Decision #60/09 - Type: Workers Compensation

Preamble

The worker has a claim with the Workers Compensation Board (“WCB”) for a back injury that occurred at work on July 5, 2007. The claim for compensation was accepted and the worker was paid WCB benefits to late November 2007 when it was determined that he had preventive non-compensable work restrictions related to his non-compensable degenerative disc disease and that he had recovered from the effects of his July work accident. The worker then returned to work at his pre-accident employment while the WCB was in the process of determining his eligibility for Preventive Vocational Rehabilitation (“PVR”) benefits. On February 29, 2008, the worker ceased working for the accident employer and on March 13, 2008, the WCB determined that he was not eligible for PVR services as he was no longer working in the occupation that put him at risk for further injury. The worker disagreed with the decision and also argued that his employer did not meet its obligations to re-employ him pursuant to Section 49.3 of The Workers Compensation Act (the “Act”). With the assistance of legal counsel, the worker appealed these decisions to the Appeal Commission and a hearing was held on May 5, 2009.

Issue

Whether or not the employer met its obligations to re-employ the worker pursuant to Section 49.3 of the Act; and

Whether or not the worker is eligible for consideration of preventive vocational rehabilitation benefits and services.

Decision

The issue as to whether the employer met its re-employment obligations was adjourned sine die at the worker’s request; and

That the worker is not eligible for consideration of preventive vocational rehabilitation benefits and services.

Decision: Unanimous

Background

On July 5, 2007, the worker injured his low back region when he twisted the wrong way when exiting a semi truck. On the same day of injury, the worker attended a physician for treatment and was diagnosed with a back strain. The physician also reported that the worker had a previous history of back injury.

An x-ray of the lumbar spine was taken on July 5, 2007. The radiological findings were outlined as follows: “…severe disc space narrowing at L5-S1 which was relatively unchanged since the previous study of April, 2005. The L4-L5 disc space also appears slightly narrowed but this is also unchanged since previous exams. Facet arthropathy is seen at the lumbosacral junction. No other abnormality is seen.”

When speaking with a WCB adjudicator on July 12, 2007, the worker acknowledged that he had fallen off a forklift while working at the age of 16. Since then he had been experiencing various back problems as he aged. The worker indicated that he had been on a long term disability claim for two years prior to his present employment. Later that day, the worker was advised by the adjudicator that his compensation claim would be accepted on the basis of a strain injury only and that the WCB would only be involved until his July 5 injury had resolved.

On July 19, 2007, the treating physician reported that the worker had been treated by two specialists for his back condition and that he arranged for the worker to undergo a CT scan as his back condition was not improving.

A CT scan of the lumbar spine was carried out on August 20, 2007. The radiological findings were: “Moderately severe L4-5 central disc protrusion, with mild compression of the thecal sac. Severe L5-S1 disc degeneration, with a mild bilateral foraminal stenosis. No definite nerve root compression is identified.”

On August 1, 2007, an orthopaedic specialist opined that the worker had lumbar disc degeneration at multiple levels and that conservative treatment would be appropriate. It was felt that once the worker’s condition had improved, he should avoid heavy lifting, twisting, turning, prolonged walking or standing. On October 4, 2007, the specialist indicated that the worker’s restrictions were permanent and that he should obtain lighter work or be re-trained to a lighter job.

On November 5, 2007, a WCB medical advisor commented that in his opinion, the worker’s low back strain appeared to have resolved. He indicated that the recommendation for workplace restrictions appeared appropriate but would be preventive in nature. He noted that the worker’s pre-existing condition contributed to his prolonged recovery.

On November 27, 2007, the worker was advised that WCB wage loss benefits would be paid to November 30, 2007 as it was considered that he had recovered from the effects of his compensable injury and that his work restrictions were solely related to his pre-existing condition.

In a memorandum dated November 29, 2007, a WCB case manager indicated that she and the worker met with the employer to discuss his return to work and how his work restrictions may affect his job duties. It was discussed that that the worker’s job entailed washing/detailing the trucks and would use a spray hose/pressured hose. It was agreed that the worker could pace himself and break up the task if necessary. The worker was also required to pick up and deliver parts and it was agreed that assistance would be available if the parts were heavy. The case manager indicated that the worker was comfortable with going back to his pre-accident duties and would wear a lumbar support belt if he had to do any lifting, twisting or turning. The worker also advised that he would be cautious at work and would ask for help if needed. The worker indicated that he would apply for other positions that would be less physically demanding as they became available.

