The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker injured her back on May 8, 2002. She applied for and received benefits from the Workers Compensation Board (WCB). In June 2005 the WCB determined, after considering video surveillance, that the worker was fit to resume her regular duties on a full-time basis. The WCB also determined that responsibility should not be accepted for further chiropractic treatment. The worker disagreed with the WCB decision and appealed to the Appeal Commission.

An appeal panel review was held on July 13, 2006, at the request of a union representative acting on behalf of the worker.

Issue

Whether or not the worker is entitled to wage loss benefits beyond June 19, 2005; and,

Whether or not responsibility should be accepted for chiropractic treatment subsequent to July 28, 2005.

Decision

That the worker is not entitled to wage loss benefits beyond June 19, 2005; and,

That responsibility should not be accepted for chiropractic treatment subsequent to July 28, 2005.

Decision: Unanimous

Background

On May 8, 2002, the worker contacted the Manitoba Workers Compensation Board (WCB) to report an injury to her lower left back. She advised that on May 8, 2002, she turned abruptly in her chair and experienced a sharp pain in her back. As a result of this injury, the worker reported that she was losing time from work. The worker's claim was accepted and wage loss benefits were paid. The worker returned to work and there was no activity on her file until June 2004 when the worker contacted the WCB to advise that she is experiencing continuing difficulties with her back.

The worker claimed that her back pain had never subsided and had become worse over the past three weeks. She also reported that she was again experiencing radicular symptoms affecting the left leg. She denied any new accidents to account for the increase in symptoms and advised that her work duties had not changed.

The family physician provided a report dated June 22, 2004. The physician advised that she assessed the worker on June 10, 2004 at which time she presented with complaints of worsening back pain. It was reported that the worker's pain was aggravated by sitting and that she always felt tired and slept poorly because of the pain. Physical examination revealed positive SLR at 45 degrees. Knee and ankle reflexes were bilaterally 2+, Babinski sign was negative and power in both feet considered normal. The physician indicated that the worker requested time off work which the doctor granted for the period June 10 to 25, 2004 inclusive. The worker was given further anti-inflammatory medications. The worker advised that she would be seeking treatment from a chiropractor. A repeat x-ray of the lumbosacral spine was performed. The impression was that of L5-S1 disc degeneration with no significant change as compared to the x-ray performed September 10, 2001.

The worker commenced chiropractic treatment on July 9, 2004 and from initial reports from the chiropractor and the worker, she appeared to be improving. The worker reported a decrease in left leg symptoms but indicated that her sitting tolerance remained limited to about 10 minutes duration.

A WCB chiropractic consultant spoke with the treating chiropractor on August 23, 2004. During this conversation, the treating chiropractor reported that the worker was progressing. This was reflected in both his clinical observations of the worker and by her status inventory scores. Ten additional chiropractic treatments utilizing Active Release Technique (ART) and acupuncture were approved. The WCB consultant also indicated that a graduated return to work should be explored toward the middle of September 2004.

On September 21, 2004, the case manager spoke with the treating chiropractor. At that time the chiropractor expressed the opinion that the worker's condition had progressed with treatment but had now plateaued. It was felt that it would be appropriate for the worker to commence a strengthening program with a physiotherapist. The chiropractor advised that he would wean the worker off of chiropractic treatment.

In light of the worker's progress, arrangements were made for her to return to work on a graduated based. The return to work was scheduled to begin December 8, 2004 to January 4, 2005 inclusive during which time the worker would receive full wage loss benefits from the WCB. It was expected that for the first two weeks of the program, the worker would work four hours per day and then increase this to 6 hours per day for the final two weeks of the program. Effective January 5, 2005, it was expected that the worker would resume her full time pre-accident duties.

The worker contacted her case manager on January 4, 2005 to advise that she was experiencing further leg and back pain. She reported that she attended another chiropractor and after a few treatments, her left leg radicular symptoms and pain returned. After discussing this with the WCB chiropractic consultant, the case manager advised the worker that the WCB would authorize a few more treatments with the first chiropractor which the WCB referred her to. She was told that she was still expected to return to work on January 5, 2005.

The worker did not resume her employment duties on January 5, 2005. Treatment was sought from the chiropractor as well as from her family physician. Her family physician was of the opinion that the worker was not able to return to work due to her deteriorated condition. Responsibility for the worker's continuing time loss from work was accepted by the WCB.

