Decision #42/13 - 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 no loss of earning capacity beyond April 17, 2009 in relation to the compensable injury of August 4, 2008. A hearing was held on January 29, 2013 to consider the matter.Issue
Whether or not the worker is entitled to wage loss benefits beyond April 17, 2009.Decision
That the worker is not entitled to wage loss benefits beyond April 17, 2009.Decision: Unanimous
Background
In February 2009, the worker filed a claim with the WCB for a work-related injury that occurred in August 2008 when he lifted a gas tank and felt pain in his upper back. The worker reported that he attended his family physician and was given medication as a form of treatment. He returned to lighter duties and then to full duties but continued to experience discomfort. His last day at work was February 2, 2009.
A report from the family physician dated January 31, 2009 diagnosed the worker with a sprain of the right rhomboid muscle and queried a torn rhomboid. The worker was prescribed medication and was referred to an orthopaedic specialist.
In February and March 2009, the worker was seen by a physiotherapist for treatment. The diagnoses reported in February were a thoracic sprain/strain and possible rhomboid/trapezoid tear. The diagnosis at the March visit was a possible muscle tear of the rotator cuff with significant over-compensation.
On March 6, 2009, the treating physiotherapist outlined work restrictions of no lifting greater than 10 pounds and no pushing/pulling greater than 15 pounds.
On March 13, 2009, the employer reported that they had modified duties for the worker that met restrictions of no lifting greater than 10 pounds and no pushing/pulling greater than 15 pounds. The duties involved shredding of documents, spot and tig welding, welding of lightweight parts, drilling and tapping of light weight parts, saw cutting small tubing and picking up small lightweight parts for shipping.
On March 30, 2009, the worker returned to work at two hours per day and received $20.00 per hour. On March 31, 2009, the worker discontinued work due to pain complaints.
On April 7, 2009, the worker was advised by the WCB that the alternate duties provided by the accident employer appeared to be reasonable and that the WCB would continue to assess his partial wage loss entitlements based on his ability to participate in the two hours of work.
In a report by the family physician dated April 9, 2009, he indicated that the workplace accident of August 2008 caused a severe sprain of the rhomboids minor, the rhomboids major and possibly the serratus posterior inferior. He felt the worker was not able to continue with light duties due to pain.
The worker underwent an MRI of his right shoulder on April 15, 2009 which identified an AC joint arthrosis with a possible rotator cuff tendinosis with no tear.
The worker underwent an MRI of the thoracic spine on May 6, 2009. The alignment of the thoracic spine was found to be anatomic. There was no fracture and no significant disc protrusion in the central canal. The foramina were well maintained.
On May 25, 2009, a WCB medical advisor reviewed the file and stated: "The opinion on file appears to be periscapular soft tissue pain."
On June 22, 2009, the worker advised his WCB case manager that his back pain was increasing and that after walking he would drop to his knees in pain and had to lie down. He took a painkiller every 3 to 4 hours. The worker indicated that he could not do any type of work and that he could not lift anything.
Surveillance of the worker's activities was conducted on June 22, 23, 26, 2009 and July 22 and 23, 2009.
On July 27, 2009, the worker was seen at a WCB call-in examination by a WCB sports medicine consultant. The worker described right-sided parascapular pain which radiated around the axilla and to the anterior chest. He reported that without any particular warning, he would have a sharp, shooting pain in his mid-thoracic area to the shoulder blade on the right side with occasional pain in the right trap area. Following the examination, the consultant stated: "Regardless of the normal MRI findings in the thoracic spine, the clinical presentation appears to be most consistent with a thoracic radiculopathy, suggesting a possible nerve root irritation rather than compression. Further, the normal MRI findings would suggest no specific structural medical contraindication to increasing function." The consultant outlined treatment recommendations and reported that a return to functional activity would aid in the worker's recovery. Restrictions were outlined to avoid repetitive resisted use of the right arm, postural changes and no lifting greater than 10 kg.
Based on a review of the file information which included the surveillance information, the worker was advised on August 13, 2009, that he was not considered totally disabled by the WCB and that effective immediately, he would be considered capable of working two hours at modified or alternate duties within the restrictions outlined by the WCB sports medicine consultant. The decision noted that the employer had offered modified or alternate work in March 2009 which respected similar restrictions.
Subsequent file records showed that the worker declined to participate in alternate or modified duties as he felt that he was totally disabled based on the advice he received from his attending physicians and specialist.
On August 10, 2009, a WCB medical advisor opined that the medical findings on file did not support complete disability as of March 2009 and that the restrictions outlined in March 2009 would have been reasonable.
In a decision dated August 19, 2009, the worker was advised that the WCB still felt he was capable of working two hours per day.
