Public Decisions | The Appeal Commission

Decision #80/99 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on May 3, 1999, at the request of an advocate, acting on behalf of the claimant. The Panel discussed this appeal on May 3, 1999.

Issue

Whether or not the claimant is totally disabled by reason of his October 16, 1992, compensable accident;

Whether or not the claimant has recovered from his October 16, 1992 compensable accident; and

Whether or not the claimant is entitled to payment of wage loss benefits beyond September 18, 1998.

Decision

That the claimant is not totally disabled by reason of his October 16, 1992, compensable accident;

That the claimant has recovered from his October 16, 1992 compensable accident; and

That the claimant is not entitled to payment of wage loss benefits beyond September 18, 1998.

Background

The claimant was lifting luggage while employed as a taxi cab driver on October 16, 1992, when he injured his lower back. The initial diagnosis reported by the attending physician was a lower back strain and left sided sciatica. The claimant was later diagnosed with pre-existing degenerative disc conditions. The claim was accepted as Workers Compensation Board (WCB) responsibility. It was further noted that the claimant has prior back claims with the WCB and was involved in several motor vehicle accidents between 1982 and 1989 sustaining injuries to his lower back and neck.

In February 1996, a Vocational Rehabilitation Plan was established for the claimant as he was considered unable to return to his pre-injury occupation. The vocational goal was to assist the claimant in seeking work as a security guard. Permanent restrictions were outlined to avoid lifting greater than 25 pounds, no repetitive bending, twisting and no standing for long periods of time without the opportunity to change positions.

Medical information on file consisted of reports from a rehabilitation medicine specialist, the family physician and a neurosurgeon. The claimant was also examined by a WCB medical advisor on November 17, 1997, the WCB's pain management unit on November 28, 1997, and by a cardiologist in January 1998.

On June 1, 1998, the claimant entered into a work agreement with a construction company as a night watchman. The specific job duties were monitoring the job site, locking up entrance/exit gates, and being a deterrent to possible vandalism. It was anticipated that the claimant would work from 5:30 p.m. to 9:30 p.m. and over time, increase his hours of work to 5 hours per day.

Between June 1, 1998, and August 19, 1998, the Employment Specialist documented the claimant 's progress in the work assessment program. During this time period it was noted that the claimant only worked 2 to 2.5 hours per day because of either pain complaints, an ear infection or because of "rain".

On June 11, 1998, the claimant was assessed as an out-patient by the treating rehabilitation specialist and his impression was "acute on-chronic exacerbation of mechanical and radicular pain in the L5-S1 nerve root distribution." On July 6, 1998, the specialist's impression was chronic spondylosis of lumbosacral spines with L5-S1 radiculitis.

On August 21st and August 26, 1998, the claimant's activities were videotaped at the request of the WCB's Special Investigations Unit. On September 4, 1998, the videotape was reviewed by a WCB medical advisor who provided the opinion that the claimant had fully recovered from any effects of the compensable injury and any residual complaints he had were related to his pre-accident condition. With respect to restrictions, the medical advisor was of the opinion the claimant was capable of work at the medium level according to the Canadian Classification of Dictionary and Occupations.

Following consideration of the comments expressed by the WCB medical advisor on September 4, 1998, primary adjudication informed the claimant that he was considered capable of performing medium work which meant he was capable of returning to his pre-accident position thereby eliminating any loss of earning capacity. Primary adjudication noted from the videotape that the claimant only stayed at the work site for approximately one hour on August 21, 1998, and was observed on August 26, 1998, as follows: "a) you stayed at work less than one hour b) left the job site unlocked c) picked up a woman from Western Glove Works d) returned to the work site, locked the gate e) left the site and did not return." Primary adjudication viewed this as non-compliance with the expectations of the work assessment agreement. The claimant was also notified that WCB benefits would be paid to September 18, 1998, inclusive and final.

