Decision #13/11 - Type: Workers Compensation

Preamble

The worker filed a claim with the Workers Compensation Board ("WCB") for a work related incident that occurred on October 16, 2008. His claim for compensation was accepted and benefits were paid to the worker. Effective July 28, 2009, the WCB ended responsibility for the claim based on surveillance videotape evidence as it determined that the worker misrepresented his condition and that he was fit to return to his regular pre-accident duties. This decision was upheld by Review Office on February 25, 2010. The worker disagreed with the decision and an appeal was filed with the Appeal Commission through the Worker Advisor Office. A hearing was held on December 14, 2010 to consider the matter.

Issue

Whether or not the worker is entitled to wage loss benefits beyond July 28, 2009.

Decision

That the worker is entitled to wage loss benefits beyond July 28, 2009.

Decision: Unanimous

Background

On October 16, 2008, the worker was standing in a boom lift bucket when his machine was hit by a bobcat. The worker reported injuries to his neck, shoulders and back.

Early medical reports on file from the treating physician diagnosed the worker with a severe whiplash injury and the worker was referred to physiotherapy treatment. A report from the treating physiotherapist dated October 24, 2008 noted that the worker complained of excruciating, burning "electric shock" like neck pain with intermittent left face, left leg and left arm numbness. The worker experienced headaches with tight pain down his entire spine.

On October 20, 2008, the worker had a CT scan performed which revealed the possibility of an undisplaced fracture involving the posterior spinous process of C7. An MRI assessment was arranged to confirm the diagnosis.

A report from a neurologist received on December 1, 2008 outlined his examination findings of the worker. He reported that the worker had a bony injury to his neck which was producing reflex neck muscle pain and spasm. It was felt that the worker should be treated symptomatically and with physical therapy. The worker was encouraged to remain as active as possible and to do as much activity as he was capable of doing. He noted that the worker's prominent complaints were of numbness on his left side that raised the possibility of arterial dissection as part of the neck trauma described. He said this was possible based on the worker's history and there was nothing about his physical examination that proved or disproved it. Overall, the neurologist indicated that he saw no reason why the worker could not slowly and progressively improve but there was no way of predicting whether it would take another few weeks or a few months.

MRI imaging dated February 13, 2009 revealed a subacute or remote C7 spinous process fracture. There were also degenerative changes of the cervical spine at C5-6 and C6-7.

The worker's file was reviewed by a WCB medical advisor on February 25, 2009. In his opinion, the worker's injury was stable with no need for specific intervention. He only required time to heal. It was felt that the worker could return to modified duties with certain restrictions. The worker returned to modified work on March 30, 2009.

On May 13, 2009, a doctor's progress report indicated that the worker was kneeling on the floor painting when he reached and pulled something toward him which caused him to feel sudden pain. The diagnosis was an acute neck muscle strain and the worker was advised to stay off work from May 13 to May 27, 2009. The worker attended physiotherapy and on June 2, 2009, it was reported that the worker felt burning/stiffness in his neck into his back and found it hard to shoulder check. The right shoulder flexion aggravated the neck. The worker reported retro-orbital headaches. A work hardening program was suggested.

A doctor's progress report dated June 10, 2009 noted that during physiotherapy, the worker was doing a stretch where he was lying prone and lifting his head so as to extend his neck when he felt pulling in his neck and tingling down his right arm. There was slightly decreased sensation to the right fifth finger. Neck range of motion and rotation was limited to 45 degrees. Medication was prescribed.

On June 23, 2009, the case manager spoke with the treating physiotherapist. The worker had reported that his legs gave out on him the other day and he fell down a flight of stairs over the weekend. The physiotherapist noted that the worker was reporting that his legs went numb even when leaning back in his recliner. It was felt that this was a sign of cord compression and he asked that a neurologist review the worker's case. The physiotherapist said he realized that the MRI and testing had not shown evidence of cord compression but nonetheless what the worker was telling him did not match with the test findings.

On June 24, 2009, the treating physician noted a new diagnosis, paraesthesia to the left side of body NYD (not yet diagnosed). A re-assessment by the treating neurologist was suggested.

On June 30, 2009, the treating physician noted that the worker had shooting pain into his left arm, tingling in his toes and complaints of neck stiffness.

On July 16, 2009, the treating physician reported that the worker complained of pain with prolonged sitting/driving.

