Decision #133/11 - Type: Workers Compensation
Preamble
This appeal deals with the worker's 1991 claim for a back injury that occurred during the course of his employment as a butcher. The worker is appealing decisions that were made by the Workers Compensation Board ("WCB") which determined that he was capable of working full time and was not entitled to further compensation benefits beyond July 13, 2010. The worker is also appealing the WCB's decision that he was capable of earning $269.88 per week. A hearing was held on August 9, 2011 to consider the matters.Issue
Whether or not the worker is capable of full-time work; and
Whether or not the worker's deemed post accident earning capacity should be $269.88 per week as of July 29, 2002; and
Whether or not the worker is entitled to temporary total disability benefits beyond July 13, 2010.
Decision
That the worker is capable of full-time work; and
That the worker's deemed post accident earning capacity should be $269.88 per week as of July 29, 2002; and
That the worker is not entitled to temporary total disability benefits beyond July 13, 2010.
Decision: Unanimous
Background
On February 8, 1991, the worker injured his back in a work related accident. His claim for compensation was accepted and benefits were paid accordingly. As the worker was unable to return to his pre-accident employment as a butcher due to the nature of his back injury, his case was referred to the WCB's vocational rehabilitation branch to develop an appropriate vocational rehabilitation goal. National Occupational Classification ("NOC") 9493 (Other Wood Product) - Assemblers and Inspectors was chosen for the worker and an Individual Written Rehabilitation Plan (IWRP) was established. At the completion of the IWRP, it was anticipated that the worker would be capable of earning $269.88 per week.
Subsequent file records showed that the worker was not successful in obtaining full time work. On July 17, 2002, the worker was advised that based on his IWRP, his deemed post accident earning capacity would be implemented as of July 29, 2002 in the amount of $269.88. The worker appealed the decision to Review Office on the basis that he was only capable of working two hours a day as he was unable to sit or stand for long periods of time due to back pain.
On October 25, 2002, Review Office determined that the worker was capable of full time work. In reaching the decision, Review Office placed weight on video surveillance of the worker that was done in late 2001. Review Office stated: "While recognizing that it only depicts parts of eight days of the claimant's life, it is considered that it is reasonably representative of the claimant's abilities. In one instance, the video shows the claimant, having worked the two hours he says he is limited to, continuing to actively partake in the activities of daily living. There is also evidence of him lifting considerably more than twenty pounds."
Review Office also confirmed that the worker's deemed post accident earning capacity should be $269.88. In reaching this decision, Review Office relied on a February 12, 2002 memorandum by a WCB employment specialist which outlined the opinion that the worker had the necessary transferable skills and aptitude for light assembly work in NOC 9493 based on the worker's performance at his work experience, feedback from supervisors, and an occupational therapy assessment.
The worker continued to receive partial wage loss benefits for several years. In early January 2009, a WCB case manager spoke with the worker in relation to a long term wage loss (LTWL) review. The worker indicated that he was not working and was not actively looking for work. With regard to medical treatment, the worker indicated that there were no changes or recent medical treatment to report and that he took over-the-counter pain medication when needed. On January 25, 2010, the case manager again spoke with the worker. The worker indicated that he was still not working and had not worked for the last four years. The worker noted that he had been looking for work but no one would hire him because of his back injury. The worker indicated that he took Tylenol #3 and occasional muscle relaxants for his back condition.
Video surveillance of the worker's daily activities was conducted between July 5, 2010 and August 6, 2010.
A WCB medical advisor reviewed the worker's file and video surveillance and on November 5, 2010, she noted to the file that in her opinion, there was no evidence that the worker required ongoing restrictions in relation to the workplace injury.
On November 8, 2010, the case manager advised the worker that based on the video surveillance findings, there was no evidence that he required ongoing restrictions in relation to his compensable injury and therefore his benefits would end on July 14, 2010. The case manager indicated that the worker was seen on the video as being active for many hours per day over multiple days over the span of a month. The footage showed the worker cutting wood and working on hardwood floor installation.
On November 16, 2010, the worker submitted an appeal to the WCB as he disagreed with the decisions made by the WCB. The worker noted that no one wanted to hire someone who had back problems due to a previous job. He noted that any application he filled out asked whether or not you had any health problems. The worker indicated that he was learning and trying out a floor job. It was not an everyday job, not even every week. It was only a few days here and there.
A WCB review officer spoke with the worker's spouse on November 22, 2010. The spouse advised that her husband had not worked since 2002 as no one would hire him as he was injured. She noted that her husband tried to help a friend do some flooring in the summer, and he was paid a "couple of bucks" but he was unable to work full time.
On January 21, 2011, Review Office determined that the worker was not entitled to wage loss benefits beyond July 13, 2010. Review Office indicated that it considered the evidence captured during the video surveillance taken in July and August 2010 and felt that the worker was not limited in his activities due to back pain and therefore the previously assigned permanent restrictions were no longer necessary. It was felt that the worker no longer had a loss of earning capacity in relation to his back injury beyond July 13, 2010.
A report from the worker's family physician dated March 15, 2011 was submitted to the WCB. The physician noted that the worker had chronic lower back pain from an injury in 1991 and was known to have multilevel degenerative disc disease. The physician noted: "Recently he told me that he was seen moving about a job site showing no evidence of pain at work, while purportedly carrying heavy items, standing for long periods, stooping, etc. He informs me that the items he was carrying were not as heavy as indicated by WCB." The physician summarized his report by stating that the worker had physical evidence of mechanical back problems as evidenced by restricted range of motion in his spine and there were no neurological deficits to suggest a need for surgery or further investigations.