On August 24, 2009, a WCB case manager provided a decision that the worker was overpaid benefits effective June 22, 2009 based on the position that he could have reasonably mitigated his loss of earnings, at a minimum, by working two hours modified duties per day.
On August 26, 2009, the employer appealed the decision to pay the worker wage loss benefits beyond March 1, 2009, which was the date when alternate duties were first offered to the worker.
File records showed that the worker did not participate in the return to work program but did participate in a four week reconditioning program.
On September 1, 2009, the WCB case manager advised the worker that his overpayment had been established at $830.52. Based on the weight of evidence, the worker would have been able to mitigate his loss of earnings by participating in an alternate/modified duty return to work program of 2 hours per day by June 22, 2009.
In a decision dated September 28, 2009, the worker was advised by the WCB that: "It would have been anticipated that by October 19, 2009 you would be able to participate in a full time modified or alternate return to work program. Your employer had indicated they were willing to pay you $12.00 per hour for your recent return to work recommendations."
On October 14, 2009, the reconditioning program discharge report noted that the worker was at the sedentary strength level at the start of the program and at the end of the program he was at a light strength level.
On October 26, 2009, the worker returned to work.
In a memo to file dated November 6, 2009, the WCB case manager indicated that she attended the work site and met with the employer and the worker. The worker was working 2 hours per day and was shredding old documents. The employer noted that shredding documents was time limited and that they would be running out of this work. The worker indicated that the reconditioning program made him worse and he now felt pain in his low back, buttocks, lower abdomen and groin area. The worker stated that he should not be at work as he could only use his left arm. He only returned to work because of his finances. The case manager noted that the employer had jobs such as filing, spot welding, grinding, cutting tubing, drilling and tapping and other duties. She noted that many of these duties could be done one-handed.
On November 10, 2009, the employer advised the WCB the worker was being laid off due to an economic slow-down.
The WCB sports medicine consultant responded to questions posed by the WCB case manager. He stated:
- on balance of probabilities, given the noted diagnosis of thoracic radiculopathy and given the normal MRI findings, it would be reasonable to predict that following the noted [reconditioning] program in additional to the GRTW program, there would be no medical contraindication to return to pre-accident duties.
- the continuing diagnosis appeared to be thoracic radiculopathy or discopathy. The worker's continuing symptoms or progression of symptoms on a pathoanatomical basis could not be explained. The continuing leg, abdomen, groin and low back pain could not be explained as related to the noted and proposed diagnosis of thoracic radiculopathy.
In a decision dated November 19, 2009, the worker was advised by the WCB that his ongoing difficulties with his right side and right back did not have a causal relationship to his injury of August 4, 2008. His recent increasing difficulties with his low back, abdomen, buttocks and right leg also could not be related to the workplace injury. The worker was advised that partial wage loss, medical aid and medical treatment would not be approved beyond November 23, 2009. The case manager noted the worker's recent layoff and indicated this would be considered a loss of earnings due to an economic reason and would not change earlier wage loss decisions.
The worker appealed this decision. On November 19, 2009, Review Office determined that the worker was not entitled to full wage loss benefits effective April 1, 2009. Review Office noted that the most probable diagnosis for the worker's injury was a right thoracic radiculopathy with nerve root irritation. It noted that a WCB sports medicine consultant found no medical evidence which would have been supportive of complete disability in March 2009. The consultant also commented that a gradual return to activity within reasonable restrictions would have been advisable in order to improve function.
Review Office was of the opinion that the weight of evidence did not support the worker's contention of total disability effective March 31, 2009. Based on this finding, Review Office determined that the worker's wage loss entitlement should be recalculated.
On March 23, 2011, an occupational health physician responded to questions posed by the Worker Advisor Office with respect to the worker's back injury of August 4, 2009 and its related diagnoses and restrictions. The response outlined restrictions related to the August 2008 injury.
On May 9, 2011, a WCB medical advisor was asked to review the worker's file based on updated medical information submitted by the Worker Advisor Office. The case manager noted that the information suggested that the diagnoses related to the August 2008 incident was ongoing musculoskeletal strain, thoracic pain and myofascial syndrome. On May 16, 2011, the medical advisor indicated that the new information did not change the earlier opinion.
The case manager advised the worker on May 24, 2011, that the new information did not change the earlier November 2009 WCB decision that he was not entitled to further wage loss or medical aid treatment as a result of his August 4, 2008 workplace injury to his right side and back.
The worker's file was again considered by Review Office on November 8, 2011 when it was determined that a Medical Review Panel ("MRP") should be convened in accordance with subsection 67(4) of The Workers Compensation Act (the "Act").
An MRP was convened on March 9, 2012. The MRP's findings were that the worker initially suffered a soft tissue injury in the form of a musculoligamentous strain. The MRP indicated that the diagnosis of the worker's condition as of November 23, 2009 was part of a complex regional pain syndrome ("CRPS") which was supported by medical findings and was medically accounted for in relation to the workplace injury.
