Worker v. None, 2015 CanLII 27302

WORKPLACE SAFETY AND INSURANCE BOARD

APPEALS RESOLUTION OFFICER DECISION

DECISION: 20150022

DECISION DATE: May 12, 2015

OBJECTING PARTY: Worker

REPRESENTED by: Worker Representative

RESPONDENT: None

HEARING: Hearing in Writing

HEARD by: B. Craddock, Appeals Resolution Officer

ISSUE(S)

1. The worker is objecting to the Case Manger's (CM) decision of October 31, 2014 which concluded

• the worker had fully recovered from his low back injury and there was no organic permanent impairment/non-economic loss (NEL) entitlement, and
• the retroactive termination of loss of earnings (LOE) effective January 28, 2014, resulting in the creation of a recoverable overpayment of $36,422.06.

2. The worker is objecting to the CM's decision of November 4, 2014, which denied entitlement under the Chronic Pain Disability (CPD) and Psychotraumatic Disability Policies.

BACKGROUND

This claim was established for a low back injury on April 12, 2007. On that date, this then 37-year-old worker was employed as a team leader with an automotive manufacturing plant. He had been employed with the injury employer since 1988. The worker reported an onset of back pain while bending and lifting over an 8-hour period.

The worker has a prior claim with the same employer with an accident date of October 21, 1997. Entitlement was accepted for an L5-S1 disc herniation in the prior claim and in 1998 the worker required laminectomy and decompression. In June 1999, the worker was awarded a 12% NEL in the prior claim for the L5-S1 disc herniation. Following the surgery, he was able to return to work with the employer and continued to work until the further onset of back pain in April 2007

The current claim was accepted for an aggravation of the pre-existing L5-S1 disc herniation.

The worker underwent revision of the laminectomy and discectomy on November 13, 2008. On January 17, 2013, he required further surgery, including revision with transforaminal lumbar interbody fusion with titanium contact fusion cage, pedicle screw reconstruction with titanium implants, and bone grafting. According to the medical on file, the worker also underwent cervical spine surgery in January 2013. There is no entitlement for the cervical spine in this claim.

At the April 12, 2013 lock-in date, the worker was in the early stages of recovery following the January 17, 2013 surgery. LOE continued as the worker was not a maximum medical recovery and was participating in medical rehabilitation. In addition to the physical complaints, the worker reported symptoms of depression and anxiety, which he related to the April 12, 2007 injury. He received psychological treatment and entitlement was extended under the Psychotraumatic Disability Policy for Major Depressive Disorder.

It was determined that the worker was unable to return to his pre-injury job duties, which were physical in nature, requiring bending and lifting. The employer was unable to accommodate in suitable work. The CM made efforts to contact the worker to participate in Work Transition (WT) activities. The worker maintained that he was severely disabled and unable to participate in activities because of intractable pain, limitations of function, and psychological symptoms.

Given the worker's claim in 2014 of significant disability and inability to participate in WT Services, as well as the CM’s difficulty in contacting the worker at home, surveillance was initiated. The surveillance was conducted between April 3, 2014 and June 26, 2014. The CM was of the view the surveillance evidence indicated that the worker was not as disabled as claimed. During a meeting with the CM and his Representative, the worker agreed that he was partially disabled and able to participate in WT Services. A referral was made to WT. The worker continued to receive LOE Benefits up to October 14, 2014 based on the CM’s finding that the worker continued to be partially disabled.

Subsequently, the file was reviewed by a different CM, who concluded that the worker had misrepresented his level of disability and that the surveillance evidence demonstrated that he had fully recovered from his work-related low back injury and was no worse than the level recognized by the 12 % NEL in the prior claim. The CM concluded that full recovery had been achieved by January 28, 2014. In the CM’s opinion, the worker had falsely represented his level of impairment, and accordingly, benefits paid between January 28, 2014 and October 14, 2014 were rescinded and a recoverable overpayment created in the amount of $36,422.06.

A review was also conducted of the worker's entitlement under the CPD and Psychotraumatic Disability Policies. The CM noted that the treatment notes from the worker's family doctor indicated that the worker had a pre-existing psychological condition for which he had received treatment. The CM noted that this was in direct contradiction to the evidence that the worker had provided to the treating practitioners. The CM concluded that the worker did not meet the criteria for entitlement under the CPD Policy, nor did the worker have ongoing entitlement under the Psychotraumatic Disability Policy.

Given the conclusion that there was no ongoing entitlement in this claim either on an organic or non-organic basis, there was no entitlement to WT Services.

