Decision #154/06 - Type: Workers Compensation
Preamble
An appeal panel hearing was held on August 22, 2006, at the request of a union representative, acting on behalf of the worker. The panel discussed this appeal following the hearing on August 22, 2006.
Issue
Whether or not the worker was capable of performing work inspecting landscape projects as of March 3, 2003.
Decision
That the worker was not capable of performing work inspecting landscape projects as of March 3, 2003.
Decision: Unanimous
Background
In March of 1991, the worker reported low back and left lower extremity pain after lifting slabs of wood from the back of a truck during the course of his employment as a foreman. The claim was accepted by the Workers Compensation Board (WCB) and various benefits have been paid, and services provided to the worker since the date of the accident.
Over the course of the claim, the worker has been assessed by a number of physicians and specialists and by WCB medical advisors with respect to his back injury. In February 1997 a Medical Review Panel determined that he had sustained an S1 root lesion as a result of his work related accident. The Panel assessed the worker as having functional restrictions after December 1995, namely no repetitive bending, no heavy lifting and no sitting for prolonged periods. In November 25, 1997 the worker was assessed with a 9% permanent partial disability award in recognition of his back impairment.
During the period from 1998 through to 2002 the worker was treated with chiropractic, acupuncture, physiotherapy, TENS and he attended upon a specialist for pain and stress management. While his pain was reduced somewhat he continued to experience significant pain and was prescribed analgesic medication by his family physician. Throughout this period of time the worker was accommodated by his employer and was able to conduct landscape inspections with minimal time lost from work.
In the late fall of 2001 the worker was experiencing increased pain which became so severe that he ceased working in February 2002. In March 2002 the worker attempted a graduated return to work, initially at 3.5 hours per day. By April 2002 the worker was unable to continue due to the pain he was experiencing, however he continued to do some computer work from home throughout the period from April 2002 to January 2003.
In August 2002 the worker was seen by a WCB orthopaedic consultant who indicated that his examination did not identify a pathological diagnosis for the worker’s apparent disabling and extreme symptoms. He concluded that the functional restrictions assessed by the Medical Review Panel in 1997 were no longer directly related to the workplace injury and should be considered preventive in nature. He recommended a referral to the Chronic Pain Unit (CPU) of the WCB.
In November 2002 the worker was assessed by a Medical Advisor with the CPU (“the CPU Medical Advisor”) and was interviewed by members of the CPU. It was the opinion of the CPU that the worker did not meet the diagnostic criteria for Chronic Pain Syndrome. It was recommended that the pharmacologic treatment of his chronic pain be reduced, and that he be referred to a psychologist with expertise in pain management. It was noted that the worker was well motivated to return to optimal functioning and to continue working, and that these interventions should “take place with an appropriate Graduated Return to Work”.
In December 2002 the worker attended upon a neurosurgeon who found that he was continuing to have “some significant left S1 radiculopathy” and recommended that he be considered by the Pain Clinic for an epidural implant.
The worker also met with his case manager in December 2002 to discuss the assessment by the CPU. The worker was eager to return to work and it was agreed that he would gradually increase the amount of work being done at home, decrease his medications and increase his ability to drive on the highway. The case manager consulted with the employer as to increasing the amount of work that could be done from home in order to accommodate a graduated return to work. In a communication with the employer on January 10, 2003 the case manager noted “I am not certain if [the worker] could work 7 hours per day – likely more reasonable to start him around 3 or 4 hours per day, see how he does, and then try to increase his hours”. The employer identified a project that could be completed by the worker at home, and agreed to provide a computer and the required programs and files to accommodate the gradual return to work. In a communication with the employer on January 30, 2003 the case manager confirmed that the worker was “very keen on this work and is very agreeable to doing the work” and that he would “try to do 3-4 hours per day and see how it goes and increase as he can.”
On January 22, 2003 a Functional Capacity Evaluation (FCE) was performed to determine the worker’s capabilities and to identify the need for restrictions prior to his return to work. The worker completed the FCE protocol and there was reported to be a “full voluntary effort passing 4 of 5 validity checks”. While the worker expressed the view during the evaluation process that he would be able to get fit in 3 weeks the Functional Abilities Evaluator advised him that this “was too optimistic and that a slow gradual start on a tailored program for his problems would be much better for him with sustainable long term benefits.” It was noted in the report that the worker was using his TENS machine continuously during the day in 30-45 minute intervals.
