The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on October 1, 2003, at the request of legal counsel, acting on behalf of the claimant. The Panel discussed the appeal on October 1, 2003.

Issue

Whether or not the claimant's deemed earning capacity of $5.00 per hour on a graduated return to work schedule of 4 hours per day effective December 1, 1992; 6 hours per day effective January 1, 1993 and 8 hours per day effective February 1, 1993 is appropriate.

Decision

That the claimant's deemed earning capacity of $5.00 per hour on a graduated return to work schedule of 4 hours per day effective December 1, 1992; 6 hours per day effective January 1, 1993 and 8 hours per day effective February 1, 1993 was appropriate.

Decision: Unanimous

Background

On September 12, 1996, an Appeal Panel hearing took place at the Appeal Commission to consider the issue as detailed above. For complete details leading up to the hearing, please refer to Decision No. 202/96.

Briefly, the claimant sustained injuries to his right knee, right shoulder and low back on January 14, 1986. As a result of this accident, the claimant was awarded a 1.8% permanent partial impairment award for his right knee condition and has a pre-existing condition, namely Grade II spondylolisthesis at the L5-S1 level. The claimant has permanent compensable back and knee restrictions to avoid heavy lifting, bending, twisting, squatting, walking on uneven ground or ladder climbing. In late 1990, the case was referred to the vocational rehabilitation branch of the Workers Compensation Board (WCB) to assist the claimant with future vocational goals that respected his physical restrictions.

On February 5, 1993, the WCB's Review Office considered an appeal submission by the claimant's solicitor. The solicitor opposed the WCB's decision to pay wage loss benefits to the claimant based on an estimated earning capacity of $6.45 per hour or $258.00 per week. The Review Office ultimately rescinded that decision and ruled that the claimant's estimated earning capacity should be set at $5.00 per hour effective December 1, 1992 with the same consideration for a graduated return to work as noted in the initial decision of November 20, 1992. This decision was upheld by the Appeal Commission under Decision No. 202/96. The Appeal Panel concluded that the evidence did not support the claimant's contention that he was incapable of performing the suggested graduated return to work schedule. The Panel reached its conclusion based on the opinion expressed by the treating orthopaedic surgeon who indicated that the claimant's knee was not bad enough for him not to be able to work for more than four hours per day.

On November 29, 2002, the claimant's solicitor requested reconsideration of Appeal Panel Decision No. 202/96 based on new medical information from an anesthesiologist dated August 28, 2001. Reconsideration was granted by the Chief Appeal Commission on June 20, 2003, and an oral hearing was arranged.

Reasons

This Panel is in agreement with Appeal Panel Decision No. 202/96 on this matter wherein the Panel found that "the evidence does not, on a balance of probabilities, support the claimant's contention that he was incapable of performing the suggested graduated return to work schedule." This decision was based upon, among other things, a review of the claimant's medical file. Emphasis was placed upon the opinion of the claimant's orthopaedic surgeon who on April 30, 1993, was of the opinion that the claimant's knee was not bad enough that it would prevent him from working for more than four hours per day. We are in agreement with this opinion.

We also note that at the above noted appeal hearing, the claimant's evidence was substantially the same as it was at the current appeal hearing. He was working then at his son's Laundromat in the morning for approximately 1 ½ hours, in the afternoon for approximately 1 ½ hours and in the evening for 1 ½ hours. At that time, he had attempted to find no other employment with the exception of one job and he had not attempted to work any longer hours. At the July 4, 1996, hearing his evidence was that he was doing no exercise "because he couldn't".

At the hearing of this matter, the claimant was initially not working any long hours, had not looked for any alternate employment over the years and had certainly not complied with any of the recommendations of the functional assessment prepared October 2, 1995 where the opinion was expressed that the claimant "could probably achieve a higher level of function." This was clarified on August 28, 1996 by the evaluation therapist to mean that the claimant perceived himself to be at full capacity but was capable of further capacity. In describing the claimant as a "conditionally valid participator," the evaluation therapist stated that the claimant was such a person who was "working below [his] physical tolerances but [was] not fully conscious of this fact."

The evidence provided by the claimant at the current hearing does not suggest that anything has changed. The claimant continues to self-limit his abilities and has undershot his potential in terms of job search and the activity that he is performing. He has never attempted to reach his capacity as defined in the functional capacity assessment which was to work up to four hours and then take a break. He has not gone beyond 1 ½ hours at a time due to his own self-limiting behavior.

The claimant relies upon the report of the "attending anesthesiologist" at the Pain Clinic dated August 28, 2001 as being new evidence to suggest that the functional capacity assessment had not been interpreted correctly. With all due respect, this Panel is of the opinion that this report does not add anything new to the claimant's medical and functional history. The claimant's evidence at his hearing has suggested a host of new problems have arisen for him since the compensable injury. In particular, treatment appears to have shifted over the years from his knee to his back. The evidence does not suggest that these new problems are related to the compensable injury or that these problems existed at the time that the functional capacity assessment was prepared. Therefore, the report relied upon as new evidence is not overly helpful in regards to the interpretation of the functional capacity assessment as the medical conditions referred to were not part of the original compensable injury or present at the time that the assessment was prepared. Nothing in the new report contradicts or adds to the report of the claimant's orthopaedic surgeon dated April 30, 1993 which was relied upon by the previous Appeal Panel when making their decision.

This Panel is, therefore, of the view that the claimant's deemed earning capacity of $5.00 per hour on a graduated return to work schedule of 4 hours per day effective December 1, 1992, 6 hours per day effective January 1, 1993 and 8 hours per day effective February 1, 1993 was and continues to be appropriate in relation to the original compensable injury.

Panel Members

K. Dunlop, Q.C., Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

K. Dunlop, Q.C. - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 24th day of November, 2003