The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on August 23, 2000, at the request of legal counsel, acting on behalf of the claimant. The Panel discussed this appeal on August 23, 2000.

Issue

Whether or not the claimant is entitled to temporary total disability benefits beyond June 15, 1999.

Decision

That the claimant is entitled to temporary total disability benefits beyond June 15, 1999 to the date of this decision; and

That any further entitlement to benefits and services beyond this decision be conditional on the claimant's full and active cooperation with the Workers Compensation Board's vocational rehabilitation branch.

Decision: Unanimous

Background

On December 16, 1982, the claimant injured her back during the course of her employment as a labourer which required disc surgery at the L4-5 level. In 1989, the claimant sustained a second injury to her back while employed as a cook and underwent a discectomy at L3-4. As a result of these accidents, the claimant has been in receipt of either temporary total disability or vocational rehabilitation benefits. In 1998, the claimant was awarded a 20% permanent partial impairment award for her lumbosacral spine and for left foot drop.

In a memorandum dated November 6, 1998, a vocational rehabilitation supervisor documented that the claim had been referred to Vocational Rehabilitation Services for the purposes of assessing the claimant's entitlement to Special Additional Compensation (SAC). It was noted that the claimant had been previously offered vocational rehabilitation benefits and services and that her benefits were reduced by a deemed earning capacity due to non-participation. It was noted further that the claimant told her adjudicator that she was totally disabled as a result of the compensable injury and was not able to participate in vocational rehabilitation. The case was referred to Quality Assurance to review the claim and provide input into the case.

In a memo dated January 25, 1999, Quality Assurance recommended that the following action be taken on the claim:

to clarify the claimant's physical restrictions;

to confirm with the claimant her ability/willingness to participate in vocational rehabilitation prior to providing benefits;

a medical examination or an internal functional capacity evaluation (FCE) to determine the claimant's fitness for a return to work. If SAC benefits were to be provided a formal ECA (earning capacity analysis) was recommended.

On January 30, 1999, the family physician responded to a request for updated medical information as to the claimant's status. The family physician reported that the claimant attended for treatment between October 1997 and December 1998. On November 16, 1996, the claimant had a L3-4 discectomy, L3-4 bilateral facet fixation and fusion, nerve root decompression at levels L2-3, L3-4, bilaterally and resection of scar to try to relieve chronic pain and left foot drop. After all these operative procedures, the physician stated that the claimant's pain and left foot numbness/weakness were not significantly better or improved. By December 1998, the claimant was having more back pain and was developing neck pain and strain with moderate stiffness and headaches. Examination revealed tenderness over the paraspinals of C5-6-7 bilaterally and tenderness over L4-5-S1 paraspinals bilaterally, with spasm and cramps into the left thigh and lower leg. The claimant stated that she could not stand or sit for more than 15-20 minutes and that she had to stand, shift legs, lay down or move constantly. The claimant was advised to use one crutch or a cane whenever possible. The physician concluded that the claimant was completely disabled during all of this time and that the surgery performed on November 11, 1996, did not significantly change her pain and symptomatology and that her left leg and ankle weakness did not improve.

To assess the claimant's spinal mobility and capabilities to lift and bend, a Functional Capacity Evaluation (FCE) was performed at the WCB's offices on March 16, 1999.

On April 13, 1999, Rehabilitation & Compensation Services wrote to the claimant and her solicitor. The adjudicator advised that in the opinion of Case Management the claimant was considered fit for sedentary work. Physical restrictions were outlined for a one-year period.

In a memo dated June 10, 1999, a VRC documented a telephone conversation she had with the claimant. The VRC summarized that the claimant was unwilling to participate in the initial stages of rehabilitation plan development as she considered herself completely disabled. The VRC concluded that in accordance with vocational rehabilitation policy 43.00, rehabilitation services and benefits would not be provided.

