Decision #78/08 - Type: Workers Compensation
Preamble
The worker has a claim with the Workers Compensation Board (“WCB”) for injuries she sustained in a work related accident that took place on March 24, 1995. As the worker’s compensable injuries prevented her from returning to her pre-accident employment, the worker was provided with vocational rehabilitation benefits which included training in the field of accounting.
In March 2005, a non-compensable medical condition prevented the worker from participating in her vocational rehabilitation training and so her wage loss benefits were suspended on March 7, 2005. Although the worker never returned to work, her benefits were later reinstated under WCB policy 44.80.30.20, Post Accident Earnings – Deemed Earning Capacity retroactive to March 8, 2005 and she was deemed capable of earning the starting salary of an accounting clerk. The worker was also in an overpayment situation due to Canada Pension Plan (“CPP”) disability benefits she received with respect to her compensable injury. The worker has since appealed a number of decisions rendered by Review Office and an appeal was filed with the Appeal Commission which led to an oral hearing held on June 10, 2008.
Issue
Whether or not the worker is employable;
Whether or not the occupational goal of working within National Occupational Classification 1431, Accounting Clerk, was appropriate;
Whether or not a deemed post-accident earning capacity of $346.00 per week should have been implemented effective March 8, 2005; and
Whether or not the worker is required to repay the overpayment.
Decision
That the worker is employable;
That the occupational goal of working within National Occupational Classification 1431, Accounting Clerk, was not appropriate;
That a deemed post-accident earning capacity of $346.00 per week should not have been implemented effective March 8, 2005; and
That the worker is required to repay the overpayment.
Decision: Unanimous
Background
On March 24, 1995, the worker was working as a cafeteria manager when she burned both her feet. She later developed squamous cell carcinoma affecting her right fourth toe which required amputation in May 2001. The WCB determined this was causally related to her work injury.
A WCB senior medical advisor reviewed the file information on April 10, 2002. He opined that the worker had permanent restrictions of no prolonged standing and walking.
On October 21, 2002, the treating physician provided the WCB with a copy of a medical report that he submitted to CPP on the worker’s behalf. With respect to work restrictions, the physician noted that sitting more than 20 minutes caused the worker to have symptoms. He stated that the worker developed an ache in her right thigh that could only be relieved by getting up and walking around for a few minutes. The worker found it difficult to remain in any one position for a long time. Elevating her leg was reported by the worker as minimally effective in preventing these symptoms. He concluded his report by stating, “As there is no good position of rest for her, that does not cause pain and swelling it would be extremely difficult for [the worker] to take on any employment, no matter the position.”
In June 2002, the case was referred to the WCB’s vocational rehabilitation branch on the basis of permanent restrictions to avoid standing and prolonged walking.
In a report to the WCB dated July 8, 2003, the treating surgeon responded to the WCB’s request for comment regarding the worker’s disability related to surgery for squamous cell carcinoma. The surgeon reported that since her surgery, the worker had intermittent lymphedema of the right lower extremity and was experiencing pain in her right hip and thigh region. Because of this finding, the worker was unable to tolerate walking or standing for prolonged periods of time and also had significant pain even with sitting for time periods exceeding 15 to 20 minutes. Given these factors, the surgeon felt that it would be very difficult for the worker to work in any capacity.
An Individualized Written Rehabilitation Plan (“IWRP) was developed for the worker based on National Occupational Classification (“NOC”) 1431, Accounting Clerk. The plan components consisted of computer upgrading, work experience and job search. The duration of the plan was from December 4, 2002 to January 10, 2004. At the end of the plan, it was anticipated that the worker would be capable of earning $346.00 per week.
In September 2003, the worker was given a work experience placement in an office environment. The pace of the office was slow and she performed mostly simple clerical tasks. In that position, the worker was able to handle five hour work days. It was noted, however, that the worker had very low functioning clerical skills and that when given tasks, she would become nervous and overwhelmed. It was therefore decided to amend the IWRP to allow the worker to complete additional general office training courses to enhance her employability.
