The Appeal CommissionThe Workers Compensation Act of Manitoba

Discrimination Complaint

In appealing the WCB’s decision, the worker advanced arguments that touched upon discrimination or jurisdictional issues with respect to chronic pain.

The Jurisdiction of the Appeal Commission to deal with the worker’s complaint:

At the outset, the panel notes that the worker first took the matter of discrimination or discriminatory practices in this case to the Manitoba Human Rights Commission, who advised in a preliminary assessment report dated February 11, 2008, that,

“The Appeal Commission, and arguably, the WCB, have exclusive jurisdiction over all questions and matter related to benefits. They both also have the power and responsibility to apply The Manitoba Human Rights Code when making their determinations under the WCA. As a result, they appear to have exclusive jurisdiction over the allegations in the Complaint that the WCB’s decision reflected a failure to reasonably accommodate the Complainant’s special needs arising from his disability, and thus violated The Human Rights Code.

It appears that the forum available under the WCA is more appropriate to deal with the Complaint, and is the route the legislature intended. It is recommended that the Board of Commissioners dismiss the within Complaint under Section 29(1)(b) of the Code as not being within its jurisdiction.”

The panel agrees with the analysis and conclusions reached in the report, and acknowledges that the Appeal Commission (and this panel in particular) does have the jurisdiction to deal with the worker’s complaints of potential human rights violations in respect of the management of his benefits. In this regard, the worker’s issues deal specifically with his entitlement to benefits under Part 1 of the Act, and the Appeal Commission has the specific and exclusive jurisdiction to deal with Part 1 issues, under subsections 60(1) and 60.8(1) of the Act.

The panel also notes recent court cases (including Martin, discussed later) that generally consider workers compensation appeals tribunals as having the capacity to deal with questions of law, unless there are specific statutory provisions to the contrary. While the Act contains an exclusion preventing the WCB and the Appeal Commission from dealing with constitutional questions, the panel finds that this is a limited exclusion that does not preclude it from dealing with other questions of law.

Applicable Legislation

The panel notes that the following provisions from the Code apply:

Discrimination in service, accommodation, etc.

13(1) No person shall discriminate with respect to any service…accessible to the public…unless bona fide and reasonable cause exists for the discrimination.

“Discrimination” defined

9(1) In this Code, “discrimination” means

(b) differential treatment of an individual … on the basis of any characteristic referred to in subsection (2).

Applicable characteristics

9(2) The applicable characteristics for the purpose of clauses 1(b) [is]

(l) physical or mental disability or related characteristics or circumstances

Worker’s Submission

The worker provided a written submission to the WCB. The worker’s submission states that the worker “…alleges that the WCB’s decision limits his benefits, including some of his medical aides and reduces his wage loss benefits by the equivalent of minimum wage and fails to individually assess his chronic physical disability. He believes this constitutes discrimination and a failure to reasonably accommodate the special needs arising from his disability.”

The worker’s submission states that the WCB does not have a regulation or policy to enable it to individually assess injured workers, like the worker, who continue to experience chronic pain causally related to their original compensable injury.

The worker’s submission states that the worker believes that the WCB does not recognize his physical disability of chronic pain and that based on this failure, it has unreasonably reduced his WCB benefits. It alleges that the WCB has discriminated against the worker by failing to recognize his physical disability of chronic pain, thus reducing his WCB benefits and/or failing to accommodate this disability without reasonable cause contrary to Section 13 of the Code.

The worker argues that WCB policy 44.90.10.02, Permanent Impairment Rating Schedule, is discriminatory, as it is evidence of a gap in service to him and other injured workers who have chronic pain, compared to other injured workers who don’t have chronic pain as a result of their injury, but are included in the schedule. The worker’s submission notes there is no permanent chronic pain impairment rating within the Permanent Impairment Rating schedule. The worker requests that an individual evaluation/assessment be done on him to assess for a permanent chronic pain impairment and/or disability.

Employer’s Position

The employer denied that the WCB failed to accommodate the worker’s disability and apply an individualized chronic pain assessment which led WCB to reduce his benefits. The employer submitted that the worker’s benefits were reduced because he misrepresented his abilities and was deemed capable of working in a minimum wage position. The employer submitted that issues of chronic pain were addressed fully and repeatedly by the WCB over the 12 year history of his claim. The employer submitted that the worker was provided with every conceivable benefit including academic retraining, extensive medical and psychological assessment, treatment, and therapy (counseling and behaviour modification) to deal specifically with this condition. The employer noted that the WCB Review Office decision, which is the subject of the current appeal, recognizes that the worker has chronic pain as a result of his workplace accident.

