Decision #54/07 - Type: Workers Compensation

Preamble

This appeal deals with whether the worker has restrictions arising from his workplace injury and whether he is entitled to further wage loss benefits.

The worker was injured on May 25, 1994. His claim was accepted by the Workers Compensation Board (WCB) and benefits were provided at various times since the injury. The worker believes he has physical and psychological restrictions arising from the injury. He also believes that he is entitled to wage loss benefits after December 2, 2005. The WCB and the Review Office found the worker had no restrictions and was not entitled to benefits after December 2, 2005. The worker appealed to the Appeal Commission.

A hearing was held on November 29, 2006 at the request of a union representative, acting on behalf of the worker. The panel discussed the case on November 29, 2006 and after obtaining additional medical information, met again on March 7, 2007 to render its final decision.

Issue

Whether or not the worker requires physical or psychological restrictions in relation to the compensable injury; and

Whether or not the worker is entitled to wage loss benefits after December 2, 2005.

Decision

That the worker does not require physical or psychological restrictions in relation to the compensable injury; and

That the worker is entitled to wage loss benefits to February 24, 2006 inclusive and final.

Decision: Unanimous

Background

On May 25, 1994, the worker incurred a left inguinal hernia condition when he attempted to re-align an axle during the course of his employment as a machinist. Subsequent to the accident, the worker underwent surgery to repair the hernia and eventually returned to his full regular duties. On August 26, 1997, the worker underwent further surgery to repair the hernia and was treated accordingly. File records showed that the worker did not return to his pre-accident status and was treated by a physiatrist and psychologist for symptoms associated with major depression, chronic pain syndrome, heavy use of narcotics, suicidal ideation, dysthymia and damage to the left ilioguinal and genitofemoral nerve. In April 2002, it was determined by the WCB that the worker was able to participate in vocational planning with a view to returning him to employment with the accident employer.

Between October 2003 and February 2005, the worker was involved in a rehabilitation program to increase his physical tolerance and conditioning. In a discharge report dated February 25, 2005, it was noted that the worker’s diagnosis at the time of admission was left groin discomfort, umbilical hernia and physical deconditioning. The worker’s status at the completion of the program was “Improved”. His demonstrated strength ability at the start of the program was “sedentary strength level” and at the end of the program was “Light strength level”. It was then recommended that the worker was fit to return to employment via a gradual return to work (GRTW) program.”

On March 7, 2005, the worker commenced a graduated return to work program with the accident employer in a light duty capacity. The job he was offered involved small valve assembly work in the air brake shop which both the worker and his medical practitioners felt were within his physical abilities and limitations. The program would begin at 4 hours per day and gradually increase to 8 hours per day. Once he reached 8 hours per day, the WCB would end the worker’s benefits.

The worker did not return to work on March 7, 2005 as was planned. He advised his vocational rehabilitation consultant (VRC) that he had been in bed for most of the weekend and was very sick with the prospect of returning to the employment site. After speaking with his treating psychologist and psychiatrist about the graduated return to work plan, the worker attended the work site on March 9, 2005.

Progress reports concerning the worker’s status in the return to work program was documented to the file.

In October 2005, it was determined by the WCB’s healthcare branch and the worker’s healthcare practitioners that the worker no longer required restrictions in relation to his compensable injury and that he could return to full time hours by November 30, 2005.

At a meeting held on November 22, 2005, the worker was advised that his benefits would end on December 2, 2005 and that he was not restricted from returning to work as it related to his compensable injury. This meant that he did not require any physical or psychological restrictions in his return to work. At this time, the worker became emotional as he felt that he could not resume full time work due to his pain, fatigue and anxiety. He was then taken by ambulance to a hospital and was discharged on the same date.

On December 14, 2005, the worker’s treating psychiatrist reported that she saw the worker at her office on November 23, 2005 and expressed the opinion that the worker would not have been safe to work from November 23, 2005. In a further report dated December 20, 2005, the psychiatrist indicated that the worker required ongoing monitoring and support and his mental status was somewhat unstable.

