Decision #130/04 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on August 19, 2004, at the claimant's request. The Panel discussed this appeal on the same day.

Issue

Whether or not the claimant is employable in relation to the physical injuries sustained; and

Whether or not the claimant's deemed post accident earning capacity is appropriate in relation to the physical injuries sustained.

Decision

That the claimant is unemployable in relation to the physical injuries sustained; and

That the claimant's current deemed post accident earning capacity is inappropriate in relation to the physical injuries sustained.

Decision: Unanimous

Background

During the course of his employment as a plumber in June of 1986, the claimant was carrying a 60 lb. compressor up a ladder and sustained a compensable injury to his back. The claim was accepted by the Workers Compensation Board (WCB) and benefits were paid up until his return to work. The claimant's back condition eventually deteriorated and his benefits were reinstated based on an Appeal Panel decision dated November 12, 1993 (Decision No. 370/93).

In February 1994, the WCB determined that the claimant had permanent physical restrictions and he was provided with vocational rehabilitation benefits and services. In September 1996, the claimant's vocational rehabilitation benefits were reduced based on an established earning capacity for a Technical Sales Specialist.

In July 2002, the claimant advised the WCB that he wanted to be re-trained as his back condition had worsened and that he was no longer able to continue with his job duties as a construction labourer. Medical information received from the attending physician dated July 12, 2002, suggested that the claimant's back pain and sciatica had been progressive and had limited his employability. The physician felt that the claimant should be assessed by a pain clinic.

In a letter dated July 12, 2002, a WCB case manager advised the claimant that he would not be eligible to receive further vocational rehabilitation services or additional wage loss benefits. The following is an excerpt from that letter:

"Although your doctor has indicated you are unable to work at this time, it is felt that had you participated in the vocational plan as outlined in 1996 and worked within the above noted permanent restrictions, your medical condition would have remained stable such that you would still be earning an income.

You were offered vocational assistance to enable you to become employed in another occupation. As you declined this assistance and continued to work in employment outside of your restrictions, any further difficulties related to your continuation in this work are not a WCB responsibility. It is the opinion of Rehabilitation & Compensation Services you are not eligible for further vocational assistance and entitlements."

Additional medical information revealed that the claimant underwent a CT scan in March 2002 and was assessed by an orthopaedic specialist. In a report dated September 10, 2002, the orthopaedic specialist commented that the CT scan showed significant scar tissue formation at the L4-5 level and some degree of osteoarthritis of the facet joints. The specialist stated that the claimant "…has chronic disability related to his work injury and subsequent surgery. He really shouldn't be asked to be doing any heavy manual labour, and he should be retrained for lighter work."

On October 2, 2002, a worker advisor, acting on behalf of the claimant, disagreed with the WCB's decision of July 12, 2002. On October 16, 2002, primary adjudication confirmed its decision that the claimant was not entitled to receive further vocational assistance or wage loss benefits.

On January 10, 2003, the case was considered by Review Office following receipt of an appeal submission from the worker advisor dated October 21, 2002. Review Office ultimately determined that the claimant was employable and that his deemed post accident earning capacity was appropriate.

Review Office noted that the claimant's doctor had indicated that he was totally disabled on June 24, 2002. In a November 5, 2002 report, the physician stated that the claimant was ready for a rehabilitation program. This was interpreted by Review Office to mean that the claimant was no longer totally disabled. The claimant was therefore entitled to temporary total disability benefits between June 24, 2002 and November 5, 2002.

With respect to the deemed post accident earning capacity, Review Office noted that the physical requirements of a technical sales specialist (wholesale) were within the claimant's restrictions. Review Office noted that the current deem of $9.52 per hour, was not substantially above the British Columbia minimum wage of $8.00 per hour (claimant currently lives in Courtney, British Columbia). The claimant was likely physically capable of working at a similar position paying a wage in that range.

Review Office was further of the opinion that the claimant should be offered another vocational rehabilitation program as it was apparent that the claimant's back condition had deteriorated to the point where he could no longer work at laboring type positions. Review Office suggested that the claimant's restrictions and a permanent partial disability rating should also be reviewed.

