The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on April 8, 1999, at the request of a union representative, acting on behalf of the claimant. The Panel discussed this appeal on April 9, 1999.

Issue

Whether the claimant is entitled to additional wage loss benefits subsequent to April 7, 1998; and

Whether the claimant is entitled to further vocational rehabilitation services at this time.

Decision

That the claimant is not entitled to additional wage loss benefits subsequent to April 7, 1998; and

That the claimant is entitled to further vocational rehabilitation services based on his complete participation and co-operation in an appropriate rehabilitation plan.

Background

On June 25, 1992, the claimant was driving a jigger when one of the wheels fell into a sewer hole which jarred his back. The claim was accepted as a Workers Compensation Board (WCB) responsibility and wage loss benefits commenced in September 1992.

Initial file documentation revealed that the claimant attempted graduated return to work programs performing modified duties honoring his restrictions. These attempts were unsuccessful due to either ongoing back difficulties or problems with fatigue and sleep disturbances. In early 1995, permanent restrictions to avoid lifting over 10 pounds, no overhead lifting, no excessive rotational work in a flexed position and the ability to sit or stand as needed were outlined.

Based on a video tape surveillance of the claimant's activities on August 11, 1997, the WCB considered the claimant was fit to perform sedentary duties for four hours per day. In a letter dated January 21, 1998, the claimant was provided with the following details regarding a graduated return to work program:

"...the job called 'Band Saw - Chalet Ribs' would provide you with the best chance to complete a successful return to work program. The job is done while maintaining neutral posturing of your back and upper arms. It makes no twisting or turning demands and there is no lifting involved. Your employer has indicated that the work station can be altered in order to provide seating accommodation... .

The company has agreed to offer a very graduated return to work program. As you have been off work for so long and you apparently still suffer a sleep disruption pattern, I had concerns about your working with a band saw at this point. In order to accommodate you we have arranged for you to work 1 hour/day for 5 days/week for the first three weeks of the program. You will commence work at 6:30 AM on Monday January 26, 1998. I anticipate that the established work routine should impact favourably on your sleep pattern. Prior to increasing your hours to 2/day we will meet with the management and review your progress.

I anticipate that the work station modifications will be completed prior to your increasing your work hours to 2/day. The addition of the stool for sitting will allow you to change your position as required and will reduce the stress on your back. It will be particularly helpful once your hours have increased significantly."

In a memo to a WCB adjudicator, dated March 20, 1998, a Vocational Rehabilitation Consultant (VRC) documented that the claimant had discontinued working. The claimant stated the job created havoc with his back and according to his physician his back was a mess from spasms and knots. The VRC was reluctant to keep extending benefits as it was determined by the WCB's occupational therapist that the job was well within the claimant's restrictions.

On March 27, 1998, the VRC wrote to the claimant advising that the medical note prepared by the attending physician did not provide medical findings that would change the original decision regarding restrictions and the claimant's ability to work. The claimant was notified that wage replacement benefits would be suspended until he returned to work and resumed the graduated return to work program.

The claimant produced statements from several co-workers regarding the operations of working with a rib saw. The statements were reviewed by the WCB's occupational therapist and it was her opinion the job was within the claimant's capabilities/restrictions. On April 7, 1998, the claimant was advised that his benefits would be reinstated on a partial wage loss basis. On June 3, 1998, a union representative appealed this decision to the Review Office and provided a medical report, dated May 15, 1998, in support.

Further file documentation showed that the claimant underwent a functional capacity assessment on May 14, 1998, and an MRI which was carried out on July 3, 1998.

On August 27, 1998, primary adjudication advised the claimant that the MRI results showed the previously identified disc herniation in 1992 had virtually completely resolved and that there was only minimal posterior disc bulging at the L5-S1 level without evidence of disc herniation, spinal stenosis or nerve root compression. The claimant was considered capable of full hours according to the WCB medical advisor who had reviewed the requirements of the duties and the medical information on file. Primary adjudication therefore determined that the claimant was capable of full time hours at the duties made available by the employer.

Prior to rendering a decision, the Review Office took into consideration a September 14, 1998, newscast videotape in which the claimant was interviewed as well as the comments expressed by a WCB orthopaedic consultant. On November 20, 1998, the Review Office determined the claimant was not entitled to additional wage loss benefits subsequent to April 7, 1998, and that he was not entitled to further vocational rehabilitation services and benefits.