On June 15, 1999, Rehabilitation & Compensation Services wrote to the claimant. The claimant was informed that wage loss benefits were being suspended effective the date of the letter (June 15th). The adjudicator believed that the weight of medical evidence supported that the claimant was able to perform sedentary type work and that her claim of total disability was unsubstantiated. On August 26, 1999, the claimant's solicitor appealed this decision to Review Office and made reference to reports dated November 11, 1998 and January 30, 1999 from the treating physician who felt the claimant was totally disabled from employment.

In a memo dated September 17, 1999, the claimant's VRC indicated that the claimant's full participation was needed for her to be eligible for ongoing VR benefits. This participation would include another VR assessment and could include participation in interest and aptitude testing and possibly career planning programs. Once this was done, occupational goals could be identified and an earning capacity could be established. The claimant's ongoing level of benefits would depend entirely on the results of the ECA and her appropriate participation in an alternate program. On November 2, 1999, the claimant's solicitor was advised that the claimant was not eligible for retroactive benefits and that she would be eligible for vocational rehabilitation benefits the day she participated to the department's satisfaction.

On November 4, 6, 8, 18 & 20, 1999, the WCB obtained videotape evidence of the claimant's activities.

In a decision of April 14, 2000, Review Office determined that the claimant was not entitled to temporary total disability benefits beyond June 15, 1999. Review Office did not believe that the claimant remained totally disabled from any possible type of work activity due to the effects of her compensable injury. While it may be that the claimant is ultimately unemployable, Review Office believed that this must be established by compiling a proper inventory of her skills and abilities, as can be done in an assessment by the WCB's vocational rehabilitation personnel. Should the claimant agree to participate in the assessment phase, and it was ultimately determined that she was unemployable, Review Office recommended that consideration be given to reinstatement of benefits retroactive to June 16, 1999. On April 20, 2000, the solicitor appealed Review Office's decision and an oral hearing was arranged.

Reasons

The issue in this appeal is whether or not the claimant is entitled to temporary total disability benefits beyond June 15, 1999.

The subsections of the relevant Workers Compensation Act (the Act) in this appeal are subsections 43(1) which provides for compensation for temporary total disability and 27(15) which provides for vocational rehabilitation.

43(1) Temporary total disability compensation

"Where a temporary total disability results from the injury, the compensation shall be a periodic payment during the continuance of the temporary total disability equal to 75% of the worker's average earnings; but the compensation shall not be less than $816 per month, except where the average earnings of the worker are less than $816 per month, in which case he shall receive, as monthly compensation, the total amount of his average monthly earnings."

27(15) Vocational training

"The board may provide for any injured worker, whose earning capacity in his previous occupation has been permanently impaired by the injury, such vocational training as may be deemed advisable for the purpose of preparing the injured worker for another occupation to which he may seem adapted and which is likely to increase his future earning capacity; and to that end the board may contract with an institution or institutions furnishing such vocational training; and may adopt rules and regulations for that purpose and for the payment of the training."

WCB policies relevant to this appeal are Section 43.00, Vocational Rehabilitation and Section 44.60.30.01, Special Additional Compensation.

In this appeal we reviewed all the evidence on file as well as that provided during the hearing process and find that the weight of the evidence, on a balance of probabilities, supports a finding that the claimant is entitled to temporary total disability benefits beyond June 15, 1999 to the date of this decision. We also find that entitlement to any further benefits and services beyond the date of this decision will be dependent on the claimant's full and active co-operation with the WCB vocational rehabilitation department. In reaching this decision we noted the following:

The claimant's temporary total disability benefits were ceased effective June 15, 1999 as the claimant and her representative insisted, based upon the opinions of the claimant's attending physician and attending chiropractor, that the claimant was totally disabled from any occupation as a result of her compensable injuries and was therefore incapable of participating in a vocational rehabilitation initial assessment or program.

The WCB took the position that, while the claimant had extensive restrictions as a result of her compensable injuries, that she was potentially capable of a sedentary occupation and, in any event, should be assessed by vocational rehabilitation. It was determined by WCB that ongoing entitlement to benefits was dependent on the claimant's full co-operation with the vocational rehabilitation department. As she chose not to participate, benefits were ceased effective June 15, 1999.

