Decision #85/09 - Type: Workers Compensation
Preamble
The worker has an accepted claim with the Workers Compensation Board (“WCB”) for a right lower leg and knee injury that he sustained on August 14, 1996. The worker is currently appealing decisions made by Review Office on January 30, 2004 dealing with the appropriateness of his rehabilitation plan, his deemed earning capacity, his entitlement to further vocational rehabilitation assistance, and the provision of a rehabilitation/physiotherapy program. A hearing was held via teleconference on June 25, 2009 to consider these matters.Issue
1) Whether or not the worker’s rehabilitation plan was appropriate;
2) Whether or not a deemed post accident earning capacity of $320.00 per week should have been implemented effective June 21, 2003;
3) Whether or not the worker is entitled to further vocational rehabilitation assistance; and
4) Whether or not the worker should be provided with further physiotherapy and/or a reconditioning program.
Decision
1) That the worker’s rehabilitation plan was appropriate;
2) That a deemed post accident earning capacity of $320.00 per week should have been implemented effective June 21, 2003;
3) That the worker is not entitled to further vocational rehabilitation assistance; and
4) The fourth issue was withdrawn by the worker during the course of the hearing, and a decision was not rendered by the panel on this matter.
Decision: Unanimous
Background
On August 14, 1996, the claimant sustained a compensable injury to his right lower leg and knee during the course of his employment as a tree topper. Subsequent file records showed that the worker’s knee condition prevented him from returning to his pre-accident employment. On January 22, 2001, a WCB case manager referred the file to the WCB’s vocational rehabilitation branch to assist the worker with finding sustainable employment that was in keeping with his temporary work restrictions to avoid excessive climbing and lifting greater than 50 lbs. The worker was currently living in Alberta but was relocating to Winnipeg, Manitoba on February 1, 2001. The case manager noted that the worker had been involved with vocational rehabilitation in the past with the Saskatchewan WCB in respect of an earlier workplace injury.
On February 2, 2001, a WCB vocational rehabilitation consultant (“VRC”) met with the worker to conduct an initial vocational assessment. The VRC noted that the worker completed a grade 9 education in 1976. It was indicated in a subsequent resume that the worker had skills and experience in seasonal positions that included logging, construction work, equipment operator, as well as factory and farm/dairy work.
In a memo to file dated May 29, 2001, the VRC indicated that the worker participated in various workshops through employment services and the career planning program. She stated that the worker attempted a work position involving small engine repair but the physical demands for that occupation were beyond the worker’s abilities.
On July 11, 2001, a WCB employment specialist (“ES”) documented that the worker was offered a 3 week work assessment program starting August 20, 2001 to rebuild warranty engine parts.
On August 24, 2001, a WCB case manager documented that the worker was thinking about relocating back to Kamloops, B.C., as he found it expensive to live in Winnipeg and he had no family support. The worker was told of the implications related to vocational rehabilitation should he decide to relocate to Kamloops which was a smaller urban centre. On August 28, 2001, the worker advised the WCB that he had relocated to Kamloops, B.C. and was looking forward to finding work in the area.
On October 10, 2001, the VRC referred the worker to an external service provider in B.C. to provide 20 weeks of job search/on-the-job training assistance for the worker under NOC 9471, Assembly. The VRC stated, “I am basing the labour market for NOC 9471 for Winnipeg. Therefore, if the labour market is poor in Kamloops it will be up to [the worker] to market himself and secure a position within the time frames expected. I will be developing the Individualized Written Rehabilitation Plan within the next few weeks.”
In a letter to the VRC dated October 31, 2001, the external service provider indicated that employment was somewhat restricted by the worker’s knee problem, and that the slow economy in Kamloops made job search difficult.
The file contains earning capacity information for NOC 9493, Other Wood Products Assemblers and Inspectors and for NOC 9495, Plastic Products Assemblers, Finishers and Inspectors.
On November 30, 2001, the VRC indicated that the worker would commence a return to work program starting December 3, 2001 that involved the assembly of wood products for gazebos and trellises, to grade the wood, and general duties as required.
An Individualized Written Rehabilitation Plan (“IWRP”) was developed for the worker under NOC 9493, Other Wood Products Assemblers and Inspectors. It was indicated in the plan that an earning capacity analysis (“ECA”) was conducted on the Winnipeg labour market even though the worker resided in B.C. The consultant indicated that she took into consideration the fact that the worker had just started in the work assessment phase in Manitoba prior to relocating to BC due to personal reasons. She stated it was reasonable to use the Manitoba labour market in determining the earning capacity rather than the BC market. Upon completion of the vocational plan, it was anticipated that the worker would be capable of earning $270.00 per month.
