Decision #45/08 - Type: Workers Compensation

Preamble

Since suffering a work related back injury in 1981, the worker was in receipt of benefits from the Workers Compensation Board (“WCB”). He was left with permanent physical restrictions and was unable to return to his previous occupation as a labourer. After providing the worker with vocational rehabilitation assistance, the WCB determined that the worker’s deemed post accident earning capacity was $7.00 per hour for a 40 hour week. The decision was upheld by the WCB’s Review Office. The worker disagreed and filed an appeal with the Appeal Commission and a file review was arranged for February 27, 2008.

Issue

Whether or not the worker’s deemed post accident earning capacity should be $7.00 per hour for a 40 hour week.

Decision

That the worker’s deemed post accident earning capacity should be $7.00 per hour for a 40 hour week.

Decision: Unanimous

Background

In 1981, the worker fell off a ladder at work and sustained injuries to his head, right elbow, right wrist, stomach, right knee and low back. The most serious injury was the trauma to his low back. On March 1, 1982, he underwent spinal surgery which consisted of laminectomies at L4-5 on the right side and a facetectomy and a foraminotomy to decompress the dura nerve root. The claim for compensation was accepted and various types of benefits and services were provided to the worker, including temporary total disability, rehabilitation and Special Additional Compensation (“SAC”) benefits. He was also awarded a Permanent Partial Disability (“PPD”) award in recognition of his permanent back restrictions.

Vocational Rehabilitation History

As the worker’s back condition prevented him from returning to his pre-accident employment, the worker engaged in a vocational rehabilitation plan with the goal of establishing him as a locksmith. During the period October, 1986 to July, 1988, the worker received locksmith training and work experience with the support of the WCB. After completion of the expected period of training, the worker was unsuccessful in securing long term employment in this field. The worker’s benefits were nevertheless reduced to reflect a deemed earning capacity of approximately $12.00 per hour effective July 1, 1989. This decision was overturned by an Appeal Panel in 1993 who remitted the matter back to the WCB to recalculate the level of the deem. In a WCB letter dated March 11, 1994, the worker was advised that his deemed earning capacity was being decreased from $12.00 per hour to $7.00 per hour retroactive to July 11, 1989.

Subsequent file information revealed that in 1995, the worker wanted to pursue a self employment venture in the locksmithing industry. After reviewing the business proposal, the WCB declined to become involved in the venture. In a decision dated October 13, 1995, Review Office re-examined the deemed post-accident earning capacity and confirmed that the worker’s earning capacity of $7.00 per hour was appropriate.

Medical History

Throughout the period of the claim, the worker has continued to complain of pain of varying degrees. In a report dated December 10, 1982, the worker’s treating physician opined that the worker had developed chronic back syndrome. Work restrictions of: “sedentary work, not regularly bending, stooping and lifting weight of more than 25 pounds” were recommended.

In a report dated April 26, 1983, an occupational therapist confirmed that the worker would have to seek relatively light employment and suggested restrictions of only occasional lifting not exceeding 25 lbs., and a job situation which would allow opportunity to sit or stand alternatively, working preferably at bench height, and avoiding twisting or excessive crouching.

In July, 1983 and again in December, 1983, the worker was assessed by a WCB rehabilitation psychologist. The December 14, 1983 report expresses concerns that: “While it is possible there is a component of mechanical back pain, the lifestyle issues associated with chronic low back pain syndrome appear to contribute to (the worker’s) lowered levels of functional ability.” Referral to the WCB chronic pain behavior program was recommended.

In March 1984, the worker was assessed by the chronic pain behavior program and the March 16, 1984 report states: “My impression is that this patient has resolving mechanical or facet pain related to degenerative disc disease at an L4-L5 level…I feel that if his chronic pain behavior remains controlled, as it presently now is, the patient should be able to return to employment provided the above mentioned restrictions are applied.”

In June, 1984, the worker’s PPD was determined to be a residual impairment of 10% of total.

The worker attempted to return to light employment in January, 1986. He claimed increased low back and right leg pain and on March 12, 1986, he discontinued this work.