The worker was assessed by a WCB medical advisor on February 2, 2005. The medical advisor expressed the opinion that the worker continued to present with a left S1 nerve root irritation related to the original compensable injury. The results of the call-in examination were discussed with the family physician who agreed that the WCB would arrange to expedite a CT scan and as well, arrange for a referral to a physical medicine and rehabilitation specialist (physiatrist) for possible epidural steroid injection. The worker was considered capable of a graduated return to work. Unfortunately, the graduated return to work could not be accommodated.

The repeat CT scan was performed on March 7, 2005. The results of the imaging study revealed mild diffuse annular disc bulging at the L4-5 level with no evidence of disc herniation, spinal stenosis or nerve root involvement. At the L5-S1 level, diffuse annular disc bulging was also noted. The report further indicated that the "previously identified left paracentral disc protrusion is no longer seen in the current examination."

The physiatrist assessed the worker on March 9, 2005. Based on the clinical presentation and his review of the prior CT and MRI imaging studies, he felt that the disc material noted was fairly lateral and could be affecting the L5 nerve root rather than the S1 root. As such, arrangements were made for a transforaminal corticosteroid injection to be performed. This procedure was carried out on March 22, 2005. In a subsequent report dated April 23, 2005, the physiatrist advised that he again reviewed the worker on April 19, 2005 when she reported that she did not experience much benefit from the injection. It was said that an MRI would be repeated and that the worker would be again assessed after that.

The MRI was performed on May 17, 2005. The report again noted a left posterolateral disc protrusion that was less severe in appearance as compared to the previous examination.

On June 14, 2005, the results of a video surveillance were placed on the file. These results were reviewed by the case manager as well as by the WCB medical advisor. The video evidence was interpreted as showing the worker performing numerous activities including shopping and playing with her son at a local pool. A sworn declaration obtained from the surveillance employee indicated the worker spending approximately 5 hours sitting at a local casino. When reviewing this evidence, the medical advisor opined that the worker's movements revealed an ability to fluidly bend, lift and twist without any hesitation or pain behaviour. The worker was seen walking briskly without antalgia throughout the period of surveillance. On the basis of the functional capabilities demonstrated on video and as witnessed, the worker was considered capable of resuming her sedentary duties full time.

On June 17, 2005, the case manager issued correspondence to the worker confirming their previous telephone discussions wherein it was decided that the worker would resume her full time duties effective June 20, 2005. The letter further advised that wage loss benefits would be paid to June 19, 2005 and that the WCB would continue to pay for medical treatment in relation to the compensable injury.

On July 28, 2005, the WCB chiropractic consultant reviewed the file based on a request from the treating chiropractor for an extension for services to be provided to the worker. The request for an extension was denied. The consultant indicated that the WCB was not able to identify an exceptional circumstance that would warrant additional treatment.

On October 20, 2005, on behalf of the worker, a union representative asked the WCB Review Office to reconsider the decisions of the WCB with respect to ending the worker's wage loss entitlement on June 19, 2005 and denying further responsibility for chiropractic treatment. The union representative advanced the argument that the worker had not sufficiently recovered from her injury by June 20, 2005. He stated that she continued to remain symptomatic and this was evidenced by the fact that since returning to work she has had to utilize extensive vacation time and as well, took a week off as unpaid leave due to her medical condition.

On November 7, 2005, Review Office denied the worker's appeal. Review Office accepted the decision and rationale of the case manager that the worker had not recovered from the effects of her injury by June 20, 2005 but nonetheless was capable of resuming her pre-accident duties. Accordingly, there was no entitlement to further wage loss benefits beyond June 19, 2005. As a loss of earning capacity was no longer shown to exist, Review Office was of the opinion that any impediment to the worker resuming her duties such as the employer's request for documentation was a labour/management issue and not a WCB matter. On the matter relating to the worker's entitlement to further chiropractor care, Review Office expressed the opinion that they saw no evidence that the treatment was contributing to a resolution of the worker's acute back problems in a substantial way. Accordingly, Review Office denied the appeal on this issue.

