Decision #49/10 - Type: Workers Compensation
Preamble
The worker is appealing two decisions made by Review Office of the Workers Compensation Board (“WCB”). The first decision deals with the worker’s entitlement to benefits beyond February 9, 2007. Review Office denied the worker’s appeal, on the grounds that there was insufficient evidence to relate the worker’s ongoing reported symptoms to her compensable injury of December 23, 2005. Review Office also denied the worker’s appeal of a decision made by primary adjudication that she was required to repay an overpayment to the WCB in the amount of $3,707.70. A hearing was held on April 14, 2010 to consider these matters.Issue
Whether or not the worker is entitled to benefits beyond February 9, 2007; and
Whether or not the overpayment of benefits in the amount of $3,707.70 should be repaid.
Decision
That the worker is not entitled to benefits beyond February 9, 2007; and
That the overpayment of benefits in the amount of $3,707.70 should be repaid.
Decision: Unanimous
Background
The worker reported to the WCB that she tripped over a pallet on December 23, 2005 and “landed on my right hip and I put my right hand out to stop myself and all my weight went on my right hip and hand at the same time.”
Initial medical reports showed that the worker sought medical treatment and was diagnosed with a right thumb and wrist sprain as well as soft tissue injury to her right hand/thumb. She also complained of right arm, shoulder and neck pain.
On February 10, 2006, a sports medicine specialist examined the worker in regards to her right upper extremity and neck pain. The specialist stated that the examination had been extremely limited by pain. Recommendations were made for the worker to undergo an MRI of the cervical spine and EMG/nerve conduction studies of the right upper extremity.
In March 2006, the worker had an MRI of the cervical spine and shoulder as well as nerve conduction studies. All test results were considered essentially normal.
Given that the diagnostic tests all indicated normal results, on March 31, 2006, the WCB determined that the worker had no further loss of earning capacity and her benefits were discontinued effective April 8, 2006.
On April 20, 2006, the worker was seen by a neurologist for consideration of right face, neck, arm and hand complaints. In his opinion, the worker suffered from complex regional pain syndrome which he believed was secondary to her injury. On May 11, 2006, a WCB medical advisor reviewed the neurologist’s opinion and felt there was a cause and effect relationship between the diagnosis and the compensable injury. The worker’s benefits were reinstated and she was referred for aggressive physiotherapy treatment.
On July 7, 2006, a WCB case manager spoke with the treating physiotherapist. The therapist reported that the worker was not using her arm much and her scapular area was very tight. The pain had moved and was more concentrated around the shoulder blade. The physiotherapist indicated that the worker was no longer presenting with extreme pain behavior and that she had a lot of pain. However, the complex regional pain syndrome symptoms were gone. It was felt that the worker might have a thoracic outlet syndrome.
On July 27, 2006, the WCB case manager documented that the worker was experiencing stomach problems along with nausea and vomiting that was thought to be due to the medications she was taking. The worker’s physiotherapy program was placed on hold as a result.
On October 24, 2006, a WCB medical advisor assessed the worker’s medical status and recorded that the worker complained of constant and severe pain to the right side of her neck and right upper extremity since the time of the accident. The medical advisor was unable to provide an anatomic diagnosis for the worker’s pain, as her description of the pain and localization of the pain was not consistent with a particular anatomic structure. The medical advisor noted that there were inconsistencies throughout the examination such as the worker feeling pain in her neck/right upper extremity when walking on her heels. It was concluded that the worker’s complaints of pain and loss of function were out of proportion to the injury and that it was quite possible the worker had some type of pain syndrome.
On December 16, 2006, the WCB medical advisor spoke with the treating physician. The treating physician could not explain why the worker had such severe pain except for the diagnosis provided by the neurologist of complex regional pain syndrome. The treating physician thought that the worker was not a malingerer and agreed that the worker should be referred to the WCB’s Pain Management Unit (“PMU”) for an assessment.
The worker was interviewed at the PMU on January 30, 2007.
