Decision #47/08 - Type: Workers Compensation
Preamble
The worker has a claim with the Workers Compensation Board (“WCB”) for a work related incident that occurred on June 9, 2006. Later, based on video surveillance evidence, it was determined by primary adjudication and Review Office that the worker misrepresented her symptoms and was able to return to work by August 4, 2006. As she had been paid benefits to August 20, 2006 inclusive, it was determined that the worker had been overpaid benefits for the period August 4 to August 20, 2006 and that she was responsible to repay the overpayment. The worker disagreed and filed an appeal with the Appeal Commission. A hearing was held on March 12, 2008.Issue
Whether or not the worker is responsible for repayment of benefits issued from August 4 to August 20, 2006.Decision
That the worker is not responsible for repayment of benefits issued from August 4 to August 20, 2006.Decision: Unanimous
Background
On June 9, 2006, the worker was performing the duties of a materials handler when she experienced pain in her groin area and left leg.
Initial medical reports show that the worker sought treatment on June 22, 2006 for pain in the left groin and thigh region from pushing a loaded linen cart. The physician indicated that the worker was not disabled from work but could only perform alternate or modified duties with certain physical restrictions. As no diagnosis was outlined on the report, the treating physician’s office was contacted on June 26, 2006. The diagnosis reported was a left groin strain.
A report was then received from a second physician who examined the worker on June 30, 2006. His diagnosis of the worker’s condition was left groin pull and left thigh adductor muscle strain. It was noted that the worker was being referred for physiotherapy treatment and that she would likely be back at partial duties by August 8, 2006.
A physiotherapist report dated July 6, 2006 diagnosed the worker’s condition as myofascial pain, mechanical low back pain and muscle strain to the left hip and pelvis.
The file was reviewed by a WCB medical advisor on July 5, 2006. Based on the file information, the medical advisor outlined temporary restrictions for the worker for a four week period. They included no prolonged walking or sitting, no crouching, change position and perform stretches as necessary, no lifting greater than 15 lbs., no repetitive or prolonged stair climbing and no use of ladders.
On July 5, 2005, a WCB adjudicator provided the worker with a verbal description of her temporary restrictions. The worker was told that the WCB would try to get her back to work for July 10, 2006.
The worker contacted the WCB on July 11, 2006 to advise that she began modified duties on July 10, 2006 commencing at 2 hours a day, 3 days per week, and would gradually increase her hours.
On July 13, 2006, the worker advised a WCB case manager that she was upset at being forced to return to work earlier than her doctor and physiotherapist had recommended. She said her symptoms included pain in her buttocks, down to her knees and that she was starting to have pain on the other side and was getting numbness and shooting pain down to her knee. She also had abdominal pain. The worker described her modified duties as answering phones and some computer work. She thought that getting up from a seated position and sitting down caused her symptoms to increase as she was asked to deliver something and by the time she got back she was in a lot of pain. The worker felt that she did not have enough time to heal.
In subsequent file correspondence it was noted that the worker worked 2.5 hours on July 18, 2006 but had to stop because of the pain in her buttocks.
On July 20, 2006, the treating physician stated in a progress report that the worker did 4 hours of work while in pain. She noted that the physiotherapist indicated that the worker was unable to stand for prolonged periods and was to avoid pushing, pulling and carrying. She recommended that the worker be examined by a WCB consultant.
The worker was assessed by a WCB medical advisor on July 27, 2006. He stated in his report that with physiotherapy and the passage of time, the discomfort at the left groin had reportedly improved somewhat but had been supplanted by additional discomfort at the right groin, buttock, low back and left thigh. He said it was difficult to account for the worker’s left groin and medial thigh pain on a specific pathoanatomical basis. The thoracolumbar spine exam was consistent with non-specific low back pain. While the specific cause of the back pain was unclear, there was no evidence that it was directly related to the workplace injury. The findings of widespread abdominal and buttock pain were difficult to account for but did not appear to be directly related to the workplace injury. It was indicated that the worker’s left groin and medial thigh pain was likely due to muscle strain and by her report, the symptoms were gradually improving. It was felt the worker was capable of attempting another graduated return to work starting at 2 hours per day and gradually increasing as tolerated.
On July 28, 2006, the worker advised her case manager that following the WCB examination she was in extreme pain and could hardly walk. She indicated that she did not feel she could continue with the graduated return to work process and felt that everything physiotherapy was doing was coming undone. She felt no better than she did when she was injured.
On August 15, 2006, the worker advised a WCB manager that she was starting to notice some improvement with physiotherapy and acupuncture treatment. She indicated that her doctor does not want her to consider any type of a return to work until after re-examination on August 29, 2006. She said her doctor wanted the physiotherapy to progress first and was of the opinion that a graduated return to work would only undo the benefits being gained in physiotherapy.
A video surveillance was taken of the worker’s activities in early August 2006.
