Decision #97/10 - Type: Workers Compensation
Preamble
This appeal deals with a decision made by Review Office of the Workers Compensation Board (“WCB”) that the worker was overpaid benefits in the amount of $2,233.88 for the period May 23, 2009 to June 19, 2009, on the grounds that he misrepresented his disability and was deemed capable of performing his regular duties by May 23, 2009. The worker disagreed with the decision and an appeal was filed with the Appeal Commission. A file review was held on July 20, 2010 to consider the matter.Issue
Whether or not the worker has been overpaid $2,233.88.Decision
That the worker has been overpaid $2,233.88.Decision: Unanimous
Background
On April 29, 2009, the worker reported that he was exiting his truck in the course of his employment when he slipped and fell on loose gravel injuring his low back.
When seen for medical treatment on May 1, 2009, the attending physician noted that the worker had pain with walking and sitting, that he was limping and had decreased flexion. The diagnosis was a right lower back strain. The physician later advised that he incorrectly referred to the right side and that the injury was a left low back strain.
Upon referral from his treating physician, the worker was seen for treatment by a physiotherapist on May 8, 2009. The diagnosis rendered at that time was a lumbar strain, left gluteal medial and piriformis spasm and dural tension. The physiotherapist indicated that the worker may attempt a return to modified duties on May 18, 2009 starting at four hours per day and to avoid repetitive forward bending and squatting.
A lumbar spine x-ray dated May 27, 2009 showed normal alignment with no bone, soft tissue, disc or articular abnormality.
On June 4, 2009, the worker advised the WCB that if he walked for more than 15 minutes at a time his back begins to hurt and he feels discomfort for the rest of the day. The pain went from his low back and radiated down his left leg. If he sat, stood or walked for too long, the discomfort level in his back increased.
In a June 4, 2009 physiotherapy progress report, the physiotherapist stated, in part:
“Within clinic writer observes patient having significant limp. (Appears to be telling lie). Decrease in appearance of limp when patient is walking and unaware of writer. Positive Waddell’s. Inconsistent attendance to treatment.”
On June 4, 2009, the worker advised the WCB that he had not been working at all as he was too sore to do anything.
In a progress report dated June 9, 2009, the treating physician reported that the worker still had pain on walking and bending as of June 5, 2009 and that he was not capable of alternate or modified work.
On June 11, 2009, the WCB received an undated report from a chiropractor who had been treating the worker since 2006. He stated the worker came to the office on April 30, 2009 with symptoms of low back pain which he said was caused by a recent abdominal muscle workout done at home. Objective findings were edema at the right sacroiliac joint, severe point tenderness of the right S1 joint and lumbar spine and hypertonicity of the right lumbar paraspinal muscles. The diagnosis was lumbar and sacral VSC concomittment with right sacroiliac joint sprain. Other than the WCB’s letter of May 6, 2009, the chiropractor indicated that they had no record of any work related injury that occurred on April 29, 2009.
On June 12, 2009 a WCB physiotherapy advisor noted that he spoke with the treating therapist who reported that there were inconsistencies in the worker’s presentation. She noted that limping was variable, that the response to straight leg raise tests varied, that objectively there was increased tone in the buttock muscles and some stiffness on lumbar spine glides. There were no objective findings that would preclude a return to work. She noted that the worker’s limitations are due to subjective complaints.
On June 22, 2009, the worker advised the WCB that the new exercises given to him by his physiotherapist were making his back worse. The discomfort in his back was now at the point it was on the day he was originally injured. The worker indicated that the physiotherapist did not discuss his ability to go back to work on any type of modified duties with him personally for quite some time. The worker indicated in another telephone conversation with the adjudicator that he may have told his chiropractor that he had been doing some sort of abdominal workouts but no way did he state this was the cause of the injury.
A surveillance videotape of the worker’s activities were taken on June 15, 19, 20 and 21, 2009. The corresponding report is on file dated June 30, 2009.
On July 6, 2009, a WCB adjudicator spoke with the treating physician. The treating physician did not give any objective findings as to why the worker was still off work. He said the worker looked like he was in discomfort during their last visit.
On July 8, 2009 the worker was interviewed by a WCB special investigations advisor. In a report dated July 13, 2009, the special investigations advisor briefly summarized some specific information from the interview transcript. In particular, the worker was involved in taking “team pictures” but denied being paid for the shoots. He built a shed and roofed it while claiming wage loss disability benefits. The worker assembled a pool and built a “boardwalk” for it. Also included with the transcript were photos and narrative of the worker’s “Twitter” site.
On July 27, 2009, the worker provided a WCB adjudicator with additional information concerning the building of his shed, the photo shoot, picking up a trailer, and other activities.
In a decision dated August 11, 2009, a WCB supervisor advised the worker that because he was performing physical activities such as building a shed on May 23, 2009 while in receipt of WCB wage loss benefits, the WCB was of the opinion that he was capable of performing his regular duties on May 23, 2009. The WCB was therefore rendering a retroactive decision that the worker was only entitled to wage loss benefits from April 30, 2009 to May 22, 2009 inclusive. As the worker had been paid wage loss benefits beyond May 22, 2009 to June 19, 2009, an overpayment situation existed. On September 3, 2009, the worker was advised that the amount of the overpayment was $2,233.88 and he was responsible for repaying the entire amount back to the WCB.
