The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing a decision made by the Review Office of the Workers Compensation Board (“WCB”), which determined that effective November 29, 2008 the worker’s earning capacity should be equivalent to the provincial minimum wage for a 40 hour week. A hearing was held on March 18, 2010. Following the hearing, the panel requested that the worker be examined by an independent medical examiner to determine his current work restrictions. The worker was examined on May 5, 2010. On May 28, 2010 the panel met to consider the specialist’s examination report and the worker’s submission dated May 24, 2010. The panel asked the specialist for further medical information. The specialist provided a report dated June 1, 2010 and the worker provided a submission dated June 14, 2010 in response. On June 21, 2010, the panel met to consider the matter.

Issue

Whether or not the worker’s earning capacity effective November 29, 2008 should be equivalent to the provincial minimum wage for a 40 hour week.

Decision

That the worker’s earning capacity effective November 29, 2008 should be equivalent to the provincial minimum wage for a 40 hour week.

Decision: Unanimous

Background

The worker, who was employed as a health care aide, reported an injury occurring on June 10, 2003 when he was lifting a patient with the assistance of another orderly. The orderly slipped causing the weight of the patient to fall against the worker injuring his lower back and right shoulder. The worker reported that he immediately felt pain to his right shoulder, neck and lower back.

The worker’s right shoulder and neck pain resolved but he continued to complain of ongoing back pain. A CT scan in August 2003 identified lumbar disc herniations at L4-5 and L5-S1. An MRI in December 2003 revealed a tiny L5-S1 disc herniation approaching the right S1 root and similar findings at the L4-L5 level. There was no evidence of nerve compression at the L4-5 or L5-S1 levels. The WCB accepted the claim and compensation benefits have been paid since the date of the accident. Except for a few weeks of employment, the worker has not returned to work since the accident.

Medical History

The worker has been assessed by a number of medical specialists and has received numerous treatments including physiotherapy and psychological counseling with minimal relief.

In May 2004 the worker was assessed by a pain specialist who noted that the worker complained of continuous pain in his lower back radiating into his left leg and foot aggravated by sitting, standing, lying, bending, lifting, and walking. The worker was on significant narcotic analgesic medicine. The specialist performed a nerve block injection at the left S1 level, which was not successful.

The worker was examined by a WCB medical advisor on September 9, 2004 who noted the worker’s deconditioning and recommended a return to physiotherapy focusing on pain relieving modalities to be followed by reassessment.

The worker was assessed by a clinical psychologist with expertise in dealing with pain management in September 2004. The psychologist diagnosed the worker as suffering from major depression and recommended psychological support to assist the worker with pain management and symptoms of anxiety and depression; a trial of anti-depressants and education in regard to the use of medications. In January 2005, the psychologist reported that the worker had failed to attend treatment sessions due to transportation problems. The worker was referred to a rehabilitation psychologist closer to his residence. The rehabilitation psychologist diagnosed the worker with Adjustment Disorder with mixed anxiety and depressed mood and recommended psychotherapy to assist the worker to develop mood and pain management skills starting with an initial 6 sessions. The worker attended 2 sessions but did not find them helpful.

The worker was reassessed by a neurology specialist in February 2005 who requested new MRI studies. A new MRI was taken in April 2005, which showed evidence of annular tears at L4-5 and L5-S1. It was noted that the very shallow protrusion of the discs did not significantly impinge upon the thecal sac or the roots, consistent with the 2003 study. The findings were not suggestive of radiculopathy and surgical intervention was not indicated. The specialist recommended that the worker return to physiotherapy and reduce his weight.

The worker failed to attend a significant number of physiotherapy appointments and by letter dated August 11, 2005 the WCB advised the worker that wage loss benefits would be suspended if he did not attend as required. In a report from the physiotherapist dated September 20, 2005 it was noted that the worker’s walking tolerance had increased to 15 minutes and sitting tolerance to 40 minutes. In October 2005, the worker was referred for a functional capacity evaluation (“FCE”) to assess his work capabilities. The FCE report indicated that the worker was limited in his activities due to significant pain and did not complete the FCE protocol.

