Decision #72/10 - Type: Workers Compensation
Preamble
This appeal deals with a decision made by Review Office of the Workers Compensation Board (“WCB”) which determined that the worker was entitled to wage loss benefits to May 29, 2009. The employer disagreed with the decision on the grounds that the worker had a history of back problems related to motor cross racing. A file review was held on June 10, 2010 to consider the matter.Issue
Whether or not the worker is entitled to wage loss benefits to May 29, 2009.Decision
That the worker is entitled to wage loss benefits to May 29, 2009.Decision: Unanimous
Background
On July 23, 2008, the worker was operating a scraper when he was unexpectedly struck from behind by a bull dozer that was pushing him up a hill. The worker reported that he jarred his back and his hands and face went numb as a result. The worker’s accident description was confirmed by the employer on July 28, 2008. The worker’s claim for compensation was accepted based on the diagnosis of a cervical and lumbar strain and benefits were paid accordingly.
Medical reports showed that the worker attended physiotherapy on July 31, 2008 with subjective complaints of low back, buttock and posterior thigh pain on the left side, numbness in the left palm into the fourth and fifth digits and pain in the left shoulder blade and neck. It was reported that the worker required four to six weeks of physiotherapy treatment.
On August 18, 2008, the worker advised the WCB that he was discontinuing physiotherapy at the advice of his physician as it was causing him too much pain. On August 27, 2008, the worker advised that he was seeing a specialist on August 29, 2008 due to pre-existing low back problems.
In a report to the family physician dated August 29, 2008, a physical medicine and rehabilitation specialist reported that a CT scan of the lumbar spine and pelvis showed a significant amount of osteoarthritis in the articulation between the transverse process of L5 and the left sacral region. The specialist noted that the worker was struck from behind by a bull dozer on July 23, 2008. He noted that the worker had pain in the buttock regions bilaterally and also more central in his back but the left sided pain to the left of the spine at the lumbosacral region was by far the most troublesome. It was suggested that the worker attend the pain clinic to have a guided injection into the articulation to see if the pain could be relieved.
In a physiotherapy progress report dated November 24, 2008, it was reported that the worker had no physiotherapy treatment between August to November, 2008, and was experiencing constant pain to the low back to mid thoracic region with some radicular pain to the left thigh.
On December 4, 2008, the worker advised his WCB case manager that he had more movement in his back and had no issues with bending over. He said his neck pain was 75 to 80 percent better and his back was about 60 percent better. He could walk and stand 15 to 20 minutes before he had to sit down.
On March 13, 2009, the worker was examined by a WCB medical advisor. In his report, the medical advisor stated, in part:
Today’s clinical examination demonstrated no evidence of cervical or lumbar radiculopathy. His symptoms are most consistent with non-radicular non-specific low back pain. Neurological examination was unremarkable today, and dural tension tests were negative in the standing, seated-distracted, supine and prone positions.
Based on his extended time away from work, today’s clinical findings including negative dural tension tests and the absence of any neurological problems, I recommended a work hardening program followed by a return to work to his regular work activities.
Arrangements were made for the worker to undergo a 6 to 8 week reconditioning program commencing in April 2009.
A surveillance of the worker’s activities took place on April 24 to 25, 2009.
The surveillance video was reviewed by the WCB medical advisor who examined the worker in March 2009. The medical advisor stated on May 4, 2009 that the worker’s presentation in the video was in stark contrast to the presentation at the call in examination and at the time of the assessment for the recent reconditioning program. He said there did not appear to be any obvious pain behavior and that the worker appeared to have made a full functional recovery.
On May 4, 2009, the worker was advised that the WCB was unable to accept further responsibility for his claim as it was felt that he had recovered from the effects of his July 23, 2008 workplace injury. This decision was based on the opinion expressed by the WCB medical advisor on May 4, 2009.
On December 11, 2009, a worker advisor wrote to the WCB case manager requesting reconsideration of the May 4 decision based on a report from the family physician dated November 20, 2009. The family physician outlined his opinion that the worker had not reached his full recovery when his benefits were ended and that further treatment was required to enable the worker to return to his full pre-accident duties.
On December 21, 2009, the report from the family physician was reviewed by the WCB medical advisor who examined the worker in March 2009. He stated that the report did not change his previous opinion outlined on file.
On December 18, 2009, the WCB case manager advised the worker that no change would be made to the decision of May 4, 2009. It was the case manager’s opinion that there was misrepresentation and that the file did not support ongoing disability. The worker could return to his pre-accident duties as a heavy equipment operator. On January 14, 2010, the worker advisor appealed this decision to Review Office.
In a decision dated March 4, 2010, Review Office determined that the worker had a loss of earning capacity until May 29, 2009 as a result of his compensable injuries. Review Office indicated that it considered the worker’s isolated activities captured on video surveillance and was of the opinion that they did not demonstrate that the worker’s loss of earning capacity had been resolved. Review Office indicated that although the videotape demonstrated the worker as having no pain behaviors and moving freely, it did not find this activity to be comparable to the worker's pre-accident job demands. On March 17, 2010, the worker’s employer appealed Review Office’s decision to the Appeal Commission and a file review 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.
Pursuant to subsection 37 of 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.
Employer’s submission:
The employer submitted an Appeal of Claims Decision form which requested that the wage loss benefits decision of March 4, 2010 be reviewed. The employer wrote: "[Worker] has a history of back problems related to his love of motocross racing. We sent him home a few times due to back problems after he was riding/racing his bike."
Analysis:
The issue before the panel is whether or not the worker is entitled to wage loss benefits to May 29, 2009. For the employer’s appeal to be successful, we must find on a balance of probabilities that at some point in time prior to May 29, 2009, the worker had no loss of earning capacity as a result of his compensable injury. On a balance of probabilities, we are unable to make that finding, and therefore the appeal must fail.
At the outset, the panel notes that although the Appeal of Claims Decision form filed by the employer asked for review of the Review Office decision dated March 4, 2010 which extended the worker’s entitlement to wage loss benefits from May 1, 2009 to May 29, 2009, the reasons given for the appeal appear to based on the fact that the worker had a pre-existing back condition which presumably affected the duration of the worker’s claim. The panel notes that on June 2, 2010, a decision was made by the WCB to grant 50% cost relief to the employer based on the worker’s pre-existing condition. Thus it would appear that there has been acknowledgment of the pre-existing condition in the adjudication of the claim, and the employer has received credit in that regard.
The panel nevertheless considered the issue of the worker’s earning capacity prior to May 29, 2009 and after a review of all the evidence, we find on a balance of probabilities that the worker did continue to suffer a loss of earning capacity prior to May 29, 2009. The panel concurs with the Review Office’s assessment of the surveillance video and we find that the isolated activities captured on video do not demonstrate that the worker’s loss of earning capacity has been resolved. The panel also notes that the type and duration of the activity the worker is seen to be doing on the surveillance footage is consistent with his physical status as reported by the reconditioning program physiotherapist as at May 1, 2009. It was evident that the worker was improving with the reconditioning program, but he was not reported by the physiotherapist to have recovered to his pre-accident level.
We therefore confirm the Review Office’s decision that the worker is entitled to wage loss benefits to May 29, 2009. The employer’s appeal is dismissed.
Panel Members
L. Choy, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
L. Choy - Presiding Officer
Signed at Winnipeg this 29th day of July, 2010