Decision #58/08 - Type: Workers Compensation
Preamble
This appeal deals with whether or not the worker had recovered from the effects of his compensable injury by June 4, 2006.
The worker sustained a compensable head injury on November 23, 2005. Based on surveillance videotape evidence, it was determined by primary adjudication that the worker had recovered from the effects of his compensable injury by June 4, 2006. The worker disagreed and filed an appeal with Review Office. On October 15, 2007, Review Office reversed the decision made by primary adjudication and the worker’s benefits were reinstated. The employer disagreed with Review Office’s decision and filed an appeal with the Appeal Commission. A hearing was then held on April 17, 2008 to consider the matter.
Issue
Whether or not the worker is entitled to wage loss benefits and services beyond June 4, 2006.Decision
That the worker is entitled to wage loss benefits and services beyond June 4, 2006.Decision: Unanimous
Background
On November 23, 2005, the worker was struck on the right side of his head with a piece of snow/ice during the course of his employment as a truck driver. He later advised the Workers Compensation Board (“WCB”) that when he regained consciousness, he was on the ground laying next to the shovel and chunk of snow/ice. On the same day of accident, he was taken to a hospital emergency facility with entrance complaints of a severe headache, feelings of nausea and his right eye was closed. A concussion was listed as the diagnosis. A CT of the head revealed no intracranial mass lesion, hemorrhage nor subdural hematoma and a skull fracture was not evident.
The worker’s family physician arranged for the worker to see an ophthalmologist for his right eye condition. In a report dated December 19, 2005, the specialist reported that the worker’s right eye was turned “temporarily 45 to 75 degrees”. He noted that the worker had surgery to straighten his eye at an early age and had vertical prism in his glasses for many years. The examination showed loss of peripheral vision. The worker was instructed to wait a month to see if his vision and eye control movement improved. If not, a neurological consult was recommended.
A report dated January 25, 2006 was received from the treating neurologist. He indicated that the worker had been troubled by headache and photosensitivity since the November accident. He indicated that the worker was unable to work because truck driving was associated with increased headache pain. The headaches were constant and they waxed and waned in degree. The headaches were frontal, more on the right side. The neurologist said he was not planning any additional testing for the worker given that he already had an unremarkable CT scan.
A WCB medical advisor reviewed the file on January 26, 2006. She opined that the compensable diagnosis was post-concussion syndrome. She noted that there were no objective medical findings with the condition and that the WCB would have to rely on the worker’s reported symptoms. She noted that the recovery period for this condition can sometimes be approximately six months and that we often just have to “wait and see” as there were no specific treatments. She felt it was not reasonable for the worker to return to truck driving at this time based on his symptoms.
A physiotherapist reported on February 15, 2006 that his diagnosis of the worker’s condition was mechanical neck pain with head injury and post concussion syndrome. A home exercise program was prescribed to the worker. The worker attended physiotherapy at that clinic from February 15 to May 19, 2006.
On March 7, 2006, the worker was examined by a WCB medical advisor to determine his medical status and work capabilities. She noted that the worker continued to suffer from headaches, neck pain and dizziness which were likely related to a cervical strain which occurred at the time of the injury. Some of the symptoms may also be related to a post-concussion syndrome. The medical advisor noted that the worker complained of worsening vision in his right eye but it would be difficult for her to say that it was related to the compensable injury as the worker had problems with his right eye prior to the event. It was indicated that the worker should continue with physiotherapy directed towards his neck pain. She felt that the worker could perform modified duties that did not involve lifting more than 20 lbs., any bending over to do any work and no sustained positions with his neck.
Progress reports submitted by the family physician indicated that the worker was suffering from dizziness and was unable to return to truck driving activities until this symptom resolved. Reports also indicated that in May, 2006, the physician took the worker’s class 1 license away due to his dizziness symptoms.
On May 11, 2006, a WCB adjudicator spoke with the worker by telephone. The worker stated that he gets 1 or 2 headaches per day that can last up to two hours and that he took Tylenol for the pain. He feels dizziness 2 or 3 times a day when he gets up too fast or looking down or bending over. When he feels dizziness he grabs onto something for support. His neck was much better and he did not have any problems with lifting his arm above shoulder height. He can walk and stand for only 20 minutes, any longer and he gets dizzy and a headache. He mentioned that his headaches are brought on by stress as well. He said he drove his ½ ton truck to medical appointments.
