Decision #120/08 - Type: Workers Compensation
Preamble
In 1989, the worker suffered a compensable injury to his right wrist. He has since been provided with vocational rehabilitation benefits from the Workers Compensation Board (“WCB”) as well as a Permanent Partial Disability (“PPD”) rating related to his right hand. The worker is presently appealing three decisions that were reached by primary adjudication and confirmed by Review Office, which deal with his deemed earning capacity, his entitlement to a gym membership and his Permanent Partial Disability (“PPD”) award. A hearing took place on August 14, 2008 to consider the issues brought forward by the worker.Issue
Whether or not it was appropriate to reduce the worker’s wage loss benefits as of March 31, 2008;
Whether or not the worker is entitled to a gym membership; and
Whether or not the worker is entitled to an increase in his Permanent Partial Disability award.
Decision
That it was appropriate to reduce the worker’s wage loss benefits as of March 31, 2008;
That the worker is not entitled to a gym membership; and
That the worker is entitled to an increase in his Permanent Partial Disability award.
Decision: Unanimous
Background
In October, 1989, the worker developed tingling, numbness and soreness in his right hand. He was subsequently diagnosed with right carpal tunnel syndrome and he filed a claim for compensation which was accepted by the Workers Compensation Board (“WCB”). Over the next ten years, the worker underwent a number of surgical procedures to his right hand which included carpal tunnel release on two occasions, a neurolysis of hypothenar fat and reconstruction of the right flexor retinaculum due to complications of carpal tunnel syndrome.
In 2001, temporary restrictions were identified for the worker based on the results of a functional capacity evaluation. In May 2001, he returned to work with the accident employer in a modified duties position. His final surgery was on November 15, 2000.
On January 3, 2002, an impairment awards medical advisor examined the worker’s hands and wrists for the purpose of establishing a Permanent Partial Disability (“PPD) award. Following the assessment, the total recommended PPD for the worker was calculated as follows:
Loss of range of motion of the right wrist 0.5
Loss of range of motion of the right thumb 0.8
Cosmetic Loss 1.0
Partial sensory loss of the right median & ulnar nerves 8.0
TOTAL: 10.3%
In a memorandum dated January 24, 2002, a WCB case manager outlined factors used to establish the effective date of the worker’s 10.3% PPD award to be October 10, 1996.
On April 4, 2002, permanent restrictions were outlined for the worker which consisted of the avoidance of frequent lifts greater than 5-10 pounds, tasks which require forceful flexion of the right wrist and tasks which require sustained grip with the right hand.
In 2003 and 2004, the worker continued employment in a modified duty position. From April to July, 2003, he took a leave from work which was unrelated to the compensable injury.
In February 2004, the worker was moved to a new area at work which involved more manual labour. As a result, he began to experience an increase in his symptoms. On the recommendation of the worker’s family physician, the WCB agreed to a reduction of work hours to four hours per day.
In May 2004, the worker was interviewed at the WCB’s Pain Management Unit (“PMU”). At a case conference held on July 8, 2004, it determined that the worker did not meet the diagnostic criteria for a Chronic Pain Syndrome but that the worker’s depressed mood was causally related to his compensable injury. Psychological counseling in pain management was suggested.
In a report dated October 7, 2004, a psychologist outlined the opinion that the worker had a major depressive disorder rather than an adjustment disorder. It was noted that the worker had his hours at work increased which was causing him increased symptoms in his right hand. The psychologist suggested that the worker be retrained in another field. This opinion was also expressed by the family physician in a letter dated October 21, 2004.
On December 6, 2004, the treating psychologist reported that the worker’s condition was more stable and he was feeling less desperate about his situation. She indicated that now was a good time for the worker to try and increase his hours at work.
In 2005, the worker continued to seek treatment from his family physician and eventually returned to full time hours. On February 16, 2006, the worker was assessed by the psychologist because of psychological difficulties caused by medication changes.
By report dated April 12, 2006, the worker’s family physician wrote that in addition to his wrist problems, the worker had a diagnosis of depression relating to his ongoing medical condition. He wrote: “[worker’s] physical impairment remains unchanged. He is still limited in his capacity to use his right wrist at work and as I understand it, he has permanent restrictions in place regarding his right wrist. However psychologically he is unable to return to work at the present time even at reduced hours. With the exacerbation of his depression and adjustment of his medications, he has been unable to work even part time or reduced hours…”.