In a report dated February 14, 2006, a psychologist stated, in part, that the worker’s symptoms of anxiety and depression continued to vary in response to work related and disability related stressors/demands and to his subjective perceptions of dissatisfaction and disagreement with the decisions made by the WCB.

On February 15, 2006, the worker appealed the WCB’s decision to remove his restrictions and to discontinue his benefits as of December 2, 2005. The case was then forwarded to Review Office for consideration.

On March 16, 2006, Review Office agreed that the worker did not require physical or psychological restrictions due to his compensable injury and that he was not entitled to wage loss benefits after December 2, 2005. Review Office based its decision on the following factors:

  • the surgeon could not identify any neuroma or specific abnormality to account for the worker’s complaints of pain;
  • the provision of physical restrictions were based on the worker’s perception of disability rather than objective medical evidence;
  • the worker was provided with a 16 month rehabilitation program to prepare him for a return to work. A Functional Capacity Evaluation (FCE) confirmed that the worker was capable of light duty work;
  • the worker was provided with a 4 week rehabilitation program to maintain and increase his physical status during the plant shut down and another FCE confirmed the worker was capable of light to medium level of work;
  • the prolonged graduated return to work plan was more than reasonable in allowing the worker time to increase his hours to full time work;
  • the worker’s treating physicians were in support of the worker resuming work;
  • the worker told his VRC as late as December 2005 that he was willing to resume work, however, only on a part time basis;
  • in February 2006, the psychologist reported that the worker’s mental status remained stable.

Reasons

Worker’s Position

The worker was represented at the hearing by a union representative who made a submission on his behalf. The worker answered questions posed by the panel.

The worker called his partner as a witness. The worker’s partner advised that she has been the worker’s common-law spouse for approximately 13 years. She described the worker’s condition as dysfunctional. She said that the worker is doing better now that he has returned to work. She said his medications are better managed now and that he is working in the morning which is better for him, than the first return to work position which involved afternoon and evening work.

The worker’s representative reviewed the worker’s medical condition commencing with the diagnosis of left inguinal hernia in 1994 and concluding with the worker’s current condition. The representative noted that a WCB medical advisor reviewed the worker’s file and concluded that the worker had reached maximum medical improvement. He advised that the worker’s physiatrist disagreed with this opinion and supported restrictions. He also noted that the worker continues to see his psychiatrist and psychologist on a regular basis.

The worker’s representative confirmed that the worker is seeking wage loss benefits from December 2, 2005 until his return to work in the summer of 2006, and coverage for medications.

The worker’s representative acknowledged that the airbrake job that the worker returned to in 2005 and the forklift job that the worker returned to in 2006 complied with the restrictions which he considered applicable.

The worker advised that he has returned to work but continues to live with pain. He advised that he is working at a different job now. He originally returned to work to a job that involved afternoon work. This was prior to December 2005. He advised that he is seeing his physiatrist in the near future to be reassessed as he feels he has improved since he returned to work.

Regarding restrictions, the worker advised that he can lift 20 pounds and on occasion 25 pounds. He said that he can’t stoop, can’t crawl, and can’t climb a ladder. He also said that excessive walking or other activity tends to cause severe pain. The worker also advised that his pain is continuous and was the same in June 2006 before he returned to his current position as it is in November 2006 after he has been working for several months.

Employer’s Position

The employer was represented by a manager and superintendent. The representatives advised that they were not making a presentation, but would respond to questions and provide clarification if needed. The manager advised that the worker actually returned to work on July 11, 2006 and has been working since, full-time, eight hours per day and has only missed one absent day. He indicated that the worker has been a very good employee since his return to work.

The superintendent explained that the worker was initially provided a job which commenced at 4:00PM because this was considered to be in the worker’s best interest and was agreed to by the parties including the worker’s psychologist. He noted that the worker’s current job commences in the morning.

