Decision #23/02 - Type: Workers Compensation
Preamble
An Appeal Panel hearing was held on January 7, 2002, at the request of legal counsel, acting on behalf of the claimant. The Panel discussed this appeal on January 7, 2002 and January 11, 2002.Issue
Whether or not the worker is entitled to wage loss benefits beyond February 6, 2001.Decision
That the claimant's benefits should have been suspended effective February 6, 2001 due to his lack of participation in the rehabilitation process.Decision: Unanimous
Background
This case was previously the subject of an oral hearing which was held on March 15, 2000. Details surrounding the claim can be found under Appeal Panel Decision No. 68/00 dated July 10, 2000 and will be not be repeated in its entirety at this time.Briefly, the claimant experienced a sharp pain in his lower back and left side of his upper pelvis on November 26, 1996 when he was resuscitating a cardiac arrest patient. The initial diagnosis rendered by the attending physician was mechanical low back pain. The claim was accepted by the Workers Compensation Board (WCB) and benefits commenced on November 27, 1996.
In August 1998, compensation benefits were terminated as the claimant felt he was incapable of participating in any return to work plan due to his condition. The claimant appealed the decision to terminate benefits and the case was considered by Review Office and then by an Appeal Panel. In July 2000 the Appeal Panel reinstated wage loss benefits as it was determined that the claimant met the diagnostic criteria for Chronic Pain Syndrome (CPS). The Panel endorsed the following recommendation that was made by the WCB's Pain Management Unit with respect to the claimant's treatment plan, 'The claimant does appear to be an appropriate candidate for a Multidisciplinary Pain Management treatment program depending on the development of an appropriate V/R plan and the Claimant's willingness to commit to same.'
Subsequent file records showed that arrangements were made for the claimant to attend the Canmore Pain Clinic for treatment beginning on October 16, 2000. On October 23, 2000, the Program Director from the Pain Clinic indicated that the claimant was discharged early from treatment as he (the claimant) was convinced he was inappropriate for the program and was not ready to commit.
On November 20, 2000, the claimant was advised by the WCB that his compensation benefits would cease as of February 6, 2001 due to his non-participation in the treatment program at Canmore. WCB policy 44.10.30.60 was quoted in the decision. On February 7, 2001, a union representative appealed the decision on behalf of the claimant.
On March 16, 2001, Review Office noted the position taken by the union representative in her appeal submission of February 7, 2001. Review Office was satisfied that there had been strong communication efforts made by multiple staff members of the WCB in providing the claimant with an education of his condition, as well as goals and expectations of the WCB regarding physical, psychological and vocational rehabilitation. Review Office agreed with the description of the claimant's attitude covered in the Canmore assessment of his behavior while at the clinic and did not condone the claimant's actions. Review Office stipulated that the claimant was in a period of indefinite suspension of wage loss benefits effective February 7, 2001, pending evidence of full cooperation with any WCB physical, psychological and vocational rehabilitation plan. On September 12, 2001, legal counsel acting on the claimant's behalf, appealed Review Office's decision and an oral hearing was convened.
Reasons
This case involves a worker who suffered an injury to his lower back while working in a hospital. His application for compensation was accepted. Wage loss, medical and other benefits were paid accordingly.He continues to have pains in his lower back. He has not returned to work on a full-time basis since the accident in November 1996.
His benefits were terminated as of August 25, 1998, when it was determined that any ongoing problems with his back were not causally related to the workplace accident. This decision was upheld by Review Office in February 1999. In that decision, it was noted that the claimant was still being considered for a diagnosis of Chronic Pain Syndrome (CPS). It was subsequently held that he was not suffering from CPS.
In October 1999, Review Office considered this case for a second time, specifically whether or not the claimant should be diagnosed with CPS and, again, whether or not he was entitled to wage loss benefits beyond August 25, 1998. Review Office answered in the negative to both issues.
