The Appeal CommissionThe Workers Compensation Act of Manitoba

Issues 1 and 2: Entitlement to Full Wage Loss Benefits from December 30, 2005 to May 1, 2006 and Contingency of Full Wage Loss Benefits on Full Participation in Vocational Rehabilitation

Background

In July 2001 the worker suffered a compensable injury which was diagnosed as bilateral carpal tunnel syndrome (“CTS”). She has since been considered to have permanent restrictions of no repetitive forceful grasping or repetitive forceful finger movements.

The two issues delineated above deal with the worker’s mitigation efforts under section 22 of The Workers Compensation Act (the “Act”), that is, the worker’s efforts to do her best to minimize her loss of earning capacity. The determination of these issues must be made in consideration of the worker’s claim history.

After the worker suffered her compensable injury, she remained on alternate duties until March 2003 at which time the accident employer advised that it could no longer offer them. The worker consequently went off work and was referred for vocational rehabilitation (“VR”) with the aim of re-training for alternate employment.

VR did not go far. In fact, the worker’s VR since 2003 has not proceeded smoothly due to the worker’s persistent allegations of total disability. Despite these allegations, the medical evidence on file does not reveal any verifiable clinical evidence for the worker’s alleged total disability. To the contrary, it reveals that the worker is capable of returning to work with some physical restrictions but that she has put up several barriers against doing so.

By way of example, an April 13, 2004 medical report by a physical medicine & rehabilitation consultant to the WCB indicates that contrary to the worker’s assertions that her condition had deteriorated, her physical presentation had improved. Further, the medical consultant was unable to fully account for the worker’s subjective pain complaints. Though there was some evidence of ongoing median impairment present in the left forearm (which was later confirmed by a nerve conduction study (“NCS”) in April 2004 as mild left and minimal to mild right CTS), there was no evidence of any complex regional pain, no visible evidence of swelling or any difference in sweating and no hypersensitivity to touch.

The physical medicine & rehabilitation consultant referred the worker to the WCB pain management unit (“PMU”) to determine whether there was a psychological component to her subjective pain complaints. This was done in August 2004. The PMU could not account for the worker’s pain complaints; specifically it found that she did not suffer from a chronic pain syndrome. It also found that psychologically there were no overt reasons against her working or participating in VR. Interestingly however, the PMU did find that the worker had put up several barriers to returning to work. These barriers included guarding and bracing, a significant report of pain and disability, passive pain management, no return to work plans, deconditioning and limited transferable skills.

The worker was seen at a pain clinic in September 2004. She was diagnosed with sleep disturbance and myofascial pain and decreased flexibility of her right upper extremity and shoulder girdle. She was told however to increase her medication and undertake a home exercise program with which she was not fully compliant.

The worker was also referred for a Functional Capacity Evaluation (“FCE”) on October 12, 2004 to determine her functional capacity. The worker only passed 2 out of 4 validity checks, indicating a less than full voluntary effort and lack of meaningful test results.

At about this same time, video surveillance taken in July and August 2004 was provided to the WCB. The WCB took the position that the surveillance showed the worker was capable of far greater activity than alleged.

Her file was referred back to VR services in December 2004 but once again her VR did not proceed far due to her continued allegations of physical difficulties and in particular, driving restrictions. The worker’s family physician supported the worker who advised that she was likely permanently disabled. No rationale was provided for this opinion.

In light of the worker’s continuing alleged difficulties, the worker was examined by a WCB medical advisor on August 31, 2005. The WCB medical advisor did not find any physical evidence of muscular atrophy of the hands or sympathomimetic effects on her hands in terms of swelling, undue sweating or hair growth or hypersensitivity. He also noted that there was no clear or consistent dermatomal or anatomical area of loss of sensation or muscle testing. In conclusion he could not find anything to establish any physical restrictions in terms of a barrier to returning to her pre-accident employment.

The WCB medical advisor’s report on his examination was provided to the worker’s family physician for comment. He conceded that there were little clinical findings to explain the worker’s subjective reports of pain and could not explain the worker’s lack of progress.

On October 6, 2005, the WCB case manager advised the worker that her benefits would be terminated effective December 29, 2005.

From that point forward, the worker applied for work with the accident employer as well as several other places of business. She was also provided with four weeks of job search assistance by the WCB which was limited to advice, job leads and related assistance. The worker testified that she applied for jobs but still thought that she would not be physically able to do them. This is consistent with an April 25, 2006 letter the worker sent to the WCB stating that she could no longer drive.

The worker’s ability to return to her regular duties was re-visited by Review Office in its March 29, 2006 decision (Order no. 221/2006). On this occasion the WCB medical advisor who examined the worker in August 2005 explained his findings. He stated that despite an NCS indicating mild CTS, the worker’s presentation was not consistent with CTS. Rather it was consistent with a diagnosis of pain of unknown origin. She nonetheless appeared to have experienced some functional sequelae as a result of her CTS and as such should be permanently restricted from repetitive forceful grasping and repetitive forceful finger movements.

On the basis of this clarification, Review Office reversed the case manager’s decision and determined that that the worker was unfit for her regular duties. It nonetheless found that the worker had failed to mitigate the effects of her compensable injury under section 22 of the Act by failing to fully cooperate with the WCB. It therefore refused to pay the worker retroactive wage loss benefits and ordered that further entitlement to wage loss benefits was contingent on the worker’s demonstrated full and active participation in VR services.

