Decision #70/08 - Type: Workers Compensation

Preamble

The worker sustained a compensable injury to his right shoulder in May, 1999. His claim for compensation was accepted by the Workers Compensation Board (“WCB”) and he received various benefits and services. It was later determined by the WCB that the worker had permanent restrictions relative to his right shoulder condition but was capable of working full time at a minimum wage entry level position. The worker disagreed and filed an appeal with the Appeal Commission. A hearing then took place on April 23, 2008 to consider the matter.

Issue

Whether or not the worker is capable of full-time employment; and

Whether or not it was appropriate to implement a deemed post-accident earning capacity of minimum wage effective March 11, 2005.

Decision

That the worker is capable of full-time employment; and

That it was appropriate to implement a deemed post-accident earning capacity of minimum wage effective March 11, 2005.

Decision: Unanimous

Background

On May 28, 1999, the worker was drilling in an awkward position when he twisted his right shoulder at work. He attended at his treating physician who found tenderness at the insertion of deltoid muscle in the right shoulder, with full range of motion. The diagnosis was a strained right shoulder. The worker was told to stay off work and was referred for physiotherapy. In July, 1999, the treating physician recommended restrictions of no work above shoulder level, no lifting more than 20 pounds to shoulder level and no repetitive use of the right shoulder.

Rather than improving, the worker’s shoulder condition worsened over time. His range of motion began to diminish and he continued to complain of pain. He was later diagnosed with a rotator cuff impingement/tendinopathy condition. In April, 2000, he underwent a right shoulder arthroscopy and acromioplasty. He continued to have problems and in January, 2001, a second acromioplasty surgery was performed. Two months post-operatively, in a report dated March 19, 2001, the surgeon reported that: “(the worker) has made no progress with regards to regaining any fluid functional motion. He has pain which is persistent without change and is very focused on his pain and his problem … I have nothing further to offer him. He is discharged from my care and I suggested he stop physio.”

In approximately September, 2001, with his treating physician’s approval, the worker attempted a return to work with modified duties and reduced hours. Although the worker initially started at a 4 hour shift, his treating physician indicated that he should only be working a 2 hour shift, then gradually increase as tolerated. The treating chiropractor’s report dated September 14, 2001 set out restrictions of no lifting at all with right shoulder and arm and light work with shoulder supported for 2-3 hours daily. The worker was unable to progress to more than 2 hours of work, and by October 16, 2001, he stopped working due to increased pain and tenderness in the right shoulder.

The worker has permanent restrictions relative to his right shoulder. In June 2002, the case was forwarded to the WCB’s vocational rehabilitation branch to assist the worker with finding suitable employment given his permanent restrictions and the accident employer’s inability to provide him with alternate work duties.

On September 26, 2002, the worker was seen at the WCB’s pain management unit. At a subsequent case conference held on October 24, 2002, it was determined that the worker did not meet the criteria for chronic pain syndrome. It was also recommended that the worker decrease his use of narcotics and to discontinue the use of benzodiazepines as a sleep aid.

In a memorandum to file dated October 29, 2002, a WCB Vocational Rehabilitation Consultant (“VRC”) indicated that vocational rehabilitation activity would be placed on hold over the next three months while the worker addressed the issue of pain medication level and caffeine intake.

On February 20, 2003, the WCB VRC commented that the vocational goal of a security guard would be suitable for the worker given his work restrictions and educational level. In a subsequent meeting held on February 28, 2003, the worker felt that working in security was an unrealistic goal due to his pain and disrupted sleep. He agreed however to undergo basic computer training and by May 12, 2003, the worker completed a continuing education course in Introduction to Computers. This was a 5 week course every Monday night for 2 hours.

On June 26, 2003, the worker met with his new VRC. The worker indicated that his medication intake caused him to function at a low level and that he was trying to wean off his medication with the help of his treating physician.

In an August 1, 2003 report, a sports medicine physician indicated that the worker had a subluxation or dislocation of the right shoulder accounting for the identified Hill-Sachs lesion and that he also sustained a rotator cuff injury. He indicated that the worker had chronic pain syndrome and ongoing cervical spine difficulties that related to the compensable injury.