On July 24, 2009, the worker spoke with a case management representative. He stated that he was starting to get stressed about not being able to return to work yet and he was trying to manage on his reduced wages. He stated that he was still having a lot of trouble with his neck and when he massaged an area in his neck he got a numb feeling through his whole body.

When speaking with a case manager on July 29, 2009, the worker reported symptoms of ongoing pain in his upper back/neck with frequent tingling /numbness down both arms and sometimes into his feet. He said he wanted to return to work but could not because of his symptoms. He had burning neck pain with prolonged driving and it was difficult to shoulder check due to pain and limited range of motion. The worker spoke about a traumatic incident and said he was having trouble sleeping and became distressed when recalling the events.

Cervical spine x-rays dated August 9, 2009 showed mild to moderate narrowing of the C5-6 disc space. No other bone, joint, disc space or soft tissue abnormality was observed. The radiologist stated that he did not see any evidence of a fracture or dislocation.

On August 14, 2009, the treating physician reported that the worker complained of increased neck pain and was not sleeping due to recent significant trauma he witnessed. The worker was instructed to continue with medication.

On August 20, 2009, the WCB's healthcare branch wrote to the worker advising him to report to the WCB for an examination by a WCB medical consultant on August 26, 2009. The worker did not attend the appointment.

In claim notes dated August 26, 2009, the WCB medical consultant noted the opinion expressed by the treating neurologist that the possible vertebral injury could take months to resolve. There were no restrictions outlined and the worker was advised to be as active as possible. He noted that the fracture was not evident on CT and x-rays both acutely and 10 months later. The worker had been off work and was not receiving treatment because of concerns about ongoing paraesthesia.

The medical consultant indicated that surveillance video taken at the end of July 2009 demonstrated pain-free movements getting in and out of a truck and full rotational movements of the cervical spine without evident discomfort. This would be compatible with the opinion of the treating neurologist that the neck pain would improve over a few months. It was noted that subsequent to the surveillance, the worker had a non-work related injury of significant force to his upper body. He stated that the paraesthesia which was ongoing was not related to the compensable injury as the MRI ruled out a spinal cord injury. There was no evidence of restricted movement or discomfort on video surveillance supporting a resolution of the compensable injury prior to the non-work-related injury.

On August 26, 2009, the worker was advised by his case manager that his wage loss benefits had been terminated retroactively to July 29, 2009 and that he was overpaid benefits. The case manager indicated that based on a review of the medical information on the claim and the video surveillance (taken July 29 and 30, 2009) which showed fluid full pain free movement of the neck and no signs of paraesthesia related to the compensable injury and the MRI which ruled out a spinal cord injury, it was the WCB's position that the worker was fit to resume regular duties by no later than July 29, 2009.

On November 24, 2009, a worker advisor appealed the case manager's decision of August 26, 2009 that the worker's wage loss benefits be terminated retroactively to July 29, 2009 resulting in the overpayment. It was felt that based on WCB Policy 44.30.60 "Notice of Change in Benefits or Services" the worker should have received benefits to September 2, 2009.

In a letter dated January 8, 2010, Review Office outlined the position that the case manager correctly used the initial date of surveillance as the retroactive termination date of WCB responsibility as primary adjudication deemed the worker to have misrepresented his neck symptoms and he did not have a compensable loss of earning capacity beyond July 28, 2009.

In a further submission to Review Office dated January 14, 2010, the worker advisor outlined the position that the worker's activities while under surveillance did not contradict his statements to the WCB made on July 29, 2009 or to his physician (progress report dated July 16, 2009) and they disputed the assertion that the worker misrepresented his physical capabilities. She also felt that the surveillance video evidence was not indicative of the physical demands of the worker's pre-accident employment and did not support the decision that the worker was fit to resume his regular duties no later than July 29, 2009.

On February 25, 2010, Review Office determined that the worker was not entitled to benefits beyond July 28, 2009 as it was felt that misrepresentation was evident in the worker's presentation to the WCB and the medical community heading into the surveillance at the end of July 2009. In making this decision, Review Office referred to the following file evidence:

  • the physiotherapy report of June 2, 2009 and the physiotherapist's conversation with the case manager on June 23, 2009;
  • the treating physician's reports of June 10, 2009, June 24, 2009 and June 30, 2009;
  • the discussion the worker had with a case management representative on July 24, 2009 and with the case manager on July 29, 2009; and
  • the opinion made by the WCB medical consultant on August 26, 2009.