On January 2, 2008, it was the consensus of the WCB’s PVR Committee that the worker would qualify for further consideration under the PVR policy on the premise that he had moderately severe disc degeneration in his low back that placed him at clear risk for further injury. The case was then referred to a vocational rehabilitation consultant (“VRC”) to assess if a suitable cost effective VR plan could be developed. Arrangements were also made for a WCB rehabilitation specialist to assess the worker’s job duties for the PVR review.

On January 15, 2008, the worker spoke with his case manager and stated that his present job did not respect his work restrictions as he was required to do twisting and turning to clean cabs of trucks and that he was on his feet for 90 percent of the day. He noted that standing did not bother him as much as sitting or walking did. The worker indicated that he was managing okay at work, but by the end of the week his back was pretty sore and that his quality of life had been affected by his back.

On February 4, 2008, the worker advised his case manager that he was having difficulty with staying at work and that his back was getting really bad. The worker noted that he had several incidents where he slipped and fell at work in the past month but did not fill out any green cards for the incidents. His employer was aware of him having difficulties but did not have any other work for him other than what he had been doing.

On February 7, 2008, the worker advised his case manager that he was given a note by his doctor which indicated that he should be off work indefinitely. The worker felt that this was related to his July 2008 compensable injury. The case manager advised the worker that if he was claiming his time loss was due to an injury which occurred at work, he would have to file a new claim as the WCB was not accepting responsibility for his pre-existing condition. The worker was advised that the PVR review would be placed on hold; to be eligible for these benefits, a worker had to have gone back to the type of work that placed him at risk. If he had a new claim accepted, then the WCB would put the PVR on hold until he was back at work again.

On February 15, 2008, the employer’s human resource representative advised the WCB case manager that the worker did not feel he could return to his usual job duties due to his back condition. They reviewed the worker’s performance appraisal for the past year and a deterioration was noted in the worker’s performance. Alternate job positions were discussed but none were considered suitable positions for the worker. Given these factors, it was determined by the employer and the worker that the worker should seek employment elsewhere and they would provide him with two weeks pay in lieu of notice.

The worker spoke with his case manager on February 19, 2008. The worker noted that he had been laid off from his position with the employer due to medical reasons and because his job performance had gotten worse since his return to work. He attributed this to working with chronic pain and only being able to work at 50%. The worker confirmed that the decision to leave the employment was mutual, based on the fact that he did not feel he was capable of doing the job he was hired and because the employer did not have any alternate jobs to offer him.

On March 13, 2008, the case manager wrote to the worker advising him that he would not be eligible for PVR services as his employment with the accident employer ended on February 29, 2008. As he was no longer working in the occupation that put him at risk for further injury, there was no risk for further injury which needed to be prevented.

On July 22, 2008, a lawyer representing the worker, appealed the case manager’s decision of March 13, 2008. Legal counsel noted that the worker was not working at his occupation because he was terminated from employment by the employer because of medical reasons arising from the workplace incident. It was argued that the worker was improperly terminated by his employer and was in breach of the Act. The solicitor asked the WCB to treat his submission as a complaint under the Act against the employer, that it had improperly terminated the worker’s employment contrary to subsection 49.3 of the Act and requested that the WCB do what is necessary to determine whether the employer has fulfilled its obligations to the worker under this section and the Act.

In a response dated August 28, 2008, a WCB manager advised the worker’s lawyer that she was unable to change the WCB decisions on file and confirmed that the employer did meet their obligation to re-employ. The WCB manager noted that the worker had recovered from the effects of his 2007 compensable injury based on the evidence which indicated that his current disabling condition was the result of an underlying or pre-existing condition. She noted that the worker was advised on November 27, 2007 that he had recovered and could return to his pre-accident employment which accommodated his preventive restrictions. As his employment ended on February 29, 2008, the worker was no longer working in the occupation that placed him at potential risk of further injury and there would be no entitlement to PVR as there was no longer any risk to mitigate.

The manager noted that the WCB was satisfied at the time of the “return to work” that the employer met its obligation to re-employ. Although the employment relationship ended in February 2008, it was the WCB’s view that the evidence supported that the obligation was met. The manager noted that the employer, in good faith, made provisions for the worker’s return to work to respect his preventive restrictions. The employment ended based on a mutual agreement that the worker could no longer perform the functions of his position based on his pre-existing condition, absences from work without permission and the worker’s desire to leave in exchange for a pay out. The manager confirmed that the employer met their obligation to re-employ the worker and the worker’s termination was unrelated to his compensable claim. On November 5, 2008, this decision was appealed to Review Office.

On November 27, 2008, Review Office made the following determinations:

That the employer met its obligations to re-employ the worker as was required under subsection 49.3 of the Act.

