The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

A file review was held on March 28, 2006 at the request of a worker advisor, acting on the worker's behalf. The worker advisor and the advocate representing the employer both presented written submissions to the Appeal Commission in support of their respective positions.

Issue

Whether or not the worker was physically and psychologically capable of working full time in a sedentary job (NOC 6683) at the Manitoba minimum wage effective March 29, 2004.

Decision

That the worker was physically and psychologically capable of working full time in a sedentary job (NOC 6683) at the Manitoba minimum wage effective March 29, 2004.

Decision: Unanimous

Background

Reasons

Overview of the Claim

The Workplace Accident
The worker immigrated to Canada in 1997. He got his first job in Canada as a cabinet maker/general labourer on March 18, 1999, at the age of 44. Three months later, on June 22, 1999, he suffered a workplace accident when a thirty to forty pound sheet of plywood he was lifting with another worker slipped out of his hands.

The worker reported feeling a pain in his back. He completed his shift as well as his shifts on June 23 and 24, 1999.

Over the course of these days, the worker reported that he started having pain in his legs which got worse with walking and standing. He attended a physician on June 23, 1999 who diagnosed him with mechanical back pain and recommended a course of physiotherapy. It was anticipated that he would remain off work for four to six weeks. In reality, he has never returned to employment since that date.

The Claim and an Introduction to the Issue before the Panel
The Workers Compensation Board (hereafter the "WCB") accepted the worker's mechanical back pain as a compensable injury. It also accepted that the compensable injury enhanced the worker's pre-existing degenerative back condition of spinal stenosis and caused an additional syndrome known as cauda equina syndrome.

To this day, the worker has still not returned to employment. He takes the position that he is both physically and psychologically totally disabled from any employment. He relies on the multiple medical reports from his treating medical practitioners - general practitioners, physiatrists, neurologists, orthopaedic specialists, psychologists and psychiatrists - which say that the worker suffers from a pain disorder known as chronic pain syndrome. This pain disorder causes the worker to suffer an abnormal pain reaction to his back condition. They say that this disorder has caused the worker to have a very limited level of functioning such that it would preclude him from any employment.

The employer disagrees. It says that the worker's level of functioning is higher than that reported by the worker to his medical practitioners. The employer relies on videotaped surveillance of the worker between 2002 and 2004.

In making our determination of whether, on a balance of probabilities, the worker was physically and psychologically capable of working full time in a sedentary job (NOC 6683) at the Manitoba minimum wage effective March 29, 2004, we have closely examined the medical tests and findings, the worker's reported symptoms and level of functioning to his medical practitioners, together with his observed level of functioning during the videotaped surveillance.

The Medical Evidence

The Diagnostic Testing
Diagnostic testing done in 1999 and 2000 shows that the worker suffered from extensive degenerative changes to his lumbosacral spine:

• A June 23, 1999 x-ray of the lumbar spine reveals pre-existing scoliosis and moderate narrowing of the L4-5 disc;
• An August, 1999 x-ray of the lumbosacral spine shows degenerative changes in the facet joints in the lower lumbar spine;
• An October 12, 1999 CT scan of the worker's lumbar spine reveals extensive degenerative osteophytes at all levels of the lumbar spine, and most particularly at the L4-5, which resulted in severe central spinal stenosis and very pronounced bilateral exit foramen stenosis;
• A January 20, 2000 CT myelogram shows combined stenosis, severe at L4-5 and moderate at L3-4 as well as a small left sided L5-S1 disc herniation with first sacral root deformity;
• A June 20, 2000 CT myelogram was found to not be 'significantly different' from the prior January 20, 2000 myelogram.

The Medical Reports
As indicated above, the worker had a workplace injury on June 22, 1999. The worker's report states:

"Lifting a sheet of plywood with [another employee]. Plywood slipped out of hands - tried to catch it and felt pain in lower back/legs. Did not report it to plant manager as pain not too bad. However, pain got worse and went to see a doctor."

The worker first attended a physician on June 23, 1999. The objective findings were as follows: "moderate distress, decreased flexion, tender L4-5, normal [straight leg raises], pain in back, [no] radiation".

Subsequent medical reports from this same physician indicate that the worker's back symptoms were improving but that his leg pain and numbness were not. A CT scan was therefore ordered which showed pre-existing degenerative spinal stenosis. The physician thereupon changed his diagnosis to sciatic pain secondary to spinal stenosis from osteophytes.

