 2004, the worker appealed the above decision to Review Office citing that he was still experiencing a lot of pain and that he had not recovered from his compensable injury. The worker felt that his case manager had not considered the fact that he had been taking pain killers at the time when he was videotaped and which diminished his pain.
In a decision dated October 1, 2004, Review Office outlined its position disagreeing with the WCB case manager that the videotape surveillance warranted cessation of benefits effective May 7, 2004. It was clear to Review Office that the worker's actions recorded on videotape did not conclusively support total resolution of his back injury. Review Office noted that the WCB's PMU determined the worker was not suffering from either chronic pain syndrome or a major depressive episode and that the PMU had recommended the graduated return to work program starting on May 10, 2004. Review Office believed that the established graduated return to work was reasonable and that wage loss benefits should be paid to the worker in accordance with the scheduled resumption of employment.
Based on Review Office's decision, the worker was paid full wage loss benefits until May 28, 2004 inclusive and final. On November 29, 2004, the worker appealed Review Office's decision of October 1, 2004, stating that the return to work program was unsuccessful and that it caused him a lot of pain and worsened his condition. An oral hearing was requested and it took place on February 1, 2005.
Following the hearing and after discussion of the case, the Appeal Panel asked for additional information from the worker's family physician. On February 5, 2005, the family physician responded to the Panel's request and a copy of his reply was provided to the interested parties for comment. On March 8, 2005, the Panel met to further discuss the case and to render its final decision.
Reasons
As a consequence of his compensable accident, the worker was diagnosed as having sustained an acute L-5 strain. Later evidence on the file confirms that a graduated return to work program was arranged with the accident employer. The program was slated to begin on May 10, 2004 with the worker scheduled to return to full-time regular work on May 31, 2004. Review Office, in its decision of October 1, 2004, concluded, after viewing videotape surveillance of the worker, that "the established graduated return to work plan was reasonable and that wage loss benefits should be paid to the worker in accordance with the scheduled resumption of employment." The worker appealed this decision, claiming entitlement to wage loss benefits beyond May 28, 2004.A close examination of all of the evidence on file, including the videotape surveillance, has led us to conclude that the worker is not entitled to wage loss benefits beyond the above date. In coming to this conclusion, we attached considerable weight to the following body of evidence.
- May 28, 2003 CT Lumbar Spine - no nerve root compromise is seen at the L3-L4, L4-L5 and L5-S1 levels.
- July 23, 2003 WCB medical advisor examination notes - "During today's clinical examination he demonstrated some pain focus and abnormal pain behaviour. The physical findings were consistent with mechanical low back pain … . The CT scan is more suggestive of multilevel degenerative lumbar disc disease and facet arthropathy …".
- October 8, 2003 letter from treating pain and injury clinic physician - "Based on today's examination and Mr. [the worker's] history of his current injury, it appears he may be suffering from severe muscular de-conditioning and mechanical low back pain. Findings on the CT scan coupled with what was found on physical examination suggests there is no sinister sequelae involved."
- March 15, 2004 letter from the treating psychiatrist to the WCB - "In my opinion, this patient has a diagnosis of Chronic Pain from a work-related back injury and secondary depression. The level of his depression fluctuates in response to his pain experience. Presently, his depressive symptoms don't meet full DSM criteria for a Major Depressive Episode."
- May 13, 2004 WCB PMU case conference - "Based on that Assessment [March 23, 2004] it is the opinion of the Pain Management Unit that the Claimant does not meet the diagnostic criteria for a Chronic Pain Syndrome as per WCB Manitoba criteria as the disability is not proportional in all areas of functioning. As well, based on the Assessment of March 23, 2004 the Claimant is not currently experiencing a Major Depressive Episode …".
- The worker applied and received employment insurance benefits (both sick and regular) after his WCB benefits were terminated.
- February 5, 2005 letter from attending physician to Recording Secretary - "Straight leg raise was 70-80º bilaterally with no definite radicular or root tension signs."
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 20th day of April, 2005