In February 2003 the WCB medical advisor determined that based on the FCE the worker was fit to resume his work inspecting landscape projects on a full time regular basis. He concluded that the worker was fit for sedentary work, but confirmed the permanent restrictions of no frequent lifting greater than 10 pounds and occasional lifting up to 20 pounds with no repetitive twisting and bending of the low back. The worker was informed by a letter dated February 23, 2003 that he was fit to return to work effective March 3, 2003, with the above noted restrictions. He was advised that his current medication use should not preclude him from driving to work based on the opinion expressed by the CPU Medical Advisor, and that if he had concerns over his ability to drive, he should consult with his doctor and the Motor Vehicle Branch. It was the expectation of the WCB that for the first two weeks of his return to work, he would be working with the employee who was then in the position, and that by mid March he was to be performing the job on his own.
On February 27, 2003 the worker advised the WCB that he would not be returning to work on March 3, 2003. He stated, “although I was able to perform many of the tasks in the Functional Capacity Evaluation over a period of 1 hour once, I would find it extremely difficult if not impossible to do them on a regular, daily basis. Recovery time after this evaluation was 5 days. After careful consideration and lengthy discussion with [family physician], we both agree that I am not physically ready to return to work.”
On February 26, 2003 the family physician provided a report stating that he was not in favor of the worker returning to full duties without a graduated return to work program. He noted that, “This man has been off work for a very long time and, in my opinion, slowly getting back to the workforce is more appropriate.” He suggested that the worker begin by working four hours per day for a two week period and then be reassessed. On March 5, 2003 the family physician wrote to the employer and stated that the worker was highly motivated and would be pleased to return to his previous employment but pain prevented him from achieving this goal. He noted that the worker was to be assessed for a TENS implant and that he would be “better served by keeping him at home until this implant is in place.”
On June 13, 2003 a report from the Pain Clinic found that the worker had intractable lower back pain. He was reported to have typical radicular pain involving the S1 root which, in the opinion of the Pain Clinic would be amenable to spinal cord stimulation. The insertion of a spinal cord stimulator was attempted on October 21, 2003, but was unsuccessful as the worker complained of severe neuropathic pain involving the dorsum of his left foot.
On April 13, 2004 a WCB orthopaedic consultant reviewed the results of a recent CT scan and stated, “there is no evidence of a clinical condition arising out of the workplace injury of this claim… The latest CT examination does not suggest any deterioration in the imaging findings, and so my previous opinion remains valid.”
In a report dated May 26, 2004 the CPU Medical Advisor noted that he had discussed with the worker the benefits of psychological therapy for the management of chronic pain and that the worker had agreed to attempt a psychological approach. The worker commenced psychological therapy and on October 1, 2004 the consulting and clinical psychologist provided an opinion that the worker was experiencing mild chronic depression in association with his long-standing pain and physical conditions.
On November 2, 2004 a temporary spinal cord stimulator lead was inserted and it provided the worker with “excellent relief”. Consequently a permanent spinal cord stimulator was inserted on March 15, 2005. A report dated May 6, 2005 indicated that the worker was receiving good coverage for his pain.
On June 8, 2005, a union representative appealed the WCB’s decision of February 24, 2003 which stated that the worker was capable of work inspecting landscape projects on a full time basis effective March 3, 2003. Included with his submission was a report from the Pain Clinic dated May 3, 2005 and from the family physician dated May 23, 2005. Both treating physicians were of the opinion that a return to work in March 2003 was inappropriate for the worker and that he was unfit for all duties until the management of his pain was under control.
A WCB medical advisor reviewed the new medical information submitted by the union representative and concluded that “modified duties as outlined February 2003 were reasonable.”
On January 12, 2006, Review Office confirmed that the worker was capable of work inspecting landscape projects as of March 3, 2003. On February 3, 2006, the union representative submitted an Application to Appeal dated February 3, 2006 to the Appeal Commission. On August 22, 2006 an oral hearing was held.
Reasons
The issue before this panel is whether the worker was capable of performing work inspecting landscape projects as of March 3, 2003. The position that was offered to the worker required him to return to work inspecting landscape projects on a full time basis. The panel is satisfied on a balance of probabilities that the worker was not capable of returning to full time work inspecting landscape projects as of March 3, 2003.
In arriving at that conclusion the panel places considerable weight on the results of the FCE, the evidence of the worker before this panel, and the opinions held by his treating physicians.
The job that the worker was asked to return to required him to spend 90% of the day “on the road”. By the worker’s own evidence, more than half of that time would be spent getting in and out of his vehicle and inspecting landscaping projects, some of which might be several kilometers in length. The remainder of the work day would be spent in the office preparing reports, responding to email communications and communicating with his support staff and superiors. The worker advised the panel that when on medication for his pain he would become quite fatigued and drowsy. While he could typically remain on his feet for two to two and one half hours when medicated, the chronic pain he was experiencing would then necessitate him lying down with his feet in a raised resting position.
