WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
decision number: 20100180
OBJECTION BY: WORKER
WORKER: Worker
EMPLOYER: Participating
REPRESENTATIVES: Worker, Employer
HEARING: September 8, 2010
ATTENDEES: Worker, Employer, Worker Representative, Employer Representative, Observer, Employer Resource, Interpreter.
ISSUE
The worker is asking for entitlement to full loss of earnings from July 31, 2009.
HOW THE ISSUE ARISES
The worker’s claim was allowed for a low back injury for an accident of July 7, 2009 as outlined in the adjudicator’s letter dated August 12, 2009. The worker performed modified work until what he claimed was an exacerbation or worsening of the condition on July 30, 2009 where he performed work involving the levelling of concrete and he is suggesting he has been unable to perform any work since that time. He was paid by the employer up to and including July 30, 2009. He is claiming full LOE from July 31, 2009, stating he is unable to work and the employer suggests he was able to and has offered suitable work on an ongoing basis. The adjudicator’s decision of August 12, 2009 denied LOE benefits from July 31, 2009. The worker and his representative object to that decision.
AUTHORITY
Authority for this decision can be found in Board Policy under:
11-01-08 – Audio / Visual Recordings
18-03-02 – Payment of Loss of Earnings
19-02-01 – Early and Safe Return to Work (ESRTW)
19-02-02 – The Goal of Early and Safe Return to Work Roles of the Parties
ASSESSMENT OF THE EVIDENCE
The worker affirmed that he would tell the truth the whole truth and nothing but the truth and the interpreter affirmed that he would interpret the hearing accurately. The worker responded to questions from both of the representatives and me. Relevant portions of his testimony are summarised.
LOE benefits are in order if the nature or seriousness of the injury completely prevents a worker from returning to any type of work, provided the worker co-operates in health care measures as recommended by the attending health care practitioner and approved by the WSIB.
As part of the employer’s case, they presented, prior to the hearing for everyone to review, video (2 DVD’s) evidence. The parties agreed at the hearing that the DVD’s were of the worker, family and friends and were authentic. They were not disputed. The DVD’s were reviewed by all parties prior to the hearing and it was agreed at the hearing that further review was not required as part of the hearing process itself.
WSIB staff must exercise caution when determining the weight to give information revealed in recordings, recognizing that
- audio/visual recordings make a dramatic impact on the viewer, and
- in general, recordings may be selective, i.e., information relevant to the issue in dispute, such as when a worker rests or experiences pain, may not be recorded.
Evidence from audio/visual recordings is considered in conjunction with all other evidence.
The worker testified that he was presently 62 years of age and had no plans to retire until the results of this injury. Although we had an interpreter at the hearing the majority of it (I would estimate over 60%) was conducted in English with the interpreter assisting when certain words or phrases were not understood or required clarification. There were no communication problems at the hearing and the parties all agreed the worker could adequately conduct most of it in English. The worker indicated no significant history of back problems prior to this injury. He has been seeing his attending doctor for over 25 years. He stated he was hired by the accident employer in 1998 or 1999 and has always had a good working relationship with them. He stated he has worked predominantly as a labourer with the company since he was hired and as a foreman a couple of times. He stated he often worked on a swing stage as often as high as 19 - 20 stories, restoring buildings. He injured his back, feeling a sudden onset on July 7, 2009 while handling a load of heavy broken bricks in a pale.
The worker sought immediate medical attention but was able to return to what he agreed was lighter duties that involved working on the swing stage caulking, glazing and he stated that although he was in a lot of pain he was able to rest essentially at his own will and on breaks. He made no mention of the employer pressuring him while on light duties and there was no mention of quotas or high demands expected of him. He stated he did this for about 3 weeks and then on his last day worked he was sent to a job site in Ajax where he wasn’t sure what he was going to perform. As it ended up he had to do some concrete work that involved working on his knees levelling concrete for about 3 hours with a 2x4 piece of wood and a trowel. This evidence was not contradicted by the employer and from my review of the physical restrictions and limitations for the worker at that time, this type of work was inappropriate for his medical condition.