On December 31, 2001, the external service provider indicated that the worker was enjoying the work and that his right knee swelled up sometimes after a hard day but with pain medication and rest, he was ready for work the next morning. The external service provider indicated that the worker’s right knee swelled and caused pain when doing a lot of turning around while stacking wood.
In January 2002, the worker’s temporary restrictions to avoid lifting greater than 50 lbs. and to avoid climbing became permanent.
On May 3, 2002, the WCB withdrew the worker from a cost shared work experience because of ongoing unresolved employment issues and because the employer was uncertain he would be able to hire the worker in June.
The worker commenced employment with another woodwork company on May 8, 2002. It was indicated that the WCB was arranging for ergonomic equipment used by the worker (i.e. a sit/stand tool, a spring loaded lift table, and an anti fatigue-mat) to be delivered to the job site.
While at work on August 29, 2002, the worker fell through a wooden floor board and injured his right leg. The worker was advised to file a claim with the WCB of B.C.
In a WCB memo dated November 1, 2002, it was indicated that the worker’s IWRP officially ended on November 3, 2002 and that the worker would not be entitled to vocational rehabilitation services following that date.
Information received from the WCB of B.C. indicated that pursuant to the August 29, 2002 claim, the worker was not entitled to wage loss benefits beyond October 16, 2002 as there was no medical evidence to support disability “with regard to the injury that had been accepted under your claim (knee injury)”. The worker was also informed that no responsibility would be accepted for his right toe complaints as there was no evidence that it was injured in the August 2002 accident and that his toe complaints were related to advanced osteoarthritic changes in the first MP joint. Effective November 2002, no responsibility would be accepted by the WCB of B.C. for medical treatment and physiotherapy related to his right knee. The worker was advised that he had 90 days to appeal the decision but he did not do so.
On December 13, 2002, the worker’s employer advised the WCB that the worker was placed on light duties given his leg complaints prior to the August 28, 2002 accident. The worker became a helper and assisted with assembling gazebos and fencing. The employer indicated that the worker was considered a good worker who had always showed up on time. However, in November 2002, the worker did not show up for work when scheduled. The worker’s job was discontinued by the employer who claimed the termination was as a result of personality differences and not as a result of his injury.
On January 7, 2003, the worker was advised by his WCB case manager that his file had been reopened and accepted as a recurrence of his 1996 right knee injury. It was felt that the worker’s ongoing right knee difficulties were, in part, related to his Manitoba claim from 1996. The worker was advised that a new restriction was added to his previous restrictions: to avoid excessive periods of standing and/or walking. As a result of this restriction being added, the worker was advised that the original occupational goal of NOC 9493 was no longer appropriate. The worker was advised that his case was being reviewed for further vocational rehabilitation entitlements.
On March 4, 2003, the VRC determined that based on the worker’s restrictions, education and transferable skills, NOC 9498, Other Assemblers, was a more appropriate vocational goal for the worker. An IWRP was established under NOC 9498 and was signed by the worker on April 14, 2003. The IWRP provided the worker with 20 weeks of job search assistance from February 3, 2003 to June 20, 2003. At the completion of the IWRP it was anticipated that the worker would be capable of earning $280.00 per week. If employment was not secured after the job search, the worker’s benefits would be reduced in accordance with WCB policy and Earning Capacity Assessment practice.
On May 13, 2003, the worker advised his VRC that he was spending full days looking for work but was unsure if he could work in the chosen NOC given that he walked with a cane all the time. The worker indicated that his right knee and right foot gave him problems and that he was still in a lot of pain.
In a letter dated May 13, 2003, the worker was advised by a WCB case manager that the occupation of Other Assemblers, NOC 9498, met his physical restrictions. “The occupation targeted for job search may include sedentary work, prolonged sitting/standing or some combination of all of these. As you are in receipt of a sit/stand stool, an anti-fatigue mat and a scissor lift, it is felt this equipment will assist you in meeting the physical demands of an assembler.”