In July 2004, the worker completed her schooling at the Academy of Learning and commenced a second work experience program in November 2004.
At the second work experience placement, only part time hours were available so the worker only attended three mornings per week. The duties she performed included ledger entries, filing, answering phones and writing receipts. The feedback on her performance was that her skill level was low and although a lot of time was spent with her, she was slow to pick things up.
As only part-time hours were available, an additional work experience placement was being sought for the worker to augment the existing hours.
On March 1, 2005, the WCB learned that the worker suffered a stroke and was unable to continue with the work experience program. The worker’s benefits were then suspended effective March 7, 2005 until such time as she would be able to participate in the program again.
In May 2006, a WCB case management representative contacted the worker to inquire about her ability to restart her vocational rehabilitation training. The worker indicated she wanted to consider her decision.
Throughout most of the course of the worker’s claim, she was in a position of overpayment due to receipt of CPP disability benefits. Early in the process, while responsibility for the claim was still being considered by the WCB, the worker applied for and received CPP benefits effective May 1, 2001. Although the worker disclosed the CPP benefits, the WCB failed to deduct these amounts from the wage loss benefits once the claim was accepted. When the error was later identified, the worker was advised that the overpayment of $5,274.77 would be collected from her benefits. Thus, during the period when the worker was in receipt of wage loss benefits, deductions were made. As at the time of the worker’s stroke, a balance of $1,234.16 remained outstanding.
On May 12, 2006, a WCB sector services manager advised the worker in a letter that her wage loss benefits would be reinstated under the Post Accident Earnings – Deemed Earning Capacity (44.80.30.20) on the grounds that, “In your situation, we should have provided benefits to you based on your earning capacity at the time of the non compensable intervening health issue; based on the starting salary of an Accounting Clerk.” The worker was advised that she would receive these benefits retroactive to March 8, 2005. As the worker was in an overpayment situation, her benefits were being applied to the outstanding overpayment. On September 3, 2006, the worker appealed this decision and the case was forwarded to Review Office for consideration.
In a decision dated November 29, 2007, Review Office made the following determinations:
· That the worker was employable – Review Office noted that the worker maintained she was not capable of prolonged walking and sitting due to lower limb swelling. However, based on medical information from a specialist who examined the worker in July 2004, he stated there was no further treatment to be done in relation to her compensable injury. Based on this finding, Review Office felt there was no evidence to indicate that the worker was disabled from working due to her compensable injury.
· That the occupational goal of NOC 131, Accounting Clerk, was appropriate – Review Office indicated that the worker’s physical restrictions are within the physical demands of this occupation and that she had the skills and aptitudes to successfully obtain employment in this field.
· The deemed post-accident earning capacity of $346.00 per week should have been implemented on March 8, 2005 – Given that the worker was unable to participate in her vocational plan due to a non-compensable medical condition, and that she already completed the educational components of the vocational plan and half of the six month practical training, Review Office was of the opinion that the evidence supported that the worker had an earning capacity of $346.00 per week at the time of her non-compensable medical event.
· The worker was required to reimburse the overpayment – Review Office noted that the worker clearly received CPP disability benefits due to her compensable injury. This was a duplication of benefits and the worker was required to reimburse the overpayment.
On January 30, 2008, the worker filed an Application to Appeal with the Appeal Commission as she disagreed with the decisions reached by Review Office on November 29, 2007. A hearing was then arranged.
The most recent medical report is dated April 17, 2008 from the worker’s treating physician. In it, he states:
“Even now, seven years after the operation on her right leg, [the worker] continues to have problems with her right leg. She complains of pain in her entire right leg, worse with standing and walking. She develops swelling with lymph in both the standing and seated position. Her leg feels swollen and heavy to her. I do not believe she would be able to work in any occupation considering her right leg symptoms. I do not believe that these symptoms are related to the stroke she had in 2005. Although her post stroke recovery has not been 100%, it is not, in my opinion, the main factor limiting her ability to sit, stand and work adequately for a full day.”
