Decision #79/08 - Type: Workers Compensation
Preamble
On May 12, 2004, the worker suffered a disc herniation when she slipped at work. It was later determined by primary adjudication that the worker was not entitled to wage loss benefits after July 26, 2007 on the basis that she no longer had a loss of earning capacity due to her compensable injury. This decision was confirmed by Review Office on November 22, 2007. The worker disagreed and filed an appeal with the Appeal Commission and an oral hearing was held on March 19, 2008.Issue
Whether or not the worker is entitled to wage loss benefits after July 26, 2007.Decision
That the worker is not entitled to wage loss benefits after July 26, 2007.Decision: Unanimous
Background
On May 12, 2004, the worker was leaving her employer’s premises at the end of her shift when she started to slip on ice and wrenched her back. The worker was later examined by three different doctors and was diagnosed with an acute lumbosacral strain, left sciatica and an L5 radiculopathy, respectively. On August 3, 2004, a CT scan of the lumbar spine revealed a central disc protrusion with a left sided component at the L4-L5 and L5-S1 disc levels. The claim for compensation was accepted and the worker was paid wage loss benefits during her time away from work.
In a July 31, 2004 report, the treating physician opined that the worker was capable of modified duties with restrictions to avoid excessive lumbar flexion, to alternate between sitting and standing during her work day and to avoid lifting greater than 15 pounds.
On August 16, 2004, a graduated return to work program was outlined for the worker to commence on August 17, 2004 starting at 4 hours per day, 2 days per week. It was anticipated that the worker would be fit to perform her regular duties without restrictions by September 27, 2004.
On September 10, 2004, the treating physician indicated that the worker’s back pain needed to be under control before she progressed with her graduated return to work program. A cortisone injection was recommended to help alleviate the worker’s pain.
In January 2005, a caudal epidural corticosteroid injection was performed by a physical medicine and rehabilitation specialist. In February 2005, the worker was treated by a chiropractor for subjective complaints of low back pain extending to the left buttock and left leg. The worker was also seen by a registered psychologist and underwent massage treatment.
On October 13, 2005, the worker was examined by a WCB medical advisor who indicated that the worker felt a constant pain to the very low aspect of her back. She said her examination was equivocal for ongoing nerve impingement and a repeat CT scan was recommended along with a trial of ART. She noted that the worker had a very sedentary job and that most of her back pain came from sitting. It was felt that the worker could continue working but would have restrictions of no lifting greater than 20 pounds, no repeated or sustained bending or twisting and to change position as needed. It was also recommended that the worker return to half time hours, three days a week. If this could be tolerated, the worker could increase by one hour per shift every couple of weeks until full time hours were attained.
The case was again reviewed by the WCB medical advisor after CT and bone scan results were placed on file. She indicated on December 14, 2005, that the CT scan showed improvement at L4, L5 with no change at L5-S1 and the bone scan was negative. Based on these findings, the medical advisor confirmed that the worker remained fit to participate in a return to work program.
The treating physician re-assessed the worker on January 24, 2006. The worker did not describe any changes to her symptoms with low back pain, posterior lateral and anterior thigh pain and left leg paresthesia. She was limited to sitting and standing. He noted that the worker had been unable to further her work based duties and had tried numerous interventions and modalities. He believed that the worker was likely at her maximum medical improvement and that surgery was not warranted. A Functional Capacity Evaluation (“FCE”) was recommended to determine the worker’s current capacities. The FCE later took place on February 22, 2006.
On June 28, 2006, the WCB medical advisor stated, “Although there are no objective findings (clinical or CT) to suggest enhancement, subjectively she continues to have pain and decreased function. It is unlikely there will be significant improvement, so we should consider the ddd (degenerative disc disease) to be symptomatically enhanced.” It was felt that the worker’s previously set out restrictions should be considered permanent and there should be no restriction in her hours provided the work was within her physical restrictions.
In a June 28, 2006 decision, the worker was advised of the WCB’s position that her pre-accident job was considered to be within her permanent restrictions and that she was capable of working her pre-accident level of 30 hours per week. WCB partial wage loss benefits would therefore be paid to July 7, 2006 inclusive and final.