In April 2006, the employer advised the WCB that it was unable to accommodate the worker with further employment. The worker’s case was then referred to the WCB’s vocational rehabilitation branch to help the worker return to work with a different employer.
File records indicate that the worker expressed interest in working in the social service fields (NOC 4212) and was enrolled in crisis line training. In order to assess the worker’s suitability for up-grading/post secondary education, the WCB arranged for interest and aptitude testing. It was later determined that the worker was suitable for hands on training and would not be a suitable candidate for long term upgrading/re-education.
On October 18, 2006, a Vocational Rehabilitation Consultant (“VRC”) advised the worker that if there was a viable labour market in NOC 4212, the WCB would support the worker in obtaining his GED 12 upgrading and a six month Applied Counselling program at Red River College. The worker indicated that he felt “pushed” by the WCB and that he wanted to finish his crisis line training and then start work on the volunteered crisis lines to see if he liked it. The worker was advised that vocational rehabilitation was not open-ended and that the WCB would not wait a year for him to make a decision as to whether or not he wanted to work within NOC 4212.
In a memorandum dated November 3, 2006, a WCB case manager documented that the worker was having a difficult time with his sleep and ability to cope with his current workload. At that time, the worker was also faced with a number of personal family issues. After considering the worker’s situation, the worker’s vocational rehabilitation activities were put on hold.
The worker was assessed by a WCB psychiatric consultant on December 27, 2006. In part, the consultant stated that the worker’s current psychological difficulties were more in keeping with a diagnosis of adjustment disorder rather than a diagnosis of Major Mood Disorder or Depression. Recommendations were then made to change the worker’s medication.
In early May 2007, the WCB provided support to the worker to assist him in dealing with a number of non compensable barriers before continuing with his vocational rehabilitation plan. He was provided with family counselling, a gym membership, ongoing sessions with a psychologist and financial assistance with moving costs.
On May 8, 2007, the treating psychologist supported that the worker was able to return to vocational rehabilitation activities but had concerns that work or training could easily overwhelm the worker.
On May 14, 2007, the VRC recommended “Service Station Attendant” (NOC 6621) as an occupational goal for the worker. He stated, in part, “[the worker] is not a candidate for educational upgrading but rather learns best hands-on. As well, [the worker’s] primary skills are limited to physical/heavy work; which he is no longer able to do, due to his retractions/injury. It is realized that the earning capacity for Service Station Attendant would only recover a small portion of the [the worker’s] pre-accident wages, however, it is a goal that is practical and fits [the worker’s] worker profile. As mentioned above, [the worker] has been unable to come up with a viable alternate goal.”
In a letter dated May 28, 2007, the worker was advised that the WCB was unable to approve any further re-education or upgrading based on the results of his vocational testing and assessment in 2006. He was advised that the WCB was unable to sponsor him in the area of counselling/community and social service as most jobs in this area were outside of his compensable restrictions. The worker was also advised that there was no evidence to support that he was totally disabled from participating in the VR process.
In a progress report dated May 29, 2007, the family physician stated: “I don’t think he is in any way ready to work, and I think this is due to his work injury and the depression which has been a result of his work related injury.”
An Earning Capacity Analysis for NOC 6621 dated June 4, 2007 indicated that the worker had the physical capacity of performing the duties of a service station attendant and that there was a labour market in this occupational field. Upon completion of the plan, the worker would be considered capable of earning the starting wage of $320.00 per week.
A Vocational Rehabilitation Plan pertaining to the occupational goal of NOC 6621 was developed. On July 19, 2007, the VRC advised the worker that he had an earning capacity for NOC 6621 but he could look for other types of work as long as it was within his restrictions. The job search portion of the plan was later amended to commence on September 10, 2007 and end February 8, 2008.
In late 2007, a WCB case manager indicated to the worker that a call in examination would be arranged to determine whether his PPD rating should be adjusted. The case manager advised the worker that should the PPD rating decrease, his benefits would be affected. The worker was also advised of the importance of full participation in his job search and the negative ramifications involved if he did not fully participate.
