The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on September 5, 2000, at the request of a union representative, acting on behalf of the claimant. The union representative was appealing a decision of the Review Office of the Workers Compensation Board (WCB) which determined that the claimant was not entitled to payment of wage loss benefits after September 6, 1999. The Panel discussed the appeal on September 5, 2000.

Issue

Whether or not the claimant is entitled to payment of wage loss benefits after September 6, 1999.

Decision

That the claimant is not entitled to payment of wage loss benefits after September 6, 1999.

Background

On July 26, 1999, the claimant was lifting a lawn mower during the course of his duties as an "operator" when he felt pain in his left testicle. On July 28, 1999, the attending physician diagnosed the claimant's symptoms as a possible inguinal hernia and the claimant was referred to a general surgeon. The treatment plan outlined was rest and Tylenol along with no lifting. It was anticipated that the claimant would be totally disabled for two weeks. The claim was accepted by the WCB and benefits commenced on July 27, 1999. Subsequent medical information revealed the following:

• on August 18, 1999, the attending physician noted that the general surgeon whom the claimant was referred to did not concur with his diagnosis of a possible inguinal hernia. The claimant in turn was referred to a urologist and the claimant was awaiting an appointment for a scrotal ultrasound. The physician indicated that so far there was no clear diagnosis for the claimant's pain and that he most likely pulled ligaments and/or muscles.
• on August 25, 1999, the attending physician indicated that the claimant was required to be off work for another month due to his injury. It was indicated that the claimant should be able to return to work near the end of September or beginning of October.
• on August 31, 1999, the treating surgeon stated there was no evidence of a hernia on examination. There was some residual back pain. His impression was that the claimant had a back strain which was resolving. Arrangements were made for the claimant to see a urologist and for an ultrasound.
• on August 17, 1999, a WCB medical advisor was asked to review the case with respect to the claimant's work capabilities in relation to the compensable injury. On September 1, 1999, the medical advisor stated that a diagnosis was not clear. Restrictions were outlined as follows: no repeated lifting, no lifting weights over 10 pounds, sedentary duties and walking was appropriate. These restrictions were to be reviewed again in four week's time.

On September 2, 1999, the claimant was advised by primary adjudication that he was considered capable of returning to work in a light duty position with restrictions. The claimant was advised that his employer would be contacting him in the future to arrange a return to work program with modified duties. Subsequent file records showed that the claimant did not return to light duties (painting) which was arranged for September 7, 1999, stating that he would not return to work until he could do his regular job. The claimant stated he was going to follow his doctor's instructions and that he could not sit, stand or walk.

In a letter dated September 20, 1999, primary adjudication confirmed to the claimant that the WCB would not accept responsibility for time loss from work beyond September 6, 1999, as he chose not to return to the light duties that were offered to him by his employer. The adjudicator indicated that WCB would continue to accept responsibility for the costs associated with medical treatment up to the time that the claimant was considered to have recovered from the workplace injury. The claimant appealed this decision to Review Office.

• the claimant underwent a testicular sonogram on September 20, 1999. The results were as follows: "Both testicles are homogeneous with equal flow and appear normal. The right epididymis is unremarkable. The head of the epididymis on the left is somewhat prominent measuring 2.1 x 1.5 cm compared to 1 cm maximum diameter on the right. Two small cysts are noted in the right epididymal head. No further abnormalities are demonstrated."
• on October 1, 1999, the attending physician reported that the claimant was to be off work for six more weeks due to the injury to his groin and possibly testicles. The report from the urologist had not yet been received. The physician stated that in his opinion the claimant needed six more weeks of rest and recovery.

On November 3, 1999, Review Office requested a WCB orthopaedic consultant to review the entire file and provide an opinion as to a definitive diagnosis, the significance of the ultrasound results and whether the claimant was capable of any work duties.