On February 8, 2007, a PMU case conference was held to discuss the worker’s level of activity and function observed on video surveillance between May 29, 2006 and January 17, 2007 as well as the PMU interview results of January 30, 2007. It was noted that at the PMU interview the worker reported and displayed what she referred to as a “one-armed existence.” She was unable to shake the interviewer’s hand with her right hand due to apparent pain, and her right arm and hand were kept at her side during the interview. It was stated that this was in contrast to the activities and behaviors observed on the video surveillance wherein the worker was using her right arm and hand freely to open and close car doors, to hold and manipulate (turn) the steering wheel, and to hold, insert and withdraw the dipstick used to measure the level of oil in the engine of her car. It was concluded that the only limitations on the worker’s functioning were those which she, of her own volition, placed on herself. It was determined by the PMU that the worker did not meet the criteria for a chronic pain syndrome as the disability was not proportional in all areas of functioning. It was also determined that the worker did not meet the criteria for adjustment disorder with depressed mood or pain disorder associated with psychological factors and with an “as yet undiagnosed medical condition.”
In a decision by primary adjudication dated February 2, 2007, the worker was advised that a cause and effect relationship between her work injury and her reported symptoms no longer existed and that benefits would be paid to February 9, 2007. The decision was based on the results of the WCB call in examination of October 2006 which could not identify an objective diagnosis, the findings of the PMU that the worker did not have a diagnosis of chronic pain, the inconsistencies in her presentation during the PMU assessment and the surveillance which did not demonstrate any pain behavior.
Subsequent to the above decision, a report was received from the treating neurologist dated May 7, 2007. The neurologist stated, “Regardless of this woman’s premorbid personality, I would agree with you that she continues to suffer from a complex regional pain syndrome. I do indeed feel that this is work related. I cannot speak to the discrepancies as seen on the surveillance video as these are not available to me.” The neurologist recommended that the worker return to her rehabilitation program for treatment and to a pain specialist.
A report from the treating physician dated July 20, 2007 indicated that he was writing an appeal on the worker’s behalf in regard to the decision to end her WCB benefits. He was basing his appeal largely on the treating neurologist’s opinion that the worker suffered from complex regional pain syndrome. The physician also indicated that he was “struck by how little time [the worker] is actually seen on the DVDs…I would expect a larger sample of time where [the worker] is actually being viewed. With such a small sample size, it raises the distinct possibility that she was just filmed on “good days” and never seen on bad days.”
The worker’s condition was assessed by a WCB physical medicine consultant on October 18, 2007. He noted from his assessment that the worker had a significant degree of pain and pain-limited behavior but there was no objective confirmation of a definite physical diagnosis. The consultant recommended that further investigations be undertaken given the severity of the worker’s complaints.
An MRI of the cervical spine, right brachial plexus and wrist taken on June 11, 2007 revealed a tear of the ulnar attachment of the TFC. The MRI of the cervical spine and right brachial plexus were considered normal.
On November 22, 2007, the WCB physical medicine and rehabilitation consultant reviewed the MRI results and surveillance DVDs at the request of primary adjudication. He concluded the following:
· there was no evidence of any physical impairment present for the activities observed on the DVDs which suggested that if an injury occurred to the wrist, it had recovered to the extent that no impairment of the wrist for a variety of activities was present. Treatment such as further physiotherapy would not appear to be indicated.
· it was not possible to conclusively confirm that the identified tear shown on the MRI occurred with the claim injury or was pre-existing; the DVD surveillance, however, suggested that this was not affecting function in any significant way;
· based on the surveillance review, no restrictions were required related to the claim injury;
· there was no apparent impairment or limitations related to observed wrist function and therefore a referral to an orthopaedic surgeon was not indicated.
On November 22, 2007, the worker was advised that the WCB remained of the opinion that there was no evidence of ongoing disability in relation to the work injury of December 29, 2005. This decision was based on the history of injury, the lack of a clear diagnosis, normal diagnostic testing, expected symptom duration, the findings at the time of the WCB exams on October 24, 2006 and October 18, 2007, the PMU findings of January 30, 2007, the results of surveillance investigations, the current clinical findings and the time that passed since the original injury.
In a memorandum dated May 16, 2008, it was recorded that the worker began receiving CPP benefits effective June 1, 2006 and that full WCB wage loss benefits had been paid to February 9, 2007. This constituted an overpayment of $3,707.70. On June 6, 2008, the worker was advised that she was responsible to repay the WCB the full amount of the overpayment.
On October 15, 2008, a worker advisor provided the WCB with new information to consider which included an 8 page submission from the worker and a report from the treating physician dated August 21, 2008. The worker advisor submitted that this new information in addition to file information supported that the worker continued to have symptoms and restrictions as a result of her compensable injury that prevented her from returning to her pre-accident employment.
