Public Decisions | The Appeal Commission

Decision #75/01 - Type: Workers Compensation

Preamble

A non-oral file review was held on May 28, 2001, at the request of legal counsel, acting on behalf of the claimant.

Issue

Whether or not the worker was overpaid wage loss benefits for the period April 15, 1996 to December 27, 1996, inclusive.

Decision

That the claimant was only entitled to wage loss benefits between October 17, 1996 to December 3, 1996 inclusive.

Background

In January 1996, the claimant submitted a claim for compensation benefits indicating that sometime in July 1994 he began to experience numbness and pain in his right hand from his work activities as a housekeeping attendant. On December 5, 1995, nerve conduction studies revealed severe bilateral carpal tunnel syndrome (CTS), worse on the right.

On May 21, 1996, the claimant advised a WCB adjudicator that his last day of work was April 12, 1996. The claimant stated that he was intending to work up until his surgery date but his hands got so bad that he couldn't continue. He stated that he no longer had the burning or tingling sensations in his hands but they just felt "dead". The claim for bilateral CTS was accepted by the Workers Compensation Board (WCB) and wage loss benefits commenced on April 12, 1996.

On July 19, 1996, a plastic surgeon noted that the claimant showed altered sensation, some motor weakness and possible muscle wasting of the right abductor pollicis brevis and a positive Tinel's and positive Phalen's on the right hand. The surgeon indicated that he discussed carpal tunnel decompression with the claimant and that arrangements were going to be made for this to be done in the not too distant future. On July 31, 1996, a WCB medical advisor authorized financial responsibility for the costs of the surgery.

File documentation showed that the claimant underwent "endoscopic decompression right carpal tunnel" on October 17, 1996. By November 25, 1996, the plastic surgeon indicated that the numbness was improving and strength was increasing in the claimant's hand. He suggested that the claimant return to work at graduated modified duties within 1-2 weeks.

In a memo addressed to a WCB medical advisor dated January 10, 1997, a WCB adjudicator documented that the return to work program with the employer did not begin until December 23, 1996, at which time the claimant began working 2 hours per day. Near the end of November 1996 a Special Investigations Advisor received an anonymous call stating that the claimant had been running a carpet cleaning business throughout the period of his time loss. It was confirmed that the claimant had been advertising in a local newspaper that he would do carpet cleaning. A surveillance of the claimant's activities was undertaken (between November 27, 1996 and December 4, 1996) and the medical advisor was asked for his medical opinion with regard to the following query:

In a response dated January 24, 1997 the medical advisor stated the following:

On December 10, 1998, the claimant was informed by the WCB's Occupational Disease Unit that a WCB investigation indicated that he was actively involved in a carpet cleaning business on July 26, 1996. It was the opinion of claims adjudication that the claimant was capable of performing his regular work activities with the accident employer from July 26, 1996 to October 16, 1996 inclusive and from December 4, 1996 to December 27, 1996 inclusive. The interval from October 17, 1996 to December 3, 1996, was accepted by the WCB as the time period required to recover from the October 17, 1998 carpal tunnel surgery. It was determined that the claimant had an overpayment in the amount of $4,659.13. On June 28, 1999, a solicitor, acting on behalf of the claimant, appealed this decision to Review Office.

In a decision dated October 13, 2000, Review Office determined that there was no entitlement to payment of wage loss benefits after April 12, 1996 as the worker did not have a loss of earning capacity as a result of his compensable injury (bilateral CTS). It was also determined that the worker was overpaid wage loss benefits for the period of April 15, 1996 to December 27, 1996 inclusive. Review Office reached its decision on the following factors:

the claimant claimed total disability effective April 15, 1996 as his hands "got so bad". The file evidence showed that despite the worker's severe bilateral CTS, diagnosed on December 5, 1995, he continued to operate and function his carpet cleaning business without informing the WCB;
tax information showed that the claimant's business income increased during the year of his alleged total disability;
the claimant was considered completely involved in his carpet cleaning business based on several factors, i.e. the worker's own testimony of his carpet cleaning, eye witness statements, the worker arranged advertising for his business, etc.;
there was no indication that the claimant was totally disabled or unable to function in his hospital duties following the October 17, 1996 surgery. The claimant had informed a WCB senior special investigations advisor that he estimated that he performed 10-12 cleaning jobs in October 1996 and 4-5 cleaning jobs in November 1996. This was during the claimant's proposed period of total disability.
the claimant, at no time, came forward with any information concerning his business activities to the WCB despite every opportunity to do so. Review Office was of the opinion that the claimant deliberately misrepresented his alleged functional impairment.
the file would be returned to Rehabilitation & Compensation Services for follow-up and consideration under policy no. 35.40.50 Overpayments of Benefits.

