Decision #105/00 - Type: Workers Compensation
An Appeal Panel hearing was held on June 7, 2000, at the request of legal counsel, acting on behalf of the claimant. The hearing reconvened on September 20, 2000. The Panel discussed this appeal on June 7, 2000, and on September 20, 2000.
Whether or not the claimant is entitled to further benefits subsequent to December 1, 1994 in relation to the compensable accident of February 18, 1988.
That the claimant is not entitled to further benefits subsequent to December 1, 1994 in relation to the compensable accident of February 18, 1988.
A complete background of this case can be found in Appeal Panel Decision Nos. 344/92 dated October 30, 1992 and Decision No. 37/94 dated March 4, 1994 and will not be repeated in its entirety at this time.
Briefly, the claimant sustained a compensable lower back injury on February 18, 1988 during the course of his occupation as a labourer. At the time of accident, the claimant slipped while standing on a small portable stand while lifting a 40 kg. bag of salt into a stainless steel vat.
In August 1993, a Medical Review Panel (MRP) took place at the request of Review Office. In response to the questions posed by Review Office, the MRP responded as follows:
- that the original diagnosis of the worker’s injuries following the February 18, 1988 accident was a musculotendonous sprain of the lumbosacral spine;
- the medical complaints by the claimant beyond July 29, 1991 may well be work related. “Chronic Pain Behavior Syndrome” was the MRP’s diagnosis of the claimant’s complaints;
- the MRP was unable to diagnose the claimant with any clear objective findings;
- the claimant did have an impairment which appeared to be related to the accident on a temporal basis. The MRP considered the claimant to be completely disabled insofar as he was unemployable due to his chronic pain behavior syndrome or until such time as he received effective treatment for his chronic pain behavior syndrome.
- with respect to restrictions, the MRP indicated that the claimant claimed that he was not able to walk more than a very short distance without sitting down. He claimed not to be able to sit for more than 20 minutes without getting up and moving around. The MRP stated that it appeared that the claimant could lift no more than two pounds. The restrictions were on a preventative basis or until the claimant received effective treatment for his chronic pain behavior syndrome.
- the claimant did not have a relevant pre-existing condition.
On March 7, 1994, an Appeal Panel arrived at the unanimous conclusion that “on a balance of probabilities, the claimant was disabled from work and entitled to benefits beyond July 29, 1991 as a result of an accident at work which left him with chronic pain behavior syndrome.”
Subsequent to the Panel’s decision, a medical advisor at the WCB’s Pain Unit assessed the claimant on August 22, 1994. The assessment indicated that the claimant was willing to participate in a residential multidisciplinary chronic pain management program and that retraining was not a reasonable option due to his education and skills level.
On September 23, 1994, a clinical psychologist reported that it was doubtful that the claimant would ever be able to return to work given his history and current status.
Between December 2, 1994 and January 6, 1995, the WCB conducted surveillance on the claimant’s activities. After reviewing the videotape evidence on January 12, 1995, the WCB’s pain unit medical consultant indicated that it was clear that the claimant did not have chronic pain behavior syndrome interfering with his ability to work based on his activities. The file was considered closed to the chronic pain unit.
On March 7, 1995, the claimant provided a statement to the WCB’s special investigation’s advisor. Briefly, the claimant indicated that he had been working 20 hrs. a week at $6.00 an hour since October of 1994 and that he had engaged in recreational skating and refereeing for a few years.
On March 13, 1995, a WCB claims adjudicator advised the claimant that the weighted medical evidence no longer supported that he was continuing to suffer from the effects of his compensable injury in light of the videotape evidence and the statement he provided. It was therefore determined that the claimant was not entitled to further benefits effective December 2, 1994 and that he would be entitled to partial wage loss benefits between the beginning of October 1994 to December 1, 1994 inclusive.
Subsequent to the above decision, a number of medical reports were received and reviewed by a WCB medical advisor on June 2, 1998. The medical advisor concluded that based on all the evidence, he could find no supporting evidence to refute the medical advisor’s recommendation of August 1988, indicating that the claimant was fit to return to work.