A surveillance videotape was taken of the worker’s activities on April 26 and 27, May 5 and June 3 and 4, 2006. The videotape was reviewed by the WCB medical advisor on June 23, 2006. She stated,
“Presentation during call in exam was compared to presentation on video. Inconsistencies were noted. [the worker] said he had constant pain in his neck. During exam he displayed this by closing his eyes and rubbing his forehead or neck. During the 5 days of surveillance, no such pain behaviors were noted. He demonstrated full fluid ROM [range of motion] & was able to move his arms above his head, etc.
During the exam he also complained of dizziness/being off balance when bending forward. This was evidenced during the exam – he would be off balance & have to grab onto something for support. During the multiple days of surveillance this was not observed, despite seeing him bent forward repetitively and for sustained periods of time.
Based on the above inconsistencies, I could see no evidence on the surveillance that he continues to suffer any effects of the CI [compensable injury].”
In a letter dated July 7, 2006, the worker was advised of the WCB decision that he had recovered from his compensable injury and was no longer entitled to receive compensation benefits effective June 5, 2006. The case manager based his decision on the worker’s activities as shown on the videotape, i.e. bending forward repeatedly for sustained periods of time with no adverse affects, as reviewed by himself and the WCB medical advisor.
Following the decision of July 7, 2006, further medical information was received from an otolaryngologist which indicated that the worker was seen for an assessment on July 7, 2006. He stated, in part,
“Clinical examination shows evidence of skew deviation to his right and left eyes, where his left eye does not follow well with extraocular motion. He does have some end post-nystagmus on the right side with extreme gaze. The rest of his peripheral vestibular examination was unremarkable, although he is significantly intolerant to head motion.
In light of the skew deviation, which we do see with significant concussion, this most likely explains his vertigo as ocular vestibular mis-matching can cause dizziness as well as post-concussive type of vestibulopathy….I suspect that he will require extensive vestibular physiotherapy and will not be able to return to work for the next four to six months. I am somewhat optimistic that after physio, he should be able to return at some point.”
The otolaryngologist’s report was reviewed by the WCB medical advisor on August 8, 2006. She indicated that the worker’s left eye difficulties were pre-existing and were not related to the compensable injury and were not a barrier to his returning to driving. She felt the otolaryngologist did not provide any new objective findings that would change the previous opinion set out following her review of the video surveillance.
On September 1, 2006, the case manager notified the worker that the report from the otolaryngologist had been reviewed by the WCB medical advisor and there was no new clinical evidence to warrant a change in the decision of July 7, 2006.
An audiological assessment took place on September 6, 2006 and the test results were reviewed by the WCB medical advisor on October 21, 2006. She indicated that there were no findings on the assessment that were related to the worker’s compensable injury.
On October 23, 2006, on the referral of his otolaryngologist, the worker attended vestibular physiotherapy on an out-patient basis. The vestibular assessment notes indicate that at the time, the worker was still experiencing dizziness, nausea, loss of balance and headaches. The headaches were constant and varied in intensity. As for falling, while initially he would fall two to three times per week, at this time he now fell every seven to ten days.
On November 8, 2006, the WCB received a report from the worker’s physiotherapist. He stated that at the time of the surveillance the worker was instructed to do as much as he could around the home in order to try to retrain his vestibular system. He said he reviewed the video surveillance and observed the worker walking slowly with a decreased stance on the right leg and occasionally struggling to keep his balance. He watched the worker shift positions often when not standing near an object where he could hold on. He observed the worker bending and always holding onto an object when doing so for balance. The worker climbed stairs slowly but always used the hand railing for support. He did not notice any quick body, neck or head movement which would indicate that the worker’s vestibular problems had cleared. The physiotherapist concluded that he could not see any conclusive evidence to show that the worker had recovered from his compensable injury.
