The Appeal CommissionThe Workers Compensation Act of Manitoba

Introduction

This appeal deals with the relationship between the worker’s ongoing symptomatology beyond January 7, 2004 and his October 22, 2002 workplace accident. The medical evidence and self-reported symptomatology are relevant to the determination of this relationship.

Background

On October 22, 2002, the worker fell four to five feet off a scaffold, struck a metal crate on the way down and hit the ground, injuring his back and neck. Post-concussive syndrome and a closed head injury have been questioned by numerous medical practioners but never investigated.

Since the date of his accident, the worker has complained of non-remitting neck pain and improved back pain that is aggravated with certain activities. He says that he has lost a great deal of range of motion in his neck and also suffers from headaches and vertigo since the accident. While he has tried to remain active, he is still greatly limited in his activities, including employment. In this regard, he has attempted to find alternate employment that would accommodate his neck symptoms, with limited success.

The Medical Evidence

The worker suffers from pre-existing degenerative changes in his cervical spine at the C4-5, C5-6 and C6-7 levels as well as from lower facet arthropathy and calcific density anterior to L2 that was confirmed by x-ray and CT scan in 2002 and 2003. A June 28, 2003 MRI did reveal a very small left posterolateral disc herniation at the C6-7, which, combined with some shallow posterior end plate degenerative spurring produced a mild central spinal stenosis. It also revealed some flattening of the cervical spinal cord and some very slight spinal cord compression.

Though the worker was initially diagnosed with a back contusion after his October 22, 2002 accident, a WCB medical advisor later thought that the worker had aggravated his pre-existing degenerative disc disease, whereas a physiatrist and an acupuncturist thought it was possible that the worker’s symptoms were due to his cervical disc herniation. Interestingly, a WCB physiatry consultant could not find any patho-anatomical explanation for the worker’s neck complaints.

The worker’s symptoms are recorded in the medical reports. They record the worker’s subjective complaints of neck pain, decreased range of motion, dizziness, nausea and sometimes vomiting, headaches and decreased physical capabilities. They also record signs of muscle spasm and trigger points.

In particular, a May 12, 2003 report by a WCB medical advisor noted marked spasm and pain complaints. These were also the findings of an acupuncturist in July 2003 who also found several taut bands and trigger points and decreased ranges of motion. A physiatrist echoed the decreased range of motion in the cervical spine and the worker’s treating neurologist continued to note marked spasm in his neck as late as May 2004. At the hearing, the worker testified that he has recently been referred to a physiatrist for trigger point injections for his cervical musculature. Medical reports provided to the Appeal Commission confirm the presence of tender taut bands in the cervical musculature as late as February 2007.

All doctors concurred that the worker required medication to assist with relaxing the muscles to provide pain relief. A psychiatrist commented in fact in November 2003 that the worker was suffering from chronic pain secondary to his cervical injury. The WCB’s pain management unit (“PMU”) disagreed with this diagnosis as it felt that the worker’s disability was not proportional in all levels of functioning.

The worker’s ability to work has also been commented on in the medical reports. In May 2003 the WCB medical advisor who saw the worker thought that he would be incapable of work at that time given his degree of symptomatology. This was also the opinion of the worker’s treating neurologist in December 2003, which he later adjusted on May 26, 2004 to an ability to work very light sedentary work with brief productive activity.

The Worker’s Reported Level of Functioning

There are several medical reports and memoranda to file that document the worker’s level of functioning:

• A November 27, 2002 memorandum to file by a first WCB case manager notes that the worker was unable at that time to look up or down but that he could look side to side and that he was able to drive from his house to his medical appointments as it was “basically straight highway”;

• A May 3, 2003 doctor’s report noted that the worker was able to do some yard work for 15 to 20 minutes but then had to rest for 1-2 hours;

• A May 28, 2003 memorandum to file by a second WCB case manager recorded a phone conversation wherein the worker wanted to know if he could try to do some yard work. It was recorded that the worker was “having a hard time just sitting around. He was just asking because he heard stories about people being cut off of WCB benefits because they were doing lawn work and the neighbors called to report this. He said that he has tried raking, but can only manage for about 5 minutes before needing to take a break”.

• A June 12, 2003 memorandum to file by a third WCB case manager records a home visit. It notes that the worker reported a 15-30 minute walking tolerance and a 30-45 minute standing tolerance. It also notes that the worker did drive but had a limited driving tolerance and was very cautious. Finally it notes that the worker was in the midst of finishing the building of his home which he had been doing for the last year, and had found it necessary to hire people to finish some jobs.

• An October 21, 2003 report from the treating physician reported that the worker had raked some leaves over the week-end during twenty minute intervals for a total of one and one-half hours with resulting increased soreness and stiffness in his neck.

• A November 25, 2003 report by the PMU records the worker’s stated level of activity as minimal – he likes to be active with the children, he may rake for about 15 minutes, he does not shovel, he may go grocery shopping but he can’t lift the groceries, he can drive but he can’t shoulder check, he does help out with some household duties but gets dizzy if he stands for too long. He stated he would likely pass out if he tried to turn his neck.

Video surveillance was taken of the worker between June 13, 2003 and November 13, 2003 over 10 days. The worker is only seen active 4 of those days for a very short period of time:

• From June 13, 14 and 16, 2003: no video surveillance was obtained of the worker on June 13 or 14, 2006. On June 16, 2003, the worker is recorded grocery shopping for about 15 minutes. He loads some bags of groceries into the trunk of his car without bending; his spouse and children load the remaining bags while he waits in the car. He then drives home and unloads several bags of groceries and remains in the house while his wife unloads the remainder of the bags;

• From July 15 and 16, 2003: the worker was seen attending a medical appointment and pick up a prescription on July 15. No activity was recorded on July 16;

• From October 8, 11, 12, and 13, 2003: no activity is recorded for October 8, 12 or 13, 2003. On October 11, 2003 the worker is seen to move some lumber and a ladder from the yard into the garage and remain in the garage for about 15 minutes;

• On November 13, 2006 the worker is seen driving and at one point, shoulder checking at an approximate 15-20˚ angle.

This video surveillance was provided to a WCB medical advisor and the PMU for comment.

The WCB medical advisor thought that the surveillance showed the worker engaged in activities which were not consistent with his self-reported limitations and pain behaviours. He therefore thought that there was no objective evidence scientifically or otherwise to explain any ongoing difficulty. This was also the opinion of the PMU. It found in particular that the surveillance showing the worker shoulder checking and lifting and carrying grocery bags were inconsistent with his report to the PMU. It also thought that the worker’s movements on video were fluid with no apparent pain or discomfort.