Analysis

The panel notes that the worker’s issue before the panel deals with the WCB first granting full wage loss benefits to the worker based on a combination of his physical injury and a chronic pain condition, and a later reduction to partial wage loss benefits after the WCB changed its view of the nature and extent of the worker’s condition.

After a careful review, the panel understands the worker’s arguments to be as follows:

1. that workers with chronic pain are treated differently than workers without this condition. This amounts to a breach of the Code.

2. that the WCB does not have a policy on chronic pain which means there is no basis on which to assess all injuries equally, fairly and individually. This amounts to a breach of the Code.

3. that a Supreme Court of Canada decision provides that a chronic pain claim cannot be terminated. This amounts to a breach of the Code.

1. WCB treatment of Chronic Pain.

Dealing with the first issue, the worker’s argument suggests that “chronic pain” is a unique category of medical injury. The panel notes, however, that the criteria in the Act for paying wage loss benefits are not based on what medical conditions a worker has, but instead what his or her earning capacity is. This is set out in subsection 39(1) of the Act which establishes that wage loss benefits will be based on a worker’s “loss of earning capacity.” In practice, this is based on a review of the functional consequences of the injury, in particular, an adjudicative assessment of the worker’s ongoing medical restrictions and the worker’s ability to earn his pre-accident wages or a portion thereof.

The wording of this subsection acknowledges that workers may have minor or major compensable physical or psychological injuries, which may be temporary or permanent in nature. However, the key to wage loss entitlement does not derive from the name of their medical condition but rather from a determination of the residual or ongoing effects of the worker’s injury on their capacity to work and to earn an income. Workers may, for example, be permanently and significantly injured and unable to do their pre-accident job, but be fully accommodated in another position which allows them to earn their pre-accident wages, meaning there would be no entitlement to wage loss benefits under subsection 39(1).

Based on these observations, the panel finds that the diagnosis of a chronic pain condition does not create an automatic entitlement to wage loss, or full wage loss, benefits. Rather, the test to be used is the earning capacity test set out in subsection 39(1) of the Act, which deals with the functional consequences, work-wise, of that condition.

As to the worker’s argument about the inability to measure pain or to demonstrate that it has lessened once the condition has been accepted by the WCB, the panel notes that the adjudicative process in determining a worker’s work or earning capacity is not limited to the acceptance at face value of a worker’s subjective descriptions of their pain or of their level of function or their views of their job duties. For all medical conditions, a variety of assessment tools are available to doctors and adjudicators to make these determinations, which will vary according to the circumstances of the case. These may include objective tests, diagnostic tests, observed actions or behaviors in doctors’ offices outside of the tests, functional capacity evaluations, and even surveillance. All these tools may be used in some form or another, for both physical and psychological conditions, to determine a worker’s real medical restrictions and/or functional capacity.

As such, the panel finds that the worker’s asserted pain condition does not subject it to a different level of assessment or entitlement than any other medical condition that an injured worker might have to deal with, either temporarily or permanently.

Finally, the panel also notes that subsection 60(3) of the Act clearly indicates that decisions of the WCB can be revisited by the WCB from time to time. This includes changes over time to a person’s medical conditions or medical restrictions or earning capacity. The panel finds that the WCB had the right under the Act to vary its initial decision regarding wage loss entitlements with respect to the worker’s chronic pain condition, based on new information or a better understanding, much as the Appeal Commission has a similar capacity under the Act.

2. Absence of a policy on chronic pain

Dealing with the presence or absence of a chronic pain policy and whether this creates a discrimination against the worker, the panel has undertaken a broad review of WCB policies, and notes that there is in fact an extraordinarily short list of medical conditions for which specific WCB policies have been developed. These include hearing loss, shoulder dislocations, insect bites, and a limited number of cancer conditions.

Instead, WCB Policy 44.40.10 Wage loss - Evidence of Disability describes an open-ended process, stating that “Compensation benefits are payable only where there is medical, or similar, evidence of a disability arising from a compensable incident or condition..” Again, this policy invokes an evidence-based approach to the consideration of a worker’s functional capabilities. The panel further notes that subsection 60(4) provides that decisions shall be made on the basis of the real merits and justice of the case.

After due consideration, the panel finds that the absence of a specific policy for the adjudication of a specific medical condition does not equate to a discriminatory practice. With the exception of technically measurable medical conditions (such as hearing loss which can be measured in decibels), the vast majority of medical conditions, whether physical or psychological in nature, are fluid and must be considered and weighed against a variety of considerations.

