The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

A non-oral file review was held on December 8, 2005, at the worker's request.

Issue

Whether or not an occupational goal of working within NOC 1453 - Customer Service was appropriate; and

Whether or not a deemed post-accident earning capacity of $382.00 per week should have been implemented effective May 28, 2005.

Decision

That an occupational goal of working within NOC 1453 - Customer Service was not appropriate for the period commencing May 28, 2005 to the date of surgery in October, 2005.

That a deemed post-accident earning capacity of $382.00 per week should not have been implemented effective May 28, 2005.

Decision: Unanimous

Background

In July 2002, the worker filed a claim with the Workers Compensation Board (WCB) for a lower back injury that occurred during the course of his employment as a plumber/helper. The initial diagnosis rendered by the treating physician was an acute L5-S1 disc herniation. On July 3, 2002, the worker underwent an L5-S1 discectomy. The WCB accepted the claim for compensation and benefits were paid accordingly.

In February 2004, the WCB determined that the worker had permanent restrictions to avoid strenuous lifting greater than 50 pounds and to avoid bending and working in the same positions for prolonged periods. In the meantime, the WCB's vocational rehabilitation branch was assisting the worker in finding suitable employment that was in keeping with his work restrictions.

In March of 2004, the WCB determined that the worker would be a suitable candidate for the occupational goal of NOC 1453 - Customer Service. In April 2004, an Individualized Written Rehabilitation Plan (IWRP) was developed. On April 19, 2004, the worker signed the IWRP stating that he reviewed the plan and understood it but did not agree with the choice of occupational goal.

On May 13, 2005, a WCB case manager advised the worker that his IWRP would be completed as of May 27, 2005. Effective May 28, 2005, his benefits would be reduced based on his post-accident earning capacity of $382.00 per week within NOC 1453, which entitled him to a weekly benefit rate of $66.56. On June 16, 2005, the worker disagreed with the decision and outlined his position that he was not suited to the customer service position as he was not able to sit or stand for extended periods of time due to his persisting back injury. He stated that there were several medical reports/updates from 2003 onward that also stated he was restricted from sitting or standing for long periods of time and that he required further surgery.

In an August 26, 2005 decision, Review Office determined that the occupational goal of working within NOC 1453 - Customer Service was appropriate and that the deemed post-accident earning capacity of $382.00 per week should have been implemented effective May 28, 2005. Review Office noted that the worker initially chose occupational goal NOC 2253 - Drafting Technician but due to his own decision this was not pursued. The worker was then given the opportunity to select another vocational goal and did not. It was subsequently determined that NOC 1453 - Customer Service was within his capabilities and economically cost effective to pursue. Review Office also considered the worker's claim that his medical condition had worsened and he would be unable to complete any work activities until his pending surgery had taken place. "While the WCB has approved the request for a spinal fusion, a surgery date has not yet been set and may not be for many months. There is no evidence that the worker is incapable of participating in full-time employment activities in NOC 1453. In support of this Review Office notes that he has attended his educational upgrading on a regular basis for an extended period of time and this would support that he was capable of performing employment activities in NOC 1453." In September 2005, the worker appealed Review Office's decision and a non-oral file review was held.

Reasons

According to the evidence the WCB on or about March 1, 2004 selected NOC 1453 - Customer Service as being a suitable occupation for the worker. A month later an IWRP for NOC 1453 was presented to the worker. Although the worker understood the plan, he did not, however, agree with the occupational goal that was selected for him.

After having considered all of the evidence, we find that a deemed post-accident earning capacity of $382.00 per week should not have been implemented effective May 28, 2005 inasmuch as the worker was, on a balance of probabilities, medically limited for what the WCB expected him to perform as part of his rehabilitation plan. In coming to this conclusion, we attached considerable weight to the following body of evidence:

• November 17, 2005 letter from the treating orthopaedic surgeon to the attending physician - "According to my notes, in March this year he couldn't sit for more than half an hour and, therefore, it would have been very difficult for him to continue with an administrative-type work at that time."
• April 26, 2005 letter from the treating orthopaedic surgeon to the WCB - "On my evaluation on April 26 the patient still has severe back pain and indicated this on a VAS score of 7/10. The pain is typically aggravated on standing long periods of time or especially when bending forward. CLINICAL EVALUATION confirms persistent muscle spasm and tenderness in the lumbosacral junction. Specifically, the L4-5 level is very tender. The L5-S1 level is similarly tender. Movement of his back is limited and there is an extension pattern clearly noted. Recommended treatment is to return this patient for surgery. Wide decompression and discectomy should be done at L5-S1 as well as an L4 to S1 fusion due to the mechanical nature of his problem. This will include a pedicle fixation at each level. We, therefore, request permission to continue with this surgery at the earliest possible date." (Emphasis ours)
• May 18, 2005 Doctor's Progress Report - "Pain lower back radiating down right leg."
• May 20, 2005 letter from the WCB to the treating orthopaedic surgeon authorizing the proposed surgery.
• September 15, 2005 letter from the treating orthopaedic surgeon to the attending physician - "Thank you for asking me to see this patient again. As you know he is on the waiting list for L4 to S1 decompression, fusion and fixation. The patient however is progressively becoming worse. His pain is increasing above the tolerance level in spite of taking Tylenol No 3. He indicated his VAS score to be 8/10 most times and has great difficulty in sleeping at night. His walking distance is severely compromised. Clinical evaluation shows the patient who moves about with great difficulty and he is obviously in great discomfort. Movement of his back is limited. There is an obvious atrophy now of his right leg affecting both the thigh as well as lower leg. This is accompanied by mild weakness of his foot especially dorsiflexion. Sensation follows the same pattern with loss of sensation in the L5 dermatome. Nerve tension signs confirm a positive straight leg raise test at 20 degrees on the right side. Femoral stretch test causes back pain. CONCLUSION: This patient therefore needs to be done as an emergent operation. This letter serves as a request to the booking office to change his status to emergent and hopefully this operation will therefore be done soon." (Emphasis ours)

Based on the preponderance of evidence, we find that a deemed post-accident earning capacity of $382.00 per week should not have been implemented effective May 28, 2005.

As to the first issue, it should be noted that the worker underwent surgery in October 2005 and that he is currently recovering from this procedure. Inasmuch as we have determined that the deemed post-accident earning capacity of $382.00 per week commencing on May 28, 2005 should not have been implemented, it necessarily follows based on the preponderance of medical evidence that NOC 1453 Customer Service was not appropriate for the period commencing May 28 through to the surgery date in October 2005. The appropriateness of the NOC 1453 - Customer Service occupational goal subsequent to the surgery date can not be properly determined one way or the other at the present time. This question will best be determined by the WCB following the worker's recovery period and its deciding whether medical restrictions should or should not be imposed.

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 12th day of December, 2005