A PPD examination took place on January 23, 2008. Under “Current Symptoms” the worker complained of numbness and pain in his right wrist and hand and sleep disturbance associated with depressive symptoms. Using his right hand for fine dexterity or any activity aggravated his symptoms. Regarding activities of daily living, the worker said he performed all duties and while he had some difficulties, he usually managed. The worker indicated that he was unable to do any recreational activities using his right hand. Following the assessment, the total recommended PPD rating was calculated at 13.0%.
The worker was reassessed by a psychiatrist on January 23, 2008. It was noted from the psychiatrist’s report that the worker continued to be plagued with multiple stressors.
Video surveillance was taken of the worker’s activities on January 23, 24, and 25, and February 2 and 15, 2008.
On March 11, 2008, a WCB case manager wrote to the worker. It was his opinion that on a balance of probabilities, the worker did not have clinical depression in relation to his compensable injury and that he was likely suffering from an adjustment disorder. The case manager referred to a medical report dated February 26, 2008 in which the consultant noted that the worker’s mood was low and was complicated and hampered by a difficult marital separation. The case manager felt this was a non-compensable barrier which manifested itself after the compensable injury. The case manager indicated that on a balance of probabilities, the worker was now capable of securing employment on a full time basis within NOC 6621 and that the worker’s wage loss benefits would be reduced by $320.00 effective March 31, 2008.
On April 10, 2008 the worker appealed this decision to Review Office contending that he was not capable of working full time hours.
In a memorandum to file dated March 20, 2008, the WCB case manager indicated that he reviewed the worker’s request for funding of a 3 month or one year gym membership. Given that he had already approved this expense in the past to assist the worker in the promotion of his recovery, he was now of the opinion that the worker was at the point where he needed to assume personal responsibility for his ongoing health and fitness level. Based on these factors he was unable to approve the worker’s request.
In a May 8, 2008 decision, Review Office decided that it was appropriate to reduce the worker’s wage loss benefits as of March 31, 2008. In view of all the evidence, Review Office was of the view that the worker did not actively engage in the vocational rehabilitation process and failed to mitigate the effects of his injury. It was satisfied based on the totality of evidence, that the WCB met its obligations and demonstrated that the worker was at minium, capable of earning the wage associated with NOC 6621 which was an entry level job with an entry level wage.
On May 22, 2008, the case manager advised the worker that the evidence did not support an increase in his PPD award rating. In making this decision, the case manager referred to the surveillance footage and opinion expressed by the WCB medical advisor that the demonstrated actions and functional abilities during the video surveillance were inconsistent with how the worker presented during the examination of January 23, 2008. The case manager also outlined that the worker was now at the point where he should assume personal responsibility for his ongoing health and fitness level and that he was unable to approve further funding to cover the cost of a gym membership. On May 29, 2008, the worker appealed these decisions to Review Office.
In its decision dated July 15, 2008, Review Office confirmed that the worker was not entitled to a gym membership. In its view, the gym membership was not a medically prescribed treatment required by reason of the compensable injury or that a gym membership would improve the function or minimize the chance of aggravating the worker’s right hand compensable injury.
Review Office also determined that the worker was not entitled to an increase in his PPD award. Review Office accepted and concurred with the impairment awards medical advisor’s opinion that the worker’s presentation during a January 23, 2008 call in examination was inconsistent with the worker’s demonstrated actions and functional abilities during video surveillance. It felt that the worker’s PPD rating of 10.3% established in January 2002 was a true reflection of the worker’s disability. On July 22, 2008, a worker advisor appealed Review Office’s decision to the Appeal Commission and a hearing was arranged.
Reasons
Worker’s Position
The worker was represented by a worker advisor at the hearing. It was submitted on behalf of the worker that medical reports from the family physician dated May 29, 2007 and April 12, 2006 should be given great weight because of the amount of time the family physician has spent with the worker. The medical reports opine that the worker is not able to return to work due to depression which is the result of the work related injury. It was argued that work-related depression and sleep deprivation are the major problems for this worker and continue to affect his earning capacity. While it was admitted that the worker is not totally disabled, he does not have the tools to realistically find and sustain full time employment at minimum wage. With sleep disorders, there are good days and bad days, and if one cannot consistently report for work, you are not going to last at that job for very long. With respect to the PPD award, the position was that the PPD should be based on the examination results from the PPD assessment, and not what amounts to speculation from the surveillance video. Finally, on the issue of the gym membership, this support would help the worker’s sleep, and so it was submitted that this should be granted. Overall, the worker was seeking further vocational rehabilitation benefits and it was submitted that the deemed earning capacity should be lifted and the worker should be given further assistance in finding sedentary work that avoids the use of the right hand.
