The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An appeal panel hearing was held on March 7, 2006, at the request of a worker advisor, acting on behalf of the worker. The panel discussed this appeal following the hearing on March 7, 2006.

Issue

Whether or not as of August 5, 2000, the worker was fit to work full time in employment that respected his permanent compensable restrictions.

Decision

That as of August 5, 2000, the worker was fit to work full time in employment that respected his permanent compensable restrictions.

Decision: Unanimous

Background

On September 30, 1996, the worker fractured his left tibia and both heels as a result of a work-related accident. The Workers Compensation Board (WCB) accepted the claim for compensation and benefits were paid accordingly.

In July 1997, it was determined by the WCB that the worker could return to sedentary work with temporary restrictions to avoid prolonged standing or walking. The pre-accident employer was contacted but they were unable to accommodate the worker in alternate work.

Through the assistance of the WCB's vocational rehabilitation branch, the worker began employment as an assembler which involved assembling hinges at four hours per day. On May 6, 1998, the worker advised his employment specialist (ES) that he encountered no difficulties with his compensable injury from working four hours per day and that he was able to sit and stand as needed. He advised the ES that he felt capable of performing full time hours effective May 4, 1998.

On June 17, 1998, the worker told the ES that he was having pain in his legs from above his knees down to the tip of his toes at night. He noted that he had to stand for about one hour and found this to be very difficult.

Effective September 24, 1998, the worker became a full time paid employee as an assembler and performed a variety of duties ranging from finishing assembly to general assembly work. On October 14, 1998, the file was closed by vocational rehabilitation services.

On March 4, 1999, the WCB was advised that the worker had been laid off from his assembly position and he was then placed on full wage loss benefits. A WCB ES was assigned to assist the worker in finding employment that met his restrictions. It was noted that the worker's skills were not suited for any position that required reading or writing of orders, etc. but he was able to understand verbal instructions.

A memorandum on file dated April 13, 1999, notes the worker expressed concern about his ability to work 40 hours/week every week, as he frequently had flare-ups of pain that prevented him from working for a day or two.

Commencing July 8, 1999, the worker started a work experience with a company to perform a frame assembler position. On August 10, 1999, the worker advised his ES that he worked for 3 days and his back and legs were very sore and that he would be staying home. He told the ES that the job was boring and he did not like the work. The ES advised the worker that she would help him locate other work.

In September 1999, the worker began another work assessment. On October 15, 1999, the ES noted that the worker had been missing a lot of time from work to attend doctor's appointments. She noted that the worker's feet had been bothering him and he was having some trouble with the new duties that had been assigned to him.

On October 1, 1999, the WCB advised the worker that:

"avoidance of the following activities is considered permanent, and related to your compensable injury:

• avoid prolonged standing and walking
• avoid lifting over 20 lbs.
• avoid walking on uneven surfaces
• avoid climbing ladders and stairs"

On October 26, 1999 the worker began a new work experience program with a different company performing the job of an assembler. On November 16, 1999, the ES indicated that the worker told his employer that he was experiencing severe pain in his heels and his knee and that he left work early yesterday and did not show up for work today. On November 19, 1999, the ES indicated that the worker was allowed to wear his running shoes at work for a day or two until his prosthetics and new steel toed work shoes became available.

In a memo dated December 21, 1999, a VRC outlined the discussion she had with the worker concerning his missing time from work. He stated that he was losing days because of pain which had become worse since the time of the accident. He felt he was incapable of working full time hours. The VRC contacted the worker's treating physician. The physician agreed that the worker should try working and that he would not be at any great risk by working. It was outlined that the worker did not appear to have a good understanding of his pain and that he should be educated on the difference between hurt and harm.

In a decision dated January 4, 2000, the ES advised the worker that his vocational rehabilitation plan would be ending on January 29, 2000 and that his wage loss benefits would be reduced by his earning capacity of $314.14 per week which meant that he would be eligible to receive partial wage loss benefits biweekly. The ES noted that the work experiences which the worker had been involved with had all been terminated due to his excessive work absences. The ES advised the worker, "You maintain you are unable to work full time. …adjudication has determined that you are capable of working 40 hours per week within your restrictions. All of the positions have been within your restrictions."

