Decision #102/08 - Type: Workers Compensation

Preamble

On October 23, 2002, the worker injured his low and middle back while performing his work duties as a press operator. The claim for compensation under The Workers Compensation Act (the “Act”) was accepted by the Workers Compensation Board (“WCB”) and various types of benefits and services were awarded to the worker. The worker has since appealed a number of decisions that were made by primary adjudication and confirmed by Review Office. As the worker disagreed with the decisions rendered by Review Office, he filed an application to appeal with the Appeal Commission. A hearing by teleconference was then held on June 19, 2008 to consider the issues as outlined below.

Issue

Whether or not a Medical Review Panel should be convened pursuant to subsection 67(4) of the Act to consider matters relating to chronic pain syndrome and the worker’s Permanent Partial Impairment;

Whether or not the worker’s Permanent Partial Impairment has been correctly calculated to be 13%;

Whether or not the worker’s Permanent Partial Impairment, not including the 1% rating for scarring, should be subject to a 50% reduction on the basis of a major pre-existing condition;

Whether or not the worker’s Canada Pension Plan disability benefit should be considered a collateral benefit and reduced from his WCB wage loss benefit;

Whether or not the worker’s restrictions are appropriate;

Whether or not the worker is capable of participating in vocational rehabilitation; and

Whether or not it was appropriate for the WCB to find that the worker failed to mitigate his claim by not participating in vocational rehabilitation and therefore deem him capable of earning $320.00 per week.

Decision

That a Medical Review Panel should not be convened pursuant to subsection 67(4) of the Act to consider matters relating to chronic pain syndrome and the worker’s Permanent Partial Impairment;

That the worker’s Permanent Partial Impairment has been correctly calculated to be 13%;

That the worker’s Permanent Partial Impairment, not including the 1% rating for scarring, should be subject to a 50% reduction on the basis of a major pre-existing condition;

That the worker’s Canada Pension Plan disability benefit should be considered a collateral benefit and reduced from his WCB wage loss benefit;

That the worker’s restrictions are appropriate;

That the worker is capable of participating in vocational rehabilitation; and

That it was appropriate for the WCB to find that the worker failed to mitigate his claim by not participating in vocational rehabilitation and therefore deem him capable of earning $320.00 per week.

Decision: Unanimous

Background

On October 23, 2002, the worker bent over to pick up a heavy roll of paper when he developed a pinch and shock like pain in his back. The diagnosis rendered at the time of injury was acute mechanical low back pain and degenerative disc disease. He remained off work until November 2002 when he returned to modified duties with reduced hours.

An x-ray taken November 13, 2002 showed severe degenerative narrowing of the L5-S1 interspace.

The worker’s recovery was slow and in February 2003, a CT scan was performed. The results showed minor diffuse posterior disc bulging at L4-L5 and moderate central and left paracentral disc protrusion at L5-S1.

Subsequent file records indicate that the worker was assessed by a WCB medical advisor on October 7, 2003 who felt that the worker suffered an aggravation of his pre-existing degenerative condition of the discs and facet joints and that the aggravation had not yet resolved. It was suggested that the worker continue with modified duties while he underwent further physiotherapy treatments. Work restrictions included the avoidance of lifting greater than 20 lbs., repeated flexion or twisting of his spine, etc.

On February 18, 2004, the worker was again examined by a WCB medical advisor who commented that the examination findings were similar to the findings on October 7, 2003. The medical advisor felt that a combined effect between the compensable injury and the worker’s pre-existing condition still remained. There was no evidence of any nerve impingement to suggest that a disc herniation was still at play. The medical advisor stated that the prognosis for the worker to return to his regular duties was poor and a Functional Capacity Evaluation (“FCE”) was recommended to determine his work capabilities.

In a report dated April 19, 2004, a physical medicine and rehabilitation specialist’s impression of the worker’s condition was “discogenic pain with radiculopathy.”

On April 29, 2004, the worker was assessed at the WCB’s Pain Management Unit (“PMU”). On June 22, 2004, the PMU medical advisor documented that the worker did not meet the WCB’s diagnostic criteria for chronic pain syndrome.

