The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing two decisions made by the Workers Compensation Board ("WCB")with respect to his permanent work restrictions and entitlement to wage lossbenefits.  A hearing was held on May14, 2015 to consider the worker's appeal.

Issue

Whether or not the worker's permanent restrictions effective December 11, 2013 have been properly established; and

Whether or not the worker is entitled to wage loss benefits beyond December 18, 2013.

Decision

That the worker's permanent restrictions effective December 11, 2013 have been properly established; and

That the worker is not entitled to wage loss benefits beyond December 18, 2013.

Decision: Unanimous

Background

The worker filed a claim with the WCB for a left groin injury that occurred at work on July 24, 2009 when he pulled down suitcases from an overhead area and felt a pull and burning sensation in his groin. The compensable diagnosis was a left inguinal hernia and a hernia repair was performed on November 5, 2009. The worker was also treated for left leg deep vein thrombosis ("DVT") stemming from the surgery and left groin and leg nerve pain.

On November 23, 2012, the claim was considered by Review Office based on an appeal submission by the worker with respect to his work restrictions. Review Office stated:

"The worker underwent a FCE on February 17, 2012 in order to determine his restrictions...The Review Office agrees that the worker's restrictions are, at least, within the light physical demand level for pushing, pulling and carrying (i.e. 1 - 20 lbs. on an occasional basis and 1 - 10 lbs. on a frequent basis).

However, the Review Office finds the evidence to support the worker should also have restrictions with respect to standing, walking, sitting and climbing stairs. The worker has reported symptoms and pain involving his left groin and leg which the Review Office (Order No. 483/2011) found was mainly related to a nerve injury which occurred at the time of his compensable left inguinal hernia surgery...The Review Office finds it is reasonable that the worker's restrictions, at this time, should include avoidance of repetitive stair climbing, prolonged standing, walking and sitting without the opportunity to take a break as needed. This is subject to review by Compensation Services on a going forward basis."

On December 11, 2013, the worker was advised that based on the findings at a WCB call-in examination on November 26, 2013, he was capable of returning to his pre-accident position as an Assistant Service Coordinator and that wage loss benefits would be paid to December 18, 2013 inclusive and final. The WCB case manager stated:

As noted in the WCB examination of November 26, 2013 the lower extremity symptoms (i.e. below the hernia) and impairment are not related to your 2009 claim therefore the associated restrictions related to walking, standing and climbing have been lifted. In relation to the left inguinal symptoms, it is my opinion you have permanent restrictions at a "medium level" which is as follows:

lifting up to i) 50 lbs occasionally (up to 33% of work day), ii) 25 lbs frequently (up to 66% of work day) and iii) 10 lbs constantly (up to 100% of work day). These values are based on the Medium Physical Demand level, as cited in the Dictionary of Occupational Titles.

...After reviewing the requirements of the "Assistant Service Coordinator", it is my opinion the duties and functions of this position are within the new workplace restrictions and therefore you will be paid WCB wage loss benefits to December 17, 2013.

The worker advised the WCB that he suffered further injury during the November 26, 2013 WCB call-in examination. In a decision dated February 3, 2014, the worker was advised that his claim for a secondary injury arising out of the November 26, 2013 call-in medical examination was not accepted.

On February 8, 2014, the worker filed an appeal with Review Office regarding WCB decisions dated December 11, 2013 and February 3, 2014. A copy of the worker's submission was provided to the employer for comment and their response is on file dated April 17, 2014. The April 17, 2014 submission was also provided to the worker for his comments and the worker's comments are on file dated April 28, 2014.

In December 2013 and April 2014, a surveillance video was taken of the worker's activities.

On May 26, 2014, a WCB medical advisor reviewed the video and stated:

...over the course of the videotaped activities, there was no indication of impairment of quantity and quality of motion or facial/body expressions to suggest symptom provocation during a variety of physical activities.

