The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An appeal panel hearing was held on April 19, 2006, at the request of legal counsel, acting on behalf of the worker. The worker and his wife appeared and provided evidence with the assistance of an interpreter. The worker was represented by legal counsel.

Issue

Whether or not the worker is entitled to compensable benefits beyond August 20, 2001.

Decision

That the worker is entitled to compensation benefits beyond August 20, 2001.

Decision: Unanimous

Background

Reasons

Claim History
On March 25, 1996, the worker sustained a cracked pelvis, torn urethra and internal injuries when an 800 pound steel plate fell onto his left side during the course of his employment as a welder. The claim for compensation was accepted by the Workers Compensation Board (hereafter the "WCB") and benefits were paid to the worker commencing March 26, 1996. Over time, the worker's pelvic injury healed. He was left with bladder incontinence as a result of the torn urethra.

The worker has never returned to employment. He developed chronic pain syndrome (hereafter "CPS") and depression which the WCB covered until August 20, 2001 when further responsibility was denied based on surveillance evidence. The worker appealed this decision to the Review Office which upheld it on four occasions - January 25, 2002, June 26, 2003, July 6, 2004, and April 27, 2005.

Background
The worker is 66 years old. In 1972, he immigrated to Canada from Portugal with his wife and children. He has been in the workforce since the age of 9.

On March 25, 1996, the worker was working on an 800 pound steel plate with a co-worker when the steel plate hit the floor, began to wobble and ultimately fell on top of him. He fell to the ground on his right side with his hand under his head. The steel plate hit his left side causing a broken pelvis, torn urethra and multiple internal injuries. He was found conscious under the steel plate bleeding from the mouth and nose.

The worker's physical injuries eventually healed though he was left with some bladder incontinence. However, the worker continued to experience pain which is described by his treating orthopaedic surgeon as "significantly more than what would be expected from the type of fracture suffered" (July 2, 1996 report) and "far out of proportion to his original injury and x-ray findings" (November 1, 1996 report).

His wife also reported to the WCB and his caregivers that he displayed a great deal of anger, stress and frustration. She indicated that he did not 'think straight' and was fearful of his driving and of his being alone in the house. These fears are noted throughout the WCB file.

Given the worker's continuing pain complaints, the worker was called in for an examination by a WCB medical advisor in November, 1996. This examination precipitated a referral to the WCB's Pain Management Unit (hereafter the "PMU") on March 25, 1997. The medical advisor in the PMU found that the worker suffered from a compensable CPS. He recommended attendance at a psychologist to deal with pain management, adjustment difficulties and depression. He also recommended a work hardening program.

The psychologist saw the worker in July, 1997. He confirmed the diagnosis of CPS as well as a mood disturbance. He characterized the worker's functioning as follows:

"This is a man who has obvious mood disturbance and Chronic Pain Syndrome as well as a very concrete world view regarding symptomotology and his role in potentially changing the symptomotolgy. The focus on pain management will be difficult with him as it took almost one session with him to begin to have some concept about rating his pain and we will persist with this…Also, he has concentration variability and there is some risk here with driving due to the reported distractibility that exists…"

A subsequent report of November 10, 1997 notes a continuation of symptoms and suggests volunteer or light alternative work in tandem with his psychotherapy to assist him in returning to employment.

Given the worker's confused and forgetful state, he was further examined by a neurologist and psychiatrist who found no evidence of a head injury at the time of the workplace accident that would account for this state. The psychiatrist did however confirm a diagnosis of CPS and major depression.

The worker then re-attended the medical advisor in the PMU in October 1998. The PMU medical advisor found that the worker was still suffering from a major depressive episode and CPS, both of which were related to the compensable injury. He recommended further sessions with the psychologist and a return to work plan.

This return to work plan was made in May, 1999 with the collaboration of the psychologist, the worker, the accident employer and the WCB. According to this plan, the worker would gradually return to work while his psychologist was job shadowing him so as to alleviate any fears that the worker might encounter. The outcome was not successful. The psychologist found that the worker was physically unable to handle the demands of his job and experienced an increased state of anxiety and depression.