In December 2005, the WCB medical advisor reviewed the file noting that the worker had not benefited from the many treatments received. The medical advisor indicated restrictions (to be reviewed in 3 to 6 months) of no repetitive bending or twisting; no climbing, crawling, squatting or kneeling; no lifting or carrying over 10 lbs; and ability to change positions as necessary. The WCB medical advisor also noted that “it’s difficult to explain why a 39 (sic) otherwise healthy male is so limited in his function with the pathology seen on imaging”.

The employer was unable to accommodate the worker’s restrictions. In May 2006, the worker was assessed by a WCB Vocational Rehabilitation Consultant (“VRC”) to determine his transferrable skills and eligibility for vocational rehabilitation (“VR") services. The VRC determined that the worker’s employment history and skills were outside his restrictions and it was necessary to enhance his skills to assist him in securing employment. Benefits were provided for loss of earning capacity and the VR process of identifying a viable occupational goal continued.

In September 2006 the VRC met with the worker. At that time the worker was reluctant to participate in computer upgrading due to his pain and the need to constantly change positions. The worker advised that he could not sit, stand or walk for more than 10 minutes preventing him from any form of return to work or retraining programs. The worker was referred to the WCB Pain Management Unit (“PMU”) for assessment and for short, flexible computer upgrading courses.

The worker was interviewed at the PMU on December 13, 2006. The PMU noted that:

“Barriers to recovery appeared to be significant complaints of pain and disability, marked pain expression, possible maladaptive use of prescription medication, long-term narcotics use, deconditioning, and limited participation/irregular attendance at previously offered treatment and expressed unwillingness to attend training or treatment regularly if he feels severe pain or if weather conditions are poor.”

The PMU requested further medical information. It was noted that the MRI findings did not correlate with the worker’s symptoms and pain complaints. A significant psychological and substance abuse problem was queried.

On March 6, 2007, the worker was assessed by a WCB orthopaedic consultant. The consultant noted that “[d]uring the examination there was evidence of symptom amplification and pain focus”. There was no evidence of left lower limb radiculopathy. Following examination and discussion with the worker regarding his tolerance for sitting, walking and standing, the following work restrictions were outlined in a March 12, 2007 report:

· able to lift and carry weights up to 20 lbs. using proper lifting technique;

· able to sit at least 30 minutes with the opportunity to change positions;

· walking indoors at least 30 minutes at his own pace;

· use of stairs, one floor (two flights) at his own rate.

The WCB advised the worker’s physician of the above restrictions and asked for his opinion. The worker’s physician provided a report dated September 19, 2007 indicating a change in the worker’s restrictions noting that he can sit for up to 4 hours. This report was referred to the WCB medical advisor for an opinion of whether this change was reasonable given the physical findings.

On October 12, 2007 the WCB medical advisor noted that “Sitting tolerance would be a very subjective thing. There is nothing clinically or radiographically that would contra-indicate sitting for a longer period of time. I would think that the claimant has discussed this with his attending physician since he has indicated this change in a report.” The worker’s restrictions were changed to increase his sitting tolerance to 4 hours.

On November 28, 2008, the WCB case manager requested that the worker’s file be reviewed for a permanent partial impairment. The WCB Medical Advisor noted that the MRI and CT scans undertaken showed very mild disc protrusions at L4-5 and L5-S1 with no compression of the nerve roots and that, on examination in March 2007, the specialist noted that there was evidence of symptom amplification and pain focus. The WCB Medical Advisor was of the opinion that the worker “has a described limitation of motion lumbosacral spine but on reviewing the notes to file this is likely secondary to pain. The limitation is not in keeping with the described injury and imaging studies.”

The worker continued to see his physician on a regular basis and was prescribed medication. There are numerous progress reports from the worker’s physician following the September 2007 report that increased the worker’s sitting tolerance to 4 hours. These reports cover the period up to February 2010 and for the most part indicate no change in objective findings and outline restrictions of no prolonged sitting or bending. They also indicate that the worker is capable of alternate or modified work.