Analysis

The panel recognizes that the worker has made significant progress in returning to work after approximately seven years away from the workplace. The panel commends the worker for his determination and commitment which has resulted in his successful return to work. At the hearing, the employer’s representatives also acknowledged the worker’s successful return to work. As well, the worker advised that he has received awards from the employer since returning to work.

There were two issues before the panel. The first issue is whether the worker requires physical or psychological restrictions in relation to the compensable injury. For the appeal of this issue to be successful, the panel must find medical support for the imposition of restrictions due to the compensable injury. After considering all the evidence, including the evidence provided at the hearing, the panel is unable to conclude that the worker required restrictions, either physical or psychological, arising from his compensable injury. There is no doubt that the worker feels he is restricted in his activities and works carefully to avoid injury, however; the panel finds that restrictions are not medically warranted in relation to the compensable injury.

The panel notes there was a restriction, arising from the worker’s psychological condition, that the worker should not return to work with the employer. This restriction has been removed and the worker is successfully working for the employer. The panel found no other psychological restrictions. The worker’s representative noted that there was no objective medical evidence of physical restrictions, but that file information suggests the restrictions are perceived.

In making these findings, the panel relies on the opinion of the WCB medical advisor who reviewed the worker’s file in October 2005 and found that the worker does not require physical restrictions due to his compensable injury. The panel notes that the treating physiatrist recommended restrictions, but the panel does not find the restrictions to be directly related to the worker’s workplace injury. The panel also notes that the worker has successfully returned to work without the imposition of restrictions.

The second issue before the panel was whether the worker is entitled to wage loss benefits after December 2, 2005. For the appeal of this issue to be successful, the panel must find that the worker was unable to work after this date due to the compensable injury. The panel finds that the worker was unable to return to work until late February 2006. In November 2005, the worker suffered a significant psychological reaction which created a barrier to his return to work. While the psychological condition, itself, is not due to the accident, the panel finds it is appropriate, as part of the worker’s vocational rehabilitation program, for the WCB to assist with the management of this psychological condition. The worker’s vocational rehabilitation benefits, including wage loss benefits, should be extended until February 2006, at which time the barrier was eliminated. To be clear the panel is not suggesting that the worker’s pre-existing mental condition (affective disorder) is related to the compensable injury.

The panel relies upon the opinion of the treating psychiatrist who noted that the worker experienced a significant psychological reaction relating to his return to work in November 2005. In a medical report dated December 20, 2005, the worker’s treating psychiatrist advises that the worker is unstable. However, after treatments and counseling, the psychiatrist advised in a report dated May 16, 2006 that “By February he was mentally able to return to work…”

This is also confirmed by the worker’s treating psychologist who indicated in a report dated December 21, 2006 that “towards the end of the third week of February, 2006 [the worker] discussed the issue of his readiness to return to work at that time. I concurred with [psychiatrist’s] recommendation that [the worker] was ready from a psychological and mental health perspective to return to work.” The panel notes that the psychologist had a telephone consultation with the worker on February 24, 2006 and finds this to be the appropriate date to discontinue wage loss benefits.

Regarding the worker’s physical ability to return to work, the panel notes that prior to December 2, 2005 the worker had participated in a graduated return to work and work hardening program. The panel notes the report regarding the worker’s participation in a work hardening program dated March 4, 2005 which commented that “Based on clinical presentation and objective test results his demonstrated abilities appear to be congruent with the physical demands of the position that he is to return to at [employer’s facility].”

While the worker had many concerns regarding the return to work, he acknowledged at the hearing that he was ready to return to work on November 23, 2005 and that “…probably could have worked eight hours biting my tongue when I have severe pain.” He also acknowledged that when he returned to work in July 2006, he was able to attend for full eight hour days. The panel finds that the worker was physically able to return to work in December 2005, but as noted above, should receive wage loss benefits to February 24, 2006 in the context of his vocational rehabilitation process.

The worker’s appeal is allowed in part.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 19th day of April, 2007

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