On May 25, 1998, a meeting took place between the claimant, his solicitor and a WCB adjudicator and special investigations officer. In a memo dated July 31, 1998, the special investigations officer stated that the claimant was contending that the information and statutory declaration that he provided on March 7, 1995 was incorrect and that he was not in a proper frame of mind when he was earlier interviewed. At the conclusion of the May 1998, meeting, the special investigations officer stated that he had no reason to doubt the veracity of the claimant’s 1995 statement.
In a letter dated November 30, 1998, primary adjudication wrote to the claimant’s solicitor indicating that the WCB’s position remained unchanged. It was confirmed that the weight of medical evidence did not support a causal relationship between the information provided by the physical medicine specialist and the compensable injury on a balance of probabilities. As well, the medical information did not support the claimant’s inability to secure employment if he so wished to do.
On December 3, 1998, the solicitor provided a further medical opinion for the WCB’s consideration. In a letter dated January 18, 1999, the solicitor was advised that the WCB medical consultant was unable to identify either clinical or electrophysiological evidence of the nerve system or imaging studies which could relate the claimant’s symptoms to a disc lesion compressing a nerve root. There was no basis to alter the previous opinion dated November 30, 1998.
In April 1999, the solicitor wrote to Review Office requesting that the claimant’s benefits be reinstated and made retroactive to December 2, 1994. In a June 25, 1999, decision, Review Office determined that the claimant did not have entitlement to the payment of further benefits after December 1, 1994 as it had not been shown that his ongoing complaints and/or his loss of earning capacity continued to be a reasonable or probable result of the work related accident he suffered in February 1988. This decision was appealed by the solicitor and an oral hearing was arranged.
The issue in this appeal is whether or not the claimant is entitled to further benefits beyond December 1, 1994 in relation to his compensable accident of February 11, 1988.
The subsection of the relevant Workers Compensation Act (the Act) in this appeal is subsection 43(1). The subsection states:
Temporary total disability compensation
43(1) Where a temporary total disability results from the injury, the compensation shall be a periodic payment during the continuance of the temporary total disability equal to 75% of the worker’s average earnings; but the compensation shall not be less than $816. per month, except where the average earnings of the worker are less than $816. per month, in which case he shall receive, as monthly compensation, the total amount of his average monthly earnings.
In this appeal we reviewed all the evidence on file, as well as that given and received during the hearing process and we find that the weight of the evidence, on a balance of probabilities, supports a finding that the claimant is not entitled to further benefits beyond December 1, 1994 in relation to his compensable accident of February 11, 1988.
The issue in this case of ongoing entitlement to benefits has been considered on two prior occasions by Appeal Panels in 1992 and 1994.
In October 1992 an Appeal Panel determined, on a balance of probabilities, that benefits were not payable after July 29, 1991 as, in their view, the medical evidence revealed only subjective complaints of pain with minimal objective findings to establish disability due to the accident at work.
In March 1994 the issue was reconsidered by a second Appeal Panel, after a Medical Review Panel (MRP) was held in August 1993. The Appeal Panel found that the claimant was entitled to further benefits after July 1991 based on the results of the MRP. In their decision the panel noted that:
The Medical Review Panel found the claimant’s original diagnosis to be a “ musculotendonous sprain of the lumbosacral spine.” They determined that the medical complaints of the claimant beyond July 29, 1991 “may well be work related” and further diagnosed him with “Chronic Pain Syndrome.”
The panel further indicated in the decision that:
“Although the Medical Review Panel was unable to diagnose any “clearly objective findings”, they indicated the following which is sufficient for this Appeal Panel to deem the claimant eligible for benefits beyond July 29, 1991:
This man does have impairment which appears to relate to his accident on a temporal basis. The panel considered him to be completely disabled insofar as he is unemployable due to his Chronic Pain Behaviour Syndrome.
This Appeal Panel has, therefore arrived at the unanimous conclusion that, on a balance of probabilities, the claimant was disabled from work and entitled to benefits beyond July 29, 1991 as a result of an accident at work which left him with Chronic Pain Behaviour Syndrome."
The Panel went on to recommend that the claimant “be given treatment for this syndrome as soon as possible and that he should be enrolled in some sort of counseling that will help him to cope with his pain on a daily basis.”
