Decision #94/09 - Type: Workers Compensation
Preamble
The worker has an accepted claim with the Workers Compensation Board (“WCB”) for a back injury that occurred in the workplace on February 14, 2005. The worker is presently appealing a decision made by Review Office of the Workers Compensation Board (“WCB”) which found that he was fit to return to his pre-accident employment without restrictions and was not entitled to wage loss benefits beyond May 30, 2008. The worker disagreed with the decision and an appeal was filed with the Appeal Commission. A hearing was held on May 14, 2009 to consider the matter.Issue
Whether or not wage loss benefits are payable beyond May 30, 2008.Decision
That wage loss benefits are payable beyond May 30, 2008.Decision: Unanimous
Background
On February 14, 2005, the worker injured his low back in a work related accident. He was later diagnosed with an L5-S1 disc herniation displacing the S1 root. On January 31, 2006, the worker underwent a left L5-S1 microdiscectomy which was accepted as a WCB responsibility.
In a follow up report dated March 7, 2006, the neurosurgeon reported that the worker was not complaining of backache or burning in his leg but had some issues related to left buttock pain and that he walked with the aid of a cane. He noted that the surgical wound had healed well and suspected that the worker would have some residual issues in the long run.
On June 12, 2006, the worker underwent an MRI of the lumbar spine which showed a focal left disc protrusion at L5-S1 that contacted the left S1 nerve root. The remainder of the examination was reported to be unremarkable.
On September 5, 2006, the treating neurosurgeon reported that the worker had ongoing issues with sciatica and back pain and that he walked with a stick. The specialist indicated that they discussed the MRI study and there was no evidence of recurrent disc prolapse. He noted there was some scar in relation to it and that this was reflected in the radiological report. There was loss of disc height at L5-S1. The specialist indicated to the worker that as a final resort, one could consider decompression and posterior lumbar interbody fusion to try and resolve both back pain and sciatica but was reluctant to suggest this as a definite option. He felt the worker should continue with conservative management.
On November 21, 2006, the worker was assessed by a WCB orthopaedic consultant. He noted that it was nine months since the left L5-S1 surgery and the worker’s condition had not improved. There was moderate pain behavior but no overt symptom amplification. It was unclear to him as to what was causing the worker’s persistent back pain especially considering the minimally invasive access. He noted that the cause of the leg pain, which had characteristics of a persistent neuropathy, was either intrinsic left S1 root damage or adhesions or both. The consultant indicated that he would refer the worker to a pain clinic and that an epidural steroid injection would confirm the precise origin of the worker’s pain. In the meantime, the consultant outlined work restrictions for a four month duration.
The worker was seen at the pain clinic on December 2, 2006 for his initial assessment. The specialist stated that he wanted to obtain a copy of the CT scan of June 12, 2006. He stated “If there is ongoing evidence of nerve root compression at the S1 level, then it may be worthwhile having [the worker] follow up with [the neurosurgeon] to re-evaluate his situation. Alternatively, a diagnosis selective nerve root injection at S1 on the left side could be considered. When I described this procedure to [the worker] he was very apprehensive about considering injection therapy…I would be happy to follow-up with [the worker] after reviewing his MRI scan results. If he is agreeable with a selective nerve root injection at S1 for diagnostic purposes, I would be happy to proceed with this procedure.”
On March 14, 2007, the case manager indicated that he was providing the worker with a swimming membership in an attempt to gradually increase the worker’s strength and endurance with the intention of progressing to a course of physiotherapy.
On June 7, 2007, the worker advised his case manager that he continued to experience great pain in his back. He indicated that he tried to walk 2 or 3 blocks 4 or 5 times per week and tried to do his stretches 4 to 6 times per week for approximately 10 minutes per day. He also took pain medication as prescribed.
Progress reports from the treating physician throughout 2007 indicated that the worker complained of ongoing discomfort in his left buttock and calf. The doctor did not feel that the worker would be able to return to his previous employment.