The video surveillance was reviewed by the treating otolaryngologist. In his report dated December 19, 2006, the specialist stated,
“I do not find the activity demonstrated on the videotape to be inconsistent with his diagnosis as most of his activity is walking or driving. The videotape does not raise any inconsistencies in his condition. Many patients with forms of cervical vertigo and post-concussive vertigo are not symptomatic all the time nor are they symptomatic with body positions or changes in motion. I believe that [the worker] is still functionally symptomatic related to ongoing issues of vertigo and unsteadiness.”
On January 8, 2007, the worker was discharged from the out-patient vestibular physiotherapy. The discharge summary indicated that the dizziness was gone and balance was improved.
On January 12, 2007, the WCB medical advisor stated that she reviewed the report from the otolaryngologist and the physiotherapist report and that these reports did not change her observations during the call in examination and review of the surveillance from June 23, 2006. Based on this opinion, the worker was advised on January 16, 2007 by his WCB case manager that no change would be made to the decision of July 7, 2006.
ENG test results dated September 6, 2006 were reviewed by the WCB’s ear, nose and throat (“ENT”) consultant on August 16, 2007. He stated the ENG results were normal and there was no evidence to support the worker’s ongoing dizziness.
On September 12, 2007, the WCB case manager advised the worker that his file had been reviewed by the WCB’s ENT consultant and no change would be made to the decisions rendered on July 7, 2006 and January 16, 2007.
On September 21, 2007, a worker advisor appealed the WCB’s decision that the worker had recovered from his compensable injury and was not entitled to benefits after June 5, 2006. He submitted that the video surveillance provided no evidence that the worker had recovered from his compensable injury or that he was physically capable of returning to work. He said the WCB did not address the fact that the worker was legally restricted from returning to work as a truck driver at the time his benefits ended. He felt that the medical opinions detailed by the worker’s practitioners most familiar with the worker’s condition confirm ongoing restrictions and should be accepted in spite of the opinions offered by the WCB’s medical consultants. He stated that these supportive opinions were sufficient evidence, on a balance of probabilities, to warrant a reversal in the WCB’s previous decision.
In a decision dated October 15, 2007, Review Office determined that the worker was entitled to wage loss benefits and services beyond June 4, 2006. Review Office accepted the opinion and views of the videotape surveillance evidence expressed by the worker’s otolaryngologist. Review Office pointed out that when the video surveillance was taken, the worker was only removed from driving his semi and not from driving his pick-up truck. It stated that credibility was not an issue in this situation by means of the worker having told his case manager that he was driving his pick up truck at times and in particular to medical appointments. On November 21, 2007, the accident employer disagreed with Review Office’s decision and requested an oral hearing.
Reasons
Employer’s submission:
The employer was self represented at the hearing by its president and safety program coordinator. The position of the employer was that the opinions of the WCB medical advisors would be more unbiased than those of the worker’s attending physicians and therefore ought to be accepted. The employer argued that the video evidence supports the inconsistencies of the worker’s claim and that at no point during the five day period does the worker display any of the symptoms which he claims prevent him from returning to work. The employer submitted that the worker should not be eligible for any more compensation coverage.
Worker’s submission:
The worker was represented by a worker advisor who argued that the evidence on file supports that, on a balance of probabilities, the worker suffered from symptoms and restrictions after June 4, 2006 which were a direct result of his compensable injury and which prevented him from returning to his pre-accident work. It was submitted that the video surveillance provided no evidence to establish that the worker had recovered from his compensable injury, nor that he was physically capable of resuming his employment.
Applicable Legislation:
Pursuant to subsection 37 of The Workers Compensation Act (the “Act”), where as a result of an accident, a worker sustains a loss of earning capacity or an impairment or requires medical aid, compensation is payable. Subsection 39(2) provides that wage loss benefits are payable until the loss of earning capacity ends, or the worker attains the age of 65 years.
Analysis:
For the employer’s appeal to be successful, we must find on a balance of probabilities that after June 4, 2006, the worker no longer suffered a loss of earning capacity as a result of his compensable injury. We are unable to make that finding. In the panel’s opinion, as of June 4, 2006, the worker continued to suffer from the effects of his compensable injury.
