WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
Decision number: 20150026
DECISION DATE: April 14, 2015
OBJECTING PARTY: Worker
REPRESENTED by: Worker Representative
RESPONDENT: Employer
REPRESENTED by: Self-Represented
HEARING: Hearing in Writing
HEARD by: D. Hart, Appeals Resolution Officer
ISSUE
The worker is requesting a finding that he is unemployable and entitled to full Loss of Earnings (LOE) benefits from October 21, 2014 until age 65.
BACKGROUND
The background details are outlined in Appeals Resolution Officer (ARO) decisions dated April 4, 2011, April 15, 2014 and a Workplace Safety and Insurance Appeals Tribunal (WSIAT) decision dated June 18, 2013.
The WSIAT decision concluded:
- The worker was granted entitlement to Chronic Pain Disability and a related Non-Economic Loss (NEL) Assessment
- He was entitled to LOE benefits for periodic days lost from the Labour Market Re-Entry program between October 8 and 13, 2009 as well as days missed in January 2010 with the exception of January 6, 28 and 29
- The worker is entitled to full LOE benefits from September 24, 2010 and ongoing
Although it is not specifically referenced in the disposition of the WSIAT decision, the panel documented in paragraph 71 that the preponderance of evidence indicates the worker was unemployable. Accordingly, he has entitlement to 100% LOE benefits effective September 28, 2010 and ongoing.
The date of accident is May 9, 2005 and by the time of the WSIAT decision the legislated final LOE benefit review had already taken place on June 6, 2011. Since the worker underwent a NEL assessment for CPD, this triggered a further review of the final LOE benefit entitlement. To prepare for this review, the decision maker contacted the worker and discussed his activities of daily living and perceived functional abilities; he agreed to participate in a multidisciplinary health care assessment for improvement in his quality of life and functioning. Additionally, the decision maker requested video surveillance of the worker to assist in assessing his level of functioning.
In a decision dated October 6, 2014, the decision maker concluded the worker misrepresented his level of disability and adjusted his LOE benefits effective October 21, 2014 to reflect his ability to earn $11.00 per hour at 40 hours weekly. This decision concluded:
- The worker continues to be partially impaired
- He has permanent restrictions for the low back which do not preclude him from working in a sedentary job such as customer service and related clerks or light assembly
The worker representative’s position:
- The prior WSIAT decision is self-explanatory and confirms that the worker was and continues to be unemployable.
- The video surveillance evidence based on 3 hours and 41 minutes of activities only shows the worker engaging in normal activities such as walking his dog, bending over a few times, picking up a pizza, talking to a few friends and neighbours and going to a few stores.
- The evidence on which the decision maker relied to make the final LOE benefit decision is not significantly different from the evidence considered by WSIAT who found the worker unemployable. The worker should therefore be entitled to full LOE benefits to age 65.
AUTHORITY
Policy: 11-01-08 - Audio/Visual Recordings.
Policy: 18-03-06 - Final LOE Benefit Review.
Workplace Safety and Insurance Act (the Act).
Section 44 (2.1)
ANALYSIS
I find the evidence does not support the worker is unemployable and his LOE benefits were adjusted appropriately effective October 21, 2014.
The WSIAT decision dated June 18, 2013 was based on the evidence available at the time of the hearing on March 1, 2012 as well as the worker’s testimony and his representative’s submission.
Section 44 (2.1) of the Act gives the WSIB authority to revisit the final LOE benefit entitlement under certain circumstances. The particular circumstance that applies in this case is:
“After the 72 month period expires, the worker suffers a significant deterioration in his or her condition that results in a redetermination of the degree of the permanent impairment under section 47”
The decision maker determined that, while the WSIAT decision granted entitlement to 100% LOE benefits from September 24, 2010 and ongoing, the decision did not address the level of benefits to be paid to age 65. Additionally, the WSIAT decision did not address the issue of the final LOE benefit review. The decision maker thus revisited the final LOE benefit entitlement in light of the NEL assessment for CPD as authorized by section 44(2.1)(d) of the Act. In my view, the decision maker acted in accordance with the legislation.