On August 24, 2006, the treating physician reported that the worker was still experiencing pain but was improving with acupuncture and physiotherapy treatments. He indicated that the worker could return to modified duties as of August 30, 2006 and was to avoid lifting more than 20 lbs., no pushing or pulling of carts and limited crouching.
On August 30, 2006, a WCB case manager telephoned the worker. The worker indicated that she had not performed any activities outside of the home. She said she was not in as much pain as before but crouching or crossing her legs caused pain. Her stamina was to walk about 2.5 blocks. She could not ride a bike and her sitting tolerance was 10 minutes.
In a decision dated August 30, 2006, the case manager outlined her opinion that the worker had recovered from the effects of her injury and there was no further loss of earning capacity beyond August 4, 2006. This decision was primarily based on the surveillance evidence. It was the case manager’s opinion that the worker misrepresented her symptoms and that she was able to work. The worker was further advised that because she received wage loss benefits to August 20, 2006, this resulted in an overpayment of $868.66.
On November 2, 2006, an advocate for the employer appealed the duration of benefits on the claim to Review Office. She believed that the worker’s claim was questionable. She felt there was no objective findings indicating that the worker could not perform light duty work and that her compensable condition, if any, had resolved long before her benefits were suspended.
On December 8, 2006, Review Office confirmed that the worker was not entitled to full wage loss benefits from July 10, 2006 to August 3, 2006. Review Office determined that the worker had recovered from the compensable injury to the extent that she was capable of a graduated return to work as outlined by the treating physiotherapist and the WCB medical consultant effective July 10, 2006. It noted that the employer provided the worker with duties and hours that were in keeping with her capabilities, in relation to the compensable injury. Any wage loss benefits beyond July 10, 2006 would be based on the graduated return to work plan, up until August 4, 2006.
In a further decision dated December 20, 2006, the WCB case manager advised the worker that the Review Office’s decision resulted in an additional overpayment for the period July 10, 2006 to August 3, 2006 and that no attempts would be made to recover the overpayment for this period. The worker, however, was still required to repay the overpayment of $868.66 for the period August 4, 2006 to August 20, 2006. The worker disagreed with the decision and filed an appeal with Review Office.
Prior to considering the appeal, Review Office arranged for the video surveillance to be reviewed by the WCB medical advisor who examined the worker on July 27, 2007. His comments are contained in a memo to file dated August 10, 2007. He indicated “Based on the activities observed it is concluded that either the symptoms and abilities reported by [the worker] at the July 27 06 WCB exam were not accurate, or that significant recovery occurred between July 27 and Aug 4. The activities observed on surveillance appear to indicate that by Aug 4 06 [the worker] would have at least have been capable of modified duties with no apparent need for restriction in hours.”
On August 10, 2007, Review Office confirmed that the worker was responsible for repayment of benefits issued for the period August 4 to August 20, 2006. Review Office determined that the worker, as seen in the surveillance on August 4, 2006, misrepresented her capabilities in her presentation at the WCB medical examination on July 27, 2006 and as indicated to her case manager on July 28, 2006. Therefore, the worker was not entitled to wage loss benefits from August 4 to August 20, 2006 as it was determined she would be capable of returning to full time employment. Review Office also confirmed that the worker was responsible for repayment of benefits issued from August 4 to August 20, 2006.
On November 14, 2007, the worker’s union representative appealed the above decision to the Appeal Commission. She noted that the decision was based on video surveillance carried out over a 3 day period and that there was no visible evidence that the worker performed any functions that were in violation of the restrictions outlined by her physician.
Reasons
Applicable Legislation and Policy
The Appeal Commission and this panel are bound by The Workers Compensation Act (the “Act”) and by policies made by the Board of Directors of the WCB.
This appeal deals with provision of benefits on an accepted claim. Subsections 4(2), 39(1) and 39(2) of the Act, provide that wage loss benefits are payable where an injury results in a loss of earning capacity and are paid until such a time as the loss of earning capacity ends.
As this appeal deals with the recovery of an overpayment, WCB Policy 35.40.50 is applicable. It provides that all overpayments will be pursued for recovery. It then outlines a list of exceptions where recovery will not be pursued. These include overpayments which result from an adjudicative reversal, a reconsideration decision by the WCB or from a decision of the Appeal Commission. As well, recovery is not pursued where it would create a financial hardship to the worker. Despite these exceptions, the policy clearly provides that overpayments will be pursued where there is fraud, deliberate misrepresentation or withholding of key information affecting benefit entitlement.
Worker’s Position and Evidence at Hearing
The worker was represented by her union representative. The worker answered questions posed by the panel.
The worker’s representative submitted that it would be unreasonable to expect workers to return to work without a doctor’s approval. He noted the employer requires clearance from her doctors.
