The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he was not entitled to further benefits in relation to his compensable hernia condition. A hearing was held on July 18, 2013 to consider the matter.

Issue

Whether or not the worker is entitled to wage loss benefits or vocational rehabilitation services beyond September 28, 2012.

Decision

That the worker is entitled to wage loss benefits and vocational rehabilitation services beyond September 28, 2012 as set out in the reasons.

Decision: Unanimous

Background

On June 17, 2008, the worker felt a pull in his left groin area when assisting three co-workers lift a heavy wall. The worker's claim for compensation was accepted by the Appeal Commission (Decision No. 59/09) and benefits were paid to the worker which included wage loss, medical aid and vocational rehabilitation benefits in regards to his compensable injury, diagnosed as a left inguinal hernia. On August 17, 2009, the worker suffered a recurrence of his hernia pain while carrying bundles of material. The injury was accepted by the WCB as a recurrence of his original hernia. File records showed that the worker underwent three operations related to his hernia condition and has been diagnosed with chronic pain in his left inguinal region. The worker was also seen by WCB healthcare consultants at the WCB's Pain Management Unit ("PMU") in March 2012.

On August 17, 2012, the worker underwent a Functional Capacity Evaluation ("FCE") and the report stated:

"[The worker] in discussing his present limitations of 20 lbs lifting indicated that he could not do this all day, 5 days a week as he would be sore in the evening. He demonstrated some inconsistencies during the FCE of much higher abilities (push/pull 78 lbs./79lbs., lifting isometrically 40 lbs and 65 lbs, carrying 50 lbs once) so his recommended values were decreased to reflect his concerns. [The worker] also demonstrated no loss of grip strength through the FCE so despite high values of lifting, carrying and push/pull he did not demonstrate functional fatigue expected after low level daily activity that he reported. [The worker] reported that his chiropractic care…is helping his hip, lower back and left shoulder symptoms."

A report from the worker's family physician dated September 5, 2012, noted that the worker was unable to fully function due to his compensable injury and his significant lack of adequate pain control. The physician reported that the worker can be bed-ridden for two to three days at a time if he did anything that was bordering on strenuous activity.

On September 19, 2012, the worker was advised that based on consultation with a WCB medical advisor and review of videotape surveillance for various periods between June 17 and August 24, 2012, it was determined that his current condition/symptoms were not medically accounted for in relation to his June 17, 2008 work injury and that he would receive wage loss benefits up to September 28, 2012 inclusive. The case manager referred to the following opinion expressed by a WCB medical advisor dated September 19, 2012:

"Over the course of playing ice hockey on the aforementioned dates, [the worker] was observed skating in a manner that kept up with his peers, including during times of faster skating, pivoting while skating, performing a slap shot, rising from a fall, and lifting and carrying a filled hockey bag. The aforementioned activities on different dates consistently performed in a fluid manner, with no evident functional impairment, no observable impairment of spinal or lower extremity stability or agility and no indication of pain responses.

The ability to participate in ice hockey games without impairment of function indicates fitness to participate in activities that impart strenuous load on the tissues about the groins and lower extremities."

The case manager further stated: "…you have demonstrated normal function of your groin and lower extremities. Based on this, the compensable restrictions as they initially related to your work place injury of June 17, 2008, are no longer needed. In summary, it is my position that you are not entitled to further wage loss benefits, medical aid benefits, nor vocational services and/or assistance."

On January 21, 2013, the worker appealed the case manager's decision to Review Office. The worker indicated that he was encouraged by his physicians to play hockey as long as he was able to handle the pain. He noted that the healthcare consultant at the WCB's PMU knew about his hockey activities. He stated that playing in a recreational non-contact league once a week does not equate to working a full-time construction job. The worker indicated that he took precautions before and after a game. He would take pain medications an hour before playing a game and did a half hour stretch routine. He did not allow himself to play if the pain was too excruciating. He said the small red and black bag that he carried to games had empty water bottles and a couple of spare jerseys. His large black bag had hockey gear with several pieces missing. He said he did this to make sure that he followed his weight lifting restrictions put in place by his doctor. The worker indicated that he wanted nothing more than to be a contributing part of society and to be responsible for his own financial responsibilities.