On March 20, 1986, the worker was assessed by a WCB physician, who opined:

“There is nothing serious nor irretrievably wrong with (the worker’s) physical status. However, he is approximately 20 pounds overweight and is physically unfit. He regards himself as partially and permanent disabled stating “I’ll never get back to my former work.” It is, in my opinion, this mental attitude which is largely responsible for his continuing symptoms and disability. His backache is located in paravertebral muscles which are weak and, after use, easily fatigued. Subsequently they ache; the discomfort is then magnified and bizarre symptoms are super-added, as a result of emotional and psychological factors.”

The WCB physician recommended a six week supervised program of exercise, following which the worker should recommence his job search and be fit to undertake work within the existing physical restrictions. Following another three months (to the end of June 1986), he recommended a reassessment, with the object of lessening or removing the restrictions. The recommended course of action was followed, and soon after, in October 1986, the worker became engaged in the vocational rehabilitation plan, which was described earlier.

There is no further medical documentation of low back complaints until 1990. In January, 1990, the file reveals that the worker attended at an orthopedic surgeon. X-rays were taken which showed considerable degenerative narrowing at the disc L4-5-S1. A sacroiliac corset was prescribed. Later that fall, the worker contacted the WCB and indicated that he was totally disabled from September 28 to October 29, 1990 due to back pain. The worker attributed the time loss to bending on the job.

By February 25, 1991, the worker indicated that he was unable to continue with his occupation as a locksmith.

In a report dated April 18, 1991, the worker’s treating physician indicated that on examination, gait and body movements were slow and the worker appeared in pain. Paraspinal muscle spasm was noted at lower back and straight leg testing both legs was limited to 20 degrees. In the treating physician’s opinion, the worker had severe and chronic pain since 1981 from the back injury and subsequent back surgery. He recommended that the worker “should be considered for permanent disability, i.e. is unfit for any work.”

On September 5, 1991, the worker was examined for reassessment of his PPI rating. At the time of the examination, the worker advised the impairment award medical advisor that he had fairly continuous low back pain with variations in degree, and some right buttock and right posterior leg radiation down to above the knee. The worker is also reported to have advised that: “he would like to have further training as a locksmith so that he may be able to handle a larger range of locks, or that he would like to have his permanent work restrictions lifted so that he may be able to attempt a return to construction work.” The worker’s total ROM losses were found to be 30 out of 240 degrees, which calculated to an impairment of 3.8%. At the time, the worker was receiving payments based on an impairment of 10%.

The next complaints of back pain occurred in August, 1992. In a report dated October 9, 1992, the treating physician wrote that the worker was seen on August 4, 1992 for back pain. The pain was described as constant at lower back radiating to legs. The worker had exercise tolerance of ½ block, after which he would have to sit and rest. Sitting, bending and crouching aggravated the back ache. The diagnosis was degenerative arthritis lumbar spine, neck and elbow. The treating physician opined that the worker was: “unable to handle even light work i.e. locksmith because of chronic back pain.”

A psychological assessment conducted June 30, 1993 reports: “this is a gentleman who seems to have long standing deeply ingrained characterological traits where there is some degree of suspiciousness, a somewhat confrontational approach to the world, and some underlying hostility and irritability with his expectation being that he is frequently not treated well by others and needs to be on guard about this. There is a real lack of warmth and my sense is that this gentleman has these deeply entrenched maladaptive traits as in a nonspecified personality disorder and with this, there is some dysthymia, and a range of circumstance of life problems with a current pain syndrome.”

In August, 1993, a functional capacity evaluation was performed. The September 1, 1993 report states: “The main limiting factor during this assessment was client’s decreased cardiovascular fitness level.” Other limitations were decreased standing tolerance due to decreased muscular endurance of the trunk, limited ability to repetitively perform squatting or kneeling activities beyond five consecutive repetitions, and complaints of low back pain and lower extremity pain. The recommendations stated: “According to the results of this assessment, (the worker) has the physical capacity to perform the physical demands of his previous job as a locksmith. However, due to limited cardiovascular fitness level it is recommended that he potentially resume this position in a gradual manner.”

