Decision #101/15 - Type: Workers Compensation

Preamble

The worker is appealing decisions made by the Workers Compensation Board ("WCB") regardinghis entitlement to compensation benefits for compensable accidents occurring onDecember 8, 2010 and August 2, 2013.  Ahearing was held on June 17,  2015 toconsider the worker's appeal.

Issue

Accident date: December 8, 2010:

Whether or not the worker is entitled to full wage loss benefits for the period June 23 to June 27, 2014; and

Whether or not, pursuant to subsection 39(3) of the Act, the worker's period of wage loss entitlement should be extended beyond December 8, 2014.

Accident date: August 2, 2013:

Whether or not the worker is entitled to wage loss benefits after September 2, 2013.

Decision

Accident date: December 8, 2010:

That the worker is entitled to full wage loss benefits for the period June 23 to June 27, 2014; and

That, pursuant to subsection 39(3) of the Act, the worker's period of wage loss entitlement should not be extended beyond December 8, 2014.

Accident date: August 2, 2013:

That the worker is not entitled to wage loss benefits after September 2, 2013.

Decision: Unanimous

Background

Accident date: December 8, 2010:

The worker filed a claim with the WCB for injury to his abdomen/left side groin area that occurred in December 2010 which he related to pulling and pushing a skid of paper with a pallet jack. The claim for compensation was accepted based on the diagnoses of a left-sided inguinal hernia and on May 30, 2011 the worker underwent surgery to repair the hernia.

On June 6, 2014, a WCB medical advisor reviewed the medical reports on file dated November 27, 2013, January 17, February 6 and March 20, 2014 and opined that the current diagnosis was post-inguinal hernia pain and that the worker's pain symptoms were now well-controlled with medication. The medical advisor further stated:

"Based on the medical information on file to date, total disability from work is not substantiated. It is noted that his treating physicians on file do not report that the claimant is medically unfit to work. He is noted to have good symptom control, with the only physical signs being intermittently mildly reduced left hip ROM (range of motion). Recent medical reports do not record significant groin pain.

Restrictions would relate to his previous hernia repair and would consist of avoiding repetitive heavy lifting › 50 pounds. This restriction is likely to be permanent. There is no substantiation on file for any additional restrictions at this time."

By letter dated June 11, 2014, the worker was provided with details of his return to work program that was to commence on June 23, 2014. After speaking with the worker's treating physician, it was agreed that the worker's restrictions were to avoid repetitive lifting greater than 5 pounds and that they were to gradually increase over the return to work program. The modified duties included:

  • Inventory counting nuts and bolts
  • Raking around the dock with a co-worker and shoveling/disposing the debris
  • Emptying cardboard boxes
  • Light cleaning duties
  • Stacking paperwork in bins

The accident employer was to pay the worker for the hours he worked and the WCB would issue partial wage loss benefits based on his gross earnings.

On June 17, 2014, the worker wrote to Review Office expressing disagreement with the case manager's decision that he was capable of returning to work. The worker referred to a medical

report dated March 21, 2014 to support that his pain level was not under control. The worker stated that his pain medication increased from 1600 mg per day to 2700 mg per day and another was increased to 60 mg. The worker submitted "...if I am forced to return to work before there is a satisfactory reduction in the pain there is a very great risk that I will cause further pain and further damage to the ilioinguinal nerve, as what happened before."

Medical information showed that the worker attended a hospital emergency facility on June 22, 2014 to obtain a second opinion regarding his blood pressure. The report indicated that the worker was not in severe pain and that a chest x-ray was reported as being normal.

On June 23, 2014, the worker returned to work but did not complete his shift. On the same day, the worker attended his treating physician who reported that the worker's blood pressure was 150/96, he had left groin tenderness and limited range of movement. The worker was provided with a sick note to be away from work for one week.

On July 7, 2014, the WCB determined that the worker was not entitled to wage loss for the two hours he missed each day from work during the week of June 23 to 27, 2014 as there was no evidence on file to substantiate that he was incapable of performing light duties of lifting no more than 5 pounds for two hours each day.

File records reveal that the worker returned to work on June 30, 2014 and worked two hours per shift. He later graduated to four hours per shift but stopped work due to pain. The worker's treating physician recommended a reduction in work hours and the worker worked three hours shifts from July 14 to 25, 2014 and four hours from July 28 to August 8, 2014.

