Decision #170/18 - Type: Workers Compensation
The worker is appealing the decisions made by the Workers Compensation Board ("WCB") regarding her entitlement to wage loss benefits beyond May 18, 2017. A hearing was held on October 2, 2018 to consider the worker's appeal.
Whether or not the worker is entitled to wage loss benefits after May 18, 2017;
Whether or not wage loss benefits paid from May 18, 2017 to August 5, 2017 represent an overpayment; and
Whether or not the worker is required to repay the overpayment to the WCB.
That the worker is entitled to wage loss benefits after May 18, 2017 to August 5, 2017 inclusive;
That wage loss benefits paid from May 18, 2017 to August 5, 2017 do not represent an overpayment; and
That the worker is not required to repay the overpayment to the WCB.
On August 24, 2016, the worker reported to the WCB that she injured her right heel in an incident on August 22, 2016 which she described as:
I was taking empty boxes out to an area where we have a container. I just was not paying attention. There was a step about 4 inches and I did not step up, I just fell into it and I felt a pop and I felt my heel go numb.
The worker saw her family physician on August 22, 2016 and was diagnosed with an Achilles tendon strain. An MRI of the worker's right ankle on September 23, 2016 revealed that she had "High grade partial tearing of the distal Achilles tendon." The worker's claim was accepted by the WCB and wage loss and other benefits were provided.
The worker commenced a graduated return to work program on January 16, 2017, but discontinued working on March 19, 2017 due to increased symptoms.
A second MRI of the worker's right ankle conducted on March 19, 2017 showed:
Achilles tendinosis complicated by partial tearing. It has improved in appearance when referenced to previous September 2016 MRI examination.
The worker provided the WCB and her employer with notes from her family physician recommending she remain off work from March 20, 2017 to May 9, 2017.
In order to clarify the worker's diagnosis and her ability to participate in workplace activities, the WCB requested the worker attend a call-in examination with a WCB medical advisor on May 18, 2017. In her notes of that examination, the WCB medical advisor reported that the worker presented with ongoing pain in the Achilles area. She had limited weight bearing tolerance. On examination, she had pain with full dorsiflexion, weakness of plantar flexion, a negative Thompson's test, atrophy in the right calf, and a palpable gap in the Achilles.
The WCB medical advisor opined that the worker's current presentation remained consistent with a healing partial tear to the Achilles, and she remained within the recovery norm for a tear of the Achilles. The medical advisor further opined that her clinical findings were quite characteristic for an Achilles tear, and as such, her current presentation and diagnosis could be medically accounted for in relation to the workplace injury. The WCB medical advisor went on to state that the worker was not totally disabled, and recommended that she start a return to work with sedentary duties and reduced hours, to be increased back to full hours.
On May 30, 2017, the WCB advised the employer of the worker's restrictions of sedentary duties only. On June 2, 2017, the employer advised that they were unable to accommodate the worker's restrictions.
On June 29, 2017, the WCB again advised the employer of the worker's restrictions of sedentary duties only. On July 6, 2017, the employer responded that they were unable to accommodate the worker's restrictions of sedentary duties.
On August 11, 2017, Compensation Services advised the worker that a final review of her claim had been conducted. It was stated that WCB Compliance Services had received a CCTV video of a physical altercation involving the worker on May 27, 2017. The video had been reviewed by the WCB medical advisor, who had opined on August 8, 2017 as follows:
Observations from the video:
• The worker was walking around with no aides, no limp, and wearing flip flop type sandals (no ankle support).
• The worker was able to move quickly to her victim, including lunging at her.
• She had the strength to push the victim to the ground and drag her on the ground.
• The worker sat on her knees, leaning back onto her heels, demonstrating full ankle mobility.
• After the altercation, she was able to get up and walk about with no apparent limp or difficulty.
• Throughout the video, the worker did not demonstrate any pain behavior.
• She did not demonstrate any impairment of the right ankle/foot.
• After the altercation, she was observed to be lifted off the ground by another person. He put her back down on the ground, with no apparent difficulties with the right ankle
While the video was short, it demonstrated unrestricted activity with her right ankle/foot. She demonstrated good ROM, good strength, and good balance. The right ankle did not appear to limit her activity in any way.
