Decision #38/08 - Type: Workers Compensation

Preamble

This appeal deals with the worker’s participation in a vocational rehabilitation program and the Workers Compensation Board’s (“WCB”) decisions to suspend benefits and implement a deemed post accident earning capacity. The worker disagreed with the decisions of the WCB and the Review Office and appealed to the Appeal Commission. A hearing was held on January 29, 2008 at the request of a worker advisor, acting on behalf of the worker.

Issue

Whether or not the worker’s wage loss benefits should have been suspended after June 27, 2005; and

Whether or not a deemed post accident earning capacity of $304.00 per week should have been implemented effective January 9, 2007.

Decision

That the worker’s wage loss benefits should have been suspended after June 27, 2005; and

That a deemed post accident earning capacity of $304.00 per week should have been implemented effective January 9, 2007.

Decision: Unanimous

Background

On March 17, 2004, the worker sustained an extensive crush injury to her right hand with lacerations and multiple fractures from a work related accident. Her hand was treated surgically with K-wire fixations. File records also show that the worker suffered a non-compensable injury to her left shoulder in December 2004 and was treated by an orthopaedic specialist for a muscle tear.

In October 2004, the case was referred to the WCB’s vocational rehabilitation services branch on an early intervention basis. The worker indicated that her hand and wrist still swells and she had no feeling in the last two digits of her right hand. She was now having pain in her right shoulder which began three weeks before. Alternate duty work was discussed and the worker stated she would prefer to do work that was home based. She said she would not be able to return to a position which involved the operation of a machine similar to the one she was injured on. The worker was provided with a transferable skills sheet to fill out which was going to be used to determine a vocational direction for the worker.

In early January 2005, the treating plastic surgeon reported that the worker had significantly limited range of motion (“ROM”) in the PIP joints of all 4 digits of her right hand. Index and long finger PIP ROM was approximately 70 degrees. The worker’s MP had an active ROM of approximately 75 to 80 degrees. The worker had limited ROM of the ring and small fingers. The worker had some instability of the thumb IP joint but this did not appear to affect her function. The surgeon felt the worker had achieved her baseline status.

The worker underwent a Functional Capacity Evaluation (“FCE”) on February 10, 2005. The worker’s participation during the FCE was not a full voluntary effort passing 1 out of 4 validity checks.

On March 3, 2005, the worker wrote a letter to the WCB with regard to the transferable skills sheet that she was asked to complete. The worker outlined her view that finding possible future employment made no sense given her age, physical ability and emotional status.

A memo to file dated March 8, 2005 outlines a conversation that took place between the worker and her WCB case manager. The worker stated, in part, that she felt she was totally disabled and that her right hand was 100% disabled.

On April 14, 2005, the worker was interviewed by the WCB’s Pain Management Unit (“PMU”). The report stated that the worker, by her report, appeared to be suffering from Post-Traumatic Stress Disorder (“PTSD”) associated with the compensable injury. She also met the criteria for Generalized Anxiety Disorder, which was non-compensable as the symptoms were present before the compensable accident. The PMU recommended that the worker be offered psychological treatment for PTSD despite her reluctance to participate in such treatment. The PMU emphasized that PTSD should not preclude the worker from returning to work in another capacity other than her pre-accident position and that there was no other psychological factors that would prevent her return to work other than her strong desire not to.

Between March 2005 and April 2005, video surveillance was taken of the worker’s activities and the video was reviewed by members of the WCB’s healthcare branch. It was concluded from the video evidence that the worker demonstrated more function in her upper extremity than was noted in the FCE examination and that the worker did not meet the diagnostic criteria for chronic pain syndrome as her disability was not proportional in all spheres of function. On June 16, 2005, the WCB case manager advised the worker that she was unable to support ongoing payment of wage loss benefits beyond June 27, 2005 as there was no evidence of functional impairment of her right hand.

On October 21, 2005, a WCB impairment awards medical advisor recommended a 13.0% Permanent Partial Impairment (“PPI”) award based on his physical examination of the worker’s right hand.

