Decision #90/08 - Type: Workers Compensation
Preamble
The worker has a claim with the Workers Compensation Board (“WCB”) for a compensable right knee condition that occurred in the workplace on September 15, 1997. He subsequently became involved in a vocational rehabilitation program which ended without securing employment for the worker and led to a deemed post accident earning capacity of $320.00 per week effective October 8, 2007. The worker disagreed and filed an application to appeal with the Appeal Commission. A hearing was then held on May 29, 2008 to consider the matter.Issue
Whether or not a deemed post-accident earning capacity of $320.00 per week should have been implemented as of October 8, 2007.Decision
That a deemed post-accident earning capacity of $320.00 per week should have been implemented as of October 8, 2007.Decision: Unanimous
Background
On September 15, 1997, the worker was moving a barrel at work when he slipped and twisted his right knee. He was subsequently diagnosed with an ACL deficient knee and advanced osteoarthritis. On March 7, 2006, the worker underwent a total knee replacement which was accepted as a WCB responsibility.
In a follow-up report dated October 24, 2006, the treating surgeon stated the following:
“…He has full extension and flexes to about 115 degrees. His swelling has resolved very nicely. His X-rays look fine. In spite of this, he continues to complain of quite marked pain all around the knee. I do not know why he is having such discomfort. I have told him that most total knees tend to improve for about a year postop so hopefully he will, in fact, make some further gains. He was a heavy equipment operator and is not going to go back to that kind of work but if he can be found sedentary work, he can do that now…”
Based on the above opinion, it was determined by worker’s WCB case manager that he was fit for a return to work in a sedentary capacity on a full time basis. After receiving no response from the accident employer as to whether they were able to accommodate the worker with sedentary employment, it was determined by the WCB that the worker could resume his participation in a job search in NOC 6623, Other Elemental Sales that was previously placed on hold because of his knee replacement surgery. As the worker claimed that he was unable to return to alternate or modified duty work in any capacity, the decision to resume a job search was placed on hold pending further investigation.
In a progress report dated December 11, 2006, the treating physician noted that the worker had a total right knee replacement in March and that his pain was worse than pre-op. Tylenol #3 was being used for pain. There was a post-operative infection which had resolved. The worker’s range of motion was assessed at 0 to 120 degrees. The physician commented that the worker was not fit for modified or alternate duties.
On January 9, 2007, the treating physiotherapist reported that the worker had severe low back pain and instability of the left knee. The right knee’s range of movement had improved to 6 inches heel to buttock. In a further report dated March 27, 2007, the therapist noted that traveling over 100 km was not appropriate as it caused the worker tremendous low back pain with sitting.
On April 27, 2007, a WCB medical advisor was asked to comment on whether there was a causal relationship between the worker’s back problem and his right knee complaints. On May 1, 2007, the medical advisor opined that there was no compelling reason to conclude that there was a cause and effect relationship between any of the worker’s current or ongoing back complaints and the reported workplace injury of 1997. Based on the fact that the worker had severe osteoarthritis of his knee ultimately leading to joint replacement, the medical advisor said it was reasonable to assume that the worker also had osteoarthritis of the spine and that the osteoarthritis was, on a balance, more likely to be the source of his back complaints.
On May 3, 2007, the treating physician reported that the worker was using 20 Tylenol #3 per day. His impression of the worker’s condition was right radicular pain. The worker’s medication was changed from Tylenol #3 to Percocet adding Lyrica.
The worker was examined by a WCB orthopaedic specialist on July 3, 2007. The examination did not identify an ongoing clinical problem in the lumbar spine or evidence of radiculopathy in the right lower limb or evidence of any limitation in the right hip joint. It was determined that the worker had full recovery of range of motion compared to the pre-op level and there was no change in the range of motion of the left knee joint. He felt that the worker was capable of occasional lifting and carrying of small objects and occasional walking and standing.
In a decision dated July 17, 2007, the WCB case manager advised the worker of the opinion expressed by the WCB medical advisor of July 3, 2007. She further advised the worker that following review of relevant information, his back problems were not related to his compensable injury. The worker was advised that the remaining six weeks of job search assistance as part of his vocational rehabilitation plan would resume August 27, 2007 and would end on October 5, 2007.
In a letter to the worker dated August 15, 2007, a WCB manager clarified the WCB’s position on a number of concerns that were outlined by the worker. She stated the following:
· based on the opinion of the WCB orthopaedic consultant, the worker was capable of working on a full time basis within his restrictions and there was no need for restrictions to driving due to his compensable knee injury. It was the consultant’s opinion that the use of narcotics was not an impairment to the worker’s driving ability.
· there was no causal relationship established between the worker’s back pain and his right knee injury.
