Workplace Safety and Insurance Board
Appeals Resolution Officer Decision
Decision Number: 20110004
Objection By: The Worker
Employer: Participating
Hearing Date: January 19, 2011
Attendees: Worker, Worker Representative, Employer, Employer Representative, Observer
ISSUES
The worker objects to the decision to discontinue loss of earnings benefits effective May 18, 2009, on grounds that he had recovered from his compensable injuries and was fit to resume his pre-injury work.
HOW THE ISSUES ARISE
On November 29, 2007, this then 51 year old construction labourer was stripping plastic tarps while walking on thin sheets of plastic covering concrete curbs. A gust of wind blew against the tarps being held by the worker, causing him to be thrown to the curb onto his left side. Initial entitlement was accepted for soft tissue injuries affecting the left shoulder, hip, arm and elbow. Following the workplace accident, the worker was treated conservatively for his injuries with regular physiotherapy treatment.
Loss of earnings (LOE) benefits were granted from November 30, 2007 until December 21, 2007, at which point it was considered the worker was cleared and fit to return to the modified duties as offered by the accident employer and determined suitable. The worker returned to modified duties on February 11, 2008, on graduated hours of work.
The worker’s continued left shoulder symptoms, despite a lengthy period of physiotherapy, led to an MRI scan on March 17, 2008, which revealed a high grade partial thickness tear of the left rotator cuff, accepted as compensable. The worker went on to orthopaedic assessment, followed by acromioplasty and repair surgery on January 20, 2009.
Loss of earnings benefits were reopened on January 20, 2009, consistent with the left shoulder surgery. Post operatively, the employer again offered modified duties in inventory control, clerical and administrative duties and safety inspections. However, the medical reporting from the worker’s treating physicians and surgeon offered restrictions which prohibited a return to work until April 2009. The restrictions at that point, included the worker’s inability to drive his vehicle, which precluded him from getting to the worksite to carry out the offered modified duties.
The employer subsequently submitted video surveillance evidence for May 18, 2009, which they considered revealed the worker was misrepresenting his functional abilities. The worker’s employment was subsequently terminated.
The case manager reviewed the submitted video evidence and based on the viewed actions of the worker on May 18, 2009, accepted there were no precautions against driving beyond May 17, 2009, as alleged. It was determined that not only was the worker fit to drive and perform the offered modified duties, but that he had no ongoing impairment beyond May 17, 2009, which would preclude a return to the essential duties of his pre-injury job (June 1, 2009 and February 3, 2010 decisions). Consequently, LOE benefits were paid to May 18, 2009 and closed.
The worker objected and the matter of continued benefit entitlement is now under consideration.
AUTHORITY
Operational Policies:
11-01-05, Determining Maximum Medical Recovery
11-01-08, Audio/Visual Recordings
18-03-02, Payment of LOE Benefits
19-04-06, Suitable Employment
TESTIMONY AND SUBMISSIONS
The worker testified under oath. The worker’s representative and employer made submissions on behalf of the worker and employer, respectively.
The worker stated that he started construction work in 1999, when he joined the labourers’ union. He was hired in 2007 with the accident employer to work as a linesman. The company mainly did concrete work, sidewalks, curbs and barrier walls. He worked primarily as a linesman for the company, setting up the lines for the curb machine which laid the forms and concrete down in the shape of a curb or sidewalk. He also drove the float, helped form concrete and guide the chute on the concrete truck.
The worker indicated that before the work injury, he had a good relationship with his employer and superiors. He was also in good general health and had no shoulder problems. On November 29, 2007, he was taking the tarps off the curbs. One had blown away and as he went to reach for it, he slipped and fell, injuring his left shoulder. In the days that followed, he experienced excruciating shoulder pain and was prescribed narcotic pain medication. While his employer had offered modified work shortly following the accident, he wasn’t ready to return to work due to the degree of pain and effects from narcotics medication for pan, and this was supported by his physician.
The worker stated that he did eventually return to work in February 2008 until the Christmas shutdown in December 2008. He then returned in January 2009 and worked for about 1 ½ weeks until his January 20, 2009 surgery. During the interval of return to work, the worker indicated that he worked for about 3 months in flagman duties, but mainly worked in the company’s Richmond Hill shop, painting curb moulds. He also had to chip off pieces of concrete off the moulds before painting them and this bothered his left shoulder. As well, the drive to work and back was 2 hours one way and was problematic as he was still taking a significant amount of narcotic pain medication. The seatbelt irritated his shoulder and he had to stop to have a short nap both ways.
