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 wage loss or medical aid benefits after August 6, 2015 in relation to his compensation claim for a work-related hernia. A hearing was held on April 19, 2016 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to wage loss and/or medical aid benefits after August 6, 2015.

Decision

That the worker is not entitled to wage loss and/or medical aid benefits after August 6, 2015.

Decision: Unanimous

Background

The worker filed a claim with the WCB for a right groin injury that he related to his employment as a driller's helper which involved heavy lifting 12 hours a day. The date of accident was reported as being July 2, 2013.

The compensable diagnosis was a right inguinal hernia, and on March 18, 2014 the worker underwent hernia repair surgery. Subsequent file information showed the worker was paid compensation benefits while being treated for complications that arose during the hernia repair.

On April 23, 2015, the worker underwent a Functional Capacity Evaluation ("FCE") at the WCB's office. The completed report indicated that the worker passed 2 out of 5 validity checks and the results were not considered valid with respect to his physical capabilities.

On April 22, 23, 24, and 30, 2015, a surveillance video was taken of the worker's activities and the videotape was reviewed by a WCB medical advisor on July 28, 2015.

In a decision dated July 30, 2015, the worker was advised that it had been determined that he had recovered from the hernia injury he suffered at work on July 2, 2013 and that wage loss benefits will be payable to August 6, 2015. The decision stated:

Surveillance was performed on April 23, 24, 30, 2015. The evidence does not show any pain behaviors during the period in which you were able to sit at a desk for 7-8 minutes, stand for up to 10 minutes, holding a toddler while standing with periodical bending and extending at the waist, entering/exiting a vehicle and able to carry approximately 20 pounds with one hand.

A WCB Medical Advisor has reviewed the surveillance and made comment that the activities displayed in the video footage are performed in a fluid manner, with no evident functional impairment, no observable impairment of either the right or left lower extremities, no observable impairment of stability or agility and no indication of pain responses.

On August 19, 2015, the worker appealed the above decision to Review Office.

In a decision dated November 9, 2015, Review Office determined that the worker was not entitled to wage loss or medical aid benefits after August 6, 2015. Review Office made reference to the treating physician's report dated June 22, 2015. It stated that the report provided no explanation about what is causing the worker's continuing pain and how it related back to the original injury or its surgery, or reasons for disablement.

Review Office indicated that it did not attach much weight to the physical activities seen in the videos but did find that the videos demonstrated that the worker was able to do several hours of light work and there were no signs of an impairment or an injury.

Review Office referred to the opinion expressed by a WCB medical advisor dated February 2, 2015: "The etiology of the chronic pain in [the worker's] case has not been clearly established." Based on this opinion and the lack of further medical evidence supporting a relationship between the worker's chronic pain and his compensable injury, Review Office was unable to establish that the worker had a continuing loss of earning capacity or need for medical aid beyond August 6, 2015. On December 21, 2015, the worker appealed Review Office's decision to the Appeal Commission and an oral 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 WCB's Board of Directors.

Subsection 4(1) of the Act provides that 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 4(2) provides that a worker who is injured in an accident is entitled to wage loss benefits for the loss of earning capacity resulting from the accident, but no wage loss benefits are payable where the injury does not result in a loss of earning capacity during any period after the day on which the accident happens.

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."

Subsection 39(2) of the Act provides that the WCB will pay wage loss benefits until such 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. The worker made a presentation and responded to questions from the panel.

The worker's position was that he was cut off from any benefits after August 6, 2015 with no real explanation. He submitted that he had been following his doctors' orders and treatment. He had been placed on medications which were suggested by a doctor he was referred to by the WCB. Those medications were crucial to treating his pain and the complications that arose from the hernia repair surgery, and were very expensive. He is not able to afford those medications because he is not able to work in his condition. He said that he had been able to get by but life had been hectic and he had not been able to work or provide for his family, as he had always done before.

The worker believed that the decision to cut off his benefits was based on the surveillance which had been conducted and where he was seen carrying a carton of drinks to his car, standing, and walking. He submitted that all of these were simply activities of daily living. What he could not do, he said, was lift heavy equipment related to the work he had been doing when he was injured, or load or unload a truck.

The worker stated that his injury had not gotten better. No solutions had been offered by the WCB with respect to perhaps different treatment or medication for his injury. The worker said that he had tried to get his doctor to say that he could work. He had not been able to work because he had to be taking pain medication most of the time.

In conclusion, he said that all he really wanted was to be able to go back to work in the same field he had been working in or to do something that would actually enable him to provide for his family.

Employer's Position

The employer did not participate in the appeal.

Analysis

The issue before the panel is whether or not the worker is entitled to wage loss and/or medical aid benefits after August 6, 2015. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker suffered a loss of earning capacity and/or required medical aid after August 6, 2015 as a result of the workplace injury. The panel is unable to make these findings.

Based on our review of the information on file and the information at the hearing, the panel finds, on a balance of probabilities, that any loss of earning capacity and/or requirement for medical aid benefits is not as a result of his workplace injury.

The panel notes that there is insufficient medical evidence to support that after August 6, 2015 the worker was totally disabled or that the effects or complications of his surgery were causing him pain. The WCB medical advisor opined, following a call-in examination on February 2, 2015, that the worker appeared to have chronic pain, the pain generator for which was non-specific, and that the etiology of the chronic pain had not been clearly established. The panel accepts the medical advisor's opinion in this regard.

At the hearing, the worker pointed to the location of his pain. The panel noted that based on the location he pointed to, his pain is not at the surgery or hernia site, but in a different area.

The worker was asked by the panel if he had ever discussed any modified or return to work programs with the WCB, and responded that "It was never suggested to me."

A memo to file dated July 24, 2015 indicated that the WCB had received information that the worker had been working and had contacted the worker, but he had denied it. The WCB case manager had then contacted the company, who advised that she had provided the worker with employment, but that he was paid cash, that he had been employed for many years and would pick up shifts when needed. At the hearing, the worker indicated that he got paid for gas, to pick up a couple of papers here and there.

At the hearing, the worker was asked what he did on a normal day. He said that he stays home a lot and watches TV, that he has not done much of what he used to do. He had mentioned in his notice of appeal that he would like to do sedentary duties, but said that he would have to go through some sort of training, if that was something he could do, because he has never done it. Asked what he thought he could do in terms of sedentary work, he said that he wasn't too sure, that he did not have anything in mind. The worker stated that he had not applied for any employment since August 6, 2015. During questioning the worker said, however, that he had never said that he could not do anything.

The panel notes the reports from the treating physician are based on reported as opposed to clinical findings. In a progress report dated April 21, 2015, the treating physician indicated that the worker would be capable of alternate or modified work in a "sedentary job." Included with the worker's notice of appeal, was a note from the treating physician dated December 10, 2015, where the physician commented that "At this time [he] is not in condition to return to a similar job, not (sic) he qualifies to a light duty job. He has no skills for a 'sedentary job'." No explanation or medical evidence information was provided.

Based on the evidence, the panel finds on a balance of probabilities, that the worker has recovered from his workplace injury and could go back to work, but has made no effort to do so.

Accordingly, the panel finds that the worker is not entitled to wage loss and/or medical aid benefits after August 6, 2015.

The worker's appeal is dismissed.

Panel Members

M. L. Harrison, Presiding Officer
C. Devlin, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc

M. L. Harrison - Presiding Officer

Signed at Winnipeg this 14th day of June, 2016