. He observed from the videotape that the worker:· had no difficulty with stooping or recovery to the upright position; and
· was capable of standing or sitting for over 30 minutes
On December 7, 2006, the orthopaedic consultant further commented that the worker demonstrated no evidence of impairment of function in the low back. The worker’s activities along with the examination findings of October 10, 2006 were at extreme variance with recommended restrictions documented elsewhere on the file, i.e. cannot stand or sit for more than one half hour; no bending, twisting or lifting over 10 lbs. no standing or sitting over 30 minutes, no push/pull of heavy objects. The consultant commented that the restrictions recommended after his call-in examination were rescinded.
On December 20, 2006, it was determined by the WCB case manager that effective November 18, 2006, there was no evidence of any ongoing symptoms or difficulties with respect to the compensable injury in relation to the workplace accident and that the request for surgery was not authorized. The rationale for the decision was outlined as follows:
- the worker demonstrated physical abilities beyond those medically reported and reported by the worker;
- she demonstrated physical capabilities beyond the medically supported restrictions;
- the worker appeared to be pursuing employment activities in alternate occupation, without reporting to the WCB.
On January 9, 2007, the treating orthopaedic specialist noted that he was arranging for the worker to undergo a further MRI scan to evaluate the worker’s L4-5 area.
The MRI scan of January 11, 2007 revealed the following impression: “Small annular tear posteriorly, involving the L4-L5 disc. Diffuse central disc bulging, minimally encroachment on the anterior thecal sac at this level.”
The worker underwent a Functional Capacity Evaluation (FCE) on February 14, 2007. The report indicated that the worker did not complete the FCE protocol and that her participation was a full voluntary effort. The worker demonstrated the ability to do light rated work activities.
On February 21, 2007, primary adjudication asked the WCB orthopaedic consultant to review the file information which included the FCE results, the MRI findings and the report from the worker’s treating orthopaedic specialist. On February 27, 2007, the WCB orthopaedic consultant stated that his opinion remained unchanged. He said the worker’s stated pain and loss of function continued to be inconsistent with the evidence of unrestricted physical activities involving the lumbar spine function on surveillance.
On April 2, 2007, the WCB case manager advised the worker of the opinion expressed by the WCB orthopaedic consultant on February 27, 2007 and stated that the WCB’s decision of December 20, 2006 remained as is.
On May 3, 2007, an occupational health medical officer issued a letter suggesting that the worker “is not able to perform Fire Fighting duties or obtain the re-certification as an emergency Medical Responder. She may do the theory portion of the EMR course. She can at this time do a sedentary job that requires no lifting, bending or twisting at the waist.”
A submission was then received from a worker advisor dated June 1, 2007. The worker advisor contended that the worker’s current low back condition was a result of the combined effects of her duties as a firefighter and the May 30, 2005 incident. The worker felt she had not recovered and was not fit to resume her demanding duties as a firefighter. The worker also explained her activities during September 2006 and November 2006 with regard to the video surveillance and provided evidence to support that she was not working outside of her restrictions.
On June 25, 2007, the worker had surgery involving anterior discectomy and disc replacement of the L4-L5.
Prior to considering the worker advisor’s appeal, Review Office sought the advice of a WCB orthopaedic consultant assigned to Review Office. In response to questions posed by the Review Office dated July 16, 2007, the WCB orthopaedic consultant responded as follows on July 18, 2007:
1. Question: What was the diagnosis at the time of the compensable injury of May 30, 2005?
Answer: The most probable diagnosis is aggravation of pre-existing degenerative disc disease of the lumbar spine at the L4-5 level. This was also associated with mild facet osteoarthritis and conflicting results as to whether or not there was mild central spinous due to associated disc bulging and hypertrophy of the ligamentum flavum. Subsequent clinical examinations do not redemonstrate hard radicular findings indicative of nerve root entrapment at this level. The reported tear involving the annulus fibrosis of the L4-L5 intervertebral disc is part of a degenerative process and does not necessarily have to arise out of any trauma. The associated reported disc dissection is also part of the degenerative process occurring at the L4-L5 intervertebral disc.
2. Question: What was the diagnosis in November 2006? Is there medical evidence to support a causal relationship between the diagnosis and the compensable injury?
Answer: There was no appreciable change in diagnosis in November 2006. The compensable injury is not the cause for these degenerative changes reported at the L4-L5 intervertebral disc level.
3. What was the diagnosis following the MRI in January 2007? Is there medical evidence to support a causal relationship between the diagnosis and the compensable injury?
Answer: The diagnosis remains unchanged following the MRI of January 2007; CI occurring on May 30, 2005 is not the cause of these changes occurring at the L4-L5 intervertebral disc level, but, could have aggravated these pre-existing changes.
4. Question: Does the medical evidence on file support that the worker has a pre-existing condition? If yes, what is the pre-existing condition? Does the evidence support that the work place accident aggravated or enhanced the pre-existing condition?