In June 2004, based on FCE results, temporary restrictions for the worker were outlined as follows:

· No lifting over 20 pounds at, or above, shoulder level;

· No carrying over 20 pounds over a distance greater than 30’;

· No lifting from the floor over 10 pounds;

· No pushing and pulling of items over 50 pounds;

· No sustained sitting or walking; and

· No repetitive crouching or kneeling.

In a July 5, 2004 report, the physical medicine and rehabilitation specialist reported that the worker continued to experience radiculitis that was mainly affecting his left leg.

On July 27, 2004, the worker attended a hospital emergency facility with complaints of “low back pain progressively worse”. The reported diagnosis was low back muscle spasm.

On August 18, 2004, the physical medicine and rehabilitation specialist’s impression of the worker’s condition was persistent left L5 radiculitis due to left L4-5 disc herniation. The worker was encouraged to continue with modified duties and was to be reviewed again in three months.

In September 2004, the worker injured his low back when he slipped and fell while at home. When seen by a WCB medical advisor on September 13, 2004, the following was reported, “…continues to suffer from an aggravation of his pre-existing degenerative disc condition….there is some nerve irritation causing the tingling going into his foot…there were many more pain behaviors…he is developing some type of chronic pain syndrome…It is my opinion that the fall was not caused in any way by his compensable injury and time loss should not be WCB responsibility.”

On September 22, 2004, the treating physician noted severe pain in the worker’s low back with radiation into his left leg and that he could not sit or stand for too long. The physician noted the worker was seeing a neurosurgeon in January 2005 and that he was not capable of alternate or modified work.

On September 24, 2004, the worker was advised by his WCB case manager that the WCB was not accepting responsibility for his time loss from work between September 7 and September 14, 2004 as it was felt that his disability during this time period was not due to the compensable injury but was rather due to his slip on the stairs at home.

On November 1, 2004, the worker was diagnosed with low back pain by a hospital emergency physician. A CT scan of the same date revealed moderate central disc protrusions at L4-L5 and L5-S1.

The worker underwent surgery to repair the herniated lumbar disc at L5-S1 on December 18, 2004.

In a January 27, 2005 decision, the case manager informed the worker that there was a direct cause/effect relationship between the need for surgery and the compensable injury, therefore his benefits would be reinstated retroactive to the date of surgery. It was the case manager’s view that the worker was not entitled to wage loss benefits prior to the date of surgery as appropriate modified duties were available.

On March 16, 2005, a worker advisor argued to Review Office that there were objective findings to confirm that numbness in the worker’s leg was the probable cause for his fall and that the fall should be considered compensable based on WCB policy 44.10.80,40, Further Injuries Subsequent to a Compensable Injury.

On May 5, 2005, Review Office determined that the alternate work provided to the worker by his employer was appropriate. It also determined that the worker’s fall was not a secondary accident related to the compensable injury and that the worker was entitled to partial wage loss benefits for the period September 23, 2004 to December 19, 2004 as the employer had been paying him at a reduced rate while performing alternate duties. Review Office further concluded that the worker was not entitled to full wage loss benefits as of September 23, 2004 when he ceased participating in work activities but was entitled to partial wage loss benefits up to the date of his surgery, given that he continued to experience a loss of earning capacity.

On June 23, 2005, a WCB medical advisor outlined permanent restrictions for the worker to avoid lifting over 30 lbs., and no repetitive or sustained bending/twisting and that he should be able to change position as needed. The worker was advised that if his employer could not accommodate him with work that met these restrictions, other employment options would be looked into with the goal of recouping his pre-accident earnings.

The case was referred to the WCB’s vocational rehabilitation branch to perform an initial vocational rehabilitation assessment. This was carried out on July 12, 2005.

The worker underwent an MRI examination on July 28, 2005. There was a small central disc protrusion with minimal spinal stenosis at the L5-S1 interspace. There was also minimal enhancement within the left epidural space which was felt to be likely from fibrosis.

In a progress report dated August 8, 2005 it was indicated that the worker had chronic pain syndrome in the low back with right leg pain as well as depression due to chronic pain. On September 13, 2005, the treating physician assessed the worker with mechanical backache and radiculopathy.