In a letter from his treating physician dated May 15, 1995, the physician was of the view that the worker was unfit for any work due to chronic back pain. The report was reviewed by a WCB medical advisor on June 29, 1995 and it was his view that there was no organic pathology to prevent the worker from performing work.

The next report from the treating physician was dated September 19, 1997. He stated that the worker was seen on September 16, 1997 and complained of back pain that radiated to both legs. He could walk for approximately two blocks without discomfort in his legs. Back and leg pain was aggravated by bending, stooping, or carrying a small amount of weight. He indicated the worker had chronic pain syndrome from his injury and surgery. His symptoms were stabilized but he would continue to have pain for the rest of his life. It was indicated that the worker would require pain medication and other support for his chronic pain.

Based on the worker’s assertion that he was incapable of working a 40 hour work week or earning $7.00 per hour, arrangements were made for him to be examined by a WCB medical advisor on January 29, 1998. Following a review of his examination findings (which showed no evidence of neurologic compromise or acute irritation), the medical advisor stated that it was not his view that the worker was disabled from the duties of a locksmith. In making this determination, he stated that he considered the results of a 1993 functional capacity evaluation (“FCE”) as well as the worker’s current presentation.

On March 24, 1998, the WCB adjudicator advised the worker that based on the examination findings and opinion of January 29, 1998, it was considered that he was capable of working 40 hours per week and confirmed that the worker’s deemed post accident earning capacity should be $7.00 per hour.

On September 30, 1998, the worker appealed the decision that he was capable of working 40 hours per week. He noted that he tried to secure employment as a locksmith but was rejected because there was not enough work for the locksmith themselves, he could not service safes or high security locks and you had to be physically fit and reliable and available 24 hours a day.

On December 4, 1998, Review Office confirmed that the worker’s deemed post accident earning capacity should be $7.00 an hour for a 40 hour week. It stated there was no evidence that the worker was no longer capable of earning $7.00 per hour as of March 12, 1994. It agreed with the opinion of the WCB medical advisor dated January 29, 1998, that the worker was not disabled from the duties of a locksmith.

On November 4, 1999, the worker asked that his case be considered again. He stated that he could do 3 to 4 hours of light duty work but after that, his recuperating ability took longer and he had to increase his pain medication. He noted there were letters on file from two physicians who stated he is unfit for work.

Arrangements were made for the worker to undergo a second FCE. The FCE report dated December 22, 1999 indicated, in part, that the worker was able to attempt and complete all the test activities requested. The worker reported low back symptoms on the right and left. He stated that he would be sore later on in the day. It stated that the worker demonstrated good lifting biomechanics for all lifts required.

On January 21, 2000, the Review Office determined that the worker was capable of working 40 hours a week. Review Office stated that it considered the requirements of a locksmith job and the worker’s capabilities and it remained of the opinion that the worker was capable of working a 40 hour week.

In a letter dated March 21, 2000, the treating physician stated that in spite of the worker’s eagerness for gainful employment he was unfit for any work. His disability was permanent and was caused by the fall at work and that he had developed changes of osteoarthritis at the injury site.

In a April 28, 2000, decision, Review Office determined that the worker was not unfit for any work. It stated that while the file information established that the worker has a significant level of disability as a result of his compensable back injury, it did not preclude him from working within certain limitations.

On January 27, 2006, a hospital report indicated that the worker has had back pain for the last decade and he required a lot of narcotic medication for his pain. In a further report dated November 23, 2006, the same physician noted that the worker was still taking narcotic medication and that this had been exacerbated by him having to take care of his wife. He said the worker’s pain issues have increased and he was hoping this would be temporary.

Given the worker’s long term use of narcotic medication, arrangements were made for him to be interviewed at the WCB’s Pain Management Unit (“PMU”) on April 10, 2007. At a subsequent case conference held on May 4, 2007, the PMU stated that the worker, by his own report, had been on a stable dose of medication for 4 to 5 years. There was no file evidence of any adverse health effects from the use of the medication nor did there appear to be any cognitive effects. It felt there were other issues impacting the worker’s psychological and functional status including but not limited to the recent passing of his wife.

