The Appeal CommissionThe Workers Compensation Act of Manitoba

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 1985, his benefits are assessed under the Act as it existed at that time (the “1985 Act”). Under subsection 4(2) of the 1985 Act, a worker who suffers a personal injury by accident is entitled to compensation for so long as the injury disables the worker.

Payment of wage loss benefits under the 1985 Act are established, in part, under subsections 32(1) and 36(1) as follows:

32(1) Where permanent partial disability results from the injury, the board shall allow compensation in periodical payments during the lifetime of the workman sufficient, in the opinion of the board, to compensate for the physical loss occasioned by the disability, but not exceeding seventy-five percent of his average earnings.

36(1) Where temporary partial disability results from the injury, the compensation shall be the same as that prescribed by section 32, but shall be payable only so long as the disability lasts.

Worker’s Position

At the hearing, the worker was represented by legal counsel. The position put forward on behalf of the worker was that the medical evidence establishes that the worker is not capable of engaging in any occupation. Reports from the general practitioner dated July 4, 2005, a medical consultant dated October 18, 2005, and a physiotherapist dated August 27, 2007, all opine that the worker was not fit for employment. It was also submitted that the worker lacked the literacy and computer skills to obtain employment. Legal counsel also put forward a technical argument based on application of WCB policy 44.80.30.20, Post Accident Earnings - Deemed Earning Capacity. It was argued that the policy requires the WCB to demonstrate that a deemed earning capacity be reasonable and realistic. It was the worker’s position that in not identifying a specific occupation or group of occupations for the worker, the WCB failed to comply with the criteria set out in the policy for imposing a deemed earning capacity. It was therefore submitted that full wage loss benefits be paid from October 27, 2004 until such time as the worker no longer qualifies for benefits.

Analysis

The issue before the panel is whether or not the deemed post accident earning capacity of minimum wage based on a 40-hour week should have been implemented as of October 27, 2004. 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 effects of the compensable injury disable the worker from earning this amount. In our opinion, the worker’s compensable injury, that is, his L4-L5 disc herniation, does not prevent him from engaging in some type of minimum wage employment based on a 40-hour week.

A review of the medical evidence shows that there are two conditions affecting the worker’s lumbosacral spine: L4-5 right sided disc herniation, for which responsibility was accepted by the WCB, and degenerative narrowing and desiccation of the intervertebral discs from the L3 through S1 levels inclusive, which is considered to be part of the aging process. The degenerative changes were first noted in the CT scan of March 31, 1987.

At the hearing, the worker gave evidence regarding the post-accident work he was able to perform from August 1989 to July 2000. During that period of time, he worked for a single employer. Initially, he was employed as a delivery driver, and gradually he moved into a dispatcher position. The worker’s evidence was that although he had pain in his back, he could manage to perform the light duties. In 2000, there was a change in management, and he was transferred to the warehouse and was also assigned to driving duties. He was sometimes required to perform lifts of 50-70 lbs. This made his back condition much worse and eventually, he could no longer continue to work. He described his back pain as being worst in the period from July 2000 until June 2003 when his right-sided L4 laminectomy and diskectomy was performed. He stated that the change in his condition after the surgery was “like night and day.” Following the surgery, although he has still continued to experience pain, the pain is of a different nature and he can manage to live a life with his post-operative level of pain.

When asked whether he would be capable of some level of employment, the worker indicated he would be willing to try, but the WCB never provided him with an opportunity. He thought that he could do some sort of light duties, but questioned whether any such job existed. He acknowledged that if he had a job which allowed him to change positions frequently, lie down when necessary, and generally keep the weight off of his back, he may be able to perform that job. When asked to comment on the level of his activity shown in the surveillance tapes of November 29 and 30, 2004, he confirmed that this was representative of what he does during the day.

The panel notes that the compensable restrictions applicable to the worker have remained virtually the same since the accident in 1985. In a WCB memo dated June 22, 1987, restrictions are reflected in the WCB file as being no lifting over 30-35 lbs and avoiding repetitive bending, persistent stooping and twisting movements of the spine. With these restrictions, the worker was able to carry on employment for 11 years in a light duties position.