3. Impact of Martin Case

The worker relies upon a Supreme Court of Canada decision, Nova Scotia (Worker’s Compensation Board) v. Martin, [2003] 2 S.C.R. 504, in support of his position that the WCB has discriminated against him in dealing with his chronic pain. The panel has reviewed the decision and notes that the workers compensation legislation and regulation in Nova Scotia formally established a time limit on the benefits payable to workers diagnosed with a compensable chronic pain condition. The panel notes that the SCC decision found the legislated time limit to be inappropriate and discriminatory, as it was arbitrary and not based on the usual practices for other types of work injury, which would deal with the usual criteria of medical recovery or loss of earning capacity. In Nova Scotia, this meant that workers with chronic pain who had reached the cut-off point (and were deprived of ongoing benefits at that point) were not on an equal footing with other injured workers, thus breaching the discrimination protections provided in the Canadian Charter of Rights and Freedoms.

While the worker appears to believe that the Martin case proposes that wage loss benefits cannot be reduced or terminated in any case where there is an accepted chronic pain condition, the panel does not have the same view of that case. The Martin decision did not find that termination of all chronic pain claims was wrong. It simply struck down the legislated time-based limit to benefits. In the panel’s view, this leaves chronic pain diagnoses to be adjudicated within the workers compensation system in exactly the same way as any other compensable physical or psychological injury.

The panel notes, in any event, that there are no provisions in the Manitoba Act or WCB policies with respect to chronic pain that mirror those found in the challenged Nova Scotia legislation and regulations. As such, there is no improperly applied “rule” to this case, as there was in the Martin case.

Further, on review of the prior decisions made by the WCB in the case before us, it appears that the decisions made (whether correct or incorrect) were based on the merits of the medical and other information before the adjudicators, which would be the standard practice of the WCB and the practice endorsed by the Supreme Court of Canada in the Martin decision.

Based on these observations, the panel finds that there are no sections of the Act or policies dealing with chronic pain for it to rule upon with respect to discrimination, and that the WCB’s current practices of dealing with this particular condition – on the merits of the matter – are not discriminatory, within the facts of this case.

For the reasons noted above, based on a balance of probabilities, the panel is not prepared to make a finding of discrimination within the meaning of section 9 of the Code. The panel finds that the WCB has appropriately assessed the worker’s condition, including his chronic pain condition, and has provided services to the worker based upon the individual merits of his case. The panel finds that the reduction in the worker’s wage loss benefits is due to the impact of his injury upon his earning capacity and not to the label attached to his condition.

Worker’s Request for Permanent Impairment Assessment

The worker noted that WCB Policy 44.90.10.02, Permanent Impairment Rating Schedule, does not provide an impairment award for chronic pain. The worker argued that the absence of a rating for chronic pain is proof that chronic pain conditions are treated differently than other conditions. The worker asks that an individual evaluation/assessment be done on him to assess for a permanent chronic pain impairment and/or disability. The panel notes that the issue of entitlement to an impairment award has not been addressed by the WCB’s Review Office and therefore is not before the panel. In accordance with subsections 11(1) of Manitoba Regulation 279/91, Appeal Commission Rules of Procedure, the panel is not able to address the worker’s request for an impairment assessment. The panel is limited to considering the issues related to the worker’s entitlement to benefits beyond November 28, 2006 including the reduction of such benefits.

Decision on Issues before the Panel

Worker’s Position

The worker was represented by a worker adviser and his wife. The representatives and the worker made submissions to the panel.

In regards to the first issue, whether the worker is entitled to benefits after November 28, 2006, the worker advisor submitted the medical evidence does not support a finding that he has recovered from the 1996 injury. The worker advisor advised that the worker sustained a traumatic injury to his L5-S1 disc in 1996 for which he was surgically treated, and that he experienced ongoing low back, left leg pain and dysfunction following the surgery. She noted that MRI reports, past and current, reveal a post surgical scar on the S1 nerve root which has been determined to be the source of his pain and dysfunction. She referred to a December 2006 report from the worker’s physiotherapist, which noted that the worker has chronic low back pain with left leg radiculopathy and that these findings are similar to a 2004 assessment. The worker advisor also submitted that the worker developed psychological symptoms secondary to the 1996 injury and that he continues to have these symptoms to this day.

Regarding the second issue, whether the worker is entitled to full wage loss benefits, the worker advisor stated that the worker’s position is that the combined physical and psychological effects from the injury are barriers to him participating in full-time minimum wage employment.