On February 19, 2004, an orthopaedic specialist noted that the worker had chronic pain and had two surgical procedures that consisted of an acromioplasty and resection of the distal clavicle. He noted that the worker was on multiple medications and was unable to work at his present job. He concluded: “the disability for his shoulder is permanent which includes any overhead activity, repetitive overhead positions or static overhead positions or lifting greater than two pounds.”

On March 9, 2004, WCB staff met with the worker to discuss his vocational rehabilitation direction. It was indicated to the worker that medically he was considered capable of working full time at an entry level position. The worker contended that his medical condition was not good enough to work and that his medications were too much to hold a job yet. The worker was advised however that his vocational rehabilitation program would be moving forward and that a request for an earning capacity analysis for Service Station Attendant (National Occupational Code (“NOC”) 6621 would be made.

In a memorandum to file dated April 30, 2004, a WCB case manager indicated that he met with the WCB medical advisor from the pain management unit. The medical advisor commented that compared to when the worker was examined two years ago, his current medication usage had significantly improved and that the dosages were appropriate for his condition. The medical advisor was of the view that the worker was capable of working modified duties on his current medications.

An Individualized Written Rehabilitation Plan (“IWRP”) was developed for the worker with the occupational goal of Service Station Attendant. The components of the plan included 22 weeks of job search for the period May 31, 2004 to October 29, 2004. At the end of the plan, it was anticipated that the worker would be capable of earning $280.00 per week. In the event that employment was not secured, the worker’s weekly benefits would be reduced in accordance with WCB policy and earning capacity assessment practices.

The worker did not sign the IWRP as he contended that he was completely disabled from working. According to a VRC memorandum dated May 11, 2004, the worker felt that he was completely disabled from using his right arm and that the position of service station attendant was outside of his physical abilities. On May 17, 2004, the worker wrote that he was attending WCB workshop classes against his will and against the advice of his doctor. He said that he was taking two medications for pain and two anti-depressants. He said it was unsafe for him and other co-workers for him to perform some tasks while under the influence of the medications.

In July and August, 2004, surveillance was conducted on the worker. On various dates, the worker was seen performing yard work with a weed-eater, operating a ride-on mower, driving a truck to run errands, and attending a casino.

The worker was examined by a WCB orthopaedic consultant on August 24, 2004 to determine his functional status. The WCB orthopaedic consultant noted that the worker continued to claim that because of analgesics and his anti-depressant medication he was unable to participate in educational courses. He stated that most of the courses were in the evening and that he was unable to concentrate because of the medication. The worker advised that he was able to bring a spoon to his mouth but was unable to cut meat because of the pain on the backward/forward motion but did not need help to feed himself. The consultant indicated that his examination findings identified significant pain behavior and symptom amplification. The consultant amended the worker’s restrictions that were previously detailed on April 21, 2004. They were amended to “avoid overhead work, no single lifts about shoulder over 10 pounds and to avoid repetitive push/pull activities with forces in excess of weight equivalent of 20 pounds”. He said his examination did not identify an orthopaedic diagnosis to explain the worker’s statements of loss of function and pain. Also, there was no orthopaedic diagnosis of a pathological condition which would require the use of pain medications at the frequency and dosage the worker was taking.

In a letter dated September 10, 2004, the worker’s treating physician was of the opinion that the worker would probably be able to work as a service station attendant on a part-time basis because of his shoulder pain and because of the medication he was taking. He said the medication can and does alter the worker’s cognitive ability which could result in a mistake or accident at the workplace.

On November 25, 2004, the WCB orthopaedic consultant indicated that he examined surveillance videos of the worker that were done on July 8, 9, 12, 13 and August 6, 2004. He stated the activities noted on the surveillance were inconsistent with the worker’s statements of August 26, 2004 regarding activities of daily living and demonstrated weakness and restricted range of motion. In his opinion, there were no residual restrictions arising out of the workplace injury of May 28, 1999.

