Decision #75/10 - Type: Workers Compensation
Preamble
The worker sustained a compensable injury to his right hip while employed as a long distance truck driver. On September 17, 2009, it was confirmed by Review Office of the Workers Compensation Board (“WCB”) that the worker no longer had a loss of earning capacity beyond February 22, 2008 related to his compensable injury. The worker disagreed with the decision and an appeal was filed with the Appeal Commission. A hearing was held on June 23, 2010 to consider the matter.Issue
Whether or not the worker is entitled to wage loss benefits after February 22, 2008.Decision
That the worker is not entitled to wage loss benefits after February 22, 2008.Decision: Unanimous
Background
On August 20, 2007, the worker filed a claim with the WCB for a right hip strain that he attributed to his driving on rough roads and bouncing around in the driver’s seat. The claim for compensation was initially denied by primary adjudication but the decision was overturned by the Appeal Commission on May 22, 2008. A complete background leading up to the Appeal Commission’s decision will not be reproduced here but can be found under Decision No. 63/08.
Briefly, the worker’s hip condition resulting from his compensable accident was diagnosed by his treating chiropractor as right hip tendonitis with right gluteus medius/piriformis myofascitis.
In a report to the WCB dated June 9, 2008, the treating chiropractor noted that the worker’s hip condition was improved by 70% and that he was able to walk and stand without much limitation.
He noted that sitting for longer than one hour would increase the worker’s right hip pain. The chiropractor outlined restrictions to avoid repetitive lifting of no more than 30 lbs. and to restrict sitting to one hour.
On June 25, 2008, the worker advised the WCB that he continued to experience pain and discomfort from sitting more than one hour, particularly while driving. He stated that he continued to receive treatment from his chiropractor on a weekly basis. The worker noted that he had not worked as a truck driver since August 13, 2007 except for a three week period in February when he was unsuccessful in being able to continue working due to pain.
On July 4, 2008, a WCB case manager met with the worker to discuss his claim. The worker stated that he was not working and that it was his own personal choice not to do so.
The worker indicated that he started welding with another company in March 2008. He temporarily relocated to British Columbia. The worker noted that he was claiming wage loss benefits for the period August 13, 2007 to February 28, 2008 and costs associated with chiropractic treatment. The worker indicated that he would like help in obtaining a welding ticket. He noted that he had a welding ticket however it was only valid at a certified welding shop. He said he had maintained his welding skills but never finished welding school. He was a licensed pilot but was not interested in flying.
In a telephone conversation with the employer on July 11, 2008, the WCB case manager obtained information that the worker had participated in a graduated return to work plan from February 23, 2008 to March 17, 2008 and then resigned. On July 22, 2008, the worker was advised that given he had been paid benefits for the period February to March 2008, he was now in an overpayment situation and had to pay the WCB the full amount of the overpayment.
Further medical information was received from a sports medicine physician dated December 7, 2007. His examination findings showed full range of motion in the lumbar spine with no associated tenderness. There was point tenderness over the right piriformis muscle. There was some mild tenderness with piriformis stretching. Isometric testing was unremarkable and he had a full range of motion of his hip. Neurovascular examination was normal. The physician indicated that the worker had right piriformis syndrome and gluteal myofascial pain. He stated the worker was presently unable to resume his long haul truck driving duties but hopefully over the next several weeks, he could increase his tolerance and be able to resume some short shifts or alternate duties.
On February 15, 2008, the sports medicine physician noted that the worker’s right hip condition had improved and that he wanted to try work.
In a decision letter dated August 22, 2008, the worker was advised that the WCB would pay for 105 chiropractic treatments; that the WCB considered him fit to return to his regular pre-accident duties as a truck driver; and, that the WCB was unable to provide him with training assistance to become a welder. In support of the decision that the worker was fit to return to his regular pre-accident duties, the case manager relied on the following opinion of a WCB chiropractic consultant made on August 12, 2008:
“This injury was a soft tissue injury that in my opinion should have recovered sufficiently for the claimant to return to his pre injury work. Any stiffness that the claimant reports should be able to be treated with home exercise activity as suggested by Dr. [name]. At this time I would not suggest any restrictions that would relate to the reported injury of July 28 07.”
On October 31, 2008, the worker advised the WCB that he was having trouble finding work and was requesting further WCB benefits. The worker stated that he was initially very busy out in his new residence in BC however the work had now “dried up.” The worker indicated that he spoke with a friend who suggested that the WCB was obligated to pick him up on benefits while he looked for work. The WCB case manager advised the worker that if he had compensable restrictions that disadvantaged him from looking for work, the WCB may pick up the benefits but currently the worker did not have any restrictions. The worker indicated that he did not feel that truck driving was appropriate work for him and that he feared re-injury.
A WCB Review Officer spoke with the worker on July 20, 2009. The worker stated that he could not return to work as a truck driver and disagreed with the decision of August 22, 2008. The worker noted that he had been able to work part time and sporadically as a welder without his journeyman’s ticket. The worker stated that he received lower wages than he was making as a truck driver and was claiming the difference in relation to his compensable injury. The worker stated that he continued to have pain which caused him to wake up in the middle of the night. He had not seen a doctor on an ongoing basis.
In support of the worker’s appeal, the treating chiropractor stated in a May 24, 2009 report to Review Office that:
“…his injury is still a problem and it prevents him from returning to work as a truck driver. He still has to remain careful with his right hip as too much sitting, repetitive lifting and walking aggravate his right hip. Most importantly his right hip had not healed fully at the time the WCB discharged him that he could return to work as a truck driver.”
On August 31, 2009, the employer’s advocate wrote to Review Office in support of the adjudicator’s decision outlined on August 22, 2008.