The worker described the workplace accident and its impact on his life. He stated that he has had dramatic losses due to the injury. He stated that he is unable to play with his children, has limited social activity, is unable to play sports or participate in hobbies, has difficulty mowing the lawn or shoveling his driveway and has problems with sleep. He also advised that the injury has affected his relationship with his wife.

The worker advised the panel there are many barriers that prevent him from participating in full-time minimum wage employment. He stated that pain causes functional limitations which include:

- difficulty sitting and standing for extended periods of time

- difficulty weight bearing on both feet in one spot for very long, has to move or shift the positioning of his feet frequently to help alleviate pain

- difficulty standing in one position very long, especially on hard surfaces

- difficulty going up stairs

- requires a walking stick for long distances and notes the further the distance the worse the pain

- problem with his bowel and other abdominal pain

The worker discussed the videotape evidence. He explained his activities on the tapes. He submitted that the tapes do not demonstrate that he was active, repetitively doing the same activities for consecutive days with long periods of physical endurance without rest periods or signs of fatigue or pain. He stated that the reports accompanying the tapes are written in subjective and slanted vocabulary.

The worker’s wife provided the panel with a written file summary.

Employer’s Position

The employer was represented by an advocate and manager from its general claims division. The advocate made a submission on the employer’s behalf.

On the first issue, whether the worker is entitled to compensation benefits subsequent to November 28, 2006, the employer’s position is that the worker is not entitled to compensation benefits. The advocate submitted that a multitude of evidence on file shows that the worker has failed to mitigate the effects of his injury. She submitted that the failure to mitigate is sufficient to disentitle the worker from further benefits.

The employer advocate submitted further that videotape surveillance, conducted in August 2006, over a period of 17 consecutive days, shows that the worker is not disabled as he had declared to the WCB. The videotape evidence included pictures of the worker assisting at a fundraising car wash, driving from rural Manitoba to Winnipeg, moving suitcases, and attending a sports tournament as a parent. She noted that the worker was able to crouch, stoop and weight bear on the videotapes. She submitted that the videotape evidence captured the worker’s true capabilities, confirming beyond any reasonable doubt that the worker was engaged in misrepresentation of an egregious nature. She submitted that the worker’s actions amounted to fraud.

In support of the employer’s position, the employer’s advocate referenced various medical reports, WCB correspondence and memos, and the surveillance videotapes. She submitted that the WCB memos and medical reports show there is a marked discrepancy between the worker’s claimed disability and the objective findings. She stated that the employer believes that from the onset of the claim, the worker resisted all attempts at rehabilitation or improved functioning, primarily due to his lifestyle choice to stay home and care for his children.

With respect to the second issue before the panel, whether the worker is entitled to full wage loss benefits beyond November 28, 2006, the employer’s advocate submitted that the videotapes and medical opinion do not support this finding.

The employer’s advocate acknowledged that the worker did have a serious back injury and that the surgery, while correcting a disc herniation and nerve root entrapment, did leave him with a small amount of scar tissue which causes him pain. She also noted that he has a minor non-compensable disc problem at L4-5. She submitted that while the worker may have pain, the videotape evidence shows that it does not limit his function.

Analysis

This appeal dealt with two issues relating to the worker’s entitlement to wage loss benefits. The employer appealed the Review Office decision that the worker was entitled to further partial wage loss benefits. The worker appealed the Review Office decision which found that the worker is capable of minimum wage employment. Effectively, the worker is seeking full wage loss benefits, and the employer is seeking no wage loss benefits to be paid to the worker.

The first issue before the panel was whether the worker is entitled to any compensation benefits subsequent to November 28, 2006. The employer argued that the worker was not entitled to further WCB compensation benefits. For the appeal of this issue to be successful, the panel must find that the worker’s loss of earning capacity beyond this date was not caused by the worker’s workplace injury or alternatively that the worker failed to mitigate the consequences of the accident and that his benefits should be suspended. The panel was not able to make this finding.

The panel notes that one basis for the termination of a worker’s benefits is that the worker’s loss of earning capacity is no longer due to the workplace injury. This argument is often made when medical or other evidence demonstrates that the worker has fully recovered from the injury, or when there is another cause for the loss of earning capacity, such as a pre-existing condition. Alternatively, where a worker has permanent compensable restrictions, the argument might be made that the worker is able to work in an identified modified duty position that would allow him to recoup his pre-accident wages. In this case the evidence does not support a finding that the worker had recovered nor is another cause identified nor is the worker able to recoup his pre-accident wages. The panel finds that the worker’s loss of earning capacity is a result of the accident and is compensable in accordance with section 39(1) of the Act.