On August 24, 2005, the treating neurosurgeon stated that the worker’s clinical presentation and radiological findings were not suggestive of a radiculopathy. There was no evidence of an obvious/significant inflammatory process.

The worker was interviewed by a WCB PMU medical advisor on September 8, 2005. It was determined from the assessment that the worker continued to suffer from major depressive disorder that was partially in remission, likely due to the medication he was taking along with psychotherapy. Given the presence of major depressive disorder and the fact that the worker continued to be quite active, the medical advisor opined that the worker did not meet the criteria for chronic pain syndrome.

At a PMU Case Conference held on September 22, 2005, it was stated, “…on the balance of probabilities, any remaining depressed mood is not related to the compensable injury, but rather to personality factors, psychosocial stressors unrelated to the C.I., and other lifestyle choices. As well, given his level of current functioning, the remaining depressive symptoms would not be expected to be a barrier to his participation in a vocational rehabilitation program.”

In a decision dated October 12, 2005, the worker was advised that he did not meet the WCB’s criteria for chronic pain syndrome and that the WCB was unable to accept responsibility for his depression or any related medications. The weight of medical information did not support a causal relationship between this condition and his compensable injury on a balance of probabilities. The WCB would not accept responsibility for any treatment related to chronic pain syndrome as it was felt that the worker did not suffer from this condition.

On November 20, 2005, the treating physician provided the opinion that the worker was not capable of doing any work because of his chronic back pain. He said the worker presently had severe pain, even after his surgery, and complaints of considerable radiation of pain to his left leg with continuous numbness. It seemed that surgical intervention did not improve the worker’s quality of life. Due to this failed surgical intervention and chronic pain, it was felt that the worker suffered from chronic pain and was not employable as far as physical duties were concerned.

In January 2006, the worker requested that a Medical Review Panel (“MRP”) be convened because of the difference of opinion between his doctor and the WCB medical advisor regarding the issue of whether or not he suffered from chronic pain syndrome.

In a letter to the WCB case manager dated February 14, 2006, the physical medicine and rehabilitation specialist’s impression was “Chronic left S1 radiculitis resulting from left L5-S1 disc herniation. He has developed significant neuropathic pain.”

On March 2, 2006, a WCB manager advised the worker that even though a difference of medical opinion existed, the differing medical opinions did not affect the worker’s entitlement to compensation given that he was in receipt of full wage loss benefits, was participating in vocational rehabilitation and was receiving appropriate medical treatment. Based on these factors, an MRP would not be convened in accordance with subsection 67(4) of the Act. On March 16, 2006, the worker appealed this decision to Review Office. He argued that the medical advisor’s opinion that he was not suffering from chronic pain syndrome was “affecting his entitlement to have his medications paid for by the WCB”.

On March 28, 2006, Review Office confirmed that an MRP would not be convened. Review Office outlined the opinion that “…as there is no expectation that an external physician is providing comment in regard to the WCB criteria for analyzing and determining whether or not an individual has chronic pain syndrome, it cannot be said that a difference of medical opinion exists between the WCB Pain Management Unit physicians and an external physician.”

An Individualized Written Rehabilitation Plan (“IWRP”) was developed for the worker with a start date of April 1, 2006 and an end date of September 21, 2007. The occupational goal was National Occupational Classification (“NOC”) 2282, User Support Technician. It was indicated that the physical requirements for this occupation were mainly sedentary in nature and generally offered the opportunity to change and adjust position as needed. Lifting requirements were very limited and there was no repetitive bending and lifting. It was felt that the worker’s restrictions were within the physical requirements of this NOC 2282. Upon completion of the IWRP, it was anticipated that the worker would be capable of earning the starting wage of $400.00 per week.

The worker was assessed by a WCB impairment awards physiotherapy consultant on July 14, 2006. A Permanent Partial Impairment (“PPI”) was not recommended as it was felt that the worker was not at maximum medical improvement given that he was still being treated medically. It was also indicated in a healthcare medical summary typed on August 7, 2006, that the file revealed a major pre-existing condition.

On September 11, 2006, the worker commenced a micro computer system course. By October 2006, he stopped attending classes claiming that his back pain was so severe that he was unable to participate in his VR plan.