Since the time of the WSIAT decision, there has been no significant difference in the medical evidence and the treating practitioners’ opinions about the worker’s functional abilities. The worker described persistent and debilitating back pain complicated by major depression that affects all aspects of his daily activities. The worker described a poor quality of life that results in him living like a hermit. He only leaves the house to walk his dog during which he would have to stop and rest and sometimes he has to take a taxi back home. The worker stated he walks with a cane outside of the home and “furniture walks” inside the home. He is unable to shop for groceries like a “normal” person and once when he carried a bag of milk and jug of orange juice from the store, he was in such severe pain on his arrival back home that he was in tears. The worker stated he does not socialize as he is embarrassed that he has to use a cane for support. He also noted that he is fearful that if he goes out with friends, he may have back spasms and be forced to have someone take him home prematurely. The worker also described back pain that is worse with sitting and standing and helped with medication and lying down. He reported he is unable to remain any one position for any length of time. The worker reported he spends most of his time at home lying down although his sleep is frequently interrupted.
The family physician reported the worker’s function is severely restricted and he requires a significant amount of medication to control his pain; however these are not helpful and the only activity in which the worker is able to engage in is walking his dog.
The worker's family physician wrote on October 30, 2013 that the worker suffers from chronic low back pain which is work related and he takes a number of medications to address the pain issues. The worker reported to the doctor he is coping on a day to day basis and his functional abilities are quite poor. He walks short distances and always uses a cane and otherwise, he is house bound. Because of the chronicity, there are no treatment goals or increased benefit expected from medications.
The worker attended a multidisciplinary health care assessment for treatment with a physiotherapist, occupational therapist, kiniesiologist, and a psychologist. At intake the assessors observed the worker walking at a very slow pace with an antalgic gait. He had to change position frequently and was unable to bend to pick up an object from floor to waist or waist to shoulder.
The assessors noted some inconsistencies as the worker did not demonstrate the appropriate biomechanical changes corresponding to increased effort during the lifting, carrying, dynamic pushing and dynamic pulling tests, such as counter balancing, widening the base of support, altered gait, lowered centre of gravity, normal muscle recruitment and accessory muscle recruitment. He also did not demonstrate an increased physiological response such as increased heart rate associated with increased effort or pain. The assessors acknowledged the worker was likely not putting forth maximum effort because he was fearful of increased pain.
The psychologist reported on November 30, 2014, the worker’s pain experience made it difficult for him to effectively manage his attendance and participation in the program. The worker reported difficulty with sleep which made him exhausted. He reported he was depressed and irritable and he avoids social situations as a result. His dog provides him with a purpose in life and the psychologist encouraged the worker to walk his dog as often as possible as part of a plan to get him out of the house and into the community.
The psychologist felt it would be beneficial for the worker to be assessed by an orthopedic surgeon and have treatment from a community psychologist. He opined psychological intervention would help the worker with his mood and encourage him to become more socially active with friends and in the community.
The psychologist did not recommend a return-to-work at the time, as the worker’s chronic pain experience, inability to find a comfortable working position either sitting, standing or lying down, and ongoing depression and irritable mood, makes him an unsuitable candidate for employment. He opined the prognosis would be enhanced if there is significant improvement in his physical health and his chronic pain.
The worker was under video surveillance for several days between June 11 and July 12, 2014. After viewing the evidence on video surveillance I have a difficult time reconciling my observation of the worker’s activities with the evidence in the file.
The file evidence including statements from the worker and his treating practitioners all depict a worker who has severely limited functional abilities and is incapable of the basics of activities of daily life. I observed an individual who has impairment but was not as limited in his activities as the file evidence supports. One can argue the worker may have been having good days at the time of the surveillance but because the surveillance was conducted on several different days over the course of a month, in my view the worker’s activities during the surveillance likely more closely represented his level of function than the evidence suggests. I accept the worker’s pain experience would cause him to perform in a manner that was less than his full capability but my difficulty is the significant difference between the worker’s observed activities in the community and when in a controlled setting at the multidisciplinary healthcare assessment. Of extreme significance, in my view, whenever the worker was observed arriving at the MDHCA, he had a pronounced limp and walked slowly exhibiting what appeared to be pain behaviours. In fact on one occasion, when the worker left the MDHCA via taxi, he had a very pronounced limp and when the taxi arrived at his home, he spent time socializing with a passerby with a kayak. I did not observe a limp or an antalgic gait after the worker completed the conversation and entered his home.
