Decision #40/02 - Type: Workers Compensation
Preamble
An Appeal Panel hearing was held on January 10, 2002, at the request of legal counsel, acting on behalf of the claimant. The Panel discussed this appeal on January 10, 2002 and again on February 26, 2002.Issue
Whether or not the worker's vocational rehabilitation plan was appropriate; andWhether or not the worker is entitled to wage loss benefits beyond March 6, 1998.
Decision
That the worker's vocational rehabilitation plan was appropriate; andThat the worker is not entitled to wage loss benefits beyond March 6, 1998.
Decision: Unanimous
Background
On May 21, 1996, the claimant sustained a lower back injury during the course of his employment as a labourer. The events leading up to the lower back injury were described by the claimant as follows:- "I was lifting a pail of cement onto my shoulder (approx. 100 lbs.) to carry up a ladder to the plasterers. I felt a sharp pain in my lower back shooting into my left leg. I ignored the pain and continued to work, finishing the day. The next morning the pain was so intense I had difficulty getting out of bed. At this point I notified my employer and sought treatment."
In 1997 the case was referred to the WCB's Rehabilitation Services branch for job search assistance as the claimant was considered fit for modified duties with temporary restrictions.
In a memo to file dated August 14, 1997, a Vocational Rehabilitation Consultant (VRC) noted that he had met with the claimant, who was aware his vocational rehabilitation plan would focus on recapturing his average earnings amount of $168.38 per week. A plan was outlined for the claimant to be referred to job search, interview, resume and career planning workshops. Once a NOC (National Occupational Classification) direction was identified, the claimant would then be referred to employment services for job search assistance.
In a follow-up memo dated December 11, 1997, the VRC noted that the claimant's previous employment had been in the areas of general labour, postal worker, income tax preparation, etc. and that pursuing a job search in these areas would not be feasible in light of labour market information, physical demands and educational requirements. The claimant was also involved in a work assessment at a call center, however the claimant discovered this area of employment was not one that he wished to pursue. It was concluded that NOC 6683, Other Elemental Services Occupations, would be pursued for a job search.
In 1998 a vocational rehabilitation plan was established for the claimant. The vocational option was to return the claimant to different work with a different employer. The vocational goal was for the claimant to enter employment in NOC 6683, Other Elemental Services Occupation. This unit group included car jockey, door attendant, elevator operator, funeral attendant, etc. Under Section D (plan rationale) it was noted that NOC 6683 was an appropriate goal for the claimant to pursue given his pre-accident wage, education level, employment history, together with the labour market information. It also stated that the physical demands associated with most of the occupations in this classification were within the claimant's compensable restrictions. The plan included job search assistance between January 26, 1998 and June 27, 1998. This job search period of 22 weeks would also include a 2-4 week on the job training period.
On January 29, 1998, the claimant met with a WCB employment specialist and his VRC regarding the rehabilitation plan. It was noted that the claimant did not want to pursue the occupational goal of NOC 6683, Other Elemental Service Occupations, and thus refused to sign the plan.
In a letter dated March 6, 1998, the claimant was advised that a WCB medical advisor had reviewed his case. It was the medical advisor's opinion that the claimant's disc protrusion had resolved based on the results of the November 3, 1997 CT myelogram and that the claimant no longer required any workplace limitations in relation to the compensable injury. The claimant was therefore no longer entitled to wage loss benefits beyond March 6, 1998. It was determined that, on a balance of probabilities, the claimant's current symptoms were related to degenerative spinal changes, which had been demonstrated by diagnostic tests noted throughout the claim.
On October 23, 1998, Review Office considered the case following receipt of an appeal from the claimant who appealed the above decision. Review Office determined that the claimant was entitled to further wage loss benefits beyond March 6, 1998, however, he was not eligible to receive these benefits until such time as he agreed to co-operate in the rehabilitation plan. The benefits available to the worker would run for the remainder of the originally proposed plan.
Upon further review of the information on file and discussing the case with a WCB orthopedic consultant, Review Office felt that the claimant had not completely recovered from his injuries by March 6, 1998. An appropriate rehabilitation plan would have been a graduated return to work with the proposed rehabilitation plan being the most viable alternative for the claimant. Review Office indicated that since the plan had already run for approximately half the proposed duration of the written plan, it would endorse the completion of the plan on a prospective basis, provided the claimant cooperated. If this was acceptable, the claimant was then instructed to contact his former VRC for instructions.
On March 7, 2000, the VRC met with the claimant's solicitor. The solicitor presented several occupational interests of the claimant's that he wanted the WCB to consider. These included Network Engineer Professional, MCSE and A+ Certification, Network and Internet Specialist and IT Support Technician. Following a review of the case with two WCB supervisors, the VRC determined that the claimant's proposal would not be considered and that the claimant would only be eligible to receive 16 weeks of services which were left in his original VR plan as outlined in the Review Office decision. This determination was communicated to the claimant in a letter dated March 29, 2000.
Subsequent file records showed that the claimant's solicitor had submitted information about other sources of employment that had not been considered by the WCB when determining the claimant's benefit rate. This information resulted in the claimant's average earnings being increased from $220.00 per week to $288.00 per week. In a memo dated May 2, 2001, a VRC stated that this rate increase did not significantly exceed the minimum wage currently established in the Province and that there was no reason to alter the original vocational goal. The claimant's earning capacity would therefore remain as outlined in the original vocational plan.
