Decision #63/17 - Type: Workers Compensation
Preamble
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that she was not entitled to full wage loss benefits after July 15, 2016 in relation to her compensable injury. A hearing was held on April 24, 2017 to consider the worker's appeal.
Issue
Whether or not the worker is entitled to full wage loss benefits after July 15, 2016.
Decision
That the worker is not entitled to full wage loss benefits after July 15, 2016.Background
On June 4, 2014, the worker lifted the back wheels of a client in a wheelchair when she felt a pop in the area of a previous hernia condition. Following receipt of medical reports and contact with the worker, the claim for compensation was accepted and benefits and services were paid. On September 22, 2015, the worker underwent a laparoscopic incisional hernia repair which was accepted as a WCB responsibility. By November 2015, it was determined that the worker was capable of returning to modified duties and a return to work plan was arranged. On December 1, 2015, the worker ceased working due to pain complaints that she related to the repair of her hernia.
On December 21, 2015, the worker underwent a second CT scan (the first one was done on June 7, 2014.) No definitive evidence of hernia recurrence was reported.
On March 2, 2016, a WCB medical advisor reviewed the file and stated that the diagnosis accepted as compensable was a recurrent incisional hernia and the current diagnosis was chronic post incisional hernia repair pain. The consultant stated:
The occurrence of chronic pain following an incisional hernia repair has been well established. Conditions such as obesity, diabetes and multiple repairs have been described as risk factors observed with this condition. (It is highlighted that [worker] has all three). Despite the association of these risk factors an established pathoanatomical pain generator is unknown.
Of note, a recurrent incisional hernia as a potential pain generator was not evident on the December 21, 2015 abdominal CT scan.
On June 1, 2016, the worker underwent a third CT scan. The findings showed: "Bulging of the mesh is identified at the site of hernia repair, though peripheral attachments appear intact without evidence of recurrence. Stable since December 21, 2015."
On June 7, 2016, the worker returned to "casual staff" hours and was paid partial wage loss benefits.
On July 12, 2016, the worker advised the WCB that she has pain 24 hours a day. On July 10, 2016, she and a co-worker were rolling over a patient with a soaker pad when she felt a pulling sensation on her right side and then the pain was shooting through.
A physiotherapist reported that he saw the worker on July 18, 2016 with complaints of pain on the hernia site as well as left shoulder pain.
On July 19, 2016, a WCB adjudicator spoke with the treating physician who indicated that he advised the worker to take the rest of the week off (July 12-15) and return to work on the following Saturday, July 16, 2016. He said he could not find evidence of a new hernia. In a decision dated July 19, 2016, the worker was advised by Compensation Services that wage loss benefits would be paid for her absence from work up to and including July 15, 2016 and that the healthcare information indicated that she was able to return to work after that time.
File records show that the worker contacted the WCB to advise that she disagreed with the decision that she was capable of working.
On August 1, 2016, a WCB medical advisor stated that the current diagnosis remained post incisional hernia repair pain. There was no new diagnosis to account for the pain experienced by the worker.
On August 4, 2016, the WCB received a submission from the employer's representative which noted that the worker, on July 10, 2016, leaned over and pulled a resident towards herself which was contrary to her restrictions of "bending and twisting at her discretion." This was when the worker allegedly hurt her pre-existing hernia. Since the incident, the worker has had other issues which caused her to be unavailable for work, i.e. cataract surgery, child care issues, and not home or returning the house manager's phone messages.
On August 4, 2016, Compensation Services wrote the worker to advise that it was their position that the treatment she was currently receiving was not related to the right-sided hernia repair that was done on June 4, 2014 and there was no evidence to support a loss of earning capacity relative to her compensable injury beyond July 15, 2016. The decision was based on the findings that the employer had provided her with suitable accommodations and the medical evidence established no new diagnosis and two healthcare providers indicated that she was able to work.
On September 22, 2016, Review Office determined that there was no entitlement to full wage loss benefits beyond July 15, 2016 and there was entitlement to partial wage loss benefits effective July 16, 2016.
