Decision #108/03 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on July 10, 2003, at the request of legal counsel, acting on behalf of the claimant. The Panel discussed this appeal on July 10, 2003 and again on September 9, 2003.

Issue

Whether or not the worker was overpaid wage loss benefits for the period of January 12, 2001 to February 2, 2001; and

Whether or not the worker is entitled to wage loss benefits beyond February 2, 2001.

Decision

That the worker was overpaid wage loss benefits for the period of January 12, 2001 to February 2, 2001; and

That the worker is not entitled to wage loss benefits beyond February 2, 2001.

Decision: Unanimous

Background

On May 14, 1995, the claimant was shot in the chest region while making a pizza delivery. This was a part-time position. The claimant was also employed as a dishwasher at a local hospital at the time of the accident. The claim was accepted by the Workers Compensation Board (WCB) and various types of benefits were paid to the claimant which included vocational rehabilitation benefits. The claimant has permanent physical restrictions which involve no overhead lifting with his right arm and an impairment of a psychological nature.

In October 2000, the claimant was advised by his Vocational Rehabilitation Consultant (VRC) that he was unemployable in the Winnipeg labour market and that he would continue to receive full vocational rehabilitation benefits until his retirement from the work force. The claimant was advised that his case would be referred to Long Term Wage Loss and that his benefit level would be reviewed annually. The claimant was instructed to contact the WCB if he received Canada Pension benefits, other pension benefits or employment earnings.

File records revealed that the WCB received information to the effect that the claimant had been working as a pizza delivery driver while in receipt of wage loss benefits. As a result of this information, a surveillance videotape was taken of the claimant delivering pizza and two recorded interviews were conducted by the WCB 's senior special investigations advisor. The file information and videotape evidence were then reviewed in consultation with the WCB's healthcare branch.

On May 1, 2001, based on the above information, the claimant was informed by his WCB case manager that it was the WCB's opinion that he had recovered sufficiently from the effects of his May 14, 1995 accident to allow for a full return to his pre-accident duties. It was determined that the claimant no longer required restrictions that prevented him from working as a pizza delivery person or dishwasher. This was in respect to both his physical and psychological sequelae. On July 3, 2001, a worker advisor appealed this decision to the Review Office. The worker advisor indicated that the WCB "may be able to justify by the surveillance tapes, that Mr. [the claimant] can perform the job as a pizza delivery person, but the same cannot be said about the job as a dishwasher. As a result, wage loss for the dishwashing job should have continued."

In a memo written by a rehabilitation specialist dated July 30, 2001, he noted that a workplace visit took place to determine whether or not the duties of a dishwasher were within the claimant's restrictions to avoid overhead work. The rehabilitation specialist indicated that all the tasks he observed were at or below shoulder level. No overhead reaching was required and working with shoulders at or below the shoulder was involved with some reaching components.

In a decision dated September 14, 2001, Review Office confirmed that the claimant was not entitled to payment of wage loss benefits beyond February 2, 2001. When rendering this decision, Review Office noted that the claimant's activities as depicted in the videotape from January 27, 2001 to February 14, 2001 very clearly showed that he was capable of undertaking the full duties of a pizza delivery driver. Review Office also commented that it was struck by the level of misrepresentation exhibited by the claimant in his dealings with the WCB, including the WCB's special investigations unit. Review Office summarized that it was satisfied that the claimant had functionally recovered sufficiently from the effects of his accident to allow him to recover his lost earning capacity from both places of employment. The claimant contended that he was only at the pizza shop to try things out or for companionship. This was not reflected in his activities shown on the videotape.

On January 23, 2002, the claimant was advised by a different WCB case manager that he was entitled to wage loss benefits up to and including January 11, 2001. This was based on the claimant's own admissions and the surveillance evidence that he had returned to his pre accident duties as a pizza delivery person on January 12, 2001. This resulted in the claimant being overpaid benefits in the amount of $1406.50 for the period January 12 to February 2, 2001. On November 13, 2002, a solicitor, acting on behalf of the claimant, appealed this decision to Review Office.