Following the above decision benefits were reinstated retroactively to July 29, 1991. Benefits were subsequently discontinued December 1, 1994 following an anonymous telephone call in October 1993 to the WCB regarding the claimant’s hockey activities; videotape surveillance of the claimant’s activities during the period December 2, 1994 to January 6, 1995; and a subsequent WCB investigation.
We note the surveillance consisted primarily of the claimant’s activities at a local distribution business owned/operated by a longstanding friend of the claimant. We also note that the claimant had been involved with this business in 1991 when the claimant informed WCB of his friend’s business and a work assessment was arranged for the claimant through WCB Employment Services.
We further note that following the WCB investigation the claimant’s benefits were discontinued. As the WCB took the position that the claimant had returned to work in October 1994, an overpayment of benefits was calculated for the period October 1994 to February 22, 1995, which the claimant repaid.
We note the following from the MRP report dated August 19, 1993 with respect to the claimant’s contentions regarding his disability and the examination findings of the MRP specialists:
He [the claimant] told the panel that he was unable to drive or ride in a light truck because of the back pain, he was unable to do sweeping and vacuuming in another situation. While working at these jobs the employer became sympathetic to his demonstrated pain and suggested he discontinue work.
The worker claims not to be able to walk more than a very short distance without sitting down. He claims not to be able to sit for more than twenty minutes without getting up and moving around. It appears that he could lift no more than two pounds. These restrictions would appear to be on a permanent basis or until such time as he receives effective treatment for his chronic pain behaviour syndrome.
He spends his day doing very little, the high point of which is a visit to McDonald’s for coffee and meeting with friends.
When asked what he thought could be done for him he suggested that he would be willing to try anything.
We also note from the orthopaedic examination of the MRP:
The neurologic status of the cranial nerves, the upper and lower limbs was grossly normal. In particular, the right knee reflex was well elicitable and equal to the other side. There was no wasting of the muscles by measurements in either lower limbs, either in the thigh or in the calf.
With respect to the X-ray and CT scans we note the following recorded impression in the MRP report:
Minor degenerative changes have been visualized since 1986, consisting of minimal disc space narrowing at L2-3 and small marginal osteophytes antero-laterally. However, there is no evidence of nerve root impingement or spinal stenosis. (emphasis added)
When asked what objective findings were present to support the present diagnosis and relationship to the accident, the MRP specialists found limitation of all spinal movements, tenderness on deep pressure over the lumbosacral spinous processes and complaints of pain on movements of the lumbosacral spine. The panel noted at the time that “ none of the above findings are clearly objective.”
Also, when asked about residual impairment/any restrictions as a result of the accident and of their nature and duration, the MRP panelists indicated:
This man does have impairment which appears to relate to his accident on a temporal basis. The panel consider him unemployable due to his Chronic Pain Behaviour Syndrome.
The worker claims not to be able to walk more than a very short distance without sitting down. He claims not to be able to sit for more than 20 minutes without getting up and moving around. It appears that he could lift no more than two pounds. These restrictions would be on a permanent basis or until such time as he receives effective treatment for his Chronic Pain Behaviour Syndrome.
Notwithstanding the 1994 Appeal Panel’s recommendation that the claimant receive treatment for his Chronic Pain Syndrome as soon as possible and that he be enrolled in appropriate counseling, we note from the file the following in a memorandum dated August 24, 1994 recorded by a WCB vocational rehabilitation:
Subsequent to my May 4, 1994 memorandum I have spoken with P. [the claimant] and he has informed me that according to the Appeal Panel’s decision (#37/94) he is considered, “to be completely disabled in so far as he is unemployable due to his chronic pain behaviour syndrome”.
P. [the claimant] considered it quite humorous that Vocational Rehabilitation Services was involved and flatly informed me that he was unable to work. On May 6, 1994 I referred him to Rehabilitation Psychology for counseling related to pain management issues. P. [the claimant] informed me that he had been seen by the psychologist on August 23, 1994. It has become apparent that rehabilitation is no longer warranted as P. has no interest in vocational rehabilitation services.
We further note from the file that a medical advisor for the WCB pain management unit in interview notes dated August 22, 1994 recorded:
I presented to Mr. [the claimant] the possibility of management of his pain problems with a multidisciplinary pain management program… .