In summary, over the course of the hours of observed physical activity, [the worker] did not display impairment of function. Rather, [the worker] demonstrated the capacity to perform a variety of physical activities, including static trunk positioning, for example trunk forward flexion as well as various lifting from the ground to shoulder level, to as much as medium level.

Based on review of the video evidence, it was determined by the WCB that the worker had recovered from the effects of his 2009 injury by December 27, 2013 and that he no longer required any work restrictions.

On July 31, 2014, Review Office determined that the worker had permanent restrictions effective December 11, 2013 and that he was not entitled to wage loss benefits beyond December 18, 2013.

Review Office accepted the WCB medical opinions on file that many of the worker's reported chronic symptoms relate to a disturbance of his ilioinguinal nerve. Review Office agreed with the WCB Medical Advisor that the worker had reached a functional level described as medium and that effective December 11, 2013, his permanent restrictions were as follows:

Limit lifting up to i) 50 lbs occasionally (up to 33% of work day),

ii) 25 lbs frequently (up to 66% of work day) and

iii) 10 lbs constantly (up to 100% of work day).

These values are based on the Medium Physical Demand level, as cited in the Dictionary of Occupational Titles.

Review Office stated that this represented a variance to Compensation Services' May 26, 2014 decision; however, it was consistent with their original December 11, 2013 decision on restrictions.

Review Office also determined that the worker did not have a loss of earning capacity beyond December 18, 2013 as it accepted that the worker's pre-accident employment as an Assistant Scheduling Coordinator fell within the delineated permanent restrictions. Review Office indicated that this conclusion was arrived at based on the worker's level of activity observed in the video evidence. It was felt that the worker demonstrated functional levels in keeping with the requirements of his pre-accident employment.

Based on Review Office's decision that the worker's nerve injury continued to relate to the original workplace accident and that he had resulting permanent restrictions, the worker continued to be eligible for benefits related to the accepted ongoing injury (other than wage loss) beyond December 27, 2013.

On October 26, 2014, the worker requested a hearing at the Appeal Commission as he disagreed with Review Office's decision regarding his compensable work restrictions and that he was not entitled to wage loss benefits beyond December 18, 2013. On May 14, 2015, a hearing took place at the Appeal Commission to consider the worker's appeal.

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. Subsection 27(1) of the Act provides that the WCB "...may provide a worker with such medical aid as the board considers necessary to cure and provide relief from an injury resulting from an accident."

The worker has an accepted claim for an injury arising from a July 24, 2009 workplace accident. He is appealing the WCB decision regarding his permanent restrictions and is seeking wage loss benefits beyond December 18, 2013.

Worker's Position

The worker was represented by legal counsel who made an oral submission on the worker's behalf. The worker and his counsel answered questions from the panel.

The worker's counsel noted that prior to November 27, 2013, the worker's duties were considered light, or his permanent restrictions were considered light physical duty. He noted that the worker was examined by a WCB medical advisor on November 27, 2013, who determined that the worker was capable of medium physical duties. He suggested that given the medical evidence that was in front of the panel, this decision was in error, and "...did not properly account for the actual physical demands of the position. Nor was it as thorough or comprehensive an evaluation as was required."

The worker's counsel asked the panel to accept the opinion of the worker's current family physician who opined that the worker is only capable of light duties, as noted in a letter to the worker's insurance company dated August 25, 2014. He also submitted that the family physician's opinion was consistent with the May 2015 FCE which found the worker was "not safe or capable of working to a medium level of Physical Demands" and that the medium strength work restrictions made effective December 1, 2013 were not properly established.

The worker's counsel said that the functional capacity evaluation "...is extremely influential in the weight of the evidence in that it's the first report to actually get [the worker] to do the duties that would be similar to working on a train." He noted the duties which are performed by the worker in his position and commented that this is the only medical evidence that takes into account his duties. The worker's counsel submitted that the report is objective, was conducted by a certified professional and noted that it criticizes the worker in his effort in certain tests.