The union representative filed an application with the Appeal Commission on March 28, 2006 requesting that the worker's entitlement to wage loss benefits and chiropractic treatment be considered by an appeal panel. The Appeal Commission convened a file review on July 13, 2006.

Reasons

Worker's Position

The worker appealed the WCB decisions with the assistance of a union representative. In a letter dated October 20, 2005 the union representative submitted that the worker should be provided with wage loss benefits from June 20, 2005 until August 8, 2005 as the worker was required to provide the employer with a note from her physician confirming that she was fit to resume her duties. The union representative also requested that a graduated return to work be considered. The union representative also asked that the worker's chiropractic coverage be re-instated to assist the worker's recovery.

With regards to video surveillance evidence the union representative advised that the worker does not deny any of the evidence , "…however scattered and subjectively short those incidents might be…" The representative states that the worker's level of activity as portrayed in the video "…was not extensive activity and was in keeping with the limitation she had discussed with her case worker…"

The worker's physician also provided a letter dated November 25, 2005 in support of the worker's appeal.

Employer's Position

The employer was represented by an advocate who provided a written submission dated June 30, 2006. The advocate submitted that the worker has been adequately compensated for her work-related injury and is not entitled to any further benefits or medical services. The advocate wrote that "The videotape surveillance clearly shows no signs of any disability, not surprising given the minor mechanism of injury; the sedentary nature of her regular duties; and the diagnostic testing unquestionably showing recovery and a lack of any findings."

Applicable Legislation

In this case the worker is seeking wage loss and medical aid benefits. Under The Workers Compensation Act (the Act) the worker is entitled to wage loss benefits if she has a loss of earning capacity caused by the workplace injury. In general terms, if the worker is unable to work or suffers a partial loss of income as a result of the workplace injury, wage loss benefits are payable. Applicable provisions include subsections 4(2), 39(1) and 39(2).

Medical aid payments, such as chiropractic treatments, are payable in accordance with subsection 27(1). These payments are made where it is determined that the treatment is necessary to cure and provide relief from the workplace injury. Maintenance or preventive chiropractic treatments are not considered necessary and therefore are not covered.

Analysis

There were two issues before the panel. The first issue was whether the worker is entitled to wage loss benefits beyond June 19, 2005. For the worker's appeal to succeed, the panel must find that the worker sustained a loss of earning capacity after this date as a result of the compensable injury. In other words, the panel must find that the worker could not work because of the injury. The panel was not able to make this determination.

The panel finds, on a balance of probabilities, that the worker is not entitled to wage loss benefits beyond June 19, 2005 as the worker's loss of earning capacity after this date is not caused by the compensable injury. The panel finds that the worker is capable of performing her regular duties as of June 19, 2005.

The panel notes that the worker's activities were the subject of video surveillance. The surveillance video was viewed by a WCB medical advisor who provided her comments to file in a memo dated June 14, 2005. The panel has viewed the surveillance video and the considered the WCB medical advisor's comments. The panel attaches significant weight to the video and the opinion of the WCB medical advisor. The medical advisor concludes "…based on the functional capabilities demonstrated on the video and witnessed by the employee who performed the video surveillance it is felt that [the worker] would be capable of returning to work at her sedentary workplace activities at her full hours."

In arriving at this determination, the panel also notes that the worker's job duties are sedentary and that an MRI report dated May 16, 2005 noted improvement in the worker's back. The MRI report concluded:

"Degenerative changes at L4-5 and L5-S1. The left posterolateral disc protrusion seen at L5-S1 has improved since the previous examination."

The second issue before the panel was whether responsibility should be accepted for chiropractic treatment after July 28, 2005. The panel notes that the treating chiropractor sought an extension of treatment in his report of July 14, 2005. A WCB chiropractic consultant reviewed the request and declined to authorize the treatment.

The panel has reviewed the file and considered the nature of the injury, the treatment provided and the worker's response to treatment. The panel finds, on a balance of probabilities, that the treatments were not necessary for the resolution on the worker's back problems and appeared to be preventive or maintenance care. Therefore responsibility is not accepted for the chiropractic care.

The worker's appeal on both issues is declined.

Panel Members

A. Scramstad, Presiding Officer
J. MacKay, Commissioner
M. Day, Commissioner

Recording Secretary, B. Kosc

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

Signed at Winnipeg this 8th day of September, 2006