On November 24, 2005, the WCB case manager advised the worker that she was unable to rescind the decision made on June 16, 2005. She stated that her impairment award was based on deformity and loss of ROM however there was no evidence of a functional impairment which would preclude her from performing the duties of a machine operator.

On March 16, 2006, legal counsel, representing the worker, filed an appeal regarding the decisions that were made on June 16, 2005 and November 24, 2005. Included with the submission was additional information from the worker’s employer dated December 5, 2005, the treating physiotherapist dated December 6, 2005 and treating plastic surgeon dated February 27, 2006.

In a decision dated June 20, 2006, the WCB case manager advised all parties that no change would be made to her original decisions rendered in June and November 2005. After consulting with the WCB’s health care advisors with respect to the new medical information, she confirmed that the worker was still capable of performing the duties of a machine operator and was able to use her right hand. On July 4, 2006, the worker disagreed with the decision and appealed to Review Office.

On September 8, 2006, Review Office determined that the worker had not recovered from her compensable injury but was not entitled to wage loss benefits beyond June 27, 2005. Review Office outlined its view that the worker had some physical restrictions that precluded her from performing her pre-accident duties but she still had the ability to use her right hand relying on her functioning fingers. This decision was based on its review of the medical information from the treating plastic surgeon, physiotherapist, the PPI examination results and video surveillance evidence.

Review Office also determined that the worker failed to mitigate the effects of her injury by not participating in the vocational rehabilitation process and therefore was not entitled to retroactive wage loss benefits. It felt the worker’s actions resulted in an ongoing loss of earning capacity that could have been eliminated had she fully participated. Should the worker wish to become involved with vocational rehabilitations services, Review Office stated that her benefit entitlement would depend on her demonstrated willingness to fully participate in rehabilitation activities.

The worker’s physical restrictions are to avoid heavy work and to avoid repetitive gripping/grasping and pushing/pulling activities.

On October 10, 2006, the worker advised her VRC that she was not willing to return to her pre-accident employment but was willing to work within the confines of her restrictions to develop a suitable vocational rehabilitation plan. The worker’s wage loss benefits were reinstated effective October 2, 2006 but were suspended for a period of time while the worker was out of the country.

A vocational rehabilitation plan was developed for the worker with the occupational goal of National Occupational Classification (“NOC”) 6623, Other Elemental Sales Occupations. The plan component consisted of a WCB sponsored 13 week course through a private institution in Customer Service (December 7, 2006 to March 2, 2007) and 12 weeks of job search between March 19, 2007 and May 31, 2007. Upon completion of the plan, it was determined that the worker would be capable of earning an entry level salary of $304.00 per week with maximum earnings of $371.00 per week.

The worker attended the course at the institution until December 18, 2006. On December 21, 2006, the worker wrote to the institution to advise that the pain caused by the osteoarthritis in her right hand and inflammation of her left rotator cuff was hindering her ability to proceed.

Given that the worker withdrew from the institution, the worker was advised on January 11, 2007, that the WCB would pay her as if she had completed the plan. Therefore effective January 9, 2007, wage loss benefits would be reduced based on an earning capacity of $304.00 per week. These partial wage loss benefits would continue until there was no longer any wage loss or at the age of 65, whichever came sooner. This decision was also based on the case manager’s opinion that the evidence did not support that the worker was totally disabled.

On February 23, 2007, a worker advisor appealed the WCB’s decisions which determined that the worker was not entitled to wage loss benefits after June 27, 2005 and that the worker’s wage loss benefits should be reduced effective January 9, 2007 on a deemed earning capacity. She also appealed the suitability of the vocational rehabilitation plan established for the worker.

On April 19, 2007, Review Office rendered the following three decisions:

  1. That the worker was not entitled to wage loss benefits after June 27, 2005. Review Office outlined its opinion that the worker showed a lack of effort and refused to cooperate with the WCB during its two attempts to develop a vocational rehabilitation plan and therefore she did not make an effort to mitigate the effects of her injury. This was evidenced by her comments to the case manager, VRC, PMU and her March 2005 letter. It did not accept the worker advisor’s argument that the worker’s decision not to participate in rehabilitation activities was made without being aware of the effect it would have on her entitlement to ongoing benefits.