AUTHORITY REFERENCES

Policy 11-01-15 – Aggravation Basis

Policy 18-03-02 – Reviewing LOE Benefits (Prior to Final Review)

Policy 18-03-06 – Final LOE Benefit Review

Policy 11-01-18 – Audio/Visual Recordings

Policy 22-01-02 – Material Change in Circumstances – Worker

Policy 15-04-02 – Psychotraumatic Disability

Policy 15-04-03 – Chronic Pain Disability

ANALYSIS

Issue #1

The Worker Representative requested a Hearing in Writing and I am required to provide a decision within the allotted 30-day timeframe based on the information on file. The surveillance videos were not provided with the objection and my review is based on the information on file, including the detailed surveillance report.

Having reviewed the evidence in the file record and the applicable Policies, I find that the objective evidence establishes that the worker did not recover from the aggravation of his pre-existing work-related disc herniation and has a permanent impairment arising out of the April 12, 2007 low back injury. Additionally, I find there was no basis for the retroactive closure of LOE, nor was there a basis for the creation of a recoverable overpayment.

I find that the CM did not have regard for the cautions in Policy 11-01-08 when considering video evidence, and consequently, made unsupportable conclusions on what the video evidence demonstrated.

The Policy states the following:

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.

The points of concern as noted in the reporting of the surveillance are:

• the worker attended two medical appointments using his cane, but not using his cane on several other occasions.
• the worker was observed to carry two bags of soil from his garage to the back yard (one at a time).
• the worker was observed to carry some bags of garbage to the front yard (weight of the bag unknown).
• the worker was observed to carry a couple of small size blue boxes to the front of his home (the boxes appeared to contain only empty plastic bottles and cans).
• the worker was observed to do some grocery shopping using a half sized cart and carrying only 2 small plastic bags.
• the worker was observed to bend down and pick up some papers off the ground.
• the worker was seen retaining another person to cut his lawn with the worker pushing the mower a few feet into the garage
• the worker did not operate the mower or cut his own grass

The Policy also states that evidence from audio/visual recordings is considered in conjunction with all other evidence. In this case, the CM disregarded all other evidence, including the highly persuasive objective medical reporting.

As noted by the Worker Representative, surveillance was conducted over 15 days. The worker was observed on only 5 days out of the 15 days. There is no evidence of the worker’s activities on the majority of days, which goes to the selective nature of the surveillance evidence. Out of the 5 days where the worker was observed, he performed tasks around his home on one day only. The worker maintained that he had good days and bad days and was highly medicated on the day in question.

The lack of evidence of any sustained activity and the lack of evidence of the worker leaving his home on 10 out of 15 days is suggestive of someone significantly disabled, though occasionally capable of some activities of daily living. There is nothing in any of the surveillance evidence to support that the worker is capable of performing his regular job duties on a daily basis. The CM has taken snippets of time and extrapolated to determine a level of functionality that is not indicated in the video surveillance. The worker’s ability to pick up some paper on his lawn or carry a light bin of empty bottles does not provide any meaningful insight with respect to the worker’s ability to perform his pre-injury job duties on a daily basis.

While the surveillance demonstrates the worker was able to do some activities of daily living on an occasional basis, and also, that his use for the cane was selective, his demonstrated abilities are not grossly different from his claimed level of impairment. There is no sustained physical activity indicated in the surveillance reports and an individual does not have to be homebound or bedridden to be considered to have significant impairment.

Also, the Policy directs that where the video evidence raises questions about the true level of impairment, further medical assessment should be arranged to address any discrepancies. The CM could have requested a Functional Abilities Evaluation, an Independent Medical Assessment, or even by a Medical Consultant review of the video evidence and medical reporting. No further clarification or medical review was requested.

Video evidence is suggestive not determinative. On its own, video evidence cannot be used to determine whether or not the worker has an actual impairment. Nor can video evidence cannot be used to measure the worker's active range of motion or whether or not there is neurological impairment. Yet, in this case the surveillance evidence has been used in exactly that manner with the CM concluding that the worker's range of motion is no worse than that assessed by his previous NEL when all of the medical evidence is contrary to that conclusion.

The conclusion that the surveillance evidence supports the worker is not below his NEL level is simply not supportable. The worker has had two surgeries subsequent to the work related injury of April 2007. The CM has dismissed the surgeries impact on the level of impairment on the basis that surgeries are expected to improve the worker’s condition. While that may be so, the surgeries were recommended because the worker’s condition had deteriorated from the previously accepted level of impairment. The surgeries were expected to improve the worker’s functioning relative to his deteriorated state not the pre-injury state. Also, the medical indicates the worker is considered to have “failed back syndrome” which means that the surgeries did not result in the desired improvements.

In assessing whether the worker has a permanent aggravation of the pre-existing work-related disc herniation, the current findings must be compared to the findings at the time of the 1999 NEL assessment. The objective evidence from multiple treating doctors indicates that the worker's range of motion is significantly worse than at the time of 1999 NEL assessment. Flexion of the lumbar spine was 15 degrees where it was previously 45 to 50 degrees; extension was 7.5 degrees where it was 25 previously; straight leg raising was 20 degrees on the left where it was previously 70 degrees and 45 degrees on the right where it was previously 70 degrees; and lateral flexion was 15 degrees where it was 25 degrees previously.

