The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he was not entitled to benefits beyond March 25, 2012 in relation to his compensation claim. A hearing was held on September 12, 2016 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to benefits beyond March 25, 2012.

Decision

That the worker is entitled to benefits to October 9, 2014, inclusive.

Background

The worker has an accepted claim with the WCB for multiple injuries he sustained in a work-related accident on June 5, 2009 when he fell about six feet off a scaffold onto the floor.

The worker has permanent workplace restrictions that involve no lifting greater than 20 pounds, work within the body habitus, limited work above shoulder height, and avoid sustained postures. As the accident employer was unable to provide the worker with employment which met his compensable restrictions, the case was referred to the WCB's vocational rehabilitation branch to assist the worker with finding suitable employment. On December 14, 2010, a recommendation was made by the WCB's vocational rehabilitation branch that the worker be considered unemployable and eligible to receive full wage loss benefits until he reached age 65, which recommendation was subsequently accepted.

On June 12, 2012, a WCB investigations advisor provided a report to the WCB case manager that contained detailed information regarding surveillance of the worker's activities on December 21 and 22, 2011, January 10, March 26 and 27 and April 2, 2012.

On June 14, 2012, a WCB medical advisor reviewed the video surveillance and provided an opinion. The medical advisor stated, in part, that the video showed the worker's ability to use both hands, arms and shoulders repetitively in a manner that was not consistent with the previous reports and observations. The worker appeared capable of what would be classified as heavy work (repetitive heavy lifts of more than 50 pounds). There was no evidence of pain or discomfort, no grimacing, rubbing of a sore area or requesting assistance with the heavier activities. The worker appeared to be capable of heavy work at and above shoulder level that was inconsistent with previous assessments. No restrictions were recommended in this regard. The worker appeared to be capable of work outside of the body habitus in a manner exceeding previous apparent capacity. The worker appeared to be capable of performing work without the apparent need for compensable restrictions. The worker demonstrated the ability to lift and carry heavy objects, which included pushing a heavy wheel barrow and carrying heavy cement.

In a decision dated June 22, 2012, the worker was advised that the WCB was ending responsibility for his claim retroactive to March 26, 2012. The case manager referred to the WCB medical advisor's opinion of June 14, 2012, and noted that although the video surveillance did not show the worker performing the exact tasks he performed in his pre-accident position as a labourer, his functional abilities performed in the video supported that he had functionally recovered and was capable of returning to work. On July 31, 2012, the worker appealed the decision to Review Office.

On September 14, 2012, Review Office determined that the worker was not entitled to benefits beyond March 25, 2012.

Review Office stated that in reviewing the surveillance evidence, it did not see the worker demonstrating any pain behaviour or need for restrictions associated with his compensable injuries. Review Office concluded that the worker no longer had a loss of earning capacity or need for medical aid benefits.

Review Office noted that in December 2011, a pain specialist had reported the worker's pain was aggravated by performing minimal activities such as lifting groceries. In May 2012, the worker had advised his case manager that he did not perform any outdoor chores, that he was unable to look for work due to his pain and that he was only able to do a little bit of housework. Review Office determined that the worker's activities on the video were in contrast to these reported limitations.

A copy of an MRI report of July 12, 2013 (left shoulder) was later provided by the worker. On April 2, 2014, the worker was advised by the WCB that the diagnosis in the MRI was a new diagnosis which was not related to the compensable diagnosis accepted by the WCB for his June 5, 2009 injury.

On March 28, 2016, the worker's legal representative appealed Review Office's September 14, 2012 decision to the Appeal Commission and an oral hearing was arranged.

Following the hearing, the appeal panel requested additional medical information from several healthcare practitioners. On November 15, 2016, the interested parties were provided with a copy of the medical reports which the panel had received, and were asked to provide comment. On December 1, 2016, the panel met further to discuss the case and render its decision.

Reasons

Applicable Legislation

The Appeal Commission and its panels are bound by the Act, regulations and policies of the WCB's Board of Directors.

Subsection 4(1) of the Act provides that 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 4(2) provides that a worker who is injured in an accident is entitled to wage loss benefits for the loss of earning capacity resulting from the accident, but no wage loss benefits are payable where the injury does not result in a loss of earning capacity during any period after the day on which the accident happens.

