Public Decisions | The Appeal Commission

Decision #71/04 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on February 26, 2004, at the claimant's request. The Panel discussed this appeal on February 26, 2004 and again on April 14, 2004.

Issue

Whether or not the claimant is overpaid wage loss benefits from July 21, 2003 to August 6, 2003 in the amount of $1,684.23; and

Whether or not the overpayment of benefits must be repaid.

Decision

That the claimant has been overpaid wage loss benefits from July 21, 2003 to August 6, 2003 in the amount of $1,684.23; and

That the overpayment of benefits must be repaid.

Decision: Unanimous

Background

On June 18, 2003, the claimant was laying bricks when the plank he was working on gave out and he injured both of his knees. On the same day of accident, the claimant attended a hospital emergency facility for treatment and was diagnosed with a right knee abrasion and a contusion. The claim was accepted by the Workers Compensation Board (WCB) and the claimant began receiving wage loss benefits on June 21, 2003.

On June 30, 2003, the attending physician reported that the claimant was referred to an orthopaedic specialist because of a possible fractured left hip. Restrictions were outlined for a four week period.

In a June 30, 2003 report, the orthopaedic surgeon examined the claimant and indicated there was no evidence of a fracture. He advised the claimant to gradually increase his activities. The surgeon further indicated he would see the claimant in one week to determine if he was ready to return to work as a bricklayer.

On July 8, 2003, the orthopaedic surgeon examined the claimant and suggested that he return to work as a brick-layer on July 21.

In a memo to file dated September 2, 2003, a WCB adjudicator noted that the claimant's attending physician did not authorize any time loss for the claimant at the time of his July 21, 2003 visit as there was no fracture identified in his hip. The physician agreed with the orthopaedic specialist that the claimant should have returned to work by July 21, 2003.

On September 3, 2003, the claimant was notified that he was overpaid benefits in the amount of $1684.23 as he should have returned to work on July 21, 2003 according to his treating physicians, but had been paid full wage loss benefits to August 6, 2003. The claimant was also advised that he was responsible to repay the full amount of his overpayment back to the WCB.

In an appeal to Review Office dated October 23, 2003, the claimant noted that he had been specifically told by his treating physician to stay off work until August 1, 2003 and that the doctor was to send in this information. The claimant referred to his doctor's first report where it was recommended that the claimant stay off until August 2003.

On October 24, 2003, Review Office confirmed that the claimant was overpaid wage loss benefits from July 21, 2003 to August 6, 2003 in the amount of $1684.23 and that the overpayment of benefits must be repaid.

Review Office pointed out that the claimant's physician speculated on June 30, 2003 that he may be off work for four more weeks. This did not mean that the subsequent examinations of July 8 and that of July 21, 2003 should be discounted. The evidence showed that the claimant was verbally advised by his orthopaedic specialist to return to work on July 21, 2003 and his own physician agreed with this recommendation. Hence, Review Office was unable to accept responsibility for the claimant's time loss after July 20, 2003. In December 2003, the claimant appealed Review Office's decision and an oral hearing was arranged.

Following the hearing, the Panel met to discuss the case and decided to obtain additional information from the claimant's treating physician prior to discussing the case further. On March 19, 2004, the claimant was provided with copies of the information that was received from his attending physician and was asked to provide comment. On April 14, 2004, the Panel met to render its final decision with respect to the issues under appeal.

Reasons

The attending physician referred the claimant to an orthopaedic surgeon as she was under the impression created by recent x-rays that the claimant might have suffered a left hip fracture. On initial examination, the orthopaedic surgeon reported as follows:

“There is full range of hip movements, some reluctance on the left side. There is full range of knee movements, full range of left ankle movement. X-rays of the left hip are of good quality, and I can (sic) absolutely no evidence of a fracture. Both knees look normal as does the left ankle.”

The evidence confirms that the claimant had a follow-up appointment with the orthopaedic surgeon on July 8^th, 2003. He forwarded a copy of his clinical notes to the attending physician under cover of a letter dated July 17^th, 2003 in which he advised:

“On examination arms and legs have full range of movement, there is full range of hip, knee and ankle movements. There is slight discomfort in the right knee. The ligaments are however intact. Continue exercising. Have suggested that he return to work as a brick-layer on July 21.” (Emphasis ours)

The claimant stated that his last visit with his attending physician was on or about July 15^th or 17^th, 2003 and that according to his best recollection “she told me not to go back to work until August, after the long weekend.” We note, however, the attending physician suggested that the claimant might possibly return to work four weeks following the date of the compensable injury. In a letter to the Appeal Commission, the attending physician confirmed the following: “I advised WCB and the patient that the length of time off work would depend on Dr. [orthopaedic surgeon’s] findings, but would likely be about four weeks.” We further note that the claimant did not keep his August 13^th, 2003 appointment with the treating orthopaedic surgeon.

After having thoroughly considered all of the evidence, we find that the claimant was able to return to his pre-accident job by July 21, 2003, and he was overpaid wage loss benefits from July 21, 2003 to August 6, 2003 in the amount of $1,684.23. Inasmuch as the claimant is not entitled to these funds, it necessarily follows that the overpayment of benefits must be repaid. Accordingly, the claimant’s appeal is hereby dismissed.

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 14th day of May, 2004

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