Decision #112/12 - Type: Workers Compensation

Preamble

The worker is appealing the decision made by Review Office of the Workers Compensation Board ("WCB") which determined that he was capable of participating in a modified duties return to work plan effective April 2, 2008 and that he had no compensable loss of earning capacity as of April 2, 2008. A hearing was held on August 29, 2012 to consider the matter.

Issue

Whether or not the worker should have been able to participate in a modified duty return to work plan effective April 2, 2008; and

Whether or not the worker had a compensable loss of earning capacity as of April 2, 2008.

Decision

That the worker should have been able to participate in a modified duty return to work plan effective April 2, 2008; and

That the worker does not have a compensable loss of earning capacity as of April 2, 2008.

Decision: Unanimous

Background

On October 7, 2005, the worker filed a claim with the WCB for injury to his middle back and right leg that he related to his repetitive lifting and carrying job duties as a cabinet maker.

On October 14, 2005, the worker underwent a CT scan of the lumbar spine which showed a focal area of central disc herniation posteriorly at L4-5. There was compression of the underlying thecal sac. Facet joint degenerative changes were present at L5-S1.

A WCB medical advisor reviewed the file on November 3, 2005. He stated that the worker's disc herniation was consistent with repetitive lifting and moving heavy cabinets up and down.

Subsequent file records showed that the worker went for physiotherapy treatments. In April 2006, the treating physiotherapist advised the WCB that the worker still had significant pain when flexing or extending his back as well as side bending.

On June 27, 2006, an MRI of the lumbar spine showed disc herniations at T12-L1, L4-5 and L5-S1 levels. There was no definite evidence of nerve root compression or spinal stenosis. Note was made of narrowing of the lateral recesses at the L4-5 level.

In a report dated July 13, 2006, a neurosurgeon outlined his examination findings and reviewed the June 27, 2006 MRI. He stated that surgical intervention was not indicated and that the worker should continue with conservative treatment. Infiltration of the facets was suggested as an option for the worker's lumbosacral pain.

Due to the worker's ongoing back pain, an infiltration of the zygapophyseal joints and recurrent nerves L3-4, L4-5, L5-S1 was performed on February 2, 2007. In a follow-up report dated April 11, 2007, the neurosurgeon noted that the infiltration done in February was not beneficial. The neurologist indicated that the clinical presentation was not suggestive of any ongoing radiculopathy.

In July and August 2007, the worker was treated by a psychologist related to pain management.

In a report dated October 10, 2007, the treating physiotherapist reported that they could not put the worker on a more rigorous exercise routine as he was quite timid and complained of pain if pushed beyond his normal limits.

On October 22, 2007, the treating psychologist stated: "At this time, he continues to be unable to return to work. Until there are significant improvements in his physical condition and pain experience, I do not expect a return to work in the foreseeable future."

On December 4, 2007, the worker's medical condition was assessed by a WCB medical advisor. The medical advisor indicated that the worker presented with ongoing back and right leg pain secondary to nonspecific low back pain associated with radiologic findings of multilevel disc protrusion and degenerative disease of the facets. He felt the worker was at or very near to maximum medical improvement and recommended long term restrictions to avoid repetitive bending at the waist, lifting more than 10 to 15 pounds repetitively and to rest when needed.

The worker underwent a Functional Capacity Evaluation ("FCE") on February 21, 2008 to further determine the nature of his restrictions. The report noted that the worker did not demonstrate full voluntary effort and passed 2 out of 5 validity checks. The results were therefore only considered to represent the worker's minimal physical abilities.

On March 27, 2008 a WCB case manager conducted a job site analysis at the employer's premises to look at the light duties being offered. He said the duties involved sedentary work taking a block of wood that weighed a few ounces and placing a label on it. The worker would be able to sit or stand. The second position entailed assembling and gluing MDF panels. The weight demands would not exceed 15 pounds. The third position involved cutting material to a required length. The machine would be set to the required length and a panel would be placed on the table saw. The worker would then operate the start switch with his leg. A sit/stand chair could be used but given that it was a table saw the employer's preference would be that a chair was not used. The employer indicated that periodic breaks could be taken. The job was self-paced.