On November 16, 1998, Review Office acknowledged receipt of an appeal from the claimant's advocate with regard to primary adjudication's decision to discontinue benefits beyond September 18, 1998. The advocate submitted medical information from an occupational health physician dated October 13, 1998, and from a rehabilitation medicine specialist dated September 1, 1998. On December 11, 1998, the Review Office determined the following:

that the claimant was not totally disabled by reason of the October 16, 1992, compensable injury;
that the claimant had recovered to his pre-October 16, 1992 physical status and;
that the claimant was not entitled to payment of wage loss benefit beyond September 18, 1998.

The Review Office made reference to subsections 4(1), 22 and 27(20) of the Workers Compensation Act (the Act) along with the surveillance videotape evidence. Review Office was of the opinion that the claimant misrepresented himself with respect of any disability as the tapes showed he was capable of walking and driving over extended periods, and was able to enter and exit his vehicle without difficulty. It was noted the claimant was walking down his sidewalk reading a newspaper and using no cane. It was noted by Review Office that the claimant did, on occasion, use a cane to assist in his walking but these times purely related to when he was either attending a medical examination or the work site. Review Office took into consideration the medical information submitted by the advocate dated October 13, 1998, and noted that the physician did not examine the claimant but reviewed file documentation. Review Office remarked that the physician was aware of the two surveillance tapes and had stated that the information contained was not directly medical in nature and he would not address the matter. Review Office concluded that it did not have substantive information that would indicate the claimant remained totally disabled or that he provided reliable information to any physician who has examined him in recent days.

On March 15, 1999, the advocate appealed the Review Office's decision and an oral hearing was held on May 3, 1999.

Reasons

The issues in this appeal are whether or not the claimant is totally disabled as a result of his October 16, 1992 compensable accident; whether or not the claimant has recovered from his compensable accident of October 16, 1992 and whether or not the claimant is entitled to payment of wage loss benefits beyond September 18, 1998.

The relevant subsections of The Workers Compensation Act (the Act) are subsections 60(2) which provides for the particular jurisdiction of the board; 39(2) which provides for the duration of wage loss benefits; section 22 which outlines practices which delay the workers recovery and subsection 27(20) which gives the board the discretionary power to provide additional benefits and services to a worker for academic, vocational or rehabilitative assistance.

Subsection 60(2) provides in part:

Particular jurisdiction

60(2) Without hereby limiting the generality of subsection (1) , it is declared that the exclusive jurisdiction of the board extends to determining

e) the loss of earning capacity resulting from an accident;

Subsection 39(2) states:

Duration of wage loss benefits

39(2) Subject to subsection (3), wage loss benefits are payable until

(b) the worker attains the age of 65 years.

Section 22 states:

Practices delaying worker's recovery

22 Where an injured worker persists in insanitary or injurious practices which tend to imperil or retard his or her recovery, or refuses to submit to such medical or surgical treatment as in the opinion of the board is reasonably essential to promote his or her recovery, or fails in the opinion of the board to mitigate the consequences of the accident, the board may, in its discretion, reduce the compensation of the worker to such sum, if any, as would in its opinion be payable were such practices not persisted in or if the worker had submitted to the treatment or had mitigated the consequences of the accident.

Subsection 27(20) states:

Academic, vocational, rehabilitative assistance

27(20) The board may make such expenditure from the accident fund as it considers necessary or advisable to provide academic or vocational training, or rehabilitative or other assistance to a worker for such period of time as the board determines where, as a result of an accident, the worker

(b) requires assistance to reduce or remove the effect of a handicap resulting from the injury; or

We reviewed all the evidence on file and given at the hearing including the surveillance tapes covering the worker's activities on August 21 and 26, 1998. We find that the evidence supports a finding on a balance of probabilities that the claimant is not totally disabled as a result of his October 16, 1992 compensable accident; that the claimant has recovered to his October 16, 1992 pre-accident status and therefore the claimant is not entitled to payment of wage loss benefits beyond September 18, 1998. In reaching this conclusion we noted the following evidence.