In January 2008, the worker was advised that he was entitled to a PPI [permanent partial impairment] award of 10% for his back injury.
The worker was assessed by a WCB psychological consultant on January 23, 2008. Recommendations were made for the worker to be referred to a rehabilitation psychologist for psychological treatment combined with exercise at an out of home structured program for a maximum of 8 to 12 weeks.
In February 2008, the accident employer confirmed to the WCB that it was unable to accommodate the worker with modified duties that met his current restrictions.
On March 27, 2008, the case manager referred the worker’s file to vocational rehabilitation.
On April 3, 2008, the worker advised a WCB vocational rehabilitation consultant (“VRC”) that he was willing to do whatever was required but felt that his back and leg pain was too severe to work at this time. He stated that he was unable to stand for more than 10 or 15 minutes.
Progress reports were received from the rehabilitation psychologist dated April 14 and April 30, 2008.
On May 7, 2008, the worker advised his VRC at the Academy of Learning that his participation would be limited by his back pain. The worker indicated that he had pain in the morning and after sitting for a period of time. The worker winced several times in apparent pain.
In a memorandum dated May 20, 2008, the case manager documented that surveillance of the worker’s activities were initiated on April 29, 2008 following a meeting with the WCB’s VRC. He stated:
“The worker arrived at the WCB and used a cane as he entered and exited the building. The worker’s observed activities on April 29, 2008, following his meeting, included no use of a cane and no apparent functional limitations or limitations due to pain.
Activities observed included carrying a step ladder, paint, scraping his house at various levels, climbing up and down a step ladder, using small hand tools at various levels. The worker appeared to have full range of motion as he was able to bend, squat, kneel and twist with no apparent limitations.
The worker was performing the above mentioned activities for extended periods of time.
Surveillance took place again on April 30, 2008.
The worker’s observed activities included no apparent functional limitations or limitations due to pain. He was able to perform activities such as playing in the park, squatting to take pictures, bending, twisting, pushing a baby stroller and at one point during the footage lifted a child out of the stroller with no apparent difficulty. The child was estimated to weigh 20 to 30 pounds.
Surveillance took place again on May 8, 2008 and May 9, 2008.
The worker’s observed activities included no apparent functional limitations or limitations due to pain. He was active throughout both days - at one point tossed his cane into the car and began unloading groceries from a cart into his trunk.
He had no apparent difficulty getting in and out of a vehicle or operating a motor vehicle. The worker spent the majority of his time working around the yard repairing various items and helping to install windows. He was observed bending, twisting, crouching, squatting and working at various levels for extended periods of time without any apparent difficulty. He was observed climbing ladders and carrying items such as scrap wood and was able to use small hand tools. Based on the above information arrangements have been made to review/obtain a clear description of the worker’s pre-accident employment activities.”
On May 22, 2008, the case manager attended the accident employer’s work site and memorandum was placed on file which outlined the worker’s job duties as a mechanic which involved repairing and installing various items on large trucks.
On May 28, 2008, the WCB orthopaedic consultant who examined the worker in November 2006, reviewed the video surveillance and outlined his observations of the worker’s activities. He concluded that the observed activities did not provide any evidence of impairment of function and he rescinded the worker’s previously outlined restrictions.
In a decision dated May 27, 2008, the worker was advised that in the opinion of the WCB case manager, he no longer demonstrated a loss of earning capacity in relation to his February 14, 2005 compensable injury and that wage loss benefits would be paid to May 30, 2008 or to his return to work date, whichever came sooner. This decision was based on the file information which included the surveillance video and the opinion expressed by the WCB orthopaedic consultant.