Subsection 27(1) of the Act provides that the WCB "...may provide a worker with such medical aid as the board considers necessary to cure and provide relief from an injury resulting from an accident."

Subsection 39(2) of the Act provides that the WCB will pay wage loss benefits until such time as the worker's loss of earning capacity ends, or the worker attains the age of 65 years.

Worker's Position

The worker was assisted on his appeal by legal counsel, who made an oral submission on his behalf. A written submission was also provided in advance of the hearing. The worker responded to questions from his counsel and the panel.

The worker's position was that he suffered a long-term injury due to his work-related accident which prevented him from working. He should therefore be eligible for benefits up until the time he was able to return to work. It was submitted that the worker was not looking for an indefinite payment of benefits, but that benefits should be payable up to either October 2014 or December 2014.

The worker's evidence at the hearing was that he was able to do some physical activity while he was off work, but not for any length of time, as his arm would just drop or give out. When the video was taken, he was trying to do "physio" and had helpers. He was not trying to do the work, but to show his helpers how to do it so they could do the work. He could lift things like a hammer, a sledgehammer and a shovel, but after a little while, "my arm gave out and…I was paying for that afterwards." The worker said that he needed full strength to do the work he had to do with the employer.

The worker stated that in July 2014 he attended a pain clinic, where they did needling, and he started to feel better right away. He had approximately six visits at the pain clinic, then went to physiotherapy. His results at physiotherapy were good. He could lift and carry things, and do everything. His pain was all gone. He has had no pain or problems since then. He said that his family physician cleared him to go back to work on October 10, 2014.

Counsel submitted that the evidence showed that the worker could do strenuous activities for a very short period of time only while he was off work, then his muscles would give out. Not only could he not do the work for a long time, but there were serious safety concerns if his arm gave out while he was carrying something and he dropped it. For these reasons, the worker could not go back to work.

It was submitted that a report from the worker's family physician dated January 27, 2015, which was provided in advance of the hearing, confirmed what the worker said. It showed that the physician saw the worker on a regular basis from the date of the accident through to December 2014. In the report, the physician supported that the problems which the worker was experiencing were due to his work-related injury, and that those problems, which the physician diagnosed as myofascial pain syndrome, prevented him from returning to his work duties. The physician confirmed that the worker was capable of returning to work on December 10, 2014 and that he authorized his return at that time. The worker's evidence was that he returned to work as soon as he was authorized to do so.

It was therefore submitted that the worker was entitled to benefits from March 25, 2012 up to either October 2014 or December 10, 2014.

Employer's Position

The employer was represented at the hearing by the president of the company, who spoke in support of the worker.

The employer representative stated that the worker was an enthusiastic, hard-working and conscientious worker. During the four or five year period when the worker was away injured, they stayed constantly in touch and the worker kept them updated as to his status. The employer indicated to the worker that anytime he felt ready to return to work, they would be pleased to have him back. They would not allow him to come back to work, however, if there was any chance that his injuries were going to cause an issue for him or other people he would be working with.

The representative stated that the worker contacted him in late 2014 and said he was ready to work, that the pain was gone and he could do any of the duties expected of him. At that point, he said that of course they would take him back. The representative added that since then, the worker is again working enthusiastically and competently, and has been able to fulfill his duties to both his and the employer's expectations.

Analysis

The issue before the panel is whether or not the worker is entitled to benefits beyond March 25, 2012. For the worker's appeal to be successful, the panel must find that the worker suffered a loss of earning capacity and required medical aid after March 25, 2012 as a result of his June 5, 2009 workplace injury. The panel is able to make that finding. For the reasons that follow, the panel finds that the worker is entitled to benefits after March 25, 2012 up to and including October 9, 2014, based on his workplace injury.

The file evidence shows that the worker suffered significant injuries on June 5, 2009 as a result of his workplace accident. A diagnosis of non-specific non-radicular thoracic spine pain and left greater than right shoulder impingement was accepted in 2010. A diagnosis of post-traumatic mechanical pain with associated myofascial pain was accepted on September 27, 2011.