the claimant was initially injured while working as a cab driver and lifting luggage on October 16, 1993. The claim was accepted as a WCB responsibility for a low back strain and benefits were paid accordingly;
information from Manitoba Public Insurance (MPI) revealed that the claimant had been involved in several motor vehicle accidents (MVA). The information reveals a prior history of MVAs in 1982 and 1986 as well as in 1985 in which the claimant sustained an acute low back and para cervical sprain; in 1987 in which the claimant sustained lower back and neck injuries; and in 1989 when the claimant also sustained a lower back injury;
in a report dated October 29, 1987 following the 1987 MVA an attending neurologist indicated:
" At the time of examination, findings were equivocal. Mr. [the claimant] complained of a lot of pain and did a lot of moaning and groaning during the examination. Objective findings, however, were few ... .
" to summarize clinical findings at the time of examination (15th September 1987) were scant and of doubtful significance. C.T. scan which was done on the 1st October 1987 showed findings which was suggestive of a progressive degenerative disorder and in my opinion would be unrelated to this accident [MVA]."
the file was reviewed by a WCB medical advisor on February 15, 1993. The claimant was found to be not totally disabled and capable of light duties with restrictions. The medical advisor gave his further opinion that the claimant had quite marked x-ray changes of degenerative disease and it was difficult to ascertain the extent of recovery because of the pre-existing disease;
a WCB medical advisor examined the claimant on June 30, 1993 and found the claimant to be partially disabled with the possibility that degenerative changes in the lower lumbar discs were contributing to the delay in recovery. He further found the claimant to be capable of work with restrictions;
in a report dated May 3, 1994 an attending physiatrist indicated that the claimant would not be able to return full time to his pre-injury occupation as a taxi driver although he could drive for 3-4 hours but would be unable to lift any luggage. The physiatrist indicated:
" Radiculopathy pain has significantly improved but he still has mechanical lumbosacral pain syndrome due to spondylosis of the lumbosacral spine and facet joint arthritis."
" He is not fit to return to any moderate to heavy degree of work. He is suitable to return to a sedentary job and will not be able to lift any objects weighing more than 10-15lbs."
on May 25, 1994 the claimant was initially referred to vocational rehabilitation and employment services and subsequently assessed for appropriate employment within the outlined restrictions;
the claimant entered a work hardening/physical reconditioning program on November 21, 1994 with the goal of a return to work as a taxi driver;
in a report dated November 7, 1994 an occupational therapist who assessed the claimant for a combined physical reconditioning and work hardening program indicated:
" During this portion of the assessment, client demonstrated very dramatic pain behaviours and self limited tasks due to pain complaints."
in a progress report dated December 21, 1994 from a combined work hardening/physical reconditioning program a therapist reports:
" Throughout participation in the rehabilitation program Mr. [the claimant] demonstrates pain behaviours such as moaning, grimacing and holding back. Mr. [the claimant] tends to focus on pain and symptoms and requires redirection to participate in exercise program. Mr. [the claimant] has reported his physician has advised him not to perform exercises if they are painful."
in a report dated February 20, 1995 from a combined work hardening/physical reconditioning program an occupational therapist and physiotherapist indicated to the WCB vocational rehabilitation consultant:
"Despite team meeting on January 19, 1995, involving yourself, Mr. [the claimant] and the Occupational Rehabilitation Group staff, Mr. [the claimant] did demonstrated (sic) only small improvements in terms of his demonstrated pain behaviours or compliance with an exercise program. Mr. [the claimant] continues to present as pain focused and requires frequent direction to participate in his rehabilitation program... ."
" Mr. [the claimant] has not demonstrated any significant improvements in terms of his physical or functional abilities since last reassessment. Mr. [the claimant] has not been attending regularly due to multiple medical assessments, illness and family issues.
It had continued to be the goal of the rehabilitation program to return Mr. [the claimant] to his previous employment as a taxi driver. Due to recent medical investigations and confusions regarding medical advisement as to his diagnosis and prognosis, Mr. [the claimant] has not been fully participating in the program and therefore has not demonstrated significant gains. Therefore, Mr. [the claimant] has been discharged from his rehabilitation program.
Mr. [the claimant] would be able to return to work on a full time basis with physical demands within his outlined abilities."
a memorandum to file from a vocational rehabilitation counsellor to an adjudicator dated March 22, 1995 indicates that following the reconditioning program the claimant had the functional capacity to return to work as a taxi driver; and based on medical information his cardiac problems were not related to the compensable injury and most of the claimant's on-going back difficulties were related to pre-existing conditions in his spine;
following a review of the file a WCB medical advisor gave his opinion on September 6, 1995 that although the cumulative effects of the compensable injuries had not caused the claimant's degenerative disease they had caused a permanent enhancement of the claimant's degenerative disc disease. Based on this benefits were reinstated and a subsequent referral was made to vocational rehabilitation with permanent restrictions of no lifting over 25lbs; no repetitive bending or twisting; no standing for long periods of time without the opportunity to change positions;
