Decision #67/03 - Type: Workers Compensation
Preamble
An Appeal Panel hearing was held on May 26, 2003, at the request of the claimant. The Panel discussed this appeal on May 26, 2003.Issue
Whether or not the claimant is entitled to vocational rehabilitation assistance and benefits.Decision
That the claimant is not entitled to vocational rehabilitation assistance and benefits.Decision: Unanimous
Background
While performing the duties of a butcher on December 11, 1981, the claimant sustained a compensable lower back injury when he slipped on the floor of a cooler and a hog fell onto his lower back. Medical information revealed that the claimant underwent a spinal fusion to the L4-5, L5-S1 vertebrae bilaterally on April 30, 1982 and was assessed a 15% permanent partial disability effective the date of surgery.In April 1983 the claimant returned to work with the accident employer but was released from employment in June 1983 because of personal reasons (according to a letter from the employer dated September 5, 1984). In a letter to the claimant dated October 18, 1984, a Vocational Rehabilitation Counsellor determined that rehabilitation assistance was not warranted as the claimant's current unemployment situation was not a result of his compensable injury but was due to personal reasons.
The claimant incurred a further back injury in August 1990 while working for a different employer. In an adjudicative letter dated July 11, 1991, the claimant was informed that the WCB considered him to have recovered from his August 1990 compensable injury effective April 4, 1991 and that any restrictions imposed were in relation to his 1981 compensable injury.
On September 20, 1991, a Vocational Rehabilitation Consultant (VRC) advised the claimant that rehabilitation services and benefits would not be forthcoming, as there was insufficient evidence to support the position that the claimant terminated his employment with the accident employer for compensable reasons. The VRC noted that it was the claimant's contention that the duties he was assigned by his employer in 1983 were too physically demanding relative to his injury. The VRC pointed out that despite this, there was considerable reference on file indicating that the claimant left his position due to a personality clash and not due to concerns over his back condition. If the claimant's back condition was presenting a significant obstacle to his employment, it would appear impractical for the claimant to move on to a physically demanding position with the second employer (i.e refuse). The VRC stated that as it was considered that the claimant had recovered from the effects of his 1990 claim, that his present status with rehabilitation services must revert to his 1981 claim. He was, however, disqualified from rehabilitation intervention due to non-compensable factors.
In a letter dated August 13, 1992, a union representative provided additional information with respect to the job duties that the claimant had been performing in 1983 (i.e. "hide puller" and "dropping hogs"). The union representative contended that these positions could not be considered light duties for an individual who had had two bilateral lumbar spinal fusions. The union representative stated, "It would appear that the Board was unaware of the duties and the problems related which finally resulted in Mr. [the claimant] terminating his employment in 1983 as a means of escape."
On August 19, 1992, the VRC responded to the union representative's appeal by stating that he was still of the opinion that there was insufficient data to reinstate vocational rehabilitation benefits for the claimant. The case was then forwarded to Review Office for further consideration.
In an October 16, 1992 decision, Review Office was in agreement with the VRC's position that the claimant terminated his employment with the pre-accident employer as a result of a personality clash and not as a result of the compensable accident. Review Office therefore concluded that the claimant was not entitled to rehabilitation services and benefits.
On April 2, 2000, the claimant requested reconsideration of the Review Office's decision of October 16, 1992. In a decision dated September 8, 2000, Review Office determined that the claimant was not entitled to vocational rehabilitation assistance based on the following rationale:
- The claimant maintained, according to Review Office, that he was entitled to vocational rehabilitation assistance as in 1983 the accident employer did not give him work within his capabilities. It was Review Office's opinion that the claimant was capable of returning to his pre-injury work in April 1983 and that the claimant was therefore not entitled to vocational rehabilitation assistance from the WCB.
- Review Office also determined that the claimant would not be entitled to vocational rehabilitation assistance at this point in time as the evidence showed that the second employer had provided the claimant with satisfactory accommodation.
Reasons
This case involves a worker who injured his back in a workplace accident in December 1981, while employed as a butcher in a meat-packing plant. His claim for compensation was accepted and benefits were paid accordingly.A few months later, benefits were terminated as it was determined that he had recovered from the effects of his compensable accident and that any ongoing complaints were related to a pre-existing spondylolisthesis. In April 1982, he underwent surgery for this latter problem, which involved a fusion of his spine from L4 to S1. Initially, responsibility for this surgery was denied by the WCB. The claimant went before a Medical Review Panel, in July 1982, which found that his spondylolisthesis had not been caused or aggravated by his accident.
