The Appeal CommissionThe Workers Compensation Act of Manitoba

Issue 1: Entitlement to benefits beyond July 6, 2005

Introduction

The worker’s entitlement to benefits beyond July 6, 2005 is the main issue before this panel. As stated in the preamble, the worker’s benefits were essentially terminated on the basis of video surveillance. To our mind, the video surveillance is not overly persuasive. It is only one piece of evidence in the worker’s file that must be considered in conjunction with the evidence as a whole. In weighing the evidence as a whole, we find on a balance of probabilities, that as at July 6, 2005 the worker continued to be functionally impaired and is therefore entitled to benefits beyond that date.

The worker’s injuries from her workplace accident are complex because of the potential range of causes of her ongoing symptoms which could have pre-existed the workplace accident, occurred at the time of the accident or arisen subsequently (either related or not related). As an example, the worker’s headaches could potentially be pre-existing, caused by neck strain or by her post-concussive syndrome. This panel does not need to find the exact cause of every symptom. It only needs to be satisfied on a balance of probabilities that her ongoing symptoms at the time she was terminated are causally related to her workplace injury and are sufficient to cause an ongoing loss of earning capacity.

The adjudication of the worker’s claim is also complex given that most of her symptoms are not objectively verifiable given that they deal with a head injury. To a large degree, this means that we have to rely on the worker’s subjective reporting and the medical opinions to explain whether the worker’s subjective reports are plausible. In the case before us, we find that the worker’s subjective reports of symptomotology are credible; she has consistently reported her symptoms, the medical doctors have consistently attributed her symptoms to a post-concussive syndrome, and the diagnostic testing performed by a neuro-psychologist and psychologist reveal verifiable sequelae from her post-concussive syndrome, with restrictions still in effect at the time of her termination of benefits.

The reasons that led us to our decision follow.

The Compensable Injury

As stated in the preamble, the worker was hit in the head by a 2 to 4 pound chandelier globe that had fallen 15 to 20 feet. The worker fell to her knees. To this day, she cannot recall whether she briefly lost consciousness or not. The medical reports are not consistent. The report from the emergency unit that saw the worker immediately after her accident indicates that she did, whereas the neuro-psychologist who saw her in late 2003 and early 2004 says that given her recollection of the accident she most likely did not.

The worker was initially diagnosed with a laceration to her head requiring sutures. To this day she still has an indentation in her scalp where she was struck. However, it immediately became apparent that this was not the only injury the worker had suffered. The next day she began to suffer the effects of a neck and thoracic back strain. This injury has been treated with some physiotherapy but has not completely resolved and has become chronic in nature. The worker also began to suffer a range of other symptoms – dizziness, headaches that developed into migraines, fainting spells, tinnitus, sleep disturbance, mood changes and eventually depression. By August 2003 she was suspected by a WCB medical advisor of having post-concussive syndrome. This diagnosis was accepted by several specialists (an otolaryngologist, a neuro-ophthalmologist and neuro-otologist, a neurologist and a neuro-psychologist) to the exclusion of a more sinister diagnosis.

The specialists also suggested however that some of the worker’s symptoms might be accounted for by medication overuse, sleep deprivation, pain, or pre-existing migraines. The pre-existing migraine history was explored and discounted given the insignificant prior history. There is also no evidence that the worker had any pre-existing history of sleep deprivation, pain or medication overuse.

Some of the specialists suggested that the worker’s symptoms might also be due to some functional overlay (though this was not evident during a functional capacity evaluation (“FCE”)) or to depression. Interestingly, a test administered by the psychologist who performed an IME ruled out any evidence of malingering.

Evidence of decreased mood appears as early as June 2003. The label of depression is put to her decreased mood in mid-2004. It is first referenced as mild. By January 2005 the worker is reporting moderate depressive symptoms with bouts of crying. When seen by a pain & injury specialist in March 2005 she is diagnosed as severely depressed. WCB’s pain management unit (“PMU”) dismissed a diagnosis of depression on the basis of the worker’s presentation to them and on video surveillance (which is dealt with further below). The psychologist who performed the IME accepted that the worker was experiencing mood instability at that time. He also accepted that this mood instability is causally related to her workplace accident.

Last but not least, there is evidence that the worker suffered cognitive impairment as a result of her head injury. The cognitive impairment was first noted by the neuro-psychologist who saw the worker in late 2003 and early 2004. While he does not specifically relate the cognitive impairment to the post-concussive syndrome, he does say that it might be due to sleep deprivation and pain which are sequelae of the workplace accident. This cognitive impairment which translates into deficiencies in the worker’s visual concentration and memory, were also found by the psychologist who performed the IME. There is therefore evidence of continuing symptomotology. He was not as categorical as the neuro-psychologist as to the cause of this impairment. He thought that the impairment could be due to one of several causes - headaches, sleep disturbance and/or her post-concussive syndrome. The panel notes, however, that all of these causes are sequelae of her workplace accident.