the claimant entered into a vocational rehabilitation plan signed February 15, 1996 with the goal of obtaining work as a security guard or a commissionaire and on May 6, 1998 a rehabilitation plan providing job search and job training with these occupational goals;
a memorandum to file dated February 24, 1997 from a WCB vocational rehabilitation consultant indicated that an opportunity had been obtained with a security firm that fell within the claimant's restrictions however the employer had concerns about the claimant's pain presentation. The reports states:
" Mr. [the claimant] continues to present as being very pain focused. He has had an opportunity to participated (sic) in a work hardening program through the Occupational Rehabilitation Group. Reports indicated however that upon completion of this program, he continued to be pain focused."
the claimant was found capable of full-time employment within his restrictions and as a result of job search the claimant was placed in a position with another security company on June 1, 1998;
in a memorandum to file dated July 24, 1997 from a WCB employment specialist the status of the claimant's work assessment program was reviewed which revealed that the claimant had not progressed beyond 2 to 2.5 hours per day and that the work assessment should be reviewed to determine whether it was worth continuing;
the claimant was examined by a neurosurgeon on April 17, 1997 who indicated:
" The patient has recently undergone a myelo-CT in which there is no evidence of disc herniation or spinal stenosis. He however, does show facet joint degeneration in his lower back. Overall the patient has clinical features of mechanical back pain."
the claimant was examined by a WCB medical advisor on November 17, 1997 who found the claimant capable of sedentary duties because of the pre-existing component and further indicates:
" His examination today is not consistently in keeping with nerve root irritation and would appear to be more of a mechanical back problem in my view. He has 4/5 Waddell's sign suggesting abnormal illness behaviour.
He seemed somewhat pain focused during the examination and complained at times of discomfort which would occur during the natural course of moving or stretching musculature which was not specifically related to his back."
the claimant was assessed on November 28, 1997 by a WCB medical advisor pain management unit who indicated:
" Mr. [the claimant] likely originally had a reasonable reason for ongoing sufficient pain which has to some degree resolved but unfortunately, deconditioning has been such that he has mechanical pain of his lumbosacral spine and secondary occupational dysfunction. He has not progressed with physiotherapy because he self-limits with pain behaviours... .
Mr. [the claimant] had extensive pain behaviours and posturing at the beginning of the interview which settled somewhat following my discussion of the fact that he had permanent restrictions related to enhancement of a pre-existing degenerative disc disease and one had a sense of genuineness following this in his symptomatology. He is not presenting complete disability on the basis of pain, he believes he can work 8 hours per day so long as the work is light enough."
a report dated January 8, 1998 from an attending cardiologist indicated that he had treated the claimant for hypertension and chest pain (angina) since as early as 1989 and indicated that both were well controlled and subsequently submitted cardiac stress tests show good exercise tolerance;
a WCB physiotherapy consultant reviewed the file on May 31, 1998 and indicates:
" In my opinion treatment is required 2 to degenerative spinal change and not the 1992 C.I. Dr. [physiatrist] refers to the (L) radiation pain being d/t [due to] irritation of S1 N. [nerve] root d/t [due to] osteophyte formation (Nov. 23/93). Hx. of back and (L) leg pain pre-date the C.I. He has had past physio. for this condition with no appropriate benefit."
the claimant was videotaped on August 21 and 26, 1998 under the authority of the Special Investigations Unit of WCB and as such these tapes formed part of the record at the appeal;
a WCB medical advisor reviewed the surveillance tapes on September 4, 1998 and noted the claimant's activities during the day where the claimant is observed getting in and out of a car with no apparent difficulty as compared with his activities on arrival at the work site on the days in question;
the WCB medical advisor further reported on September 4, 1998 that with respect to restrictions the claimant was capable of returning to work at the medium level according to the Canadian Classification of Dictionary in Occupations, indicating that the claimant could occasionally lift 50 lbs. maximum with frequent lifting and carrying capability of objects up to 20 lbs. The medical advisor gave his further opinion that the claimant demonstrated he has recovered from any effects of the compensable injury and that any residual complaints that he had related to a pre-existing condition, unrelated to the compensable event;
at the hearing the claimant confirmed that he was the person portrayed on the videotape surveillance;
a memorandum to file dated September 14, 1998 from a WCB employment specialist indicated that it was explained to the claimant that his activities had been taped and that the tapes had been reviewed by adjudication, vocational rehabilitation and a WCB medical advisor. The claimant was informed that based on his activities as revealed by the tapes it had been determined that he was capable of his pre-accident occupation as a taxi driver and that based on this, his failure to mitigate, and the deemed earning capacity policy he would be unable to receive further benefits from the WCB;