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. As the worker’s claim was made in 1989, his benefits are assessed under the Act as it existed at that time (the “1989 Act”). Under subsection 4(2) of the 1989 Act, if a personal injury by accident disables a worker, compensation is payable for so long as the injury disables the worker.
WCB Board Policy 44.80.30.20 (the “Policy”) deals with “Deemed Earning Capacity” and applies to all initial decisions on or after April 1, 1996, regardless of the date of the accident. As such, the Policy applies to the present case. The Policy sets out guidelines for 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.
Subsection 27(20) of the 1989 Act provides measures for rehabilitation. It states:
27(20) To aid in getting injured workers back to work and to assist in reducing or removing any handicap resulting from their injuries, the board may take such measures and make such expenditures from the accident fund as it deems necessary or expedient.
Payment of compensation for permanent disability was provided for in the 1989 Act under subsections 4(9) and 40(1), which read as follows:
Permanent disability
4(9) The board may award compensation under this Part in respect of the permanent disability suffered by a worker but without temporary total disability.
Permanent partial disability
40(1) Where permanent partial disability results from the injury, the board shall allow compensation in periodical payments during the lifetime of the worker sufficient, in the opinion of the board, to compensate for the physical loss occasioned by the disability, but not exceeding 75% of his average earnings.
Analysis
There are three issues before the panel. Each issue will be addressed in order.
1. Whether or not it was appropriate to reduce the worker’s wage loss benefits as of March 31, 2008.
Under the provisions of the 1989 Act, a worker is entitled to compensation for loss of wages resulting from disability due to injury. According to the policy, where it is determined that a worker is capable of earning some income after an accident, wage loss benefits will be paid as if the worker was actually earning the deemed amount. In this case, effective March 31, 2008, the worker’s wage loss benefits were reduced as if the worker was actually earning minimum wage income on a full time basis. In order for the panel to decide the appeal on this issue, the panel must decide whether or not the worker is capable of earning this level of income. On a balance of probabilities, we find that the worker is capable of earning minimum wage on a full time basis and accordingly, it was appropriate to reduce his wage loss benefits.
At the hearing, it was acknowledged by the worker advisor that the worker is not totally disabled. When asked about what he felt he was capable of doing, the worker indicated that he could probably work for 4 hours within his restrictions. When pressed on whether he thought he could work 6 hours, the worker indicated that he could possibly work 6 hours, but he did not know if he could keep it up. The worker advised the panel that it was primarily fatigue and being rundown by his lack of sleep at night which would prevent him from working a full day. Every night he awakens due to the continual throbbing pain in his arm and he rarely gets more than 4-5 hours of sleep. His sleep is not restorative. The next day he finds it difficult to function as he is fatigued and he cannot concentrate. He can usually function adequately until noon or 12:30, but then his ability to function rapidly deteriorates.
The worker was also questioned by the panel about his normal daily activities. It is clear that the worker does not lead a sedentary nor isolated lifestyle. He keeps himself occupied throughout the day with reading, walking, biking, swimming occasionally, running errands, visiting family, gardening and trying to spend as much time as possible outdoors. He is extensively involved in his support group both as a participant and as a mentor, and contributes and participates on a daily basis in and away from his home.
It was clear to the panel that personal inclination was very important to the worker in his choice of return to work. He indicated that he would “go bonkers” if he had to just sit at a desk all day. He said he would be willing to try something that he enjoyed doing and which would motivate him.
The panel notes that in the past year, the worker was able to take a three week holiday with his daughter to visit family in Alberta. He was the sole driver and they completed the drive in two days. The worker reported that while driving, his hand was fine and while he was away, he was able to get a better sleep.