On September 17, 2009, Review Office obtained information from the employer about the graduated return to work program that the worker was involved in when he returned to work on February 23, 2008.
In a decision dated September 17, 2009, Review Office determined that the worker did not have a loss of earning capacity after February 22, 2008 in relation to his compensable injury. In making its decision, Review Office noted that the worker returned to work from February 23 to March 17, 2008 in the graduated return to work plan and then resigned from his employment. In the opinion of Review Office, the employer demonstrated that they were able to provide an accommodation of duties for the worker and that the worker did not have a loss of earning capacity from February 23 to March 17, 2008 as the worker’s post-accident weekly earnings averaged more than his pre-accident weekly earnings.
Review Office noted that in accordance with the graduated return to work plan, the duration of the plan would have been until March 21, 2008. Review Office indicated that the worker worked for another employer as a mechanic from March 18 until April 11, 2008. It stated that the worker averaged higher post accident weekly earnings as a mechanic than his pre-accident weekly earnings as a truck driver. It therefore found that the worker did not incur a loss of earning capacity in relation to his compensable injury from March 18 to March 21, 2008.
Review Office noted the comment made by the treating chiropractor on June 9, 2008 that the worker stopped working for the employer in March 2008 due to pain. Review Office did not find the report of pain as evidence to support that the worker was disabled from working his pre-accident duties.
Review Office accepted the opinion expressed on August 12, 2008 by the WCB chiropractic consultant. On November 9, 2009, the worker appealed Review Office’s decision to the Appeal Commission and a hearing was 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 39(2) of the Act provides that the WCB will pay wage loss benefits until such a time as the worker’s loss of earning capacity ends.
Worker’s Position
The worker was self represented at the hearing. He submitted that at his age of 60 years, it was unreasonable to expect that his injury would ever heal enough for him to return to trucking and drive for 10 to 12 hour days. As his income had dropped below what he earned prior to his workplace injury, the worker submitted that he was rightfully entitled to compensation.
Employer’s Position
An advocate and a representative from the employer were present at the hearing. It was submitted that the worker did not have a loss of earning capacity as he had demonstrated that he had transferrable skills and the ability to work in various positions, including working as a mechanic and a welder. The legislation does not require that a worker be able to perform the pre-accident job. It was submitted that the fact that the worker was not working now was a personal choice and he was not limited by his physical capacities/restrictions that arose out of his compensable injury.
Analysis
The issue before the panel is whether or not the worker is entitled to wage loss benefits after February 22, 2008. In order for the worker’s appeal to be successful, the panel must find that at that time, the worker continued to have a loss of earning capacity as a result of his workplace injury. We are not able to make that finding.
At the hearing, the worker described the type of work he has been able to do since he last received wage loss benefits in February, 2008. On February 23, 2008, he attempted to return to long distance truck driving with the accident employer, but found that after three weeks, he had to discontinue. He then worked for a power line contractor in Northern Manitoba for six weeks. The job did not involve sitting and he was able to work very long hours. After six weeks, the job was completed and the worker was unemployed for a period of time. He then met a businessman who offered him a full time job as a welder in British Columbia. The worker went to British Columbia to investigate the position, and ultimately decided to accept the job and relocate to a small town in south central British Columbia. There were also personal reasons as to why he chose to relocate. The worker had no problems performing the welding job and he earned more money per hour than he did as a long distance driver. After three months, the business closed and the worker was then out of work. Since then, his evidence was that he has found bits of work here and there, but has not had steady employment. The job market is very poor in the area in British Columbia where he resides. Last year, he declared less than $22,000 on his income tax return. He has looked for work as a welder and a mechanic. He has also worked on some local ranches for farmers. He does not feel he could work in either long distance trucking or as a pilot due to the unpredictable nature of his injury and the fact that when the pain strikes, he is unable to control it. His compensable hip injury does not affect his ability to perform work as a welder or a mechanic. His plans for the future are to keep doing what he has been doing. He has no plans to move.
As for the worker’s current medical status, he still experiences occasional flare-ups of the condition. Generally speaking, he does not have pain in his hip from day to day. If he sits for too long, however, he will feel a twitching in the hip area and sometimes this will develop into the “crazy pain” which he used to experience. This pain happened once last summer, and again once during the winter. He is not receiving any medical treatment at this time and he occasionally takes over the counter muscle relaxants when he feels the pain coming on. He has given up on the home exercises recommended to him by the sports medicine physician. He was able to drive from British Columbia to Manitoba to attend the hearing. He took five days to make the journey and the maximum number of hours he drove during one day was 8 hours. In order to make the trip, he would get out of the vehicle as needed and lay down to rest in his fifth wheel trailer.
After reviewing the evidence as a whole, the panel is of the view that although the worker’s compensable injury has not completely resolved, it does not impair his ability to earn income. Even if the worker is reluctant or even unable to return to long distance truck driving, he still has abilities and qualifications to do other kinds of work which are not hampered by his compensable injury and which would enable him to earn his pre-accident wages. The job market is not strong in the relatively remote area where the worker chose to relocate, and the worker acknowledged that if he had been in Manitoba, there would have been more jobs available to him. While the worker is free to relocate to British Columbia, the reduction in work opportunities is a consequence which he must accept as a result of his personal choice. The WCB is not responsible for the decrease in job opportunities.
For the foregoing reasons, the panel determines that the worker does not continue to have a loss of earning capacity as a result of his workplace injury. We therefore find that he is not entitled to wage loss benefits after February 22, 2008. The worker’s appeal is dismissed.
Panel Members
L. Choy, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
L. Choy - Presiding Officer
Signed at Winnipeg this 29th day of July, 2010