The case was forwarded to initial adjudication to implement Review Office’s decision and on May 2, 2006, the case manager informed the worker that her wage loss benefits would be considered for reinstatement once she met with her VR consultant and a plan for a return to work was agreed upon. On May 8, 2006, the worker advised her VR consultant that she was willing to participate in the vocational rehabilitation plan.

The worker nonetheless asked Review Office to reconsider its denial of wage loss benefits as from December 30, 2005 given her job search efforts and subsequent VR participation. Review

Office (Order no. 620/2006) found that the worker was entitled to full wage loss benefits during her full participation in VR. It found however that between December 30, 2005 and May 1, 2006 (the date VR was re-engaged) the worker had failed to mitigate her damages. In particular, it found that the worker had not previously participated in VR and her efforts at finding work after being notified in October 2005 that her benefits would be terminated were not genuine. Given the worker’s full-time level of participation in her 2006 VR, Review Office determined that at the time her benefits were terminated in December 2005, the worker would have been able to work full-time in the occupation she was training for at minimum wage.

Worker’s Position

The worker says that she should be entitled to full wage loss benefits between December 30, 2005 and May 1, 2006 as she tried to look for work.

Employer’s Position

The employer says that the worker should not be entitled to full wage loss benefits between December 30, 2005 and May 1, 2006 as she did not fully mitigate her losses. Although she did send out some resumes, she was not really prepared to seek employment in any meaningful manner. With respect to the second issue, the employer says that full participation is mandated under the Act.

Analysis

In the case before us, the worker asks us to find that she is entitled to full wage loss benefits between December 30, 2005 and May 1, 2006. She also asks us to find that payment of her full wage loss benefits as of May 2, 2006 should not be contingent upon her full participation in VR. We are unable to grant these requests.

At the time the worker’s benefits were terminated on December 29, 2005, the worker had voluntarily withdrawn herself from VR despite medical opinions that she was able to work full-time with some limited restrictions. This ability to work full-time was demonstrated by the worker during her VR in 2006 as well as later in 2006 when she was employed for a short period of time. The salary paid for the occupation the worker was trained for and worked at in 2006 is consistent with minimum wage.

Though the worker applied for jobs during this period of time, her own evidence is that she did not think that she was physically capable of working. The worker’s attempt at finding a job was not therefore genuine. It was not until her wage loss benefits were terminated and she was subsequently re-offered VR that she made an effort. For these reasons we find that Review Office’s deem as determined by Review Office in Order no. 620/2006 was reasonable.

With respect to the worker’s entitlement to wage loss benefits being contingent upon her full participation in vocational rehabilitation, we find that this requirement is consistent with section 22 of the Act as well as with WCB Policy and in particular WCB Policies 44.10.30.60, 43.00 and 44.80.30.20.

We therefore uphold Review Office’s decision that the worker’s entitlement to full wage loss benefits should have been contingent upon full participation in VR.

Accordingly the worker’s appeal on these two issues is denied.

Issue 3: Entitlement to a Mileage Allowance to Attend Medical Appointments in her Local Community

Background

The worker requested a mileage allowance for travel to see her medical practioners situated in a local community. This request was granted by the WCB until December 2004 when the WCB discovered that the worker travelled less far to see these medical practioners than she had travelled to go to work.

An April 21, 2005 WCB memorandum to file and letter records the worker’s mileage from home to work and from home to these medical practioners’ offices. At the hearing the worker confirmed that it is farther to travel to work than to her doctor’s office.

Worker’s Position

The worker submitted that because of pain in her hands, she is unable to drive to medical appointments. While her daughter used to drive her to appointments she is no longer able to. The worker advised that she has a fear of driving and lost control of her car in the winter on two occasions and that she only goes to her town if she can tolerate the pain by taking Tylenol #3 beforehand. The worker pointed out that she presently has permanent restrictions and also had restrictions placed on her in 2002. The worker asked that she be provided with all the mileage that she never received in 2005.

Employer’s Position

The employer says that WCB Policy is clear that the worker is only entitled to receive mileage for doctor’s visits if the mileage is in excess of costs normally incurred by the worker whiling travelling to and from work. As this is not the case, the worker is not entitled to benefits.

Analysis

WCB Policy 44.120.10, Medical Aid provides that the WCB will reimburse an injury worker’s actual reasonable expenses related to travelling to medical treatment which are in excess of costs normally incurred by the worker while travelling to and from work.

The evidence before this panel is that the distance travelled by the worker to work was greater than that travelled to see her medical practioners in the community. Therefore, on the basis of WCB Policy 44.120.10, the worker is not entitled to mileage to see these medical practioners.

Accordingly, the worker’s appeal on this issue is denied.

Issue 4: Entitlement to an Independent Living Allowance beyond May 2004

In November 2003, the worker asked the WCB to provide her with an independent living allowance (“ILA”) to cover her daughter’s mileage and time related to housekeeping.

Pursuant to that request, a rehabilitation specialist visited the worker’s home to do an assessment. The rehabilitation consultant noted that the worker was independent with her personal grooming but had some difficulty with food preparation and housekeeping. In light of this assessment, the worker was considered to be an ‘injured worker’ under WCB policy 44.120.30 and six months of independent living allowances was granted to her for cleaning services from December 2003 to May 2004.

On March 18, 2004, the WCB advised that worker that her ILA would not be extended beyond May 2004. This decision was upheld by Review Office on June 7, 2003.

Worker’s Position

The worker says that she should continue to receive an ILA as she has difficulty cleaning her house.

Employer’s Position

The employer says that WCB Policy 44.120.30 does not allow for further payment of an ILA as the worker is only considered an ‘injured worker’ under the Policy.