The Appeal CommissionThe Workers Compensation Act of Manitoba

Applicable Legislation:

The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the Board of Directors.

Under subsection 4(2) of the Act, a worker who is injured in an accident (as defined under the Act) is entitled to wage loss benefits for the loss of earning capacity resulting from the accident. Subsection 39(2) of the Act provides that the WCB will pay wage loss benefits until such a time as the worker’s loss of earning capacity ends, or the worker attains the age of 65 years. Subsection 27(1) provides that medical aid will be paid by the WCB for so long as is necessary to cure and provide relief from the injury.

WCB Board Policy 35.40.50 (the “Overpayments Policy”) deals with recovery of overpayments of benefits. The Overpayments Policy sets out the principles established by the WCB Board of Directors to guide the WCB in its recovery of overpayments. The principles attempt to strike a fair balance between the WCB’s fiscal responsibilities and the interests of injured workers.

The Overpayment Recovery Criteria set out in the Policy provides as follows:

3. All overpayments receivable will be pursued for recovery, unless:

(i) they resulted from an adjudicative reversal or a reconsideration decision by the WCB, or from a decision of the Appeal Commission; or

(ii) they resulted from either an administrative error by the WCB, or the receipt of incorrect information from an employer that affected eligibility or the amount payable. The exception to this provision is that the overpayment will be pursed if the WCB considers that the error or incorrect information was so material or obvious that the worker should have recognized it and reported it to the WCB; or

(iii) new information relevant to entitlement was known to the worker and was not provided to the WCB, but it resulted in an overpayment of less than $50; or

(iv) the amount receivable is not cost-effective to pursue; or

(v) recovery of the overpayment, in whole or in part, would create financial hardship for the worker and/or the worker's dependants; or

(vi) the worker has died, unless it is clear that the estate has sufficient funds available

(vii)to repay the overpayment; or

(vii)the overpayment occurred more than three years prior to its discovery by the WCB.

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; or

(ii) the overpayment represents a duplication of benefits paid from another source for the same injury, for example Long Term Disability or CPP Disability benefits.

Worker's position:

The worker was assisted by legal counsel at the hearing. It was submitted that as a result of the workplace injury in which she struck her head, the worker suffered from decreased vestibular functioning. Although the WCB accepted the diagnosis of concussion and post-concussion syndrome, the WCB did not adequately address the worker's problems with vestibular functioning as the source of ongoing dizziness, balance issues and sensitivity to light. This failure to adequately identify the cause of the worker's symptoms was problematic, as was the WCB's determination that the symptoms related to the worker's concussion must have resolved because she was able to participate in the Disney marathons.

It was acknowledged that one of the key issues in the appeal was the question of how the worker could still be suffering from symptoms relating to her concussion when she could participate in a marathon. The worker's response was that, in part, some of her symptoms may have been made worse by her participation in those events. It was noted that the worker had been diligent in her dealings with both her employer and the WCB and she took every precaution to make sure the WCB was informed of all factors related to her care. Prior to her vacation, she had told the WCB she was ready to return to work on January 4 and had made arrangements to do so immediately on her return from her trip to Florida. It was submitted that the worker believed at the time, on January 8 and 9, 2011, that she was well enough to participate in the marathons and that by attempting to normalize her activities, she was assisting in her own recovery. It was only after her return that she realized that her participation may have negatively affected her condition. Although she never intended to cause an aggravation of her symptoms, it appears that is exactly what happened. By January 21, 2011, it became apparent to the worker that she was still experiencing symptoms to the point that it negatively impacted to ability to perform the core functions of her job.

It was also submitted that the WCB did not fully consider the information regarding vestibular dysfunction. Medical literature indicated that it was possible for individuals to suffer vestibular complications as a result of a concussion for extended periods of time, including and up to years after. The worker had been diagnosed with vestibular functioning problems based on objective medical tests and at the time of the hearing she was still suffering from and receiving treatment for this particular condition.