In a report dated September 24, 2012, the treating psychologist stated:

"…within the context of our psychotherapy I was aware that [the worker] had been participating in hockey related activities. Specifically [the worker] had informed me that he was helping to "coach" or "co-manage" a hockey team and was also engaging in the sport himself. I commended [the worker] for these activities as it has always been my belief that remaining active in the face of injury assists in timely rehabilitation."

In a report dated October 2, 2012, the family physician stated that she knew the worker was playing hockey. She stated: "I do not believe this gentleman to be the type of person to try to fake his way to obtain coverage--he has legitimate pain…".

In a further report dated November 6, 2012, the family physician stated that the worker would not be able to return to his original occupation and would essentially require a desk job. Restrictions were also outlined to avoid lifting over 20 lbs., no lifting at ground level, no pushing/pulling objects weighing more than 20 lbs. and no extended periods of standing or walking more than 30 minutes in a row.

A report from the director of the pain clinic dated October 27, 2012, stated: "…even though he could play for short shifts in a hockey game, his compensable injury prevented him and continues to prevent him from working consistently and regularly."

On March 27, 2013, Review Office determined that there was no entitlement to wage loss benefits or vocational rehabilitation services beyond September 28, 2012. Review Office noted that during the video surveillance, the worker performed all activities (not just playing ice hockey) with no apparent functional impairment and no indication of pain responses. These included the worker getting in and out of vehicles, walking, carrying a hockey bag and lifting a hockey bag to put into the back of a truck. Review Office felt that the worker's level of function was inconsistent with the level of impairment that was reported by the worker and his physicians. The worker's complaints of prolonged walking, getting into and out of his truck and walking up stairs causing him to be bedridden was not consistent with the high level of function observed on the video surveillance. Review Office gave significant weight to the medical advisor's opinion which stated that the ability to participate in ice hockey games without impairment of function indicated fitness to participate in activities that impart strenuous load on the tissues about the groins and lower extremities.

Review Office found that the FCE results, the video surveillance and the WCB medical advisor's opinion supported that the worker no longer had a loss of earning capacity related to the compensable injury and that there was no need for restrictions as outlined by the worker's treating physician. In April 2013, 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.

The worker has an accepted claim. He is seeking further wage loss benefits and vocational rehabilitation services beyond September 28, 2012. 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. Subsection 27(1) empowers the WCB to provide such medical aid as the WCB considers necessary to cure and provide relief from an injury.

Subsection 27(20) provides, in part, that the WCB may make expenditures to provide academic or vocational training, or rehabilitative or other assistance to a worker where the worker could experience a long-term loss of earning capacity. Benefits provided under this provision are discretionary.

Worker's Position

The worker made a submission to the panel and called 4 witnesses in support of his appeal. The worker and witnesses answered questions posed by the panel.

The worker expressed concern about the video evidence the WCB acquired and used in its decision making. He was particularly concerned about the June 17 video of a hockey game in which the camera followed the wrong person playing hockey. The player followed in the video was a faster and more skilled player than the worker. He noted that the WCB medical advisor watched this video. He feels the medical advisor's opinion was not reliable as the focus of the video is not the worker.

The worker reviewed the other videos and identified areas which he believes demonstrate that he was having difficulty. He said that he was once a skilled player, but since the injury his skills and ability are diminished. He pointed to scenes in the video which he feels demonstrate that he was in pain, had difficulty moving and was not participating at the level of other players.

With respect to his reasons for playing hockey when he was injured, he said that he has always played, that he was depressed and playing was the only positive activity in his life. He said he did not play every game (played 10 of 30 one season) and that he missed shifts in the games he played. He said he was in pain while playing but was helped by the adrenalin created by competing. He also said that after the games he had significant pain which prevented him from moving and, on occasions, prevented him from getting out of bed. He acknowledged that he missed some upgrading classes after playing hockey because of the pain.