On February 11, 2008, the worker’s new treating physician said there had been no improvement in the worker’s back symptoms and he continued to rely on his current pain control medications. He found no subjective improvement in the worker’s symptoms compared to when he was seen by his former treating physician in March 2000.

On December 7, 2007, the worker filed an appeal with the Appeal Commission regarding the decision to deem him at $7.00 a hour for a 40 hour work week.

Reasons

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the Board of Directors. The Act in effect on the date of accident is the applicable legislation. Under subsection 4(2) of the Act, a worker who is injured in an accident (as defined under the Act) is entitled to compensation for the disability resulting from the accident. Subsections 36(1) and 36(2) of the Act outline the calculations to determine the compensation payable where a worker’s earning rate is reduced.

WCB Board Policy 44.80.30.20.01 (the “Policy”) deals with “Deemed Earning Capacity”. The Policy deals with the process of establishing the amount that the worker is capable of earning where the amount that the worker is capable of earning is determined to be different from the amount that the worker is actually earning. This amount is referred to as “deemed income.” The Policy provides that the WCB will use the worker’s vocational rehabilitation plan as the basis for compiling and evaluating information about the worker in determining whether a loss of earning capacity exists.

Worker’s Position

In his Request for Appeal, the worker requests that the reduction in his benefits be removed on the grounds that he is unfit for work. We understand his argument to be that he is unfit for any work, he therefore has no earning capacity and should be paid full benefits. The worker seeks to be paid retroactively for the reductions to his benefits which have been deducted since 1989. The worker relies on medical reports which opine that he is unfit for work. The worker also notes that his current medications cause concern that his judgment is impaired. Finally, the worker states that if he engages in light activity on one day, he cannot work the next.

Analysis

The issue before the panel is whether or not the worker’s deemed post accident earning capacity should be $7.00 per hour for a 40 hour week. This is the amount that the worker could earn if fully employed as a locksmith. The panel must review the evidence regarding the worker’s post-accident condition and abilities and determine whether the worker was capable of earning this amount.

The panel carefully reviewed the evidence to determine whether the worker’s compensable medical condition prevented him from being fully employed as a locksmith. In his request for appeal, the worker refers to letters from his treating physician (for the years 1983 until the physician retired in 2000) and the family physician who subsequently took over the practice.

The panel notes that although the succeeding family physician is referenced in the file material, there is no opinion from that doctor as to the worker’s fitness for employment. Reports of that nature were only provided by the first treating physician.

The medical reports of the first treating physician dated April 18, 1991, October 9, 1992, May 15, 1995 and March 21, 2000 all state that the worker is unfit for any work. The first of those reports (dated April 18, 1991) recommends that the worker should be considered for permanent disability.

The panel notes that during the same time period when the treating physician opined that the worker was unfit for any work, there are a number of incidents reflected in the file which suggest otherwise:

  • First, there is the simple fact that the worker did actually work as a locksmith for intermittent periods of time. The information on file suggests that the reasons why he stopped working were at least in part due to market and/or interpersonal issues.
  • In September, 1991, while being examined for a reassessment of his PPI rating, the worker raised that he would like to have further training as a locksmith. Alternatively, he indicated that he would like to have his permanent work restrictions lifted so that he could attempt a return to construction work.
  • In December, 1993, the worker, through a worker advisor, made a request to the WCB for additional training as a locksmith, so that he could be more competitive in the field. In a conversation with his adjudicator, the worker stated that without additional training, he could not get enough work to earn a living and that he had lost customers as he was not qualified to do certain types of jobs as a locksmith.
  • In July, 1994, the worker was actively seeking medical clearance to resume employment in the construction industry. Unsigned correspondence from a medical practitioner dated July 11, 1994 and September 9, 1994 reveals that the worker had approached that doctor for a second opinion regarding whether or not he could go back to construction work. The doctor’s opinion was that given the physical demands of construction, the worker would not last long if he attempted to return to that environment. The doctor indicated that a reasonable solution would have been for the worker to open his own business as a locksmith, as this would present opportunities to work at his own pace and incorporate rest periods into his day.
  • In 1995, the worker put together a business proposal for a self-employment venture in the locksmith industry.