In a decision dated August 28, 2014, the worker was advised that based on WCB records, he had been in receipt of wage loss benefits for 48 months on December 8, 2014 and in accordance with the Act, he was not entitled to receive further wage loss benefits beyond this date.

On September 8, 2014, the worker appealed the August 28, 2014 decision to Review Office. The worker argued that he was only paid 19 months of actual wage loss benefits in the course of his claim, not 48 months as the WCB implied.

In a decision dated September 10, 2014, Review Office determined that the worker's wage loss benefit entitlement during his gradual return to work program from June 23 to July 27, 2014 was calculated correctly. Review Office acknowledged the worker's report of symptoms and that he was unable to return to his pre-accident duties as a driver. Based on the compensable diagnosis and file evidence, however, Review Office found that the worker was able to work in some capacity. Review Office found that the modified duties offered by the employer were suitable and were in keeping with WCB policy. Review Office confirmed the case manager's decision

that the worker was entitled to partial wage loss benefits based on two hours per shift from June 23 to 27, 2014.

Review Office also determined that the worker was not entitled to wage loss benefits after December 8, 2014. Review Office noted that the worker referred to WCB policy 44.60.20, Date of Retirement and that this policy was not applicable to the case.

Review Office noted that the worker was 62 years of age when the accident occurred on December 8, 2010. At the time of the Review Office deliberation, the worker was 66 years old and in receipt of full wage loss benefits. Given his age at the time of the accident, subsection 39(3) of the Act applied. Review Office noted that 48 months following the date of accident was December 8, 2014. As such, there was no entitlement to wage loss benefits after December 8, 2014.

On September 18, 2014, the worker appealed Review Office's decision of September 10, 2014 to the Appeal Commission and an oral hearing was held on June 17, 2015.

Accident date: August 2, 2013:

Based on a decision made by Review Office dated December 8, 2014, the worker has an accepted claim with the WCB for a new accident that occurred on August 2, 2013 when the worker felt increased pain in his lower abdomen/groin region after pushing heavy freight. Following Review Office's decision, the case was referred back to Compensation Services to determine the worker's entitlement to benefits as a result of August 2, 2013 accident.

On December 19, 2014, a WCB case manager wrote the worker and stated:

On review of your August 2, 2013 claim I have determined, based on all of the evidence, that the new injury was likely a strain. Following a normal course of recovery, this strain resolved within a few weeks and is no longer impacting on your physical capabilities...I have determined that your August 2, 2013 injury resulted in a loss of earnings for the short time frame from August 2 to 12, 2013. After August 12, 2013, any restrictions are considered to be related to your December 8, 2010 compensable injury."

The worker appealed the above decision to Review Office. The worker stated: "There is no medical evidence to suggest there was a strain. In fact there is an abundance of medical reports that the new injury is a worsening of the entrapment of the ilioinguinal nerve."

On February 13, 2015, Review Office determined the worker was entitled to wage loss benefits until September 2, 2013. Review Office took into account the worker's medical and functional status prior to and after August 2, 2013. Review Office considered a report from the worker's

treating neurologist dated February 25, 2013, the family physician report of August 2, 2013 and a pain medicine physician dated August 10, 2013. Based on these reports, Review Office found that the accident of August 2, 2013 caused an increase in pain and medication use, in the environment of a pre-existing condition. After an eventual settling of the symptoms, it determined that the worker had a loss of earning capacity until September 2, 2013. Review Office determined that the worker's difficulties beyond this date would be considered on his 2010 claim.

On February 20, 2015, the worker appealed Review Office's decision to the Appeal Commission and a hearing was held on June 17, 2015

Reasons

Applicable Legislation

In considering appeals, the Appeal Commission and its panels are bound by The Workers Compensation Act (the "Act"), regulations and policies of the Board of Directors.

Subsections 1(1) and 4(1) of the Act set out the circumstances under which claims for injuries can be accepted by the WCB, and state that the worker must have suffered an injury by accident that arose out of and in the course of employment. Once such an injury has been established, the worker is entitled to the benefits provided under the Act.

The worker's appeals deal with the provision of wage loss benefits on two different claims. Subsections 39(2) and 39(3) of the Act are applicable.

Subsection 39(2) provides:

Duration of wage loss benefits

39(2) Subject to subsection (3), wage loss benefits are payable until

(a) the loss of earning capacity ends, as determined by the board; or

(b) the worker attains the age of 65 years.

Subsection 39(3) provides:

Exception re workers 61 years of age or older

39(3) Where a worker is 61 years of age or older at the commencement of his or her loss of earning capacity, the board may pay the wage loss benefits for period of not more than 48 months following the date of the accident.