We accept that the worker’s neck and thoracic back sprain symptoms, depression and array of post-concussive symptoms are all sequelae of her compensable injury. We come to this conclusion based on the continuity of reported symptoms as well as the psychologist’s explanation of the normal course of a post-concussive syndrome:

“Hence, there is biological plausibility for her having a concussive injury that can lead to early and sometimes longer term effects even in the absence of positive imaging findings. Concussive effects were not noted initially by her physician in the WCB documentation, although there is probability that they were present, given the fact that later on the physician states that the symptoms continued in relationship to dizziness, and memory, with the headaches continuing with these reported with very early post accident onset.

“…The medical documentation indicates that any concussive injury was mild. Typically people recover over weeks to a number of months from concussive injuries, although there is a meaningful group of people who have longer-term symptoms, particularly in regards to headache, stress intolerance, and high level processing issues. As these symptoms extend over the course of time, there can be mood-related changes and patients can become somatically focussed.”

Impairment as at July 6, 2005

A review of the medical evidence overwhelmingly indicates that as of July 6, 2005 the worker’s compensable injuries had still not resolved.

With respect to her neck and thoracic back strain, the pain & injury specialist’s medical reports of March and May 2005, just before the worker was cut off, both suggest that the worker continued to experience trigger points at her sub-occipitals which reproduced the headaches she complained of, as well as trigger points bilaterally at the upper trapezius, rhomboids, infraspinatus and at the right levator scapulae and left pectoralis major. She also had a decreased range of motion and strength of the neck and shoulder and soft tissue pain at the neck. These reports also indicate severe sleep disturbance and severe depression.

Though the neuro-psychologist suggested in early 2004 that the worker’s cognitive impairment had resolved, this is not the opinion of the psychologist who performed the IME in 2006. Given the exhaustive testing that was done in 2006 and the recorded impairment, we find that the worker continues to this day to suffer a cognitive impairment.

The psychologist candidly stated that after reviewing the worker’s WCB file, testing and examining her and conversing with other medical practioners that had previously provided care to the worker, he could not find any evidence that the worker had recovered from her workplace accident. This statement was made after having reviewed the surveillance evidence that was the precursor to the termination of the worker’s benefits.

As stated above, the psychologist could not categorically pinpoint the exact cause of the worker’s impairment. An exact cause is not however required for this panel to find that the worker continued to suffer from the effects of her compensable injury; we simply need to find on a balance of probabilities that her symptomatology is causally related to the compensable injury. As stated a number of times previously in this decision, we are able to make that determination.

The psychologist also found that the worker’s condition has worsened considerably since her benefits were terminated. This aftermath was due in large part to the financial predicament the worker found herself in when her benefits were terminated; she had no resources to pay for the medical aid she required or her daily living expenses. Though the Act is clear that the WCB is not responsible for injury caused by a termination of benefits, the evidence before us is that the worker was suffering from a mood disturbance/depression before she was cut off. Technically then the WCB is not responsible for the worsened condition. Practically however, it will be difficult to differentiate between the worsened condition and the condition that existed at the time the worker’s benefits were terminated given that it is the same condition that needs to be treated.

Surveillance and credibility

As stated previously, the WCB terminated the worker’s benefits based on what it considered to be a discrepancy in the worker’s reported symptomotology and her presentation on video surveillance. We disagree with this finding for several reasons.

Surveillance of the worker was undertaken in January, March, April and May 2005. The January 2005 surveillance was done in person on a “pretense” basis. In this particular case, the written report of the in-person surveillance is quite disturbing by its probing and overly personal nature. The information gained however is consistent with the worker’s reported level of functioning to the WCB.

Video surveillance taken on March 21, 2005 and April 22, 2005 shows little to no activity. The activity recorded is also consistent with the worker’s reported level of activity to the WCB.

The May 15, 2005 video surveillance is admittedly different. This is a day where the worker participated in a full day event to promote animal protection. She is seen smiling, talking with people who came to her booth, walking and doing a slow-paced jog for a couple of feet.

The WCB’s pain management unit (“PMU”) thought that this video surveillance was significant in that it differed greatly from the worker’s self-report of limited functional activity and depressed mood. In a June 7, 2005 memorandum the PMU commented:

• the worker was currently not experiencing a major depression. She was active from early morning until later in the afternoon on May 15, 2005. She was smiling, laughing and conversing in a lively manner. She was actively walking, running, standing and sitting and did not appear to be withdrawn. The worker attended the outdoor event for the whole day when the weather was less than desirable which would require good motivation in order to be present;

• the worker did not display any obvious pain behaviour or self-limitation and did not have a chronic pain syndrome. There was a discrepancy between the level of activity reported by the worker in the PMU interview on January 25, 2005 wherein a low level of activity was reported as compared to the level of activity observed on the video surveillance.