In June 2001, the claimant's solicitor presented a vocational rehabilitation proposal for the WCB's consideration. In a subsequent e-mail response, a case manager with rehabilitation and compensation services determined that this proposal would not be feasible.
On July 18, 2001, the claimant's solicitor appealed Review Office's decision dated October 23, 1998. The solicitor contended that the claimant was entitled to retroactive benefits to March 6, 1998 and that the claimant should be offered a rehabilitation plan that reflected his abilities and would provide him with gainful employment. On August 14, 2001, the Registrar at the Appeal Commission referred the case back to Review Office to review the appropriateness of the claimant's rehabilitation plan and to review the appropriateness of the rehabilitation plan using the recalculated average earnings.
In a September 21, 2001 decision, Review Office found that the claimant's 1998 vocational rehabilitation plan was appropriate in view of his re-calculated average earnings. Review Office noted that although the claimant re-established his pre-accident earnings at $288.08 per week, this remained an earning level that still only left the claimant eligible to receive assistance consistent with Option "e" of the vocational hierarchy, i.e. return to different work with a different employer (WCB Policy 43.00). "At his level of pre-accident earnings, there is no entitlement to vocational retraining as it is felt that the worker can be assisted to become eligible for employment that will recover his pre-accident level of earnings without having to resort to any form of retraining."
In addition, Review Office noted that an internal medical opinion had recently been offered on the claim that suggested the claimant had recovered from the effects of his compensable injury. Any future decisions concerning his eligibility for vocational rehabilitation benefits and services should be done with reference to the worker's ongoing medical status. This decision was later appealed by the claimant's solicitor and an Appeal Panel hearing was held on January 10, 2002.
Following the hearing, the Appeal Panel met to discuss the case and requested that additional medical information be obtained from the claimant's neurologist. On February 5, 2002, all interested parties were provided with the medical information obtained from the claimant's neurologist and were asked to provide comment. On February 26, 2002, the Panel met further to discuss the case and took into consideration a submission received from the claimant's solicitor dated February 19, 2002.
Reasons
At the time of his compensable injury, the claimant was employed as a labourer with a plastering company, which position paid him no more than minimum wage. On or about January of 1998, the WCB designed a vocational rehabilitation plan for the claimant. The plan took into consideration the claimant's pre-accident wage, his education level and his employment history in connection with available labour market information and it was determined that NOC 6683-Other Elemental Service Occupations would be an appropriate goal to pursue. The WCB assumed responsibility for providing the claimant with job search assistance for a 22-week period together with the payment of benefits for the duration of the program. The job search period was scheduled to begin January 26th, 1998 and end June 27th, 1998. The claimant refused to sign the plan.Subsequent to the foregoing, the claimant appealed the WCB's decision to terminate his wage loss benefits effective March 6th, 1998. Review Office entertained the claimant's appeal and determined that he was entitled to further wage loss benefits for the remainder of the originally proposed vocational rehabilitation plan. Entitlement to a further 16 weeks of benefits and services would be dependent, however, on the claimant's agreeing to participate in the rehabilitation plan. To date, the claimant has refused to contact the WCB with regard to initiating the plan. As to the current status of the plan, we have noted the following comments recorded in the Review Office's decision of September 21st, 2001: "Review Office is of the view that any future decisions concerning the worker's eligibility for vocational rehabilitation benefits and services should be done with reference to the worker's ongoing medical status."
We have carefully examined the claimant's vocational rehabilitation plan and find that it is more than adequate having regard to the claimant's pre-accident level of earnings, his previous employment experience, his lack of transferable skills and his education. The focus of his plan was to assist the claimant's early and direct entry into the labour market at a level of earnings, which would be consistent with his pre-accident level of earnings. The plan was designed and formulated in accordance with the appropriate provisions of the Act as well as the WCB's policies. In our view, the claimant's vocational rehabilitation plan was appropriate.
As a consequence of his compensable accident, the claimant sustained a low back injury, which was initially diagnosed as a lumbar strain. A CT scan of the lumbar spine conducted on September 17th, 1996 revealed a small central disc protrusion at L4-L5. A little more than two years later on January 18th, 1999 the claimant underwent an MRI of his lumbosacral spine. This procedure revealed the following:
- "At the L4-L5 level, there is severe degenerative narrowing and desiccation of the intervertebral disc. There is no evidence of disc herniation, spinal stenosis or nerve root compression. Mild facet degenerative changes are noted bilaterally. At the L5-S1 level, there is severe degenerative narrowing and desiccation of the intervertebral disc. There is no evidence of disc herniation, spinal stenosis or nerve root compression."
After carefully weighing all of the evidence, we find that the claimant is not entitled to wage loss benefits beyond March 6th, 1998 because he failed to participate in what we have found to be an appropriate vocational rehabilitation plan. Accordingly, the claimant's appeal is hereby dismissed.
As an aside, we note that the claimant has recently experienced a series of non-compensable incidents including: April 2000-twisted his ankle and fell landing on tail bone; August 2000-slipped and fell landing on his back; December 2000-slipped and fell which resulted in his doing the splits.
Panel Members
R. W. MacNeil, Presiding OfficerA. Finkel, Commissioner
M. Day, Commissioner
Recording Secretary, B. Miller
R. W. MacNeil - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 5th day of April, 2002