In an October 12, 2006 report, the treating neurosurgeon noted that the worker continued to experience low back pain and cramping in his left calf. He noted that the worker underwent a contrast MRI of the lumbar spine on September 6, 2006 and that the findings were consistent with the previous study of July 28, 2005. He reported that the worker’s clinical presentation did not have an obvious radicular character and there was no radiological correlation for the worker’s recurrent sensory impairment of the left lower extremity. He recommended that the worker undergo a neurological and neurophysiological evaluation.

On October 24, 2006, a physical medicine and rehabilitation specialist’s impression of the worker’s condition was chronic left L5-S1 radiculitis and that the worker may have developed arachnoiditis (neuropathic pain). The worker was referred to another specialist for an epidural steroid injection.

In a decision dated October 23, 2006, the worker was advised of the WCB’s position that the medical evidence did not support his contention that he was unable to participate in his VR plan due to ongoing pain. The worker was advised that given his contention of total disability, effective October 23, 2006, the WCB would be invoking his deemed earning capacity of $400.00 per week and paying him partial wage loss benefits accordingly. In November 2006, the worker appealed this decision to Review Office claiming that between his pain and medication, he could not focus or concentrate and was having trouble walking and therefore could not participate in his VR plan.

On November 27, 2006, a WCB case manager noted that the worker had a major pre-existing condition and that any future PPI award would be deducted by 50%.

On January 5, 2007, a WCB medical advisor opined that based on an MRI evaluation dated September 2006, EMG studies of November 30, 2006 and a report from a neurologist dated November 30, 2006, the worker may have a legitimate complaint regarding the effects of his narcotics and that the worker was not suitable for his VR program at present.

On January 23, 2007, the WCB case manager determined that the worker was “essentially unemployable” due to a combination of pain and medication based on the WCB medical advisor’s opinion dated January 5, 2007 and that full wage loss benefits would be reinstated retroactively to the date of deem.

The worker was interviewed by a WCB medical advisor and WCB psychological advisor at the WCB’s PMU on February 27, 2007. Based on this assessment and at a PMU case conference held on March 15, 2007, it was determined that the worker did not meet the criteria for a chronic pain syndrome as per WCB criteria as the disability was not proportional in all areas of functioning. The worker did not appear to be experiencing a mood disorder and there were no diagnostic or treatment recommendations to make.

On March 22, 2007, the worker indicated that he applied for Canada Pension Plan (“CPP”) disability benefits. On April 2, 2007, the worker advised the WCB that he had been approved for CPP disability benefits retroactive to December 2005.

On June 16, 2007, the treating physician assessed the worker with chronic pain in the low back and constant radiculopathy of the left leg. This diagnosis was confirmed again by the attending physician in a progress report dated October 22, 2007.

On July 4, 2007, the worker was re-examined at the WCB for a PPI award. His total PPI was rated at 13%. As the worker had a major pre-existing condition prior to his workplace injury, his PPI rating was reduced by half to 6.5%.

In a memo dated August 14, 2007, it was noted by a WCB unit manager that the following information confirmed that the worker’s pre-existing condition was significant and contributed to his ongoing status:

· November 13, 2002 x-ray confirmed severe degenerative narrowing at L5-S1;

· A WCB call in exam confirmed ongoing complaints were due to a combined effect of the compensable injury and pre-existing condition;

· A neurosurgeon noted the worker’s disc herniation progressed since March 2004 requiring surgery, an L5-S1 laminectomy December 18, 2004. The surgery was approved as related to the compensable injury;

· In May 2005, a WCB orthopaedic specialist confirmed ongoing restrictions related to both the disc surgery and pre-existing condition.

The unit manager indicated that the application of a 50% reduction for a pre-existing condition on the PPI was warranted.