On July 17, 2006, the treating physician indicated in a medical certificate that the worker remained restricted to working 3 hour shifts, 3 times per week. In another medical certificate dated July 19, 2006, the treating physician noted that the worker was restricted from sitting for any longer than 20 minutes at a time and that she should be allowed to stand, stretch and walk when required due to her medical condition.
In a letter to the WCB dated July 28, 2006, the worker contended that her permanent restriction related to “ability to change positions as needed” did not accurately reflect her limitations with respect to sitting and failed to address the cumulative effect that sitting for 20 minute periods over an interval of time had on her pain levels. The worker indicated that she consistently stated to the WCB that her pain increased exponentially while sitting which made it virtually impossible to concentrate on tasks or meet her productivity quotas at work.
On September 20, 2006, the worker’s supervisor advised the WCB case manager that the worker had not increased her hours of work and continued to work 3 times per week at 4 hours per day. The worker reported that she needed to have a 20 minute break out of every work hour and the supervisor did not feel that the employer could accommodate such a restriction.
On September 21, 2006, a WCB medical advisor responded to questions posed by the case manager. The medical advisor stated there had been no new medical information to suggest the need to change the worker’s restrictions. She indicated further that from a review of the worker’s job duties with the case manager and rehabilitation specialist, the worker’s regular duties fell within her permanent restrictions. The medical advisor interpreted the treating physician’s note to indicate that the worker could sit for 20 minutes at a time and then would require a break from sitting. A reasonable break time would be 3 to 4 minutes. She stated “According to the rehab specialist’s report these breaks from sitting could be part of her work (i.e. going to get more files).”
On October 1, 2006, the WCB case manager informed the worker that after a review of the updated medical information, she was still of the view that the worker’s regular job duties fell within her permanent restrictions of no lifting greater than 20 pounds, no repeated or sustained bending or twisting and to change positions as needed.
In a decision dated October 20, 2006, Review Office determined that the worker was not entitled to wage loss benefits beyond July 7, 2006. Review Office indicated the restrictions imposed by the WCB medical advisor took into consideration the worker’s sitting limitations. It found that the worksite assessment that took place on August 16, 2005 supported that the worker had the ability to get up and walk when needed and that the employer was able to accommodate this restriction. It stated there were no clinical findings to support the need for the worker to work at reduced hours and that the worker’s job was sedentary in nature and she had the ability to get up and walk around. In December 2006, the worker appealed Review Office’s decision to the Appeal Commission and an oral hearing took place on February 1, 2007.
On May 11, 2007, the appeal panel determined that the worker was entitled to wage loss benefits beyond July 7, 2006. The appeal panel found that the worker had not recovered from the effects of her compensable injury and was unable to work her regular full time duties. The appeal panel stated, in part,
“Though the worker’s sitting restriction is in principle compatible with a sedentary job as most sedentary positions allow a worker to get up and move around, this worker’s particular job (and employer) does not accommodate frequent rest breaks; this is due to the high production and accuracy demands. The worker’s evidence at the hearing was that the longer she stayed sitting and the more the day went by, the more she became symptomatic and was unable to relieve her back symptoms. She was therefore unable to increase her work week beyond 9 hours per week.”
Following the appeal panel’s decision, the worker’s benefits were reinstated.
On July 9, 2007, a WCB case manager contacted the worker to obtain an update regarding her symptoms, medical treatment and return to work status. The worker stated that her symptoms improved overall when she was laid off from work between November 2006 to March 2007. She was still, however, experiencing constant low back pain and sitting contributed to her pain. The worker indicated that she continued to work 3 days a week at 3 hours a day and the remainder of the time she was on sick leave. With respect to daily living, the worker indicated that she was unable to drive long distances, she could cook, wash dishes by hand, fold laundry (husband carries it), cut the lawn with a push/gas mower, light grocery shopping (her husband or son unloads the vehicle of heavier loads), walk for exercise, and use a pool and a home treadmill in the winter.