Answer: The medical evidence on file does support the fact that the worker has a preexisting (sic) condition, namely degenerative disc disease and mild osteoarthritis involving the lumbar spine. The workplace incident may have aggravated this pre-existing condition. It is now two years since the original CI, and any aggravation of the pre-existing condition should have resolved and any further ongoing symptoms can be attributed to the preexisting (sic) degenerative changes noted at the L4-L5 level. It should also be noted that it has also been associated with mild osteoarthritic changes involving the posterior facet joints at two levels.
5. Question: If the pre-existing condition was aggravated does the medical evidence on file support that the aggravation of the pre-existing condition has resolved? If yes, when did it resolve?
Answer: see #4
On July 19, 2007, Review Office determined that the worker was not entitled to wage loss benefits beyond November 18, 2006. Review Office noted that it reviewed the surveillance that was taken in September 2006 and November 2006 and found there was significant inconsistencies in what the worker reported her function to be and what she demonstrated on the surveillance video. Review Office also relied on the opinions expressed by the WCB orthopaedic consultant and WCB orthopaedic consultant assigned to Review Office. It was of the opinion that the evidence on file including the diagnosis (aggravation of a pre-existing condition), treatment rendered, time that has passed and the level of function demonstrated by the worker on the surveillance video supports that there was no longer a causal relationship between the worker’s current difficulties and the compensable injury of May 30, 2005.
In August 7, 2007, the worker's treating surgeon provided a six week post operative report which indicated:
The patient is ecstatic with the results. She has marginal pain left only on certain activities. She can reach down to her ankles without problems and has no extension pattern. She has no numbness or tingling in the legs anymore. On examination, she can bend down as mentioned. She has no pain on rotation and there is only mild localized tenderness at the L4-5 levels. X-rays ar every satisfactory and there is about a 7 degree angulation during flexion and extension at the level of the prosthesis.
In August 2007, the worker advisor appealed the Review Office decision to the Appeal Commission.
In September 2007, the worker's surgeon provided an additional post operative report. He stated:
The patient is extremely happy with the results and has stated that “you have given me back my life”. The patient certainly has a full range of motion of her back with slight limitation of flexion but she informs me that this has been the same all her life. There is no neurological deficit at this stage... .
The patient will continue with rehabilitation. She certainly could return to light duties on the 1st of October but will have to wait until the 1st of January to return to full active duty where the limitation will need to be 150 pounds lifting.
An oral hearing took place on October 23, 2007. In the course of her evidence before the Panel, the worker detailed the variety of tasks that a firefighter in a small fire department might be required to perform. In her view, “my position requires that I be able to perform a lengthy list of physical tasks…”
After an extensive review of the medical information on file, the worker addressed the 2006 video surveillance tapes. In her view, “the overall video shows me conducting no activity that would allow anyone to draw the conclusion that I was physically able to return to firefighting. There are specific acts captured on video that WCB makes reference to that I will dispute individually, but the total video merely shows me carrying out my reduced level of day-to-day activities in a light duty capacity.”
The worker provided evidence suggesting that the “apparently heavy box” she was carrying weighed less than ten pounds. She noted that the commercial sign she was seen to lift was made of corrugated board “which is similar to cardboard but lighter.”
The worker agreed that she had pushed a clothing rack, hung shirts on a wall and carried single grocery bags but noted these activities were not inconsistent with her restrictions of “no continuous standing/sitting over 30 minutes, no bending, twisting or lifting ten pounds, and no push/pull heavy objects.”
In the worker’s words “lifting six T-shirts is certainly less than ten pounds and pushing a clothing rack that is on wheels would clearly not be pushing or pulling something heavy. These are simple, light tasks that were accomplished without difficulty”. Likewise, while she acknowledged carrying a fire extinguisher, she observed that “the actual weight of the extinguisher is eight and one-half pounds...”
She worker also noted that in terms of her activities at her family business, she had advised a WCB employee of this fact in May 2006.
The worker noted that she had surgery on June 25, 2007 for the purposes of a discectomy of the L4-5 and ProDisc replacement. In her view “since the surgery, I have noticed that my posture is greatly improved. I no longer stoop and my right foot does not turn out anymore. The pain in my leg is completely healed and I have only occasional pins and needles in my feet.”
In the submission of the worker advisor:
Our position is that medical information supports that [the worker] did not recover from the injury, from that 2005 injury, that she maintained ongoing symptomatology that eventually had to be surgically treated; and that although the video surveillance demonstrates that she is performing some medial tasks, it didn’t demonstrate anything that's equivalent to what she would have to do in her duties as a firefighter.
In order to assist with its deliberations, the appeal panel requested that additional information be obtained from the worker’s treating orthopaedic surgeon prior to deciding whether or not the worker is entitled to wage loss benefits beyond November 18, 2006.
The information received by the panel was forwarded to the worker and worker advisor for comment. On December 19, 2007, the panel met and rendered its final decision with regard to the issue under appeal.