The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on January 20, 2005, at the request of a worker advisor, acting on behalf of the worker. The Panel discussed this appeal on January 20, 2005 and again on March 29, 2005.

Issue

Whether or not the worker is entitled to wage loss benefits beyond July 5, 2004; and

Whether or not there has been an overpayment of benefits.

Decision

That the worker is not entitled to wage loss benefits beyond July 5, 2004; and

That there has been an overpayment of benefits.

Decision: Unanimous

Background

During the course of his employment as a glazer on November 27, 2002, the worker reported that he twisted his back region when he placed a glass sealed unit weighing approximately 110 lbs. down to the ground. A hospital emergency report dated November 27, 2002 diagnosed the worker with facetogenic back pain. On December 5, 2002 the worker sought medical treatment from his family physician. The diagnosis rendered was a lumbar strain. The claim was accepted by the Workers Compensation Board (WCB) and benefits and services were paid to the worker.

Subsequent file records showed that the worker continued to complain of back pain and that he had been examined by a sports medicine specialist. In a report to the family physician dated January 29, 2003, the specialist diagnosed the worker with chronic facet joint dysfunction and felt there was a small possibility of a disc injury despite no radicular signs. Suggestions were made for the worker to attend a physiotherapist and undergo a progressive home exercise program.

On April 22, 2003, the worker was examined by a WCB medical advisor. At this examination he determined that the worker was suffering from mechanical back pain related to left SI joint dysfunction and left L1-L5 facet joint dysfunction related to the work injury of November 2002. He also determined that the worker was capable of a graduated return to work program with restrictions.

The worker underwent a CT scan of the lumbar spine on May 28, 2003. At the L4-L5 level, there was a mild diffuse bulge of the disc and a small central/right paracentral disc protrusion.

On July 21, 2003, the worker commenced a graduated return to work program with his employer performing modified duties.

On July 30, 2003, the worker was examined by a physical medicine and rehabilitation specialist (physiatrist). Following his examination of the worker, the physiatrist's opinion was that the worker's low back pain was due to L4-5 discopathy. He stated that the weakness of the right extensor hallicus longus would be compatible with the CT scan findings. He stated that the worker's pain was more left sided and somewhat paradoxical.

In late August 2003, file records showed that the accident employer was no longer able to accommodate the worker with light duties given that his restrictions had changed.

On September 19, 2003, the treating physiatrist reported that the worker did not show any improvement following his caudal epidural corticosteroid injection which was performed on August 15, 2003. He stated that the worker's main problem was with extension in the low lumbar area but it appeared to be above the lumbosacral junction.

On November 6, 2003, the worker was examined by a WCB medical advisor who reported that his examination findings were similar to those of April 2003. The diagnosis remained as mechanical back pain, primarily coming from the left lower lumbar facets. The medical advisor could find no evidence to suggest any nerve root irritation and she did not feel the disc bulging or possible nerve irritation on the CT scan was significant. The medical advisor agreed with the upcoming injection to be performed by the treating physiatrist. She believed that this would be a facet injection and hopeful that this would provide him with significant relief. A work hardening program for the worker was suggested if the employer was unable to accommodate him with his restrictions.

The worker underwent a Functional Capacity Evaluation (FCE) on November 6, 2003 to determine his present work capabilities. The report stated that the worker passed 4/5 validity tests and that he had restrictions related to the loss of extension in his lumbar spine. All his functions were limited by lower back pain and he was not functionally capable of lifting above shoulder height.

The worker underwent a left L4-5 zygapophyseal joint injection on December 15, 2003. On January 18, 2004, the treating physiatrist reported that the worker did not benefit from the injection and that the worker reported an increase in his lumbar pain.

As the employer was unable to accommodate the worker with duties respecting his restrictions, arrangements were made for the worker to undergo a six week work hardening program.

On February 25, 2004, a work hardening discharge report indicated that the worker was fit for an immediate, unmodified return to his pre-injury employment and that he was functioning at a medium level for strength demands.

On March 3, 2004, the worker was interviewed by a WCB psychological advisor. It was recommended following this interview that the worker undergo a 6-8 week course of cognitive behavioral psychological treatment on pain management and that he required an ongoing psycho-educational approach regarding his back.

The worker was assessed by a sports medicine physician on May 14, 2004. In his report to the referring physician dated May 25, 2004, the sports medicine physician commented that he could not identify a sinister underlying condition that would prevent the worker from returning to a graded return to work program.

On May 25, 2004, the worker underwent an MRI of his lumbosacral spine. The report revealed a small right posterolateral disc herniation at the L5-S1 level. The disc material approached the right S1 nerve root without definite compression of the right S1 nerve root. The radiologist could not exclude some degree of irritation of the right S1 nerve root. There was no evidence of central spinal stenosis. There was no evidence of disc herniation, spinal stenosis or nerve root compression at any of the other imaged levels.

A June 22, 2004 report concerning the worker's progress in psychotherapy was received by the WCB. It was noted that the worker showed a poor response to therapy. He demonstrated little insight into the emotional and behavior aspects of his pain and remained focused on a medical resolution to his pain.

