Decision #62/11 - Type: Workers Compensation
Preamble
The worker injured her low back in a work related accident. Her claim for compensation was accepted and benefits were paid accordingly. Based on surveillance video evidence, it was determined by the Workers Compensation Board ("WCB") that the worker misrepresented her condition and that she was fit to return to her regular duties by May 14, 2010. The decision was upheld by Review Office on October 14, 2010. The worker disagreed and an appeal was filed by her union representative. A hearing was held on February 7, 2011 to consider the matter.Issue
Whether or not the worker is entitled to wage loss benefits beyond May 14, 2010.Decision
That the worker is entitled to wage loss benefits beyond May 14, 2010.Decision: Unanimous
Background
On April 26, 2005, the worker suffered an injury to her low back when hauling food carts during the course of her employment as a guard/cook. The worker was diagnosed with an L5-S1 disc herniation and a discectomy was carried out on April 11, 2006. As the back symptoms did not improve, the worker underwent further surgery on March 9, 2009. The postoperative diagnosis was "L5-S1 recurrent herniated nucleus pulposus/spinal stenosis".
In a follow up report dated July 23, 2009, the treating surgeon reported that the worker had previous symptoms of left leg radiculopathy in the L5 distribution and that this had improved somewhat and her leg weakness was also improving.
In a follow-up report dated November 13, 2009, the treating surgeon reported that the worker "…still suffers from quite significant left radicular dysesthesias in the absence of any obvious pain generator as the x-rays taken today demonstrate intact hardware in AP and lateral planes in the absence of any bony or soft tissue abnormalities…I feel that it is likely that she will experience some more improvement in the upcoming months and I would see her again in approximately six months to assess her clinically and radiographically."
A WCB orthopaedic consultant saw the worker for an assessment on December 22, 2009. The worker described pain in the low back with radiation of pain down the back and lateral aspect of the left lower limb accompanied by loss of sensation in the left lower limb. The severity of pain was characterized as 5/10. Following the examination, the consultant outlined the following work restrictions in relation to the worker's compensable injury:
- Avoid lifting and carrying more than 10 pounds;
- Avoid impact upon the lumbar spine; and
- Avoid repetitive twisting and bending of the lumbar spine except within the context of a graduated exercise program.
Primary adjudication advised the employer of the worker's restrictions as described above. In e-mail correspondence dated January 20, 2010, the employer indicated that the worker's restrictions could be accommodated. The employer noted while there was some packages, material and equipment in the kitchen that were heavier than 10 pounds, there was no reason the worker would have to lift them directly nor would she have to bend or twist as help would be available. There would be no reason for jumping or jarring in the day to day work.
On February 22, 2010, the WCB case manager discussed the employer's job offer with the worker. The worker felt that she could not perform the job duties because of the following factors:
- she could not stand longer than a few hours before she had to lie down and rest for about an hour.
- she was up three to four times a night due to pain.
- she could not tolerate driving beyond one half hour.
The case manager advised the worker that she would facilitate a structured exercise program to improve her function and tolerances to the degree that she could return to work.
The WCB arranged for the worker to attend a reconditioning program.
On April 12, 2010, the worker advised the case manager that she felt fatigued after her workouts and could easily fall asleep due to her fatigue. The worker noted that her chronic fatigue influenced her abilities.
On April 20, 2010, the worker told her case manager she went to the hospital because of back spasms which she related to the reconditioning program. On April 22, 2010, the worker advised that her doctor was not in favor of her attending the reconditioning program and recommended that she stay off the program for a week. The worker said she was on additional pain medication.
On May 19, 2010, lumbosacral spine x-rays were taken. The report stated that the orthopaedic hardware was unchanged in position and alignment when compared with the previous study. No complication involving the hardware was identified. Note was made of severe disc space narrowing at L5-S1 and this was unaltered from the prior study. All remaining disc space heights and all vertebral body heights were well maintained. No other significant bony, disc space, articular surface or soft tissue abnormalities were identified.
In a May 21, 2010 consultation report, the treating surgeon stated that he agreed with the medical information contained in the WCB orthopaedic consultant's letter of January 6, 2010. He further stated that the worker was adamant that her current symptoms would stop her from performing her previous job and he did not see any options at the current time to diminish her level of disability as she had exhausted all reasonable avenues. It was his impression that the worker would most likely have to assume another position that was less physically demanding.
