Decision #41/02 - Type: Workers Compensation

Preamble

A non-oral file review was held on March 7, 2002, at the request of a union representative, acting on behalf of the claimant.

Issue

Whether or not the worker has been overpaid; and

Whether or not the overpayment should be recovered.

Decision

That the worker has not been overpaid; and

That the overpayment should not be recovered.

Decision: Unanimous

Background

On June 14, 2001, the claimant was attempting to lift a steel plate off of a pallet when he felt a pain in his back. A Doctor's First Report dated June 14, 2001, noted that the claimant complained of severe pain and could not bend. The physician diagnosed the injury as a mechanical strain versus a lumbar fracture or disc injury. The claimant was considered disabled from work activity. The Workers Compensation Board (WCB) accepted the claim and compensation benefits commenced on June 15, 2001.

In a progress report of July 4, 2001, the attending physician noted that the claimant's condition was improving. With regard to a treatment plan, the claimant was to carry on with physiotherapy together with medication and he could try returning to work at light duties for one week. It was further anticipated that the claimant could return to regular duties as of July 11, 2001.

On July 6, 2001, the employer contacted the WCB pointing out that the claimant's last doctor's appointment was July 4th and that the claimant could return to light duties on July 11 for one week following which he would then be reassessed by his doctor. Subsequent file information showed that the WCB paid the claimant wage loss benefits up to his return to light duties on July 11, 2001.

On July 26, 2001, the employer wrote to a WCB adjudicator and made reference to the doctor's progress report of July 4, 2001. The employer indicated, in part, "[claimant] was examined on July 4, 2001 and the doctor indicated light duties for a duration of 1 week. Which would mean that he should have returned to work and started light duties on July 5, 2001 for 1 week. The doctor also indicated that it was anticipated that the worker return to regular duties on July 11, 2001." The employer concluded that if they had known the claimant could have returned to light duties on July 5, then they would have accommodated him.

In subsequent e-mail correspondence to the employer, the WCB adjudicator said she spoke with the attending physician regarding the claimant's expected return to work date. The attending doctor advised that the claimant seemed confused somewhat when he told him to return to work on the shift of July 5th . The doctor stated that he clearly advised the claimant he could return to work on that day to light duties for one week.

On August 20, 2001, the adjudicator contacted the claimant. The claimant advised that when he attended his doctor on July 4th the doctor never told him to return to work on July 5th to light duties. The doctor told him to return to work on July 11th, try working, then follow-up in one week. The claimant said the doctor told him this twice and that he should carry on with physiotherapy.

In a further conversation with the employer on August 22, 2001, the adjudicator documented that the claimant called the employer on July 6th and advised her that he had attended his doctor on July 4th . The claimant said that he was authorized to stay off work until July 11th when he could return to light duties for one week. The claimant indicated that after he returned to work, he was to follow-up with his doctor one week later. The employer was of the opinion that the claimant must have misunderstood the doctor's comment about returning to work on July 5th at light duties.

In a decision dated September 10, 2001, the claimant was formally advised that he had been overpaid in the amount of $526.53 and that this amount would be recovered. The overpayment was due to the fact that the WCB paid wage loss benefits to July 10, 2001 instead of the date when he was considered fit to perform full light duty shifts on July 5th. On September 26, 2001 a union representative appealed this decision to Review Office on behalf of the claimant.

In a memo to file dated October 12, 2001, a Review Officer documented a call to the employer. The employer advised that it did not receive the capability form completed by the doctor. The employer indicated that when speaking with the claimant on July 4, 2001, the claimant said he was feeling good and would probably return to work after seeing his doctor on July 5th. The claimant, however, never returned to work until July 11, 2001.

In a second memo to file dated October 12, 2001, the Review Officer noted a conversation with the claimant's physiotherapist. The physiotherapist stated that she had seen the claimant on June 21, 25, 28 and July 5th. On July 5th, the claimant said he was doing "really good". He had full range of motion and advised that his doctor told him to return to work on the following Monday, July 9th. She told him to book one more physio visit the following week but he never returned. When she last saw the claimant, he was able to return to work on light duties from her point of view.

On October 15, 2001, the employer provided Review Office with a Physician's Evaluation of Employee Fitness form which had been filled out by the claimant's physician. It was noted that the physician had authorized the claimant to return to work with restrictions starting July 5, 2001 and that he could resume work without restrictions on July 11, 2001.

In a decision dated October 19, 2001, Review Office determined that the claimant was overpaid $526.53. Taking into consideration the information obtained form the claimant, the attending doctor and treating physiotherapist, Review Office was of the opinion that the weight of evidence established that the claimant had recovered from the effects of his compensable accident and was able to return to work on light duties effective July 5, 2001. The claimant therefore was over paid compensation. On December 18, 2001, the claimant appealed Review Office's decision and a non-oral file review was arranged.

Reasons

The claimant appeals Review Office's decision that he had sufficiently recovered from the effects of his compensable injury and that he was therefore able to perform light duties effective July 5th, 2001. We have carefully reviewed the evidence on file and find that there definitely was some confusion with respect to the claimant's readiness to return to work on the foregoing date.

The accident employer has employed the claimant since 1981 and we note that the claimant has submitted few claims, which have resulted in his being off work for extended periods of time. We find that the claimant was acting in good faith when he advised his employer that he would be returning to work on July 11th, 2001. According to an adjudicator's memorandum to a disability management specialist, there was some confusion with respect to the availability of light duties as well as with the claimant's fitness to return to work. "I have nothing on file stating he could have returned to work to light duties on July 5/01. This could be one of those situations were (sic) the attending doctor was not clear on providing information to the parties involved."

On July 4th, 2001, the treating physician examined the claimant. As pointed out in his written submission of December 18th, 2001, the claimant went away with the following impression when he left his doctor's office that day. "On leaving the doctor's office I further understood that I was to try to work on a light duty basis on July 11 and I was to return to his office a week after that for further assessment and review of my condition (2 wks after July 4/01)." This understanding on the part of the claimant was later corroborated on July 5th, 2001 by the treating physiotherapist, who recorded these comments in her chart notes: "To return to work next Monday. / light duties x 1 wk per Dr. order."

We find based on the weight of evidence that the claimant has not been overpaid. He returned to work on what he honestly thought was the date (July 11th, 2001) recommended by his treating physician. It necessarily follows that the second issue thereby becomes moot given that we have found there was no overpayment.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

R. W. MacNeil - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 9th day of April, 2002

Back