The Appeal CommissionThe Workers Compensation Act of Manitoba

The worker injured his back in a work-related accident on February 7, 2005. Although he received a variety of medical treatments and was put through a work hardening program by the WCB, the worker did not fully recover from the injuries he sustained in the compensable accident.

Ultimately the WCB carried out a number of assessments of the worker and determined that the following permanent restrictions should be put in place concerning his employment abilities: no lifting greater than 20 pounds; to have the ability to work with the spine in a neutral position; no repetitive or sustained bending or twisting of the spine; and no sitting for longer than 60 minutes at one time without being able to get up and move around or do something else, even for a short time.

The worker's employer was not able to accommodate the worker with a position within these permanent restrictions. Accordingly, the worker was referred for vocational rehabilitation benefits and services.

Following a transferable skills analysis, it was determined that an appropriate occupational goal for the vocational rehabilitation plan would be NOC 1453. The WCB determined that the physical requirements for NOC 1453 were within the worker's restrictions and that the worker would meet the employment requirements for this vocation, following some training.

The vocational rehabilitation plan consisted of the worker taking a 12 week Customer Service program from March 17, 2008, to June 6, 2008. The worker would then be provided with 12 weeks of job search assistance from June 9, 2008, to August 29, 2008. The plan would then be that on August 30, 2008, the worker's wage loss benefits would be reduced based on a deemed earning capacity of $382.00 per week.

At the hearing of this appeal, the worker testified that he experienced tremendous pain and difficulty during his efforts to complete the vocational rehabilitation training. In particular, he testified that he found he could not sit during the computer training and that no matter how much he stretched, moved around and got up, he simply could not sit for very long. His evidence was that he attempted to sit for three or four hours a day but that after a couple of days he could not bear to sit anymore and so he stood up for most of the time during the training.

He stated that he could only handle sitting for about two hours a day. He was only averaging about 8 – 11 hours of training per week.

The worker testified that the staff at the training program tried to help him by adjusting and modifying different chairs and desks and heights of computers. However, the adjustments did not help, and the worker's ability to finish the training was delayed because of the pain he experienced in his back due to problems with sitting.

Ultimately, the worker did complete the course. Much of the course work was completed by him at home. After the training his back got quite a bit worse. He did attempt job searching through networking with family and friends. This had been suggested to him as a good way to start looking for work, given that he had been off work for so long as a result of his injury and therefore had gaps in his resume.

In terms of job searches, however, not only did he have gaps in his resume, but the worker testified that because he was not able to sit for very long that eliminated quite a few of the jobs for which he was qualified, including most customer service jobs. He testified that despite his best intentions and a lot of help from family and friends, he still did not find anything that he was physically able to do.

The worker testified that throughout 2008, not only was he having difficulty finding work but he was having difficulty just functioning on a daily basis because of the pain in his back. Nonetheless, he continued to seek employment. He was offered a couple of jobs by friends. Prior to attempting to carry out those jobs, the worker simulated the work situation on his own at home.

For example, in the summer of 2008 the worker was offered a security guard type of position with a construction company. The worker testified that prior to accepting the job offer, he simulated the work situation by standing for quite a bit of time. He testified that he thought that if he could not sit he would be able to stand. Accordingly, he testified that he tried for three days at home to simulate a work day. He got up at 8:00 in the morning. At 11:00 he took a 15 minute break where he could stretch. At noon he took lunch. He testified that unfortunately after spending three days on his feet he was in quite a bit of pain and so he told his friend that he would be unable to accept the job offer.

The worker testified he has attempted several similar simulations, all without success. His evidence was that on a bad day at home he cannot walk at all and is essentially housebound. It was clear from the worker's evidence that he is very much motivated to return to work but that he feels he is prevented from doing so because of the significant back pain he continues to experience.

Throughout 2007 and 2008 the worker continued to see his physician for treatment and follow-up of his back injury. In the summer of 2008 the worker's physician continued to report that the worker was fit for sedentary work. The worker testified that he discussed this assessment with his physician and that the physician indicated that his reason for assessing the worker as having the ability to do at least some work was to allow the worker to make attempts at job searches. In other words, the worker testified that it was his physician's advice that if he indicated the worker was not able to perform at least sedentary work, the worker would have been precluded from any attempts at finding employment.

Based on the physician’s report, in July, 2008, the WCB added the following restrictions on the worker’s employment capabilities: "no sitting greater than 60 minutes at one time without being able to get up and move around". The vocational rehabilitation consultant of the WCB remained of the opinion that the sitting restriction would not preclude the worker from working in the previously identified position of customer service.

The Board determined and the Review Office confirmed, in its decision of November 24, 2008, that positions in NOC1453 are sedentary in nature and that there was no information on the file to suggest that the worker would have to sit longer than 60 minutes without the opportunity to get up. It was further determined that NOC1453 included a wide variety of customer service positions and that these positions were within the permanent restrictions that had been imposed on the worker's job duties. Accordingly, the Review Office determined that the worker was capable of earning $382.00 per week effective August 30, 2008.

However, the worker's oral evidence at the hearing highlighted and outlined the difficulties he in fact encountered when he tried to perform the obligations associated with a sedentary job.