We note in the hearing claimant's counsel requested that we reinstate the claimant's temporary total disability benefits from June 15, 1999, declare that the claimant has no residual earning capacity, invoke the Supplementary Additional Compensation (SAC) benefits provision to provide full supplementary SAC benefits and declare that no further assessments or reassessments [vocational rehabilitation] are required for this claimant. With due respect to counsel's arguments we find that the evidence does not support a finding beyond that as outlined above.

We note that the claimant has had fairly extensive involvement with vocational rehabilitation services over the course of this claim and find that the claimant is under a misapprehension, based on her previous experience, that vocational rehabilitation assessment is solely directed at work hardening and a return to full time work, and she is not fully aware that the scope of vocational rehabilitation is broader and can include a consideration of not only possible alternative sedentary occupations but also a consideration of SAC benefits for which an earning capacity has to be established.

At this time we find that an occupation that falls within the claimant's restrictions has not yet been identified nor has there been an opportunity for the WCB vocational rehabilitation department to evaluate this or to evaluate whether there is an earning capacity for the purposes of a consideration of SAC benefits for this claimant.

Part of this claim included videotape surveillance of the claimant taken November 4, 6, 18 and 20, 1999 which showed the claimant in various activities. We find that this evidence does support and demonstrate that the claimant has a relatively significant degree of disability, however, in our view also does not establish, on a balance of probabilities, that the claimant is necessarily totally disabled from a suitable sedentary occupation. In this regard we note that no medical assessment of the claimant's physical abilities with respect to the videotape evidence appears on the file.

We note that prior to the referral in 1998 the past involvement of the vocational rehabilitation department dated back to 1996 prior to the claimant's most recent back surgery. We also note in this regard WCB memorandums to file dated respectively January 25, 1999, June 10, 1999 and September 15, 1999. The WCB memorandum to file dated January 25, 1999 represents a review of the case file by the vocational rehabilitation quality assurance unit. The memorandum documents some recommendations on possible rehabilitation strategies for the claimant including a consideration of the provision of SAC benefits. The memorandum states in part:

" 5. SAC benefits for Ms. [the claimant]: SAC has been suggested as an option for this file. But we have not established an earning capacity for her. If SAC is going to be considered an assessment of her earning capacity would need to be conducted. Even if this earning capacity is 0 there is documentation needed to support this contention."

We also note the following from the WCB memorandum to file dated September 15, 1999 recorded following a meeting with the claimant, her counsel and WCB adjudicators, Rehabilitation and Compensation Services:

" However, it was the view of Rehabilitation and Compensation Services that although the claimant does have extensive restrictions and is likely disabled from most types of employment, the final decision rests with VR and, as such, a referral should have been made .

Following the VR assessment, it is likely that the claimant will be placed on SAC. It is questionable whether an earning capacity can be established based on what has transpired since 1982."

We note that the WCB file contents referring to the reasons for the vocational rehabilitation assessment were available to counsel for the claimant and we find that these reasons were not adequately communicated to the claimant by her counsel and as such may have had some bearing on the claimant's refusal to participate in the appropriate assessments being suggested by the WCB vocational rehabilitation department.

We concur unanimously with the directions that vocational rehabilitation were taking on this file as suggested in the memorandums as dated and outlined. In light of the above evidence we find that the claimant is entitled to retroactive temporary total disability benefits from June 15, 1999 to the date of this decision. However, we also find that any further entitlement to benefits and services beyond the date of this decision be conditional on the claimant's full and active participation in the vocational rehabilitation process.

Therefore the claimant's appeal is allowed as articulated by these reasons and as outlined in the decision.

Panel Members

D.A. Vivian, Presiding Officer
A. Finkel, Commissioner
C. Monk, Commissioner

Recording Secretary, B. Miller

D.A. Vivian - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 13th day of October, 2000