Overall, the worker's position was that there was not the requisite evidence to show that she was clear of all symptoms of her injury by the date of December 17, 2010. To the contrary, the evidence showed that she had and continued to have symptoms that disabled her from working. It was acknowledged that the worker was ultimately responsible for the effects of her decision to participate in the marathon and therefore any aggravation of her injury that occurred was not the responsibility of the WCB. In light of this, the worker's position was that if there was any benefit repayable, it would only be repayable from the date on which the worker had knowledge that her participation in the marathon had been detrimental to her health. This date was January 21, 2011, after completion of a week's worth of return to work activities. In other words, the worker acknowledged that she was not entitled to wage loss benefits from January 21 to March 9, 2011 and therefore an overpayment existed with respect to that period. She did, however, feel that she ought to be entitled to wage loss benefits for any loss of earning capacity prior to January 21, 2011.

With respect to whether or not the overpayment should be recovered, it was noted that the Overpayments Policy provided that the WCB would not recover amounts which resulted from an adjudicative reversal of a decision of the WCB unless there was fraud, deliberate misrepresentation or withholding of key information affecting benefits entitlement. It was submitted that any consideration of statements made by a worker must be made within the context of that person's overarching relationship with the WCB. In the present case, the worker was actively participating in a return to work on January 17 to 21, 2011. She was looking to get back to work. She was not looking to withhold or misrepresent information in order to continue on benefits. To make a finding of fraud, one would have to be able to establish on a balance of probabilities that the worker had the requisite intention to mislead the WCB or make a deliberate misrepresentation that would affect her benefit entitlement. There was no intention on the part of the worker in this case to misrepresent the nature of her injury, misrepresent the nature of the activities she was engaged in so that she could continue on benefits with the WCB.

Employer's position:

The employer was represented by an advocate and its director of human resource services. The employer's position was that based on the preponderance of evidence, there could be no question that the worker had been overpaid wage loss benefits as of December 17, 2010 and that she must repay these benefits to the WCB. The mechanism of injury itself was fairly minor and the worker did not lose consciousness. She continued to work in her full regular duties for a week without any difficulty. She made no complaints of nausea, dizziness or headaches. On December 6, 2010, the worker attended her general practitioner who diagnosed her with a concussion. She was later diagnosed to have post-concussion syndrome with complaints of sensitivity to light. It was submitted that in the absence of unconsciousness, emergency care or diagnostic testing confirming brain damage or head injury, the diagnosis of post-concussion syndrome is made largely upon the history provided by the patient to the doctor.

The employer disputed the allegation that prior to leaving on the trip, arrangements were in the works to return to work. The report from the worker's physician dated January 4, 2011 indicated that she remained totally disabled from working and he prescribed rest. It was submitted that the physician could only have made this assessment based on what the worker had told him and as a result of these representations, the WCB continued to pay full wage loss benefits to the worker during her holiday in Florida.

At the hearing, the employer called three witnesses. These witnesses were the worker's running mates who went with her on the trip to Florida. Their evidence was that the worker engaged in a very action packed vacation in Disney World and they saw no indications of confusion, difficulty with thinking processes, imbalance, dizziness or nausea. There was nothing out of the ordinary.

It was the employer's position that it defied common sense and reasoning that the worker could participate the activities she did on vacation, then have the negative consequences crystallize only upon her return to sedentary duties working two hours per day in a darkened room. It was submitted that there had been a clear misrepresentation of symptoms and abilities. A diagnosis of post-concussion syndrome is based almost solely on subjective complaints and the history provided by the patient to the doctor. In this case, the worker's symptoms were not corroborated by her coworkers, her supervisor or her running mates. It was most unusual to keep working for a week after an accident without difficulty. Further, despite the benign nature of the injury, the worker's symptoms had increased in severity over the months and years since the injury. This was not the natural progression of a post-concussion syndrome. The fact that the worker could participate in back-to-back half and full marathons, go on rides, watch fireworks, shop, walk, tour, dine out and do all the things that one does in Disney World indicated that she did not suffer from post-concussion syndrome. If medical practitioners who subsequently saw the worker months or years after the injury described her as suffering from dysfunction, it was suggested that this was not due to the work-related injury.

The employer submitted that the worker had not been truthful and that she misrepresented her abilities to the adjudicator, the case manager, the employer, her doctor, the neurologist and to the WCB doctors. She did so in order to maintain benefits. This was a clear contravention of the Act and WCB policy. It was submitted that the WCB properly applied the provisions of the Act and its decision should be upheld.