• the worker’s claim of vertigo was not supported. The worker was able to turn her head from side to side freely without limitation or restriction. The worker ran for a short distance and her head was moving up and down with no observed detrimental effects from this activity. If vertigo was present, one would expect the worker would ambulate with a stumbling and uncertain gait, and possibly need to grab on to something sturdy for support and even have to sit down quickly in order to recover from the exacerbation of the vertigo. This was not observed during the video.

While we acknowledge that the worker demonstrated a high level of functioning on that one day in May 2005, this does not negate the fact that the worker suffered compensable injuries and ongoing symptomotology. It is therefore necessary to review all of the evidence on file to determine what weight if any should be given to this video surveillance.

The medical reports clearly diagnose the worker with post-concussive syndrome and chronic neck and thoracic back strain which had, to some degree been verified through cognitive testing and trigger points, respectively. The worker’s reported symptomotology is consistent not only with her diagnoses but also in its reporting. It is therefore, as stated by the psychologist, biologically plausible that the worker did suffer the symptomotology reported by her. He also notes that it is also possible that there was some functional overlay or somatoform component to her symptoms which is once again a known consequence of her post-concussive syndrome.

The one day of video surveillance is however at odds with her reporting, and therefore needs to be explored carefully. We note that in the management of this case, the worker was not personally questioned about her activities this one day. She was therefore not provided an opportunity to explain. An explanation was eventually provided through her solicitor as well as at the hearing. In our opinion, this explanation deals credibly with the variances between what was on file to that point and what was seen on the video.

The one day in question was a day devoted to animal protection – something the worker has been engaged in for many years and held dearly to her heart. This information had been provided to the WCB before. In fact the WCB file documentation indicates that the worker also went on extended drives to retrieve animals in need of protection. The fact that she drove to the place the event was held on May 15, 2005 is not contrary to her previous reports. The worker’s ability to walk, turn her head or run a couple of feet at a slow jog is also not inconsistent with her report to the WCB. She had earlier reported that she experiences some vertigo and that it is mainly confined to the stairs which she had fallen down on several occasions. She was however careful to not ride horses, which is not disputed by the WCB, or walk her dogs over her terrain because of its unevenness. Her vertigo was also not a daily occurrence and had improved.

The worker’s ability to smile and engage in conversation with people interested in animal protection is also not contradicted on the file. She had advised the WCB that she had people visit her house to this end. She had however changed her practice to having all people attend at the same time because she no longer had the stamina to see people all the time.

The worker’s displayed demeanour on video must also, in our opinion, be considered in conjunction with her personality. The WCB file documentation indicates that the worker was known to be a highly functioning individual before her workplace accident. This is an individual who has emigrated to several different countries and has obtained degrees and employment in English which is not her mother tongue. The face she puts on for the world and the degree to which she can push herself on one instance must therefore be considered in conjunction with this individual’s make-up.

Finally, the worker’s usual level of activity was confirmed to be diminished by the in-person investigator as well as the worker’s neighbour that had been interviewed by the psychologist. The psychologist placed significant weight in these two interviews, as does the panel, given that these reports were spontaneous and unguarded.

The psychologist who performed the IME commented that the worker was well on her way to recovery at the time the video surveillance was taken. To our mind, the surveillance does not reveal that. The worker’s main complaints have been sleep disturbance (2 to 3 hours per night of sleep since the workplace accident), headaches, tinnitus, a lack of concentration and depression. There is no evidence on file that these symptoms had abated at the time the video surveillance was taken.

Conclusion

In conclusion, we find that the worker continued to be functionally impaired as a result of her compensable injury as at July 6, 2005 and that as a result is entitled to wage loss and medical benefits beyond that date. We also note that several medical practitioners have commented on the medical assistance the worker requires to improve her functional capability and allow for consideration of re-employment. We strongly suggest that these recommendations be put into place.

Accordingly, the worker’s appeal is accepted on this issue.

Issue 2: Snow Removal

The worker was granted 6 months of an ILA to assist with snow removal. The ILA was limited to 6 months as the worker was considered to be an ‘injured’ worker, and not a ‘severely’ injured worker under WCB Policy 44.120.30. The worker’s need and entitlement to an ILA was investigated and confirmed by a rehabilitation specialist who visited the worker at her home on January 16, 2004.

The worker says that she is entitled to further payment of an ILA as either she is a ‘severely injured worker’ under the Policy or she is generally entitled to it under subsection 27(20) of the Act which does not differentiate between injured and severely injured workers. She says that her need for an ILA arises out of the migraines and neck and shoulder tension she gets with snow blowing.