He stated that the next day July 31, 2009, he sought medical attention again from his attending doctor and he spoke to his employer indicating he could not work. The worker stated he does not have a company pension and has spent any investments he had since he was injured.
Concerning the video evidence, the worker testified that he was at his cottage that he owns and that it is fully paid off. He stated he did do some work on the roof of the cottage that he climbed up to from the inside of the cottage (a hole in the roof) to mend a leak in the roof and he was showing his son how to fix it. He stated he did not handle a 12 foot ladder at any time and that it was a 6 rung ladder and that an alleged piece of sheet metal was not 4’ by 5’ but in his estimation 2’ by 3’ and was very light in weight of approximately 1 pound. He stated he worked on the roof for maybe 20 minutes. He felt that when he walked around the cottage when he was filmed by the investigator, he was walking slowly due to the pain and not as fluidly or as quickly as the investigation notes of August, September and October 2009 allege.
In regards to medical attention post accident, he did feel the physiotherapy helped some but only sometimes. He stated that in October he was still in pain and not feeling any better. He stated that now the left leg pain is there sometimes. He stated that for the pain he uses Tylenol 3. He stated he receives Canada Disability Pension since approximately March 2010 for the back and leg problems only. He is of the opinion that he could not do any work (including light work) and has been unable to do any work since July 31, 2009.
The worker confirmed that he did do light work for approximately 3 weeks in July 2009 and that the employer continued to offer him light work subsequent to July 30, 2009. When questioned specifically by the employer representative, the worker stated he specifically went to the doctors on the next day (the day after his last day worked of July 30, 2009) at 8:00am. He stated he didn’t have an appointment. He stated he was examined for a ½ an hour or so. He stated he then went home and can’t remember if he went anywhere that day. He stated quite emphatically that he did not go to his cottage that day (Friday July 31, 2009) when asked. The employer questioned the worker about the point in their letter of August 4, 2009 on file where an office administrator had called his home on July 31, 2009 to ask him to report to the office for modified work but his son had said that the worker had left for the cottage. The worker stated he could not remember that being the case. He stated he could not remember if he went to the cottage. The worker then stated that on August 4, 2009 he met with his employer and he was offered modified work. He agreed it was offered and made available to him but he stated he could not do it due to his back injury and its status. He understood the offer and it’s availability but he said he could not do it. He stated that since July 31, 2009 he has not tried and does not feel he is capable of doing any work, modified or regular duties. He has not looked for alternative work. He stated he is not under any active treatment and stated his last treatment was in December 2009. He stated he was essentially treated with physiotherapy from July 2009 – November 2009 with only some relief sometimes. He says he has been in significant pain since the injury with an increase since July 30, 2009.
I have now reviewed all of the information in the claim file, including the medical evidence as well as the testimony heard at the hearing and I have reviewed the DVD’s provided by the employer’s side. Early medical attention detected the symptoms of left leg pain radiation/sciatica and a suspected herniated disc. MRI of September 2009 did not detect a herniation but did establish moderate/severe multilevel degenerative lumbar spondylosis with lateral recess narrowing and foraminal stenosis as described. Contrary to the worker’s suggestion that he saw a doctor on July 31, 2009, I see no evidence of this. The last report of July 2009 is dated July 20, 2009 and we know at that time the worker continued on modified work as he testified.
