The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on January 13, 2005, at the worker's request. The Panel discussed this appeal on January 13, 2005 and again on April 14, 2005.

Issue

Whether or not the worker is entitled to wage loss benefits or services beyond August 30, 2004.

Decision

That the worker is entitled to wage loss benefits and services beyond August 30, 2004.

Decision: Unanimous

Background

In April 2003, the worker reported an injury to his right lower back region which he attributed to his work duties of bending and cutting drywall. The worker was initially diagnosed with right sciatica and a possible disc prolapse. The claim was accepted by the Workers Compensation Board (WCB) and benefits were paid to the worker commencing April 5, 2003.

A subsequent CT scan confirmed a mild to moderate central disc protrusion at L4-L5 with mild degenerative disc narrowing and early facet arthropathy. In a report dated July 23, 2003, an orthopaedic specialist acknowledged the disc protrusion and stated that clinically, there were no neurological changes. The specialist suggested that the worker be treated conservatively and a course of physiotherapy was arranged.

On October 2, 2003, the worker's condition was assessed by a WCB medical advisor. The medical advisor's clinical examination showed the worker to have restricted range of motion of his lumbosacral spine in a forward flexed position, however, there were no clinical objective findings to support significant sequela associated with the lumbosacral disc lesion at L4-5. The medical advisor concluded that the worker would achieve a full and complete recovery over the next several weeks.

On November 25, 2003, an orthopaedic surgeon recommended a lumbar laminectomy based on the worker's clinical presentation which was consistent with an L5 radiculopathy. Based on the October 2, 2003 WCB call-in examination findings, the WCB's healthcare branch advised the orthopaedic surgeon that responsibility for the surgery would not be accepted by the WCB.

During a telephone conversation with his case manager on December 16, 2003, the worker commented that his physiotherapy treatment stopped a couple of weeks ago and that he had been feeling worse. He noted a lot of discomfort in his right leg which was keeping him awake at night.

On January 15, 2004, the worker underwent a Functional Capacity Evaluation (FCE) at the WCB's offices and lifting restrictions were identified.

Ongoing records show that the worker continued to complain of increasing back pain. On June 16, 2004, the worker underwent a further CT scan of the lumbar spine.

In a report to the family physician dated July 9, 2004, the treating orthopaedic specialist commented that the new CT scan results showed a small disc protrusion at L4-5 and a more significant protrusion at L5-S1 with a right-sided lateralization. The specialist encouraged the worker to continue with conservative treatment.

On August 17, 2004, the treating physician reported that the worker could hardly stand or sit but was keen to return to work.

On August 31, 2004, a WCB orthopaedic consultant assessed the worker's medical status and felt there was a cause and effect relationship between the workplace injury and the worker's present condition. The consultant recommended an epidural steroid injection for the worker and that no changes be made to the worker's previously outlined physical restrictions.

Between August 31 and September 3, 2004, videotape surveillance was carried out with respect to the worker's activities.

On September 23, 2004, the WCB orthopaedic consultant stated that he had reviewed the surveillance video of the worker's activities of August 31, 2004. He felt the worker's activities as shown on the videotape were inconsistent with the worker's statements regarding his functional capacity at the time of his call-in examination of August 31, 2004 or the physical findings noted on his examination. He therefore rescinded the worker's compensable restrictions and withdrew his recommendation for an epidural steroid injection. Based on this finding, the WCB wrote to the worker on September 27, 2004 confirming that wage loss benefits would be discontinued effective August 31, 2004.

On October 29, 2004, the case was considered by Review Office based on an appeal submitted by the worker dated October 5, 2004. The worker stated, in part, that he had been forced out of his condominium lease on very short notice due to the sale of the unit and that he had no time to plan or pay for a move or rent another apartment. He stated he had always been candid with the WCB about his injury and mobility and at no time had he indicated that he was unable to move or lift. He stated that he helped with the move of his belongings as shown on the video out of sheer necessity and that he had been wearing a morphine patch on the day of his move.