The WCB orthopaedic consultant was asked to review the file in light of the comments made by the treating physician that the worker’s current medication usage affected his cognitive abilities and was unable to perform an entry level position such as a service station attendant. The consultant stated on November 30, 2004 that it was possible but based on his comments of August 24, 2004, these medications were not required for the compensable injury.

In a decision dated December 17, 2004, the WCB case manager indicated to the worker that he was unable to accept that the worker was at a competitive disadvantage in obtaining employment as a service station attendant. In his opinion, the worker no longer required ongoing medical treatment or medications for his compensable injury. The worker was advised that his job search would be extended 12 weeks effective December 20, 2004 to March 11, 2005 at which time his wage loss benefits would be reduced according to policy 44.10.30.60, and his medication coverage would be accepted until January 20, 2005 inclusive and final.

In a memo to file dated March 29, 2005, the WCB case manager indicated that the worker was not employed at this time and recommended that his benefits be reduced based on the ECA of $280.00 per week.

On May 9, 2007, a worker advisor asked the WCB case manager to reconsider the decision to implement a deemed earning capacity effective March 12, 2005. He indicated that the worker’s attending physician, in a report dated February 16, 2007, offered the opinion that the worker was “permanently disabled from working at any gainful employment”. The physician attributed the worker’s inability to work to an increase in right shoulder symptoms with any use of his arm, clinical depression, and the effects of narcotic analgesic medications prescribed to control pain levels. The worker advisor was of the view that the treating physician supported the position that the compensable injury precluded the worker from returning to work in any capacity and that the worker was therefore entitled to full wage loss benefits after March 12, 2005.

A surveillance videotape of the worker’s activities took place in January 2007.

In a decision dated July 27, 2007, the case manager advised the worker that he reviewed the report from his treating physician dated February 16, 2007 and the video surveillance. The case manager indicated that the surveillance demonstrated that he was able to perform all activities of daily living including operating a motor vehicle, shopping, running errands and attending the casino. He was also observed reaching at or above shoulder height and opening a door and lifting the hood of his vehicle. The case manager said there was no indication from the footage that the worker was experiencing any difficulties with these activities and no indication that he suffered significant exacerbations of his symptoms. The case manager therefore remained of the opinion that the worker was competitively employable within NOC 6621 and that the job duties of this occupation remained suitable and within his compensable restrictions.

On September 4, 2007, a worker advisor appealed the WCB’s decision to implement a deemed earning capacity effective March 12, 2005. She presented arguments to Review Office that the lifting requirement for the occupation of a service station attendant was outside of the worker’s weight restrictions and that he was currently taking narcotic analgesic medications which were not conducive to employment since their effects caused lethargy and lapses in concentration.

On October 5, 2007, Review Office determined that the worker was not entitled to full wage loss benefits beyond March 11, 2005 and that the worker’s deemed post accident earning capacity should be minimum wage. Review Office indicated there was no reason to disturb the restrictions that were placed on the worker and as outlined in the case manager’s letter of September 21, 2005. Review Office acknowledged that the surveillance evidence did not demonstrate the worker partaking in activities that were contradictory to his restrictions. It did demonstrate a significant gap between the worker’s presentation variously reported and on examination and his observed behavior. This lead Review Office to place limited weight on the worker’s evidence. Review Office noted that the worker’s case manager curtailed the types and quantity of the worker’s medication that the WCB would cover the cost of. Given the worker’s medication did not limit his ability to drive and participate in the activities of daily living, it did not consider that their effects were such that limited his ability to work.

Review Office was of the opinion that the weight of evidence supported the position that the worker was capable of full time employment. It also accepted the worker advisor’s argument that the physical requirements of NOC 6621 were not a good match for the worker’s capabilities. It did not feel however that this entitled the worker to full wage loss benefits until an appropriate vocational rehabilitation plan had been developed. Review Office felt the worker had the skill set and physical capabilities which would allow him to obtain minimum wage employment.

