Decision #56/12 - Type: Workers Compensation

Preamble

The worker is appealing the decision made by Review Office of the Workers Compensation Board ("WCB") which determined that he had recovered from the effects of his compensable injury and was not entitled to benefits after January 24, 2011. The worker also disagrees with the calculation of his permanent partial impairment award of $2,120 based on an impairment rating of 2.5%. A hearing was held on April 2, 2012 to consider these matters.

Issue

Whether or not the worker is entitled to wage loss benefits after January 24, 2011; and

Whether or not the worker's permanent partial impairment award of $2,120 based on an impairment rating of 2.5% is correct.

Decision

That the worker is not entitled to wage loss benefits after January 24, 2011; and

That the worker's permanent partial impairment award of $2,120 based on an impairment rating of 2.5% is correct.

Decision: Unanimous

Background

On February 6, 2007, the worker was painting cabinets when he felt a snap on the left side of his low back. The claim for compensation was initially accepted based on the diagnosis of a muscular strain of the low back but later investigations revealed a disc protrusion which led to a right sided microscopic lumbar laminectomy at L4-5 with discectomy and L5 foraminotomy on September 25, 2008.

In 2009 and 2010, the worker was treated for ongoing low back and right leg complaints and also for symptoms of depression. When seen by the WCB's Pain Management Unit ("PMU") on June 22, 2010, the compensable diagnoses outlined were mechanical low back pain and radiculopathic pain in the right leg.

On November 15, 2010, an MRI was carried out of the worker's lumbar spine and the results were read as follows:

"Post surgical changes are seen at L4-L5 with some epidural enhancement and probable scar formation as described above. No recurrent disc extrusion is felt to be present. Changes of epidural lipomatosis are suspected at L5-S1 as described. Mild facet arthropathy is seen through the scanned levels."

Arrangements were made for the worker to undergo a Functional Capacity Evaluation ("FCE") on November 25, 2010. The FCE was not completed due to the worker's increased low back symptoms.

On December 8, 2010, a WCB medical advisor provided the following opinion to a WCB case manager:

  • The current diagnosis was epidural fibrosis at the L5 nerve root on the right.
  • The finding of epidural fibrosis was a late complication of the previously described surgery.
  • It was possible that the increase in symptoms described by the worker was due to the MRI findings.

The worker was seen by his treating neurosurgeon on January 18, 2011 who stated:

"…MRI of the lumbosacral spine shows evidence of previous laminectomy at L4-5. There is some epidural enhancing scar tissue formation adjacent to the thecal sac and the L5 root. Otherwise, there is no process impinging upon the neural structures.

I discussed with [the worker] the clinical presentation and radiological findings. Both are not suggestive of a recurrent radiculopathy. I do not think an additional surgical intervention is indicated at this point in time. I would recommend that the patient continue his present conservative treatment with emphasis on physiotherapy/stabilization of the lumbosacral segment."

On March 8, 2011, a WCB medical advisor and WCB case manager both reviewed a surveillance video of the worker taken on January 24 and January 25, 2011. The medical advisor stated that the worker was very active on both days. The worker was frequently entering and leaving his vehicle and had no difficulties doing this. The worker was seen inspecting the inside of his vehicle and was bending with a very fluid motion. The worker was clearing snow with a shovel for periods extending up to one half hour. The worker was wearing a sling at times for his right shoulder which had been operated on in December 2010. However, the worker on occasion dispensed with the sling and was able to continue with shoveling. The medical advisor concluded that the worker had no restrictions and was fit to return to his pre-accident occupation.

The file was reviewed by a WCB psychological advisor on March 10, 2011. It was concluded that on a balance of probabilities, the worker had recovered from his previous depression and there was no claim-related psychological diagnosis at this time. There would be no restrictions based on psychological factors.

On March 15, 2011, the worker was advised by the WCB that he was not entitled to further wage loss benefits beyond March 21, 2011, as the medical information and the January 2011 video surveillance supported that he was physically able to return to his pre-accident position without restrictions. The WCB would continue to monitor his medical aid benefits which included medication.

The worker was examined by a WCB physiotherapy consultant on May 12, 2011 for the purposes of establishing a permanent partial impairment ("PPI") resulting from the February 6, 2007 workplace injury. The physiotherapy consultant indicated that digital pictures were taken of the worker's low back scars. The scars were then compared to the folio of images at the WCB. The consultant stated there was no rateable cosmetic impairment related to the compensable injury.

The physiotherapy consultant then took passive range of motion measurements of the worker's lumbar and thoracic regions and determined that the PPI rating was 2.5%. On May 19, 2011, the worker was notified that he was entitled to a 2.5% PPI rating which resulted in a payment of $2,120.00.