Vocational Rehabilitation Summary

On March 21, 2007, the VRC met with the worker to continue the process of identifying potential occupations in keeping with the restrictions outlined by the WCB medical advisor in his March 12, 2007 report. The worker indicated that his back pain had not changed. Three occupations were discussed, Accounting Clerk, Pharmacy Technician and Sterile Processing Person, which would require upgraded computer skills. It was agreed that the worker would start computer courses 3 times a week at 2-4 hour intervals. The worker also advised that his driver’s license was suspended due to outstanding fines and his wife would drive him to the city for training.

On May 1, 2007 the worker contacted the VRC to indicate that his wife could no longer drive him to the city. The WCB advised that they would pay mileage to a friend or family member to drive him or any bus service costs. According to attendance records, the worker was not attending the computer courses for the agreed time periods. The worker advised the WCB of ongoing difficulties finding a driver. The worker was enrolled in two computer courses but did not complete either one.

On July 11, 2007 the VRC met with the worker. According to the Vocational Rehabilitation Progress Report the worker indicated that he did not like computer upgrading and he would not like a job in an office environment or confined to one type of task. The worker indicated that he had been doing some research regarding Class 1 trucking and that he wanted to be considered for retraining in this position. The report notes that the VRC reminded the worker of his sitting restrictions and that the worker stated that his sitting tolerances had improved greatly. The VRC recommended a financial cost analysis of different VR plans to determine whether retraining as a Class 1 driver would be an option.

In a memo to the file dated November 9, 2007, the WCB case manager indicates that he met with the worker on November 7, 2007 and the worker stated that he was interested in becoming a truck driver. The memo notes that the “[worker] reported that sitting is not really an issue for him …that he can sit for longer than 4 hours (4-6 hrs), and indicated that his doctor would support this.”

During the period from October 2007 to March 2008 the VRC considered a number of potential occupational goals including Customer Service, Information and Related Clerks (NOC 1453); Other Elemental Service Occupations (NOC 6683); Other Elemental Sales Occupations (NOC 6623) and Truck Drivers (NOC 7411).

After obtaining clarification of the worker’s driving record, which showed driving convictions in 2000 and 2003, and after contacting trucking employers, the VRC determined that it was unlikely that the worker would qualify for a position as a truck driver. The VRC also noted that notwithstanding the increase in sitting tolerance, the worker’s restrictions would not allow him to work in this occupation.

The file also indicates that during this period the worker requested that the WCB pay his driving fines of approximately $2000. The VRC denied this request on the basis that it was not likely that payment would allow the worker to be employed as a truck driver given his driving record and restrictions; that while payment might enable the worker to obtain a driver’s license making it easier for him to travel for retraining, the barriers expressed by the worker in completing upgrading due to pain and sitting tolerances made it unlikely that he would complete lengthy retraining programs and therefore it was more cost effective to consider an entry level occupation that would not require retraining.

Given that the occupation of Customer Service (NOC 1453) requires training, the WCB case manager determined that it would be more cost effective to develop a plan for the entry level occupations of Other Elemental Service (NOC 6683) or Other Elemental Sales (NOC 6623), which do not require further training for the worker to qualify for employment.

The VRC met with the worker on March 17, 2008 and advised him that truck driving was not a viable option; that the WCB would not to pay his driving fines and that the WCB would develop an occupational plan based on the above entry level occupations. According to the VR Progress Report on file and notes of a subsequent telephone call, the worker stated that he did not want to be in any type of sales or call centre position. He also stated that he had lied to his doctor about his sitting tolerance of 4 hours so that the WCB would pay his fines and he could work as a truck driver.

An Earning Capacity Assessment (“ECA”) was completed for Elemental Sales (NOC 6623), which concluded that a viable labour market exists for the Winnipeg market area. The Winnipeg area includes all communities within 100 kms of Winnipeg. The worker resides in a community that is approximately 35 kms from Winnipeg.

