The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") which determined that he was capable of performing the modified duties offered to him by his employer and that he was not entitled to wage loss benefits beyond August 24, 2012. A hearing was held via teleconference on March 14, 2013 to consider the matter.

Issue

Whether or not the worker is entitled to wage loss benefits beyond August 24, 2012.

Decision

That the worker is entitled to wage loss benefits beyond August 24, 2012.

Decision: Unanimous

Background

The worker filed a claim with the WCB for a work-related injury that occurred on July 16, 2012. The worker described the accident as follows:

Carrying some pails of oil. Went for break, laughed and felt a sharp pain in my groin area.

A doctor's first report dated July 17, 2012 noted that the worker had pain in the area of the right groin and the lower abdominal region. The diagnosis was a groin strain but note was made to rule out a possible hernia. The physician noted that the worker was capable of light duties with no lifting as outlined on the employer's return to work ("RTW") form.

On July 20, 2012, a WCB adjudicator noted that the worker was currently off work for two weeks due to a plant shut down and he was going to see his family doctor on July 30, 2012.

In a progress report dated July 30, 2012, a second physician (the worker's regular family physician) reported that the worker had pain in both groins and in the scrotum bilaterally, right more than left, worse with walking, lifting, etc. The diagnosis was bilateral inguinal hernias. The worker was prescribed pain medication and was referred to a surgeon for treatment. The physician also noted that the worker was incapable of alternate or modified duties.

On August 2, 2012, the worker reported that his family physician advised him to take time off work until his next appointment on August 20, 2012. The worker noted that he had not been working due to a plant shut down and that a recall was scheduled for August 7, 2012.

On August 8, 2012, a WCB medical advisor indicated that sedentary duties were appropriate in light of the worker's inguinal hernias. Restrictions were outlined to avoid lifting greater than 5 to 10 pounds on a more than occasional basis. The medical advisor also commented that total disability was typically not anticipated with inguinal hernias.

Information obtained from the employer was that modified duties were available for the worker that met his compensable restrictions. A copy of the job description was provided to the treating physician for her review.

On August 13, 2012, the treating physician reported that the worker had pain in both groins that was worse with standing, walking and lifting. She noted that the worker was disoriented because of his pain medication. The physician reported that the worker should stay off work until he had surgery in the next few weeks.

On August 20, 2012, the treating physician reported that the worker still had pain in both groins that was worse with standing and walking. She indicated that the worker was unable to drive due to drowsiness caused from his pain medication. She repeated that the worker should stay off work until he underwent surgery.

In a decision dated August 23, 2012, the worker was advised that the WCB was unable to approve further payment for his opioid pain medication as it was felt that the medication was not having a meaningful impact on his pain and function.

In a second decision dated August 23, 2012, the worker was advised that his claim for an injury at work on July 16, 2012 had been accepted and that he was entitled to wage loss benefits and associated medical costs from August 7, 2012 to August 20, 2012 inclusive. The worker was also advised that there was no loss of earning capacity in relation to his compensable injury beyond August 24, 2012 given that modified duties were available that were within his restrictions and continued use of his pain medication had not been authorized by the WCB.

In a telephone conversation with his adjudicator August 23, 2012, the worker indicated that he was appealing the decision made on August 23, 2012. The worker indicated that the side effects he was feeling were related to the anti-inflammatory medication he was taking for his non-compensable conditions. The worker was advised that the WCB expected him to return to modified duties on August 27, 2012. The worker indicated that he would not do so and would continue to follow his doctor's advice.