Subsequently, the Board of Commissioners allowed his appeal, accepting responsibility for the surgery, based on the finding that "the medical evidence does not deny the possibility that there was aggravation of the underlying pre-existing condition…."
This case is somewhat complicated by the fact that, over the past 20-plus years, he has incurred a number of injuries to his back, all but one of which were accepted as compensable injuries.
On a few occasions since 1981, the claimant has sought vocational rehabilitation assistance, arguing that he was never sufficiently recovered to return to work at the job that precipitated his 1981 back injury. Such benefits were denied to him on more than one occasion. This decision was upheld upon reconsideration by the Review Office in September 2000. He has appealed that decision to this Commission.
The issue before this Appeal Panel relates only to whether or not the claimant is entitled to vocational rehabilitation benefits, arising out of the 1981 accident.
For his appeal to be successful, we would have to determine that the effects of his compensable injury were such that he was disabled from returning to his pre-accident employment. More particularly, we would have to find that the reason he left the accident employer in June 1983 was directly related to his compensable injury and to no other reasons. We were not able to make that determination.
In coming to our decision, the panelists conducted a thorough review of the claim file, as well as holding a hearing, at which we heard testimony from the claimant.
Subsection 24(16) of The Workers Compensation Act, in effect at the time of this accident provided, in part:
"The board may provide for any injured workman, 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 workman for another occupation …."Board Policy 43.00, Benefits Administration - Vocational Rehabilitation, states that its goals and objectives include:
"The WCB will help the worker as much as possible to be as employable as she/he was before the accident.Under "Eligibility", the policy states, in part:
….
Vocational rehabilitation strives to return workers to the salary level they were earning before the accident."
"A worker will receive vocational rehabilitation services if, as a result of the compensable accident …. the worker may experience a long-term loss of earning capacity."The policy further notes: "For accidents before January 1, 1992, eligibility is based on 'disability'".
The following factors are relevant to our consideration:
- The claimant returned to work in the packing plant on April 4, 1983.
- It is his position that, if he had returned to his job as a butcher, he would have had no problems doing the job.
- The employer offered him what they considered to be alternative duties. He maintains that these duties were more difficult than his pre-injury, regular duties and were beyond his physical capabilities.
- It is his position that he had no choice but to leave this employment, after the employer refused to transfer him to a job within his capabilities.
- There are numerous references on file, including a letter from the accident employer, to the effect that he left this employment for "personal reasons."
- It is suggested, on more than one occasion in the file, that these reasons arose from a personality clash between the claimant and the company's personnel manager.
- The claimant left this employ on June 13, 1983.
- His treating physician cleared him as fit to return to work in November 1982, albeit at alternative duties. The claimant stated he would work at whatever duties he was given.
- The WCB was satisfied that the duties assigned were appropriate to his abilities.
- There was no medical evidence at the time of his termination supporting that he was physically unable to do the tasks assigned.
- After leaving the accident employer, the claimant was successful in finding work, at a number of places over the ensuing years. Some of these jobs, one of which lasted a number of years, involved relatively heavy work.
- In 1986, in discussion with a board Rehabilitation Officer, the claimant stated that he was very physically fit, that his back was stronger than ever and that he did not feel limited in his physical capabilities. He also noted that his job, at that time, involved heavy lifting and bending.
We found the claimant to be a credible witness, who presented a good argument to support his position that he was not able to perform the duties assigned to him upon his return to work in April 1983. Nonetheless, we were not able to determine that he had been totally disabled from work as a result of his injury.
We also considered another element in respect of the issue before us. That was the possibility that the fusion of his spine, performed by the April 1982 surgery, had become unstable. It was suggested that this might be the cause of more recent back ailments. Had the fusion, in fact, become unstable, this may well have led to a loss of earning capacity. However, an x-ray in January 2002, showed the fusion to be solid. This led a board orthopaedic consultant to conclude that the April 1982 surgery had been "curative for the condition of pre-existing spondylolisthesis with workplace injury enhancement."
To sum up, we have found that there was no total temporary disability in June 1983. Nor, was there any loss of earning capacity in 2002 as a sequela of the 1982 surgery. An inability to work as a result of a workplace injury is an essential prerequisite of a vocational rehabilitation program. As we have found this prerequisite to be missing, the claimant is not entitled to such benefits.
Accordingly, the appeal is dismissed.
Panel Members
T. Sargeant, Presiding OfficerA. Finkel, Commissioner
M. Day, Commissioner
Recording Secretary, B. Miller
T. Sargeant - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 23rd day of June, 2003