The worker indicated that his shoulder pain continued which resulted in seeing the surgeon, Dr. McKenzie, and subsequent left shoulder surgery on January 20, 2009. He was then faced with a post-operative period of recovery. He wore a sling full time for about 10 weeks and saw the surgeon in follow up about every 4 weeks. In early March 2009, Dr. McKenzie recommended physiotherapy and there was a discussion with the surgeon about return to work. The surgeon advised that he was not fit to return to work because he needed physiotherapy treatment and he couldn’t drive because of the intake of narcotic pain medication, reduced range of shoulder motion, the concern of possibly aggravating the shoulder and the worker’s inability to handle emergency situations in the long drive to and from work. In the March 2009 visit, Dr. McKenzie considered he could return to work in about 3 months.
The worker confirmed he did receive the employer’s March 5, 2009 offer of modified duties which were to start on March 16, 2009. At the time the offer was made, his arm was still in a sling, he hadn’t started physiotherapy yet and was restricted from driving, but he was willing to consider a return to work if the company provided a driver to get him to and from work and provided more details about the work that was being offered. This is what he asked of the employer in his faxed response to their offer, on March 5, 2009. He also discussed the need for transportation to get to work, with the case manager, on March 5, 2009. There was no response about transportation arrangements to work and, until his surgeon cleared him to drive, he couldn’t return to modified duties.
The worker stated that over the next several months and with physiotherapy, his left shoulder condition steadily improved, but he was still not capable or authorized to drive. His wife drove him to his appointments. It was not until mid-July 2009 that he first attempted to drive, as the surgeon took the driving restrictions off and his narcotic medications were changed. There were no further follow ups with the surgeon after July 2009.
With respect to the video surveillance, the worker confirmed that it was him along with two other males captured on video. He added that he knew he was being watched because the private investigator had been hanging around for a while already and had even trespassed onto his property at one point. He didn’t consider the investigator was keeping their identity too hidden. Regarding the captured May 18, 2009 activities, the worker acknowledged that he was assisting his brother in law and father in law, in putting up a 10 by 12 foot canopy. He had taken some Percocet that morning, was primarily using the right hand and was not moving with any great haste. The activity was carried out for a brief period and in an attempt to gradually use his left arm before going back to work. According to the worker, “you have to crawl before you can walk.” Yet, he ended up spending the rest of the day in bed because of the pain experienced from this exercise and he did not try using the left arm again in any other physical chores. He still wasn’t in a position in mid-May 2009 to make the lengthy drive to modified work.
The worker noted that after this video was received by the case manager, his benefits were cut off and his claim closed. With the closure of benefits, his employer terminated his employment, which was subsequently grieved. He noted that the case manager did not contact him to discuss with him the video activities. The worker added that he went on sick benefits through Employment Insurance (EI) for 15 weeks. He even paid for further physiotherapy himself for another 8 weeks until August or September 2009. In the interim, he found work at the end of July 2009, working part-time driving a tour bus (automatic). He moved up to full-time as of April 2010. Then, from April 2010 to July 2010, he worked as a flagman on a road construction site. Since July 2010 to date, he has worked as a full-time transport truck driver.
The worker indicated that he probably could have returned to his regular duties as a construction labourer by around September or October 2009, after therapy ended which he paid for himself. However, to date, he did not consider his left shoulder condition had fully recovered to the extent it was before his accident. He still experiences pain, numbness and reduced range of motion. He cannot raise his left arm above his shoulder, can only lift half of what he could have pre-injury and has reduced strength.
The worker’s representative submitted that before the work injury, the worker did not suffer from any left shoulder problems, had no difficulties with his duties and encountered no disciplinary measures from his employer. After the slip and fall accident at work, the WSIB did not seem too persuaded about the severity of the left shoulder injury and some of the early medical records suggested suspicion that perhaps the worker might be exaggerating his symptoms. However, we learned later in the reporting of the orthopaedic surgeon, Dr. McKenzie, and MRI that in fact the worker had sustained a tear in his left shoulder. Seven months after the accident, the surgeon reported no improvement and that the worker was reliant on strong narcotic medication. These had the benefit of reducing symptoms but with the unfortunate side effects of drowsiness and impacting on the worker’s ability to drive. Before his surgery, the worker was driving while taking these strong medications and while they should have been concerned, the WSIB made no comment on this matter. Nonetheless, except for the end of season break, the worker worked until his left shoulder surgery on January 20, 2009. The surgeon’s follow up of March 3, 2009, then documented the worker had physical restrictions, was not to drive and his return to work was dependent on his response to physiotherapy, with an estimated return to work in 3 months.