In a doctor's progress report dated May 24, 2010, it was reported that the worker's lateral flexion was down by 50% and flexion was at 60 degrees. Extension was normal and rotation was reduced. "Can't increase to 4X'/week because of pain & exhaustion. Pt. reluctant to increase work load for the time being."
In the reconditioning discharge report of June 1, 2010, it was indicated that the worker's last day of attendance was May 21, 2010. Subjectively, the worker reported improved strength, mobility and endurance. She reported "inflammation" of her torso musculature including an episode of "spasms" after increasing her frequency of attendance to five days per week. The worker generally had good effort with her rehabilitation exercises and was self-limited for certain exercises such as dead lift pattern, over fears regarding the healing status of her low back procedure. Based on the worker's performance during the reconditioning program, it was felt that she had the ability to lift and carry loads between light and medium in terms of physical demands.
When speaking with her case manager on June 8, 2010, the worker indicated that she currently had issues with her hips, muscle strength, left side nerve damage and its limit on her, her hip buckles sometimes and her hip flexors seize up.
A surveillance of the worker's activities took place on occasion between April 29 and May 21, 2010. The surveillance tape was reviewed by a WCB medical advisor on June 8, 2010. In the medical advisor's opinion, the worker demonstrated the ability to perform daily activities unrestricted by pain or impaired range of motion. The worker performed repetitive and sustained bending of the spine, squatting, kneeling, walking, climbing stairs and walking on an incline. These were not activities that someone with significant disabling back pain would typically be able to do. The medical advisor concluded that based on these observations, the worker was not totally disabled. It was felt that the worker's job duties were no more physical than what she was observed doing over multiple days of surveillance. Further, the medical advisor stated that the worker was fit to return to her pre-accident duties and should limit repetitive heavy lifting over 50 pounds because of the surgical procedures she underwent to prevent future problems.
On June 15, 2010, the worker was advised that based on a review of the information to date, the inconsistencies in comparing the reported physical limitations, medical information and the surveillance video, the WCB case manager was no longer able to establish an ongoing relationship between the worker's current reported limitations to the workplace injury. The worker was advised in the opinion of the WCB, she could have returned to her regular work duties effective May 14, 2010 and that wage loss benefits were no longer authorized beyond this date. On July 28, 2010, the worker's union representative appealed the case manager's decision and the file was forwarded to Review Office for consideration.
In a report dated June 22, 2010, the treating surgeon noted that the worker was last assessed at the clinic on May 19, 2010. He noted that despite having a positive post-op response, the worker was left with persistent disabling radiculopathy. He said it was apparent that the worker would benefit from a less physically demanding job.
On October 14, 2010, Review Office determined that there was no entitlement to wage loss benefits beyond May 14, 2010. Review Office agreed with the WCB medical advisor's opinion of June 8, 2010 and determined that the worker was not entitled to wage loss benefits beyond May 14, 2010 as the evidence supported the position that the worker misrepresented her capabilities to her medical professionals as well as her WCB case manager. On October 26, 2010, the worker's union representative appealed Review Office's decision to the Appeal Commission and a hearing was arranged.
Following the hearing, the appeal panel requested information from a chiropractor who had been treating the worker for her back condition. The report from the chiropractor was later received and was forwarded to the interested parties for comment. On April 20, 2011, the panel met further to discuss the case and made its decision.
Reasons
Applicable Legislation
The worker is employed by a federal government department and her claim is therefore adjudicated under the Government Employees Compensation Act ("the GECA") which provides that an employee who suffers a personal injury by an accident arising out of and in the course of employment is entitled to compensation. The GECA defines accident as including “a willful and an intentional act, not being the act of the employee, and a fortuitous event occasioned by a physical or natural cause.”
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 issue to be determined by the panel is whether the worker is entitled to wage loss benefits beyond May 14, 2010.
Worker's Position
The worker was represented by a union representative who provided a written copy of his submission. The worker answered questions posed by the panel.