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.
WCB Board Policy 44.80.30.20 (the “Deeming Policy”) deals with “Post Accident Earnings - Deemed Earning Capacity”. Loss of earning capacity is the difference between a worker’s average earnings before an accident and what the worker is determined or deemed to be capable of earning after the accident. Among other things, the Deeming Policy specifically describes how deemed earning capacity will be determined for individual claims and states that it must be demonstrated that a deemed earning capacity is reasonable and realistic. Where deemed earning capacity is used, it means that wage loss benefits will be paid as if the worker were actually earning the deemed amount.
In the context of interruption or discontinuation of a vocational rehabilitation plan through no fault of the worker, the Deeming Policy states:
Sometimes a plan is stopped and not expected to re-start in the foreseeable future through no fault of the worker (e.g., the worker becomes unable to participate due to a non-compensable medical condition). When this happens, the deemed earning capacity will be based on the worker’s earning capacity at the time of the non-compensable intervening event.
WCB Board Policy 35.40.50 (the “Overpayments Policy”) deals with recovery of overpayments of benefits. The purpose of this policy is to describe the principles that the WCB Board of Directors has established to guide the WCB in its recovery of overpayments to the workers. The principles attempt to strike a fair balance between the WCB’s fiscal responsibilities and the interests of injured workers. Part 3 of the Overpayments Policy provides that while the general policy is that all overpayments receivable will be pursued for recovery, there are some limited circumstances where overpayments will not be pursued. One such circumstance is when the overpayment resulted from an administrative error by the WCB. Part 4 of the Overpayment Policy then provides:
Despite the provisions in Part 3, overpayments will be pursued for recovery where the following circumstances apply:
(i) there was fraud, deliberate misrepresentation or withholding of key information affecting benefits entitlement; or
(ii) the overpayment represents a duplication of benefits paid from another source for the same injury, for example Long Term Disability or CPP Disability benefits.
Worker’s Position
In her Request for Appeal, the worker submits that she is not able to work in any capacity, that she does not have the education or qualifications to be employed as an accounting clerk and that the post-accident earning capacity is not related to anything that she is capable of doing. With regard to the overpayment, the worker acknowledges that there was an overpayment, but states that when she did try to repay, the WCB told her she did not need to repay the funds. The WCB later determined that they had had made an error and that there was an overpayment. Some recovery of the overpayment has been made from the various WCB payments due to the worker over the years, but at the present time, as she is no longer in receipt of WCB benefits, she does not have the financial resources to make repayment.
Analysis
There are four issues before the panel. Each issue will be addressed in order.
1. Whether or not the worker is employable
In order to decide on this issue, the panel must consider the evidence regarding the worker’s medical condition and whether it affects her ability to work.
The treating physician’s report of April 7, 2008 states that seven years after the operation, the worker continues to have problems with her right leg. She complains of pain and develops swelling with lymph in both the standing and seated position. Based on her right leg symptoms, he does not believe that she would be able to work in any occupation. With respect to the stroke, the treating physician notes that while her post stroke recovery has not been 100%, it is not the main factor limiting her ability to sit, stand and work adequately for a full day (emphasis added).
At the hearing, the worker testified that during the seven years since the time of her toe amputation, the condition of her leg has generally stayed the same. She has learned her physical limitations and is careful not to exceed them. She indicated that any prolonged sitting, walking or standing affects her and causes her leg to swell. She is better able to do things in the morning before the swelling sets in since by 12:30 pm, her leg will feel heavy and it drags. She takes pain killers occasionally, usually as a proactive measure when she knows that there will be increased activity that day.