On November 22, 2007, the worker disagreed with Review Office and filed an application to appeal with the Appeal Commission. On November 28, 2007, the Appeal Commission clarified to the worker the specific issues that the appeal panel would address.

Reasons

Applicable Legislation

The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the Board of Directors. Under subsection 4(2) of the Act, a worker who is injured in an accident (as defined under the Act) is entitled to wage loss benefits for the loss of earning capacity resulting from the accident. Subsection 40(1) of the Act defines loss of earning capacity as the difference between the worker’s net average earnings before the accident and the net average amount that the board determines the worker is capable of earning after the accident.

Worker’s Position

In his Request for Appeal, the worker disputes that he is capable of working full time in a minimum wage position. He indicates that because of the surgery, his condition is worse and he has been living in constant severe pain since the injury occurred. With medication, he can perform household chores, but then he requires more medication and time to rest his right upper body to relieve the pain. The worker states that he has been dealing with severe pain and stress and seeks a hearing to resolve his situation.

Analysis

The issues before the panel are whether or not the worker is capable of full time employment and whether or not it was appropriate to implement a deemed post accident earning capacity of minimum wage effective March 11, 2005. 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 or whether his medical condition constituted a valid reason for the worker to remain unemployed. It is our finding that the worker is capable of full-time employment in a minimum wage position.

At the hearing, when asked about the medical evidence relied upon by him, the worker referred to the August 1, 2003 report of his sports medicine physician and the February 19, 2004 report of the orthopedic specialist as being evidence of his disability. The panel accepts the medical evidence contained in these reports and does find that the worker has pain and disability associated with his right shoulder. The issue before the panel, however, is whether this pain and disability prevents the worker from full-time employment in a minimum wage position.

The panel notes that while the February 19, 2004 report of the orthopedic specialist confirms chronic pain and permanent disability, it does not indicate that the worker is totally disabled from any employment. Rather, the report indicates that the worker would be unable to work at his present job (production worker) then outlines restrictions to avoid any overhead activity, repetitive overhead positions or static overhead positions or lifting greater than two pounds.

The only medical practitioner to opine that the worker is not capable of alternate or modified work is the worker’s treating physician. In his February 16, 2007 report, the treating physician indicates that in his opinion, the worker is permanently disabled from working at any gainful employment due to the following factors:

  • Inability to use his right arm without causing exacerbation of his condition;
  • Use of narcotic analgesics; and
  • Clinical depression

This report differs somewhat from the treating physician’s earlier opinion of September 10, 2004 where he opined that the worker may be able to work part time as a service station attendant, but only on a limited basis. It was stated that while the worker may be able to work part time, his ability to work on a regular/daily basis would be unreliable, due to increased shoulder pain the following day. The treating physician also noted that another factor that could preclude him from working was the medication the worker was taking as these medications alter cognitive ability.

At the hearing, the worker’s evidence was that his shoulder condition is the same as it was earlier, that his drug regime has less narcotic content than it previously had and that as long as he takes his antidepressants in the morning, his anger and depression are controlled and he is able to function. In view of the evidence given by the worker as to his current condition, the panel does not accept the treating physician’s opinion that at the present time, the worker is permanently disabled from working any gainful employment. If the worker’s medical condition in 2004 allowed him to be capable of at least some part time work, and the side effects from his medications are now improved, it does not stand to reason that he is now incapable of any gainful employment.

The panel therefore assessed the worker’s evidence given at the hearing to determine whether his compensable medical condition prevents him from being fully employed in any occupation which would pay at least minimum wage. The worker described two ways in which his medical condition disables him from working. First, he referred to the continuous pain he experiences in his shoulder. The worker stated that when he wakes up in the morning, he needs to take medications and wait until they take effect before he can start his day. Once they take effect, he is able to function, but he must be cautious not to over-exert himself. He stated: “the more I move, the more pain. It’s constant.” The worker also indicated that throughout the day, if he has performed some activity, he will need to take periods of time to relax his arm. He acknowledged that he might be capable of working 1-2 hours, but then he would need 3-4 hours to rest by placing his shoulder in a comfortable position and allowing the pain to subside. The worker gave evidence that he does benefit from the use of a shoulder brace, which helps hold his shoulder up and back so that it does not pull on his other muscles. While it does not relieve the pain, it does help to reduce headaches. With the use of a shoulder brace, he is able to sit for periods of time at the casino.