  1. That the occupational goal of working in NOC 6623 was appropriate. Review Office felt that the worker’s previous volunteer experience and past employment provided her with the necessary transferable skills to successfully obtain employment in this area. It did not feel that the worker’s right hand restrictions prevented her from performing these work activities. Note was also made that the worker expressed the desire to work as a salad preparer which contradicted her contention that she was unable to continue her classes or pursue work. The medical information and video surveillance did not support the worker’s opinion that she was unable to perform work in NOC 6623. It was felt that the worker’s transferable skills and previous experience outweighed any concern regarding her age.

  1. That the post-accident deemed earning capacity of $304.00 per week should be implemented effective January 9, 2007. Review Office felt the worker was aware of her obligation to fully participate in the vocational plan and that her benefits were contingent upon this participation. This was evident in the letters issued by the case manager upon reinstatement of benefits in October 2006 and Review Office’s previous decision. It noted that although the worker did not complete the course, it did not consider this a valid reason to rescind the decision to implement the deem as the worker had the transferable skills and experience to obtain employment in NOC 6623.

In October 2007, the worker advisor appealed Review Office’s decision and an oral hearing was arranged.

Reasons

Applicable legislation and Policy

The Appeal Commission is bound by The Workers Compensation Act (the “Act”) and the policies of the WCB’s Board of Directors. The issues in this case relate to the payment of wage loss benefits. Subsections 4(2), 39(1) and 39(2) of the Act, provide that wage loss benefits are payable where an injury results in a loss of earning capacity and are paid until such a time as the loss of earning capacity ends.

The Board of Directors has enacted policies dealing with the payment of benefits when workers are involved in vocational rehabilitation (“VR”).

WCB Policy 44.80.30.20, Post Accident Earnings – Deemed Earning Capacity, deals with when the earnings a worker is deemed capable of, but not actually earning will be included in the loss of earning capacity calculation and how the deemed earning capacity will be determined for individual cases.

WCB Policy 44.10.30.60, Practices Delaying Worker’s Recovery, deals with circumstances in which a worker fails to mitigate the consequences of an accident.

Worker’s Position

The worker was represented by a worker advisor who made a presentation on behalf of the worker. The worker answered questions posed by her representative and the panel.

The worker’s representative disagreed with the Review Office decision that the worker’s benefits be suspended effective June 27, 2005 because the worker did not cooperate or participate in the VR process. She noted that the WCB ended benefits before medical restrictions were implemented and submitted that the Review Office should not have suspended the worker’s benefits in such a case. She stated that it did not make sense for the Review Office to deny retroactive benefits based on the worker’s alleged lack of participation when it was the WCB which ended benefits before appropriate restrictions were implemented. She submitted that it was not the worker’s lack of participation which prevented the restrictions from being identified and the VR process from moving forward, but rather the need for medical information.

Regarding the suspension of benefits effective June 27, 2005, the worker’s representative noted that the Review Office relied upon WCB Policy 44.80.30.20 in suspending benefits based on a lack of participation. She said this policy is to be applied in conjunction with WCB Policy 44.10.30.60 which provides that the WCB will identify mitigation issues and counsel the worker about the issues. She submitted that the WCB did not at anytime prior to the termination of benefits identify a concern regarding the worker’s lack of participation.

The worker’s representative noted that restrictions were eventually implemented which did not take into account the opinions of her physicians. The worker’s representative submitted that the medical information on file supports that the VR plan involving the elemental sales classification (NOC 6623) was not viable. She stated that the restrictions placed on the worker are inadequate and do not reflect her functional limitations or the medical opinions on the file.

The worker’s representative advised that the worker believes that her potential for success in any VR program is questionable given her age, employment history and ongoing symptoms. She also advised that the worker wants the WCB to accept, full long-term wage loss in view of the severity of her symptoms, combined with her age and limited employment history, and accordingly the worker is seeking retroactive wage loss benefits from June 27, 2005 and full benefits as of January 9, 2007.

The worker advised that she thought she had cooperated and participated with the WCB. She stated that “Until they put me into going to [training facility], I cooperated with them. My time was impossible because, given my age and injury, realistically I thought no employer can hire me at this, you know my age.”