The representative reviewed specific scenes on the video and submitted there was nothing on the tape. He disputed that the worker’s activities recorded on the surveillance video proved that she could return to work. He also noted there is no evidence on the video that the worker participated in activities outside her restrictions of no heavy lifting, pushing, pulling or otherwise.
With regards to the suggestion that the worker could have returned to light clerical duties, he commented that in the department in which the worker was employed, there were no clerical duties that did not also include heavier duties. The primary duties involve material management which includes the delivery of materials throughout the institution. He described the duties and said that it is a very physical job.
The representative advised that when the worker was cut off benefits, she did not return to work until mid-September. He noted that she was not paid during this period.
In reply to a question, the representative advised that he is not aware of any person from his department being moved to another area of the institution to a less strenuous job. He also advised that after August 4, 2006, there were no discussions about a graduated return to work for the worker or about a different position.
The worker acknowledged that she was not totally disabled but that her job was very physical and she would not be able to perform those duties. As well, she did not think she could perform the duties of the dispatch job. She acknowledged that she may have been able to work at a completely sedentary job but the employer never identified any other job that she could attempt.
Employer’s Position
While the employer did not attend the hearing, an advocate provided a written submission on the employer’s behalf. The advocate submitted that by August 4, 2006 the worker did not have a loss of earning capacity. She stated that had the worker not greatly misrepresented her abilities she would have returned to work with no wage loss. Accordingly under subsection 4(2) and 39(2) of the Act, the worker was not entitled to wage loss benefits during the period from August 4 to August 20, 2006.
The employer’s representative noted the worker’s presentation of her symptoms when examined on July 27, 2007 and compared these to the worker’s activities shown on the video surveillance conducted in early August. She stated that the worker either made a miraculous recovery or deliberately misrepresented her abilities to the WCB. She submitted that WCB Policy 35.40.50, is clearly applicable and that the overpayment should be collected.
Analysis
The issue before the panel was whether the worker is responsible for repayment of benefits issued from August 4 to August 20, 2006. The issue arises because the WCB and Review Office found that the overpayment to the worker, although the result of an adjudicative reversal, was caused by fraud or deliberate misrepresentation by the worker about her condition and ability to return to work. For the worker’s appeal to be successful, the panel must find that the overpayment was not caused by fraud or deliberate misrepresentation by the worker. The panel did make this finding.
The issue before the panel does not deal with whether the worker was entitled to benefits from August 4 to August 20, 2006. Rather, it deals with whether the overpayment of benefits during this period is recoverable from the worker. The applicable section of the WCB Policy 35.40.50 is
4. Despite the provisions in Part 3, overpayments will be pursued for recovery where the following circumstances apply:
(i.) there was fraud, deliberate misrepresentation or withholding of key information affecting benefits entitlement;
The panel does not find that the worker fraudulently or deliberately misrepresented her condition or abilities. There is insufficient evidence to find, on a balance of probabilities, that the worker was actually engaged in fraudulent activity or deliberate misrepresentation. As well, the evidence does not establish that the worker withheld key information.
The panel is satisfied that the worker was experiencing pain on July 27, 2006 when examined by the WCB medical advisor, although there was likely an element of exaggeration or pain amplification during the examination. The panel finds that the worker had a genuine belief that she was not fit to return to work, particularly to her regular duties, and in fact did not return to work when her wage loss benefits were terminated but waited for clearance from her physician. The panel finds the worker’s reliance upon her physician negates any intent that would support a finding of fraud or deliberate misrepresentation and supports the conclusion that the worker did not fraudulently or deliberately misrepresent her condition to the WCB. As well, the worker continued to receive treatments for her compensable injury after the July 27, 2006 examination.
With regards to the worker’s reliance on her physician, the panel notes that the WCB medical advisor who examined the worker on July 27, 2006 also relied upon the worker’s physician’s assessment. In an August 18, 2006 memo he stated that it was reasonable to postpone a graduated return to work (“GRTW”) until a later examination. The WCB medical advisor was asked the following question:
“3) The claimant states that her GP will not support a GRTW of any kind until re-examination of August 29, 2006. The contention is that physio is commencing its “active” stage and there has been some improvement in the claimant’s overall condition. It is felt that a premature GRTW would be contrary to the therpeutic (sic) benefits of physiotherapy. Would this be a reasonable approach? If not please arrange to discuss with the attending GP.”
The WCB medical advisor replied: “In view of previous failed GRTW, and recent reported improvements with physio treatment to date I would suggest physio continue and GRTW await GP’s Aug 29 review.”
The panel also notes a prior unsuccessful return to work reinforced the worker’s view that she needed to recover from her injury and related symptoms to return to work.
The worker’s appeal is allowed.
Panel Members
A. Scramstad, Presiding OfficerA. Finkel, Commissioner
G. Ogonowski, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
Signed at Winnipeg this 28th day of March, 2008