Analysis:

Whether or not the worker has been overpaid wage loss benefits from December 17, 2010.

The first issue before the panel concerns the worker’s entitlement to WCB benefits beyond December 17, 2010. In order for the worker’s appeal to be successful, we must find that at that time, the worker continued to suffer a loss of earning capacity as a result of her compensable injury. On a balance of probabilities, we are not able to make that finding.

As identified by the worker's legal counsel, the key issue to be considered in this appeal is the question of how the worker could still be suffering from symptoms relating to her concussion when she could participate in a marathon. Although counsel put forward a compelling argument that the worker's condition had been improving and she only suffered an aggravation of her condition after participating in the marathons, we find on a balance of probabilities that the evidence does not support this proposed scenario.

The worker was examined by her family physician on January 4, 2011, the day before she left for Orlando. In his report, the worker's subjective complaints were listed as: "still light sensitive, fatigue easily, same headache, dizzy." Objective findings were: "light sensitive, positive Rhomberg." The panel understands a positive Rhomberg test to mean that the patient demonstrates a loss of balance when asked to stand with the eyes closed. Recommended treatment was continued rest. The physician did not feel the worker was capable of alternate or modified work.

WCB notes to file indicate that the WCB medical advisor spoke with the worker's physician on January 7, 2011. The notes indicate:

[Attending physician] called today and reported that based on his recent assessment, [worker] continues to experience symptoms of post concussion syndrome including light sensitivity and dizziness such that he did not feel that she would be fit for any work duties, even sedentary. He noted that she was booked to travel to Orlando to participate in a Marathon, but that due to her condition she would not be participating and would simply be recuperating.

Although the worker did advise the WCB on January 4, 2011 that she felt that she would be able to return to modified duties, it is clear that her presentation to her physician was markedly different. Based on his January 4, 2011examination of her, he did not feel that she was even capable of sedentary duties. It is important to note that the physician's opinion would have been based primarily on the subjective complaints described to him by the worker. As noted in the WCB medical advisor's opinion of April 24, 2011, the Rhomberg's test is not specific to concussion and is not entirely objective as it can be affected by motivation of the patient.

In stark contrast to the worker's presentation to her physician on January 4, 2011, the three witnesses who testified at the hearing painted a very different picture of the worker's condition and functional ability. All three confirmed that the worker appeared fine throughout the course of the vacation and never complained of any symptoms. One of the witnesses is a medical professional with experience in assessing post-concussion syndrome and her evidence was that the worker did not display any signs of post-concussion syndrome.

The group's activities over the seven days were described by the witnesses and can be summarized as follows:

• Wednesday, January 5 - Flight from Winnipeg to Orlando via Toronto; evening spent at Downtown Disney
• Thursday, January 6 - Visited Runner's Expo and theme park; evening spent watching fireworks show
• Friday, January 7 - Visited theme park and went outlet shopping; evening went for drinks and watched fireworks
• Saturday, January 8 - Participated in half marathon; woke up at 2:30 a.m., left condo at 3:15 a.m., was in the holding corrals by 4:00 a.m., completed half marathon by noon. Returned to theme parks in later afternoon to walk around
• Sunday, January 9 - Participated in full marathon; same schedule as previous day with 2:30 a.m. wake-up and left condo at 3:15 a.m.
• Monday, January 10 - Full day at theme park; went on various rides (non-thrill rides) and stayed at park for dinner and fireworks
• Tuesday, January 11 - Visited two theme parks; stayed for dinner and fireworks
• Wednesday, January 12 - Return to Winnipeg; caught shuttle from condo at 3:45 a.m.

With respect to the marathons, the witnesses indicated that due to the crowds, they mostly walked the half-marathon on January 8. On January 9, when participating in the full marathon, the worker felt that the group was moving too slowly for her and at Mile 4, she broke off from the group and ran ahead. At a turnaround at approximately Mile 20, the witnesses stated that they saw the worker and she was running at the time. When the witnesses approached the finish line, they met up again with the worker who had stopped and was waiting for them. They all crossed the finish line together.

It is notable that there is video marathon footage from the marathon which shows the worker mid-race and at the finish line. In both clips, the worker is jogging, not walking. The weather conditions appear to be sunny. She is wearing a hat, but no sunglasses.