On May 16, 2003, the treating physician noted that the worker had difficulty walking with increased pain in the leg and right foot. Objective findings included diffuse tenderness around the right knee, reduced flexion and severe swelling. There was tenderness and crepitus over the right first MP joint of the foot. X-rays taken of the right foot on May 16, 2003 showed advanced osteoarthritic changes in the first MP joint with no other abnormalities involving the bony structures, joint surfaces or adjacent soft tissues. The right knee showed no bone or joint abnormality and the soft tissues appeared unremarkable.
On June 3, 2003, the worker was advised that the WCB felt he was capable of earning $280.00 per week based on the labour market information for NOC 9498, Other Assemblers and effective June 21, 2003 he would no longer be in receipt of wage loss benefits.
An MRI was done on August 6, 2003. It showed a small stable oblique tear of the medial meniscus posterior horn. In a progress report dated August 12, 2003, the treating physician noted that he discussed the MRI findings with the worker and that a rehabilitation program for the worker’s right knee was suggested.
On August 15, 2003, the WCB case manager wrote to the worker to advise him that based on a review of his medical history and current medical information, the WCB was unable to accept responsibility for a reconditioning program as recommended by the treating physician. The case manager indicated that a reconditioning program would not change his restrictions or provide any further benefits given his past history and his current diagnosis of osteoarthritis which was a non-compensable condition.
On November 19, 2003, the worker advised Review Office that he disagreed with the IWRP of April 2003, the subsequent ending of his benefits and the decision to deny responsibility for a reconditioning program.
In a January 30, 2004 decision, Review Office determined that the worker’s IWRP was appropriate. Review Office noted that the worker’s vocational rehabilitation plan was changed from seeking employment in NOC 9493 to seeking employment in NOC 9498 following a change in his restrictions to include avoidance of excessive walking or standing. It stated that the time of the change suggested it was the result of his August 2002 injury in B.C., but it was not. Review Office indicated that the worker was provided with vocational rehabilitation assistance from late January 2003 until a deemed earning capacity was implemented on June 21, 2003. Even though the worker was unsuccessful in obtaining employment it did not mean that the IWRP was inappropriate. Rather, it meant that the worker’s unilateral decision to reside in the BC interior significantly reduced his ability to find work. Review Office noted that if the worker remained in Winnipeg, he could have found employment that respected his restrictions within NOC 9498.
Review Office was of the opinion that the worker was adequately compensated for the effects of his 1996 knee injury and therefore he was not entitled to any form of vocational rehabilitation benefits or services. Review Office determined that a deemed post accident earning capacity of $320.00 per week should have been implemented effective June 21, 2003.
Review Office agreed with the WCB case manager that the worker should not be provided with further physiotherapy and/or a reconditioning program. Review Office felt there was nothing of consequence to be gained by providing the worker with the treatment in question. The sequence of events suggested that any need for treatment was related to the worker’s August 2002 injury in B.C. and not his 1996 Manitoba claim.
On June 10, 2005, the worker advised the WCB that he continued to have pain and swelling in his right knee, ankle and foot. He stated that he had not worked for the last 3 months because of his condition.
A July 6, 2005 report was received from the worker’s treating physician which was reviewed and commented on by a WCB medical advisor on July 19, 2005.
On August 22, 2005, the case manager advised the worker that the updated medical information had been reviewed and that no change would be made to the previous decision. The case manager recognized that the worker experienced a significant injury to his right lower leg and knee area and had permanent restrictions. It was also noted that the MRI results and x-rays previously performed showed degenerative changes to his knees and that he had significant osteoarthritis in both knees.
Medical information showed that the worker underwent an arthroscopy of his right knee with a partial medial meniscectomy on February 1, 2008.
On August 29, 2008, a WCB medical advisor reviewed the file at the request of primary adjudication. The medical advisor stated that the diagnosis related to the 1996 compensable injury would be post medial meniscectomy degenerative changes to the right knee. The removal of part of the meniscus in 1996 and 2000 would predispose the knee to degenerative changes in the medial compartment. The February 2008 surgery was done for a degenerative tear in the medial meniscus and this could be a normal age related tear in a 48 year old person. However given that the previous surgery changed the mechanics of the knee predisposing it to degenerative changes, on a balance of probabilities, the degenerative changes and thus the need for this surgery could be considered related to the effects of the 1996 compensable injury. Because of the degenerative changes in the knee, the medical advisor indicated that restrictions should now include limitations in force applied through a bent knee (i.e. limited squatting, climbing, kneeling, crawling, pivoting, running, jumping). The lifting restriction should include pushing/pulling or carrying on a permanent basis.
