Decision #138/07 - Type: Workers Compensation
Preamble
This is an appeal by the worker of Workers Compensation Board (“WCB”) Review Office Order No. 32/2007 holding that it was appropriate to implement a post-accident deemed earning capacity effective December 7, 2006 and that he was not entitled to further vocational rehabilitation services.
The worker appealed to the Appeal Commission and a hearing took place on September 13, 2007. The worker appeared and provided evidence. He was assisted by an advocate. No one appeared on the employer’s behalf.
Issue
Whether or not it was appropriate to implement a post-accident deemed earning capacity effective December 7, 2006; and
Whether or not the worker is entitled to further vocational rehabilitation services.
Decision
That it was not appropriate to implement a post-accident deemed earning capacity effective December 7, 2006; and
That the worker is entitled to further vocational rehabilitation services.
Decision: Unanimous
Background
On March 5, 2002, the worker was removing two springs from a punch press when the ram came down and crushed his left hand. X-rays taken the same day revealed an open fracture/dislocation involving the hand and wrist, with amputation of the thumb and index finger. The worker has had numerous surgeries on his left hand as a result of the compensable injury.
In May 2002, the worker was referred to the WCB’s vocational rehabilitation services branch on an early intervention basis. In a memo dated September 24, 2002, a vocational rehabilitation consultant (VRC) noted that the worker underwent a vocational assessment and it was determined that he had a strong interest in social related work. From an academic standpoint, he was good in math, spelling and reading. He had better verbal skills versus non-verbal skills. In terms of specific occupational goals, working in a logistics capacity was one of the worker’s primary interests. The worker also identified working as a safety officer or providing counselling in a group home atmosphere as an appropriate goal.
In March 2003, the worker was interviewed by a WCB addiction and chronic pain consultant who indicated that the worker required some type of ongoing chronic pain management, possibly with the use of opiate analgesics.
On January 9, 2004, the worker told his VRC that he was interested in moving forward vocationally and was reasonably certain that the type of work he wanted to pursue related to helping the disabled. In a further meeting with the VRC on January 30, 2004, the worker indicated that he reconsidered his position and advised that he was interested in “logistical” type work.
In April 2004, the worker completed the WCB Career Planning Program and reconfirmed with the VRC his desire and interest to pursue the logistical/warehouse manager type occupational direction (per memo dated April 22, 2004.)
On October 12, 2004, a WCB medical advisor determined that the worker’s left hand/arm was basically non functional and he was capable of right handed duties only.
On October 22, 2004, the worker advised the VRC that he had a strong interest in working in the occupational safety and health field (NOC 2263-Inspectors in Public and Environmental Health and Occupational Health and Safety). He felt that the personal experiences with his injury had helped prepare him and given him insight into this type of work. The VRC stated “We will have to approach vocational activity with the understanding that he does not have any practical or measurable use with his injured hand.” The worker also expressed concerns that his back was giving him pain and discomfort which he related to a muscle that was removed from his back during one of his surgeries.
On January 6, 2005, it was determined that NOC 2263 was a reasonable vocational option for the worker. In order to prepare the worker for this occupational goal, the WCB arranged for him to take computer/academic/study skills to complete the program.
In May 2005, it was noted that the worker was experiencing difficulties with issues related to the use of medication, legal and family matters which became barriers to his participating with the computer courses. He was then interviewed at the WCB’s pain management unit on two occasions in May 2005. The PMU determined that the worker was currently experiencing substantial difficulties secondary to a problem with substance abuse and that his substance abuse constituted an extreme impediment to the successful outcome of any vocational rehabilitation program. It recommended that the worker attend a residential treatment program for substance abuse.
On June 17, 2005, the worker’s vocational rehabilitation plan was placed on hold until September 2005 due to the above issues. File information showed that the worker failed to attend the second assessment of an in-patient addictions program. He also refused treatment from the program claiming that his addiction issues stemmed from pain.
In a VRC memo dated August 11, 2005, it was documented that the worker wanted to change his Individualized Written Rehabilitation Plan (IWRP) to Applied Counseling. The VRC stated she was not prepared to change the direction of his IWRP in light of his agreement to participate in the appropriate and suitable one that had been adopted on his behalf.