The worker has continued to present to her practitioners with worsening pain (went from 4/10 to 6/10) and decreased perceived function (LEFS went from 66/80 to 41/80). It was assumed that this was related to her returning to sedentary duties. This presentation cannot be medically accounted for in relation to the C/I [compensable injury] considering her presentation on the video.
Based on this review, there is no indication that she requires further treatment or restrictions as a result of the workplace injury to her right Achilles.
Compensation Services advised the worker that considering the nature of the workplace incident, the results of the call-in examination, the time passed for recovery and the activities observed during the video, they had determined that the worker had recovered from the effects of the August 22, 2016 workplace injury and there was no further entitlement to WCB benefits or services beyond the date of the video, being May 27, 2017.
On August 22, 2017, Compensation Services further advised the worker that an overpayment had occurred, as she was paid wage loss benefits to which she was not entitled from May 27 to August 5, 2017, and that she was responsible for repaying the entire amount of the overpayment to the WCB. On September 26, 2017, the worker's union representative requested that Review Office reconsider Compensation Services' August 11 and August 22, 2017 decisions. On November 20, 2017, Review Office determined that the worker was not entitled to wage loss benefits beyond May 18, 2017, that there was an overpayment of wage loss benefits from May 18 to August 5, 2017 and that the worker was required to repay the recalculated overpayment to the WCB.
Review Office accepted the WCB medical advisor's opinion that the worker had not fully recovered at the time of her call-in examination on May 18, 2017, and in doing so placed weight on her clinical findings of a palpable gap in the Achilles tendon and atrophy of the worker's right calf. Review Office did not accept some of the worker's statements to the WCB medical advisor on May 18, 2017, regarding her level of disability. Review Office concluded that the worker's complaints as reported to the WCB medical advisor on May 18, 2017 were inconsistent with her activity levels observed on the May 27, 2017 video.
Review Office also accepted the WCB medical advisor's August 8, 2017 opinion that there was no need for restrictions based on the worker's functional levels as seen on the May 27, 2017 video, and found that the worker did not have a loss of earning capacity on May 27, 2017. Review Office further determined that the worker's statements to the WCB medical advisor on May 18, 2017 with respect to her disability levels constituted a misrepresentation. As a result of the misrepresentation, the worker did not have a loss of earning capacity beyond May 18, 2017 and wage loss benefits paid from May 18 to August 5, 2017 were considered recoverable based on the WCB's overpayment policy.
Review Office concluded that the worker might receive further medical aid benefits, provided a relationship between the worker's need for treatment and the compensable injury could be established.
On November 23, 2017, the worker's union representative appealed the Review Office decision to the Appeal Commission and an oral hearing was arranged.
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'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.
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.
Section 109.2 of the Act provides that where a worker receives an overpayment of compensation, being an amount that the board determines is in excess of that to which the person is entitled, the WCB may recover the overpayment as a debt due to the board.
WCB Policy 35.40.50, Overpayment of Benefits (the "Policy"), establishes the framework for preventing, recovering and writing off overpayments. Part B of the Policy, relating to the recovery of overpayments, provides in part that:
All overpayments will be pursued for recovery when:
2. there is evidence of fraud, deliberate misrepresentation, delays in providing or withholding of key information by the injured worker or worker's dependant affecting benefit entitlement…
The worker was represented by a union representative, who provided a written submission in advance of the hearing and made an oral presentation to the panel. The worker was accompanied by a family member at the hearing, and responded to questions from her union representative and the panel.
The worker's position was that she was entitled to wage loss benefits after May 18, 2017 as the evidence supports that the ongoing effects of her compensable injury prevented her from fully returning to the physical demands of her pre-accident work.
The worker's union representative noted that the WCB determined that the May 27, 2017 altercation was evidence not only that she could return to work but also that she intentionally misrepresented the extent of her injury to the WCB. It was submitted that the decisions to terminate the worker's entitlement to wage loss benefits and to demand repayment of benefits were both based on the belief that the worker attempted to mislead the WCB, and not on objective evidence.