The worker was then referred by his general practitioner to a clinical psychologist in January, 2000. The clinical psychologist diagnosed the worker with somatization disorder, adjustment disorder and depression. He thought that the worker needed to work to feel better (reports of March 6 and 27, 2000).

Unfortunately, the worker's attempts at a work hardening or functional restoration program were unsuccessful and the worker remained unemployed.

The worker's general practitioner continued to express concern over the worker's mental and psychological condition.

By August, 2000, the PMU found the worker's state to be unchanged; he continued to exhibit symptoms characteristic of CPS, a dysthymic disorder and had permanent restrictions of no lifting greater than twenty pounds, no frequent lifting or carrying greater than ten pounds, no prolonged sitting or standing greater than thirty minutes, no prolonged walking greater than fifteen to twenty minutes and an opportunity to change position on a frequent basis.

The worker was then referred by WCB to a geriatric psychologist for treatment of depression. The geriatric psychologist examined the worker in December, 2000. He thought that the worker suffered from a mood disorder related to his chronic pain.

Shortly after this examination, the worker accidentally set fire to his house destroying all of its contents. The worker's wife told the case manager that the worker was coping by spending most of his day with his son, who owned a furniture store. When the work began on the restoration of their house, the wife sent the worker to watch them. With time, the workers complained and he returned to spending his days at his son's store.

Then surveillance was carried out on the worker on July 16, 17, and 18, 2001.

The surveillance report begins as follows:

"…we found the claimant working on a part-time basis at [name and address of store]. The [worker] would normally arrive at the store around noon hour and would work in the warehouse area, until closing. As that area of the store is restricted to the public, we were unable to determine the nature of his work." [Emphasis added]

The activity seen on the surveillance video is as follows:

July 16, 2001: He was seen on five occasions between 1 p.m. and 6:10 p.m. He was seen putting an unidentified object in his cab, going to and from his truck, making a trip to a nearby store by car, for a total of twenty minutes (there and back).

July 17, 2001: He was seen arriving at the store at around 1 p.m. He was unseen until 3:10 p.m. when he drove to a nearby cultural men's club where he remained for forty minutes then returned to the store. Then at about 5:30 p.m., he was seen throwing various items into a garbage bin: an exhaust fan, a garbage pail of sawdust, scraps of lumber, cardboard. He was also seen loading his truck with three garbage pails full of short lengths of lumber.

July 18, 2001: He was seen at the store between 11:40 a.m. and 6 p.m.. Once again he was seen carrying lumber for about thirty-five minutes, dumping garbage for about fifteen minutes, and driving to the cultural men's club where he stayed for about fifty minutes.

The operative doing the surveillance concludes his surveillance report, in part, as follows:

"It would appear that [the worker] continues to work at [the store] on a regular basis. He is, however, working part-time hours….
It would appear that he either assembles or builds furniture in the warehouse area, which is located at the north side of the building. The shipping door at the north-west corner of the building is directly in front of the area where the [worker] is believed to work. I have seen all of the other employees assisting customers at the entrance to the shipping area. The [worker] has been conspicuous by his absence at the shipping-room door. It would appear that his duties inside the building are well defined…"

Interestingly, concurrent to the surveillance, the worker's wife called the case manager representative to report that the worker had been at the hospital emergency department on the evening of July 18, 2001 (one of the surveillance dates) where he received several morphine injections for pain. The memorandum to file recording this telephone conversation reads:

"[She] explained that earlier that day, her husband was at his son's furniture store. Apparently there were some small pieces of wood from broken furniture and her husband was picking up some of the small pieces for them to take home to keep for later use in their wood stove. [She] thinks that this activity aggravated his condition and brought on the pain."