In its decision of October 29, 2004, Review Office confirmed that the worker was not entitled to payment of wage loss benefits or services beyond August 31, 2004. Review Office stated that by late August 2004, the worker reported that he was barely able to sit or stand and that his back was so painful he could not stoop to lift anything. He was only able to reach his knees with his fingertips during forward flexion in the examination on August 31, 2004 claiming that this caused severe pain into his right buttock. Review Office concluded the worker had purposely misrepresented his physical capabilities during the medical examinations by virtue of the videotape activities of August 31, 2004. On November 11, 2004, the worker appealed Review Office's decision and an oral hearing was scheduled.

Following the hearing of January 13, 2005, the Appeal Panel requested additional information be obtained from the worker's treating orthopaedic surgeon prior to discussing the case further. On April 5, 2005, the worker was provided with copies of the information that was received by the Appeal Panel from the orthopaedic surgeon and he was asked to provide comment. On April 14, 2005, the Panel met to discuss the case further and to render its final decision.

Reasons

The preponderance of evidence suggests that at the time of the termination of his benefits the worker could not resume his pre-accident duties as a drywaller because of the lingering effects of his compensable injury.

However, we nevertheless find that the worker was physically capable of performing medium work duties as corroborated by the FCE, which was conducted on January 15, 2004. According to the functional abilities evaluator: "Mr. [the worker] demonstrated the ability to work at a 'medium' rate of work. Mr. [the worker] appears to be able to be quite active although he is still experiencing symptoms. Mr. [the worker] demonstrated active lumbar spine ROM [range of motion] correlated with his straight leg raise."

In further support of the foregoing conclusion, we also took into consideration the videotape surveillance evidence. The August 31, 2004 video revealed the worker's performing continuous walking and driving activities as well as repetitive stooping and lifting of various objects such as a mattress and furniture. There appeared to be no evidence of impaired lower back function and no limp or abnormal tilt of the spine.

Although we find the worker was not capable of returning to his pre-accident duties, this does not necessarily entitle him to full wage loss. The worker does have a responsibility under subsection 22 of The Workers Compensation Act (Act) to mitigate the consequences of his injury.

At the hearing, the worker was asked what, if anything, since the termination of his benefits he has been doing to secure suitable alternate employment part-time or otherwise. The worker responded as follows:

Q. Have you tried to get some part-time work?

A. No, I haven't, no.

Q. And why is that?

A. Because I want to go back to what I was - - to make my same kind of money because $1,000.00 to me is not enough money every two weeks. It was carrying me through, but I'm used to making that in a week, $800.00, $900.00 a week.

Regarding the ongoing status of the worker's compensable injury, we note that the worker's treating neurosurgeon recently arranged for the worker to undergo an MRI of his lumbosacral spine. This examination took place on February 20, 2005 and revealed the following findings: "At the L5-S1 level there is a small right posterolateral disc herniation. There is a posterior displacement and compression of the right S1 nerve root. Correlate clinically for potential right S1 radiculopathy." These disclosures are consistent with the clinical findings recorded by a WCB orthopaedic consultant in his examination notes of the worker dated August 31, 2004, "This examination and others confirm a diagnosis of a right lower limb radiculopathy most probably at disc level. The clinical findings suggest the right S1 root is involved, possibly due to a laterally placed disc. There is a continuing cause-effect relationship between the workplace injury and the worker's present condition." The consultant also recommended the continuation of the compensable restrictions to avoid truncal bending and to avoid moderately heavy repetitive lifting. Based on this evidence, we find that the worker continues to suffer the effects of his compensable injury.

It is clear from the weight of evidence that the worker was not experiencing a total loss of earning capacity at the time his benefits were terminated. However, the extent of his earning capacity since termination of his benefits is currently unknown. We noted earlier in this decision that the worker underwent an FCE, which indicated that he was capable of medium work. We recommend that the WCB assess the worker's earning capacity within the compensable restrictions in combination with his experience and transferable skills. This exercise would establish an earning capacity since the termination of his benefits. It goes without saying that should the worker disagree with this calculation, then he always has the right to appeal such determination. Accordingly, we find that the worker is entitled to wage loss benefits and services as outlined above beyond August 30, 2004.

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 31st day of May, 2005