On May 31, 2011, the worker submitted appeals to Review Office regarding the amount of his PPI award and the WCB's decision to end his wage loss benefits. On June 1, 2011, the worker advised the Review Office that he disagreed with the way his PPI was calculated. He said he asked the WCB for assistance with snow removal but was told he had to do the work himself. He noted that shoveling snow for half an hour was not the same thing as doing his regular duties as a painter.

In a decision dated July 18, 2011, Review Office determined that the worker was not entitled to wage loss benefits after January 24, 2011 and that the PPI impairment award of $2,120 based on an impairment rating of 2.5%, was correct. With regard to the issue of wage loss benefits, Review Office indicated that the surveillance evidence supported that the worker made a good functional recovery from his compensable injury and was capable of returning to work. Review Office concurred with the WCB psychological advisor's opinion of March 10, 2011 and the WCB medical advisor's opinion of March 7, 2011. Review Office indicated that it consulted with the WCB physiotherapy consultant on July 14, 2011 and was advised that snow shoveling causes an axial load with torsion of the spine with lumbar flexion and lifting weights and it was considered a moderate physical activity.

Review Office agreed with the worker's assigned PPI rating of 2.5% based on the information contained in the WCB medical advisor's May 12, 2011 examination notes. It noted that The Workers Compensation Act (the "Act") and WCB Policy does not allow for PPI ratings to be assigned for pain and/or suffering experienced by a worker or for difficulties in performing daily tasks. It determined that the PPI award of $2,120 was correct and in accordance with subsection 38(2) of the Act. In January 2012, the worker appealed Review Office's decision to the Appeal Commission and a hearing was arranged.

Reasons

Applicable Legislation

In deciding appeals, the Appeal Commission and its panels are bound by the Act, regulations and policies of the Board of Directors.

The first issue deals with entitlement to benefits beyond January 24, 2011. 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.

The second issue deals with the calculation of the worker's PPI award for his back. Subsection 4(9) and section 38 of the WCB Act deal with impairment awards. Subsection 38(1) provides that the WCB "… shall determine the degree of a worker's impairment expressed as a percentage of total impairment." Subsection 38(2) provides a scale for the value of lump sum awards based on the degree of impairment.

The Board of Directors established Policy 44.90.10.02 ("the Policy") being the Permanent Impairment Rating Schedule. This Schedule is designed to provide consistent guidance when measuring the degree of permanent impairment of a body function following an injury. The criteria used for development of impairment ratings for the spine involves measurement of restricted range of motion. Page 16 of the Schedule sets out the table of measurements applicable to the worker's impairment.

Worker's Position

The worker attended the hearing and explained his position to the panel. He answered questions posed by the panel.

Entitlement to wage loss benefits after January 24, 2011.

The worker told the panel that he was injured in 2006 and never recovered from the injury. He said that he was sent back to work before he healed and that his 2007 injury was a direct result of his 2006 injury. He described the 2006 and 2007 accidents which he said left him with a serious back injury.

The worker explained that he suffers from extreme pain and is only able to function because of the medication that he takes. He explained that he attempted to participate in physiotherapy but was so sore after his first treatment that he remained home for the following two days as he was in pain.

The worker said he was angry about the WCB's use of video surveillance. He noted that on three different periods the WCB had filmed his activities.

He disagreed with the WCB's position that the video of January 24 and 25, 2011 demonstrate that he is able to return to work. He said the video only shows that he is able to shovel snow for one half hour and does not mean that he can return to his pre-accident occupation as a painter. The worker said the snow was light and that after shoveling the snow he was in great pain. He noted the surveillance video does not show how he was in his residence nor does it show the amount of medications in his body. He submitted that it was unreasonable for the WCB to come to the conclusion that he was fit to return to work.

In answer to a question about medical treatments, the worker advised that he sees his physician regularly to get prescriptions renewed. He was not aware of any plans for further investigation of his condition.

When asked whether he can work he replied:

"I believe I can – I can work, but in something like, nothing I want to do physical. Can tell you it’s impossible because it involves carrying like gallons of paint, carrying ladders, going upside and down, bending a lot, you know baseboard stuff, it doesn’t matter, just doing like rooms like this one, I promise you, you’ll be up and down six foot ladder at least a hundred times. Just going up, patching a little bit, going down, and after that you have to roll it back and down. You bend down to do the baseboard, cut them up.

It’s involved with a lot of physical, you know. That I cannot do that anymore. It’s impossible."

He acknowledged that he might be able to work at a gas station. He said that he can do other work, but when the medication wears off he can barely move. He was a welder in his homeland but is not able to work as a welder now. He said that he would like to be retrained in interior design.