On March 27, 2008, the case manager spoke with the worker and described the job positions offered by the employer. The worker indicated that he would be unable to return to work as he needed to lay down. The case manager spoke with the worker's wife who indicated that her husband was unable to eat supper at the table due to his back pain.

On March 29, 2008, the case manager wrote the worker to advise that as he had chosen to refuse duties that the WCB felt were within his capabilities, effective April 2, 2008 his loss of earning capacity would no longer be considered to be due to his workplace injury but rather was due to his choice not to return to work.

On April 22, 2008, the family physician reported that the worker was unable to perform physical work as he could not stand or sit for a long time. On examination, the worker had tenderness over the lower lumbar spine and painful, limited range of motion, positive straight leg test on both sides, normal motor signs and normal sensation. The physician reported that the worker was being referred to the pain clinic and an MRI was ordered.

The MRI of the lumbosacral spine dated April 28, 2008 showed disc protrusions at T12-L1, L4-5 and L5-S1. The report stated: "No significant change in size of the disc protrusions when compared to the MRI study from 2 years ago. No evidence for significant central canal stenosis."

On May 1, 2008, the case manager wrote the worker to advise that his family doctor's report indicating his current limitations had been received. Given that the worker would have had the opportunity to adjust positions, and the fact that the duties fell within the remainder of the outlined restrictions, the WCB was unable to change its previous decision.

On May 22, 2008, the treating psychologist reported that the worker had fears about returning to light duty work with the employer as he would quickly be pushed beyond his physical capabilities and he would re-injure his back. The worker also expressed concerns about not trusting the WCB.

A surveillance video of the worker's activities was conducted on February 21, 22, 23 and 24, 2008. A copy of the investigator's report is on file dated June 18, 2008.

On July 4, 2008, a worker advisor provided the WCB with medical information to support that the worker was not in a position to return to employment as pain was limiting his ability to work. He asked that the worker's benefits be reinstated while treatment options were being explored.

At the request of the case manager, a WCB orthopaedic consultant reviewed the file on July 4, 2008 and it was his opinion that there was no continuing cause/effect relationship between the compensable injury and the worker's current clinical and imaging status.

The orthopaedic consultant again reviewed the worker's file on July 30, 2008 which contained a report from the family physician dated July 2, 2008, a report from the pain clinic dated May 20, 2008 and the surveillance information. The medical advisor noted that the family physician did not respond to questions regarding the WCB's restrictions or the worker's capacity to work the proposed modified duties. He felt the physician's report contained no new medical evidence or clinical information. He said the report from the pain clinic physician was clear that the worker's diagnosis was mechanical back pain for which he would have offered facet joint injections. It was the consultant's opinion that the report contained no new clinical information that was not already on file at the time of his memorandum on July 4, 2008. The consultant was further of the opinion that the worker's claimed loss of function was not substantiated during his activities on the surveillance videotape.

The consultant outlined the opinion that the pre-existing condition was mechanical back pain arising out of the lumbar disc degeneration and facet osteoarthritis. There was imaging evidence of lumbar disc degeneration and herniation. There had been no clinical evidence of lower limb radiculopathy arising out of lumbar root compression in relation to disc herniation, and the imaging evidence may have no clinical relevance as noted in his previous memorandum. He said it was reasonable to suggest that the worker's problems were essentially related to the pre-existing condition and that his claimed loss of function was not substantiated during his activities under surveillance.

By letter dated August 19, 2008, the case manager confirmed to the worker that it was the WCB's opinion that the duties offered by his employer would have been well within his restrictions and that no wage loss benefits were payable beyond April 1, 2008. It was also the WCB's position that the worker had essentially recovered from the effects of his August 26, 2005 workplace injury and any ongoing discomfort was pre-existing in nature.

Based on an appeal submission by the worker, the case was considered by Review Office on October 2, 2008. Review Office determined that the worker should have been able to participate in a modified duty return to work plan effective April 2, 2008 and that a compensable loss of earning capacity did not exist as of April 2, 2008. Based on the worker only passing 2 of 5 validity tests on the FCE evaluation and the worker's activities on surveillance evidence which was analyzed by the worker's case manager and a WCB orthopaedic consultant, Review Office felt there was no support for the worker's contention of functional impairment which would not allow him to participate in the modified duty return to work plan.