The worker was advised on September 17, 2008, that he was entitled to 12 weeks of full wage loss benefits from February 1 to April 24, 2008 in relation to his recovery period for his recent knee surgery.
On March 23, 2009, the worker submitted an appeal to the Appeal Commission. On April 7, 2009, the worker clarified that he was appealing the decisions made by Review Office in 2004. A hearing by teleconference was then arranged.
Reasons
Applicable Legislation
The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the Board of Directors. Under subsection 4(2) of the Act, a worker who is injured in an accident (as defined under the Act) is entitled to wage loss benefits for the loss of earning capacity resulting from the accident. Subsection 40(1) of the Act defines loss of earning capacity as the difference between the worker’s net average earnings before the accident and the net average amount that the board determines the worker is capable of earning after the accident.
Pursuant to subsection 27(20) of the Act, the WCB may provide academic, vocational and rehabilitative assistance to injured workers. Subsection 27(20) provides:
Academic, vocational and 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 43.00, Vocational Rehabilitation (the “Voc Rehab Policy”) explains the goals and describes the terms and conditions of academic, vocational and rehabilitative assistance available to a worker under subsection 27(20). The Voc Rehab Policy states that: “The goal of vocational rehabilitation is to help the worker to achieve a return to sustainable employment in an occupation which reasonably takes into consideration the worker’s post-injury physical capacity, skills, aptitudes and, where possible, interests.” The Voc Rehab Policy also provides that: “The WCB will help the worker as much as possible to be as employable as she/he was before the injury or illness. Once this is done and where necessary, the WCB will provide reasonable assistance to the worker so that she/he actually returns to work. However, services may not always continue until the worker actually returns to work.”
WCB Board Policy 44.80.30.20 (the “Deeming Policy”) deals with “Post Accident Earnings - Deemed Earning Capacity”. Loss of earning capacity is the difference between a worker’s average earnings before an accident and what the worker is determined or deemed to be capable of earning after the accident. Among other things, the Deeming Policy specifically describes how deemed earning capacity will be determined for individual claims and states that it must be demonstrated that a deemed earning capacity is reasonable and realistic. Where deemed earning capacity is used, it means that wage loss benefits will be paid as if the worker were actually earning the deemed amount.
Worker’s Position
In his Request for Appeal, the worker submitted that he found work and that he did work for one year, but without the benefit of ergonomic equipment which was promised to him by the WCB. He argued that if he had been provided with the equipment, he would have avoided the second accident of August 2002. He stated that since then, he has been unable to find other employment due to the fact that he needs to use a cane and a brace. He also noted that he was told by the WCB that he was fine, yet a specialist subsequently found that he required further surgery on his knee. The worker expressed frustration with the process and requested that further wage loss and job search benefits be provided.
At the hearing, the worker appeared by teleconference and was assisted by a support worker. When asked why he felt his rehabilitation plan was not appropriate, the worker stated he felt that the WCB “put the cart before the horse.” He felt that his leg was already bad, and then as he participated in the work experience, it got worse and worse. He described waiting for the delivery of ergonomic equipment, namely a sit/stand stool, an anti-fatigue mat and a scissor lift, but this equipment never arrived in time for him to make use of it. The worker felt that if he had received the equipment in time, his rehabilitation plan would have worked. He stated that he would not have gotten hurt in August 2002 if the equipment had arrived. At the time of the accident, his arms were full as he was carrying spindles. He could not see in front of him. If he had the scissor lift and a dolly, he would have been rolling the materials in front of him and he would have seen the holes in the floor before he fell through.
Analysis
There were four issues appealed to the panel, but the fourth issue relating to entitlement to further physiotherapy and/or a reconditioning program has been withdrawn. At the hearing, the panel clarified with the worker that he was seeking coverage for physiotherapy which was recommended by his physician after his arthroscopy in February, 2008. This differs from the entitlement to physiotherapy adjudicated upon in the January 2004 Review Office decision. As entitlement to physiotherapy as a result of the 2008 surgery has not yet been fully considered by the WCB, the panel advised the worker that he should review this issue first with his case manager. The issue was therefore withdrawn.
The three remaining issues will each be addressed in order.