After the hearing, the panel requested further information from a number of healthcare providers, including the worker's family physician and the pain clinic and physiotherapist who treated the worker in 2014.

Based on our review of the information on file, the evidence at the hearing and the medical information provided after the hearing in response to the panel's request, the panel finds, on a balance of probabilities, that the worker's compensable injuries had not resolved by March 25, 2012.

In arriving at that conclusion, the panel places significant weight on chart notes provided by the worker's family physician after the hearing. The panel notes that in the chart entries for appointments between September 8, 2011 and June 27, 2012, the physician makes repeated findings of left shoulder pain with moving in all planes, and tenderness. In the December 7, 2011 entry, it is noted that the worker was cautioned against overusing his shoulder.

The panel places less weight on the video surveillance evidence. The panel reviewed the videos and is satisfied that various activities, such as bowling; helping move an empty fridge; showing a crew how to lay sidewalk blocks; and removing pieces of debris; all of which form a large portion of the surveillance evidence, did not involve lifting significant weights for a prolonged period and were within the worker's restrictions. It is the panel's opinion that the activities in the 6 days of surveillance do not represent abilities for an 8 hour day or a 40 hour work week. The panel notes that prior to the termination of his benefits, the worker was never asked to explain or comment on the results of the video surveillance and why they did not appear to be consistent with his restrictions.

The panel notes that evidence on file and confirmed by the employer at the hearing indicated that the employer was willing to take the worker back to work, but could not do so until he was pain free and able to do his regular duties, including overhead work. The panel accepts that the nature of the employment was such that the employer could not take the worker back on modified duties. The panel finds that the length of the video is not sufficient to confirm that the worker could work an 8 hour work day at his regular duties.

The panel notes that chart entries provided by the worker's family physician also show that the worker appeared to experience ongoing symptoms and left shoulder pain through 2012 and 2013, and into 2014. The evidence indicates that further treatment was required to advance the healing process, and that treatment was subsequently provided through injections by a physiatrist, and follow-up physiotherapy and exercise classes in mid-2014.

The worker's evidence was that he began feeling better as soon as he started attending the pain clinic and being treated by the physiatrist in 2014. Medical information provided subsequent to the hearing supports that the worker's symptoms and pain began resolving at this point. Chart notes from the treating physician dated July 11, 2014 show that the worker had attended the pain clinic and received injections which were helping, and that the worker had less shoulder pain. In a report from the pain clinic dated October 21, 2016, it is noted that in a follow-up appointment to a July 4 treatment for myofascial pain, the worker "reported his neck pain had decreased from 10 out of 10 to 1 to 2 out of 10 after [that] treatment."

Medical information provided after the hearing further indicates that the worker's pain had resolved by the end of 2014, as follows:

• In his chart notes dated October 9, 2014, the family physician noted that the worker's left shoulder pain had been gone for a few weeks, and recorded findings with respect to the left shoulder of normal range of motion, no pain and not tender;

• On December 10, 2014, the family physician stated that the left shoulder was better, the left shoulder pain had resolved, the worker could return to full duties and a note had been provided;

• On June 19, 2015, the family physician recorded "shoulder pain totally resolved, never recurred, [worker] returned to work";

• A report from the treating physiotherapist dated October 7, 2016 noted that the worker had attended a physiotherapy program consisting of 12 sessions, starting September 5, 2014, and that on a follow-up reassessment on October 8, 2014, it had been determined that he had full range of motion into all shoulder movement patterns, and 5/5 strength for all shoulder movements bilaterally, and that his symptoms of shoulder pain had completely resolved, as he rated his pain as 0/10.

Based on the foregoing, the panel finds that the worker had recovered from his workplace injury and been cleared for full duties as of October 9, 2014.

The panel therefore finds, on a balance of probabilities, that the worker continued to suffer a loss of earning capacity and required medical aid beyond March 25, 2012 through to October 9, 2014 as a result of his June 5, 2009 workplace injury.

The panel finds that the worker is entitled to benefits from March 25, 2012 up to and including October 9, 2014, based on his compensable injury.

The worker's appeal is allowed.

Panel Members

M. L. Harrison, Presiding Officer
C. Devlin, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

M. L. Harrison - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 27th day of January, 2017