These incidents cause the panel to question the validity of the treating physician’s assessment that the worker was unfit for any work. The willingness of the worker to engage in more rigorous employment suggests to the panel that the worker was not physically limited from performing work.

For these reasons, the panel places minimal weight on the opinions of the treating physician. Instead, the panel prefers and relies upon the following evidence:

  • March 16, 1984 report by the chronic pain behavior program team which states an impression of resolving mechanical or facet pain and that if chronic pain behavior remains controlled, the worker should be able to return to employment provided restrictions are applied.
  • March 20, 1986 assessment by the WCB physician which indicates that there was nothing serious nor irretrievably wrong with the worker’s physical status and that emotional and psychological factors were largely responsible for continuing symptoms and disability.
  • September 1, 1993 functional capacity evaluation which reports that the worker had the physical capacity to perform the physical demands of being a locksmith.
  • January 29, 1998 opinion of WCB medical advisor that the worker would not be disabled from the duties of a locksmith (although the limitations of that opinion are acknowledged)
  • December 22, 1999 functional capacity evaluation which reflected the worker’s demonstrated abilities for lifting and positioning.

The foregoing reports all indicate that the worker is, in fact, able to perform light job duties consistent with those of a locksmith. The panel therefore agrees with the Review Office decision of December 4, 1998 that, at least as at that time period, the worker’s post accident earning capacity was properly deemed to be based on locksmith wages of $7.00 per hour for a 40 hour week.

The panel has given consideration to the worker’s current condition and whether, over the intervening 10 years, the worker’s medical condition has changed such as to render him now unable to perform the work of a locksmith on a full time basis.

The most current medical information is a medical report dated February 11, 2008 from the worker’s current treating physician. The current physician refers to the report of the first treating physician written in March 2000, then states: “from what I can tell in talking to (the worker), there has been no improvement in his back symptoms. He continues to be reliant on his current pain control medications. I have found no subjective improvement in his symptoms compared to his last assessment by (physician) in March 2000.” The current physician’s opinion simply conveys the worker’s subjective report of pain and does not give an opinion on fitness to work, other than to say that his condition has not changed since the March 2000 report. Given the general nature of the February 11, 2008 medical report, the panel in unable to place much weight on its content.

The interview notes from the assessment conducted by the PMU on April 10, 2007 are detailed and give greater insight into the worker’s current abilities. The PMU report indicates that the worker lives alone in a bungalow with his pet dog. He is able to maintain the household on his own and care for his dog. He cooks and does the laundry. He is able to drive and does so when necessary. He had plans to repaint his house the following summer.

In the panel’s opinion, the level of activity described in the PMU report would suggest that the worker is able to engage in activities of daily living and continues to be capable of performing the light work of a locksmith. While the worker may complain of soreness after exerting himself, we have no medical opinion before us which would indicate that this soreness is disabling. The panel also notes that while restrictions were placed on the type of work the worker is able to perform, none of the medical practitioners chose to place additional restrictions with respect to the number of hours worked.

In the Request for Appeal, the worker raised the issue of whether his current medications cause concern that his judgment is impaired, such as to prevent him from working. The PMU report addresses this issue directly and reports: “The claimant did respond that he is not experiencing any euphoric effects from the short-acting opiods and, based on his presentation today, it did not appear that he is experiencing any cognitive side effects.” Accordingly, the panel does not find that the worker’s medication regime causes any degree of cognitive impairment which might prevent him from being employed as a locksmith on a full time 40 hour per week basis.

It is therefore the panel’s decision that, on a balance of probabilities, a deemed post accident earning capacity of $7.00 per hour for a 40 hour week is appropriate. The worker’s appeal is denied.

Panel Members

L. Choy, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 28th day of March, 2008

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