The case was considered by Review Office on September 24, 2009 based on an appeal submission by the worker dated September 2, 2009. Review Office determined that the worker was fit to return to work as of May 23, 2009 and that an overpayment existed in the amount of $2,233.88. In making its decision, Review Office made the following observations:
· the physiotherapy information which indicated that the worker was observed to have a significant limp and that there was a decrease in the appearance of the limp when the worker was walking and unaware of her presence;
· positive Waddell’s testing that was not in the worker’s favour;
· the chiropractor not knowing of a work related accident, only that the worker had injured himself at home doing an abdominal workout;
· contrary evidence provided by the worker in the interview transcript that he could not recall friends having helped to build his shed and his evidence in the appeal submission that “all the heavy lifting was done by friends and family”; and
· the surveillance video which did not show compelling evidence that the worker was functionally impaired.
On January 3, 2010, the worker appealed Review Office’s decision to the Appeal Commission and a file review was arranged.
Reasons
The issue before the panel was whether the worker has been overpaid $2,233.88. The panel found that the worker was overpaid.
Applicable Legislation and Policy
Subsection 4(1) of The Workers Compensation Act (the “Act”) provides that where a worker is injured by accident arising out of and in the course of employment, compensation shall be paid by the WCB. Subsection 39(1) provides that where the injury results in a loss of earning capacity after the day of the accident, wage loss benefits must be paid. Subsection 39(2) provides that wage loss benefits are payable until the loss of earning capacity ends, as determined by the WCB.
Worker’s Position
The worker filed a notice of appeal with a submission dated January 3, 2010. The worker addressed various aspects of the Review Office decision in his submission. He referred to studies challenging the use of Waddell signs in determining credibility and sincerity of patients, and in identifying malingering conduct by patients.
The worker expressed the view that the physiotherapist was "biased due to her assumption of my lying". With respect to the video evidence, he noted that he had "good days and bad days" and that the video was taken on "one of my good days".
In a submission to Review Office received on September 3, 2009, the worker addressed the issue of building a shed. He stated that the tools were quite light and that the heavy lifting was done by others. He stated that his job "involves 6 hours of walking a day with .5 hrs to be used for breaks…My former chiropractor related my job to being the equivalent of a car crash every day…I'm in and out of house, up and down stairs, crawling through crawl spaces and running from dogs. I deal with harassment from drunks, bums, hookers, and addicts. My job is not building sheds. The mental and physical stress of my job, in no way compares to slowly building a shed in the comfort of my back yard."
Analysis
The panel finds that the worker was overpaid. The panel finds, on a balance of probabilities, that the medical evidence does not support a finding that the worker was unable to work after May 22, 2009.
The panel has reviewed the complete file including medical reports, memos, statements, the surveillance report and video, and excerpts from the worker's Twitter site, and places significant weight on the following evidence, in support of its decision.
The treating physician's progress report of May 22, 2009 indicates that the worker still has pain and is limping and is not capable of modified or alternate duties. However, the panel notes that the report and subsequent report do not identify any clinical tests that were performed nor any objective findings to support his opinion that the worker is not able to perform any duties.
The panel notes that on the same date the treating physician indicated that the worker was not able to perform any duties, the worker indicated on his Twitter site that he attended a lumber retailer for wood. The worker's Twitter log indicates on May 23 at 7:16 AM he is building a 14 foot by 8 foot shed. An entry at 5:22 PM indicates "Almost a days work done." An 8:48 PM entry on this date indicates "finishing the roof on my massive shed tomorrow." This evidence is inconsistent with the treating physician's opinion that the worker is unable to perform modified or alternate duties.
Regarding the building of the shed, the panel notes the conflicting information provided by the worker regarding the assistance he received in building the shed where at one point he didn't recall any friends being there to help him, and at other times indicating that his friends did all the heavy lifting.
The panel finds that the treating physician's reports do not provide clinical findings to support a continued inability to return to work. A July 6, 2009 note on file from a WCB adjudicator indicates that when asked about objective findings, the treating physician replied that the worker looked like he was in discomfort during the last visit. The panel is unable to rely on the treating physician's reports as he appears to have relied upon the worker's voiced complaints, rather than clinical tests and findings.
The panel places significant weight on the physiotherapist's report of June 4, 2009 and the clarification of the report noted in the June 12, 2009 memo from the WCB Physiotherapy advisor. The physiotherapist found no objective findings that would preclude a return to work. She advised that the limitations noted on the file were due to subjective complaints. She also expressed concern about inconsistencies in the worker's presentation and symptom magnification by the worker.
As there is no reliable evidence to support an inability to work beyond May 22, 2009, the panel finds on a balance of probabilities that the worker has been overpaid $2,233.88.
The appeal is dismissed.
Panel Members
A. Scramstad, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
Signed at Winnipeg this 26th day of October, 2010