A referral was made to an orthopaedic surgeon who opined as follows:

"...This gentleman suffered from mechanical back pain, as well as spinal stenosis…The stenosis that he has is obviously long-standing and unlikely to be a direct result of his accident… It is most probable that [the accident at work] aggravated his back pain although improbable that it…enhanced his condition…Given that he has no symptoms prior to the injury and that he has the pre-existing spinal stenosis, it is most likely that his symptoms will subside. However, there is also a possibility that he may have remaining leg symptoms that could possibly continue given the spinal stenosis."

The worker subsequently moved to Ontario. His doctor referred him to a physiatrist who reported as follows:

"Clinically he appears to be improving. He has fewer episodes of pain radiating into his leg and his back pain is settling…" (June 29, 2000)

"…he continues to have low back pain which is intermittent in nature. His pain radiates into his left leg. " (October 23, 2000)

On September 15, 2000, the WCB referred the worker's file to vocational rehabilitation services to assist the worker find an alternative occupational goal within the following restrictions: no lifting greater than 15 pounds, able to change positions often, no repetitive flexion, and no repetitive extension.

The worker was assessed by a rehabilitation consultant (hereafter "RC") in Ontario. The RC's first report of December 8, 2000 notes that the worker's complaints at that time were as follows: constant low back pain that precludes him from sitting, standing and/or walking for prolonged periods of time and numbness in both legs; walking and standing tolerance of ten minutes, sitting tolerance of thirty minutes. The RC noted that the worker was pleasant and friendly and tolerated two hours of sitting satisfactorily though he did change his position while seated.

Vocational rehabilitation was not pursued as the worker was found by the WCB to have recovered from his compensable injury.

Shortly thereafter, the worker attended a psychiatrist who opined that the worker was not fit to work. His report of March 29, 2001 reads:

"…he was injured at work in Manitoba 22nd June 1999…The patient's symptoms were so severe that he was unable to walk for six months following the accident…As well as these medical symptoms, he has had psychological effects from this accident. He has become depressed, he no longer has the ability to enjoy anything in his life, he cries fairly frequently or feels like crying even more often. He has to take sedatives to get to sleep. He no longer socializes, even if he wanted to see people, which he doesn't, his friends avoid him as he has become bad company. He is forgetful. He is irritable and bad tempered…He walks awkwardly, stooping forwards…

It is my opinion that this patient is severely impaired by reason of his back pain …and depression. He is not fit to resume a heavy kind of manual work, or indeed any other kind of work, and I have very little hope that he will ever be able to get back to any form of productive work at any time in the future…"

The extent of the worker's disability was echoed in an April 2, 2001 report by his neurologist:

"This man was injured in June 1999, when he was lifting a big 4 to 5 meter heavy plank of wood with some other workers. He twisted to the side and noted pain across the lower and upper back going to both shoulders. He immediately started to sweat. He did not, however, drop the plank, but shortly afterwards had to sit down at the job site. He then went to hospital and was on physiotherapy. He noted that any movement would produce pain…He can hardly, however, bend his neck or back…It was difficult to test his strength because of pain…

He has a chronic pain syndrome and he is totally disabled."

Then, on April 4, 2001 he saw a specialist in pain medicine who wrote:

"… On examination: He was somewhat overweight and certainly looked older than his stated age. He displayed a fair amount of pain behaviour. He had difficulty walking into the exam room…He was unable to assume a crouched position because of pain in his back…Straight leg raising was difficult to do because of lack of co-operation…"

The specialist in pain medicine questioned whether the worker had developed a cauda equina syndrome. A referral was therefore made to a neurological surgeon, who, on June 19, 2001 wrote as follows:

"History of Presenting Illness:…He was actually working and trying to put a heavy object (approximately 100 kgs) well above his shoulder. This slipped down and landed on the left side of his body. He has had neck pain and back pain since then. He has in fact pain wherever one questions him about…It seems that things may be a little better over the last two years but they are definitely not better enough for him to go back to work…

Neurologic Exam: This was hard to perform because of his lack of cooperation because of pain presumably…

Recommendation: He certainly would be a surgical candidate but I feel that he has a non significant component of sommatization and chronic pain type personality…He does not at all wish to consider surgery…"

The worker was also examined by an orthopaedic surgeon who opined that as a result of his workplace accident he "sustained multiple post-traumatic soft tissue injuries" and was experiencing chronic pain. He diagnosed him with a cauda equina syndrome with neurological involvement and G-I and G-U complications. He was once again found to be totally disabled.