A Vocational Rehabilitation Plan (“VRP”) was developed for Elemental Sales (NOC 6623) with a start date of June 25, 2008 and end date of October 7, 2008. The VRP concluded that the worker has considerable customer service experience, communications skills and some limited computer knowledge and that based on his restrictions, he is physically capable of working in a call centre environment. At the end of the plan it was anticipated that the worker would be capable of earning $340.00 per week.

In a memorandum dated July 30, 2008, the VRC noted that the worker expressed interest in returning to work with the accident employer as a Unit Clerk (NOC 1441). The VRC advised the worker that in order to switch vocational rehabilitation directions, he must present a plan that addressed the issues of regular attendance and transportation; and acquiring the prerequisites of basic computer skills. The worker agreed to present a plan dealing with the travel, attendance and training issues. The worker did not follow up with this proposal.

On August 22, 2008, the worker was advised that he was now in the job search component of his VRP and was entitled to 12 weeks of job search ending on October 7, 2008. Numerous job leads were sent to the worker. On September 4, 2008, the worker contacted the case manager asking for an extension of his job search period. The VRC extended the worker’s job search period to November 28, 2008. Further job leads were provided to the worker. The worker did not secure employment.

In a Vocational Rehabilitation Deem Recommendation dated November 3, 2008, the VRC was of the opinion that the worker was fully employable in the occupation of Other Elemental Sales (NOC 6623) based on his physical restrictions. These restrictions were outlined as: being able to lift up to 20 lbs; sit for 4 hours; walk for at least 30 minutes and climb 1-2 flights of stairs at his own pace. The VRC therefore recommended that the worker’s wage loss benefit be reduced based on the earning capacity for the occupation of Elemental Sales.

By letter dated November 19, 2008, the worker was advised by the WCB that his VR Plan would be completed effective November 28, 2008 and that in accordance with WCB Policy 44.80.30.20 relating to Deemed Earning Capacity, his wage loss benefits would be reduced by the earning capacity of the occupational goal of Other Elemental Sales, which is $340 per week.

In June 2009, the worker was contacted to update his status. The worker advised that he had been unemployed except for a period of six weeks in December 2008 when he worked at a transfer station for a rural municipality. He advised that he was unable to continue as the job required that he chip ice and cut grass. He also reported increased pain on the job from too much sitting. The worker indicated that he saw his doctor regularly and was told he should not be working. The worker felt that he could not sit, stand or walk and was unemployable.

Review Office Decision

On June 30, 2009 the worker asked for a review of the WCB benefits decision. The worker indicated that he found it impossible to find any employment due to his restrictions. The worker noted that his doctor changed his restrictions so he could attempt employment but re-imposed the restrictions after a short time due to his intolerance to sitting, walking and standing.

In a decision dated July 20, 2009, the Review Office determined that the vocational rehabilitation plan for NOC 6623, Other Elemental Sales was not appropriate. The Review Office was of the opinion that as the Earning Capacity Assessment states that the occupation of Elemental Sales is primarily sedentary; this is not consistent with the worker’s physical restrictions that limit his sitting tolerance. However, the Review Office was of the opinion that the worker was capable of working within his limitations and that he was therefore capable of earning the equivalent of the provincial minimum wage for a 40 hour work week. The Review Office concluded that the worker’s earning capacity effective November 29, 2008 should be equivalent to the provincial minimum wage of 40 hours per week.

Appeal Commission Hearing

At the appeal hearing the worker provided evidence respecting his ability to do various jobs. He testified that he could not do telemarketing as it requires sitting for 2 to 3 hours. When questioned whether he would be able to work as a telemarketer if he was able to get up and walk around while on the phone, he indicated he didn’t know.

The worker testified that he asked the WCB to change his sitting restrictions from 4 hours to the previous restriction of no more than 30 minutes and that his sitting tolerance was no more than 30 minutes. He testified that for six weeks in December 2008 he worked at a transfer station with the rural municipality, but that he could not perform the job as there was too much sitting. He testified that he could not do any of the jobs referred to him by the WCB as they all involved sitting.