1. Whether or not the worker’s rehabilitation plan was appropriate.
The first issue concerns the appropriateness of the worker’s vocational rehabilitation plan. In order for the worker’s appeal to be successful, the panel would have to find that the assistance provided to the worker did not reasonably take into consideration the worker’s post-injury physical capacity, skills, aptitudes and, where possible, interests. On reviewing the facts of this case, we are unable to make that finding. In the panel’s opinion, the rehabilitation plan devised for the worker was appropriate. The vocational rehabilitation assistance commenced in Manitoba, and then subsequently, the WCB accommodated the worker’s choice to relocate to British Columbia and continued to fund vocational rehabilitation assistance in British Columbia by an external service provider. Initially, the goal of NOC 9493, Other Wood Product Assemblers and Inspectors was identified and the worker was physically able to maintain work experience placements in this industry. The occupation met the work restrictions in place for the worker at that time. The panel notes that there is no medical treatment provider on the file record offering an opinion that the work restrictions were not appropriate, and indeed, there is no indication at the time that the worker was raising concerns about the appropriateness of the work. There was the issue regarding the delayed delivery of ergonomic equipment which was recommended after a worksite assessment, but in the panel’s opinion, the unexpected difficulties in providing the equipment did not detract from the overall appropriateness of the vocational rehabilitation plan. The panel also does not accept that the worker would not have sustained the August 2002 injury but for the provision of the equipment. It would be far too speculative to make any findings in that regard.
After the worker’s subsequent injury in August, 2002, the WCB amended the worker’s vocational rehabilitation plan to accommodate his additional restrictions resulting from the new injury. The new goal of NOC 9498 Other Assemblers was implemented and twenty weeks of job search assistance was provided.
While the worker was unable to secure employment before the job search assistance period ended, the panel is of the view that the assistance provided to the worker was appropriate. The identified NOC met the worker’s restrictions and was an occupation in which he could have found employment, were it not for the depressed job market in the British Columbia region to which he relocated. Vocational rehabilitation is intended to provide reasonable assistance, but does not guarantee employment. In the panel’s opinion, reasonable assistance was provided, and therefore the worker’s appeal on this issue is dismissed.
2. Whether or not a deemed post-accident earning capacity of $320.00 per week should have been implemented effective June 21, 2003.
As outlined above, the panel is of the view that the vocational rehabilitation assistance was reasonable and appropriate. At the end of the twenty weeks of job search assistance in NOC 9498, it was also reasonable and realistic to implement a deemed earning capacity of $320.00 per week, which was about equivalent to full time minimum wage employment. While the worker continued to suffer some impairment from his compensable injury, there is not sufficient evidence to establish that at the end of the vocational rehabilitation plan, he would be unable to maintain full time employment within his restrictions at a minimum wage job. In fact, the worker did look for full time employment, but was simply unable to secure a position. The panel therefore finds that a deemed post-accident earning capacity of $320.00 per week was properly implemented effective June 21, 2003. The worker’s appeal on this issue is dismissed.
3. Whether or not the worker is entitled to further vocational rehabilitation assistance.
The Review Office decision being appealed to this panel is dated January 30, 2004, and at that time, the Review Office determined that the worker was not entitled to further vocational rehabilitation assistance. Based on the reasoning set out under issues 1 and 2 above, the panel agrees with the Review Office that as of January 30, 2004, the worker was not entitled to any further assistance. The 2001 – 2003 vocational rehabilitation plan and subsequent job search assistance was appropriate and there is no indication that more could or should have been done for the worker at that time. The worker’s appeal on this issue is therefore dismissed.
As an aside, however, the panel notes that since the January 2004 Review Office decision, the worker’s medical condition has changed significantly. The worker now has additional physical restrictions as a result of degenerative osteoarthritic changes in the worker’s knee which the WCB has accepted are related to his compensable injury. In its review of the file material, the panel observed that the WCB has not yet considered how the additional or any new restrictions may have affected the worker’s employability and his current earning capacity. While we have confirmed the Review Office’s decision on all three appealed issues, we hasten to add that those decisions were correct with respect to the worker’s status as at January 2004. Much has changed since then and we make no comment on whether the deemed earning capacity remains appropriate or whether further vocational rehabilitation assistance is warranted. At the hearing, it was evident to the panel that the worker does not have a great understanding of the WCB’s processes and the kinds of entitlement the WCB has to offer. Given the worker’s relative lack of sophistication, the panel would encourage the WCB to take the initiative in reviewing what, if any, further entitlements may result from the change in the worker’s restrictions.
Panel Members
L. Choy, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
L. Choy - Presiding Officer
Signed at Winnipeg this 20th day of August, 2009