The worker’s representative added that when the employer issued the March 5, 2009 letter to the worker, reiterating the modified duties that were offered, there was no mention as to whether transportation would be offered. The worker’s faxed response not only asked for clarification of the duties but his primary concern was the issue of transportation to and from work. The worker advised the case manager on March 5, 2009 that if transportation could be arranged, he would consider a return to work. Clearly, the worker had indicated a willingness as of March 2009 to return to suitable work. However, the 125 km drive each way to work was a daunting task, with public transit not an option and taxi considered prohibitively expensive. The representative submitted that the necessary return to work intervention by the case manager was not carried out as it should have at this point, to try to resolve the transportation issue that had become a barrier to return to work. All the while, medical reporting maintained the worker had restrictions and couldn’t drive, and contact with the physiotherapist confirmed such on May 7, 2009.
The worker’s representative indicated that the video evidence subsequently submitted by the employer did not capture the worker driving as they claimed he was doing. It was submitted that the information caught on tape, a total of 24 minutes over the course of a day, was not persuasive as to have resulted in terminating the worker’s benefits and certainly insufficient to conclude there was no permanent impairment. It was considered there was sufficient argument to conclude the worker did not act out of character, as he was not claiming total disability, was ready for modified work, but there was a transportation barrier in place that was not addressed. Reference was made to the WSIB’s video/audio recordings and it was submitted, that the policy was not followed in terms of the weight given the video, to the exclusion of the medical evidence and without any discussion with the worker. It was concluded that the surveillance should not have been persuasive in terminating benefits. In terms of benefit entitlement, there is medical confirming ongoing treatment and the worker paid for further therapy on his own. It was submitted the worker did not make a full recovery but, made efforts to mitigate his wage loss by returning to work initially part-time and then full-time.
The employer submitted that the activities the worker had performed pre-injury did not involve many physical activities, as he was doing linesman work, string lining, setting up lines, flagging and operating a chute on the construction site for concrete trucks. These were not typical general physical labourer activities, just what he was doing before his accident. The employer had accommodated the worker before his surgery and could have accommodated him post-surgery, to include his medical appointments and hours, as noted in the employer’s letters. Through his employment the worker received numerous modified work offers and he was aware of the employer’s ability to accommodate him. After surgery, the employer did not receive any contact from the worker until the letter of termination. It was the employer’s position that, if the worker was able to attend physiotherapy and was not totally disabled, he could have attended modified duties. It was noted that the treating physician had documented in many reports, no driving with the concern of further hampering the recovery process of the shoulder. However, the doctor also said no lifting, stair climbing, use of left extremity, but the worker went against those restrictions and seemed normal while being video taped without any pain or discomfort. In the employer’s opinion, the activities witnessed in the video would entail the worker could return to his pre-injury duties. In conclusion, the employer fully supported the decisions for benefit closure and full recovery.
ASSESSMENT OF THE EVIDENCE
In arriving at a decision on the presenting issues, I have considered the evidence on file, testimony and submissions made.
The medical evidence and MRI of March 17, 2008 reveal that the worker sustained a significant left shoulder injury as a consequence of the November 29, 2007 workplace accident. On June 10, 2008, Dr. McKenzie recommended open rotator cuff and acromioplasty, noting no improvement with a significant course of physiotherapy and, in view of such a high grade partial thickness supraspinatous tear that was approximately 4 millimetres deep.
The worker had surgery on January 20, 2009 and was reviewed post-operatively on March 3, 2009, when updated medical reporting was submitted to the WSIB. Dr. McKenzie then documented the worker was progressing but required physiotherapy. He was limited in lifting, climbing stairs/ladders, use of upper extremities, and operating heavy equipment. The worker was precluded from driving and, a return to work was estimated for 3 months and dependent on his response to physiotherapy.
The worker commenced physiotherapy treatment on March 11, 2009 and the reporting on this date by the physiotherapist noted the worker was restricted from a return to work, “as per surgeon.”
On April 7, 2009, Dr. McKenzie documented the previously indicated limitations remained in effect to include the worker’s inability to drive a car.
On April 21, 2009, the physiotherapist still noted reduced range of motion and the worker could not move the shoulder quickly. Complicating factors included the long history of disability and severity of injury with surgery. The worker was still precluded from a return to work in accordance with the surgeon’s instructions.