The other aspect of his medical condition which the worker claims prevents him from working is the effect the medications have on his ability to think. The worker indicated that: “I wouldn’t even hire me” because he is unable to remember things. He has difficulty concentrating. He stated that his partner helps him to remember all of his appointments and she is the one who keeps his life in order. The worker attributed his inability to focus to the medications that he is taking. However, when questioned about the specific effects of each type of medication, the worker indicated that it was the opiates that he was previously taking which had the greatest effect on his thinking and that he was anxious to get off of them as they “zonked him right out on the chesterfield.” A review of the file indicates, however, that the worker was taking these opiate based medications in 2003/2004. As noted earlier, during this time when the worker was on the heavier medication, the worker’s treating physician had cleared him for some part time work. The evidence given by the worker at the hearing was that he had recently established a medication regime which does not result in as many side effects for him. The worker reviewed his current medications and indicated that none of them make him drowsy and that although he experiences some stomach upset from the medications, the side effects were “fine in terms of the mind.”

Another factor the worker identified was that he would not be able to get to work on time. He indicated that due to the pain, he is not able to sleep at night so it is difficult for him to get moving in the morning. Also, he must take his medications as soon as he awakens, then wait for them to take effect. It was suggested to the worker that a job with hours from noon to 8 pm would avoid these issues. The worker’s only response was that: “I’d attempt anything, but it’s – I know I’m going to be sitting there hurting like hell all day….”

The worker commented on the surveillance footage taken of him in the summer of 2004 and in January 2007. He noted that while in one segment, he is pushing a cart, he is doing so with his left arm. He also pointed out that the footage does not show him using his right arm to open the hood of his car. The panel agrees that the surveillance does not establish that the worker is able to use his right arm and shoulder. In the panel’s opinion, the surveillance simply indicates that on some days, the worker is able to move about, perform some household and garden chores and drive around to run errands. This is consistent with the evidence given by the worker at the hearing.

After reviewing the evidence as a whole, the panel is of the view that the worker is capable of some degree of employment. The worker repeatedly expressed his doubts that he could perform any type of work, despite a professed desire to return to work. However, when questioned on what steps he has taken to seek employment, the worker was not able to show to the panel that any bona fide attempts had been made by him. Since the accident, the only actual attempt at working was a brief return to light duties with the accident employer, which was discontinued after a short while due to the pain. The worker did indicate that he has gone to a number of places asking for a job, but then stated: “I did it just for documentation for WCB that I tried.” In the panel’s opinion, this reflects a lack of genuine effort by the worker to attempt to return to work.

Although there does not appear to have been any real attempt to seek or maintain employment by the worker for over 10 years, the worker’s evidence does, however, demonstrate that on a day-to-day basis, he is involved in a variety of activities. When asked to review his typical day, the panel notes that he does not live a completely sedentary lifestyle. After he gets up he goes on the computer, is able to list and sell items on eBay, do some vacuuming, lift weights/perform stretching exercises, go out for coffee with friends and drive around to go shopping and attend medical appointments. With the use of a shoulder brace, he is able to go to the casino and play keno.

Overall, the panel believes that the worker has pain, but it does not accept that he is incapable of any type of employment. The worker’s medications do not affect the worker’s ability to drive and go out and about. Indeed, the worker’s own evidence is that he is now on a good medication regime and the medications do not cloud his thinking as much as they did before. There are medical restrictions placed on the type of work that the worker may perform, but none of them, aside from the treating physician’s opinion of complete disability (which the panel does not accept), speak to the reduction of hours. It is therefore the panel’s decision that, on a balance of probabilities, the worker is capable of full-time employment and a deemed post accident earning capacity of minimum wage 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 22nd day of May, 2008

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