Based on the worker's request, a hearing was held at the Appeal Commission on August 9, 2011 to consider the decisions by the WCB's Review Office dated October 25, 2002 and January 21, 2011.
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, in effect on the date of the workplace injury, a worker who is disabled in an accident (as defined under the Act) is entitled to compensation. Subsection 43(1) of the Act provides that the WCB will pay temporary total disability benefits during the continuance of the temporary total disability. 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.
Worker's Position:
The worker appeared on his own behalf at the hearing and was accompanied by his spouse. The worker questioned why he was cut off benefits. His pre-accident job was as a butcher on an assembly line which required him to stand all day. He performed this work for 21 years, until he slipped and fell on his back and injured it. After the accident, he tried to return to his work but his employer could see that he was in too much pain so they took him off work again. He was put into training for a light duty job, but he still could not do this work as he had to stand in one position all day.
The worker's evidence was that after he was deemed to be capable of earning $269.88 per week by the WCB in 2002, he looked for employment, but no one would hire him with a history of back problems. When he was seen on surveillance video, he was just trying out work as a hardwood floor installer. The contractor needed some help, and he was willing to give the worker a chance to try the work. The worker said that when he got a sore back, he was able to lay on the floor and stretch. He characterized the work as a light duty job and said that it did not require him to lift anything heavy. The worker maintained that his back pain still prevented him from earning income.
Analysis:
There are three issues before the panel. All three issues center around the worker's functional capabilities and the extent to which he continues to suffer disability related to his 1991 workplace injury.
In order for the worker’s appeal to be successful, we must find that as of July 13, 2010, he continued to suffer a loss of earning capacity as a result of his compensable injury. On a balance of probabilities, we are not able to make that finding.
The worker's compensable injury from 1991 was a back injury. Although the worker had pre-existing degenerative disc disease, the WCB accepted that the combination of his pre-existing condition and the work related disc herniation was the cause of his continuous low back pain. As a result, permanent work restrictions of avoidance of heavy or repetitive lifting and carrying, avoidance of twisting and bending and to alternate between sitting and standing were imposed. Throughout the 1990s and early 2000s, whenever the worker participated in a return to work plan, he reported an increase of back pain and an inability to carry on sustained activity for more than three hours per day. The worker claimed that this lack of endurance was what prevented him from returning to work.
The panel has reviewed the medical evidence on file as well as the surveillance footage from 2001 and 2010. We have also considered the worker's evidence given at the hearing. On a balance of probabilities, the panel is not convinced that the worker is incapable of performing work on a full time basis.
By report dated June 26, 2002, the worker's family physician provided the WCB with a comprehensive report as to the worker's status. At that time, although the worker continued to complain of back pain, his neurological exam was found to be normal and following the CT scan of May 7, 2002, a diagnosis of multilevel degenerative disc disease was made. It was noted that there were no disc protrusions seen at any level. This would suggest that by 2002, the effects of the compensable work related disc herniation were minimal. The panel therefore agrees with the WCB's determination that in 2002, the worker demonstrated a significant level of function and tolerance and that he was capable of full time work as an assembly worker with a deemed post accident earning capacity of $269.88 per week as of July 29, 2002.
There is little medical information on the file for the intervening years of 2002 to 2011. By report dated March 15, 2011, the family physician provided an update on the worker's condition. He stated that the worker had physical evidence of mechanical back problems as evidenced by the restricted range of motion in his spine. He had no neurological deficits to suggest the need for surgery or further investigations. The panel finds it notable that neurologically, the worker's examination was normal. The physician reported that the worker had learned to live with his pain and that he had not required analgesic prescriptions for some time. He felt that restrictions for work should continue, including the avoidance of heavy lifting, repetitive lifting, carrying, twisting, bending at the waist and that he should continue to change positions from sitting and standing or any other positions, as required to allow stretching and relief of pain.
The worker's evidence at the hearing was that if he stands for fifteen or twenty minutes, he will start to have numbness in his leg. He felt that: "I can't do anything." He indicated that his sitting tolerance was about one-half to one hour. He felt he could probably do a full day of work if he could change positions and be given an opportunity to lie down and stretch when necessary. With respect to lifting, he felt he could do an occasional lift of up to thirty pounds, but would not be able to do this for the whole day.
The panel has considered the worker’s activities recorded in 2010 on video surveillance. It would appear that the worker was capable of a very full and active day. The surveillance footage was taken over a number of consecutive days, and the worker demonstrated a regular pattern of being able to mobilize and conduct his affairs outside of the home. The panel was struck by the endurance demonstrated by the worker, both in terms of ease of movement in activities performed and in being away from the home for several hours at a time. He was very active and rarely showed any discomfort when moving about.
Overall, based on the lack of medical support for an ongoing disability and the endurance demonstrated by the worker in the surveillance video, the panel concludes that the worker is no longer disabled from his compensable injury. Accordingly, in addition to finding that he was capable of full time work and a post-accident earning capacity of $269.88 per week as of July 29, 2002, we also find that he is not entitled to temporary total disability benefits beyond July 13, 2010.
The worker's appeal on all three issues is dismissed.
Panel Members
L. Choy, Presiding OfficerA. Finkel, Commissioner
M. Day, Commissioner
Recording Secretary, B. Kosc
L. Choy - Presiding Officer
Signed at Winnipeg this 5th day of October, 2011