Video surveillance was taken of the worker's activities on March 10, 12 and 27, 2012.
On May 11, 2012, the MRP findings were reviewed by a WCB orthopaedic consultant who disagreed with the diagnosis of CRPS. He stated: "this is an astonishing clinical conclusion, considering the lack of any physical evidence consistent with the diagnosis of CRPS…CRPS refers almost exclusively, to the limbs…There was no evidence of (CRPS) identified in two specialty level assessments, nor even in the examination notes of the MRP itself. Therefore, it is my opinion that there is no relationship of the MRP diagnosis to the compensable injury."
On May 31, 2012, the Worker Advisor Office requested Review Office to reconsider the decision that the worker was not entitled to wage loss and medical aid benefits beyond November 23, 2009. The worker advisor advanced the position that the medical opinion of the MRP outweighed the opinion of the WCB orthoapedic consultant. It was also felt that the recent surveillance evidence demonstrated that the worker was not capable of performing his full regular pre-accident duties for 8 hours per day, 40 hours per week.
On July 24, 2012, the worker was seen by a physical medicine and rehabilitation specialist for an independent medical examination arranged by the WCB. The specialist's conclusions were as follows:
"In my opinion, there is no objective-based diagnosis for [the worker]. He is suffering from a chronic myofascial pain syndrome. He has been trialed on different oral medications, physiotherapy, nerve-segmental sensitization treatment and was seen by several specialists with no permanent benefit. In my opinion, any restrictions in [the worker's] activity level results from his subjective feelings of pain and cannot be described by any objective medical diagnosis. In my opinion, from a physical perspective, there are no residual physical impairments that account for his symptoms and impaired function. He certainly doesn't fit the criteria for complex regional pain syndrome. There was no significant finding in his left shoulder or right shoulder MRI to explain his limited range of motion in certain aspects and pain-inhibited weakness in the shoulders."
On September 19, 2012, Review Office determined that the worker was entitled to medical aid benefits beyond November 23, 2009 and that he was not entitled to wage loss benefits beyond April 17, 2009. With respect to wage loss benefits after April 17, 2009, Review Office found there was insufficient medical evidence to support the worker required workplace restrictions based upon its review of the report from the physical medicine and rehabilitation specialist and the surveillance evidence. Review Office felt that the worker did suffer from myofascial pain syndrome but this in itself did not preclude him from performing his regular job duties. Review Office noted that the inconsistencies found between the medical reports and the actual observed findings of the surveillance video were very troubling. Based on the weight of evidence, Review Office was unable to establish that the worker had a loss of earning capacity beyond April 17, 2009 in relation to the compensable injury of August 4, 2008. On September 26, 2012, the worker advisor appealed Review Office's decision to the Appeal Commission and a hearing was arranged.
Reasons
Applicable Legislation and Policy
The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the Board of Directors.
Subsection 4(1) of the Act provides:
4(1) Where, in any industry within the scope of this Part, personal injury by accident arising out of and in the course of the employment is caused to a worker, compensation as provided by this Part shall be paid by the board out of the accident fund, subject to the following subsections.
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 resulting from the accident ends.
The worker’s position:
The worker was assisted by a worker advisor at the hearing and was accompanied by his daughter. The services of an interpreter were provided. The worker's position was that he would not have been able to perform his pre-accident duties as a welder on April 17, 2009 and beyond due to his compensable condition, chronic myofascial pain syndrome. The reconditioning discharge report of October 14, 2009 confirmed that the worker was not at a physical level of being able to return to his full pre-accident duties as a welder. The evidence confirmed that the compensable diagnosis was a contributor to the worker's inability to return to his pre-accident occupation, which required a medium physical demand. As such, it was submitted that a loss of earning capacity existed and wage loss benefits were payable.
The employer's position:
The employer did not have a representative at the hearing, but provided the panel with a written submission in advance of the hearing. It was submitted that the evidence did not support a finding of continued loss of earning capacity. No residual physical impairments were identified that amounted to medical or other evidence of a disability arising from the compensable injury. There was insufficient objective medical evidence to support the restrictions the worker was claiming. In addition, the worker's self-reported symptomatology was contradicted by video surveillance. When there was medical evidence of the worker's fitness to return to work, the employer used its best efforts to bring the worker back to work through multiple return to work plans, in April and November 2009. These plans were vetted through the WCB. The worker had an obligation to participate in return to work plans that properly accounted for any functional capacity limitations he might have had at that time. He chose not to. It was therefore submitted that the wage loss benefits should not be paid beyond April 17, 2009.
Analysis:
The issue before the panel is whether or not the worker is entitled to wage loss benefits beyond April 17, 2009. In order for the worker’s appeal to be successful, the panel must find that the injuries the worker sustained in the workplace accident of August 16, 2008 continued to affect his earning capacity beyond April 17, 2009. We are not able to make that finding.