In answer to a question regarding the worker’s medical restrictions, the representative suggested that the worker could not do repetitive work with her right hand and cannot have pressure on her fingers. She suggested that restrictions should include no keyboarding. She also noted that work as a parking lot attendant would not be suitable because of exposure to cold.

When asked whether she would be willing to participate in a VR plan if benefits were reinstated, the worker advised that she is now 65. Her representative confirmed that the worker is seeking wage loss benefits up to retirement age of 65.

Analysis

Issue One:

The first issue to be considered by the panel is whether the worker’s wage loss benefits should have been suspended after June 27, 2005. The worker’s representative submitted that the worker’s benefits should not have been suspended and noted that the worker had no prior notice from the WCB regarding the consequences of a failure to cooperate or participate in the development of a VR plan. At the hearing the worker maintained that she did cooperate with the WCB.

The panel considered all the evidence including the worker’s evidence at the hearing, and finds that the evidence does not support the worker’s assertion that she was cooperating and participating in the development of the VR plan. The panel notes the worker’s position regarding returning to work set out in her letter to the case manager dated March 3, 2005. In this letter the worker states that finding possible future employment makes no sense. She refers to both physical and emotional circumstances and to the fact that she is 61 years old. Along with this letter the worker returned the transferable skill set list without identifying any transferable skills. The panel finds this letter and the return of the transferable skill set list supports a finding that the worker was not cooperating with the WCB in the development of a plan. The panel also notes on numerous occasions the worker raised her age as a barrier to returning to work.

The panel notes that at the FCE and the assessment with PMU that the worker presented as having a significant loss of function of her right hand. The panel finds that the extent of the loss of function reported by the worker on these occasions appears to have been significantly exaggerated as evidenced by the video surveillance. The panel considers this exaggeration of the loss of function signifies a lack of cooperation by the worker.

The panel finds that it was appropriate to suspend the worker’s benefits in accordance with WCB Policy 44.80.30.20.

The worker’s representative stated that the WCB did not provide the worker with notice of the consequences of failing to cooperate or participate. The panel notes that on March 8, 2005, the case manager, in memo to file, indicates that she advised the worker that if she chose to pursue early retirement rather than work, she would be removing herself from her employment and her benefits would end. It is also noted that at her assessment with the PMU, the worker indicated that she would not return to work even if her benefits are discontinued. The panel is satisfied that the worker understood that a failure to cooperate with the WCB could impact her entitlement to benefits.

The worker’s appeal of this issue is declined.

Issue Two:

The second issue to be considered by the panel is whether a deemed post accident earning capacity of $304.00 per week should have been implemented effective January 9, 2007. This issue arose when the worker was given a second opportunity to participate in a VR plan.

With respect to the implementation of a deemed earning capacity, the panel finds this was appropriate and warranted by the circumstances. The panel finds that the worker did not cooperate and participate in the VR plan. The panel notes that when asked to participate in the plan by identifying transferable skills, the worker only identified one skill, sorting paper materials. As well, when asked what type of work she wished to do, she identified salad making which arguably is outside the restrictions on the use of her right hand. The panel also notes that the worker’s attendance at the training program was poor and that she ultimately withdrew herself from the program. The worker stated that she cooperated until she was enrolled in the training program.

While not appealing the selection of NOC 6623 as an occupational goal, the representative submitted that it was not a viable choice for the worker. When asked what specific aspects of this occupation group the worker could not perform, her representative noted computer work. The panel agrees that the worker should not be expected to perform work involving significant use of a keyboard, however is satisfied there are many jobs within the classification that do not require keyboarding. The panel rejects the submission that NOC 6623 was an inappropriate occupational goal, and finds that there was a sufficient labour market for the worker as well as an earning capacity analysis with that NOC to support the establishment of a starting salary of $304.00 per week. The panel further finds, on a balance of probabilities, that the worker would have been medically capable of working full time in NOC 6603 as of January 9, 2007.

The panel finds that a deemed post accident earning capacity of $304.00 per week should have been implemented effective January 9, 2007.

The worker’s appeal of this issue is declined.

Panel Members

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

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 14th day of March, 2008

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