In a September 14, 2007 letter, the worker was advised of the following WCB decisions:

· that his receipt of CPP disability benefits (for the same reason he was collecting WCB benefits) was considered a collateral benefit. This resulted in a reduction in his weekly benefit from $807.42 bi-weekly down to $587.20. The overpayment was $10,208.55 which the worker was required to pay back to the WCB;

· the worker’s PPI award of 13% was reduced by 50% to 6.5% given that he had a major pre-existing condition. This entitled him to an award of $1200.00. This would be applied to his overpayment reducing it to $9008.55;

· 50% of the worker’s weekly wages would be deducted towards his overpayment. His bi-weekly benefits would be reduced from $578.20 to $289.10;

· that the worker was capable and employable of working in NOC 6623, Other Elemental Sales, at the starting wage of $320 per week with a maximum weekly wage of $371.00 per week. After receiving some job search training in resume preparation and interview skills, he was entitled to 12 weeks of benefits. If the worker was not prepared to participate by October 1, 2007, his benefits would be suspended. If he continued to refuse to participate he would be deemed capable of earning $320 a week and his benefits would be reduced accordingly.

On September 14, 2007, the worker appealed a number of decisions made by primary adjudication to Review Office.

In October 2007, the worker requested that an MRP be convened on the basis that the WCB determined he had a 6.5% PPI rating which was in contrast to CPP’s decision to award him CPP disability benefits.

On October 19, 2007, the worker’s request to convene an MRP was denied by primary adjudication as the evidence did not satisfy the requirements of subsection 67(4) of the Act.

In a November 21, 2007 decision, Review Office stated the following:

· That the reduction in the worker’s PPI rating was not correct. Review Office determined that the overall PPI rating of 13% was accurate. Review Office noted that an x-ray taken on November 13, 2002 found severe degenerative narrowing at L5-S1. It found this to be a major pre-existing condition as defined in WCB policy 44.10.20.10. The decision to reduce the PPI rating by 50% was correct. However, 1% of the gross PPI rating was for surgical scarring. As this was not affected by the pre-existing condition it should not be reduced. Therefore the worker’s reduced PPI rating should be 7% instead of 6.5%.

· That the worker’s CPP should be taken into account when calculating wage loss benefits as is required under subsection 41(2) of the Act. Therefore the worker’s wage loss benefits were correctly calculated.

· Review Office acknowledged that the worker had a significant back injury and that surgical intervention was not successful in alleviating his symptoms and there was a component to the worker’s presentation that was unrelated to his compensable injury. It noted that the worker had been capable of participating in a vocational rehabilitation plan and participated in the workforce. It determined that the various reductions in the worker’s wage loss benefits as a result of him declining to participate in the vocational rehabilitation program were appropriate.

On January 9, 2008, Review Office determined that an MRP should not be convened. It felt there was no difference of medical opinion from a physician selected by the worker which contradicted the opinion of a WCB medical advisor pertaining to the PPI rating. It therefore declined the worker’s request to convene an MRP to address the issue of his PPI rating.

The worker appealed the Review Office decisions to the Appeal Commission and a hearing by teleconference was arranged.

Reasons

There are multiple issues being appealed before the panel. Each will be addressed individually.

1. Whether or not Medical Review Panels should be convened pursuant to subsection 67(4) of the Act to consider matters relating to chronic pain syndrome and the worker’s Permanent Partial Impairment.

The worker has requested that an MRP be convened under subsection 67(4) of the Act. The relevant provisions of the Act are subsection 67(4) and 67(1).

Subsection 67(4) provides:

Reference to panel on request of worker

67(4) Where in any claim or application by a worker for compensation the opinion of the medical officer of the board in respect of a medical matter affecting entitlement to compensation differs from the opinion in respect of that matter of the physician selected by the worker, expressed in a certificate of the physician in writing, if the worker requests the board, in writing before a decision by the appeal commission under subsection 60.8(5), to refer the matter to a panel, the board shall refer the matter to a panel for its opinion in respect of the matter.

Subsection 67(1) defines opinion as "a full statement of the facts and reasons supporting a medical conclusion."

To accept the worker’s appeal on this issue, we must find on a balance of probabilities that the medical opinion of the medical officer of the WCB differs from the opinion of the worker’s treating physician within the meaning of subsections 67(4) and 67(1) of the Act. We are unable to make that finding.