On November 9, 1999, the orthopaedic consultant responded that the most likely diagnosis was a muscular strain and that the examining general surgeon ruled out any evidence of a hernia as a result of the compensable injury. The testicular findings on ultrasound were probably irrelevant insofar as the compensable injury was concerned and that a more definitive diagnosis would be provided when the claimant was seen by the consultant urologist on December 1, 1999. The WCB orthopaedic consultant indicated that none of the findings on the ultrasound related to the compensable injury. The orthopaedic consultant concluded that the claimant was capable of full work duties based on the reported findings on file to date.

• the attending physician reported on November 10, 1999, that the claimant "will be off until December 1, 1999 due to his injury".

In a decision dated November 12, 1999, Review Office determined that the claimant was not entitled to payment of wage loss benefits after September 6, 1999 and that he was capable of returning to work after September 6, 1999. Review Office accepted the opinions of the WCB's orthopaedic specialist and the general surgeon that the claimant likely sustained a muscular strain type injury on July 26, 1999. There was no clinical findings or diagnostic evidence supporting the worker's inability to perform the light duty work that was offered to him on September 7, 1999, as far as the compensable injury was concerned. On February 2, 2000, the claimant appealed Review Office's decision and an oral hearing was arranged.

On February 7, 2000, the Acting Registrar at the Appeal Commission wrote to the consultant urologist for a report. In response to the request, the urologist submitted a report dated December 1, 1999. The urologist outlined his examination findings stating there was no evidence of a hernia on either side, the testes were rather sensitive but he thought that this was more psychological than anything else. The specialist stated that the claimant did not require any other investigation or treatment.

On September 5, 2000, an Appeal Panel hearing took place at the Appeal Commission.

Reasons

The Appeal Panel is of the unanimous view that the claimant is not entitled to wage loss benefits after September 6, 1999. We have noted that it was at this time that the claimant was offered light duties that involved painting which he refused to do. The issue for this Panel was therefore whether or not the claimant's contention that he was totally disabled after September 6, 1999 is supportable on the evidence.

Based upon the weight of the evidence, this Panel believes that the claimant could have performed the light duties given to him by the employer on September 6, 1999. A review of the medical evidence on file indicates that prior to September 6, 1999 the general surgeon who saw the claimant on July 26, 1999, felt that there was no evidence of a hernia but that there was some residual back pain. A review of the medical evidence by the WCB medical advisor on September 1, 1999, reported that while the diagnosis was unclear, the claimant could return to work and perform a sedentary job that did not involve repeated lifting or lifting of weights greater than 10 pounds. The claimant's physician also completed a Return to Work form on September 1, 1999, acknowledging that there was no diagnosis as of that point and that the claimant could not lift anything greater than 20 pounds. He felt that the claimant was totally incapacitated.

Subsequent medical findings after September 6, 1999, confirmed that the claimant had not suffered a hernia. A testicular sonogram on September 20, 1999 demonstrated no abnormalities that could be related to the compensable injury. On November 9, 1999 an orthopaedic consultant to the WCB noted that the attending surgeon had ruled out any evidence of hernia and stated that the most likely diagnosis was a muscular strain. The orthopaedic consultant felt that the claimant was capable of full duties.

Finally, on December 1, 1999, the consulting urologist submitted a report noting that there was no evidence of a hernia and that the testes were rather sensitive but he thought that this was more psychological than anything else. No other investigation or treatment was called for after this point.

Therefore, the prevalence of the medical opinion on this file appears to indicate that the claimant had not suffered a hernia. This, in combination with the opinion that he could have performed light duties by September 6, 1999 as well as the opinion of the claimant's own physician that he should be restricted to lifting no more than 20 pounds, which was well within the light duty position offered to him, has led this Panel to believe that no wage loss benefits ought to be payable to the claimant after September 6, 1999. There is no supportable clinical or diagnostic evidence on this file that would, on a balance of probabilities, suggest otherwise.

Panel Members

K. Dunlop, Q.C., Presiding Officer
A. Finkel, Commissioner
C. Monk, Commissioner

Recording Secretary, B. Miller

K. Dunlop, Q.C. - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 2nd day of November, 2000