An appeal was made to this Commission on the latter issue only. In Decision No. 68/00, it was held that he was entitled to payment of wage loss benefits beyond the specified date. After hearing the appeal, but before rendering a decision, the Panel addressed the other issue, referring the claimant to the board's Pain Management Unit (PMU) for assessment.
The PMU concluded that he met the diagnostic criteria for CPS. It was noted that the "claimant does appear to be an appropriate candidate for a Multidisciplinary Pain Management treatment program depending on the development of an appropriate V/R [vocational rehabilitation] plan and the Claimant's willingness to commit to same." (Emphasis added) Subsequent to the Appeal Commission decision, a treatment plan was instituted.
In November 2000, the board determined that the claimant was not cooperating fully with the treatment plan. As a result, his benefits were to be terminated as of February 6, 2001. In March 2001, Review Office upheld this decision, noting that, pending evidence of full cooperation, his benefits were in "a period of indefinite suspension".
He appealed that decision to the Commission. The issue before us was framed as whether or not he is entitled to wage loss benefits beyond February 6, 2001. It should be noted that this claimant has other issues, in respect of this claim, awaiting adjudication by the board. It was not open for this Panel to consider, and rule upon, those issues.
For the claimant's appeal to succeed, we would have to determine that he was cooperating, to the best of his abilities, with the board in pursuing its prescribed treatment plan. We were not able to make that determination.
In coming to our decision, we made a thorough review of the file; we viewed videotapes of a surveillance of the claimant engaged in a number of everyday activities; and we held an oral hearing at which the claimant's counsel presented us with a comprehensive argument on his behalf.
We note that, in its July 2000 decision to re-instate benefits to the claimant, the Appeal Commission emphasized the importance of the claimant's willingness to cooperate with the board in pursuing the treatment plan, the goal of which was to allow him to return to work, albeit with possible restrictions.
It was argued before us that we should consider whether or not the claimant should have been diagnosed with CPS. That specific issue is among those which have not yet been finally resolved at the board level. As we can only consider matters that have exhausted all stages of consideration and reconsideration by the adjudication division and the Review Office, we cannot decide on that issue in this appeal. We are constrained to the narrow issue of whether or not the claimant cooperated sufficiently in his treatment.
It was also argued that he should not have been placed on the multidisciplinary pain management program. We would normally have latitude in examining such an issue. However, in this case, the program is inextricably tied into the CPS diagnosis. Therefore, it is beyond our scope to consider the appropriateness of the program.
Thus, for the purposes of this appeal, we must accept the diagnosis of CPS. We must accept the appropriateness of the pain management program. It is up to the Panel to determine whether or not the claimant cooperated with the program.
In reviewing the evidence on file, we have come to the conclusion that he did not cooperate to an extent sufficient to accomplish the goals of the program. He argued that he was not involved in the design of the program, nor was he properly informed about it. We note that the claimant met with board staff to discuss the goals and expectations of the proposed course of treatment. Similar meetings occurred at other stages, including at the time of his arrival at the Canmore Pain Clinic.
We note that the claimant stayed at Canmore for only a few days, rather than giving the program a reasonable chance to be of help to him. Prior to going to Canmore, he agreed to participate fully, in the hope that it would help him to deal with his pain. But, as noted by the Canmore program director, he made little effort to do so.
We note Board Policy 44.10.30.60, which states:
- If a worker is engaged in a plan designed to mitigate the effects of physical, vocational, psychological, or personal healthcare factors, and the worker demonstrates a lack of co-operation or effort or misses appointments without sufficient reason, or refuses to cooperate in the development of such a plan, the WCB may temporarily suspend benefits until the worker demonstrates a willingness to participate fully in the program, and if the worker persists, then the WCB may cease rehabilitative interventions and will pay benefits only to the extent, if any, that it deems would have been due to the worker had the worker adequately mitigated the consequences of the accident.
Accordingly, the appeal is dismissed.
Panel Members
T. Sargeant, Presiding OfficerP. Challoner, Commissioner
M. Day, Commissioner
Recording Secretary, B. Miller
T. Sargeant - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 26th day of February, 2002