The worker advised the panel that he did not hide the fact that he was playing hockey from the WCB. He believes he advised his case manager that he was playing hockey; however, she has no memory of him disclosing this information. He told the panel that he also advised two physicians in the WCB's PMU about his involvement in hockey at a meeting on March 8, 2012. He noted that the summary of their meeting references this. He also advised his psychologist who supported his involvement provided it did not result in further injury.

The worker advised that he now realizes that playing hockey was not appropriate and discontinued this activity in 2012, but stated that playing hockey one time a week for less than an hour did not compare to working 40 hours per week at heavy construction.

The worker called 4 witnesses. The first witness was a friend who played hockey with the worker at the time of the video. He described the worker's posture while playing as hunched over. He said the worker has changed since they first met in 2008, and that his playing skills have regressed. He said the worker tries to hide his pain but he can tell the worker is in discomfort and he has seen the worker in tears from pain.

The second witness worked with the worker at the time of both injuries and when he attempted to return to work in fall of 2012. He said he has noticed a steady decline in his health. Regarding the worker's attempt to return to work in 2012, he advised that the worker worked about 4 hours and that he was not able to perform the heavy labour involved in building a deck.

He said the worker could not climb onto the deck but had to roll onto the deck and then stand. The witness also saw the worker socially and told the panel the worker had a limp so he gave the worker a brace to help his walking. He said the worker is not the chipper person he used to know.

The worker's fiancée also gave evidence. She said that the worker has had difficulty getting out of bed and has difficulty with movement. She said that he is in great pain after playing hockey. The pain is primarily in the groin area. She said the worker has gained weight and suffers from short term memory loss due to the medications he takes.

The worker's father told the panel that the worker moved home. He has recruited him to help with some home maintenance work but that his son was only able to perform limited activities and could not help on the second day. He said that he did not think his son could perform physical work.

The worker advised that he is taking a math upgrading course and hopes to enter a training program. He said that he believes he can attend school and is very motivated. He said that in 2012 he was doing well in the WCB sponsored upgrading and even asked the instructor for extra work.

Regarding current symptoms, the worker advised that his pain is worse upon waking. He finds it difficult to get up and going. The pain has also impaired his sexual function, on occasion has affected his bowel and bladder control, and has caused him to be depressed. The worker advised that he continues to see a pain specialist and is going for further nerve blocks. He said he gets a few days relief from a nerve block but feels the blocks are getting closer to the source of his pain. He also has physiotherapy including acupuncture and massage which he pays for because the WCB has denied coverage for this treatment. He reported that the last medication change was helpful.

In closing, the worker said that he thought he deserved a proper retraining program. He said that since the accident his life has been a frustrating roller coaster.

Employer's Position

The employer provided a written submission. The employer submits that the claim file information displays an abuse of the system and notes that this claim has a significant impact on the employer's assessment.

The employer states that "…there is evidence to support that there was a lack of proper recovery taken by the claimant." It notes that the functional capacity evaluation shows that the worker was in good health and would be able to return to the workforce and that the video evidence shows that the worker is capable of playing hockey and heavy lifting. The employer states further that "…any injury sustained resulting in ongoing health conditions are a result of neglecting the recovery plan and should not be the liability of the WCB and [the employer ]."

The employer referred to the opinion provided by a WCB medical advisor and concluded that "…there is no conclusive medical reason for such lack of recovery and continued strain to the injury." It notes that the medical reports demonstrate reckless strenuous behavior showing no regard to recovery.

The employer submitted that the "…purpose of worker's compensation coverage is to allow claimants financial support while they recover. It is not intended to manage pain and financially support them while they continue to injure themselves and aggravate prior injuries with irresponsible behavior and recreational activities."

Analysis

The issue before the panel is whether the worker is entitled to wage loss benefits or vocational rehabilitation services beyond September 28, 2012.