WCB Board Policy 44.60.20, Date of Retirement, provides, in part:

Generally a worker's date of retirement will be considered to be the date when the worker reaches age 65. When the worker is 61 years of age or older at the date of the accident, the date of retirement will be considered to be the date of accident plus four years.

Worker's Position

The worker was self-represented. He was accompanied to the hearing by an acquaintance.

2010 Claim

1. Whether the worker is entitled to full wage loss benefits for the period June 23 to June 27, 2014

The worker explained that he was unable to work during this period due to side effects of the medication, drug C, he had been prescribed. He told the panel that:

"Side effects, my arms were extremely heavy. My blood pressure had gone from normal to 171 over 98. I was extremely dizzy, and I really didn’t feel -- I felt terrible. And so I went to emergency in the [local hospital], which the reports are on file. So anyways, I went to emergency, told them all of the symptoms. I was examined, had the heart stuff, the x-rays, they did blood tests. I forget what else they did. They did the whole gamut of stuff to see what was going on. And then the emergency doctor came in and we had a discussion of why I was on the [drug G]. So he, basically, told me to quit the [drug C] and then he gave me a prescription for [drug T] which I didn’t fill out because I felt that my doctor, along with the Pain Clinic, should be the ones that are following this regiment, and I didn’t know if [drug T] was in there. And my doctor didn’t want me to go on [drug T]."

He explained that the WCB reviewed the report from the local hospital and concluded that the only reason he went to emergency was because he wanted a second opinion on his high blood pressure. He said this was false. He said that "The whole problem was that I was having all of these side effects and I wanted to know what was going on."

He told the panel that he did not have problems with high blood pressure when he was prescribed the medication.

When asked how long symptoms continued after he quit using drug C he replied:

"Probably about two weeks. Probably about two weeks and then things seemed to start to get a little bit better. Blood pressure, kind of stabilized. It was still very, still high, but the heaviness in the arms seemed to alleviate a little bit. I wasn’t as dizzy, but it was really hard to tell from that point, but it was probably about two weeks."

2. Whether, pursuant to subsection 39(3) of the Act, the worker's period of wage loss entitlement should be extended beyond December 8, 2014

The worker explained his understanding of the Act in cases where the worker is age 61 or over. He said;

"Now, it says in the Act and the policy, the way I read it, is that wage loss benefits will be paid for a maximum of 48 months. It’s a maximum. It’s not a minimum, it’s not an in between, the way they seem to profess it. It’s a maximum that they will pay wage loss benefits for 48 months. And that, if it’s 61, if your accident happened when you were 61 or older. But it also says is that, if the worker is in receipt of CPP retirement benefits, unless the worker demonstrates a continuing commitment to the labour force.

I was already collecting my CPP. I collected my CPP at 60. So, in essence, if I was in one part of it, if I was collecting my CPP, and I worked after that period of time, even after the accident, I went back to work. I had to go back to work, I was showing a commitment to the workforce."

The worker submitted that he is entitled to a maximum of 48 months of wage loss benefits, as opposed to the WCB position that he is entitled to wage loss benefits for only 48 months from the date of the accident even if he received less than 48 months of wage loss benefits. He had received wage loss benefits for only 19 months so far, so his access to wage loss benefits ended too early. He also told the panel that he had no intention of retiring, and would currently be working if he was not injured.

He confirmed his position that he is entitled to 48 actual months of payments after the date of the accident, not as the WCB has ruled payments during a limited 48 month period after the date of the accident.

There was discussion regarding the impact of the receipt of CPP retirement benefits upon the entitlement to benefits. The worker stated that his understanding regarding the receipt of CPP retirement benefits is:

"And so far as the part about the CPP, that I think is in there is that, okay, if a person is working at 65, still working at 65 and he gets his CPP, but he still shows a demonstration to the workforce, then he still can get wage loss benefits if something should happen."

2013 Claim

3. Whether the worker is entitled to wage loss benefits after September 2, 2013

The worker told the panel that he had a new accident on August 2, 2013 which continues to impact his health and ability to work. He disagreed with the WCB decision that he had a strain which resolved by September 2, 2013.

In response to a question about the August 2013 injury, the worker replied:

"What happened on August, I think what the question is, what happened on August 2nd was, it took it to a different level. Like it just, what I believe, and nobody has ever said, but it’s just what I believe, is that it pretty much, I wouldn’t want to say it maybe tore it."