With respect to the issue of chronic pain syndrome, the panel is not able to identify a medical opinion which differs from the WCB PMU’s assessment that the worker does not exhibit all of the symptoms of chronic pain syndrome. As pointed out by Review Office, when the WCB PMU performs an assessment, it uses a set of criteria or guidelines developed by the WCB to determine whether or not a worker is diagnosed as having chronic pain syndrome. It is to be noted that the diagnostic criteria used by the WCB are not the same as the diagnostic criteria used by other treatment providers; for example, the diagnostic criteria for pain disorder as per DSM IV, while similar, are not the same. In the present case, although the treating physician notes that the worker suffers from “chronic pain”, this is not the same as a finding of chronic pain syndrome pursuant to the WCB diagnostic criteria. As no physician other than the PMU medical officer went through the exercise of applying the WCB’s chronic pain syndrome diagnostic criteria to the worker’s condition, there cannot be said to be a difference in medical opinion on the matter of whether or not the worker has chronic pain syndrome.

With respect to the issue of the worker’s PPI, again there is no opinion from a physician selected by the worker to contest the determination made by the WCB medical advisor. A PPI rating is determined by the WCB primarily by reference to passive range of motion (“ROM”) measurements taken of the injured areas. In the present case, measurements were taken of the worker’s lumbar and thoracic regions (specifically: forward flexion, backward extension, right lateral flexion, left lateral flexion, right rotation and left rotation). At the hearing, the worker confirmed that there has not been another doctor, other than the WCB medical advisor, who has taken these ROM measurements. In the absence of ROM measurements which would contradict those obtained and used by the WCB medical advisor to calculate the worker’s PPI, we find that there is no difference in medical opinion which affects entitlement to benefits.

We therefore find on both the matter of chronic pain syndrome and on the worker’s PPI, there does not exist a difference of opinion as required by subsection 67(4) of the Act and consequently, there is no basis upon which to convene a medical review panel. The worker’s appeal on this issue is dismissed.

2. Whether or not the worker’s Permanent Partial Impairment has been correctly calculated to be 13%.

The worker objected to the fact that his PPI measurements were taken while he was on his pain medications. He indicated that while he might be able to achieve certain levels of mobility while medicated, he would not be able to achieve the same results if his pain was not masked by the medications.

At the hearing, some time was spent discussing the difference between the ROM tests used to arrive at a PPI versus tests for functional capacity. A PPI award is meant to reflect the extent of joint immobility which has resulted from an injury and is based simply on measurements of how far one can bend in various directions. A PPI award is not designed nor intended to reflect an individual’s ability to function in a work environment. There was also discussion of the WCB policy to calculate ROM on the passive rather than the active range. This means that the individual who is being tested is first asked to move as far as possible (ie “active” range) and then the assessor will apply pressure to obtain the maximum amount of range (ie “passive” range). This is the constant approach which is used in all PPI assessments by the WCB and should result in reasonably consistent measurements, regardless of whether a worker is on or off medication.

When questioned by the panel, the worker’s evidence at the hearing was that compared to a year ago, the flexibility in his back was a bit better. It was not suggested by the worker that on the day of his PPI examination his ROM was abnormally great or greater than usual.

As noted earlier, the worker indicated that no other measurements have been taken of the ROM in his back lumbar and thoracic areas.

In view of the foregoing, the panel finds that the worker’s PPI of 13% has been correctly calculated. The approach used by the WCB medical advisor was in accordance with the approach consistently used by the WCB and there are no other measurements or evidence to suggest that the measured ranges were inaccurate. The worker’s appeal on this issue is dismissed.

3. Whether or not the worker’s Permanent Partial Impairment, not including the 1% rating for scarring, should be subject to a 50% reduction on the basis of a major pre-existing condition.

At the hearing the worker argued that his degenerative disc disease was related to his heavy work duties. He noted that he was only 34 years old at the time of the accident and questioned whether degenerative disc disease would occur in someone so young. He argued that his six year job history of heavy work duties triggered the condition, and that since the condition was work related, the 50% reduction should not have been made.

The Appeal Commission and its panels are limited to hearing appeals on matters which have been previously adjudicated upon by the WCB. As there are no prior decisions on the issue of whether a causal relationship exists between the worker’s degenerative disc disease and his six year work history of heavy duties, we are unable to comment on this argument. We can only decide whether the degenerative disc disease was caused specifically by the workplace accident of October 23, 2002, or whether it was pre-existing at the time of the accident.

