Decision #170/04 - Type: Workers Compensation

Preamble

A non-oral file review was held on March 12, 2004, at the request of a worker advisor, acting on behalf of the claimant. The Panel discussed this case on a number of occasions, the last one being November 17, 2004.

Issue

Whether or not the worker is unemployable; and

Whether or not the worker is entitled to payment of further wage loss benefits.

Decision

That the worker is not unemployable; and

That the worker is not entitled to payment of further wage loss benefits.

Decision: Unanimous

Background

On October 10, 1995, the claimant sustained a right parietal-occipital fracture during the course of his employment as a truck driver. The claim for compensation was accepted by the Workers Compensation Board (WCB) and various types of benefits and services were paid to the claimant.

In February, 1997, following a neuropsychological evaluation, it was determined that the claimant could safely and competently drive a truck for short haul or local work. An external vocational rehabilitation counsellor was assigned to the claimant to assist him with his job search efforts.

On December 4, 1997, the treating physician reported that the claimant continued to exhibit a loss of cognitive efficiency and flexibility representing an organic personality change as a result of his head injury. He stated that the claimant attempted to work and to find work, but he was unable to maintain any jobs due to his injury and that the claimant would never be capable of finding or maintaining employment. The physician noted that the claimant had been receiving chiropractic treatment for his neck and back and that these musculoskeletal problems were likely a result of his accident.

While in receipt of full compensation benefits, the claimant began working as a driver/operator of trucks and heavy machinery without the WCB's knowledge. As a result, the claimant's benefits were suspended effective August 18, 1996.

In July 2003, the claimant contacted the WCB, indicating that he wanted to re-open his claim and was seeking top up benefits. The claimant stated that he had been unable to work in any capacity since 1997.

In a letter dated October 16, 2003, the treating physician advised that the claimant continued to exhibit difficulties from his October 10, 1995 injury which included a short temper, unpredictable behaviors, memory problems and loss of cognitive efficiency and flexibility. He further stated that the claimant was presently unemployed due to his injury and was unlikely to be gainfully employed in the future.

On November 5, 2003, the WCB determined that no responsibility would be accepted for the worker's current complaints. "The basis for this decision is made due to the lack of new objective medical information or testing, which may or may not support an organic cause & effect relationship to your compensable accident of October 10, 1995." On November 21, 2003, a worker advisor, acting on behalf of the claimant, appealed this decision to Review Office.

On December 16, 2003, Review Office determined that the claimant was employable and that he was not entitled to receive payment of further wage loss benefits. This decision was reached after considering the reports received from the treating physician dated December 4, 1997 and October 16, 2003. Review Office also considered neuropsychological testing as well as the credibility of the worker. On January 8, 2004, the worker advisor appealed Review Office's decision and a non-oral file review was convened.

On March 16, 2004, the Appeal Panel requested additional information be obtained prior to discussing the case further. On August 12, 2004, all interested parties were provided with copies of the following information:
  • Examination results by an independent neuropsychologist dated August 3, 2004;

  • Income tax returns for the taxation years 1998 to 2002; and

  • Information from Human Resources Development Canada.
On September 7, 2004, the Panel met to further discuss the case and requested further additional information from the independent neuropsychologist. This information was later received and was forwarded to the interested parties for comment. On November 17, 2004, the Panel met again to discuss the case and to render its final decision.

Reasons

The claimant sustained a significant head injury on October 15, 1995 when he fell off of his truck at work. The fall resulted in what was described as a skull fracture and a subcranial bleed. According to the treating physician the claimant “has recovered from the physical aspects of his injury but has profound chronic cognitive and behavioral changes”. In a letter to the WCB dated October 16, 2003, the treating physician advised as follows:

“He [the claimant] continues to have a short temper, unpredictable behaviors, memory problems and loss of cognitive efficiency and flexibility. He is presently unemployed due to his injury and is unlikely to be gainfully employed in the future.”

After having thoroughly reviewed all of the evidence, we find, on a balance of probabilities, that the claimant is not unemployable. In arriving at this decision, we attached considerable weight to the neuropsychological assessments, which were conducted in 1996, 1997 and 2004. Each of these assessments reached similar conclusions with respect to the claimant’s ability to work and his level of functioning.

In particular, the 1996 and 1997 assessments dealt with his returning to his pre-accident profession of long distance truck driving and in fact allowed him to do so. We note that the claimant did return to his profession at this juncture for a period of time. The neuropsychologist in charge of the most recent assessment (2004) concluded as follows:

  • “Mr. [the claimant] is capable of performing productive work”.
  • “He would be capable of any job that minimizes precise vision and spatial memory”.
  • “He is capable of working a 40 hour week if the physical and cognitive exertions are minimal or if the vocational context is very structured and redundant (i.e., requirements for minute-to-minute cognitive flexibility are minimal)”.
  • “From the perspective of his neuropsychological profile, he can work at sedentary positions”.

Given the 2004 neuropsychology assessment conclusions, we further find that the claimant is, on a balance of probabilities, capable of returning to work as a truck driver and of driving at least short hauls. Therefore, in our view, he does not have a loss of earning capacity. Accordingly, the claimant is not entitled to payment of further wage loss benefits. We note that the claimant has several unrelated and non-compensable difficulties which may impair his earning capacity. Pre-existing factors enumerated by the claimant’s treating physicians that can possibly affect his brain functioning and/or his physical capacity are diabetes, cardiovascular illness, evidence of atherosclerotic changes and the question of alcohol use.

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 8th day of December, 2004

Back