The surveillance video was viewed, amongst others, by the case manager, a medical advisor to the WCB and the PMU medical advisor. It was thought that the worker's displayed activity was outside of his physical restrictions and inconsistent with his reported level of functioning. It was then decided to cease his benefits effective August 20, 2001. This decision was upheld by the Review Office on January 25, 2002, which was maintained on reconsideration on June 26, 2003, July 6, 2004 and April 27, 2005. It is this decision that the worker appeals.

Worker's Position
The worker says that he should be entitled to compensation benefits beyond August 20, 2001 as he was not recovered from his compensable injury at that time.

Counsel for the worker urged the panel to look at the evidence in its entirety in assessing the worker's true level of functioning. He pointed to the worker's pre-injury work history and health, and the change in the worker's functioning after the serious workplace accident as it is confirmed by his family and co-workers, and documented in the medical reports.

Analysis
As stated before, the worker continued to receive benefits until August 20, 2001. The WCB ceased payments because it found that the worker's displayed level of functioning on surveillance was inconsistent with his reported level of physical and psychological functioning to his medical practitioners.

We do not agree with this finding.

The worker's psychological difficulties have been consistently reported by the worker's wife to the WCB as of May, 1996. In May, 1996, she reported "a lot of anger and stress within the home". In June, 1996 she advised that the worker did not seem to be "handling things well". He was angry and getting mad. She said that he was not "thinking straight" and did not trust him to drive. The worker's file is replete with memoranda noting these types of comments.

The wife says that she feels she cannot leave her husband alone. She is constantly telling him not to do things but he never listens to her. He continues to drive short distances and do "stupid things". On several occasions he caused fires within their home and on one occasion burned the entire contents of their house.

The worker's depressed and forgetful nature is referenced in the many medical reports on file. Though there are references to subjective reporting, psychological testing has also been done. The test results suggest that the worker was sincere in his efforts and tried his best.

Further, the medical reports also consistently note that psychological counseling will most likely not benefit the worker because of his 'concrete' and 'old world' nature. It was opined by many psychologists that the best way to help the worker would be to provide him with some work or volunteer experience so that he would feel 'useful' again.

No vocational rehabilitation was undertaken by the WCB. His family did try to keep him active by, for example, going to his son's furniture store in the afternoon. The WCB was advised of this plan.

It was in this context that the worker was at his son's store when he was surveiled. We find that he was not surreptitiously working part time.

The worker testified that he would go to his son's store. He would mainly sit in the back of the warehouse. If he saw some material on the floor he would try to clean it up. From July 16 to 18, 2001, he was at his son's store as usual. There was quite a bit of material on the floor of the warehouse that he thought needed to be thrown out; some wood could be used for firewood. This is the activity that the worker was seen doing. The worker testified that the wood, sawdust and cardboard that he carried weighed between 1 to 10 kilograms - which is within his physical restrictions. The worker's son also provided written evidence regarding his father's general physical and emotional state and essentially characterized his father as hanging around at the store. There was no salary paid to his father or any expectations of hours. This is in marked contrast to the speculation of the operative regarding the worker's inside activities which he did not in fact observe.

What is most important and telling however is that after this level of activity, which is within his permanent restrictions, the worker ended up at a hospital emergency department where he was given several shots of morphine for pain.

In weighing all of the evidence, we find on a balance of probabilities that the worker had still not recovered from the effects of his compensable injury as of August 20, 2001. Though the surveillance showed the worker doing some activity, we do not find this surveillance persuasive; it does not lead us to question the worker's reporting which we find has been consistent. We note that the physical activity was limited and sporadic, and must, in any event, be weighed against the preponderance of evidence regarding the ongoing psychological issues facing the worker, in particular the diagnoses of CPS and depression. In our view, these compensable sequelae of what was a very serious accident preclude the worker from forming a meaningful attachment to any job. For these reasons, the worker's appeal is allowed. We find that the worker is entitled to compensation benefits beyond August 20, 2001.

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 24th day of May, 2006