Decision #23/04 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on January 15, 2004, at the claimant's request. The Panel discussed this appeal on the same day.

Issue

Whether or not a loss of earning capacity exists beyond December 31, 2002; and

Whether or not the claimant has been overpaid $1,152.15.

Decision

That a loss of earning capacity exists to January 6, 2003; and

That the claimant has been overpaid for the period January 6, 2003 to February 5, 2003.

Decision: Unanimous

Background

In January 2003, the claimant contacted the call centre at the Workers Compensation Board (WCB) to report lower back and rib pain when he attempted to remove turkeys out of an oven on December 12, 2002. The diagnosis rendered by the attending physician on December 24, 2002 was a strain to the back. The physician also reported that the claimant had recently applied for disability and CPP benefits regarding arthritis to his hands and shoulders preceding his low back injury. The claim was accepted by the WCB and benefits were paid to the claimant commencing December 14, 2002.

Subsequent medical information on file included x-ray reports of the thoracic and lumbosacral spines dated March 12, 1999 and December 24, 2002.

On January 16, 2003, the attending physician noted subjective complaints of ongoing pain in the mid back region. As to whether the claimant was capable of alternate or modified work, the attending physician stated, "decided to stop work a no. of weeks before accident."

On January 24, 2003, the claimant filled out a WCB form which requested information with respect to a return to work. The claimant stated that he was "not returning to work. Retiring. I didn't want to retire with pinched nerve in back."

During a telephone conversation with a WCB adjudicator on February 5, 2003, the claimant said he was feeling much better and believed that this would be his last week on WCB. The adjudicator noted that benefits would be payable to the claimant up to February 5, 2003 inclusive. Based on the clinical evidence, the adjudicator wrote that the claimant aggravated his pre-existing condition.

On May 2, 2003, the claimant contacted the WCB to advise that he was still having difficulties with his back. A report from his attending physician dated May 2, 2003 indicated that the claimant was experiencing low back and mid back pain with certain activities.

In a memo dated May 20, 2003, a WCB adjudicator noted that the claimant sold his shares in the business and that he had no intention of looking for alternate employment. The claimant had been in receipt of CPP benefits since his retirement (claimant retired effective December 31, 2002). The claimant was advised that he was not entitled to wage loss benefits beyond December 31, 2002 as he was not incurring any wage loss.

In a letter dated May 29, 2003, primary adjudication confirmed to the claimant that he was overpaid benefits in the amount of $1,152.15. This was due to the fact that he was paid wage loss benefits from December 14, 2002 to February 5, 2003 but he retired from the workforce effective December 31, 2002. In a further letter dated August 13, 2003, primary adjudication advised the claimant that he was responsible for repaying the full amount of the overpayment.

On September 19, 2003, the case was considered by Review Office following receipt of an appeal by the claimant dated August 28, 2003. The claimant contended that the reason he quit work was because he had been unable to perform any of his duties or other jobs and because he still had pain in his back.

In its decision of September 19th, Review Office confirmed that a loss of earning capacity did not exist beyond December 31, 2002 and that the overpayment of $1,152.15 had been correctly implemented. Review Office noted there was overwhelming evidence on file that the claimant's plan for retirement pre-dated his injury of December 12, 2002. In reaching this conclusion, Review Office considered the following information:
  • the comments that were made by the attending physician on December 24, 2002 and January 16, 2003;

  • the x-ray results on file dated March 1999 which indicated that the claimant had back problems in 1999 and thus "…incurring back symptoms was not something new in his life at the time of the December 12, 2002 mid back injury."

  • a physiotherapist report dated February 5, 2003 which noted that "…the claimant was retiring and would not be returning to work and merely wanted to be restored and pain-free for his leisure activities."

  • the May 20, 2003 adjudicator's memo which indicated that the claimant sold the shares in his business and had no intention of looking for alternate employment and was in receipt of CPP benefits since his retirement.
On October 25, 2003, the claimant disagreed with the decision rendered by Review Office. The claimant felt he was not paid enough as he was previously earning $3000.00 per month. He stated that his back was still hurting from the twisting, lifting and carrying the turkeys. The claimant said he never planned to retire and live in pain for the rest of his life caused by an accident just prior to being forced into retirement. On January 15, 2004, an oral hearing took place at the Appeal Commission to consider the claimant's appeal.

Reasons

This appeal involved a worker who injured his back in a workplace accident. His claim for compensation was accepted and benefits were paid accordingly. Ultimately, his benefits were ended as it was determined that he had recovered from the effects of the injury. It was also determined that he had been overpaid wage loss benefits.

Upon reconsideration by Review Office, both of these decisions were upheld. He has appealed both to this commission. For his appeal to be successful, the Appeal Panel would have to determine that he had a loss of earning capacity beyond December 31, 2002. We did determine that there was a continuing loss of earning capacity, but only for a few days.

In coming to our decision, we conducted a thorough review of the claim file, and held an oral hearing, at which we heard testimony from the claimant and his wife.

At the hearing, the claimant raised a number of issues, including his belief that his wage loss benefits were too low, when considering his income; and his concern that he is not able to repay the overpayment. As neither of these issues had been previously adjudicated and reconsidered by the board, we are not able to address them.

The key issue before us was whether or not the claimant had a loss of earning capacity after December 31, 2002. There is no argument that the claimant did continue to suffer from the effects of his workplace injury beyond that date. The board adjudicator had determined that he had recovered as of February 5, 2003. We were not able to determine the basis for this decision, other than a phone call from the claimant on that date to the effect he felt much improved. His treating physician reported that the claimant would be able to return to work on February 25, 2003. And, the claimant came back to the board in May complaining that he was still not recovered.

But, the issue, in this case, is not whether or when he had fully recovered from the effects of his workplace injury. It is, as noted above, whether or not he had a loss of earning capacity.

As noted in the background section, it was accepted knowledge that the claimant had the intention to retire not long after the end of the busy holiday season. Whether that was to be December 31 or some other date was never determined. His reported reasons for intending to retire were related to other medical problems, none of which are related to his compensable injury. Nor, were any of these aggravated by the workplace injury.

If the claimant had intended to return to work, he would have been entitled to wage loss benefits until, at least, February 5, 2003. However, he voluntarily removed himself from the workplace. He testified before the panel that he would not return to work, and that he had not sought any alternative employment.

Thus, it is our conclusion that there was no ongoing loss of earning capacity.

However, we come to a different conclusion as to when the loss of earning capacity ended. We find no conclusive evidence supporting the date of December 31, 2002, other than his stated intent to retire at about that time. The only firm evidence on the file, in this regard, is a copy of a bill of sale, selling his interest to his business partner. It is dated January 6, 2003. From that, we conclude that that is the day on which his loss of earning capacity ended.

It follows from this decision that there was an overpayment of wage loss benefits from January 7 to February 5, 2003.

In respect of this overpayment, the claimant testified that he is currently living on a very small monthly CPP payment. He argued that this would make it impossible for him to make repayment. While we sympathize with the claimant, we can make no decision on this, as it is yet to be adjudicated by the board.

Accordingly, the appeal is allowed only insofar as noted above.

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 4th day of February, 2004

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