We have considered the worker’s activities recorded on video surveillance. The employer places considerable weight on the surveillance footage and notes that during the five days that the worker was videotaped, he failed to display any of the symptoms which he claims prevent him from returning to work. In the surveillance footage, the worker is seen standing and walking in his yard, driving his truck, walking up steps and at one point, he is seen bending over while he appears to be checking the tire pressure on his truck. When questioned about the videotaped activities at the hearing, the worker indicated that although he was seen bending over, he was also holding on to the side of his pick-up truck at the time. The panel accepts that this could credibly explain why the worker does not appear unbalanced when he is checking the tire pressure.
Generally speaking, symptoms of dizziness are difficult to assess using objective findings and often the patient’s subjective reports must be relied upon. After reviewing the surveillance video, the panel is of the opinion that the worker was not engaged in activities which appear markedly inconsistent with his complaints of dizziness. The fact that he does not appear unbalanced after bending forward to check the tire pressure can be explained by the fact that he was holding onto the truck to steady himself. In the panel’s opinion, the video surveillance is not so compelling that we would be prepared to find that the worker has recovered from his injuries.
The WCB medical advisor was of the opinion that there were inconsistencies between the worker’s presentation at his call-in examination on March 7, 2006 and the presentation on the video. In particular, the WCB medical advisor noted that at the call-in examination, the worker said he had constant pain in his neck and that during the exam he displayed this by closing his eyes and rubbing his forehead or neck. No such behaviour was noted on the video. Further, it was noted that during the call-in examination, the worker complained of dizziness and being off balance. He would have to grab onto something for support. This also was not seen on the videotape.
The panel acknowledges the discrepancies identified by the WCB medical advisor, but also notes that there was a 2 to 3 month interval of time between the call-in exam and the videotaped surveillance. At the time of the call-in examination, the worker had only recently begun vestibular physiotherapy treatment. By the time that the surveillance was conducted, the worker had months of physiotherapy treatment and home exercise to improve his level of functioning and balance issues. Further, the worker’s evidence at the hearing was that the dizziness experienced by him at the time was not constant. The panel accepts that it is possible that on that particular day, the worker was not experiencing any vertigo symptoms.
Overall, while the video surveillance raises some doubt as to the true extent of the worker’s disability, we find that the video does not provide convincing evidence that the worker had recovered from his injury or that he was capable of resuming his job duties at that time, particularly given the worker’s generally improving medical condition during that period of time.
To gauge the worker’s medical condition at the relevant time, the panel prefers to rely on the reports of the otolaryngologist. In his opinion, the videotaped activity did not raise any inconsistencies in the worker’s condition. He also stated that many patients with forms of cervical vertigo and post-concussive vertigo are not symptomatic all the time nor are they symptomatic with body positions or changes in motion.
The panel also places significant weight on the medical evidence regarding the out-patient vestibular physiotherapy which the worker commenced in October, 2006. At the hearing, the worker testified that after the vestibular physiotherapy was finished in January, 2007, his physiotherapist advised him that he was getting to the point where he could get his drivers licence back. Ultimately, the worker did not regain his licence until March 2007, as he had to wait until his otolaryngologist could see him to authorize reinstatement. In the panel’s view, the fact that the worker was referred for vestibular physiotherapy demonstrates that at that time, there was some degree of ongoing vestibular dysfunction which improved over the course of treatment. Further, the fact that the worker’s driver’s license was revoked from May 2006 to March 2007 based on the opinions of his physicians also indicates that during that period, the worker was legitimately experiencing ongoing dysfunction.
Accordingly, on a balance of probabilities, we find that at the time of the video surveillance, the worker continued to suffer from the effects of the original compensable injury. We find that by June 4, 2006, the worker continued to have a loss of earning capacity and therefore remained entitled to benefits beyond that date. The employer’s appeal is therefore denied.
Panel Members
L. Choy, Presiding OfficerA. Finkel, Commissioner
M. Day, Commissioner
Recording Secretary, B. Kosc
L. Choy - Presiding Officer
Signed at Winnipeg this 30th day of April, 2008