On May 8, 2003, the claimant was interviewed at the WCB's Pain Management Unit (PMU) to determine further diagnostic or treatment considerations that may be appropriate. On June 24, 2003, the following decisions were rendered by the WCB:
  • The WCB would not fund a multidisciplinary chronic pain management program;

  • The WCB would assume responsibility for an anti-depressant medication for a six month trial period and then determine ongoing responsibility; and

  • That the reduction in his benefits based on an established earning capacity remained unchanged.
The WCB expressed its view that the occupation of Technical Sales Specialist, Wholesale Trade, was considered sedentary in nature and was well within the claimant's physical capabilities. It noted that the previous Individualized Written Rehabilitation Plan (IWRP) was designed to incorporate training in preparation for this occupation and that the claimant declined to participate. Hence, his benefits were reduced on the basis of the earning capacity for Technical Sales Specialist, Wholesale Trade. The WCB also made reference to the opinion expressed by the claimant's treating physician that the claimant was capable of lighter work and that the Technical Sales Specialist position fell into this category. It therefore concluded that the decision to reduce wage loss benefits based on his estimated earning capacity would remain unchanged.

In a submission to Review Office dated July 7, 2003, the worker advisor outlined his view that the claimant should be provided with full wage loss benefits as well as special additional compensation.

On September 19, 2003, Review Office ultimately confirmed that the claimant was employable and that his deemed post accident earning capacity was appropriate. Review Office also determined that the claimant should not be referred to a chronic pain management program.

Based on the file information, Review Office could not establish that the claimant was unemployable as was being contended by the worker advisor. Review Office suggested that the WCB needed to determine the compensability of any psychological condition that the claimant may have which may affect his entitlement to benefits.

Review Office outlined its position that the claimant did not meet the criteria needed to be referred to a pain management program.

With respect to the worker advisor's request for special additional compensation for the claimant, Review Office considered this request to be premature at this point in time as "…variables which are considered in its calculation are disputed by the claimant". They should be considered in the future.

In May 2004, the worker advisor disagreed with Review Office's decision with regard to the claimant's employability and that his deemed post accident earning capacity was appropriate. On August 19, 2004, an Appeal Panel hearing was held to consider the two issues brought forward by the claimant.

Reasons

As the background notes disclose, the claimant has brought forward two issues on appeal. The first issue deals with the claimant’s employability. With respect to this issue, we find based on the weight of evidence that the claimant is currently totally temporarily disabled and this has been the case since June 24, 2002. There is no medical information on file to support the contention that the claimant had recovered to any degree by November 5, 2002, as was concluded by Review Office in its decision of January 10, 2003. On the contrary, the medical evidence provided by both the attending physician and the treating orthopaedic specialist clearly suggests and points to the claimant’s unemployability at this time. We are satisfied that all of the claimant’s physical difficulties, pain and pharmacological issues continue, on a balance of probabilities, to be causally related to his compensable injury. As to ongoing treatment and prognosis, we endorse the opinion and recommendations proposed by the attending physician in his letter to the WCB dated February 12, 2003.

“At this time, Mr. [the claimant’s] employability is limited by ongoing severe pain. In my opinion, he is currently not employable due to his symptoms. His pain is aggravated by prolonged sitting but also aggravated by activity. He is unable to do any bending and is capable of only light lifting. It is my opinion that with further pain management, Mr. [the claimant] would be able to return to a light duty capacity. It is advised that he avoid activities requiring prolonged sitting, repetitive bending or lifting or (sic) more than 20 pounds.”

In regards to the second issue, the evidence contained on file establishes that the claimant’s deemed post accident earning capacity is inappropriate given that he testified at the hearing of earning $8.50 per hour up until March of 2002, when his pain difficulties prevented him from engaging in further employment. We note in particular the treating physicians still believe that the claimant could perform sedentary positions in the future should his medical condition improve. Notwithstanding, it may be appropriate to review the claimant’s medical restrictions once his condition is treated and/or plateaus in order to determine the appropriateness of the deem at that time.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

R.W. MacNeil - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 1st day of October, 2004

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