We find from the weight of evidence, on a balance of probabilities, that the claimant has not been participating actively and to the best of his ability within the context of his medical and vocational rehabilitation plans. The evidence reveals that the claimant has consistently presented himself to be pain focused dating back to at least 1987 and as noted by various health care practitioners in the subsequent reports on file. We concur with the Review Office finding that the claimant has consistently placed road blocks to returning to work on the basis that his symptoms were worsening which we find negatively impacted the proposed rehabilitation plans developed by the claimant and the WCB. We also concur that vocational rehabilitation benefits were paid to this claimant until September 18, 1998 in good faith by the WCB based on the claimant's statements during that period of time. We find that the WCB provided every opportunity to the claimant to assist him in a return to the work force.

From a review of all the medical information we find that the claimant has a pre-existing degenerative back condition. However, in our opinion, this pre-existing condition would not prevent the claimant from resuming his full time pre-accident duties as a taxi driver. This position is supported by the goals and recommendations of the initial vocational rehabilitation plan and the claimant's demonstrated level of functional activity as observed on the surveillance tapes by the WCB adjudication and rehabilitation staff, the WCB medical advisor and the panel. In our opinion this level of activity and the claimant's presentation of continued disability suggests that the claimant failed to mitigate the circumstances of his claim in that his noted activities are considered inconsistent with his claimed level of disability. We note the claimant gave evidence of, and has been reported to have, a degree of depression related to medical, family and financial complaints however, the weight of evidence fails to support a relationship to the compensable injury of October 16, 1992.

In summary we find that the claimant is not totally disabled by reason of his October 16, 1992 compensable accident; that he has recovered from the effects of his October 16, 1992 compensable accident and is capable of resuming his pre-accident duties as a taxi driver. Although the panel recognize that the claimant has a pre-existing degenerative condition of the back we find that this condition was temporarily aggravated by the compensable event of October 16, 1992 and that the claimant had recovered to his pre-accident status by September 18, 1998 and therefore is not entitled to payment of wage loss benefits beyond that date. Any recommendation for restrictions in our opinion would relate to the claimant's pre-existing degenerative spinal condition or his non-compensable hypertensive or cardiac condition and are therefore considered preventative in nature and not required as a direct result of the October 16, 1992 compensable accident. Therefore the claimant's appeal on all issues is denied.

Panel Members

D. A. Vivian, Presiding Officer
A. Finkel, Commissioner
R. Frisken, Commissioner

Recording Secretary, B. Miller

D. A. Vivian - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 25th day of May, 1999

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