The worker's subsequent visits to his medical practitioners continue to note his subjective complaints of functional difficulty and incapacity:

"He is unable to function in terms of bending, lifting or carrying things. He cannot do maintenance tasks around the house." (July 8, 2002 psychiatrist report)

"The patient has weakness and numbness in the left leg. The left leg gives way…He walks very slowly, leaning heavily on his cane. He cannot straighten out his back, which is tender in the lumbar region. " (July 15, 2002 neurologist report)

"He was complaining of pain over the whole of his back, worse in the lower than the upper back. The pain radiated down the left leg. He also complained of headaches and pain in his shoulders. The pain was present all the time...He was walking with a cane, and limping quite heavily…" (October 31, 2002 psychiatrist report)

"...The pain was worse on walking up a slight incline. He needed help with personal care..." (February 20, 2003 psychiatrist report)

"The patient is a very tall man who is standing completely stooped. He has almost no straight leg raising …He limps and leans heavily on his cane. In fact, any movement aggravates his injury…" (December 8, 2003 neurologist report)

"At times he either regresses or experiences such bad back pain that he is unable to wash or dress himself. He has frequent crying spells…[The worker] himself complained about constant back pain with numbness in his legs. He complained of pain over the whole of his spine and also of a kind of confusion in his head. He spoke of diminished energy and feeling very weak. He said that he cried almost daily." (January 14, 2004 psychiatrist report)

"Currently he is unable to put on his own shoes." (April 21, 2004 psychiatrist report)

Independent Medical Opinions
On two occasions the WCB sought independent psychological assessments of the worker.

In May, 2003 the worker was referred to a psychologist for a psycho-vocational assessment. Excerpts of the psychologist's report follow:

"…Two attempts were made to administer the TONI-3, a non-verbal test used to determine intellectual capacity. [The worker] responded uncooperatively on this test by his lack of effort… It is highly unlikely that an individual with his presentation and his past vocational and educational experience to score so low, which leads me to believe that [the worker] was both exaggerating his inability to concentrate or respond to the items…"

[The worker's] motivation to work is also somewhat questionable... Even in the event that Mr. [the worker] could be depressed, it is difficult to ascertain which elements in his presentation are indeed part of a depression and which symptoms may have been exaggerated…

With respect to [the worker's] future employability, I believe that this must be based on organic findings and not on his psychological presentation. This is due to the fact that even if he presented as having a pain disorder and depression, the inconsistencies observed do not allow me to diagnose him with any degree of certainty, as there are strong elements of exaggeration as well as doubts regarding his credibility."

The second assessment was done in March, 2004 by a psychologist. The purpose of the assessment was to re-test the worker's neurocognitive and emotional state, make a determination as to whether or not he was suffering from psychological/psychiatric symtomatology, and conditions that might prevent him from engaging in a job search. The psychologist was unable to do any testing on the worker as he cried loudly and behaved in a very histrionic manner. The psychologist therefore relied heavily on interviews with the worker's treating psychiatrist and doctor. In the end she diagnosed him with a pain disorder. A review of surveillance evidence did not change the psychologist's opinion. In particular, she found that the videotaped surveillance was not necessarily reflective of his average day-to-day activities.

Surveillance
Surveillance was carried out on the worker on several occasions between October, 2002 and March, 2004. Relevant excerpts of the surveillance follows:

October 30, 2002:

• Between 11:05 a.m. and 11:14 a.m. the worker was seen walking without any aids towards the bakery where he made a purchase. He walked erect with a slight limp.

October 31, 2002:

• Between 10:06 a.m. and 10:34 a.m. the worker was seen to walk without any aids towards the same bakery where he made a purchase. He was also seen conversing with another person both inside and outside the bakery;
• Between 10:34 a.m. and 11 a.m. the worker was seen driving his vehicle to another location where he conversed with three other individuals for approximately 4 hours. The worker was seen to use his cane on this occasion.
• At 2:56 p.m. the worker left this location and drove to a shopping plaza where he proceeded to shop until 3:29 p.m.. The worker was no longer using his cane. He shopped with a hand-held basket over his left forearm. He was also seen to bend and squat to retrieve two 12 pack cases of pop.