In 2000, the worker’s condition worsened and eventually surgery was performed in June 2003. Following the surgery, his restrictions were re-examined by the WCB and it was determined that no changes to the restrictions were required. Following a call-in examination on October 27, 2003, the WCB medical advisor indicated that his restrictions had not changed since surgery and the previous permanent restrictions should remain the same.

The core of the worker’s compensable restrictions have remained the same since 1985 and these restrictions did not prevent the worker from engaging in light duty employment for an eleven year period. The worker’s evidence at the hearing was that he may be able to engage in some degree of light employment. The surveillance video from November 2004 indicates that the worker is not totally disabled by his back pain, and is able to mobilize and go out and about. The worker confirmed that the surveillance typified his daily activity. In the panel’s opinion, the weight of the evidence would support that the worker’s compensable restrictions would not restrict the worker from engaging in minimum wage employment based on a 40 hour week.

The panel hastens to add that we acknowledge that the worker continues to experience significant symptomatology in his lower back. The diagnostic tests clearly indicate that despite surgery, there remain abnormalities in the worker’s lumbosacral spine which are likely the cause of his ongoing pain. The medical report of the surgeon dated October 18, 2005 indicated that his continuing symptoms are on the basis of lumbar spondylosis and that the results from the surgery were good spinal alignment without evidence of spinal stenosis or infection. On testing, the surgeon indicated that neurologically, there was normal strength and globally reduced reflexes. This would suggest to the panel that the L4-L5 surgery to relieve right sided nerve root pressure was successful and that the remaining symptomatology is related to generalized degenerative disc disease as opposed to herniation at a specific location (ie. L4-L5). Thus, while the panel accepts that the worker likely has pain which is affecting his earning capacity and ability to work, we cannot relate this disability to the workplace accident. All that can be attributed to the workplace accident are the compensable restrictions, and the worker has already demonstrated that he is capable of maintaining light duty employment within those restrictions.

It was argued by the worker’s legal counsel that he lacks the education and literacy skills to be able to maintain any type of employment. She relied on reports dated September 12, 2007 and October 17, 2007. Although the reports were specifically addressed to the ability to maintain employment in NOC 1475 (dispatcher), it was submitted that the reports showed that generally, the worker lacked the communication abilities to competitively work in the workforce. The panel notes that the worker’s transferable skills have not changed since the time of the accident, and yet he was still employable for 11 years within those abilities and functional limitations.

The panel does not accept that the worker lacks the cognitive ability to maintain employment in a minimum wage position.

The panel wishes to address an argument put forward by the worker’s legal counsel regarding applicability of the deeming policy. She relied on WCB Board Policy 44.80.30.20 (the “Policy”) which deals with “Deemed Earning Capacity.” 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.

It was argued by legal counsel that as the WCB has not designated a NOC, it has not complied with the Policy. In the absence of a designated NOC, the worker is unable to challenge the assessment made by the WCB as to what he is capable of performing. In making our decision, the panel does not do so based on the vocational rehabilitation policies of the WCB. In the panel’s opinion, the Policy relied upon by legal counsel only applies to the implementation of deems based on an established IWRP. In the present case, the worker did not complete his IWRP, which primarily consisted of 22 weeks of job search assistance in NOC 1475 from the WCB. At the hearing, it was clear that the worker was not in agreement with the approach advocated by the WCB for looking for employment. As a result, he did not complete the IWRP. Subsequently, it was accepted by Review Office that NOC 1475 was not suitable for the worker and the deem they implemented was not based on the IWRP.

When making our decision, the panel relies on the sections of the 1985 Act which allow for payment of compensation for temporary partial disability. The temporary partial disability benefits are payable only for so long as the disability lasts and are paid in an amount: “sufficient, in the opinion of the board, to compensate for the physical loss occasioned by the disability.” In making our decision, the panel is determining that in this case, disability suffered by the worker is the difference between his ability to work in his 1985 pre-accident employment, and a minimum wage position. Thus, we are basically considering him to be capable of an earning capacity of minimum wage based on a 40 hour week, and we are not performing a “deem” in the context of a vocational rehabilitation plan, as contemplated by the Policy. As such, the requirements of the Policy are not being ignored, because the Policy is not applicable to the determination we are making.

For the foregoing reasons, the panel finds that the deemed post-accident earning capacity of minimum wage based on a 40-hour week should have been implemented effective October 27, 2004. The worker’s appeal is dismissed.