On January 12, 2000, a WCB medical advisor stated that there was an organic basis for the worker's pain and recommended that the worker be referred to a psychologist for a pain management session.

On March 16, 2000, the worker underwent a functional capacity evaluation (FCE).

On March 17, 2000, the treating physician outlined his opinion that the restrictions established by the WCB were appropriate. He felt that the problem was not so much what the worker was able to do as it was for how long he could do it as he reported pain and swelling of the left foot and ankle developing after 2 to 3 hours of standing or walking.

Based on the FCE results, a WCB medical advisor outlined restrictions for the worker on April 13, 2000. He noted that with the restrictions outlined, the worker would be capable of full time work.

The worker's VRC indicated in a memo dated May 15, 2000 that the worker would be provided with additional job search and that he would be reinstated to full wage loss benefits for a three month period.

On May 16, 2000, a WCB employment specialist (ES) informed the worker that arrangements were made for him to commence a work experience program starting May 15, 2000 and ending on June 2, 2000. The job position was that of an Orthotics Grinder. It was felt that this position met the worker's permanent restrictions which included the avoidance of prolonged standing and walking (no greater than 2 2/3 hours in total over an 8 hour day), to avoid heavy lifting over 20 lbs. and to avoid walking on uneven surfaces and climbing stairs and ladders.

In a June 21, 2000 letter, the ES advised the worker that his vocational rehabilitation plan would be ending on August 4, 2000 and that his wage loss benefits would be reduced by his earning capacity of $314.14 per week. It was noted that the worker was working five hours per day at his own request even though the WCB felt he was capable of working 8 hours per day.

In a July 12, 2000 report, an orthopaedic specialist reported that the worker complained of low back pain and that he was unable to sit for prolonged periods of time.

On July 19, 2000, the ES was informed that the work experience employer would not hire the worker for the part time position as the worker was good at what he did but was very slow and was reluctant to learn new job duties.

In a report of July 26, 2000, the worker's family physician said it was the worker's view that he could not work on a full time basis because of pain in his lower limb and chronic back pain, both increasing after a few hours of work. An x-ray report dated May 26, 2000 showed no significant abnormality in the thoracic spine but the lumbosacral spine revealed appearances consistent with L3-4 disc degeneration.

Starting July 31, 2000 the worker began a new work experience as an assembly worker with another company. On August 11, 2000, the worker advised the ES that he had been unable to work more than a few hours per day. He stated he was experiencing problems with his back as a result of his compensable injury.

On August 14, 2000, a WCB medical advisor advised the worker's case manager that he believed the worker's pre-existing degenerative disc disease of his back could be aggravated due to the altered gait after the compensable injury. A course of physiotherapy was recommended for the worker's back and the costs of same were authorized by the WCB.

In a letter dated October 13, 2000, a VRC advised the worker that he would continue to receive partial wage loss benefits based on his earning capacity. The letter stated that it was the WCB's opinion that the worker was capable of working an eight hour day and there was no medical evidence to suggest that his hours should be reduced.

On March 14, 2001, a WCB adjudicator offered the worker four weeks of job search assistance to locate suitable employment and that this would not affect the worker's benefit rate.

In a decision letter dated May 15, 2001, a WCB case manager informed the worker that it was the WCB's position that he could work an eight hour day as long as he remained within his permanent restrictions.

On November 21, 2002, a worker advisor presented argument to Review Office that the worker remained unemployable particularly with respect to full time work because of his restrictions.

In a February 7, 2003 decision, Review Office confirmed that the worker was fit to perform full time employment as of August 5, 2000, with duties that respected his permanent restrictions. Review Office was of the opinion that the permanent restrictions that were on noted on file were respected regarding the placement of the worker with the multitude of employers. Review Office was of the view that the worker continued to be fit for full shifts respecting the permanent compensable restrictions that are presently in place.