In a Review Office decision dated November 29, 2002, it was confirmed that the claimant had been overpaid benefits in the amount of $1,406.50 and that he was not entitled to payment of wage loss benefits beyond January 11, 2001. Review Office noted that during the claimant's interview at the WCB's offices on February 23, 2001, the claimant stated that he had commenced delivering pizzas on January 12, 2001. He also provided written records to this effect and therefore Review Office presumed that this information was accurate. Review Office was further of the opinion that repayment of the overpayment was recoverable by the WCB under the terms of the overpayment policy.

On March 6, 2003, legal counsel representing the claimant, appealed Review Office's decisions dated September 14, 2001 and November 29, 2002 inclusive. The solicitor also provided the Appeal Commission with additional medical information dated May 22, 2002 and June 28, 2002 for consideration by the Appeal Panel.

On July 10, 2003, an Appeal Panel hearing took place at the Appeal Commission. Following the hearing and discussion of the case, the Panel requested that arrangements be made for an independent service provider to attend the claimant's concurrent employer and conduct a physical demands analysis in relation to the dishwater position. This assessment was completed by Par Services on July 31, 2003 and the results were forwarded to the interested parties for comment. On September 9, 2003, the Panel met further to discuss the case and considered a final submission from the claimant's solicitor dated September 4, 2003.

Reasons

After taking into consideration all of the evidence on file as well as the videotape surveillance, we find that the claimant would, on a balance of probabilities, be capable of performing his pre-accident duties as a dishwasher and pizza delivery man at the time his benefits were terminated.

In this regard, we attached considerable weight to the evidence of the claimant’s treating psychologist, who was called as a witness at the hearing. He testified that the claimant’s psychological status (post-traumatic stress disorder) had improved to the point where he was encouraged to return to some type of work activity. It should be noted as well that the psychologist’s treatment regimen was at this time becoming less frequent to the point that the claimant would only require an office visit every 2 to 3 months.

Q. So can you tell us a little bit more about your treatment and discussion with him about getting him out of the house and what that involved?

A. Well, we discuss some alternatives, what he can do.

Q. Right.

A. Take courses, get involved in the community activities, things like that, and then he told me that probably doing some work like - - because he has no other place where to go in order to - - actually, the manager is a very close friend of him.

Q. Right.

A. So he said he decide maybe this is the plan. And they encourage him to do some deliveries. I mean, “You know this work and you know how to do it. Why don’t you start to do those deliveries? And do at your pace, no rush.” That was the agreement that we had at the time.

Q. And in your estimation, could he do that on a full-time basis?

A. That would be hard to say, I mean, because his attention and concentration is not very good at this point. So probably something that he can get in gradually involvement. Maybe start with a few hours and then increase in order to get more.

Q. So by the end of 2000 and the beginning of 2001, did you see any psychological - - did you see any psychological barriers to return to work?

A. By the end of 2001?

Q. By the end of 2000 which is around the time that the Board

deemed - -

A. Well, I think he was able to do some kind of work that doesn’t

involve a strong activity.

Q. But from a psychological perspective, you had no concerns about him trying to work again?

A. Not really. I think he was doing pretty good.

We note that in September 1998, the WCB imposed permanent restrictions of no overhead lifting with his right arm. An assessment of the dishwasher job indicated that it could be performed without “above head level physical demands”. In any event, the claimant clearly demonstrates in the surveillance video that he was capable of performing overhead function with both arms on a voluntary basis without demonstrating any pain behaviour. A WCB medical advisor reviewed the surveillance videotapes on March 15th, 2001 and recorded the following comments: “Mr. [the claimant] was observed to use both arms over head and to open doors and close trunk lids without any evidence of pain behaviour. The activities were all performed without any evidence of any impairment as he undertook the duties of pizza delivery, including carrying several pizzas and 2 L bottles of drinks.” We are therefore of the opinion based on the weight of evidence that the claimant is not entitled to further wage loss benefits beyond February 2, 2001.

In light of our determination concerning the foregoing issue, we also find that the claimant had no loss of earning capacity as of January 12th, 2001. Consequently, we further find that the claimant was overpaid wage loss benefits for the period in question.

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 30th day of September, 2003

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