On November 22, 2012, Review Office determined that the worker was not entitled to wage loss benefits beyond August 24, 2012 as it was felt that the worker was capable of performing the modified duties offered to him by his employer. Review Office noted that the positions offered by the employer were both sedentary positions and they would allow the worker the opportunity to stand and walk around if needed. Review Office accepted the opinion of the WCB medical advisor outlined on August 8, 2012. Review Office found that the clinical findings on file were insufficient to support that the worker was not capable of performing modified duties effective August 27, 2012. Review Office noted that the treating physician reported that the worker was drowsy due to the pain medication, however, WCB responsibility for this medication ended on August 23, 2012. On November 28, 2012, the worker appealed Review Office's decision to the Appeal Commission and a hearing was arranged.

Reasons

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(1) of the Act, where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid to the worker by the WCB.

Subsection 39(1) of the Act provides that wage loss benefits will be paid: “…where an injury to a worker results in a loss of earning capacity…” 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.

Worker's Position

The worker was self represented at the hearing and participated via teleconference. The Appeal of Claims Decision form filed by the worker submitted that the WCB's denial of benefits was based on the WCB medical advisor's assessment of a typical bilateral inguinal hernia case. His case, however, was not a typical case. The worker stated he had a double hernia on each side of the groin and he experienced severe pain and swelling of the testicles to the point where he could barely walk. He was forced to leave light duties and wear a support prescribed by his doctor. He was also advised by his doctor to stay prone as much as possible. The worker submitted that comparing the initial pain and discomfort of a hernia to the severe pain from testicular swelling was like comparing apples to oranges. His injury and its effects on him were far from a typical case.

Analysis

The issue before the panel is whether or not the worker is entitled to wage loss benefits beyond August 24, 2012. In order to determine the appeal, the panel must consider whether or not the worker suffered a loss of earning capacity beyond that date. On a balance of probabilities, the panel finds that the worker was not capable of performing the sedentary modified duties offered by the employer and he is therefore entitled to further wage loss benefits.

At the hearing, the worker did not dispute that the modified duties offered by the employer were sedentary and would not require him to do much in the way of lifting. His position, however, was that he was so disabled from his injury, and in particular, by testicular swelling associated with his injury, that he was not able to perform any kind of work until his hernias were repaired by surgery. He stated that if he did not remain in a prone position, then the swelling would increase with a corresponding increase in his pain.

The panel acknowledges and agrees with the WCB medical advisor's opinion that lifting restrictions and sedentary duties are appropriate for an individual with hernias and that total disability is typically not anticipated with inguinal hernias. What sets this case apart, however, is the additional presence of severe orchialgia and testicular swelling.

At the hearing, the worker described experiencing significant swelling of the testes which developed within a week of his initial workplace injury on July 16, 2012. The first medical report from the family physician dated July 30, 2012 confirmed subjective complaints at that time of pain in both groins and in the scrotum bilaterally. The worker's evidence was that the swelling never went down, yet the WCB refused to acknowledge it and the worker felt pressured to return to sedentary duties in the workplace. Finally in mid-September 2012, the worker returned to light duties, but by November 1, 2012, the pain had increased so much that he could not walk and had to utilize a sling to manage the pain until his surgery. From November 1 until the surgery on November 15, 2012, the worker was only able to keep the swelling down by using the sling and remaining prone as much as possible. The worker emphasized that the orchialgia was a totally different type of pain than what he experienced with the hernia pain. Although (according to the WCB) opioid medication may not have been needed for hernia pain the worker stressed that he was taking the opioid medication for his testicular swelling, as ulcer issues prevented him from taking anti-inflammatories. He also acknowledged that he was taking significant amounts of the opioid medication, up to eight tablets per day.

On a balance of probabilities, the panel accepts that the worker's compensable bilateral hernias combined with the orchialgia associated with the hernia injuries resulted in an impaired earning capacity beyond August 24, 2012. Although the worker was offered sedentary modified work, this remained beyond his capabilities due to the pain and swelling he experienced when he did attempt to return to work. We therefore find that the worker is entitled to wage loss benefits beyond August 24, 2012. The worker's appeal is allowed.

Panel Members

L. Choy, Presiding Officer
R. Koslowsky, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 25th day of April, 2013