The following is a summary of my observations that led me to conclude the worker is not unemployable:
- The worker took his dog out for multiple walks daily. Typically he carried his cane and completed a walk at what appeared to be a normal pace and no antalgic gait without stopping to rest or taking a taxi home.
- During the walks the worker stopped on a regular basis to socialize with other individuals. I observed him standing for periods of time without having to sit or change positions. I did not observe any behaviour suggestive of embarrassment to be around people. In fact the worker appeared animated and engaged in the conversations. This occurred on a regular basis and in my view is incongruent with the worker’s account of social isolation and inability to maintain one position.
- For the most part, the worker used his cane while out on the walks. He demonstrated the ability to bend by picking up objects from the ground and bending over to tend to his dog or to remove objects in the yard. He was also observed to lower himself to sit on the steps leading to his home appearing to groom his dog for a period of time. A passerby approached him at which time he arose and spent a great deal of time standing and talking to this passerby. This does not support the evidence presented that the worker cannot maintain any one position for any length of time.
- The worker reported he had difficulty with crowds and did not go to large stores as a result. In contrast to this statement, the worker was observed going into a Canadian Tire and browsing the aisles. It appeared the worker may have made a purchase as he left the store with a bag in his hand.
- The worker reported difficulty with grocery shopping and excessive pain after carrying a bag of milk and a jug of orange juice. At one point the surveillance video shows the worker walked to a local convenience store and came out carrying two bags. There were no apparent limitations with this and the worker carried both bags in one hand while carrying the cane in the other. After arriving home from the convenience store, he exited his home approximately 6 minutes later and was observed picking up some yard waste and disposing of it. In my view, the worker did not exhibit any pain behaviours or difficulty with the activities including walking at a normal pace and bending to pick up two items
- The worker typically carried his cane when outside the home. He used it for the most part but there were many occasions when he would lean it against the house or place it under his arm so it was not being used for support. There was one occasion when the worker took the dog for a walk without his cane and I did not observe any pain behaviours or limitations.
I acknowledge the representative’s submission and I agree the activities in which the worker engaged were those typical of a normal day for an individual. What I find concerning is the worker’s presentation of his functional abilities. I expect an individual with a NEL award for CPD to have ongoing pain and emotional issues that cause limitations in his/her functional capacity and activities of daily living and in my view the worker continues to have such limitations. However, I cannot ignore the significant difference between the worker’s functional abilities and activities of daily living when under surveillance and when in a controlled setting such as a clinic. Although the surveillance was not 24 hours per day nor was the worker observed inside his home, I would find it difficult to conclude the worker’s functional abilities in the home are such that he has to hold on to the furniture for support when walking in the house. If this were the case I would question what changed when the worker was outside the house to allow his function to improve so significantly. I am also concerned about the worker’s presentation each time he was observed going to the MDHCA clinic. Again, the function and pain behaviours were very obvious and not so apparent after the worker left the clinic.
I find there is sufficient evidence on the video surveillance for me to conclude the worker is not as impaired as presented. He continues to have an impairment for which there are physical limitations and medication requirements; however, I do not find this precludes him from re-entering the workforce.
The decision maker determined the worker is capable of obtaining work in customer service related occupations or light assembly. I agree with this assessment and would add other elemental services occupations. In my view, these are occupations where the worker would likely earn minimum wage in an entry level capacity.
CONCLUSION
I conclude the evidence presented does not support that the worker is unemployable. I find he is capable of earning minimum wage in the suitable occupations of customer service clerk, light assembly or other elemental service occupations on a full time basis.
The worker's objection is denied.
DATED: April 14, 2015
D. Hart Appeals Resolution Officer Appeals Services Division