November 14, 2002:

• At 11:33 a.m. the worker was seen bending at the waist to pick up an object from the ground.

November 16, 2002:

• At 1:54 p.m. the worker was seen bending at the waist to unlock his vehicle door. He then leaned into the vehicle and pushed the trunk button. The worker then went to the front of the vehicle and raised the hood using his left hand to hold the hood open while he secured it in place, leaned into the engine compartment, walked to the trunk and took out an oil bottle. He then went back to behind the hood before returning to the trunk to get out some windshield fluid.
• At 1:58 p.m. he entered his vehicle and then proceeded to do some shopping at a shopping plaza for approximately 20 minutes.

November 17, 2002:

• At 9:06 a.m. the worker exited his vehicle, entered the same bakery where he made some purchases. He then exited the bakery and removed some snow from the windshield using his right hand.

March 4, 2004:

• The worker was observed replacing a tire on his car. This included taking a car jack from the trunk of his car, kneeling on the ground on one and two knees, unscrewing the bolts with a tire iron using his hands and then jumping on it. In doing so, the worker bent his legs, leaned on the car at a 45 to 90 degree angle, pulled a spare tire out of the trunk, and squatted.

March 13, 2004:

• The worker was seen washing his car with a hand-held spray nozzle. He was able to bend forward at the waist and spray under the carriage of the car.

Vocational Rehabilitation
The WCB attempted to enroll the worked in vocational rehabilitation on two occasions. The first such attempt was in September, 2000, as indicated above. This attempt was halted when the WCB first considered that the worker's condition had resolved.

A second attempt at retraining took place starting with the psycho-vocational testing in May, 2003. Based on the worker's physical condition, his experience and education, two NOCs were identified - NOC 6671 - attendants in recreation and sports; NOC 6683 - parking lot attendants or car jockey. Physical restrictions outlined by a WCB medical advisor of no lifting greater than 15 pounds, no repetitive or sustained flexion/extensions of the lumbosacral spine and ability to change position when needed, were also taken into account.

An earning capacity assessment was done in July, 2003. It noted that the worker had a Grade 12 education and had worked in his home country as an electrician for almost thirty years. He also served in his home country's army for four years during its war of independence.

NOC 6683 was ultimately chosen as the most appropriate NOC for the worker as it did not require any additional training or upgrading.

In an effort to assist the worker with his vocational rehabilitation, the worker was provided testing at an ESL centre. The worker became extremely agitated and started to cry when tested. It was therefore not pursued.

Then an individualized written rehabilitation plan (hereafter "IWRP") was entered into on October 8, 2003. The focus of the IWRP was to transition the worker into a job within NOC 6683. The plan was set for October 13, 2003 to March 28, 2004.

Several job opportunities were presented to the worker during the duration of the IWRP. On occasion, the worker would present disheveled and unshaved, would not speak English and would act emotionally. On other occasions, the worker presented with his representative to drop off resumes. No employment was secured.

On March 24, 2004, the WCB applied the $270.00 per week deem for NOC 6683. As indicated previously, this decision was maintained by the Review Office.

The Law and Policy

Vocational rehabilitation assistance is governed in part, by subsections 27(2) and 40(1) of The Workers Compensation Act (hereafter the "Act") and WCB policies 43.00 and 44.80.30.20, the relevant provisions of which are as follows:

Policy 43.00:
1. Goals and Objectives

1. The goal of vocational rehabilitation is to help the worker to achieve a return to sustainable employment in an occupation which reasonably takes into consideration the worker's post-injury physical capacity, skills, aptitudes and, where possible, interests.

V. Individualized Written Rehabilitation Plans (IWRP)

4. When developing the worker's vocational profile as part of an assessment, the WCB will include the worker's personal characteristics (e.g., age in terms of how it affects prospects for success), education, work history, occupationally significant characteristics, and transferable work skills.

Policy 44.80.30.20:
3. Requirements for WCB to demonstrate deemed earning capacity

a. The WCB must demonstrate (through adequate vocational assessment, plan development, and documentation) that the worker is capable of competitively finding, competing for, obtaining, and keeping employment in the occupation or group of occupations on which the earning capacity is based.

b. The WCB must demonstrate that the worker has the physical capacity, education, skills, aptitudes, interests, and personal qualities needed to obtain and keep employment in the occupation or group of occupations in the labour market.

c. The WCB must demonstrate that work exists for the occupation or group of occupations on which the earning capacity is to be based.