He does not believe that retraining is reasonable, given his educational level and skills level and given his presentation, as someone with limitations when approaching the work force. He also feels that if that is the approach that the board is intending to take, we should then be looking at a residential multidisciplinary chronic pain management program and he would be willing to consider.
The notes of August 22, 1994 further indicted with respect to the patient’s medication:
Medication at the present time include Tylenol #3, which he uses approximately 30 per year and occasional Tylenol plain. In addition, he very occasionally uses Roaxisal. (emphasis added)
We also note in the same report that the WCB medical advisor indicted “that the claimant does not present signs or symptoms of a Major depression.”
In a report dated September 23, 1994 a clinical psychologist found that … “I also find that he [the claimant] has adapted quite well to the pain secondary to his back injuries and has learned through trial and error to cope with the pain.” The psychologist found no reason for further intervention at that time.
In a further report dated December 19, 1994 the WCB pain management medical advisor indicated with respect to the claimant attending a pain management program:
However, he [the claimant] hasn’t been particularly eager to go and his wife today, as well as himself, introduced the logistics problem that going to such a program would entail as he is presently fairly involved in the care of their 9 1/2-year-old daughter while Mrs. [claimant’s wife] works as a teacher.
On January 12, 1995, the videotapes of the claimant’s activities were reviewed by a WCB case manager, the vocational rehabilitation consultant and the WCB pain management medical advisor. We note they indicated: “It was clear that he [the claimant] did not have chronic pain syndrome interfering with his ability to work, based on his work activities on those days. His file is closed to pain management unit.”
Following the videotaping evidence the claimant gave a statement dated March 7, 1995 indicating that he went to try and work at the local business in October 1994 to see if he could manage. The claimant further indicated that he was paid cash initially at $5.50/hour and then $6.00/hour. The claimant further indicated that he had been skating recreationally for a few years occasionally and that he had refereed 6 to 8 times this year. We note with respect to the claimant’s hockey activities that at the Appeal Panel hearing in 1994 the claimant indicated that he had not played any hockey since 1988.
Following the above statement the claimant gave a further interview on May 5, 1998 to the WCB contending that he was intimidated and not in a proper frame of mind when he gave the initial statement to WCB investigators and evidence to this effect was also offered at the hearing. In the subsequent interview and at the hearing before us the claimant in effect denied the information given in his initial statement to WCB and provided a different version of events, including that he was just there to learn the business, had not been paid for his time and was able to come and go as he pleased.
We have considered this evidence and find, on a balance of probabilities, that the initial statement given by the claimant is more likely to reflect the truth. The evidence was more contemporaneous with the actual events. While we accept that the claimant was anxious, we find that this was more likely a result of being discovered in his activities than of being forced to say what he felt the WCB staff wanted to hear. We also place no weight at all on the evidence of the owner/operator of the business as we find his evidence to be contradictory, inconsistent and self-serving.
The panel also considered the videotaped evidence and in this regard note that the claimant was observed in activities on a regular basis similar to those that would be expected of a person going to work regularly and inconsistent with the information that the claimant gave to the MRP panelists and his healthcare practitioners about his level of activities/disability. The claimant was observed in a work environment for regular periods. He was observed on a regular basis driving a car to the location in winter driving conditions, letting himself in with a key, remaining in the location for the majority of a workday, wearing overalls, loading boxes into trucks and cars, shoveling snow, answering the telephone, operating a forklift, checking paperwork, jumping from the back of a truck and walking around for relatively long periods of time.
We find that the evidence, on a balance of probabilities, reveals that the claimant has misrepresented or exaggerated his level of disability and his ability to work to the WCB, his attending practitioners and specialists and the MRP panelists.
We unanimously concur with the findings of the Review Office that subsequent information has undermined the credibility of the claimant and his primarily subjective complaints. We find the claimant’s different version of events to be contradictory and inconsistent and that the claimant lacks credibility as indicated by his changing version of events as shown by the evidence outlined. We further note that the claimant’s anxiety and depression increased following the first statement given to WCB.
The claimant’s counsel has argued that the claimant is totally disabled based on the reports and evidence of the claimant’s attending physician who has seen the claimant on a regular basis during the course of the claim and based on reports and evidence given by an attending rehabilitation and physical medicine specialist.