Review Office noted that the employer provided the worker with his regular job duties and he returned to work in December 2007. The worker had increased back symptoms and went off work in February 2008. After a scheduled performance review, neither the employer or the worker were able to identify a different job that was suitable and the worker and employer mutually agreed to end the employment relationship because the worker felt that he was physically incapable of managing his work duties. It noted that on February 19, 2008, the worker confirmed to his case manager that the decision to end the employment relationship was a mutual one.

Review Office noted the criteria outlined in subsection 49.3 of the Act and found that the employer met its obligations. It stated that the compensable injury no longer affected the worker’s functional abilities. It found that the employer gave the worker his prior job back which both parties agreed that he was unable to perform and there were no other suitable positions available.

That the worker was not eligible for consideration of preventive vocational rehabilitation benefits and services.

Review Office noted that WCB’s PVR policy 43.10.60 had very specific criteria under which further benefits and services can be provided to a worker. One of the criterion is that the worker must be at risk of a further compensable injury as a result of risks associated with returning to his previous occupation. If the risk did not exist because the worker was no longer employed in that occupation, then that criteria was not met and no further consideration can be given to whether the worker is eligible for PVR benefits. In the worker’s situation, as he was not employed, there was no risk of a future work related injury to mitigate. The worker was therefore not eligible to receive PVR benefits and services.

On December 19, 2008, the above decision was appealed by the worker’s solicitor and a hearing was arranged.

Reasons

Worker’s position

The worker was assisted by legal counsel in his appeal. It was submitted that the worker is a 35 year old man who is far too young to have the degenerative back condition which he does have. It was argued that the worker’s back condition was caused by employment in the first place and that the accident of July 5, 2007 aggravated his back. After a period of disability, he attempted to return to modified duties. During this period of time, the worker was informed that he was being considered for PVR. Unfortunately, the modified duties aggravated the condition and he had to go off work again. When he went off work, he was terminated by the employer. The worker’s position was that he did not agree to the termination, but rather, was only given the option of quitting, being fired or being laid off. He did not have the option of remaining with the employer. As a result of the injury related termination, the worker was told by the WCB that he was not eligible for PVR. It was submitted that the worker ought to be reinstated with back pay, and that his eligibility for PVR should be reassessed. It was noted that the wording of WCB Policy 43.10.60 does not specifically require that a worker actually go back to work to be eligible for PVR. It was submitted that the worker is only required to show that returning to the same occupation would cause an aggravation or similar injury.

At the hearing, there was some discussion about the fact that inherent in the worker’s submission was the position that either the July 2007 compensable injury had not yet resolved, or that the work duties had caused an aggravation of a previous work injury which the worker suffered when he was 16 years old. These submissions are not consistent with the current state of WCB adjudication of this claim. The Review Office has not been asked to rule on, and has made no decisions on whether the WCB’s termination of benefits was appropriate, or regarding the impact of a previous work injury on the current claim. The WCB’s adjudication of the issues under appeal are made under the assumption that the worker had recovered and was no longer impaired by the effects of a compensable injury. Given the state of the current adjudication, in considering the appeal, this panel is likewise required to assume that the worker’s 2007 back strain had resolved and that any pre-existing condition is non-compensable. After considering the matter with legal counsel, it was indicated that in this appeal, the worker would only proceed with the issue of whether or not he was eligible for PVR, and the issue of whether or not the employer met its re-employment obligations would be adjourned sine die.

Employer’s position

Legal counsel and a representative from the employer appeared at the hearing. On the remaining issue before the panel, the employer took no position with respect to the worker’s eligibility for PVR. The purpose for the employer’s appearance at the hearing was to be of assistance to the panel to answer questions. With respect to the facts, the employer clarified that the worker did not come back to modified duties. He essentially came back to the pre-injury job. The employer confirmed that it was aware of the worker’s back condition and that even with his pre-existing back condition, it was determined that by working smart, the worker could perform the full functions of the job.

Applicable Legislation

Pursuant to subsection 27(20) of the Act, the WCB may provide academic, vocational or rehabilitative assistance to a worker. Subsection 27(20) provides

Academic, vocational, rehabilitative assistance

27(20) The board may make such expenditures from the accident fund as it considers necessary or advisable to provide academic or vocational training, or rehabilitative or other assistance to a worker for such period of time as the board determines where, as a result of an accident, the worker

(a) could, in the opinion of the board, experience a long-term loss of earning capacity;

(b) requires assistance to reduce or remove the effect of a handicap resulting from the injury; or

(c) requires assistance in the activities of daily living.