· although it was determined the worker had full range of motion post surgery, the statement did not suggest that he had fully recovered and was able to return to his pre-accident duties. It was recognized that the worker had unexplained knee pain. The treating physician on April 19 indicated that a graduated return to work was preferable starting at 4 hours per day but he did not provide a full clinical picture and rationale for imposing travel restrictions and restrictions to hours worked.
· the WCB orthopaedic consultant stated the worker was capable of sedentary work and his up-to-date current restrictions (the worker’s previous restrictions were no longer in effect) in relation to his right knee were no lifting greater than 10 lbs., capable of occasional lifts and carrying of small objects and occasional walking and standing.
· it was recognized that the worker had an impairment to his hearing which was corrected by hearing aids and it was not felt that this was a barrier to his vocational plan.
· it was confirmed with the accident employer that they were unable to accommodate the worker with work that was within his restrictions. As such, the WCB’s mandate was to provide service to workers consistent within the principles of WCB policy 43.00, Vocational Rehabilitation. Given the worker’s current compensable right knee restrictions, the Vocational Plan for Elemental Sales, NOC 6623 that was first established in 2004 continued to be appropriate.
On August 22, 2007, the treating physician wrote Driver and Vehicle Licensing and stated, “…[the worker] tells me he is on Percocet, 2 tablets every six hours as prescribed by another physician. I have advised him that I would not recommend that he drive while he is still on this medication.” Further file documentation indicates that according to the Royal Canadian Mounted Police in Gimli, it is an offense under the criminal code S.253 for him to operate a vehicle while taking Percocet.
A WCB manager advised the worker on August 22, 2007 that he was not eligible for another 22 weeks of job search as the use of job search entitlement was cumulative. It was concluded therefore that the worker was entitled to 6 weeks of job search which was scheduled to start on August 27, 2007. The worker disagreed with the decision and filed an appeal with Review Office.
On August 27, 2007, an employment specialist outlined leads for the worker based on NOC 6623, Telemarketing.
In a letter to the worker dated August 29, 2007, the WCB case manager stated, in part, the following:
“Regarding the use of Percocet and driving, the opinion provided by the Medical Advisor is that there are many patients with pain using Tylenol #3 and Percocet and other analgesic in a dosage sufficient to control their symptoms and whose driving ability will not be affected. It is his opinion there is no identified pain generator arising out of the right total knee replacement arthroplasty to require this quantity of narcotic analgesic medication. It appears the apparent increased pain requiring increased quantity and nature of analgesics medication arose out of the lower back, right buttock, hip and leg, unrelated to the compensable injury. In reviewing the report from [treating physician] to the Motor Vehicle Branch, this was only a recommendation.”
On September 5 and 12, 2007, job leads were provided to the worker by his Employment Specialist (“ES”).
On September 18, 2007, Manitoba Public Insurance indicated that the worker’s driver’s license and right to obtain a license was suspended pursuant to section 18(3) of The Drivers and Vehicles Act commencing September 28, 2007, as it received information which indicated that his medical condition may be such as to impair his ability to operate a motor vehicle.
On September 20, 2007, the ES outlined details of a meeting that took place with the worker, his union representatives and other WCB staff. The discussion surrounded the worker’s contention that his IWRP in NOC 6623 was not appropriate for the following reasons:
· travel distance between home and most Winnipeg workplaces was greater than 100 kms;
· even if the distance to travel was under 100 kms., traveling to work everyday did not make economic sense for jobs that paid less than $10.00 per hour;
· the worker lost his driver’s license and therefore would not be able to travel to Winnipeg on a daily basis,
· even with hearing aids it would not allow him to fulfill the duties associated with most call centre positions;
· he had no computer skills to perform most positions in NOC 6623.
The union representative indicated that in his opinion, the worker was unemployable because he was 22 months from retirement and should be bridged with full wage loss benefits from the WCB until then. He thought it was ridiculous for the worker to travel almost 100 kilometers to Winnipeg on a daily basis for wages less than $10.00 per hour.
In a decision dated October 11, 2007, the worker was informed that his vocational rehabilitation plan completed on October 7, 2007 and that his file was presented before the Deem Committee for authorization of being deemed capable of earning $320.00 per week. It was determined that he was capable of earning a weekly amount of $320.00 and therefore effective October 8, 2007 his benefits would be reduced by this amount entitling him to $346.04 per week.
On October 20, 2007, the treating physician provided the WCB with information pertinent to the worker’s medication intake. On November 9, 2007, a WCB medical advisor reviewed the report and was of the following opinion:
· the amount of medication taken by the worker would not adversely affect his ability to perform sedentary duties;
· while the majority of people using this dose of opioids on a relatively chronic basis would likely be able to drive safely, the worker’s family physician had concerns related to reported adverse effects related to opioids use. The worker’s treating physician reportedly advised the worker not to drive and reported this to the Driver and Vehicle Licensing who reportedly withdrew the worker’s driving privileges.