Analysis

Level of Functioning
Central to the worker's ability to work full time in NOC 6683 is his real level of functioning versus his self-reported level of functioning.

Indeed, it is not disputed that the worker suffers from a rather serious back condition. In the eyes of several medical advisors to the WCB, this back condition merits several physical restrictions. The back condition is not however, on its own, totally disabling.

What has been identified as being totally disabling for the worker is his reaction to his back condition. This 'reaction' has been diagnosed as a chronic pain syndrome or more generally as a pain disorder.

The medical practitioners who have diagnosed the worker with a chronic pain syndrome have essentially relied on the worker's own self-reported level of functioning as well as his displayed stooped walking, reliance on a cane, disheveled appearance, and crying. The reports from all medical practitioners indicate that other than the diagnostic testing that was done confirming his degenerative condition, no other testing was successfully and reliably done because of the worker's lack of cooperation or reported pain levels.

What this essentially means is that for the medical opinions to be reliable, the worker's self-reported level of functioning must also be reliable.

We are unable to place any weight on the worker's self-reported level of functioning given the inconsistencies in his reporting and the glaring contradiction of his functioning in the surveillance.

We accept that the surveillance covers only several days of activity within a two year time span. However, during this time span, the worker reported to his physicians that he was unable to do any activity.

For example, in 2003, the worker told his psychiatrist that he was unable to function in terms of bending, lifting or carrying and was unable to do maintenance tasks. He attended his medical appointments stooped, leaning heavily on a cane, and reported that he was unable to straighten his back.

The surveillance between 2002 and 2004 shows the worker walking straight without the use of a cane. He is seen doing the daily shop to the bakery. He is seen bending, lifting and carrying various objects. He is also seen doing rather vigorous jumps on a tire iron to change his tire.

While these activities do not necessarily mean that the worker might not have some physical restrictions or pain, they do show that he was capable of some activity and certainly greater activity than that reported to his medical practitioners.

For this reason, we are unable to rely on the reports from the medical practitioners to the extent that they rely on the worker's self-reported limitations of functioning. We find the worker is capable of sedentary work activity and have relied on several reports in reaching our decision.

We accept the comments in the May, 2003 psycho-vocational assessment report:

"With respect to [the worker's] future employability, I believe that this must be based on organic findings and not on his psychological presentation. This is due to the fact that even if he presented as having a pain disorder and depression, the inconsistencies observed do not allow me to diagnose him with any degree of certainty, as there are strong elements of exaggeration as well as doubts regarding his credibility."

We also accept the comments and opinion of the medical advisor to the WCB:

"[The worker] was not using a cane for mobilization except when visiting the office of the worker advisor. [The worker] was videotaped mobilizing well with non analgetic (sic) gait on several occasions. On one occasion he was able to walk up a grassy slope without difficulty. [The worker] was noted to get in and out a car easily with no pain behaviour. [The worker] was able to flex and return to upright while picking up pop at a local grocery. From activities noted on videotape there is evidence that [the worker] is not totally disabled and not as disabled as reported by MDs. The worker is likely capable of modified duties: no lifting >15 lbs, able to change position often, no repetitive or sustained flexion/extension of lumbosacral spine."

The Appropriateness of NOC 6683 and a Deemed Earning Capacity of the Manitoba Minimum Wage

NOC 6683 does not have any educational requirements. The occupations and duties of these occupations are as follows:

• Door attendants: assist persons entering or leaving hotels, theatres and similar establishments.
• Funeral home attendants: drive hearses, arrange lights and floral displays, escort mourners, act as pallbearers and clean funeral parlours and chapels;
• Laundromat attendants: replenish vending machines, provide change, explain operation of machines to customers, clean the Laundromat and arrange for the repair of broken machines and may wash, dry and fold laundry for customers; may operate dry cleaning machines for customers;
• Parking lot attendants and car jockeys: collect parking fees, issue ticket stubs, direct entertainment events and direct patrons to their seat.

An assessment of the market in both Manitoba and Ontario showed that there was a labour market with average employment prospects.

Given the job requirements and the worker's physical restrictions, we find that the worker was physically and psychologically capable of working full time in a sedentary job (NOC 6683) at the Manitoba minimum wage effective March 29, 2004. The worker's appeal is therefore denied.

Panel Members

L. Martin, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

L. Martin - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 12th day of May, 2006