Review Office noted that from a psychological standpoint, the worker had a fear of re-injuring his back and that fear played a role in his decision to turn down the offer of a return to work on modified duties. However, Review Office noted that the case manager attended the worksite and assessed the modified duties offered by the employer and felt they were light and that the worker would have been able to perform the duties.

On March 13, 2012, the decision was appealed to the Appeal Commission by the worker and a hearing was held on August 29, 2012.

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(1) of the Act, where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid to the worker by the WCB.   

Subsection 39(1) of the Act provides that wage loss benefits will be paid: “…where an injury to a worker results in a loss of earning capacity…”  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.  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 was assisted by a paralegal and participated in the hearing via teleconference.  The services of a language interpreter were provided.  It was submitted that the worker sustained a low back injury as a result of his compensable workplace accident of August 26, 2005 and that the injury continued to cause him incessant pain and discomfort.  Moreover, it was submitted that the injury caused the worker to be unemployable in any capacity since the date of the accident to the present time, thereby warranting full loss of earnings beyond April 2, 2008, and ongoing.  Because of his ongoing symptoms, the worker was still under the same restrictions that were listed subsequent to the FCE evaluation.   

With respect to the video surveillance, it was submitted that the footage did not adequately reflect the worker's ongoing level of disability, particularly given that he had just received an injection that day.  Pain cannot be captured on a video surveillance and there were many sections of the video that did not capture a good view of the worker. 

Medical reports demonstrated that the worker had not experienced improvement from the extensive treatments that he had been receiving since 2005, and more importantly, since 2008 and ongoing.  The medical reports clearly supported ongoing disability.  Further, the medical reports showed that the worker did not have any pre-existing medical conditions to either his lower back or any other general health conditions.  When he came to Canada in the year 2000, he had a clean bill of health. 

The worker had been compliant with treatment for his condition.  He had attended all of the assessments that were scheduled for him.  Unfortunately, although he had some benefit from injections, the effects of such treatments only lasted about three weeks and then he was back to his previous condition.  He did not obtain long-lasting pain relief. 

It was submitted that if the worker was in a position where he could work, he would be working.  Prior to the injury, he was sustaining three jobs, demonstrating that he was a hard worker. 

The most recent medical information was a report from the treating physician dated August 8, 2012.  This report confirmed:

  • The worker's current condition was degenerative disc disease, mechanical low back pain and facet arthropathy.  Pain levels were unchanged despite steroid injections, physiotherapy, TENS unit and high-dose narcotics.

  • The condition was chronic in nature and will not likely resolve.

  • The worker had not worked since his injury in 2005.  He was in pain constantly, despite treatments, and required high dose narcotics just to function day to day.  He had limited ranges of motion of the lumbar spine and could not sit for more than 15 to 20 minutes.  He was unable to lift over 20 pounds from floor to waist.  Medications made his concentration ability limited and also caused fatigue.  Given these limitations, it was doubtful that he would be employable at this time.

  • Restrictions were no sitting more than 20 minutes at a time without a break, no lifting over 20 pounds from floor to waist, and no bending or twisting of the lumbar spine (if possible).

It was submitted that the evidence demonstrated an ongoing disability and that the worker had not clearly recovered from his accident of August 2005.  At seven years post-accident, there was medical reporting of ongoing symptomatology and treatment without resolution. 

Overall, it was submitted that there were numerous medical reports supporting the worker's position and that the panel's decision could not be based solely on the video surveillance.  To do so would be to discount all of the previous medical evidence that demonstrated that there was an ongoing disability related to the accident. 

Employer's Position

A representative from the employer participated in the hearing.  The employer's position was that the alternate duties appeared to meet the restrictions and that they were appropriate for the worker's situation.  It was noted that the job duties offered to the worker had a maximum lifting capacity of two pounds, reaching for minimal distances, and crouching and forward bending was periodic.  There was no pushing or pulling.  Sitting opportunities were given together with standing opportunities and any icing or heating breaks that were needed would be accommodated.  It was submitted that as an organization, the employer always strived to work with its employees to bring them back in to work.  In the present case, the employer felt it had the right mixture of work available to the worker and that he should have been able to participate.