The next medical report (an FAF) is dated by the attending doctor on August 14, 2009 indicating the worker was unable to do any work. The doctor outlined in a letter dated August 17, 2009 that the worker was evaluated on August 14, 2009 and that the worker complained of severe low back pain radiating down the left leg. It was suggested the worker had findings compatible with an L5-S1 disc on the left side and the MRI was set up at that time for September 16, 2009. In reviewing that letter and the FAF of August 14, 2009 – the doctor authorized the worker off work and the worker heeded the medical advice. Although the employer feels that a continuing offer of suitable work in this circumstance justifies the denial of further LOE benefits and that the worker was not totally unable to work, I am satisfied that with the further investigation of a possible disc injury, the worker heeding the doctor’s advice and not doing any work was not unreasonable and I find that the worker would be entitled to LOE benefits from August 14, 2009 the first evidence of medical authorization for the lost time. I cannot explain the lack of medical evidence between July 31 and August 14, 2009 – however that does not discount the fact that medical evidence does exist from August 14, 2009 authorizing the lost time in my conclusion. Although the FAF of September 14, 2009 is somewhat contradictory, indicating that the patient was unable to return to work at that time then providing limitations as well, I also note the box that was NOT ticked off that indicated whether the worker was capable of returning to work WITH RESTRICTIONS. Therefore I would continue to argue the worker was not fit for any work at that time. The doctor also indicated no “start date” for any return to work as the MRI had still not been completed and the results obviously were yet unknown.
We then have an FAF of September 24, 2009 indicating the abnormal MRI with multiple findings. The worker continued to be authorized to be off work altogether but we also have the doctor indicating a recommendation for a start date for work in Box 6 on page 3 for
October 13, 2009. He worker was also referred to a specialist whose report of
September 29, 2009 outlined enough findings to have the doctor suggest no return to work and added treatment. It also suggested a possible nerve root block or epidural steroid (injection). In an additional report from the specialist dated November 11, 2009 subjective reports of pain continued to be documented. The steroid injections and epidural blocks were discussed again but I see no evidence of this being carried out. The specialist concluded however, that the worker was not a candidate for surgery.
I have also reviewed the attending doctor’s letter that is not dated but was in response to the worker representative’s letter dated October 4, 2009. It was received by the WSIB on November 20, 2009. It essentially outlined that the doctor in August, suspected a herniated disc. The doctor reiterated earlier evidence that I have outlined, that a return to work on or after
July 31, 2009 was contraindicated. The doctor felt that on his examination of August 14, 2009 the worker’s condition had deteriorated and that's why he sent him for the MRI. The doctor also felt the worker’s underlying asymptomatic degenerative back condition was aggravated by the injury in July 2009.Finally, in concert with all of the medical and non medical evidence, I have reviewed the DVD’s of the worker. I am not satisfied that the surveillance of September 2009 contributes negatively to the worker’s claim. Seeing him supervise a crew doing work at his cottage does not satisfy me, contrary to the employer’s argument that the worker was able to work.
It did not demonstrate to me any physical activates by the worker that established he was able to work and he may have still continued to improve physically which is consistent with medical evidence on file at that time that the worker was still unable to do any work. Conversely however, the video evidence in October 2009 does demonstrate a distinctly different situation.
At the hearing the worker confirmed that modified work, which he demonstrated he could do for a period of approximately 3 weeks in July 2009, to his knowledge continued to be offered and was available to him subsequent to July 31, 2009. My review of the evidence indicates the worker was offered suitable work again in August, September, October and November 2009.
On my review of the video evidence it demonstrated that on October 10, 2009 the worker handled a ladder that he handed to a person from the ground level to the second floor (deck) over head, requiring bending, reaching and lifting. He did not exhibit any degree of restriction, limitation or pain while doing this. He was seen climbing stairs up to his cottage’s second storey without any problems or pain indicated. He was then seen bending to ground level and lifting a ladder again without limitation in handing it to another person. There was no stress indicated from these activities and he did these actions without any duress and with significant fluidity and flexibility for a 62 year old. Minutes later the worker was seen walking on the roof with a small piece of sheet metal (I would estimate it to be at least 3’x5’) and he was seen bending and walking with it with a tool in his hand at the same time. It was very awkward to handle as he was required to re-adjust it halfway across the roof as he walked with it. The worker was handed this piece of metal at the edge of the roof. He handled the piece of metal with no problems other than to adjust it due to its size. To me this demonstrated the confidence the worker had with his back and his ability to have stability etc., such that he was not afraid of and was not apprehensive at all about standing on the edge of a two storey roof. The worker was also seen crouching and bending down to manoeuvre himself underneath an antenna on the roof without hesitation or signs of pain or any apprehension. He also climbed down (descended) off the roof from a ladder like TV antennae.