WCB Policy 43.10.60 Preventive Vocational Rehabilitation (the “PVR Policy”) sets out the criteria as to when preventive vocational rehabilitation will be provided. The PVR Policy states, inter alia:

1. A worker may be provided preventive vocational rehabilitation services or benefits where all the following criteria are met:

· A worker has experienced a compensable injury and it is the opinion of the WCB after review of all relevant information that a return to the previous occupation or industrial process is likely to cause a further compensable disability, recurrence, aggravation or similar injury. The determination of the likelihood of further physical injury or occupational disease and loss of earning capacity may be due to the worker’s susceptibility or sensitivity associated with the compensable injury or due to a pre-existing condition of the worker which significantly increases risk factors; and,

· There is a reasonable expectation of success in preparing for alternate employment; and

· Savings at least equal to the projected costs can be predicted with a cost-benefit analysis; and

· A comparable service is not available from some other source at no cost to the WCB.

It is to be noted that preventive vocational rehabilitation benefits or services are directed towards injured workers who have recovered from the effects of a compensable injury, but are still considered to be at risk for re-injury at the pre-accident occupation. This is to be contrasted from “regular” vocational rehabilitation benefits which are more commonly provided by the WCB to injured workers in situations where, due to their post-injury condition, the workers are unable to return to work in their previous occupations. Entitlement to these vocational rehabilitation benefits is addressed under WCB Policy 43.00 Vocational Rehabilitation.

Analysis

The worker has asked this panel to declare him eligible for consideration for PVR benefits and services. The Appeal Commission and its panels are bound to follow the policies put in place by the WCB Board of Directors. We are therefore bound to apply the PVR Policy.

The Administrative Guidelines to the PVR Policy state that: “The offer of preventive vocational rehabilitation is intended to give the worker the opportunity to become better suited for employment outside of the occupation or industrial process deemed likely to cause a further similar compensable injury. Any preventive vocational rehabilitation must be cost effective.”

The worker had previously been slated for consideration of preventive vocational rehabilitation benefits, but when his employment with the accident employer was terminated, the WCB determined that he was no longer eligible for consideration.

The criteria for becoming eligible for PVR are set out in the PVR Policy and Administrative Guidelines. One of the criteria is that “savings at least equal to projected cost can be predicted with a cost-benefit analysis.” In order to satisfy this criteria, the WCB has devised a worksheet to assess potential cost effectiveness. One of the factors for consideration is the projected cost of further injuries without intervention. In order to determine this projected cost, the WCB makes an estimate of frequency and duration of future claims, i.e. assesses the worker’s future risk of further injury. The WCB will typically examine the worker’s past claims history in the industry and attempt to extrapolate that pattern into the future.

In the present case, due to the severity of the worker’s low back condition, the PVR Committee took the unusual step of projecting a future risk of one claim per year for the next 29 years based on the single accident actually suffered by the worker. Given the susceptibility of his back and the type of work he was doing, the WCB viewed him as being at clear risk for further injury. On this basis, the worker was slated for consideration for PVR. However, when his employment ceased, the risk was removed, and therefore he was no longer considered eligible by the WCB.

The panel agrees with the WCB that when the worker was removed from the industry in which he was working, he was also removed from the risk of further injury. The risk profile upon which his eligibility was based had disappeared. He was no longer subjecting his back to risk of injury by repeatedly getting in and out of semi-tractors throughout the workday. As the increased risk was no longer present, the cost-benefit analysis changed dramatically and it was no longer cost effective to intervene and invest in retraining the worker in a new occupation.

This is consistent with paragraph 4(iv) of the Administrative Guidelines which state:

iv. The WCB must be satisfied that employment opportunities exist in the occupation or industrial process which places the work (sic) at risk, and that the worker will likely return to that occupation or industrial process. Where it is reasonable for the WCB to assume that the worker cannot or will not return to the occupation or industrial process for reasons not related to the injury (e.g. because of limited employment opportunities), the worker would not be eligible for preventive intervention.

At the hearing, the worker’s evidence was that since his employment with the accident employer had ended (approximately 14 ½ months prior to the hearing), he had applied for other more “back-friendly” positions but had been unable to secure employment for reasons unrelated to his compensable injury. The positions applied for by the worker did not involve the same degree of activity and twisting and bending as was required to perform his job duties with the accident employer.

For these reasons, the panel finds that the worker does not meet the criteria set out in the PVR Policy. As the worker is no longer in the risky environment, the panel is unable to find that “savings at least equal to the projected costs can be predicted with a cost-benefit analysis.” We note that in his submission, legal counsel stressed that the PVR Policy’s first bulleted criteria did not require that the worker return to the previous occupation. While this may be the case (and we make no finding in this regard), the PVR Policy requires all of the criteria to be met, and given our findings set out above with respect to cost effectiveness, the worker does not qualify under the PVR Policy.

The worker’s appeal is dismissed.

Panel Members

L. Choy, Presiding Officer
A. Finkel, Commissioner
G. Ogonowski, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 9th day of June, 2009

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