Decision #97/00 - Type: Workers Compensation

Preamble

An Appeal Panel review was held on September 25, 2000, at the request of the claimant.

Issue

Whether or not a deemed post accident earning capacity of minimum wage for a forty hour week should have been implemented effective March 19, 2000; and

Whether or not the claimant's restrictions should be changed.

Decision

The deemed post accident earning capacity of minimum wage for a 40 hour week should have been implemented effective March 19, 2000; and

That the claimant's restrictions should not be changed.

Background

On October 10, 1989, the claimant was refueling a tanker truck when he lost his footing and fell from the truck hitting a frost fence. As a result of the fall, the claimant sustained injuries to his back, pelvis, shoulder and neck. The claim was accepted by the Workers Compensation Board (WCB) and benefits were paid including temporary total disability and vocational rehabilitation benefits. The claimant has permanent restrictions to avoid excessive bending and stooping and lifting over 10 pounds and the opportunity to change positions frequently.

On February 26, 1999, the claimant was interviewed at the WCB's Pain Management Unit. The medical advisor concluded that the claimant's chronic pain syndrome was reasonably controlled and that efforts should be focused on eliminating his narcotic intake and expending considerable efforts on vocational rehabilitation. On April 6, 1999, the claimant was advised that in the opinion of Claims Services he was not considered to be totally disabled and that his case would be referred back to his Vocational Rehabilitation Consultant (VRC) to reformulate a suitable vocational rehabilitation plan.

In file correspondence dated May 11, 1999, the VRC documented her telephone conversation with the claimant about the need to become involved in a job search with a vocational goal. In the event that he did not find employment, his benefits would be reduced based upon his earning capacity. On June 7, 2000, the claimant was given the option of participating in a job search otherwise an earning capacity would be implemented. The claimant chose to participate in a job search rather than have his benefits reduced.

In a meeting with a WCB employment specialist and a VRC on February 23, 2000, the claimant indicated that he was unable to look for work due to pain and the increased need for morphine. In a letter dated February 28, 2000, the claimant was advised that his benefits would be reduced effective March 19, 2000, based upon an earning capacity of minimum wage, as it was felt that he was capable of participating in a vocational rehabilitation plan. The claimant appealed the decision to Review Office.

On March 24, 2000, Review Office determined that the claimant's deemed post accident earning capacity of minimum wage for a forty hour week should have been implemented effective March 19, 2000.

Based on the evidence on file, Review Office indicated that the claimant's permanent restrictions were too severe and should be changed to include 'repetitive' where appropriate (e.g. no bending becomes no repetitive bending). Review Office noted that chronic pain syndrome affects individuals in different ways. In this instance, however, Review Office indicated that the claimant's chronic pain syndrome should not prevent him from working within his restrictions. Review Office noted that the total vocational rehabilitation expenditures on the claim exceeded $200,000.00 and that the claimant had been amply provided for under the circumstances and what had transpired relative to this claim and in the provision of the discretionary rehabilitation benefits and services he received. It was felt that the claimant was capable of working full time and earning at least minimum wage. He was not entitled to full wage loss replacement benefits or vocational rehabilitation services.

On June 10, 2000, the claimant appealed Review Office's decision and a non-oral file review was arranged.

Reasons

As the background notes indicate, a WCB medical advisor interviewed the claimant on February 26th, 1999. We attached considerable importance to the following comments contained in his notes:

"This man continues to suffer from Chronic Pain Syndrome, however, he appears to have adapted to a relatively functional lifestyle in so far as his personal life is concerned. He has also developed an interest in painting and feels that he is good enough at it to use it as a source of income. It is therefore my opinion that his Chronic Pain Syndrome is reasonably controlled and efforts now should be focused on eliminating his narcotic intake and expending considerable efforts on vocational rehabilitation." In addition, the claimant made mention that he was considering the purchase and operation of a business.

The preponderance of evidence confirms to us that the claimant is not totally disabled and that he would be capable of returning to the workforce in some capacity. Therefore, we find that the implementation of a deemed post accident earning capacity of minimum wage for a forty-hour week is not unreasonable in light of this evidence.

In our view, the various restrictions that have been recommended throughout the history of this file are consistent in their meaning with respect to no bending, lifting, stooping and avoidance of carrying greater than 10 pounds. A WCB orthopaedic consultant has in fact suggested that the claimant "will require permanent restrictions for very light duty." A second WCB orthopaedic consultant concluded that this recommendation was proposed probably as a preventative measure. In his view, the claimant "should be rehabilitated back to modified work with preventative restrictions combined with a conditioning program." After careful consideration, we see no necessity to vary these restrictions.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
B. Malazdrewich, Commissioner

Recording Secretary, B. Miller

R.W. MacNeil - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 5th day of October, 2000

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