The worker was asked about other sources of income and replied that he buys and sells cars. Between March and June 2011 he made close to $6,000. He said that in 2011 he shipped a car to his homeland but had to go there because the deal was not working out. He remained there for approximately six months. On his return to Winnipeg, he went back to buying and selling cars. He said that he also buys merchandise on the internet which he resells. He has been doing this since 2000 and it is a hobby. He has not looked for employment since returning to Winnipeg.

The worker indicated that he did not discuss the WCB's video surveillance with his physician.  The worker submitted that it was not appropriate for the WCB to rely on the video evidence showing him shovelling snow.

The worker told the panel that "This is not a fake case. It’s not, it’s not something that I wanted to do to myself. It just happened. I slipped and fall on top of a concrete block, that’s not a joke."

Calculation of permanent partial impairment award.

The worker said that at the time of his examination by the WCB medical advisor, he was taking prescription medications including a narcotic. He said that while using these medications he was more flexible than when he did not take the medications. It was his view that the test is not a true measurement of his impairment. He also noted that he has internal scarring as a result of the surgery which causes significant ongoing pain. He said that the award does not compensate him for his pain and suffering.

Employer's Position

The employer did not participate in the appeal.

Analysis

Entitlement to wage loss benefits after January 24, 2011

The first issue before the panel was whether the worker is entitled to wage loss benefits after January 24, 2011. For the worker's appeal of this issue to be successful, the panel must find that the worker continued to suffer a loss of earning capacity as a result of the injury, or in other words was not able to work after this date. The panel was not able to make this finding.

In deciding this issue, we have compared the worker's reports of physical limitations with evidence gathered from surveillance videos and medical reports. We found many contradictions and inconsistencies and have concluded that the worker's evidence lacks credibility. Examples of the inconsistencies and contradictions on file include the following:

  • surveillance video taken between May and June 2010 shows the worker's movements were fluid without pain behaviours, yet when the worker met with the WCB PMU on June 17, 2010, it was noted that he presented with a slightly antalgic gait on the right. He had also reported a very limited activity level, laying on the couch most of the day, tiring quickly and not engaging in any activities.
  • surveillance video taken on January 24 and 25, 2011 shows the worker getting in and out of a vehicle, driving, wiping snow off the vehicle, shoveling snow for upwards to one half hour and pushing a vehicle by himself. This video shows the worker was able to bend and turn at the waist, stand, sit, walk, drive, push and lift weight without any apparent pain behavior or discomfort. This activity is contrary to the worker's evidence on file that he was unable to participate in physical activity.

We note that the surveillance video was reviewed by a WCB medical advisor. In a memo dated March 8, 2011, the medical advisor commented that based on the video evidence, the worker is able to have a fluid and good, satisfactory movements with no apparent barriers in terms of entering or leaving a vehicle, bending and extending while shoveling, and does not appear to have any barriers to lifting any weights observed from the activity of his back movements. The medical advisor concluded, that based on these observations, the worker has no restrictions and is fit to return to his pre-accident occupation.

The panel finds that the video evidence is compelling and that the worker's restrictions should be removed.

Regarding the worker's loss of earning capacity, we find that the worker no longer had a loss of earning capacity as a result of the February 6, 2007 compensable accident after January 24, 2011. We also note that at the hearing, the worker told the panel about his successful activities in buying and selling vehicles. He also advised of other activity including the export and sale of a vehicle and regular absences from Canada, for extended periods, to attend to his affairs in his homeland.

The worker's appeal on this issue is dismissed.

Calculation of permanent partial impairment award.

The second issue was whether the worker's PPI award of $2,120 based on an impairment rating of 2.5% is correct. For the worker's appeal of this issue to be successful, the panel must find an error in the calculation or examination results. We were not able to find an error.

The worker expressed concern that his flexibility was measured while he was under the effects of his medication and therefore was inaccurate. To show his real flexibility and impairment, the test should have been conducted when he had not taken medication. He said that he is not flexible or mobile without the use of medication.

While we understand the worker's concern, permanent impairment is measured using the worker's passive range of motion and not active range of motion. The fact that the worker has greater flexibility or ability to rotate while medicated does not invalidate the measurement.

We have reviewed the examination notes and the calculations and have found no errors.

The worker also expressed concern that the award does not compensate for the pain and suffering he experiences every day. We note that PPI award schedules does not consider pain and suffering and is limited to considering loss of function.

With respect to scarring of the low back, we note that the medical advisor found the worker had no ratable cosmetic impairment related to the compensable injury. We agree with this conclusion.

The worker's appeal of this issue is dismissed.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 26th day of April, 2012

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