The diagnostic tests clearly show the presence of degenerative disc disease as early as 1999. The report from an x-ray taken December 6, 1999 reports: “The L5-S1 disc is narrowed and as there is minor spurring posteriorly, this may well be degenerative.” The x-rays subsequently taken in November 2002 (shortly after the workplace accident) show severe degenerative narrowing of the L5-S1 interspace.

In the panel’s opinion, the mechanics of picking up a heavy roll of paper could not have caused the degenerative changes reflected in the reports. The bony growth and spurring referenced in the 1999 x-ray report pre-dated the compensable injury. There is no medical opinion contrary to the opinion that the degenerative narrowing was pre-existing. In view of the foregoing, the panel finds that the worker’s PPI was properly subject to a 50% reduction on the basis of a major pre-existing condition.

4. Whether or not the worker’s Canada Pension Plan disability benefit should be considered a collateral benefit and reduced from his WCB wage loss.

Subsection 41(1) of the Act provides as follows:

Definition of “collateral benefit” 41(1) In this section, “collateral benefit” means

(a) any periodic benefit the worker is entitled to receive under the Canada Pension Plan, the Quebec Pension Plan, the Employment Insurance Act (Canada), and a policy of disability insurance;

(b) any payment to the worker by the worker’s employer, including a gratuity or allowance; and

(c) any other statutory benefit prescribed by the board by regulation.

Subsection 41(1) clearly defines collateral benefits to include CPP benefits. The worker’s CPP benefit application form dated March 1, 2007 states that the reason for stopping work was a back injury. As the CPP disability benefits are payable in respect of the same condition for which WCB compensation is being paid, they fall within the definition of “collateral benefits” contained in the Act. As such, they are to be considered a collateral benefit and reduced from the worker’s WCB wage loss benefit. The appeal on this issue is denied.

5. Whether or not the worker’s restrictions are appropriate.

According to the Earning Capacity Assessment from September, 2007, the worker’s physical restrictions are no lifting over 30 pounds, no repetitive or sustained bending/twisting and the ability to change positions as needed. At the hearing, the worker confirmed that these are the restrictions put in place after his surgery.

When asked about what he is capable of doing, the worker stated that he has discussed the restrictions with his family doctor, who suggested to him that he “just take it easy. Try to live the best you can and do the best you can.” The worker’s evidence was that if he exerts himself and tries to push it, then he is in increased pain for the next four to five days. He is then required to take more pain medication, and the side effects of the medications then further impair his ability to function. The worker stated that it is not that he cannot perform work, it is just that the more activity he does, the more pain he experiences. When asked how he would do in a desk job, his response was: “I don’t know. It would last a day, two days. By the third, fifth day of the week I’ll have problems walking. I’m not going to last working full-time, I know that right now.” The panel questioned the worker on the specifics of what he is capable of performing. He acknowledged being able to drive, sit in his car for an hour, do laundry, go out and socialize, buy groceries, walk through a store, cut grass, and perform light housekeeping, but stressed that afterwards, he would experience increased pain. The worker reluctantly acknowledged that if he had a job which was self paced, he may be able to balance his needed periods of rest and his medication.

The issue for the panel to decide is whether or not the restrictions are appropriate. The panel had some difficulty with this issue due to the absence of a “track record” of what the worker was capable of doing. All we have are the worker’s predictions that he would not be able to last if he had to work full time. The PMU report of February 27, 2007 opined that the worker was capable of participating in vocational rehabilitation. It stated:

There appear to be a number of potential barriers to successful completion of a VR program, as described above, including (the worker’s) expressed intention not to seek employment. These barriers appear primarily to be limitations that have been placed by the claimant himself on his participation in vocational rehabilitation and on possible employment. Nonetheless, it does appear that with his current restrictions, his current psychological functioning, and his current stable level of medication, he should be capable of successfully completing an appropriate vocational rehabilitation plan (consistent with his cognitive abilities), if he chooses to participate.