Despite the lack of any indication from the treating practitioners to support that the worker was deliberately limiting his range of motion, the objective findings have been disregarded as subjective and unreliable. I find that the worker’s range of motion has been consistently recorded by multiple examiners and those findings are consistent with the MRI findings, the further surgeries and the significant hardware and instrumentation, all of which would be expected to limit the worker’s range of motion.

In addition to the range of motion findings, the evidence also indicates that the worker has neurological impairment where there was none previously. EMG/nerve conduction studies documented a sub-acute left S1 axonal radiculopathy. There was also documentation of an absent H-reflex on the right side from the lower limb suggesting some evidence of sub-acute radiculopathy on this side as well.

Finally, the further surgeries would in and of themselves warrant a review under Tables 53 and an increase in the NEL award. Therefore, the evidence is overwhelmingly in favour of a worsening from the pre-injury level and supports the existence of a permanent aggravation/impairment as a result of the April 12, 2007 injury. The worker is therefore entitled to a NEL.

Issue #2

Having reviewed the applicable policies and the reporting on file, I find that the worker does not meet the criteria for entitlement under the CPD Policy.

The CPD Policy stipulates that not all cases of chronic pain are adjudicated according to this Policy. Where the pain is predominately attributable to organic causes, the claim is adjudicated under the organic guidelines. The worker has had three low back surgeries and has been diagnosed with “failed back syndrome.” The worker’s pain is consistent with the organic diagnoses. As already stated, he warrants a NEL assessment under the organic guidelines.

On the issue of entitlement for Psychotraumatic Disability, I find that there is insufficient evidence to support that the worker has met criteria for entitlement under the Psychotraumatic Disability Policy.

Psychotraumatic Disability can be accepted

• As an indirect of a physical injury, emotional reaction to the accident or injury, severe physical disability/impairment, or reaction to the treatment process, or
• Where it is shown to be related to extended disablement and to non-medical, socioeconomic factors, the majority of which can be directly and clearly related to the work-related injury.

There is extensive reporting on file from a treating Psychologist and the Psych-Trauma Program (PTP). There have been multiple diagnoses, including Major Depressive Disorder, Chronic Pain Disorder, Anxiety Disorder (with and without Panic Disorder), as well as possible Obsessive Compulsive Disorder. The November 2, 2014 report form the Psychologist indicated the worker was at maximum medical recovery and further treatment was unlikely to be of benefit.

Although both the treating Psychologist and the PTP concluded the April 12, 2007 was a major contributor factor to the psychological symptoms, the worker was not forthright in his reporting to the examiners, denying prior psychological symptoms when the evidence indicates he had previously been diagnosed with and treated for anxiety disorder. Also, although it is accepted the worker experiences chronic pain, this is attributable to organic causes.

There is also evidence in the reporting that the worker has other psycho-social issues contributing to his situation, not all of which were clearly and directly attributable to the worker injury. There are other non-work-related physical issues that were clearly contributing to the worker’s overall pain experience, including cervical spine problems.

Although the worker may have had a temporary exacerbation of psychological symptoms, there is insufficient evidence to support a permanent impairment and the worker is considered to be recovered from any accident related psycho-pathology by November 2, 2014.

Benefits Arising Out Of This Decision:

Because the video evidence on which the decision was based did not exist until April 2014 and because the WSIB accepted the worker was partially disabled and entitled to further LOE and WT, I find that retroactive closure of the worker's benefits to January 28, 2014 perplexing. Given the permanent impairment, the worker is entitled to full LOE benefits retroactive to January 28, 2014, which nullifies the existing overpayment.

On the issue of LOE from October 14, 2014, the information on file from the treating doctors indicates that the worker is capable of sedentary employment. He has restrictions on

• bending, twisting, lifting,
• overhead work
• heavy pushing or pulling,
• lifting to a maximum of 5 pounds
• kneeling or climbing, and
• operation of heavy equipment.

The worker is entitled to WT Services, the determination of a Suitable Occupation (SO) as well as appropriate hours of work.

CONCLUSION

1. The worker is entitled to a NEL for permanent aggravation or the prior low back impairment.
2. The worker is not entitled to benefits under the CPD or Psychotraumatic Disability Policies.
3. The worker is entitled to full LOE Benefits from January 28, 2014 up to October 14, 2014.
4. The worker’s entitlement to LOE from October 14, 2014 is left to the determination of the Operating Area relative to the worker’s participation in WT and the determination of a SO.

The worker's objections are granted in part.

DATED May 12, 2015.

B Craddock

Appeals Resolution Officer

Appeals Services Division