In a decision dated October 12, 2007, Review Office confirmed to the worker that he was not entitled to additional job search weeks and the associated benefits and services. Review Office’s opinion was that it was counterintuitive to provide additional job search weeks to a worker who maintained that he was unemployable.
A further decision letter was issued to the worker dated November 20, 2007. The case manager advised the worker that after discussing his case with a WCB medical advisor, the loss of his driver’s license and his medication intake did not affect his earning capacity and his ability to perform sedentary duties; and the decision made on August 29, 2007 remained in effect.
On November 29, 2007, the worker’s union representative appealed the WCB’s decisions of October 11 and November 20, 2007 that the worker had been deemed capable of earning $320.00 per week as of October 8, 2007.
On January 28, 2008, the WCB case manager informed the worker of the opinion expressed by a WCB medical advisor that the medication Percocet was being prescribed for his compensable right knee injury and non-compensable back pain. He was further advised that the decision to continue ongoing responsibility for the medication did not alter the decision to reduce his wage loss benefits by his deemed earning capacity.
In a January 30, 2008 decision, Review Office confirmed that the deemed post accident earning capacity of $320.00 per week should have been implemented as of October 8, 2007. Review Office did not agree that the worker had significant compensable and non-compensable constraints on his ability to work. It noted the worker’s position that he was severely limited in his ability to access work because of his use of a narcotic medication for pain control, the associated removal of his driver’s license and where he lived. Review Office indicated there was no information to indicate that the worker spoke to his doctors regarding using a different medication which could control his pain with less limiting side effects. The worker said his medication caused him to feel sedated to the point where he considered that he was unable to drive safely. He reported this to his doctor who caused his driver’s license to be removed.
Review Office noted that the worker was taking narcotic medication for his knee and back complaints and that doctors have queried why he was taking this medication for his knee as the procedure done to the worker’s knee was expected to substantially reduce, if not eliminate, his knee pain. Review Office also made reference to its prior decision dated October 12, 2007 in reaching its decision. On February 5, 2008, the worker’s union representative appealed Review Office’s decision to the Appeal Commission and an oral hearing was arranged.
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 “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: “A worker’s post-accident earning capacity will be equal to his/her actual earnings unless the WCB demonstrates that the worker is capable of earning more than the amount actually being earned.” The Policy then sets out a number of requirements for the WCB to demonstrate when determining a worker’s deemed earning capacity.
Worker’s Position
At the hearing, the worker was represented by an advocate and a submission was also made by his wife. The position taken by the worker was that the employment opportunities and occupational goals pursued by the WCB on behalf of the worker were beyond his capability physically and mentally. It was noted that the worker continued to suffer from pain in his knee, which was so severe that narcotic medication was required on a daily basis. Because of the medication, his driver’s license was revoked, which created an additional barrier to finding suitable employment. The worker had a grade 5 education and worked manually for 27 years for his employer. His job duties never involved any sort of record keeping or administrative skills. His computer skills were virtually nonexistent. In addition, the worker had a hearing impairment. While the impairment was corrected by a hearing aid, the worker argued that when speaking on the telephone, the sound “echos in his ear” and caused him to avoid using the phone whenever possible. The overall position was well summarized by the worker’s wife who submitted: “Trying to convert a 58 year old whose only job experience is general labourer and who has been out of the workforce for ten years, only having a formal grade 5 education, compensable hearing impairment and comprehension problems and confirmed memory retention and retrieval learning disabilities … into a telemarketer or any form of clerk or paperwork was never realistic or reasonable.”
Analysis
The issue before the panel is whether or not the deemed post accident earning capacity of $320.00 per week should have been implemented as of October 8, 2007. In order to decide the issue, 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. In our opinion, the worker was and is capable of earning $320.00 per week.
When reviewing the evidence, the panel notes that there is very little evidence to support that the worker is totally disabled from working at the present time. While the treating physician reports in his progress report of April 23, 2008 that the worker is not capable of alternate or modified work, the handwritten comment indicates “none available.” The October 3, 2007 progress report from the treating physician more clearly outlines the worker’s capabilities and states: “Sedentary (sitting job), not able to travel long distances secondary to med use and no license.” Thus, we understand the treating physician to be saying that although the worker could be employed in a sedentary position, he would not be able to travel long distances to get to such work. The treating physician did not say that the worker was totally disabled from any kind of employment.