The issue for the panel to decide is the current earning capacity of the worker. It has already been acknowledged that he is capable of some part time employment. In the panel’s opinion, the daily activities being engaged in by the worker at the present time suggest that he does in fact have the ability to engage in full time employment. His daily routine involves a very full day which is not precluded by lack of sleep. He is able to continue functioning for the whole day from 9:00 am until 11:00 or 12:00 pm. He performs a wide range of activities which could readily translate into marketable skills. There are occupations which would pay at least minimum wage in which the worker could engage on a full time basis which are within his restrictions. While the worker expressed distinct personal preferences as to the type of employment in which he is willing to engage, this cannot be a determining factor in assessing whether or not he is capable of earning minimum wage income on a full time basis.
Although in the past, the medical reports have indicated that the worker’s depressive symptoms have prevented him from working, at the hearing, the worker only referred to the lack of sleep as the condition which prevents him from working. It would appear to the panel that the depressive symptoms are not disabling him at the present time. As such, we make no finding as to whether or not his depression is related to the compensable injury.
For the reasons outlined above, we find that the worker is capable of full time employment at a minimum wage position and therefore it was appropriate to reduce his wage loss benefits as of March 31, 2008. The appeal on this issue is denied.
2. Whether or not the worker is entitled to a gym membership.
Pursuant to subsection 27(20) of the 1989 Act, the WCB has the discretion to make expenditures for items to aid in getting injured workers back to work and to assist in reducing or removing any handicap resulting from their injuries. The file material reveals that in the past, this discretion has been exercised in favour of the worker to pay for a swimming pool membership which gave the worker access to both a pool and exercise equipment. The worker was last granted a pool membership in approximately November 2006, which extended into 2007. The rationale for providing this form of support to the worker was to help alleviate the effects of his depression and hopefully promote a healthier lifestyle which would enable him to sleep better.
At the hearing, the panel questioned the worker on the type of activity he currently engages in to promote a healthy lifestyle. The worker described going for 40-45 minute walks daily, and advised that he would like to do more cycling. He indicated that he recently made some modifications to his bicycle handlebars to relieve pressure on his wrists. The worker also meditates daily, and gains relaxation from doing light gardening and reading books. He also indicated that he is able to run and that this is an activity which he enjoys. About three weeks prior to the hearing, the worker had gone swimming at a public pool.
In the panel’s opinion, the discretion should not be exercised to provide the worker with another gym membership. The panel agrees with the WCB that at this point, the worker should be responsible for maintaining his own condition and to his credit, it would appear that he is in fact doing this. The appeal on this issue is denied.
3. Whether or not the worker is entitled to an increase in his Permanent Partial Disability award.
The guidelines for determining a worker’s permanent partial disability for the purposes of paying compensation under subsection 40(1) of the 1989 Act are set out in a Permanent Impairment Rating Schedule (the “Schedule”). According to the Schedule, permanent impairment is measured by the following factors: “loss of a part of the body; loss of mobility in the joints; loss of function of any organs of the body identified in the schedule; and cosmetic deformity of the body.”
In the present case, the WCB medical advisor conducted an examination on January 23, 2008, and his findings indicated an increase in the loss of range of motion of the right wrist. These findings are consistent with the worker’s evidence which was that since the last PPD assessment was performed in 2002, he has noticed that he has reduced range of motion and decreased sensation in his wrist.
According to the Schedule, the measurements taken on January 23, 2008 would warrant a change in the worker’s PPD from 10.3% to 13% for loss of range of motion in his right wrist and thumb, cosmetic effect of surgery and partial sensory loss of the right median and ulnar nerves. When considering the issue, the WCB determined that the January 23, 2008 measurements were invalid, based on the worker’s activities as reflected in surveillance video. It is the panel’s understanding that the PPD award is based on loss of mobility in the joint and cosmetic deformity rather than on the effect of the injury on functional capacity. We therefore fail to see how the activity recorded on surveillance video would invalidate the January 23, 2008 measurements. Accordingly, the panel finds that the new measurements should be relied upon to revise the PPD award to reflect the worker’s changed level of permanent partial disability. The worker’s appeal on this issue is allowed.
Panel Members
L. Choy, Presiding OfficerA. Finkel, Commissioner
M. Day, Commissioner
Recording Secretary, B. Kosc
L. Choy - Presiding Officer
Signed at Winnipeg this 12th day of September, 2008