In this regard we note that the consultant physical medicine specialist did not examine the claimant until August 9, 1996 some eight years following the compensable event. We note in a report dated May 15, 1997 the specialist indicates that he had not seen the CT scan of the lumbar spine taken in 1990/1991 or the results of a bone scan. In the above report the physical medicine specialist indicated that on August 9, 1996 his impression was “discogenic and right left (sic: leg) radicular pain syndrome most likely resulting from the disc tear/disc herniation.”
The report further recorded that the CT scan of August 12, 1996 ordered by the specialist revealed a small central disc herniation and on November 29, 1996 recorded that Mr. [the claimant] had made some improvement in his radiculopathy but still had residual mechanical back pain with myofascial pain syndrome of the iliocostalis thoracis and lumborum muscles. In a further report dated January 18, 1997 the physical medicine specialist indicated: “Clinically, Mr. [the claimant] has chronic right gluteus medius and piriformis muscle strain with myofascial trigger points.”
On January 24, 1997 the report indicated that the specialist’s impression was: “ Clinically he does not have any significant evidence of radiculopathy or significant myofascial pain syndrome indicated by trigger points or muscle knotting. He has chronic discogenic pain with mechanical back pain syndrome.” We further note with respect to this report that the specialist indicates:
The above report is prepared upon the subjective complaints, the history given by the patient, information provided by Dr. [the attending physician], physical examination and investigations.
We further note that in a report dated January 26, 1997 the specialist indicated:
Clinically he does not have any evidence of radiculopathy or significant myofascial pain syndrome or musculoskeletal pathology. He has developed chronic pain syndrome with reduced functional capabilities. Unfortunately Mr. [the claimant] has not responded well to the appropriate treatments prescribed to him. There are no indications for any further investigations or formal therapy treatments. He was encouraged to continue stretching, strengthening and conditioning exercises on a regular basis and should consider returning to a light to medium degree of work.
In reviewing all the above reports, we concur with the WCB medical advisor who was asked to review these reports and the file information and who indicated on June 2, 1998:
He [the claimant] was subsequently referred to Dr. [physical medicine specialist] in 1996 and despite all of the foregoing information, Dr. [physical medicine specialist] diagnosed discogenic pain and in a report of August 1996 he indicates a radiculopathy from disc herniation. It should be noted that both on CT scanning and myelography of the spine no such disc was identified nor were there any neurological findings on EMG studies. Dr. [physical medicine specialist] also makes mention of myofascial pain and yet in a subsequent report dated January 1997 Dr. [physical medicine specialist] states that the claimant was not improved despite treatment and that he exhibited “no evidence of radiculopathy”. Again “no significant myofascial pain syndrome” Dr’s [physical medicine specialist’s] final diagnosis was chronic pain syndrome.
These comments appear to be somewhat contradictory but if one takes the January 1997 comments from this consultant in which he states that there is no residual evidence of radiculopathy and no significant myofascial pain, this would indicate that the claimant’s current status has returned to that described by the WCB medical advisor in his examination at the board in August 1988, i.e. the claimant should return to work.
In light of the evidence, on a balance of probability, we find that the attending physician’s position of total disability related to the compensable event is not, in our view, supported.
We unanimously concur with the findings of the WCB pain management medical advisor, the WCB vocational rehabilitation consultant and the WCB case manager recorded on January 12, 1995 that it was clear that the claimant did not have chronic pain syndrome interfering with his ability to work. We therefore conclude that the weight of the evidence on a balance of probabilities supports a finding that the claimant has recovered from his compensable injury of February 18, 1988 and that any ongoing problems or diagnoses are not related to the compensable event at which time the claimant sustained a musculoligamentous low back strain. In our view, a loss of earning capacity related to the compensable injury is no longer supported based on the evidence on a balance of probability.
We find that the decision of the WCB to discontinue benefits effective December 1, 1994 should be affirmed. Therefore the claimant’s appeal is denied.
D.A. Vivian, Presiding Officer
B. Malazdrewich, Commissioner
Recording Secretary, B. Miller
D.A. Vivian - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 15th day of November, 2000