In the afternoon of October 10, 2009 the worker was seen working on the roof of his cottage repairing the leak as he had testified. Here, he was seen in a bent and crouched position for several minutes and was able to stand from this position without any discomfort or pain noted whatsoever on a number of occasions. In fact he raised himself in quite a fluid and smooth state and with significant speed for an individual who had been exhibiting such significant features of pain to his specialist just two weeks prior. He had at this point therefore demonstrated by his actions, significant physical change and improvement such that he, in my conclusion, was considered partially impaired and not totally unable to at least enquire about his available suitable work.
The following day October 11, 2009 the worker was seen walking again at a reasonable and not a slow pace as he suggested and did not appear to be in pain as he suggested at the hearing. The worker was seen descending a number of stairs at the cottage with some luggage or a bag of some sort without any difficulties and was seen in a bent position with no exhibition of any pain at all. Shortly after this he was seen carrying a propane tank that normally for a person even with a healthy back is somewhat awkward to carry – but the worker exhibited no difficulties in carrying it rather fluidly from one edge of his property to his boat or storage shed of approximately 45 feet in distance.
Employers and workers are obliged under the Act to co-operate in the worker’s early and safe return to suitable and available employment. The workplace parties must co-operate with each other in the ESRTW process. Co-operation means maintaining communication with each other, working towards identifying a suitable and available job for the worker, and fulfilling reporting obligations to the WSIB
Review of the DVD’s – specifically the second one for the dates of October 10, 11, 2009 allows me to conclude that the worker must have either improved from his medical examination from September 25, 2009 or he was not appropriately reflecting to his doctors his true level of pain or abilities in his medical examinations around the same time. At the very least the worker knew, as he has testified, that suitable work was available at his employer at the time of the DVD surveillance. In my conclusion the worker demonstrated the ability to do some work on October 10, 11 2009 and he would not have been be considered totally incapable of any work as demonstrated by the findings reflected by the DVD. The worker also did not make himself available for work the employer had offered as suitable. As the worker did not make himself available for employment we cannot conclude that the work was not suitable. The worker in my conclusion was partially impaired and by not at least making an effort to attempt the work offered by the employer the worker’s side cannot successfully argue that the work was not physically suitable or sustainable. Without the worker at least making the attempt, I can only conclude that the employer had work available and from the description on file it appears to have been suitable and sustainable until demonstrated or proven otherwise which the worker did not do.
As for the medical information provided in the November 11, 2009 report after the surveillance material for October 10 and 11, 2009, there are no physical findings offered to allow me to change my conclusions made. That is, with only subjective complaints of pain I have no evidence to substantiate any significant change from the date of the DVD on October 10 and 11th 2009 to date. I do not see where the worker has sought any additional treatment or epidural blocks for the pain or disability. I have no reason to believe this would not be covered by provincial health coverage rather than WSIB should the worker have required or sought it through his attending doctor or the specialist. There was also no additional medical evidence provided up to the date of this hearing to substantiate anything other than my finding of partial impairment. I would conclude therefore, that the worker is entitled to full LOE benefits from August 14, 2009 to October 10, 2009 when he demonstrated the ability to at least attempt the offer from the employer but did not pursue it.
CONCLUSION
The worker’s objection is allowed in part.
The Case Manager is to process full LOE benefits from August 14, 2009 to October 10, 2009 less any assignable benefits. The worker is not entitled to any additional LOE benefits up to the date of this decision as no new evidence was presented to me from a medical perspective. Any request for additional entitlement or benefits beyond the date of this decision is at the discretion of the case manager.
DATED September 21, 2010
M. Kalbfleisch
Appeals Resolution Officer
Appeals Branch