In October 2004, the WCB agreed to provide the worker with a further eight weeks of job search services.

On December 13, 2005, a worker advisor appealed the WCB's decision that the worker was fit to perform full time employment as of August 5, 2000. A hearing was then arranged.

Reasons

The issue before the panel was whether as of August 5, 2000, the worker was fit to work full time in employment that respected his compensable restrictions. For the appeal to succeed the panel must find that the worker was not able to work full time in suitable employment. The panel found that the worker was fit for full time suitable employment.

Evidence and Argument at Hearing

The worker attended the hearing with a worker advisor who made a presentation on the worker's behalf. The worker was assisted by an interpreter. He answered questions posed by the panel. The employer did not participate in the appeal.

The worker advisor referred to reports from the worker's treating orthopaedic surgeon in 1998 and 1999 which noted that the worker was working full time but experiencing pain, mostly in left knee and foot.

The worker advisor also referred to reports from the worker's family physician which supported the worker's position that he could not work full time.

The worker advisor noted that the worker has made numerous attempts at finding work where he could work full time, but in each case he has been limited in the number of hours he can sustain work because of pain in his heels and knee.

The worker advisor informed the panel that since November 2004 the worker has been employed at a job working eight hours each day, four consecutive days for a total of 32 hours each week.

The worker confirmed that he is able to work eight hours each day but for only four days. The worker advised that he tried to work five days but found this to be too painful. He advised that he does not work overtime. He described his current job and provided a handwritten "occurrence report" that he prepared at work.

The worker was asked: "So is it the number of days you're working in a week that's the problem, or is it the number of hours in a day that you're working that's the issue for you?" The worker replied with assistance from the interpreter that:

"As I said a few minutes ago, I already said that every day I have pain. But when it's like five days, in the last day, the last two days -- the first two days I still have pain, I have pain every day anyway, but it's a pain I can support. You understand, it's like not really strong pain.

It comes more strong and more and more, depends how many days is working. That's what I'm say, after the four days I feel really tired, pain in my heels and my back because I can't, you know, sit for a long time feel the same problem, it's in the back."

Regarding the job he performed in late 1998 and early 1999, he advised that he had problems working full time at this position.

The worker advised that he has not recently received any treatment for his condition.

The worker is asking the WCB to pay him the difference between 32 hours per week and 40 hours per week for the period from 2000 to 2005.

Analysis

The issue before the panel is whether, as of August 5, 2000, the worker was fit to work full time in employment that respected his permanent compensable restrictions. After considering all the evidence, including the worker's evidence at the hearing, the panel finds, on a balance of probabilities, that the worker was fit to work full time in a job that respected his permanent restrictions.

The worker has maintained that he is not able to work full time. The worker's position appears to have initially been that he could not work eight hours each day. There are numerous examples in the file where the worker left work early and missed work due to pain which he attributed to his workplace injury.

The worker's family physician agreed with the worker's position. In a report dated October 15, 2002, the physician wrote: "I have no doubt that [worker] has difficulty in standing and or sitting for the duration of a normal shift, I also believe that as such he requires frequent breaks and/or changing in positions every so often, and therefore that is not fit for a full 8-hours working shift."

The panel notes there is evidence that after the accident the worker was able to work a full eight hour day for five days per week in the manufacturing position he occupied in late 1998 and early 1999. This is confirmed by information on the claim file.

Unfortunately the worker was laid-off and the plant closed. After this position it appears that the worker did not work full time.

At the hearing the worker advised that he is currently working eight hours each day and has done so since November 2004. The panel places significant weight on this evidence.

In light of the evidence that the worker is currently working eight hours each day and has demonstrated that he worked 40 hours per week after the accident, the panel cannot agree with the worker's position. As well, the panel notes that the family physician's opinion that the worker "… is not fit for a full 8-hours working shift…" is inconsistent with this evidence.

The appeal is denied.

Panel Members

A. Scramstad, Presiding Officer
J. MacKay, Commissioner
W. Leake, Commissioner

Recording Secretary, B. Miller

A. Scramstad - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 2nd day of May, 2006