The worker's evidence at the hearing was that when they were in Orlando, they had been walking around the parks for a few days and she was able to manage it. Her symptoms did not get worse and she always felt stronger when she was active so she intended to walk some of the marathon. She had no idea that she would be able to complete it. She stated that running is a hard pace that is too jarring and she did not do this. She stated that she walked a fair bit and jogged short little spots just to keep up with the group. While participating in the marathons, she had no nausea, but some vertigo. The worker was able to stay steady by either focusing on the ground or the person in front of her. With respect to light sensitivity, she wore a hat with a peak to protect herself from the sun. She had sunglasses, but did not wear them. They were in her pouch.

With respect to the trip generally, the worker stated that she did not have problems with walking and if she was just looking straight, she could walk without touching something. If she wanted to look around, however, she would have to touch someone or else she would lose her balance. If she was in a crowd, it would be too much for her eyes and then she would develop a headache and light sensitivity. She stated that if she stopped and stood still, it may settle but sometimes she would have to remove herself.

The panel is unable to accept the worker's explanation for her functional ability when she was in Orlando. There is just too much discrepancy between her activities and her doctor's opinion that she was not even capable of sedentary duties. Disney World is a highly stimulating, crowded, bright and noisy environment. Participating in a marathon is a physically and mentally demanding activity, and participating in back to back events is even more so, even if a person is walking for most of the course. On a balance of probabilities, the panel finds that the more probable explanation is that by January 4, 2011, the worker's post-concussion syndrome was largely resolved and the worker significantly over-reported her symptoms to her physician. As a result of the worker's description of her condition, her physician reported symptoms to the WCB which he felt justified a continued finding of total disability into the vacation period.

As noted earlier, the panel does not accept that the worker's condition was improving and that she only suffered an aggravation after participating in the marathons. The evidence does not support an immediate worsening of her condition resulting from her participation. Following the marathons, the group remained in Orlando and toured the theme parks for two more full days. The witnesses indicated no change in the worker's condition during that time.

When the worker returned to Manitoba, she was seen by her physician on January 13, 2011. His report to the WCB indicates: "Feeling much better. Balance a little off. Some light sensitivity. Less fatigue. Focus better." Objective findings were negative Romberg's, mild light sensitivity, and more focused. He recommended a graduated return to work starting January 17, 2011 at two hours per day.

The worker's evidence at the hearing was that her condition only worsened when she returned to work from January 17 to 21, 2011. At that time, she started to experience increasing spins, headache and nausea. The panel does not accept that an aggravation caused by participating in the marathons would have manifested eight days later when the worker returned to work for two hours per day. The panel also notes that when the worker returned to the workplace on January 17, 2011, she wore dark glasses and a cap with a visor and her return to work meeting was held in a darkened room. The panel questions the veracity of the worker's complaints at that time, given that she had been able to participate in the full marathon with just a hat and no sunglasses.

Overall, we feel that the worker has not been forthright in the report of her symptoms and that she significantly exaggerated the extent of her symptoms in order to extend her wage loss benefit entitlement through December and into her vacation period. In addition to the vacation activities noted above, the panel also took into consideration the following:

• The witnesses indicated that the worker participated in a long practice run in early December which was in excess of 20 kilometers. The worker herself confirmed that she did participate in a long run on December 5 but that she only completed 10 kilometers. This is in contrast to the statement made by the worker to the WCB on December 17, 2010 that her doctor wanted her to start walking for about 20 minutes and that he told her she would require some mobility before they could discuss a return to work plan. The panel infers from this evidence that the worker was under-representing her abilities to her physician.
• The notes from the December 17, 2010 conversation also indicate that the worker could keep her eyes open longer but only if she was in an upright position and she could watch TV for approximately half an hour. This suggests the worker was representing very limited mobility and capabilities.
• On January 4, 2011, the worker stated to the WCB that she was not vacuuming or doing anything strenuous and had been doing some walking on her treadmill for 25 minutes while holding onto the side. Again, the worker was representing limited abilities.
• On December 16, 2010, the employer noted that: "Based on the way she was feeling, [the worker] asked the program assistant to book her off to January 4, 2011." The panel views this as indicating a disinclination on the part of the worker to return to accommodated duties prior to her scheduled vacation.
• The evidence of one of the witnesses was that when she asked the worker what her doctor thought of her participating in the marathons, the worker said something to the effect that: "What he doesn't know isn't going to hurt him." This shows an intention to be less than forthright with her physician.
• Another indication of lack of forthrightness on the part of the worker is the witness's evidence that approximately one month after their return from Orlando, the worker contacted her and asked the witness to refrain from saying anything to her colleague about the worker's participation in the marathons. The colleague was an occupational health professional who worked for the employer.