Based on the Review Office's decision, the claimant was informed on February 2, 2001, that his overpayment was in the amount of $11,193.98. On April 2, 2001, the claimant's solicitor appealed Review Office's decision of October 13, 2000 and a non-oral file review was arranged.

Reasons

This is the case of a worker who failed to report income earned during the period he was receiving wage loss benefits for a compensable claim for bilateral carpal tunnel syndrome. The period in question was from April 15 to December 27, 1996.

In December 1998, after a file review and extensive investigation, the claimant was informed that the board had determined that he had been overpaid to a sum in excess of $4600. Review Office, in October 2000, determined that he was overpaid for the entire period, which amount is more than $11,000. It is from this latter decision that the claimant appeals to this Commission.

At issue in this appeal is whether or not the worker was overpaid wage loss benefits for the duration of his claim.

For the claimant to succeed in this appeal, the panel would have to determine that the claimant had a loss of earning capacity throughout the period in question.

We were not able to come to that determination.

We note that the worker was diagnosed with "severe bilat CTS, significantly worse on right" on December 5, 1995. He filed WCB Worker's Reports on January 10 and 26, 1996, but did not lose any time from work until April 15, 1996. At that time, he booked himself off work, informing his employer that his hand condition had deteriorated to a point where he could no longer work. He informed the board of this time loss on May 21 and, shortly thereafter, received wage loss benefits from the last day of work.

We further note that, on July 26, 1996, the claimant completed and signed WCB form BL16. In this form the worker acknowledged that:

He had not applied for, nor was he receiving, income from other sources;
He would notify the WCB of a return to work and of other sources of income; and
Should he not report any other income, the WCB could seek repayment of any overpayment.

On November 26, 1996, the worker completed and signed WCB form 2214, with no indication of a return to work or of receiving any other income. This form states, in part, that it is an offence to knowingly make a false statement and/or withhold information from the board which might affect the worker's entitlement to benefits. Such information includes full or partial recovery from the injury, ability to return to work and all sources of income.

In November 1996, through an anonymous tip, the board learned that the claimant owned and operated a carpet cleaning business. After an investigation, it was determined that, from at least the beginning of April 1996, he had advertised his business in a local newspaper and that throughout the period he was receiving wage loss benefits, he operated the business. The investigation revealed that he performed all of the tasks required to carry out this business, including, at least on some occasions, doing the actual carpet cleaning.

We note, from interviews with the claimant and thorough review of his income tax returns, that the claimant realized a threefold increase in income for this business in 1996 over the previous year. The claimant's legal counsel argued that he actually lost money on the business in 1996, whereas he had a small profit in 1995. This is so, but she is focussing on the bottom line, not on the income or revenue of the business.

None of this was ever reported to the WCB.

The claimant, in his defence, argued that he only managed the business, that he never performed any of the physical work involved. However, testimony from some of the staff at institutions where he cleaned carpets, as well as investigator observation, contradicts this. We know from this investigation that he performed the physical work on some occasions and, thus, conclude that it is not unreasonable to assume that he did the physical work on any number of occasions throughout this period.

The claimant also argued that, prior to operating his business during his compensation period, he consulted with the Worker Advisor Office and was apparently told that, as long as he did not perform physical work, it was okay to run a business while collecting wage loss benefits. We note that, early in the investigation, he said he spoke to a male, whose name he could not remember. He later recalled it was a female, whose first name he did remember.

Nonetheless, whether he performed physical work and whether he consulted with the Worker Advisor Office are only part of the consideration. The fact that he was operating a business from which he realized some income was something that he was required to report to the WCB. He had signed two documents which specifically noted this requirement. During an interview with a board investigator he confirmed that he was aware of what he was signing at the time he signed the forms.

Section 39(1) of The Workers Compensation Act calls for the payment of wage loss benefits where an injury to a worker results in a loss of earning capacity after the day of the accident. Pursuant to section 39(2), these wage loss benefits are payable until the loss of earning capacity ends, as determined by the board.

Based on our review of the file, we have concluded that the preponderance of evidence does not support that the claimant did have a loss of earning capacity during most of the period in question. We note that the claimant's diagnosis of bilateral carpal tunnel syndrome was accepted as a compensable injury by the board and his surgery was authorized by the board. Therefore, we are prepared to allow that there was a loss of earning capacity for a period of recovery. To that end, we re-instate part of the decision originally made by the Adjudicator: for the period from October 17, 1996 to December 3, 1996 there was a loss of earning capacity and he was entitled to receive wage loss benefits.

In summary: we were asked to determine whether or not the worker was overpaid wage loss benefits for the period April 15, 1996 to December 27, 1996, inclusive. We have concluded that, except for the period noted above, he was overpaid.

Accordingly, the appeal is allowed only in small part, as noted.

Panel Members

T. Sargeant, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

T. Sargeant - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 6th day of June, 2001

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