Decision #04/99 - Type: Workers Compensation
An Appeal Panel hearing was held on November 24, 1998, at the request of legal counsel acting on behalf of the claimant. The Appeal Panel met on November 24, 1998, to discuss the case.
Whether the claimant has recovered from the effects of the July 23, 1992 accident;
Whether the claimant has been overpaid in the amount of $1,588.22; and
Whether the claimant is obligated to refund the overpayment.
That the claimant has recovered from the effects of the July 23, 1992 accident;
That the claimant has been overpaid in the amount of $1,588.22; and
That the claimant is obligated to refund the overpayment upon certain conditions.
During the course of her employment on July 23, 1992, the claimant felt a sudden pain in her back when she lost her footing on a wet floor and dropped a pail which she was carrying. On the same day the claimant attended a physician for treatment. She was diagnosed with mechanical back strain and a lumbar facet inflammation. On July 27, 1992, a chiropractor reported a diagnosis of lumbosacral and sacroiliac strain/sprain with sciatic nerve root irritation. The claim was accepted as a Workers Compensation Board (WCB) responsibility and benefits were paid accordingly.
On October 15, 1992, a WCB chiropractic consultant considered the claimant was suffering from a left sacroiliac strain/sprain pneumonia [sic] as she was still having problems with the left sacroiliac joint and its ligamentous structures. By February 18, 1993, the WCB chiropractic consultant stated that his original diagnosis had not changed and that the claimant now had trigger point phenomena of the gluteal musculature. He considered the claimant was fit for light duties and that in approximately 3 to 4 weeks time she would be able to proceed back to normal activity.
File documentation revealed the claimant was not to return to work as her employer went bankrupt. In the meantime, the claimant enrolled in a 2 year university program. Her benefits were terminated on March 26, 1993. Also, the claimant was notified that no responsibility would be accepted for chiropractic treatment beyond June 7, 1993.
On January 25, 1994, an orthopaedic consultant diagnosed the claimant with mechanical low back pain and believed her condition was likely a residual effect from her July 1992 injury. The specialist further commented that the claimant was unable to return to any type of work requiring prolonged sitting or heavy lifting. On April 29, 1994, a WCB medical advisor agreed with the opinion that the claimant had not yet recovered from her pre-accident injury. The claimant's benefits were then reinstated.
A CT scan of the lumbosacral spine taken on November 14, 1994, showed no disc protrusion or other significant abnormality.
The claimant was examined by a WCB medical advisor on April 7, 1995, and by a medical advisor from the Pain Management Unit on May 8, 1995. The medical advisor from the Pain Management Unit opined that the claimant continued to have pain due to an unspecified soft tissue injury which seemed to be related to the sacroiliac joint. On June 13, 1995, the medical advisor recommended a reconditioning program.
On April 6, 1995, the claimant was placed under video surveillance and her activities were taped in April, May and June 1995. During this time period it was learned that the claimant was engaged in a lunchroom supervisory role. She worked for approximately one hour per day supervising three classes over the lunch hour. She had been performing this job function since 1994.
After viewing the surveillance tapes on October 6, 1995, the medical advisor who examined the claimant on April 7, 1995, believed the worker had exaggerated the extent of her disability during his examination. The medical advisor from the Pain Management Unit stated that it was difficult to attribute a diagnosis of chronic pain syndrome in the face of the surveillance evidence.
On November 14, 1995, a statement was taken from the claimant by a WCB field representative. The claimant said she had been employed as a lunch hour supervisor since 1993 and had assumed this position during her disability period. She was paid $11.00 per hour. The claimant further indicated that she had told her VRC (vocational rehabilitation consultant) and the pain unit medical advisor about working at the school. The claimant described her duties which involved picking up a cash box for collection of lunch hour fees, picking up binders containing the students names, taking roll call and patrolling the hallways.
In a letter dated January 8, 1996, a neurologist reported that he examined the claimant on January 3, 1996. His examination findings revealed straight leg raising at 80 degrees bilaterally causing low back pain. There was 60% decreased flexion and a 50% decreased extension. The claimant was tender in the sacroiliac areas and the lumbar spinous processes. In conclusion, there was mechanical pain but no evidence of neurological dysfunction.
On January 19, 1996, the claimant was informed by Claims Services that it considered a cause and effect relationship no longer existed between her current condition and the compensable injury. The claimant was also advised that she had been overpaid wage loss benefits amounting to $1,588.22. The overpayment was based on earnings received from the school division while she was in receipt of full wage loss benefits.