In October 2005, the VRC documented that the worker completed the Addictions Foundation of Manitoba day program and was attending an aftercare program.
In a memo dated December 17, 2005, the VRC provided her opinion that the vocational plan toward occupational health and safety should not be pursued. She stated the worker “has not been able to commence the original IWRP since April 2005 for reasons unrelated to his compensable injury…The likelihood of success for [the worker] in this proposed VR direction is minimal at best given what has happened to date. In addition, the cost effectiveness of such a plan is no longer viable given the extensive delays and anticipated supports [the worker] will require for the next two to three years of the academic training.” After meeting with an employment specialist on December 5, 2005, it was decided that the worker possessed the necessary skills and abilities to be employable in NOC 6623, Other Elemental Sales Occupations, and that there was a positive labour market in this field.
In a letter dated January 9, 2006, the worker was advised that the WCB was unable to continue to offer him the identified plan or any vocational plan that involved academic training as “There has been no demonstrated potential for success in a plan of this nature, and the significant delays have increased plan costs beyond what was originally anticipated. We also cannot continue to accept responsibility for delays in your vocational training that are due to reasons outside of your claim and compensable injury.” The letter went on to indicate that the worker met the employability requirements in NOC 6623 – Other Elemental Sales Occupations. The worker was advised that he was not restricted to applying for jobs in NOC 6623 and that he could look for work in any occupation providing it was within his restrictions and medical abilities. He was advised that he would be provided with individual service and assistance from an employment specialist throughout the 22 weeks. The plan would conclude in mid July 2006 after which his benefits would be adjusted from the full wage loss amount of $601.00 biweekly based on his ability to earn $290.00 gross wages per week.
In a February 6, 2006 memo, the VRC documented that he met with the worker regarding the vocational rehabilitation plan. The worker stated he did not feel medically fit to work in light of his back pain. The VRC advised the worker that even though he had back pain, he was not totally disabled or incapable of working. As well, NOC 6623 encompasses sedentary occupations that would respect any back limitations.
In correspondence received at the WCB on February 13, 2006, the worker’s treating physician stated the worker developed low back pain on his right side after shoveling snow in January 2006. This was not directly related to his injury in 2002. He further stated, however, that the worker was not able to use his left arm because of muscle graft from his upper back. This placed his right arm and the right side of his body under extra stress which would make him more susceptible to developing low back injuries. With respect to his low back pain, this should not prevent the worker from participating in his IWRP.
On February 15, 2006, the worker indicated that he refused to look at jobs in NOC 6623 as he disagreed with the suitability of this direction.
On March 15, 2006, the treating plastic surgeon indicated that the worker should be able to return to activities using the left upper extremity in eight weeks time.
In a memo dated April 21, 2006, the VRC documented a conversation she had with the worker. The worker indicated his depression was getting worse. For this reason and his recovery from surgery, he indicated he would not be ready to return to work or begin a job search for some time.
On June 14, 2006, the worker met with a WCB employment specialist (ES). He stated he was not interested in the occupational area of NOC 6623 and wanted to work in logistics and warehousing.
On July 4, 2006, the WCB arranged for the worker to commence a work experience program as a customer service/warehouse person. The work experience ended for reasons unrelated to the compensable injury. On July 12, 2006, the worker advised the WCB that he was leaving the province.
On July 13, 2006, the worker was formally advised that the WCB was concluding his vocational plan immediately in accordance with Policy 44.80.30.20 and therefore his benefits would be reduced from $606.18 biweekly to $223.62 biweekly effective July 13, 2006. This decision was later reversed and the worker’s benefits were reinstated up until the VR plan ended on December 6, 2006.
On September 7, 2006, the VRC provided rationale to the file to include NOC 6683, Other Elemental Service Occupations, as an additional occupation in the original IWRP.
In a letter dated November 8, 2006, the plastic surgeon noted that the worker had significant pain in his upper extremity and pain in his extremity from just moving around. He could not sit in one position for extended periods of time for desk jobs. The specialist stated that in his view, the worker should undergo a functional assessment in early March 2006 (sic) or one year from his nerve surgery in February, 2006.