On August 22, 2007, the WCB case manager again contacted the worker for an update on her condition. The worker said she felt no change in her symptoms and still had constant low back pain. She struggled to work the 3 days at 3 hours and needed to rest after her work day due to the pain. She said she could sit 15 to 20 minutes and this included driving, standing in one spot only for up to 10 minutes and then she had to move due to pain, walking 15 to 20 minutes. She felt limited in twisting and rotating her back and could not bend forward to touch her toes.
All file information was reviewed by a WCB medical advisor on August 23, 2007 which included the review of a videotape surveillance that was taken of the worker’s activities in July and August 2007. The medical advisor commented that she observed the worker showing no evidence of pain behavior, full fluid range of motion while squatting, bending, washing/drying her vehicle, climbing a ladder, twisting and lifting the ladder, loading a trailer, getting into and out of a vehicle. The worker was observed driving for a prolonged period of time out of town without stopping the vehicle to get out and stretch. When she exited the vehicle, it was smoothly. The medical advisor said she saw no evidence that the worker had ongoing effects of her compensable injury nor was her activity limited. “If she had significant symptomatic lumbar DDD [degenerative disc disease] she would not be able to perform the activities she did without limitation in range of motion or evidence of discomfort. The previous opinion of enhancement was based on symptoms only and was not supported by any objective or imaging evidence. Based on this objective review, that dx [diagnosis] is no longer supported.”
On September 5, 2007, the worker was advised that her benefits were ending on July 26, 2007 as the WCB felt that she no longer had a loss of loss of earning capacity related to her compensable injury. This decision was based on the surveillance videotape evidence. This decision was confirmed to the worker again on November 9, 2007 based on a review of new medical information that was submitted. On November 4, 2007, the worker appealed the decision to Review Office.
In a November 22, 2007 decision, Review Office found no evidence to establish that the worker had a loss of earning capacity due to the effects of her compensable injury and was therefore not entitled to wage loss benefits after July 26, 2007. In rendering its decision, Review Office made reference to a medical report dated August 16, 2007 which reported that “the worker described significant back pain and neuropathic symptoms” and active lumbosacral range of movement was significantly self-restricted in all planes. Review Office found that this was not consistent with the worker’s function and ease of movements as shown on the surveillance. It also found that:
· the October 2, 2007 MRI report revealed no definitive signs of nerve root compression;
· the worker had degenerative changes bilaterally at L4-5 and L5-S1 that was not a result of the compensable injury;
· the comment made by a WCB medical advisor that there was no evidence of any enhancement;
· the worker had the ability to walk and stretch every twenty minutes as she stated in her letter of September 14, 2007. Review Office was of the view that the worker was functionally capable of performing her pre-accident duties on a full time basis.
On December 10, 2007, the worker filed an application to appeal with the Appeal Commission. In March 2008, the worker’s union representative provided the appeal panel with a report from an occupational health physician dated January 24, 2008 for consideration.
Following the oral hearing, the appeal panel requested additional medical information from the treating physical medicine and rehabilitation consultant. This information was received and was forwarded to the interested parties for comment. On June 9, 2008, the panel met and rendered its final decision.
Reasons
Applicable Legislation and Policy
The worker is employed by a federal government agency or department and her claim is therefore adjudicated under the Government Employees Compensation Act (“GECA”). Under the GECA, an employee who suffers a personal injury by an accident arising out of or in the course of employment is entitled to compensation. Pursuant to subsection 4(2) (a) of the GECA, a federal government employee in Manitoba is to receive compensation at the same rate and under the same conditions as a worker covered under The Workers Compensation Act (the “WCA”).
The Appeal Commission and its panels are bound by the WCA, regulations and policies of the Board of Directors.
Subsection 4(2) and Section 37 of the WCA provide that where a worker sustains a loss of earning capacity, wage loss benefits are payable. Subsection 39(2) of the WCA provides that wage loss benefits are payable until such a time as the worker’s loss of earning capacity ends, as determined by the WCB. Subsection 60(2) (e) of the WCA provides that the WCB has exclusive jurisdiction to determine the loss of earning capacity resulting from an accident.
The panel is satisfied that the above noted provisions of the WCA are applicable to cases under the GECA.