In the worker's written appeal of the Review Office's decision, the worker indicated that "The occupational goals set out by WCB for me were beyond my capabilities physically and were never realistic or reasonable. After a full voluntary effort during an FCE and a sitting restriction of 60 minutes, I was still being directed to find a job in a field (NOC1453) that would make my condition worse. As described by WCB positions in NOC1453 are clerical in nature and most of the work takes place at a desk. The fact that my back gets progressively worse the longer that I sit is well documented throughout my file and was consistently and constantly discussed with everyone – from doctors to WCB personnel…Getting up and stretching helps for a little while but doesnt [sic] eliminate the effects of sitting – after an hour or so of sitting, the pain becomes intolerable."

After the hearing, the panel wrote to the worker's physician asking for a report outlining the physician's opinion and supporting rationale of the worker's capabilities and restrictions from August 30, 2008, until the present. The physician responded with a letter dated July 29, 2009. In this letter, the physician reported that his most recent opportunity to see the worker as of August 30, 2008, was on August 19, 2008. At that time his clinical notes stated that the worker would be limited to sedentary work. He was prescribed a variety of medications for pain control. The physician next reported seeing the worker on September 19, 2008, at which time the worker continued to note significant intolerance to sitting which precluded jobs where he was asked to remain at a computer or typing. The physician indicated it was again suggested that the worker be limited to sedentary work but the number of hours was not documented. The worker was seen again on October 21, 2008, and was awaiting an assessment by a pain clinic. The physician reported that although he was continuing to be limited to sedentary work and that although the number of hours per day were not limited, the physician had advised the worker that ideally he would start with a limited number of hours like 3 – 4, and progress as tolerated. The physician noted that the worker did explore several employment opportunities with light to medium intensity but unfortunately was unable to tolerate them.

The physician reported that the worker was seen again on December 2, 2008, at which time it was noted that he would be unable to continue the work that he had found. The physician's notes indicate that any activity seemed to exacerbate his pain and that he was requiring more pain medication. At the time of that visit, the physician documented that the worker could do a limited number of hours of sedentary work up to four hours per day. He would require the ability to sit or stand as comfortable. It was also noted that the worker was unable to find this kind of work.

The worker was seen again on January 15, 2009, still not able to find work. His sleep was noted as being poor secondary to inadequate pain control.

The physician reported that the worker was seen again on February 24, 2009, and reported suffering from moderate to severe low back pain and right flank pain. The physician noted that the worker's functional capabilities continued to be markedly limited. He was maintained on the same medication regime. He was seen again on April 14 and July 8, 2009. He had reported trying a different job which required him to stand as a sign person at a construction site but that he had found this was intolerable due to pain as well.

The physician concluded by indicating that the worker had pursued multiple avenues in attempting to find gainful employment. Each attempt, despite significant effort, unfortunately had met with failure. It was the physician's opinion that "Despite a well-motivated individual, unfortunately, at this time, he would appear to be gainfully unemployable."

Legislation and Policy:

Subsection 39(1) of The Workers Compensation Act (the "Act"), provides that wage loss benefits are paid to a worker where an injury to a worker results in a loss of earning capacity. Subsection 39(2) of the Act provides that wage loss benefits are payable until the loss of earning capacity ends, as determined by the Board. Loss of earning capacity is the difference between the worker's average earnings before the accident and what the worker is determined or deemed to be capable of earning after the accident.

WCB Policy 44.80.30.20 (“the Policy”) deals with post accident earnings – deemed earning capacity. The Policy specifically describes:

1. When the earnings a worker is deemed capable of, but not actually earning will be included in the loss of earning capacity calculation; and

2. How the deemed earning capacity will be determined for individual claims (i.e. it must be demonstrated that a deemed earning capacity is reasonable and realistic).

The Policy further provides that deemed earning capacity will typically be demonstrated in the context of vocational rehabilitation activity. According to the Policy, the WCB must demonstrate through adequate vocational assessment, plan development and documentation that the worker is capable of competitively finding, competing for, obtaining and keeping employment in the occupation on which the earning capacity is based. Further, the Policy provides:

"3. b. The WCB must demonstrate that the worker has the physical capacity, education skills, aptitudes, interests and personal qualities needed to obtain and keep employment in the occupation or group of occupations in the labour market."

Analysis:

The panel finds, based on the totality of the evidence, including the evidence in the file, the worker's testimony at the hearing of the appeal, and the most recent medical evidence from the worker's physician dated July 29, 2009, that the worker did not have the physical capacity to obtain and keep full time employment in the occupation on which the earning capacity is based.

The worker was deemed capable of working in NOC1453 customer service and related clerks. On that basis he was deemed to be able to earn $382.00 per week. NOC1453 customer service was considered to be appropriate for someone who was fit for sedentary work. Based on the evidence, however, the panel finds that as of August 30, 2008, the worker was not, in fact, able to tolerate even sedentary work.

The panel finds that the worker has been, at all times, extraordinarily motivated to return to work. We were impressed by the efforts he has undertaken to attempt job simulations. Unfortunately, despite the worker's obvious willingness to work, we find that his physical restrictions prevented him from participating in the labour market. While we find that NOC 1453 was appropriate for the worker, we find that as of August 30, 2008, the worker was not capable of working at all within the parameters of the NOC.