The employer advocate asked that the panel suspend the worker’s benefits in accordance with Section 22 of the Act. She stated that the worker failed to mitigate the consequences of the injury and that his benefits should be permanently suspended. She alleged that the worker failed to cooperate with the WCB in implementing programs for return to work and rehabilitation. She referred to various WCB memos and medical reports which questioned the worker’s motivation and willingness to participate in vocational rehabilitation and other plans to return the worker to fruitful employment. She noted memos and reports which recorded the worker’s limitations resulting from his injury and contrasted this to the surveillance evidence. She stated that surveillance evidence established that the worker had misrepresented his level of disability. Her argument, in a nutshell, is that had the worker cooperated with the WCB and employer in the vocational rehabilitation plan, he would have returned to work either with the employer or to other comparable work and would not have a loss of earning capacity.

The panel is unable to agree with the employer’s position and does not find that the vocational rehabilitation plan and other efforts to return the worker to comparable employment, would have succeeded but for the worker’s deliberate failure to cooperate. The panel notes that the WCB determined that the worker was not a suitable candidate for VR and is not prepared to find that the worker would have recovered his earnings had he participated in VR. As well, the panel finds the evidence regarding modified duties with the employer to be unclear at best and is not prepared to find that the worker could have been rehabilitated or accommodated to a position with the employer that would have paid him at his pre-accident wage levels.

The panel notes that the worker sustained a serious injury and still suffers the effects of the injury which in turn is the cause of his loss of earning capacity. There are, in fact, permanent compensable physical restrictions subsequent to the worker’s surgery that preclude the worker from returning to his pre-accident job duties. In light of the worker’s injury and related symptoms, the panel is unable to find that the worker deliberately misled the WCB through his actions or that he demonstrated a capacity for a full return to work. Ultimately, the panel finds that the worker’s partial loss of earning capacity has been established under subsection 40(1) of the Act. The worker does have a capacity to work as of and after November 28, 2006. The panel dismisses the employer’s appeal and finds that the worker is entitled to partial wage loss benefits after November 28, 2006. The employer’s appeal is dismissed.

The panel notes that the employer’s issue refers to compensation benefits and not solely to wage loss benefits. Given its conclusions on this issue, the panel also concludes that the worker is entitled to other compensation benefits. The panel agrees with the April 4, 2007 Review Office decision that determined the breadth of the benefits is the ongoing responsibility of the WCB.

The panel’s decision on the employer’s appeal does not conclude the matter. The panel acknowledges there is a valid question of the extent to which the worker’s function is impaired by the injury. This leads to the second issue before the panel.

The worker appealed the Review Office determination stating that he is not entitled to full wage loss benefits beyond November 28, 2006. The worker argued that he was not capable of working full time at minimum wage and that his wage loss benefits should not have been reduced. He argues that no appropriate job has been found that respects his physical and psychological injuries, and therefore he is entitled to full benefits. For the appeal of this issue to be successful, the panel must find that worker is not capable of minimum wage employment. The panel was not able to make this finding.

The panel viewed the surveillance evidence obtained by the employer and finds that the evidence establishes that the worker has significantly more function than previously considered to be the case. The panel finds that the worker’s function is not as limited as the worker had claimed and continues to claim. In particular, the panel notes that the video surveillance demonstrates a level of functioning greater than the worker claimed at meetings with WCB staff and physicians and at the hearings. The worker demonstrated the ability to perform many activities, including, walking, standing, sitting and the use of both hands and arms. Some of the activities were performed over an extended time. While the panel is satisfied that the worker is not capable of returning to his pre-accident employment as a heavy duty machine operator or to comparable employment, it finds that the worker is capable of working in a sedentary position on a full time basis.

At the hearing the worker referred to medical reports in support of his position. The panel considered these reports but places little weight on the reports as the healthcare providers did not view the August 2006 videotapes. The worker’s former treating physician, reviewed possible job descriptions in July 2002 and concluded that the worker was “…unable to fulfill the function of any of these occupations.” The panel notes this report was prepared many years before the surveillance videotapes and that the physician did not have the benefit of viewing the videotapes and seeing the worker’s functional status in 2006. The worker’s treating chiropractor provided a report, dated November 2, 2007 in which he concluded that “…the worker is rendered virtually unemployable by standards of today’s employers.” The worker confirmed that the chiropractor did not view the videotapes.