Worker’s Position
The worker was represented by her union representative who made a submission on the worker’s behalf. The worker also addressed the panel. Both answered questions asked by the panel.
The worker’s representative noted that the WCB has confirmed throughout the time since the injury that the injury was the result of an accident under the GECA. He advised that the worker continues to have concern regarding the employer’s inability to provide a work environment in which accommodation is possible to the extent required.
The representative stated that steps taken in an attempt to discredit the worker (surveillance video) do not show an understanding of the worker’s injury. He suggested that more weight ought to be given to the opinion of the occupational health physician who examined the worker than to the surveillance video.
The worker stated that she can do many things for a short period of time, but cannot do anything for a long time. She indicated that sitting and standing in one spot was the most difficult and that she needs to move around and stretch. She also advised that she has been told by physicians to keep active.
The worker answered questions regarding medical treatments. She advised that she continues to see a physiatrist and will be receiving another injection in the near future.
The worker explained that she is employed in a production based job. She said that if she does not achieve production and error rates, she will not be rehired upon completion of her term. She advised that she worked at restricted hours, nine hours per week, until December 2007 and recently returned to work, eight hours per week. Her representative confirmed that the employer does not recognize seniority in its hiring.
Regarding the video surveillance, the worker advised that the day she was filmed helping to install siding to a house was not a normal day. She advised that on the days of the surveillance she had taken medication. She described activities of a normal day as including; rising early, stretching, running errands or buying groceries, having a nap, making supper and watching TV in the evening. In the summer she walks outside and in the winter she uses a treadmill three times per week. On days that she works, she usually goes home after work and does not go out.
In answer to a question the worker stated her condition improved from 2004 to 2006 but has not improved since 2006. The worker advised that she has pain all the time but with medication, the pain is lessened. She stated that the closest she has been to being pain free is when she had her last epidural injection.
The worker advised that the pain is in her lower back, below her belt line, on both sides but hurts more on the left side. She stated that her “bum” hurts, as well the side of her leg, big toe and just above her ankle. She stated the pain is much better if she is moving.
When asked whether she has considered other employment, the worker advised that she likes her current job but had unsuccessfully applied for two accounting jobs.
Analysis
The issue before the panel is whether the worker is entitled to wage loss benefits after July 26, 2007. For the appeal to be successful the panel must find that the worker’s loss of earning capacity is a result of her injury or in other words, that the worker’s ongoing inability to work was caused by her injury. The panel was not able to make this finding.
While the panel finds that the worker has not fully recovered from her workplace injury, the panel finds, on a balance of probabilities, that the worker has a significantly greater capacity to work than she has reported to the WCB, physicians and this panel. In reaching its decision the panel places significant weight on the surveillance evidence. The panel notes the surveillance video shows the worker participating in activities which demonstrate she can perform a variety of tasks and has a full range of motion. She is seen moving and climbing a ladder, squatting and bending to pick up building materials, assisting with the installation of building materials, exiting and entering vehicles without signs of difficulty and washing and drying a vehicle.
The panel also notes the comment of the treating physiatrist, in a report dated August 16, 2007, that the worker’s active lumbosacral motion was significantly self-restricted in all planes. The panel finds the worker’s behaviour has been self-limiting and notes that the worker did not appear to be restricted in the activities recorded in the surveillance video.
Regarding the worker’s pre-existing condition, the panel does not find that the pre-existing condition has been aggravated or enhanced by the workplace injury. The panel agrees with the WCB medical advisor’s opinion of November 5, 2007 that there is no evidence that the pre-existing condition has been enhanced.
The panel has reviewed the worker’s job description and finds that the worker is not restricted from performing the demands of this position. The panel finds that the position, an office job processing information on a computer, provides the worker with opportunity to sit, stand, and move around and does not involve activities which would aggravate her injury.
The panel finds that the worker’s loss of earning capacity is not related to her workplace injury and accordingly she is not entitled to wage loss benefits after July 26, 2007. Her appeal is denied.
Panel Members
A. Scramstad, Presiding OfficerA. Finkel, Commissioner
W. Leake, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
Signed at Winnipeg this 8th day of July, 2008