On September 30, 2008, a worker advisor asked the WCB case manager to reconsider the decision made on May 27, 2008. The worker advisor noted that the treating physician reviewed the video surveillance and the pre-accident job duties provided by the worker and concluded that the worker would be unable to perform any activities that required him to have any measure of strength or flexibility in his low back. She noted the treating physician’s view that the video surveillance presented a skewed picture of the worker’s physical capabilities. The physician noted that the worker started a new pain medication just prior to the video surveillance which was more effective in controlling his pain and he was also actively attempting to follow the recommendations made by his psychologist to increase his level of activity. The worker advisor indicated that it was unrealistic to anticipate that the worker would be capable of sustaining even moderate activities he was seen to be performing while under surveillance for eight hours per day, let alone the much more physical demands required by his job. The worker advisor also asked the case manager to consider the amount of notice given to the worker on the termination of his benefits. She stated that WCB policy 44.30.60, Notice of Change in Benefits or Services provided for advance notice of 7 calendar days for a discretionary change to benefits or services. In the worker’s case, he was only notified on May 27, 2008 that his benefits were ending on May 30, 2008.
On December 10, 2008, the worker was advised that no change would be made to the May 27, 2008 decision. The case manager noted that following the recent meeting to review the worker’s job description, it was concluded that the worker required the following abilities to perform his regular duties:
· Lift up to 30 pounds
· Use tools such as an electric drill, impact gun, and torque wrench.
· Squat, bend, twist, reach, stoop and walk as needed.
· Use a creeper to perform under carriage work.
The case manager indicated that the video surveillance confirmed that the worker had the ability to perform the above tasks and was capable of performing regular duties.
Regarding the letter by the treating physician dated September 29, 2008, the case manager noted that the doctor indicated that the worker was not capable of returning to his previous employment. However, the job description submitted to the doctor was an inaccurate reflection of the worker’s job duties. He noted that the doctor indicated that prior to the video surveillance the worker was encouraged by the psychologist to increase his activities and was given a new medication which had increased his pain threshold. This information confirmed to the case manager that the worker’s capabilities had increased around the time the video surveillance was recorded, contrary to his reports to WCB representatives that he was very limited due to back pain.
The case manager indicated that the worker was not entitled to further benefits in accordance with WCB policy 44.30.60. On January 28, 2009, the worker appealed the case manager’s decision to Review Office.
On February 4, 2009, Review Office determined that the worker was not entitled to wage loss benefits beyond May 30, 2008 and that he was deemed fit to return to his pre-accident employment with no restrictions. In reaching its decision, Review Office noted that the worker’s activities on the video surveillance was in contrast to his verbal and visual presentation to WCB staff and the medical community. Review Office indicated that it agreed with the findings of the WCB orthopaedic consultant and case manager following their review of the surveillance evidence. On February 18, 2009, the worker appealed Review Office’s decision to the Appeal Commission and a hearing was arranged.
Following the hearing on May 14, 2009, the panel arranged for the worker to undergo an independent Functional Capacity Evaluation (“FCE”) and requested additional medical information from the treating surgeon. The FCE report and the treating surgeon’s report was forwarded to the worker for comment. On August 13, 2009, the panel met further to discuss the case and rendered its final decision.
Reasons
Applicable Legislation
The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the Board of Directors. Under subsection 4(1) of the Act, where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid to the worker by the WCB. Subsection 39(2) of the Act provides that the WCB will pay wage loss benefits until such a time as the worker’s loss of earning capacity resulting from the accident ends.
The Worker’s Position
The worker appeared at the hearing assisted by his son. He submitted that he continues to suffer pain as a result of his workplace accident. He stated that the surveillance video shows only a small fraction of his day-to-day life and does not show the much larger side of his life which is a daily struggle with pain. It is true that he has moments where he feels a little better, usually because of periodic relief from medication, but most of the time he is suffering. The worker’s son also spoke on the worker’s behalf and submitted that the WCB ignored the diagnosis of the treating physician who declared that, due to the damage caused by the surgery, the worker was unfit to return to his former workplace as a mechanic. The everyday duties of a mechanic of heavy trucks could not be compared to the relatively light activities which the worker was observed to be doing in the surveillance video. It was also added that the worker had been pushed by the WCB’s medical staff to engage in small activities and that when the video was filmed, he had been taking medication which, on occasion, appeared to lift the pain threshold.