The worker's counsel stated that Review Office accepted that the worker has ilioinguinal nerve damage. He said the WCB medical advisor also accepted that the worker has ilioinguinal nerve damage.

With respect to the WCB medical advisor's examination, the worker's counsel said that the worker sat and stood in the examination room but did not perform any job functions. He was of the view that the medical advisor did not properly assess the worker's abilities during the limited examination. He also noted that the surveillance video did not "Capture him working a 10 hour shift. It doesn't capture him lifting a 50 pound suitcase over his head to help a passenger."

In answer to a question, the worker advised that his condition has not changed since 2009. He still has the same pain. The worker said he took offence to the WCB conducting surveillance on him and his family. He said that nothing in the tapes showed him doing anything more or less than the light duties temporary position he had with the employer.

In closing, the worker's counsel questioned how the WCB medical advisor could assess the worker's ability to perform the job without a full knowledge of the job and a physical demands analysis. He said that because the WCB cannot identify a clear diagnosis for the worker's pain does not mean that the worker can perform a medium physical demand level job.

Employer's Position

The employer was represented by an employer advocate who was accompanied by a Senior Manager, a Disability Management Advisor and a representative of the employer's legal services.

The employer representative submitted that the worker's restrictions have been properly established. She said that the decision to rescind the light restrictions "...was made not just on [WCB medical advisor's] opinion and his examination, but it was based on the totality of evidence on the file, and on the nature of the duties."

The employer representative said that in the years leading up to the decision to establish restrictions in December 2013, medical investigation revealed no evidence of any pathology to account for the worker's symptoms. She said that the low back condition is not related to the claim and that his left leg complaints are not compensable. She submitted there was "...no reason related to the compensable hernias to impose permanent restrictions."

The employer advocate agreed that the worker's pre-accident duties fell within the medium level restrictions. She submitted that as he declined the offer of his regular duties and other sedentary positions offered subsequently by the employer, any loss in earning capacity is not related to the workplace injury.

Regarding the medical evidence, the employer's representative asked that the panel give greater weight to the evidence of the specialists and the WCB medical advisor than the opinion of the worker's physician who she described as advocating for his patient. Specifically, she asked that weight be given to:

• the opinion of the vascular surgeon who found no evidence of iliac vein compression and no evidence of impingement on the common femoral vein at the site of the left inguinal hernia repair.
• the opinion of a physical medicine specialist who reported that she was not able to recognize any specific musculoskeletal diagnosis to explain the worker's pain.
• the opinion of the WCB medical advisor who examined the worker on November 26, 2013 and found nothing to account for the worker's pain and indicated that the only aspect of the worker's condition which could be medically accounted for in relation to the hernia were left inguinal symptoms of sensory disturbance.

The employer representative also noted the opinions of a second physical medicine specialist and a WCB physical medicine specialist.

The employer representative asked that the panel give greater weight to the totality of medical evidence than the May 1, 2015 FCE. She stated that it was abbreviated and incomplete and did not measure the worker's ability to do work. She also said it was based on the incorrect premise that the worker sustained nerve damage to his left leg.

The employer representative also asked the panel to give weight to the video surveillance evidence which she said demonstrated the worker's capacity to perform a variety of physical activities, including static trunk positioning and lifting from the ground to shoulder level at a medium weight.

The senior manager provided details of the job duties for the worker's regular position. She noted that the position involved assisting customers with baggage which commonly weigh 20 to 40 pounds and occasionally over 50 pounds. She noted that baggage over 40 pounds is checked and stored in a baggage car. She said that 40 to 50 percent of the time involved walking but that is intermittent. The shifts range from 10 to 14 hours.

In answer to a question, the senior manager confirmed that the employer does not have a physical demands analysis for the position.

The employer representative said there is no evidence of disability as required, backed up by extensive investigation, to link the subjective complaints to the 2009 injury.