The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

At the request of a union representative acting on behalf of the claimant, an Appeal Panel hearing was held on October 22, 2002. Following its discussion of the matter on October 22, 2002, the panel requested additional information. After receiving this material, the Panel met to make its determination on December 16, 2002.

Issue

Whether or not the worker is entitled to compensation benefits beyond February 9, 2001.

Decision

The worker is not entitled to compensation benefits beyond February 9, 2001.

Decision: Unanimous

Background

The history surrounding this claim dates to August 12, 1997 when the claimant suffered a back injury while moving a large planter. Following an initial diagnosis of mechanical lower back pain and a degenerative lumbar spine, an application was made for compensation benefits.

The claim was accepted by the Workers Compensation Board (WCB) and benefits were paid to the claimant from September 1, 1997 to October 16, 1997. At that time, the WCB determined that the claimant had recovered from the effects of the accident and any residual effects experienced were due to her pre-existing conditions. Subsequently, the Review Office found that the claimant was entitled to payment of wage loss benefits to November 14^th, 1997 and that no benefits were payable beyond that date. On June 3, 1999, this decision was overturned by an Appeal Panel and the claimant's benefits were reinstated. The Appeal Panel agreed the claimant had not recovered from the effects of her compensable injury. It was suggested that the claimant be referred to the WCB's Pain Management Unit (PMU) for further evaluation.

The claimant was assessed by a WCB psychological advisor on August 5 and August 12, 1999. At a subsequent PMU Assessment Conference dated August 17, 1999, it was determined that the diagnosis of chronic pain syndrome (CPS) could not be made because of the presence of a major depression. The claimant did meet the diagnostic criteria for major depression and on a balance of probabilities, it appeared related to the claim. Treatment recommendations were outlined.

On January 6, 2000, the claimant was again assessed at the WCB's PMU after it was determined that her depression was under control. At a PMU Assessment Conference dated January 7, 2000, it was found that the claimant met the diagnostic criteria for CPS and that the physical injury did contribute to the causation of the CPS to a material degree. It was felt that the claimant was an appropriate candidate for a multi-disciplinary pain management treatment program dependent upon the development of an appropriate vocational rehabilitation plan and the claimant's willingness to commit to the plan.

On June 9, 2000 based on the opinion expressed by a WCB medical advisor, primary adjudicator suggested that the claimant did not require any physical workplace restrictions in relation to the compensable accident. It was confirmed that a WCB Vocational Rehabilitation Consultant (VRC) would be contacting the claimant to discuss a treatment plan.

On June 13, 2000, the claimant signed an Individualized Written Rehabilitation Plan with the occupational goal being a General Clerk A. It was anticipated that the claimant would return to full time employment in the Clerk A position by August 14, 2000. In the interim, the claimant was referred to a multi-disciplinary pain management facility for a 6 week treatment program to address her chronic pain syndrome. Reports concerning the claimant's progress in this program are contained in documents dated June 22, 2000, July 5 and 7, 2000 and August 9 and 11, 2000.

In a discharge summary, dated August 11, 2000, it was noted that, at the time of her admission to the program, the Claimant struggled to cope with a great deal of anxiety. The facility observed that the claimant's "greatest gains have been in her ability to recognize the effect that her uncontrolled anxiety has on her life. She has become more aware of her anxiety and has a number of strategies to deal with those (sic)."

In the facility's view:

she realized that she could make a difference in her overall condition and assumed a much greater responsibility for her responses to the problem. Her shift in attitude and expectations contribute to a decrease in her feeling like a victim and an increase in her ability to be more confident and active.

The facility suggested that in her return to work, the claimant should alternate sitting and standing. It also recommended a restriction in terms of activities involving weights greater than 10 pounds. The facility noted that the claimant saw her primary return to work barrier as the drive to work.

As documented in the file, the claimant experienced difficulties in the Clerk A position and missed a number of days. On September 27, 2000, she was offered another position involving light clerical work. The claimant, after discussions with her doctor, did not feel that she would be able to perform these duties and did not report for the position.

On January 5, 2001, the adjudicator reviewed the job description for this position with advisors from the Pain Management Unit. The advisors formed the opinion that the position was appropriate for the claimant. In a Pain Management Conference Report dated February 5, 2001, they noted that "based on the information on file, it is felt that her functional capabilities are within her current job demands."

In a letter by a WCB case manager dated February 6, 2001, the claimant was advised that compensation benefits were ending effective February 9, 2001. The following is an excerpt from that letter:

"You reported for a few hours in mid July and then again in mid August 2000, but were not able to continue as a result of back pain and trouble concentrating to drive to and from work. A different position, one closer to your home, was identified, but you did not think it was physically suitable and, therefore, did not report. You have not been in touch with your employer for many months.In speaking with me, you report being unsure of your capabilities at the best of times and find winter particularly bad. You are not currently capable of driving a car and cannot see yourself working in any capacity.

Having reviewed your file in consultation with doctors from the WCB Pain Management Unit, I find the weight of evidence to indicate that you are, as far as your compensable injury is concerned, capable of working at the type of duties offered and still available."

On November 13, 2001, the claimant's union representative appealed the above decision to Review Office. A rebuttal submission was also received from the employer's representative dated February 26, 2002.

On April 12, 2002, Review Office considered the file evidence along with a submission from the union representative dated March 12, 2002. It was determined that the claimant was not entitled to compensation benefits after February 9, 2001.

Review Office found that the claimant did not mitigate the effects of her injury and there was no longer a loss of earning capacity attributable to the compensable injury. On June 20, 2002, the claimant's union representative appealed Review Office's decision to the Appeal Commission and an oral hearing took place on October 22, 2002. In the course of the appeal, the Panel had the opportunity to consider the entire file including reports prepared in 2001 by a sports medicine and rehabilitation specialist and by a psychiatrist

Following the hearing and discussion of the case, the Appeal Panel requested that additional information be obtained. The Panel asked for a copy of the claimant's application form for Canada Pension Plan Disability benefits and a copy of the Functional Capacity Evaluation (FCA) undergone by the claimant. The report concluded that the claimant had "the ability to safely perform sedentary functional work activities which would safely allow her to handle weight from 0-20 lbs."

On November 29, 2002, all interested parties were provided with the information that was received by the Panel and were asked to provide comments. On December 13, 2002, a submission was received by the employer's representative. No additional submissions were received by the claimant's representative.

On December 16, 2002, the Panel met to make its decision.

Reasons

The Panel finds, on a balance of probabilities, that there is no loss of earning capacity related to the compensable injury. In particular, the Panel is of the view that the claimant was capable of performing the modified duties which were offered to her by her employer on September 27, 2000.

In making this determination, the Panel places particular weight on the summary report from the pain management facility dated August 11, 2000 which found that the claimant was able to return to work subject to certain restrictions and upon the finding of the Pain Management Unit dated February 5, 2001 which concluded that her functional capabilities were within her current job demands. These findings are reinforced by the results of the Functional Capacity Evaluation (FCE) which support the conclusion that the claimant has the capacity to safely perform sedentary functional work activities.

The panel would note that the claimant was enrolled in a multi-disciplinary pain management treatment program in the summer of 2000 which was followed up by what it considers to be an appropriate vocational rehabilitation plan. While the Panel sympathizes with the personal circumstances of the claimant, it is of the view that she did not suffer from a loss of earning capacity related to her compensable injury beyond February 9, 2001.

Panel Members

B. Williams, Presiding Officer
P. Challoner, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

B. Williams - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 5th day of February, 2003