For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker continued to have a loss of earning capacity after September 28, 2012 as a result of the workplace injury. The panel must also find the worker is a suitable candidate for vocational rehabilitation. For the reasons that follow, the panel was able to make these findings.

Regarding the worker's medical condition, the panel finds that the worker suffers from a painful left groin injury which prevents him from returning to his pre-accident employment and earning level. The panel acknowledges there is uncertainty about the precise diagnosis of the injury. A WCB medical advisor, in an opinion dated April 10, 2012, referred to the worker's condition as "non-specific left groin pain" while the treating physician, in a report dated September 5, 2012, described his condition as "chronic pain in his left inguinal region, radiating partially into his abdomen and into his left leg resulting from an injury he suffered at work in 2008." The panel notes that the worker has had three surgeries in the groin area including the original hernia repair, an inguinal neurolysis, and finally a complete removal of the original mesh followed by McVay repair and that the symptoms (complaints of pain) have been consistent throughout the claim.

In reaching this decision, the panel also notes:

• that the WCB continues to accept responsibility for the costs of prescription medications used by the worker for pain control and nerve damage, and

• the worker continues to seek medical treatment, specifically, physiotherapy and pain clinic treatments, notwithstanding that the WCB does not cover the cost of these treatments.

As part of our deliberation, the panel has considered the surveillance video obtained by the WCB and relied upon by the WCB in reaching its decision that the worker was capable of performing his pre-accident earnings. The panel attaches limited weight to the video. The panel notes that the video shows the worker playing hockey for approximately an hour, in total, on 3 different occasions over a 2 month period. The panel acknowledges that the video showed the worker involved in a physical activity but for a short period of time and not equivalent to the activity and ability involved in full-time work at his pre-accident construction job. The panel is unable to extrapolate that this limited period of participation can be the equivalent of 40 hours of consistent heavy work. The panel accepts the worker's evidence, which was confirmed by witnesses, that he had significant pain after each game.

The panel finds that the worker exercised poor judgment in trying to play hockey as it resulted in severe pain for significant periods after each game and interfered with his attendance at upgrading classes. The panel notes, however, that the worker reported his participation to the WCB on a number of occasions. He advised the physicians from the WCB's PMU that he was playing and discussed this with his treating psychologist who supported his participation. The worker advised that he believes that he advised his case manager. He said that he thought he had medical approval to participate. In the panel's view, the worker's participation in hockey does not equate to an ability to return to work full-time in heavy construction.

To conclude, as to whether the worker is entitled to wage loss benefits after September 28, 2012, the panel finds that the worker is entitled to wage loss benefits after September 28, 2012, but at a reduced rate. The panel notes that the restriction in place in 2012 was that the worker was fit for light duty full-time employment. This was based on the medical evidence on the file and there has been no medical evidence supporting total disability. Accordingly, the panel finds that the worker is entitled to wage loss benefits effective September 28, 2012, calculated on the basis that he was able to earn the provincial minimum wage. In other words, he is deemed capable of earning the provincial minimum wage and his benefit entitlement will be reduced by this amount.

The second part of the issue to be considered by the panel is whether the worker is entitled to vocational rehabilitation benefits and services. The panel notes that provision of vocational rehabilitation services and benefits is discretionary under the Act. The panel was troubled by the worker's conduct, in playing hockey to the point that it interfered with his upgrading. The panel was also troubled by the worker's attitude and his assertion that he was "owed" benefits and retraining. The panel notes that the worker did not fully and actively participate in the upgrading that was provided to him.

As part of our consideration of this issue, the panel notes the worker's young age and his inability to return to his prior employment and earning level. The panel finds that the worker should be provided with vocational rehabilitation benefits and services to assist his return to his prior earning level, but this is subject to the worker's full cooperation with the WCB. The panel directs that upon the worker's contact with the WCB and his full participation in a vocational rehabilitation program, his wage loss benefits will be reinstated to his former level on a going forward basis within the parameters of the vocational rehabilitation policy and process.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 5th day of September, 2013