In the panel's opinion, although the worker continued to experience symptomatology which can be related to his compensable injury, he was still capable of earning his pre-accident income as his employer was able to offer accommodated work within his restrictions. We do not accept the worker's position that he was totally disabled by these symptoms.
The MRP suggested a compensable diagnosis of CRPS; however, this diagnosis was strongly disputed by the WCB orthopaedic consultant and indeed, was never mentioned by any of the other medical practitioners who were involved in the worker's case. As a result, the worker was sent to a third party medical examiner for an independent assessment.
The July 26, 2012 report of the third party examiner was not able to identify any objective-based diagnosis for the worker and rejected the diagnosis of CRPS. She did confirm that the worker was suffering from a chronic myofascial pain syndrome and based on this opinion, Review Office found that the worker's myofascial pain syndrome was related to the workplace accident of August 16, 2008. This aspect of the Review Office decision was not appealed and the panel accepts that the worker's compensable diagnosis is chronic myofascial pain syndrome.
In her report, the third party examiner did not recommend any workplace restrictions related to the chronic myofascial pain syndrome. She stated: "In my opinion, any restrictions in [the worker's] activity level result from his subjective feelings of pain and cannot be described by any objective medical diagnosis."
In March 2011, the occupational health physician consulted by the worker recommended restrictions of:
· No frequent forward reaching (right arm);
· No lifting greater than five pounds on an outstretched right arm;
· Holding and carrying weights close to the chest more than 20 lbs (both arms);
· No frequent forward bending; and
· Avoid frequent or repetitive above shoulder reaching (right arm/shoulder).
The occupational health physician did not consider these restrictions to be permanent. The panel notes that the restrictions are very similar to the restrictions identified by the WCB medical advisor following the call-in examination of July 27, 2009 and we accept them as indicative of what the worker was capable of performing in April 2009.
By the time of the third party medical examination in July 2012, workplace restrictions were no longer recommended. We therefore find that the above-noted restrictions only remained in effect until July 24, 2012.
At the time of the wage loss cut-off date in April 2009, the employer was able to offer the worker modified work which consisted of shredding of documents, spotwelding of lightweight parts, tig welding of lightweight parts, drilling and tapping of lightweight parts (fully automatic drill), saw cutting of small tubing (fully automatic saw) and picking of small lightweight parts for shipping. The panel finds that these activities were within the above-noted restrictions and we are of the opinion that the worker was capable of performing these duties. We note that at least two of the duties were jobs the worker performed in his pre-accident welding position.
Although the worker alleges that he was totally disabled, we are unable to accept this assertion. The panel has reviewed the surveillance footage and while great care is to be exercised when drawing conclusions based on surveillance video, we find that the level of activity demonstrated by the worker on June 22, 23 and 26 and July 22 and 23, 2009 is simply inconsistent with being totally disabled. The worker is out and about for extended periods of time and while he is not seen engaging in any heavy physical activity, it does show an ability to be mobile and active within his restrictions. We think the worker could perform work, albeit modified to account for his ongoing symptoms. We do acknowledge that up until at least March 2011 and continuing to July 24, 2012 at the latest, he was not capable of performing all of his pre-accident duties as a welder on an unrestricted basis. That said, however, we do feel that during the return to work attempts with the employer, the worker was self-limited and he actually possessed a greater ability than he demonstrated. According to a November 6, 2009 memo, the employer's normal practice was to accommodate its employees at pre-accident wages, and initially, it did pay the worker at this level. Based on the worker's limited work, however, the employer was paying him at a reduced rate of $12.00 per hour. The panel finds that had the worker demonstrated the full effort of which he was capable, he would have been earning his full pre-accident wage rate, even though his position was to some degree modified. As noted earlier, some of the duties offered by the employer were tasks within the worker's pre-accident position as a welder.
We therefore find that since there were modified duties within his restrictions available to the worker on April 17, 2009, the worker is not entitled to further wage loss benefits as at that date. He could have performed those duties on a full-time basis and earned his regular income. By doing so, he would not have experienced a loss of earning capacity.
The panel notes that at the hearing, there was evidence that the employer laid off a number of employees in November 2009 and had the worker been working at that time, his employment would have been terminated. The panel has not considered this aspect of the claim as it relates to the issue of competitive disadvantage. This issue has not previously been considered by the WCB and we do not feel we have the jurisdiction to address the question. It remains open for the worker to ask the WCB to adjudicate this aspect of his claim, with all the corresponding rights of appeal.
The worker's appeal is dismissed.
Panel Members
L. Choy, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
L. Choy - Presiding Officer
Signed at Winnipeg this 22nd day of March, 2013