The worker had only partially completed his vocational rehabilitation plan when he discontinued participation. On the evidence currently before it, the panel is not prepared to make changes to the worker’s restrictions. There simply is not enough evidence to convince us on a balance of probabilities that other restrictions would be more appropriate. If in the future, the worker opts to resume participation in the vocational rehabilitation plan, it may at that time be appropriate to re-assess the worker’s physical limitations and his ability to maintain employment on a full-time basis, based on actual work experience.

It is therefore the panel’s opinion that the worker’s restrictions are appropriate.

6. Whether or not the worker is capable of participating in vocational rehabilitation.

The considerations under this heading are similar to those under issue 5. As with the previous issue, the panel had some difficulty because although it feels that the worker is capable of participating in a vocational rehabilitation plan, there is some question as to whether he would be able to sustain participation on a full-time basis.

The WCB medical advisor’s notes of January 5, 2007 indicate that due to unremitting pain and use of medications, the worker was not suitable for vocational rehabilitation at that time. An epidural injection was suggested by the worker’s treating specialist, and it was suggested that follow-up occur after the injection. The worker was referred to PMU for assessment, and as outlined earlier, after an in depth examination, the PMU opined that the worker should be capable of successfully completing an “appropriate vocational rehabilitation plan,” should he choose to participate. In the panel’s opinion, what constitutes an “appropriate” vocational rehabilitation plan still requires further research. When the worker discontinued participation in his plan, it was still at a relatively early stage. Although an IWRP had been established, it is not unusual for a vocational rehabilitation plan to be amended and adjusted as it progresses.

The worker’s evidence at the hearing was that at the present time, he is trying to move forward. He is taking active steps to reduce his medications and he indicates that he wants to get back to work. The panel notes that the worker’s current status with the WCB is that he is suspended from wage loss benefits due to his non-participation in vocational rehabilitation. The suspension of benefits would be removed if the worker was to re-engage in the plan. If the worker was back with the program, further assessment could take place as to the extent of the worker’s ability to work, in view of the continuing pain that he described to the panel at the hearing. The evidence required to consider any needed changes to his restrictions could be obtained.

Based on the evidence currently before it, the panel finds that the worker is capable of participating in vocational rehabilitation. The appeal on this issue is dismissed.

7. Whether or not it was appropriate for the WCB to find that the worker failed to mitigate his claim by not participating in vocational rehabilitation and therefore deem him capable of earning $320.00 per week.

In the panel’s opinion, the worker did fail to mitigate by not participating in vocational rehabilitation. For the reasons set out in issues 5 and 6, the panel finds that the worker is capable of at least some degree of employment and therefore could participate in a vocational rehabilitation plan. His failure to do so constitutes failure to mitigate.

With respect to the second part of the issue, the panel is of the opinion that an appropriate deemed earning capacity can only be determined after the completion of a vocational rehabilitation plan. The worker is currently deemed to be capable of earning minimum wage on a full time basis. Again, while we do not necessarily find that the worker should be permanently deemed to have this earning capacity, the lack of a track record leaves the panel without sufficient evidence to support a change to the earning capacity of $320. If a change to the deemed earning capacity is warranted in the future, it will be based on additional evidence. This evidence would depend on participation by the worker in the vocational rehabilitation plan and a demonstrated ability (or inability) to work full time. Amendments to the restrictions may be warranted along the way if it is shown that the existing restrictions are inadequate.

The panel therefore finds that it was appropriate for the WCB to find that the worker failed to mitigate his claim and therefore deem him capable of earning $320.00 per week. The worker’s appeal on this issue is dismissed.

Overall, while the panel is sympathetic to the worker’s ongoing pain, we do not find that he is totally disabled from any participation in the work force. That being said, however, we also acknowledge that there is some evidence to suggest that the worker would be unable to participate on a full time basis. It may well be that some amendments to his restrictions are warranted. The difficulty is that at this time, due to the worker’s non-participation in the vocational rehabilitation plan, we do not have sufficient evidence as to the extent of the worker’s true capabilities. The worker’s own evidence is that he is trying to move forward, and his first steps are to wean himself off his medications. If the worker was to resume the vocational rehabilitation plan, the WCB would be better able to assess what he is capable of doing.

For the above reasons, the worker’s appeal is dismissed.

Panel Members

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

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 8th day of August, 2008

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