Review Office referred to a medical report dated July 12, 2016 and the WCB medical opinion dated August 1, 2016. Review Office stated that a temporary flare-up likely occurred on July 10, 2016 based on the medical evidence and it agreed with the physician's opinion that the worker was fit to return to work as of July 16, 2016.
Review Office noted that the worker missed time from work in July 2016 for non-compensable reasons. As such, it determined that partial wage loss benefits were payable to the worker effective July 16, 2016 and should exclude the time frames for her non-compensable time loss from work.
On October 31, 2016, the worker appealed Review Office's decision that she was not entitled to full wage loss benefits beyond July 15, 2016 and an oral hearing was arranged to consider the worker's appeal.
Reasons
Applicable Legislation and Policy
The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the WCB 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.
The WCB Board of Directors' Policy 43.20.25 Return to Work with the Accident Employer outlines the WCB's approach to the return to work of injured workers.
The worker has an accepted claim for an injury arising from a 2014 workplace accident. The worker maintained that she was not able to return to work on July 15, 2016. She is appealing the WCB decision that is not entitled to full wage loss benefits after July 15, 2016.
Worker's Position
The worker was accompanied and assisted by her daughter. Both the worker and her daughter answered questions from the panel.
In answer to a question about her eyes and her ability to work, the worker advised that it was thought that she might have cataracts, so she went to see a physician. She said that she did not have cataracts but that she had fluid behind her eyes which had to be drained. She said her last appointment was after October. She said that during that time period she could not drive, and couldn't get anybody to drive, and so she had to stay in Winnipeg until the floaters (black spots) went away. She said that she was off work for small periods of time.
The worker advised that when her hernia happened she also has a problem with her belly button (navel). She advised that it remains sore and that she was at the hospital last week as it "busted open." She said that she was distracted by a family matter and did not mention this injury when she reported her hernia. She also said that:
Nobody says it, nobody is listening. From day one I told him, here's my hernia right there, and my bellybutton same time.
The worker advised that she attempted a return to work. She said the 10 pound lifting restriction was too much and that she could not lift a milk jug. She referred to an incident that occurred when she had returned to work. She and a co-worker were turning a patient and felt pain. She has not returned since this incident.
The worker advised that she has no source of income.
The worker acknowledged that she was not available for work, at times, because she has to look after her foster children.
Regarding a return to work, the worker advised that she has not contacted her employer. She did not contact the employer because she was told that the employer can't give her work if she can't perform her duties.
The worker advised that her hernia continues to be painful. In reply to a question about what makes it painful, the worker advised that:
Just nothing. It just sits there, right there and it just hurts constantly. If you're sitting, lying, walking.
The worker advised that she has been referred to a specialist in regards to navel - lower abdomen issues.
Employer's Position
The employer did not participate in the hearing.
Analysis
The worker is appealing the WCB decision that she is fit to return to modified duties with her accident employer. The worker asserts that she is entitled to full wage loss benefits after July 15, 2016. For the worker's appeal to be approved, the panel must find that that the worker was not able to perform the modified duties that were offered by the employer and is accordingly entitled to full wage loss benefits. The panel was not able to make this finding.
The panel finds, on a balance of probabilities that the worker was able to return to work after July 15, 2016.
In reaching this decision, the panel notes that the worker has not attempted to return to work after the July incident, even though her physician authorized a return to work on light duties. The worker maintained that she was not able to work. The worker also acknowledged that she has not contacted the employer about a return to work.
The panel finds that the medical evidence on file does not support the position taken by the worker:
- on August 12, 2016, her physician provided a note authorizing a return to work on light duties.
- on March 2, 2016, a WCB medical advisor reviewed the file and commented that the December 21, 2015 abdominal CT scan did not indicate that the worker's recurrent incisional hernia was a pain generator.
- on August 1, 2016, another WCB medical advisor reviewed the file and commented, in part, that:
There is no new dx to account for her pain, nor have the treating practitioners provided any new clinical findings to support any changes to her previous condition.
The panel notes the worker has another condition which she attributes to her workplace accident which has not been adjudicated. She advises that she is currently receiving medical attention for this condition.
The panel finds that the worker is not entitled to full wage loss benefits after July 15, 2016.
The worker's appeal is dismissed.
Panel Members
A. Scramstad, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 18th day of May, 2017