The worker outlined the types of activities she is currently able to perform. She volunteers at a soup kitchen twice a week. On one day, she will spend about 1 hour in the morning reviewing the available supplies and helping to plan the menu. Two days later, she volunteers from 9:00 to 12:30 by helping to prepare and serve the food. She does not do any of the running, but she is required to do some standing. Throughout the morning, when she has to sit down, she will do so. There are 6 other volunteers who also help to get the meals out. By 12:30, she is spent and her leg is swollen and sore. The worker also plays cards two afternoons a week. She rides with a friend to a neighboring town where they gather to play. Around the house, she is able to care for herself, get dinner ready, do some household chores (for example, she can manage to mow half her lawn), drive to town (approximately a 15 minute trip). She assists an elderly woman by taking her to town with her when she goes to volunteer. Occasionally, when driving to town, the worker will be required to stop the car and get out to stretch her leg.
The WCB file documents that in late 2002/early 2003 and in 2004, the worker took courses to upgrade her office skills. Attendance records show that she was able to complete at least three hour days, three times per week. This would be in addition to the driving time to and from the academy (approximately a 1 hour drive).
During her work experience placements, the worker was able to successfully handle 4-5 hour days, three days per week. At the time of her stroke in March 2005, the WCB vocational rehabilitation consultant was looking for additional work experience hours to augment the worker’s existing placement.
On viewing the evidence as a whole, the panel finds on a balance of probabilities that the worker has some degree of employability within her restrictions. Although her compensable medical condition may prevent her from being employed on a full time basis, the panel finds that the worker has demonstrated a degree of ability consistent with maintaining employment on a half time basis. The worker’s appeal on this issue is therefore allowed in part.
2. Whether or not the occupational goal of working within National Occupational Classification 1431, Accounting Clerk, was appropriate
When asked about the appropriateness of NOC 1431 – accounting clerk as an occupational goal, the worker indicated that while she was able to complete the program, she had to work very hard to do so. She would stay up all night studying and the school had to make accommodations to give her enough time to complete the courses. It was not something that came easily or naturally to her, but she persevered because she was told that if she did not, she would lose entitlement to her benefits.
As to her work experience placements, the worker indicated that she was never given an opportunity to perform any accounting work. Her duties at the two placements were comprised of basic clerical tasks such as writing receipts, filing, photocopying, etc. She said that she also spent a lot of time just observing others.
The WCB file reflects discussions with the worker’s supervisors for both work experience positions. In both cases, the supervisors expressed concern that the worker struggled with basic job duties and that although she did improve, her skill level was very slow to progress.
In the panel’s opinion, although the worker was taught accounting clerk skills, these skills did not transfer readily into the workplace. She was able (with considerable effort) to complete the academic portion of her IWRP, but from discussions with her supervisors, it would appear that she was never able to effectively implement those skills in an office environment. In fact, she even struggled with performing basic clerical skills in the office setting. We therefore find that the occupational goal of NOC 1431 – accounting clerk was not appropriate for the worker. In the panel’s view, the worker would more appropriately be classified in a general occupation NOC code consistent with minimum wage earnings. The worker’s appeal on this issue is allowed.
3. Whether or not a deemed post-accident earning capacity of $346.00 per week should have been implemented effective March 8, 2005
In view of our earlier findings, the panel is of the opinion that a deemed post-accident earning capacity of $346.00 per week should not have been implemented. Instead, the panel finds that a deemed post-accident earning capacity of minimum wage on a half time basis should be implemented effective March 8, 2005. The worker’s appeal is allowed on this issue.
4. Whether or not the worker is required to repay the overpayment
The Appeal Commission and its panels are bound by the policies of the Board of Directors. Part 4 of the Overpayment Policy clearly states that where an overpayment represents a duplication of benefits paid from another source for the same injury, the overpayment will be pursued for recovery. As the overpayment to the worker resulted from her receipt of CPP Disability benefits, we are unable to allow the worker’s appeal on this issue. It is therefore our finding that the worker is required to repay the overpayment.
Panel Members
L. Choy, Presiding OfficerA. Finkel, Commissioner
M. Day, Commissioner
Recording Secretary, B. Kosc
L. Choy - Presiding Officer
Signed at Winnipeg this 8th day of July, 2008