On November 9, 2006, the worker asked the WCB to halt his current and future employment programs as he developed a lump on his injured hand. On November 10, 2006, the worker told his VRC that he was totally disabled, that he had no input into the RTW plan and has difficulties sitting for extended periods. He also voiced concerns over the effects of medication not being factored into his return to work plan.
On December 15, 2006 (memo dated December 19, 2006), the VRC met with the plastic surgeon, WCB case manager, the worker, his lawyer and physician. The worker expressed his view that the VR plan was accelerated too fast and that it was not consistent with the recommendations by his physician. He felt that he should receive full wage loss benefits until after March 2007, at which time a Functional Capacity Evaluation (FCE) would be completed. The worker said he was experiencing back pain because a muscle was removed during surgery, which would impact his employment in the VR directions identified in the IWRP. He also said he felt numbness in his foot where the nerve was removed during surgery. As a result, he had difficulty standing. (The specialist case manager said that the back and foot issues were not an issue in the past when discussing return to work options with the worker). The treating physician, according to the VRC, clarified that the worker’s back pain was not an issue when he took into account all his patients who had similar surgery and that this would not prevent them from going into labour activities or employment. With regard to the foot issues, there may be some pain but based on the patient’s history, this should not cause a person to be unemployable unless they were involved in an occupation that required them to play a sport.
On January 16, 2007, the worker writes “The pain I am experiencing in my back and foot is due to scarring and tightening. This does prevent me from standing or sitting in one spot for any length of time. This will cause pain. The recommendations of the Dr (sic) is to get Therapy (sic) for a couple of months to loosen scar tissues. He also stated that he doesn’t know if this will stop all pain but it will decrease it.”
On January 12, 2007, the worker was examined by a sports medicine specialist regarding his mid and low back pain. In his report of January 13, 2007, the specialist stated the worker had two separate low back pain syndromes. The first one appeared neuropathic in nature related to his previous surgery. The second appeared to be mechanical back pain. “When I assessed him clinically, I found that he was deconditioned and demonstrated a history and physical findings that would make me determine he has recurrent mechanical back pain episodes.”
On January 19, 2007, the VRC wrote the worker and outlined a number of jobs within NOC 6623 and NOC 6683 that were within his compensable restrictions.
On January 10, 2007, Review Office felt it was appropriate to implement a post-accident deemed earning capacity effective December 7, 2006 and that the worker was not entitled to further vocational rehabilitation services. In reaching this determination, Review Office indicated that it considered the issues from the perspective of whether the IWRP took into consideration the worker’s physical capabilities and restrictions and transferable skills, and found these to be consistent with the IWRP developed on the worker’s behalf. Non-compensable barriers and mitigation were noted to be secondary issues, which extended the duration of vocational rehabilitation activity and likely impacted on the final outcome. It did not feel there was information to support that the worker’s compensable back condition caused an impediment to the worker’s participation in vocational rehabilitation activities nor that the non compensable back condition was disabling such that it prevented the worker from participating in the vocational rehabilitation plan. It stated that in May 2006, the worker was performing maintenance and yard work around his church. This information and prior information of him shoveling snow demonstrated that the worker was not disabled to a degree that would prevent him from working and earning at least minimum wage.
Reasons
Evidence:
The worker says the post accident deem was inappropriate as of December 2006 because he feels he could not obtain or sustain employment because of the high dosage of medication he was taking, his back and foot difficulties with sitting or standing for long periods, his extreme sensitivity on anything touching his left hand along with cold and hot temperatures affecting his hand.
The worker also described many aspects of concern regarding his chronic pain and medications that have affected his mental well being, his dignity, and concerns of his limited level of daily functioning. He described how he was missing many appointments regarding his vocational rehabilitation training, job search and medical appointments.
The worker requests that all medical aspects of his claim be reviewed to consider if further restrictions should be implemented. Specifically, he refers to the area of his back where a muscle was removed and to his foot where a nerve was removed. He is of the position that his foot has not stabilized completely from the 2006 surgery for nerve regeneration. The worker asked for follow up from the January 2007 letter from the sports medicine specialist he saw.