The Review Office accepted the fact that the claimant had chronic pain syndrome. Notwithstanding this, the Review Office considered the degree of disability arising from this was minimal and was not a barrier to his returning to work. The Review Office placed weight on the videotapes and the fact that the claimant maintained other interests such as being involved in union activities for a period subsequent to his injury.

The Review Office noted that the claimant's sleep deprivation was associated with his chronic pain syndrome. The claimant's view however, appeared to be situation dependent. The claimant contended his sleep pattern was not a problem and as such, did not require treatment. Review Office remarked that when attempting to work in early 1997 and 1998 the claimant indicated his lack of sleep was a barrier to doing so, yet he refused pharmacological therapy and a referral to a sleep disorder clinic on the basis that increased sleep increased his back pain.

The Review Office was also of the view that the job which was made available to the claimant in early 1998 was within his physical limitations. It considered the chronic pain syndrome would not prevent the claimant from working. The Review Office recognized the claimant's chances of successfully returning to work would have been enhanced had he participated in the treatment programs which were suggested. His declining same constituted a failure on the part of the claimant to mitigate the consequences of his accident. Section 22 of the Workers Compensation Act (the Act) was quoted in the decision.

Review Office summarized by saying that the claimant was physically and psychologically capable of successfully participating in a graduated return to work in early 1998 which would have recouped his pre-injury level of earnings. Subsection 39(2) of the Act was quoted. On January 13, 1999, the union representative appealed the Review Office's decision and requested an oral hearing.

Reasons

Section 22 of the Workers Compensation Act requires an injured worker to mitigate the consequences of his or her accident. Should the worker fail to meet this obligation, then the WCB may in its discretion reduce the amount of compensation that would otherwise be payable. The claimant was asked to participate in a graduated return to work program arranged by the employer commencing on January 26th, 1998. He returned to work at what was described as sedentary job duties initially for one hour per day. After a while, this was increased to two hours a day. On March 19th the claimant was unable to continue his assigned duties because he found the job to be too hard on his back. He said it came to the point where he couldn't handle it anymore. As a consequence, his benefits were reduced to a partial wage loss basis on or about April 7th, 1998 and eventually discontinued on October 10th. The WCB had reached the conclusion, based on the medical evidence on file, that the claimant was both physically and psychologically capable of successfully participating in the graduated return to work program.

We do not feel that the claimant made a fair and reasonable attempt to participate fully in this graduated return to work program. His effort was greatly hampered by his refusal to accept treatment for a sleep disorder. The claimant testified that he rarely gets more than three hours of sleep in a twenty-four hour period. In regards to the claimant's sleep deprivation problem, we attached considerable weight to certain comments made by a WCB medical advisor contained in a memo to file, dated January 21st, 1998:

"Mr. [the claimant] needs to show a willingness to pursue treatment of sleep disturbance. He has demonstrated a rigid view of this issue in the past and I would need Mr. [the claimant's] commitment (preferably in writing) to follow recommendations before I would pursue any further referrals."

In light of the foregoing reasons, we are not inclined to award additional wage loss benefits subsequent to April 7th, 1998. Therefore, the appeal with respect to this issue is hereby dismissed.

However, we are definitely satisfied the evidence supports the contention that the claimant has not returned to his pre-accident state since the compensable injury. Accordingly, future vocational rehabilitation benefits and services are merited. The reinstatement of benefits and services is conditional upon the claimant's full co-operation with the rehabilitation department as well as his accepting medical treatment. In this regard, we take particular note of the fact that the claimant has in the past declined to acknowledge his major sleep disorder. We feel this negative attitude towards obtaining proper treatment has adversely affected his ability to participate in a graduated return to work program and ultimate recovery. We recommend that rehabilitation benefits and services be provided to the claimant at such time when he contacts the WCB to initiate the formulation of a vocational rehabilitation plan and that said benefits will continue only upon his full co-operation with the WCB.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
R. Frisken, Commissioner

Recording Secretary, B. Miller

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

Signed at Winnipeg this 21st day of May, 1999