 Analysis 

The issues before the panel are whether or not the worker should have been able to participate in a modified duty return to work plan effective April 2, 2008 and whether or not the worker had a compensable loss of earning capacity as of April 2, 2008.  In order to decide the appeal, the panel must consider the evidence regarding the worker's abilities as of April 2, 2008 and determine whether the worker was capable of performing the modified duties offered by the employer or whether his compensable injury disabled him from achieving this level of earning capacity.  After reviewing all of the evidence, the panel finds that the worker should have been capable of participating in the modified duties and therefore had no compensable loss of earning capacity as of April 2, 2008. 

At the hearing, the worker's position was that he was totally disabled from any form of employment.  When asked about the nature of the modified duties offered by the employer, the worker confirmed that he was familiar with the work environment and the specific jobs which were identified for him.  He acknowledged that it was a light job.  Nevertheless, he felt that he was not capable of performing any kind of work. 

The panel is unable to accept the worker's position for the following reasons: 

  • The original diagnosis accepted as compensable by the WCB was L4-5 and L5-S1 disc herniation and right L5 radiculopathy.  By April 11, 2007, the treating neurosurgeon reported that the worker's clinical presentation was not suggestive of any ongoing radiculopathy.
  • Physiotherapy reports dated June 4, 2007 and October 10, 2007 document objective findings of improved range of motion and strength testing.  The panel notes that although the worker claimed no improvement in his condition, objective findings suggested that he was getting better.
  • The position of total disability as of April 2, 2008 is not supported by the medical reports provided by the worker's treating physician.  In her report of April 22, 2008, the treating physician states: "He is unable to perform physical work as he cannot sit or stand for a long time … The patient was advised not to carry heavy weights, no pushing or pulling, no lifting."  The panel does not view this report as supporting a position of total disability.  We interpret it to mean that the worker was capable of light duties which did not require physical work involving heavy weights, pushing, pulling or lifting.
  • The April 18, 2008 report from the treating psychologist stated: "It is my opinion that [worker] has no psychiatric conditions preventing him from engaging in a graduated return to light duties at his previous place of employment. The most prominent psychological factors inhibiting his willingness to work at this time are his strong belief in his level of disability and his fear that a return to work will exacerbate his back pain."
  • The FCE of February 21, 2008 identified a lack of a full voluntary effort with the worker passing 2 of 5 validity checks.  The worker demonstrated inconsistencies in his abilities and the results of the FCE were considered to represent the worker's minimal physical abilities.
  • The surveillance footage taken February 21, 2008 showed the worker exhibiting physical ability beyond that which was recorded in the FCE.  Although the worker reported a standing tolerance of 5-7 minutes, walking tolerance of 5 minutes and a sitting tolerance of 3-5 minutes, the surveillance recorded him spending approximately one hour and fifteen minutes in a mall, walking, sitting and standing, without any apparent discomfort.  The worker's evidence was that he had received an injection that day, but upon questioning as to the sequence of activities that day, it would appear that if any treatment was received by the worker on that date, it would have been after he was at the mall.  The panel therefore finds that the surveillance footage, and in particular, the significant contradiction between the worker's reported abilities and those recorded on film, does not support his position of total disability. 

In the panel's opinion, the worker had functional ability beyond what he professed and that at the material time, he possessed the physical ability to attempt the modified duties offered by the employer.  The modified duties were light and within the restrictions of avoiding repetitive bending at the waist, avoid lifting more than 10 to 15 pounds repetitively and being allowed to rest when needed. 

The most recent medical information from the worker's family physician identified three diagnoses which render him unemployable at this time: degenerative disc disease, mechanical low back pain, and facet arthropathy.  The panel notes that although these diagnoses affect the same area of the spine, the original compensable injury, namely a right L5 radiculopathy, is not listed.  It would appear that although the worker has had ongoing complaints of low back pain, the disc herniation and L5 radiculopathy component has resolved.   

For the foregoing reasons, the panel finds that as of April 2, 2008, the worker should have been able to participate in a modified duty return to work plan.  As such, he had no further compensable loss of earning capacity beyond that date.  The worker's appeal is dismissed.

Panel Members

L. Choy, Presiding Officer
A. Finkel, Commissioner
G. Ogonowski, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 24th day of October, 2012

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