The worker requests a full review of the medications he is taking with an assessment as to whether his level of functioning is safe in a work environment. He does not feel he could perform any of the NOC positions the WCB has assigned him on a full time basis. He takes this position based on his physical limitations and high medication doses. The worker is also requesting a reconditioning program and a functional capacity evaluation (FCE) to determine what aspects of work he can safely perform.
This position is supported by a sports medicine physician who saw the worker on January 12, 2007 for mid and low back pain. This physician says, “He has decreased sensation over the region of the previously harvested sural nerve. He also demonstrated poor movement pattern in moving his thoracic and lumbar spines. He generally appears to be deconditioned as well. His impression is that [the worker] presents with two separate low back pain syndromes. The first one appears to be neuropathic in nature related to the previous surgery. The second appears to be mechanical back pain. When I assessed him clinically, I found he was deconditioned and demonstrated a history and physical findings that would make me determine he has recurrent mechanical back pain episodes.” A spinal reconditioning program was recommended. The worker outlined his understanding of this assessment to mean that his back pain is related to scarring and tightening. This is why he has difficulty standing or sitting for any length of time. The purpose of the spinal conditioning would loosen the scar tissue and hopefully decrease the pain.
In reviewing his medications, this same physician recommended a review of his opiod and Tylenol 3 medication along with other medications for pain control. He recommended medications for decreasing the worker’s neuropathic pain.
The worker acknowledges that the only restriction affecting employment that is currently accepted by the WCB is the functional use of his left hand. He is of the opinion he has restrictions in terms of his mobility regarding his low back, right hip, knee and foot. He referenced a meeting held at the WCB regarding his employability on December 15, 2006. He says his doctor supports that a FCE is required and that the WCB should assist with additional resources with job search. He further indicates his doctor acknowledged his foot pain issues and the fact he can only work with one hand.
The worker outlined his attempts at seeking employment including establishing an advocacy program for injured workers. He has submitted numerous applications and reviews opportunities at employment resource centers; however, has not succeeded in obtaining employment within his restrictions and the assigned NOC. In summation, the worker expressed an interest in gainful employment but feels he is limited because of physical and medication issues.
Analysis:
This is a complex case involving a severe injury that has required multiple surgeries including muscle and nerve harvesting from other parts of the worker’s body. It involves a variety of other issues related to the worker’s medication, his pain management and his participation levels.
To accept the worker’s appeal we must find, on a balance of probabilities, that it was not appropriate to implement a post accident deemed earning capacity effective December 7, 2006 and that he should be entitled to further vocational rehabilitation services. Based on the total evidence on file and presented at the hearing, we are able to make those findings.
In reaching our decision, the panel relied on the information and opinions from the treating plastic surgeon and the sports medicine specialist who have most recently seen the worker. The plastic surgeon notes the need for one on one work to assist the worker in gaining employment with the use of only one arm. He has recommended a FCE on several occasions to assist with a return to work. The sports medicine specialist notes the need for spinal conditioning and a medication review with possible prescription changes. The panel also took particular note of file concerns relating to vocational rehabilitation barriers from the WCB pain management unit along with the addictions specialist the worker previously saw.
The panel notes the WCB has determined the worker’s only restriction is to avoid functional use of the non-dominant left hand. The WCB found he was capable of work in occupations that involved one hand and therefore did not require a FCE. The panel disagrees. The panel is not convinced he could sustain full time employment. The panel finds the WCB has not recently considered his pain issues relating to the left arm and any additional restrictions he may have on standing or sitting for an eight hour day. The panel further finds that a FCE would be appropriate following the spinal conditioning and medication review.
In conclusion, the panel finds the worker’s condition was not medically stabilized as of December 2006 and the rendering of a deem was premature at that time.
The panel finds the worker was not capable of full time employment in the NOC classifications as determined by the WCB. The panel further finds that once the worker undergoes the spinal conditioning program and subsequent FCE, it would be appropriate to determine further vocational rehabilitation services.
The worker’s appeal is therefore allowed.
Panel Members
B. Simoneau, CommissionerM. Day, Commissioner
Recording Secretary, B. Kosc
M. Day - Commissioner
Signed at Winnipeg this 15th day of October, 2007