In a decision dated November 21, 2008, the WCB case manager wrote the worker advisor stating that she was unable to accept responsibility for the worker’s psychological condition in relation to her compensable injury. The case manager also advised that she was unable to change the prior WCB decisions which ended responsibility for the worker’s ongoing wage loss benefits. The case manager indicated that the information submitted by the worker and the treating physician did not provide objective evidence to support an ongoing relationship between the worker’s reported pain complaints and the December 23, 2005 workplace injury.
In a submission to Review Office dated January 6, 2009, the worker advisor requested reconsideration of the WCB’s decision to end the worker’s wage loss benefits on February 9, 2007. The worker advisor stated that two of the worker’s treating physicians attributed the diagnosis of complex regional pain syndrome to the 2005 workplace injury. He indicated that despite these medical opinions, the WCB referenced the normal results on a number of diagnostic tests. The worker advisor indicated that the WCB denied benefits based on surveillance that was taken while the worker was seeing improvement in her condition as a result of appropriate treatment and a PMU interview that took place before her benefits ended. It was the worker’s position that a disproportionate degree of significance had been afforded to this information in contrast to the worker’s own testimony and the opinions of her own doctors.
The worker advisor also asked Review Office to reconsider the decision to assess and seek recovery of the $3,707.70 overpayment. The worker advisor stated the following:
· the worker applied for CPP disability benefits in March 2007 after the WCB denied responsibility for her ongoing difficulties. In December 2007, her application was accepted on the basis that a workplace injury caused complex regional pain syndrome which prevented the worker from returning to work. The worker was paid CPP benefits retroactively to June 2006.
· the worker understood from a contact at CPP that an agreement between them and the WCB would address any periods of overlap and that she would not be required to repay any benefits.
· Section 4(ii) of WCB policy 35.40.50 Overpayment of Benefits established that overpayments will be recovered when they are the result of “a duplication of benefits paid from another source for the same injury”.
· if the WCB concluded that the worker recovered from her compensable injury sufficiently to return to work, then the ongoing disability accepted by CPP and the associated entitlement to benefits, cannot reasonably be related to the same injury. “The WCB either needs to accept ongoing responsibility or sever the relationship between the compensable injury and ongoing disability.”
· the worker’s CPP benefits total $584.66 per month. The WCB should not pursue recovery of the overpayment as doing so would create a financial hardship for the worker and could not be reasonably cost effective for the WCB to recover. If Review Office did not reinstate the worker’s benefits, it would be unreasonable to pursue collection of an overpayment that occurred inadvertently.
On February 12, 2009, Review Office determined that there was no entitlement to benefits beyond February 9, 2007 as there was insufficient clinical evidence of any physical findings on medical submissions and/or test results that would explain the worker’s ongoing reported symptoms. It felt that the surveillance evidence established that the worker had significantly more function than was previously considered to be the case. Review Office said it placed little weight on the May 7, 2007 opinion expressed by the treating neurologist, as the neurologist did not see the surveillance video. Review Office found no convincing evidence that the worker continued to suffer from a pain disorder directly related to the workplace injury and insufficient evidence to provide a physical diagnosis for the worker’s ongoing symptoms.
Review Office determined that the worker was responsible for repaying back the full amount of the overpayment of $3,707.70. Review Office outlined the opinion that the worker was well aware of her requirements to report income to the WCB. It noted that the overpayment of benefits occurred prior to February 9, 2007 and that any ongoing disability after February 9, 2007 accepted by CPP would have no relationship to the compensable injury. Review Office felt there was insufficient information provided to conclude that a reasonable recovery plan for the overpayment would create a financial hardship on the worker. On September 8, 2009, the worker appealed Review Office’s decision to the Appeal Commission and a hearing was arranged.
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(2) of the Act, a worker who is injured in an accident (as defined under the Act) is entitled to wage loss benefits for the loss of earning capacity resulting from the accident. 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 ends, or the worker attains the age of 65 years. Subsection 27(1) provides that medical aid will be paid by the WCB for so long as is necessary to cure and provide relief from the injury.