Analysis
The issue before the panel is whether or not the worker is entitled to wage loss benefits and services beyond May 30, 2008. In order for the appeal to be successful, the panel must find that by May 30, 2008, the worker’s ability to earn his pre-accident income remained impaired by the effects of the injuries he sustained in the February 2005 workplace accident. We are able to make that finding.
It is not disputed that the worker initially suffered a left L5-S1 disc herniation to his back which required him to undergo a lumbar discectomy in January 2006. The controversy surrounds whether or not the worker has recovered sufficiently from the injury and surgery so as to resume his pre-accident employment. The worker alleges that he continues to suffer constant pain in his back and left buttock and frequent sharp pain in his calf which is debilitating and prevents him from engaging in any type of employment. The worker’s assertion of total disability appears to be at odds with four days of surveillance video taken in late April and early May 2008 which shows him engaged in various activities. It was largely based on this surveillance video that the WCB determined that the worker’s earning capacity was no longer impaired beyond May 30, 2008.
After reviewing the WCB file and conducting the hearing, the panel did not feel it had sufficient evidence as to the residual impairment, if any, the worker had from the January 2006 surgery. We therefore requested additional information from the surgeon as to residual issues which may possibly result from the surgery. The panel also asked that a functional capacity evaluation be conducted on the worker to assist in determining the extent of his current ability to earn income.
A report dated May 25, 2009 from the surgeon indicated, in part, as follows:
The nature of adhesions noted on the MRI scan are known as essentially perineural fibrosis, as one might typically find in patients who have had a previous lumbar surgery. He does not have recurrent disc prolapse. Physical symptoms normally associated with adhesions are persistence of sciatic pain much as [the worker] describes.
In my opinion, the likelihood that the symptoms of which [the worker] complains, might indeed relate to the presence of scar tissue. I very much doubt it relates to any separate entity, and as far as I am aware this patient was asymptomatic prior to the onset of his illness in 2005.
On July 17, 2007, a registered occupational therapist conducted a functional capacity evaluation of the worker. The test results indicated that the worker was only capable of performing the listed activities on an occasional basis, which is defined as the ability to perform the activity for 0-2.6 hours per day. Although the report indicated that the worker demonstrated a reliable effort in the evaluation, the panel notes that only 21 of 32 consistency measures were recorded as reliable. There were a number of tests which were incomplete as well as some tests which indicated a less than valid effort. Several of the tasks upon which the worker did not demonstrate a reliable effort were ones which would have given a true assessment of the extent to which he was limited by his low back condition. The panel also notes that during the evaluation, it was reported that the worker displayed frequent pain behaviours while seated for the interview and that he used both hands for support when seated throughout the assessment. This differs from his presentation at the hearing, particularly during unguarded moments. At the hearing, the panel observed that the worker was capable of sitting unsupported and there were extended periods of time where he could participate in the proceedings without demonstrating any pain behaviour.
The panel shares the ongoing concerns reflected on the WCB file regarding pain amplification. We do not accept the worker’s assertion of total disability. In the panel’s opinion, however, the WCB’s decision to terminate wage loss benefits as of May 30, 2008 on the basis of full recovery was premature. The activities being engaged in by the worker on the surveillance footage do not confirm either total disability or total recovery.
Overall, the panel feels that the worker is not totally disabled and that he is capable of some form of employment. We acknowledge, however, that his pre-accident job as a mechanic was heavy in nature and required a significant amount of walking, bending, stooping, crouching, and kneeling. Although the panel rejects the worker’s assertions of total disability, we do accept that as of May 30, 2008, he was not able to return to his heavy pre-accident duties as a mechanic. The surgeon confirms that MRI results show that there is an organic basis for the persistence of sciatic pain and that the adhesions causing the sciatic pain are related to the compensable surgery. We therefore find that wage loss benefits and services are payable beyond May 30, 2008. The worker’s appeal is allowed.
Panel Members
L. Choy, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
L. Choy - Presiding Officer
Signed at Winnipeg this 5th day of October, 2009