It was submitted that the video evidence does not prove that the worker had any intention of misrepresenting the extent of her injury to the WCB. While the video showed that the worker was physically active for approximately 40 seconds, it did not demonstrate a capacity to return to her regular job duties. The video confirmed that the worker made a regrettable decision in the heat of the moment, but this did not invalidate the MRI evidence that the worker had an ongoing Achilles tendon tear, nor the clinical assessment by the WCB medical advisor at the call-in examination just days before the May 27, 2017 altercation, nor the reported findings by the worker's attending orthopedic surgeon only weeks prior to that date.
In conclusion, the union representative submitted that the evidence does not establish that the worker misled the WCB, intentionally or otherwise, about the extent of her ongoing compensable injuries. He submitted that the worker was entitled to further benefits because the ongoing effects of her compensable injury prevented her from returning to work in May 2017. He further submitted that the worker was not overpaid benefits, as her loss of earning capacity between May 18 and August 5, 2017 was directly attributable to her compensable injury. Finally, in the event that the panel was to find that the worker was overpaid, it was submitted that she should not be required to repay those benefits because the WCB changed their mind over the extent of her injuries or made an administrative error in not addressing evidence brought forward to their attention in a timely manner.
The employer, through its advocate, provided a written submission for the panel's consideration and did not attend the hearing.
The employer's position was that they agreed with the WCB's decision.
The employer's advocate noted that the worker sustained a right heel injury on August 22, 2016. In May 2017, a WCB medical advisor recommended that the worker start a return to work with sedentary duties. Formal restrictions were provided, to be reviewed in six weeks.
The employer's advocate submitted that the employer was advised in May 2017 that the worker had been seen sitting on her foot, wearing high heels, and that she did not appear to be in any pain. On further investigation, the employer discovered that the worker had been in a physical altercation on May 21, 2017 (sic), video evidence of which was provided to the WCB.
It was submitted that in light of this significant physical activity and evidence that the worker appeared to easily put weight on her right foot, the worker no longer required such harsh restrictions of sedentary duties. The employer therefore supported the decision denying entitlement and finding the worker responsible for the overpayment of wage loss benefits.
Issue 1. Whether or not the worker is entitled to wage loss benefits after May 18, 2017.
For the appeal on this issue to be successful, the panel must find, on a balance of probabilities, that the worker continued to suffer a loss of earning capacity after May 18, 2017 as a result of her compensable injury. The panel is able to make that finding, for the reasons that follow.
Based on our review of all of the information, on file and as presented at the hearing, the panel is satisfied that the worker had not recovered from her compensable injury as at May 18 or May 27, 2017.
The panel notes that the evidence shows the worker had unsuccessfully attempted a return to work on a graduated return to work program starting January 16, 2017. The worker was to work as an extra, with a reduced number of hours which gradually increased over time. The worker continued in that program for almost two months, but ceased working in mid-March due to an increase in her pain and symptoms, just prior to moving to full-time hours. The worker stated at the hearing that there was nothing in particular that triggered her going off work, that it had just become too painful, and in particular, that just being on her feet all day on a cement floor put a lot of stress on her leg. The worker was seen by her family physician on March 20, 2017, who told her to go back to wearing the boot she had been prescribed and used for her ankle injury previously, and referred her back to the treating orthopedic surgeon.
The worker confirmed at the hearing that she did not return to work after March 2017. The evidence shows that the worker was cleared to return to work on sedentary duties following her May 18, 2017 call-in examination with the WCB medical advisor. The employer advised, however, that they did not have sedentary duties and were unable to accommodate the worker's restrictions.
The WCB medical advisor subsequently advised, after reviewing the video of the May 27, 2017 altercation, that there was no indication that the worker required further treatment or restrictions as a result of the workplace injury to her right Achilles. The panel has reviewed the video of the May 27, 2017 altercation and is unable to find that the video establishes that there was no need for compensable restrictions based on the worker's observed functional levels. In other words, the panel is unable to find that the video evidence shows the worker was fit to return to her full-time regular duties, without restrictions, as at that date. The panel acknowledges the observations made by the WCB medical advisor with respect to the worker's actions and movements as seen in the video, but notes that the altercation took place over a very short period of time. The panel notes that the worker described her job duties at the hearing as being very physical in nature. A Physical Demands Analysis on file suggests that the job should be classified as "Medium Strength Demand" due to the loads handled and indicates that frequent standing and walking is involved. The panel finds that there is insufficient evidence in the very brief and heated altercation on May 27, 2017, as seen on the video, to indicate that the worker could go back to continuously performing her pre-accident job duties on a daily basis.