On April 29, 2009, the case manager spoke with the worker and advised he would continue to monitor the worker’s progress and ability to return to work, until such time as he could operate a vehicle safely. The WSIB medical consultant was then asked to contact the worker’s treating professionals to discuss the worker’s ability to drive the distance of 125 km each way to work.
As documented in memo #84, on May 7, 2009, the WSIB medical consultant contacted the worker’s treating physiotherapist, not surgeon. The physiotherapist indicated he had received an April 8, 2009 note from the surgeon stating it would be another 6 weeks from that date before the worker could try driving. The therapist noted the worker was improving and remained fit for modified work with restrictions and should be able to start driving by the end of May 2009. At that point, they suggested perhaps a functional abilities evaluation be carried out to delineate the worker’s functional abilities.
On May 12, 2009, the physiotherapist reported increased left shoulder mobility and improving function. The worker still had restrictions on lifting, climbing, use of his left upper extremity and operation of a motor vehicle.
On May 20, 2009, the employer contacted the case manager indicating they had evidence the worker was driving. A May 22, 2009 letter was submitted in addition to a surveillance video for May 18, 2009. It is based on the worker’s actions viewed on this video that caused the case manager to determine the worker had recovered from his left shoulder injury and for the employer to discontinue the worker’s employment.
I have viewed the video and note that surveillance took place on one day, May 18, 2009, from 7:30 a.m. until 3:30 p.m. Yet, it is noteworthy that for most of this period, there is little or no reportable activity observed, except for 24 minutes. The period at issue extends from 12:15 p.m. until 12:39 p.m., during which the worker along with two other males, is observed to be putting up a canopy over a patio area. The worker is seen using his left arm overhead, lifting, pulling and working off a ladder to fix the canopy. However, these activities that are performed with others, appear very paced and not carried out with any haste, or performed repetitively or for a prolonged period of time. This sort of activity for the short duration seen, does not in my judgement connote that the worker could carry out a 125 kilometres drive to work and back. It is evident rather, that the worker could use his left arm/shoulder for limited periods to perform modified work, which he did not discount. He was not claiming to be totally disabled. The employer was aware he could perform modified duties in May 2009, but he needed transportation to get to work and this barrier was not appropriately addressed.
Policy relating to audio/visual recordings provides that caution must be exercised when determining the weight to give information revealed in recordings because often such recordings make a dramatic impact on the viewer and, in general, recordings can be selective in not recording when a worker rests or experiences pain. The worker indicated that he was in a lot of pain following the activities seen on video and spent the rest of the day in bed as a result, but surveillance did not capture that. As such, evidence from audio/visual recordings should be considered along with all the other evidence. If the worker’s physical abilities are viewed to be inconsistent with the health care reports on file, then a health examination of the worker can be requested, but this was not done. Thus, I consider the surveillance evidence extremely limited and not compelling in leading to a finding that the worker could carry out the lengthy drive necessary to get to modified duties and certainly does not support he had recovered from his left shoulder injury by May 18, 2009.
The latest medical report on file, subsequent to May 12, 2009, is that of Dr. McKenzie, dated July 14, 2009. It was on this assessment that the surgeon removed the driving restriction. Yet, the worker still had restrictions on heavy overhead lifting. He was considered 85% improved and to continue with physiotherapy. By this point, the worker had been let go from his employment due to the perceived video evidence, with no return to work option with the accident employer. The worker’s evidence was that he continued with physiotherapy on his own and returned to work in several different jobs, as of late July 2009, initially part-time followed by full-time work.
The foregoing evidence establishes that as of May 18, 2009 and until July 14, 2009, the worker remained partially impaired, active in his medical rehabilitation and unfit to return to the modified duties as offered by the accident employer, until July 14, 2009. As such, he would be entitled to continued full LOE benefits from May 18, 2009 to July 14, 2009. Medical subsequent to July 14, 2009 is lacking to allow a determination on level of continued impairment, maximum medical recovery and permanent impairment, and it is noted the worker returned to alternate work as of late July 2009.
CONCLUSIONS
The worker is entitled to further full LOE benefits (less EI benefits), from May 18, 2009 to July 14, 2009. Medical subsequent to July 14, 2009 is lacking but required to determine the level of continued impairment, maximum medical recovery, as well as permanent impairment, and such further determination will have to be left to the discretion of the operating area.
The objection is, therefore, granted.
DATED January 31, 2011.
S. van Veen Appeals Resolution Officer Appeals Branch