WCB Board Policy 35.40.50 (the “Overpayments Policy”) deals with recovery of overpayments of benefits. The Overpayments Policy sets out the principles that the WCB Board of Directors has established to guide the WCB in its recovery of overpayments to the claimants. The principles attempt to strike a fair balance between the WCB’s fiscal responsibilities and the interests of injured workers. Part 4 of the Overpayment Policy provides:
Despite the provisions in Part 3, overpayments will be pursued for recovery where the following circumstances apply:
(i) there was fraud, deliberate misrepresentation or withholding of key information affecting benefits entitlement; or
(ii) the overpayment represents a duplication of benefits paid from another source for the same injury, for example Long Term Disability or CPP Disability benefits.
Analysis:
1. Whether or not the worker is entitled to benefits beyond February 9, 2007.
The first issue before the panel concerns the worker’s entitlement to WCB benefits beyond February 9, 2007. In order for the worker’s appeal to be successful, we must find that at that time, the worker continued to suffer a loss of earning capacity or require medical aid as a result of her compensable injury. On a balance of probabilities, we are not able to make that finding.
The challenge the panel faced with this case was the lack of a confirmed compensable diagnosis to explain the worker’s ongoing disability. At the hearing, the worker provided the panel with detailed information regarding the day of the accident and the manner in which she fell and injured herself. She caught her left foot on an improperly placed pallet and she pitched forward, landing equally on her right hip and right wrist. When she fell, she jarred both her wrist and hip, and her head also fell forward and hit her shoulder (but did not come in contact with the concrete floor). It was clear from her description that she suffered a significant fall. The problem, however, is that it is now approximately four and a half years after the incident, and although the worker still complains of pain, the medical evidence does not, on a balance of probabilities, point to a diagnosis resulting from the accident.
In making her submission, the worker relied on the opinion of the treating neurologist who stated in April 2006, and reconfirmed in May 2007, that the worker has a complex regional pain syndrome secondary to her work injury. Unfortunately, however, the neurologist did not see the surveillance footage, and he was therefore unable to provide comment on whether or not this diagnosis was sustainable in view of the worker’s daily activities as recorded on surveillance.
The worker’s treating physician was also supportive of the diagnosis of complex regional pain syndrome. He indicated, however, in his letter of July 20, 2007, that his support of this diagnosis was based largely on the neurological opinion (and as noted earlier, the neurologist did not review all available information before forming his opinion). The treating physician also stated, in his letter of August 21, 2008, that: “There is no objective test that can prove the diagnosis of Complex Regional Pain syndrome. It is a clinical diagnosis that is made by taking a careful history and physical examination of the patient. The diagnosis is based on the clinical judgment of the Physician.” Taking those comments into consideration, the panel has even more concerns about relying upon the neurologist’s clinical judgment when it is clear that he did not have all of the pertinent facts.
A number of WCB medical advisors examined the worker with the complex regional pain syndrome diagnosis in mind, but they were unable to conclude that this diagnosis could be supported. In October, 2006, the WCB medical advisor felt that the worker’s complaints of pain and loss of function seemed out of proportion to the injury that occurred, but acknowledged that it was possible that the worker had some type of pain syndrome. She felt that further investigation was required, and referred the worker to the PMU.
The PMU psychologist and medical practitioner felt that based on the worker’s report, she may meet the diagnostic criteria for Adjustment Disorder with Depressed Mood or for Pain Disorder Associated with Psychological Factors with an “as yet undiagnosed” medical condition. These diagnoses, however, were not supported by the observed level and ability to function as seen on the video surveillance, and it was therefore their opinion that the worker did not meet the criteria for a Chronic Pain Syndrome, as per the WCB Manitoba criteria. It was felt that the only limitations on the worker’s functioning were those which she, of her own volition, placed on herself.
Subsequent to the PMU opinion, the WCB arranged for the worker to be examined by the WCB physical medicine consultant. The consultant was unable to identify objective confirmation of a definite physical diagnosis. He felt that the initially presented injury mechanism would be consistent with a possible wrist strain with potential soft tissue injury strain to the shoulder. Any symptomatology and irritative effects from such an injury would have resolved long ago. Nevertheless, he recommended that further investigations be conducted to determine whether there were other conditions which may be contributing to pain enhancement. An MRI of the cervical spine, brachial plexus and wrist was conducted.
The only abnormal result from the MRI was a tear of the ulnar attachment of the TFCC in the wrist. The physical medicine consultant concluded that based on the activity seen in surveillance, there was no evidence of any physical impairment resulting from the ulnar tear.