On June 25, 2004, a WCB adjudicator spoke with the treating chiropractor. The chiropractor reported that the worker was having some problems with the muscles on the left side of his back and that these muscles were quite tight. He did not think that the worker was having any problems related to his disc injury. The chiropractor stated that he had done some needling which seemed to help loosen the muscles. He stated that he would be seeing the worker again in July 2004 and that if the worker did not have any changes after six treatments, he would discontinue seeing him.

A surveillance of the worker's activities was carried out between July 6 and July 11, 2004. On July 21, 2004, a WCB medical advisor provided primary adjudication with comments as to what he had observed on the videotape.

On July 21, 2004, primary adjudication advised the worker that based on a review of the medical information along with the surveillance videotape evidence, the WCB considered him to be recovered from his compensable injury effective July 5, 2004. As he already had been paid wage loss benefits to July 21, 2004, he was overpaid benefits in the amount of $765.14. The worker was informed that he was now responsible for repaying the full amount of his overpayment.

On July 22, 2004, the worker's treating chiropractor advised the WCB that he was discontinuing chiropractor treatment after the next visit due to the worker's lack of response to treatment.

On July 26, 2004, the worker appealed the decision of July 21, 2004 to Review Office. The worker stated that he was not breaking his restrictions by helping his mother-in-law for a couple of hours a day for 3 days. He said on the third day, he told his doctor that he was building a porch and that the doctor had increased his medication because of the increased pain that he was experiencing. He stated that he mainly nailed and picked up garbage and that he was not allowed to lift anything or even climb an extension ladder. He felt that the only thing he did wrong was not inform his case manager that he was helping to build a porch.

In a progress report dated July 27, 2004, the sports medicine physician diagnosed the worker with acute anxiety secondary to the WCB's decision.

In a letter dated August 23, 2004, the treating physiatrist reported that he saw the worker on August 17, 2004. He described persistent low back pain and paraesthesia affecting both legs. He also described S1 radicular symptoms and symptoms affecting the anterior thighs. The worker stated that his back pain was more intense than his leg pain. The specialist commented that after reviewing the MRI results he was considering an S1 transforaminal injection with which the worker wished to proceed.

In a decision dated September 3, 2004, Review Office determined that the worker was not entitled to wage loss benefits beyond July 5, 2004 and that there had been an overpayment of benefits. Review Office considered that the worker had been physically capable of resuming his pre-accident job duties at the time of his discharge from his work-hardening program. Review Office noted that the worker's benefits continued after this because of investigations into his psychological state of mind. Review Office believed that the surveillance results were significant in that they showed the worker working for a lengthy period of time, with no apparent difficulty. The video confirmed the findings of the work-hardening program that the worker was capable of undertaking medium level work which was the type of work he performed with his pre-accident employer. By July 6, 2004, Review Office believed that the worker could have returned to work if he wished to do so and found that he had been overpaid benefits beyond that date. It was felt that these benefits should be repaid to the WCB under the WCB's overpayment policy.

On October 15, 2004, a worker advisor, acting on the worker's behalf, appealed Review Office's decision and requested an oral hearing. On January 12, 2004, the worker advisor submitted new medical information for consideration by the Appeal Panel.

Following the oral hearing which was held on January 20, 2005, the Appeal Panel requested additional information be obtained from the worker's treating physiatrist prior to discussing the case further. On March 11, 2005, a report from the physiatrist dated March 7, 2005 was forwarded to the interested parties for comment. On March 29, 2005, the Panel met to discuss the case further and consider a final submission from the worker advisor dated March 23, 2005.

Reasons

“With respect to his recovery I have taken the opportunity to review the video tapes. He does appear in these video tapes to be more mobile and in less discomfort than the majority of his visits to my office.

Based on the evidence from the video tape it would appear that this gentleman is capable of a trial of graduated return to work. It would appear that he is capable of medium heavy workplace duties.”

On March 7, 2005, the treating physiatrist responded to a request by the Appeal Commission to evaluate the worker’s work capabilities in July 2004. He responded by saying, in part:

“Based on my clinical examinations, I cannot provide a specific date at which time Mr. [the worker] would have been capable of returning to his pre-accident employment, as his limitations were due to symptoms of lower back pain, which cannot be measured objectively. His findings would not have precluded an attempted return to work. Based on review of the video, it would appear that Mr. [the worker] was capable of physical work in some capacity. As indicated above, Mr. [the worker] would not have been absolutely precluded from attempting return to work in a modified capacity.”

Based on a thorough review of all the evidence we find that the worker was, on a balance of probabilities, fit to perform medium duty work by the time his benefits were terminated. Accordingly, we further find that the worker is not entitled to wage loss benefits beyond July 5, 2004.

In light of our determination with respect to the first issue, it necessarily follows that inasmuch as the claimant received benefits up to and including July 21, 2004, there has been an overpayment of benefits.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

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

Signed at Winnipeg this 2nd day of May, 2005