The worker said that he "...tore the nerve or, you know, because it just, it increased the pain exponentially right away."

The worker confirmed that the pain was in the same area as he had been treated previously. The worker advised that he has not been back to work since August 2, 2013 except for a return to work program.

In discussion with the panel the worker acknowledged that his nerve was entrapped on the date of the surgery.

Employer's Position

The employer did not participate in the hearing.

Analysis

2010 Claim

1. Whether the worker is entitled to full wage loss benefits for the period June 23 to June 27, 2014.

For the worker's appeal of this issue to be successful, the panel must find that worker sustained a loss of earning capacity due to the compensable injury during this period. The panel was able to make this finding.

The worker explained that he had been prescribed a new medication, drug C, for his compensable injury.

The panel accepts the worker's explanation that he had significant side effects from drug C, which is supported by the evidence on the file. The panel notes that the Triage Assessment note indicates that the worker recently commenced using drug C and that he was attending the hospital due to dizziness, shock like pain in his left fingertips, and blood pressure. Hand written comments on the form indicate that he complained of "arms heavy" and "head off balance." The panel finds that the symptoms which the worker reported are consistent with a reaction to the medication. The panel accepts the medical note from the family physician that authorizes an absence from work from June 23 to June 29, 2014 and finds that the worker is entitled to full wage loss benefits during this period.

The worker's appeal of this issue is allowed.

2. Whether, pursuant to subsection 39(3) of the Act, the worker's period of wage loss entitlement should be extended beyond December 8, 2014.

The panel notes that Subsection 39(3) provides that:

Exception re workers 61 years of age or older

39(3) Where a worker is 61 years of age or older at the commencement of his or her loss of earning capacity, the board may pay the wage loss benefits for period of not more than 48 months following the date of the accident.

For the worker's appeal to be approved the panel must find that the Act permits workers 61 years or older at the date of the accident to receive wage loss benefits for a period of more than 48 months following the date of the accident. The panel is not able to make this finding. The panel interprets subsection 39(3) as limiting wage loss in such cases to a period of 48 months after the

accident. In the panel's view, it is an absolute limit that starts from the date of the accident. It does not, as the worker suggested, entitle a worker to receive 48 months of benefits.

As the worker was injured on December 8, 2010, he was entitled to wage loss benefits for a period of not more than 48 months following the date of the accident, ending December 8, 2014.

This decision complies with WCB Board Policy 44.60.20, Date of Retirement, which provides in part that "When the worker is 61 years of age or older at the date of the accident, the date of retirement will be considered to be the date of accident plus four years." The worker's date of retirement for wage loss purposes is December 8, 2014.

The worker's appeal of this issue is dismissed.

2013 Claim

3. Whether the worker is entitled to wage loss benefits after September 2, 2013

For the worker's appeal to be approved, the panel must find that the worker sustained a loss of earning capacity due to the compensable injury after September 2, 2013. The panel was not able to make this finding.

The panel accepts that there was an increase in symptoms at the time of the August accident, but is unable to find that the worker sustained a long term or permanent injury as a result of the August 2, 2013 accident. In making this decision, the panel relies upon the following:

  • the pain the worker had after the August injury was in the same area as the pain that occurred after the hernia surgery. The worker acknowledged, at the hearing, that the pain he felt as a result of the August 2, 2013 surgery was in the same area as the pain he has been treated for since his hernia surgery.
  • the damage to the nerve was the result of the hernia surgery. The worker acknowledged, at the hearing, that the nerve became entrapped as a result of the surgery which was prior to the August 2, 2013 accident.
  • the medical report of the pain clinic physician who examined the worker on August 10, 2013, approximately one week after the accident, does not reference an August 2, 2013 accident and does not reference any significant recent change in symptoms. The physician's description of the worker's pain at the August examination is similar to the description on file prior to the August accident. The physician noted that:

"There was a mild discomfort to palpation along the left inguinal region and also on palpation of the left testicle. However, there were no masses or other obvious abnormalities on palpation of these areas. There was some decreased sensation to light touch involving his medial and anterior thigh, and also the left side of the scrotum. Range of movement of the left hip joint was fairly full without significant aggravation of pain."

In conclusion the panel finds that the worker is not entitled to wage loss benefits after September 2, 2013 in relation to the August 2, 2013 accident.

The worker's appeal of this issue is dismissed.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 30th day of July, 2015

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