Subsequently, legal counsel for the claimant appealed the decisions rendered by Claims Services on January 19, 1996. On September 20, 1996, the Review Office reached the following decisions after consultation with a WCB orthopaedic specialist:
- that the monies received by the worker from the school where she worked in 1993, 1994, and 1995, resulted in an overpayment of benefits correctly calculated at $1,588.22. The Review Office stated that the overpayment of benefits was recoverable from the worker.
- that the worker had recovered from the effects of the July 23, 1992, accident. The Review Office concurred with the opinion expressed by the orthopaedic consultant that no significant pathology had ever been demonstrated during the many tests, investigations and examinations carried out in the past four years. All investigations proved to be normal. In further support, the Review Office stated the surveillance tapes clearly showed that the worker was unaffected in her day to day activities, including the supervision of children, and that examinations by various WCB personnel and medical advisors appeared to have involved some degree of exaggeration on her part. The Review Office concluded there did not have to be a specific report indicating that the worker had in fact recovered when one looked at the totality of the evidence and weighed it accordingly.
On September 19, 1998, legal counsel for the claimant appealed the Review Office's decision. On November 24, 1998, an Appeal Panel hearing was convened.
We find as a fact that the claimant has, on a balance of probabilities, recovered from the effects of her July 23, 1992, compensable injury. In arriving at this conclusion, we took into consideration several factors such as the video tape evidence and the claimant's statement that she intends to return to work once her non-compensable cardiac condition resolves. Also of significance were the examination findings of the claimant's treating neurologist recorded in his report of January 8, 1996. Strength and sensation were normal in the extremities and straight leg raising was 80 bilaterally. He concluded that there was no evidence of any neurological dysfunction and that the claimant was experiencing mechanical or activity related back pain. A CT scan taken of the claimant's lumbosacral spine on November 10, 1994, failed to demonstrate any disc protrusion or other significant abnormality. The weight of evidence failed to disclose any significant pathology.
There is no question according to the documentation on file that the claimant has been overpaid in the amount of $ 1,588.22 . We have no hesitation in concluding that the claimant is obligated to refund this overpayment. However, the recovery of the overpayment shall be in accordance with the provisions set out in WCB policy Section 35.40.50.01. We find as a fact that an initial decision with respect to the claimant's overpayment was made on December 5, 1995, when a WCB adjudicator verbally advised the claimant that she was now considered to be in an overpayment situation. This telephone conversation advice was later confirmed in a letter to the claimant dated January 19, 1996, "This letter is further to our telephone conversation of December 5, 1995. As well, you were informed that ... these earnings ... constitute an overpayment." Given this finding of fact, the above referenced policy is therefore applicable and not policy Section 35.40.50.
We find as a further fact that there was no fraud or active attempt on the part of the claimant to mislead or deceive the WCB. The evidence on file confirms that the WCB was advised or informed of the claimant's additional income during the time in which she was receiving benefits. This information first appears on file in a submission to the WCB from the claimant's worker advisor dated February 16, 1994. On page 4 of this report it reads: "Ms.[the claimant] advises that she is working for the [name of school] Elementary Schools Parent Teacher Association in their lunch room program for one (1) hour per day at $9.00 an hour. She is required to take attendance and supervise during this time period."
Also, we note that WCB form 4021 BL16 forwarded to claimants leads to ambiguity with respect to the request for information concerning income from other sources. Question 1 on the reverse side of the form asks, "Have you applied for or are you now receiving income from other sources as a result of your injury: Yes ( ) No ( )." There is no suggestion here that a claimant is required to indicate income from other employment or sources which has not resulted from one's injury.
We strongly suggest that various factors be taken into consideration when collecting this overpayment. For instance, the applicable policy states in part as follows: " In all cases where recovery is pursued, arrangements for repayment must factor in hardship considerations which the repayment would impose on the worker or dependents." At the hearing, the claimant advised the Panel that she is not presently seeking employment, part time or otherwise, because of an apparent non-compensable cardiac condition which has yet to be resolved. We also believe it should be kept in mind that it is reasonable to assume the WCB was aware or ought reasonably to have been aware at some point in time that the payments to the claimant were in excess of her entitlement.
R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
B. Malazdrewich, Commissioner
Recording Secretary, B. Miller
R. W. MacNeil - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 6th day of January, 1999