At the hearing, when asked about the symptoms in her wrist, the worker indicated that it was not a constant condition, and the pain would generally be dependent upon what she had been doing with her arm. She also described an occasional burning feeling in her hand which would be accompanied by a coldness to the touch. This would only affect her about 3-4 times per month and she did not know what would trigger it. When asked about her pain overall, the worker indicated that a majority of her current symptomatology stemmed from the brachial plexus area of her shoulder. She also stated that her greatest relief since the accident was when she was getting treatment in that area from her physiotherapist in May to July, 2006. The panel notes, however, that diagnostic tests identified no physical abnormalities in that area. The nerve conduction studies performed March 2006 ruled out the possibility of a brachial plexus lesion. The MRI of November 2007 indicated normal results.
We have considered the worker’s activities recorded on video surveillance. The manner in which the worker is seen to be functioning and using her right arm is undeniably better than one would expect, given her report of symptoms to the WCB and other medical professionals. At the hearing, the worker did not deny that on some of the dates, there is an apparent lack of pain behaviour displayed in the surveillance footage. Her explanation for this was twofold.
Firstly, the worker explained that just because she does not appear to be in pain does not mean that she was not in pain. She would always try to push through the pain, and some days she was capable of doing things. There were, however, many days where she could not push through the pain, and the worker noted various times on the DVDs where she does appear to be in pain. She noted a day in October 2006 when she was walking in and out of a restaurant where she was clearly moving slowly and when she went to reach for the car door, she used her left hand.
Secondly, the worker noted that the footage from June 2006 showed her the most active, but that was also a time when she was receiving physiotherapy treatment and taking medications which were effective in treating her pain. She was being told by the WCB and her physiotherapist to try to use her arm more often, and that was exactly what she was doing.
The letter from the treating physician dated July 20, 2007 also noted that the surveillance DVDs may be unrepresentative of her true condition and may just reflect the worker on “good days.”
The panel is of the opinion that although the medications and success with physiotherapy may provide an explanation for the pain-free activity observed in June 2006 and the slower movement in October, 2006, the explanation is not complete. There remain significant discrepancies between the worker’s presentation to medical professionals and her conduct on surveillance video in March 2006, May 2006 and January 2007 which cannot be fully explained by the reasons provided by the worker. For example, on May 24, 2006, the worker’s initial physiotherapist reported that he was unable to provide treatment as he could not even touch the worker without her becoming hysterical. There was also an earlier occasion where the worker was at the clinic curled up in a ball and weeping due to the pain. This is stark contrast to the surveillance footage from May 29 and 30, 2006 which showed the worker running errands and moving with apparent ease. This was during a period which pre-dated the successful therapy the worker received from a different physiotherapist. It is difficult to accept that the worker was pushing through the pain when observed on those occasions, when the pain being reported to her physiotherapist during that same time frame was so extreme.
Similarly, the surveillance footage in January, 2007 showed the worker using her right hand with ease to unlock the car door and drive the vehicle. At that point in time, the worker was not participating in any physiotherapy, nor was she on any pain medications other than Advil and extra strength Tylenol, primarily for headaches.
While the panel acknowledges that there are a few occasions where the worker’s actions suggest some tenderness on the right side, we do not find support for the position that the worker had a chronic regional pain syndrome which disabled her from working after February 9, 2007.
Overall, given the lack of objective physical findings, the lack of comment by the neurologist on the surveillance video, and the incomplete explanation for the activities recorded on video surveillance, the panel is unable, on a balance of probabilities, to establish that the worker is suffering from a compensable medical condition for which benefits are payable. As a result, we must conclude that the worker is not entitled to benefits beyond February 9, 2007. The appeal on this issue is dismissed.
2. Whether or not the overpayment of benefits of $3,707.70 should be repaid.
The Appeal Commission and its panels are bound by the policies of the Board of Directors. Part 4 of the Overpayments Policy clearly states that where an overpayment represents a duplication of benefits paid from another source for the same injury, the overpayment will be pursued for recovery. As the overpayment to the worker resulted from her receipt of CPP Disability benefits while she was receiving wage loss benefits under this claim, we are unable to allow the worker’s appeal on this issue. It is therefore our finding that the worker is required to repay the overpayment.
Panel Members
L. Choy, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
L. Choy - Presiding Officer
Signed at Winnipeg this 9th day of June, 2010