A discharge assessment from a treating physiotherapist dated April 2, 2008 indicates that the worker is capable of alternate or modified work and outlines restrictions as: “no squatting, lifting more than 20 lbs, prolonged ambulation.”
The worker’s own evidence at the hearing was that any job which required him to be on his feet all day would be a “no-no”, but physically, he may be able to perform a job that would allow him to sit and stand and walk around whenever he needed to. The worker’s advocate also acknowledged that while the worker is very restricted in what he can do, he could probably sit in a booth for four hours and hand out parking tickets.
At the hearing, much time was devoted to arguing that the worker lacked the mental ability to perform administrative or computer-based duties. The panel does not accept that the worker is impaired in this regard. There are no medical reports which would indicate that the worker has a low I.Q. which would prevent him from finding employment. In fact, the reports on file indicate otherwise. As part of the vocational rehabilitation services, the worker was assessed by a psychologist and a reading clinician. Neither raised any concern with cognitive ability.
The January 29, 2002 vocational assessment performed by a psychologist indicated that the worker appeared to be an individual with learning abilities and academic skills which generally fall in the globally average range. Vocational possibilities were listed as including: seated food service, seated assembly and industrial arts, health supply and support work, serving work, clerical work, graphics and printing, pc work and technical work, bookkeeping, customer service, drafting, call centre work, bench repair, and hotel/restaurant supervision.
Although by letter dated September 9, 2007, the reading clinician identified problematic issues regarding the worker’s retrieval abilities due to the 3 year passage of time, the original tutorial report by the clinician in April 2004 indicated an improvement in functioning from a grade 7/8 range in reading to a grade 10+ range for vocabulary and reading, when given extra time. She stated in 2004 that the worker’s strength was in comprehension of material, and that with guidance relating to specific written on the job tasks, he should be able to meet an employer’s expectations.
In view of these reports, the panel does not accept that the worker is cognitively unable to learn new job skills which would enable him to obtain new employment.
In November, 2007, the WCB performed an earning capacity assessment, which excluded the Winnipeg market, despite Winnipeg being within 100 kilometers of the worker’s place of residence. Under WCB policy, a worker’s labour market normally includes all centres within 100 kms of where the worker resides. While the earning capacity assessment was focused on the position of telemarketer, it also identified four possible non-telemarketing positions which were available in the worker’s proximate area. The panel notes that the NOC 6623 classification is not limited to telemarketing, but also includes other sales positions such as retail sales.
When questioned at the hearing about actual attempts to find employment, the worker could identify only limited activity in that regard. There was reference to talking with one local business, which turned him down due to his restrictions, and vague references to following up on home-based job opportunities, which the worker claimed were disinterested in him on the grounds that he could not do any prolonged sitting. The panel notes that if the work were home based, the worker would have opportunity to stand up or sit down as required by his knee condition, so the purported reasons for disinterest by the potential employers do not appear to make sense. There was also discussion at the hearing regarding a potential cashier position which was available. The worker’s wife indicated that she attended at the location and determined that the job would be impossible for the worker due to the location of the cash register. The worker’s wife also opined that the worker could not handle cash registers as it would “blow his mind”. After hearing the evidence, it was the panel’s impression that there was reluctance on the part of the worker to fully explore potential job opportunities in NOC 6623 due to a pre-conceived belief that such a position would not be suitable for him, both physically and cognitively.
In the panel’s opinion, as of October, 2007, there was a proximate job market available to the worker in NOC 6623 either as a telemarketer or in another sales-type position.
With respect to the concerns raised by the worker about his limitations in driving, we note that the earning capacity assessment excluded the Winnipeg area and was thus limited to the job market within a reasonably close distance to the worker’s residence. At the hearing it was acknowledged that if a job opportunity became available that was “close by”, it would not be a problem as someone (presumably a family member) could drive him to work. We therefore find that the worker’s lack of a driver’s license does not pose a significant barrier to the worker’s ability to find employment.
On considering the evidence as a whole, we are of the view that the worker is not totally disabled and is able to obtain and engage in some form of employment. While it may be that due to his hearing aid, telemarketing is not the perfect job for the worker, the wage rate of $320 per week is equivalent to earning minimum wage for a 40 hour week. We find that the worker is capable of sustaining a level of employment consistent with earning at least minimum wage. It is therefore the panel’s decision that, on a balance of probabilities, a deemed post accident earning capacity of $320.00 per week as of October 8, 2007 was appropriate and should have been implemented. The worker’s appeal is denied.
Panel Members
L. Choy, Presiding OfficerA. Finkel, Commissioner
M. Day, Commissioner
Recording Secretary, B. Kosc
L. Choy - Presiding Officer
Signed at Winnipeg this 24th day of July, 2008