The worker's representative identified two primary issues in this case. The first was the conclusion that the worker's entitlement to benefits should cease prior to her completion of rehabilitation and successful return to work. The second issue was the arbitrary establishment of an effective date for ceasing benefits. He noted that the arbitrary effective date was based on an assumption that the worker claimed benefits when it was not appropriate.
The worker's representative noted that the decision process in this case centered on surveillance evidence. He noted that the period of surveillance was short given the length of time involved in the claim.
The worker's representative described the work environment where the worker is employed. He noted that the job poses risks for a healthy capable person. He submitted that it is not rational to expect an individual, after an extended absence, to enter this work environment in a weakened and vulnerable state.
With respect to the application of WCB Policy 44.30.60 which deals with misrepresentation, he submitted that this policy is not applicable in this case. He stated that at no time did the worker misrepresent her abilities. He stated that the apparent difference in judgment by those in authority is completely different from the intentional misrepresentation of her abilities.
The worker advised the panel that she never refused to return to work. She advised that her family doctor supported a return to work to a clerical position but did not support a return to her position in the food service department. She advised that she received active release therapy from a chiropractor from July to September 2010.
Regarding a return to pre-injury duties, the worker advised that she was concerned about the lifting involved with her job. She said she would have to lift loads of 70 pounds plus.
The worker advised that she ultimately returned to work on a modified work week in a clerical department. At the time of the hearing she was working four days a week.
In answer to questions, the worker explained that she developed a drop foot syndrome. She advised that the last time she fell due to this condition was in March 2010.
Employer's Position
The employer did not participate in the hearing.
Analysis
The issue before the panel was whether the worker is entitled to wage loss benefits beyond May 14, 2010. For the appeal to be successful the panel must find that the worker suffered a loss of earning capacity caused by the compensable condition which prevented the worker from participating in modified duties employment. The panel found that the worker did suffer a loss of earning capacity and is entitled to wage loss benefits beyond May 14, 2010.
The panel is satisfied, based on the medical information on file, a review of the surveillance video, and the details of the worker's pre-accident duties, that she was not fit to return to these duties on May 14, 2010. However, the panel finds that the worker was fit to commence a graduated return to work commencing June 1, 2010. Accordingly the worker is to be paid benefits on the basis that she had commenced participation in a graduated return to work (GRTW) on June 1, 2010, and continuing for an appropriate period of time.
The panel notes that in a memo dated February 22, 2010, the WCB case manager wrote "Advised that clearly a RTW would not be successful given her presented level of function. I explained that deconditioning seems to be a considerable factor and I'll d/w h/c [discuss with WCB healthcare] as to a facility I can refer her to focus on a structured program with a goal of improving her function/tolerances to the degree she'll be able to RTW in a GRTW."
The panel agrees with the approach proposed by the WCB claims manager and notes that the worker completed this program on May 21, 2010. The panel believes this was the appropriate approach to adjudicating this case and that a GRTW should have been initiated after this date.
In reaching this conclusion, the panel places significant weight on the Reconditioning Program Discharge Report prepared by the treating physiotherapist dated June 1, 2010. This report, which post dates the termination of benefits, states "Based on her performance during her reconditioning program, she has demonstrated the ability to lift and carry loads between Light and Medium in terms of physical demands." In the panel's view, the pre-accident job duties were readily modifiable to meet these physical demands, and accordingly, she would have been able to return to work to the modified duties after an appropriate graduated return to work and would not have suffered a further loss of earning capacity.
The panel notes that the worker was treated by a chiropractor from June 2010 to October 2010. In a letter dated March 20, 2011, the chiropractor reports that "In my opinion, there is probably an impairment to this claimant's function related to her lower back, and it is likely to be permanent."
The panel also notes that the worker's treating neurosurgeon reported on June 22, 2010, that the worker is left with a persistent disabling radiculopathy and that she would benefit from a less physically demanding job. The panel does not find this report to be inconsistent with the physiotherapist's findings.
Finally the WCB medical officer in a memo dated June 8, 2010, comments that due to the surgical procedures the worker has undergone, she should limit repetitive heavy lifting to prevent future problems. The panel finds this comment is not inconsistent with the opinion of the physiotherapist.
The worker's appeal is allowed, in part.Panel Members
A. Scramstad, Presiding OfficerA. Finkel, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
Signed at Winnipeg this 26th day of May, 2011