The WCB medical advisor's opinion of April 24, 2011 carefully reviewed the available information regarding the worker's condition and her activities in December 2010 and January 2011 and concluded that given the unreliability of the worker's history, she was unable to provide a diagnosis for the worker's initial clinical presentation and that there was no current diagnosis related to the workplace injury. The WCB medical advisor was unable to medically explain how the worker could have done her regular duties during the time period when symptoms should have been at their worst, then not have been able to work at all when the symptoms were improving. She also could not medically explain how the worker could participate in the marathons, return to her doctor and indicate she was feeling better, then have increased symptoms after returning to two hours of sedentary duties.

The panel accepts the WCB medical advisor's opinion and we therefore find that by December 17, 2010, most of the effects from the worker's compensable injury had resolved and she no longer had a loss of earning capacity as a result of her workplace accident. While we acknowledge the worker's submission that the date of December 17, 2010 is somewhat arbitrary, the information on file is that the effects of a concussion will generally resolve over a period of days to weeks, and given the unreliability in the worker's report of her symptoms, we find that this date is reasonable. It should be noted that as early as December 5, 2010, the worker was able to run for at least 10 kilometers without suffering any symptoms. Given that the employer was able to provide a wide range of accommodation, we find that the worker suffered no loss of earning capacity beyond December 17, 2010.

The medical evidence on file indicates that the worker continues to suffer from and receive treatment for vestibular dysfunction. The panel understands from the October 4, 2012 report of the worker's physician that this is a complication of post-concussion syndrome. In view of our earlier finding that the effects of the compensable injury had largely resolved by December 17, 2010, we unable to find a causal relationship between the worker's current vestibular dysfunction and the workplace accident of November 30, 2010.

We therefore find that the worker has been overpaid wage loss benefits from December 17, 2010. The worker's appeal on this issue is dismissed.

Whether or not the worker must repay the overpayment of wage loss benefits.

The second issue concerns whether or not the worker should be responsible to repay the overpayment of benefits. The Overpayments Policy provides that if an overpayment resulted from an adjudicative reversal or a reconsideration decision or a decision from the Appeal Commission, it will not be pursued for recovery. An exception to this rule, however, is that if there has been fraud, deliberate misrepresentation or withholding of key information affecting benefits entitlement, then the overpayment will be pursued for recovery. Accordingly, in order for the worker's appeal on this issue to succeed, the panel must find that there has not been fraud, deliberate misrepresentation or withholding of key information by the worker. On a balance of probabilities, we are not able to make that finding.

In the panel's opinion, the worker did withhold key information regarding her abilities and she did deliberately misrepresent the severity of her symptoms and her abilities to her family physician and the WCB. As a result, her physician and the WCB continued to support a finding of total disability on the part of the worker beyond December 17, 2010. In particular, the panel finds that:

• The worker withheld information regarding her ability to run at least 10 kilometers (and possibly up to 20 kilometers) on December 5, 2010;
• The worker misrepresented the extent to which she was disabled by light sensitivity and dizziness. Her physician's belief on January 4, 2011 was that due to her condition, she would not be participating in the marathons in Orlando and would simply be recuperating. In fact, this was not the case.
• On February 9, 2011, the worker misrepresented to the WCB medical advisor that:
• she did not go on any rides;
• she did not participate in any sporting activities;
• she returned to her hotel room by six p.m. each evening.
• On March 8, 2011, she advised the WCB that she was not able to run in the marathon. It was submitted by worker's counsel that this was not a misrepresentation as the worker was only able to walk/jog in the marathons. The panel finds this argument to be trite and in any event, the worker withheld the key information that she participated in and completed both the half and the full marathon.

We therefore find that the worker must repay the overpayment of wage loss benefits. The worker's appeal on this issue is dismissed.