Review Office was of the opinion that the worker's reporting of neck pain, stiffness and lack of range of motion was contradicting to the worker's presentation in the video surveillance evidence. Review Office indicated the worker was functioning in a normal manner with no pain behavior on the video surveillance and this was not consistent with his complaints to the WCB and the medical community. On April 7, 2010, the worker advisor appealed Review Office's decision to the Appeal Commission and an oral 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.

Worker’s submission:

The worker was represented by a worker advisor at the hearing. The worker's position was that the WCB's contention that the worker misrepresented information to his treatment providers and to the WCB was unsupported by the evidence. It was submitted that the surveillance footage provided no evidence that the worker would be able to handle the demands of his pre-accident employment when the WCB ended benefits. The worker did nothing outside of what he had already advised the WCB he was capable of doing.

The worker advisor cited WCB Policy 44.30.60 Notice of Change in Benefits or Services (the "Policy") and argued that under the terms of the Policy, the worker was entitled to advance notice of the change in his benefit entitlement. It was further submitted that section 5 of the Policy which allowed retroactive changes in benefits due to misrepresentation by the worker was not applicable in this case and ought not to have been applied.

Analysis:

To decide the worker’s appeal, the panel must determine whether or not the worker continued to suffer a loss of earning capacity as a result of his compensable injury after July 28, 2009. After considering all of the evidence, the panel finds there is insufficient evidence to allow us to conclude on a balance of probabilities that as of July 28, 2009, the worker was fit to resume his regular employment duties, and therefore the worker's entitlement to WCB benefits should extend past that date.

The WCB's decision to end the worker's entitlement to benefits was significantly influenced by video surveillance captured on July 29 and 30, 2009 which was characterized by the case manager as showing "fluid full pain free movement of the neck and no signs of parasthesias related to the compensable injury."

We have considered the worker’s activities recorded on video surveillance. In the surveillance footage, the worker is seen walking from a vehicle to an office building. He is also seen on a residential street assisting a toddler out of a vehicle, and then lifting an infant carrier. In neither circumstance is the worker driving the vehicle. The total time that the worker is directly observed in the video is approximately two minutes. When questioned about the videotaped activities at the hearing, the worker indicated that he did not feel that he was doing anything wrong. His restrictions allowed him to lift things under 20 pounds and neither of the children he lifted were over 20 pounds. The WCB noted that he moved his neck, but the worker noted that all movement of his neck was to the left side only. He had told the WCB and his doctors that he could move to the left with no problems, but that it was when he tried to turn to the right that he experienced limitation and pain. The worker stated that he was an active person and was not the type to just stay in the home. Going out to the store or to visit family was not something out of the ordinary. He noted that he was not working or doing anything that he was not supposed to do.

After reviewing the surveillance video, the panel is of the opinion that there is not enough footage to allow us to draw any real conclusions about the worker's medical status or functional capacity as at those dates. The panel agrees that the worker's movements seemed relaxed and fluid, but that does not necessarily negate his complaints of pain, tingling and numbness which he reported experiencing frequently in his neck, back and down his limbs. We certainly do not find that the variance between the two minutes of surveillance footage and his reports of symptoms amounts to a misrepresentation. It would take more than the brief period of activity demonstrated in the surveillance to satisfy the panel that a misrepresentation had occurred.

Overall, while the video surveillance raises some legitimate 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.

At the hearing, evidence about ongoing medical investigations into the worker's condition was introduced for the first time. In August 2010, the worker attempted a return to work to the construction industry in a position which involved slightly lighter work than he was performing prior to his workplace accident. The worker's evidence was that he was only able to work for about three weeks, before he had to discontinue due to pain in his neck, right shoulder, arms and legs. He has since been referred to a physical medicine specialist and an MRI is scheduled for early 2011.

The worker advisor submitted that the worker was entitled to benefits to at least September 2, 2009 (the date which would have given the worker seven days notice of a change in benefits or services, as per the Policy), and invited the panel to consider further adjudication of the worker's claim beyond September 2, 2009.

Because of the retroactive discontinuation of benefits based on misrepresentation, the worker's medical condition since the end of July 2009 has not been investigated nor adjudicated by the WCB. The panel therefore refers this matter back to primary adjudication for full investigation and determination as to the worker's ongoing entitlement to benefits beyond July 28, 2009.

The worker's appeal is allowed.

Panel Members

L. Choy, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 9th day of February, 2011

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