However, the worker also testified that instead of truck driving, he felt he could have returned to the hospital where there were lots of jobs he could perform such as a ward clerk or a file clerk. The worker’s fiancée advised the panel that she works in a hospital and is aware of the duties of a ward clerk, which she described as a secretarial position similar to that of a telemarketer involving lots of sitting.

The worker’s evidence also indicated that in 2009 he applied and was offered a position to manage a restaurant and gas station where he would do some short order cooking and oversee a staff of six, but he never attempted the job as he was in too much pain after the one hour drive to work on his first day. He didn’t know if he would be able to do this job if the drive to work was shorter.

The worker’s evidence was that he wanted to work and had sent out numerous résumés, but that he had not attempted employment as a telemarketer, gas station attendant or in any other position as he felt they were all outside his restrictions.

The worker’s evidence as to the nature of his restrictions was not clear. He initially testified that his restrictions were similar to those that were identified by the WCB medical advisor in March 2007 of being able to lift and carry weights up to 20 lbs.; sitting 30 minutes with the ability to change positions; walking up to a 30 minutes; and climbing stairs (one to two flights) at his own rate. He testified that his physical condition had not changed in the past 2 years. He also testified that he felt his restrictions were those reflected in a doctor’s report dated July 17, 2009, which indicated no sitting, standing or walking more than 15 minutes; no bending, climbing or twisting, and no lifting greater than 10 pounds.

The worker agreed that he possessed a wide range of transferrable skills and would be able to perform most of the occupations that he had identified in a “List of Occupations” submitted to the WCB in July 2006. He testified that he thought there was some form of work he could do, even if it was for minimum wage.

Additional Medical Information

The worker was examined by an independent medical specialist on May 5, 2010 pursuant to the panel’s request for an opinion respecting the worker’s diagnosis; current physical work restrictions and prognosis. In his report of April 22, 2010, the specialist was of the opinion that it was probable that the claimant sustained a work-related disc herniation. In considering the evolution of the worker’s condition the specialist stated as follows:

“However, his condition has evolved and become more widespread and more prolonged than would be expected for a simple disc herniation. Given that the vast majority of individuals with disc herniation recover sufficiently that they are able to return to normal activities including leisure and work within 3-6 months, the claimant’s duration of symptoms is atypical.

By comparison, the claimant’s condition has been associated with a substantial interruption in activity that is not adequately accounted for by the objective abnormalities on his physical examination and imaging studies. This suggests that there are non-physical factors contributing to the claimant’s activity limitation.”

The physician refers to factors such as symptoms of anxiety/depression, possible chronic pain/somatization disorder, long-term narcotic use, obesity, chronic smoking and poor physical conditioning as contributing factors to his ongoing chronic pain.

In addressing the worker’s prognosis, the specialist provides the following opinion:

“After approximately 7 years, with very little change in function and a report that his pain is worsening gradually over time, the prognosis for improvement is poor. The primary barrier limiting his prognosis is not physical. Rather, it appears to be psychosocial. In other words, after multiple physical examinations and imaging studies, an identifiable anatomic lesion has not been identified that is likely to respond to a physical intervention.”

With respect to identifying current physical work restrictions, the specialist is of the opinion that the worker does not have an objective loss of function. He states as follows:

“Physical restrictions are a means of accommodating for individuals loss of function. In this claimant’s particular case, he does not have an objective loss of function. Rather he limits his activity voluntarily as a result of pain or perceived risk of pain.

The claimant symptoms are subjective and therefore not measurable by medical means. In addition, he does not report any specific posture or activity that improves his pain. Therefore, there is no rational means to consider physical restrictions either at home or in the workplace.”

In a further report dated June 1, 2010 the independent medical specialist provided the opinion that the worker’s narcotic use did not limit his work capacity or prevent him from returning to the workplace.

Reasons

In light of the above reasons, the panel finds that the worker’s earning capacity effective November 29, 2008 should be equivalent to the provincial minimum wage for a 40 hour week. The worker’s appeal is dismissed.

Panel Members

M. Thow, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

M. Thow - Presiding Officer

Signed at Winnipeg this 4th day of August, 2010