Decision #37/03 - Type: Workers Compensation

Preamble

A non-oral file review was held on February 6, 2002, at the request of a worker advisor, acting on behalf of the claimant.

Issue

Whether or not the worker should have a deemed earning capacity of $324.00 per week.

Decision

The worker should not have a deemed earning capacity of $324.00 per week. The worker's deemed earning capacity should have been reduced to provincial minimum wage at 40 hours per week.

Decision: Unanimous

Background

The claimant submitted a claim to the Workers Compensation Board (WCB) in 1994 in which he related his leg and back pain to his employment activities of using a jackhammer. The claim was accepted by the WCB and various benefits were issued to the claimant.

Medical reports revealed that the claimant suffered from an L5-S1 disc herniation and that he underwent a decompression laminectomy at the L4-5 and S1 levels. He also had a partial discectomy at the L4-L5 disc levels. In 1997 and early 1998, the claimant was referred to the Canmore Pain Clinic and was diagnosed with chronic pain syndrome. The claimant was issued a 10% permanent partial impairment rating by the WCB and has permanent restrictions to avoid repetitive bending or twisting, no lifting more than 30 lbs. and no prolonged walking, standing or sitting.

In a memo to file dated June 15, 2001, a WCB case manager summarized the case as follows:
"Mr. [the claimant] has been offered rehabilitation services and benefits for a number of years. He opted not to accept relocation to pursue alternate employment. He has been paid 3 years of full wage loss benefits during this time frame. A number of services and benefits have been provided to Mr. [the claimant] to help him participate in his rehabilitation process. He has been unwilling or unable to participate. It is therefore recommended Mr. [claimant's] benefits be reduced based upon the starting wage of a Customer Service Information and Related Clerks - NOC 1453 (less 25% deviation) for the next two years. Effective June 2003, Mr. [the claimant's] benefits will then be reduced further, based upon the starting wage for this occupational group."
In light of the above commentary, it was confirmed to the claimant by letter dated July 11, 2001, that effective June 22, 2001, his benefits would be reduced to reflect an ability to earn $324.00 per week.

On July 17, 2001, a worker advisor appealed the above decision to Review Office. The worker advisor argued that the claimant was not employable as a Customer Service Information and Related Clerks, NOC 1453. He felt that there was sufficient medical evidence (i.e. reports on file dated April 5 and May 25, 2000 and May 28, 2001) for the WCB to continue to provide the claimant with full wage loss benefits.

Prior to considering the appeal, Review Office sought the medical advice of a WCB medical advisor on July 9, 2001. The medical advisor was of the opinion that the claimant could work within his permanent restrictions at full hours.

On November 23, 2001, Review Office determined that the claimant was employable and was capable of earning $324.00 per week. In part, Review Office stated the following:
"The requirements for WCB to demonstrate a deemed earning capacity are outlined in policy 44.80.30.20 Post Accident Earnings - Deemed Earning Capacity. It is the opinion of Review Office that the physical capacity, education, skills, and aptitudes necessary for NOC 1453 have been demonstrated as only marginally matching the results of vocational assessments on file. On this basis, the 25% reduction from the starting wage for NOC 1453 is necessary. Rehabilitation and Compensation Services may review and/or adjust the earning capacity annually. If the claimant disagrees with an adjustment, he can request Review Office to reconsider it at that time."
On November 29, 2001, the worker advisor appealed Review Office's decision of November 23, 2001. On February 6, 2002, a non-oral file review took place at the Appeal Commission.

On February 12, 2002, the claimant was informed that prior to discussing his case further, the Appeal Panel requested that a report be obtained from an orthopaedic specialist and that the claimant be evaluated at the WCB's Pain Management Unit. On May 31st and July 5, 2002, the claimant and worker advisor were provided with copies of various letters, memos, interview notes and medical reports that were obtained from the Pain Management Unit for information purposes and comment.

On July 24, 2002, the Panel met further to discuss the case. The Panel unanimously decided that a Medical Review Panel (MRP) should be convened in accordance with Section 67(3) of The Workers Compensation Act (the Act). The MRP later took place on February 24, 2003 (through separate orthopaedic and psychiatric panels) and the results were forwarded to the claimant, the accident employer and to the worker advisor for comment. On March 19, 2003, the Panel met to render its final decision with respect to the issue under appeal.

Reasons

This case involves a worker who injured his back in a workplace accident in 1994. His claim for compensation was accepted and benefits were paid accordingly.

It was ultimately determined that the worker would be permanently precluded from returning to his former employment as a carpenter, but that he would be capable of performing other work tasks, within assigned restrictions. A target occupation was identified, for which he was provided vocational retraining services. He was enrolled in a computer-training course, which he was unable to complete.

In the community in which he lives and in the surrounding area, there are limited employment opportunities for persons with his restrictions. However, the board found that there are considerable opportunities in larger centres. He refused an offer of assistance with relocation.

Pursuant to board policy, after a three-year transition period, his wage loss benefits were reduced by an amount which he was deemed to be capable of earning if he had moved to a larger centre. It is this deemed amount that is the issue under this appeal.

For his appeal to be successful, the appeal panel would have to determine that he is not capable of earning the amount at which the board deemed his earning capacity. We did make that determination.