The FCE conducted in January 2003 recommended that “a slow gradual start on a tailored program for his problems would be much better for him with sustainable long term benefits.” Notwithstanding that recommendation, the WCB Medical Advisor determined that based on the FCE the worker was fit to resume his work inspecting landscape projects on a full time regular basis as of March 3, 2003. Thereafter it appears that the WCB abandoned any notion of a graduated return to work, which had been the goal throughout December 2002 and January 2003, and instead required the worker to return to work full time. That position was, however, inconsistent with not only the FCE, but also the opinions of the worker’s treating physicians.
In February, 2003 the family physician advised the WCB that “This man has been off work for a very long time and, in my opinion, slowly getting back to the workforce is more appropriate.” In March, 2003 the family physician advised the employer that the worker was highly motivated and would be pleased to return to his previous employment, but pain prevented him from achieving this goal.
In a letter dated May 23, 2005 the worker’s physician addressed the issue of whether he had been capable of returning to full time work in March 2003:
“Unfortunately [the worker’s] assessment (FCE) led to 3 days of extreme pain and he was bedridden for that time period. His medications were also an issue for an appropriate return to work plan.
Driving to Winnipeg and navigating the city streets for his employment would compel [the worker] to discontinue his pain medication. That would have ultimately rendered him immobile secondary to pain.
I feel that [the worker] is acting responsibly with his driving and would disagree with WCB’s opinions regarding his work abilities at the time.”
Similarly in a letter dated May 3, 2005, in reference to the worker’s condition on June 12, 2003 the attending anesthesiologist from the Pain Clinic, stated:
“At that time he was having significant pain involving his lower back with a radicular quality. His symptoms were that of continuous sharp, burning pain radiating into the left leg with associated numbness and tingling in the L5-S1 region. Certainly his physical findings at that time were consistent with that of marked limitation in the range of motion of his lumbar spine and severe pain on straight leg raise. At that time [he] gave a history of worsening of his pain with walking, bending, activities and sitting for prolonged periods. . . . I do not feel that [he] would be fit to return [sic] the workplace on a full time basis, even based on the restrictions of sedentary duties, no frequent lifting greater than 10 lb and occasional lifting up to 20 lb, particularly no repetitive twisting and bending of his lower back. With that in mind I would say that there was no consideration for return to work. I would at that point considered (sic) him unfit for all duties until his pain was further managed.”
A WCB Medical Advisor was asked to review the treating physicians’ reports and concluded on July 7, 2005 that the modified duties as outlined on February 24, 2003 were reasonable. However, in arriving at that conclusion, we note that he disregarded some critical information. While he quite correctly noted that the FCE was identified to be a “full voluntary effort”, he did not address the recommendation in the FCE that the worker would benefit from a slow gradual start. While he specifically relied upon the family physician’s comment in his February 26, 2003 report that “I am in favor of [the worker] returning to work . . .”, he neglected to address the concluding remark that “ . . . but I don’t agree with return to full duties without a graduated return to work program.” Finally he found there to be no objective findings in the family physician’s medical reports in February 2003 and subsequently that would support impairment of function precluding a return to work. In fact, those reports consistently speak to the pain being experienced by the worker. They were entirely consistent with the worker’s evidence before this panel that it was not the medications that he was taking or concerns with respect to his ability to drive, that prevented him from returning to work on March 3, 2003, but rather “The pain, the pain has been excruciating, and there has been huge problems with the pain. That was the first and foremost thing, that -- the reason why I did not return to work at that point in time. I was having a lot of difficulty with trying to adjust the medications to find out whether or not the medications were at the -- to be able to stabilize myself with medications. And it was through the pain why I did not return back to work at that point.”
The panel is satisfied on a balance of probabilities that as of March 2003 the worker was continuing to experience a significant amount of pain that precluded him from returning to the work that was being made available to him at that time. The plan that was proposed by the WCB for the worker’s return to work was simply too ambitious, and not consistent with the evidence that was before this panel. Whether the worker’s condition subsequently either improved or deteriorated consequent to the implantation of the TENS unit in 2005 is not before this panel. We are limited to addressing the worker’s condition as of March 3, 2003, and we are satisfied that as of that date the worker was not fit to return to full time work as a landscape inspector. The appeal is therefore allowed.
Panel Members
K. Dangerfield, Presiding OfficerA. Finkel, Commissioner
M. Day, Commissioner
Recording Secretary, B. Kosc
K. Dangerfield - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 17th day of October, 2006