The panel is further unable to find that there was misrepresentation by the worker of her disability on May 18, 2017, deliberate or otherwise, based on the video evidence of the May 27, 2017 altercation.
The panel notes that the clinical findings of the WCB medical advisor at the May 18, 2017 call-in examination of the worker, including those of a well-preserved range of motion and no evidence of any instability or specific ankle tenderness, appear to be generally consistent with what is seen in the video. The medical advisor stated in her examination notes that the worker's presentation remained consistent with a healing partial tear to the Achilles, and her clinical findings were "quite characteristic for an Achilles tear" and as such, her current presentation and diagnosis could be medically accounted for in relation to the workplace injury.
The examination notes from the May 18, 2017 call-in examination further indicate that the worker did not suggest or represent that she was totally disabled. The WCB medical advisor reported that the worker expressed that she was able to do much of her housework, could do her grocery shopping, could do some light driving and could look after herself. The medical advisor opined that the worker was not totally disabled and that this would be concordant with the nature of this injury at this point.
The panel notes that the WCB medical advisor expressed some concern at that time regarding the worker's perception of pain, but noted that pain is subjective so recovery should be based on range of motion, strength, and return to function. The medical advisor went on to recommend a return to work with sedentary duties, starting at four hours a week and increasing to full hours.
The panel also places weight on the clinical findings of the treating orthopedic surgeon on April 28, 2017, which are largely normal, including findings that the worker "ambulates well," and "has full painless range of motion of her right ankle," and again appear to be generally consistent with the video evidence of the worker's movements on May 27, 2017. The treating orthopedic surgeon reported that the repeat MRI of the worker's right ankle in March 2017 was remarkable for Achilles tendinosis complicated by partial tearing, which had improved in appearance, and suggested non-surgical treatment with a physiotherapy program for the worker's ongoing right Achilles tendon condition.
Based on the foregoing, the panel finds, on a balance of probabilities, that the worker continued to suffer a loss of earning capacity after May 18, 2017 as a result of her compensable injury, and is entitled to wage loss benefits from May 18, 2017.
With respect to the duration of benefits, the panel notes that there is no dispute that the worker received wage loss benefits from the WCB for the period of time from May 18, 2017 to August 5, 2017. Information on file shows that the worker continued to be in a loss of earning capacity during that period of time as the employer was unable to accommodate her restrictions and the May 27, 2017 incident was being investigated and adjudicated. In the circumstances, the panel finds that the worker continued to suffer a loss of earning capacity and was entitled to wage loss benefits to August 5, 2017.
Entitlement to wage loss benefits after August 5, 2017, if any, would have to be referred to the WCB for their consideration and adjudication.
In the result, the panel finds that the worker is entitled to wage loss benefits from May 18, 2017 to August 5, 2017 inclusive.
The worker's appeal on this issue is allowed.
Issue 2. Whether or not wage loss benefits paid from May 18, 2017 to August 5, 2017 represent an overpayment.
Given the panel's decision on Issue 1 above, that the worker is entitled to wage loss benefits from May 18, 2017 to August 5, 2017 inclusive, the panel finds that wage loss benefits paid during that period of time do not represent an overpayment.
The worker's appeal on this issue is allowed.
Issue 3. Whether or not the worker is required to repay the overpayment to the WCB.
Given the panel's decision on Issue 2 above, that wage loss benefits paid from May 18, 2017 to August 5, 2017 do not represent an overpayment, it necessarily follows and the panel finds that the worker is not required to repay those benefits to the WCB.
The worker's appeal on this issue is allowed.
M. L. Harrison, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
M. L. Harrison - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 30th day of November, 2018