In coming to our decision, we conducted a thorough review of the claim file, as well as holding a 'non-oral file review'.

Subsequent to the file review meeting, we referred the claimant for further medical examination, in this case for examination by the Pain Management Unit of the board. The conclusion of this examination, conducted in May 2002, was that the claimant did not meet the diagnostic criteria for Chronic Pain Syndrome.

In response to this finding, the claimant's advocate requested that a Medical Review Panel (MRP) be convened, as this finding was contradictory to that of the worker's family doctor. While this conflict of opinions did not meet the test set out in the Act, we did, nonetheless, refer the claimant to an MRP, for assessment of both his physical and psychological conditions, under Section 67(3) of the Act.

The claimant was examined by two separate MRP's in December 2002.

The MRP which examined his physical condition, was comprised of two orthopaedic specialists, in addition to the chair. Their findings which are relevant to this appeal are:
  • "….the current diagnosis is mechanical back pain, with possible nerve root irritation, with an added unexplained element of chronic back pain."

  • "The complaints of back and leg pain are temporally related to the accident but the Panel cannot determine if they are causally related because there are minimal objective physical abnormalities."

  • "….the claimant is not totally disabled from working at any occupation."

  • "The Panelists …. are unable to assign physical work restrictions at this time. Appropriate and effective treatment of the chronic back pain would be required, followed by a disability assessment."

  • As the Panel was unable to assign restrictions at this time, it could not answer whether or not the claimant is capable of fulltime work within restrictions.
The MRP which examined his psychological condition, comprised of two psychiatrists and the chair, made the following findings which are relevant to this appeal:
  • The claimant "does not suffer from a major mental illness. ….there are emotional and psychological issues, but not of a severity which should prevent a return to gainful employment."

  • "There is a temporal relationship between [the claimant's] psychological condition and his back injury. The present condition appears to be a consequence of earlier failures at rehabilitation."

  • A psychosocial factor which is contributing to the claimant's ongoing physical complaints is that he "has established himself as being totally unemployable in the local job market by reason of his work injury related pain."

  • The claimant "does not suffer from chronic pain syndrome."

  • The Panel also noted that, after the doctors presented the idea to him, the claimant expressed an interest in trying an "epidural implant" in order to control his pain.
From the results of the two MRPs, we concluded that the claimant is not totally disabled from performing some type of work. However, we also note from the MRP reports that, before the exact nature of his work capabilities can be determined, there is need to consider further treatment.

We then turned our attention to the consideration of the amount of income the claimant should be deemed as capable of earning.

We noted that the amount at which he is currently deemed was determined as described in the "Background" section of this decision. At some point in the course of dealing with his claim, it was determined that the claimant could be retrained to work as a "Customer Service, Information and Related Clerk", NOC 1453. The deemed amount is based on typical earnings for such a position (with a 25% reduction in this case.)

Deemed earning capacity is dealt with in Board Policy No. 44.80.30.20, Post Accident Earnings - Deemed Earning Capacity. In reviewing this policy, we noted that there are specific requirements for the board to demonstrate deemed earning capacity. These include:
  1. The WCB must demonstrate (through adequate vocational assessment, plan development, and documentation) that the worker is capable of competitively finding, competing for, obtaining, and keeping employment in the occupation or group of occupations on which the earning capacity is based.

  2. The WCB must demonstrate that the worker has the physical capacity, education, skills, aptitudes, interests, and personal qualities needed to obtain and keep employment in the occupation or group of occupations in the labour market.
In its most recent decision, Review Office found that the claimant's "physical capacity, education, skills and aptitudes" only marginally matched the stated requirements of NOC 1453. Review Office did not comment on his "interests and personal qualities" in this regard.

In our review of the file, we noted that this particular job classification normally requires a high school education. The claimant did not go beyond Grade 8. He did participate, briefly, in a computer-training program, which he was unable to complete due to his physical problems. His skills in this area are very limited. And, it is quite clear that he does not have much, if any, interest in this type of work.

We are of the view that the selection of this classification code was not appropriate. This has resulted in his being assigned an earning capacity that is also inappropriate.

Conclusion:

We cannot ignore the results of the Medical Review Panels, which found that "the claimant is not totally disabled from working at any occupation".

Based on our review of the evidence as set out above, we conclude that - on a balance of probabilities - the claimant is capable of working forty hours a week at a job which pays minimum wage. We, therefore, conclude that his deemed earning capacity be set accordingly.

In our conclusion, we wish to bring to the board's attention, the following findings of the orthopaedic Medical Review Panel:
  • "The Panelists …. are unable to assign physical work restrictions at this time. Appropriate and effective treatment of the chronic back pain would be required, followed by a disability assessment."

  • As the Panel was unable to assign restrictions at this time, it could not answer whether or not the claimant is capable of fulltime work within restrictions.
Furthermore, the psychiatric MRP noted that "the claimant expressed an interest in trying an 'epidural implant' in order to control his pain."

This suggests to us that there may be treatment available that would improve the claimant's back problems, which, in turn, would address many of the other issues in this claim.

The appeal is allowed as set out above.

Panel Members

T. Sargeant, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

T. Sargeant - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 15th day of April, 2003

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