Decision #06/11 - Type: Workers Compensation
Preamble
With the assistance of legal counsel, the worker is appealing decisions made by the Workers Compensation Board ("WCB") that he was only entitled to partial wage loss benefits between the period April 2001 and July 2004 as the WCB felt that he was not totally disabled and was capable of securing a minimum wage position. The worker is also appealing the WCB's decision to reduce his benefits effective February 8, 2005 on the grounds that he was capable of working full time hours under National Occupational Classification (NOC) 1431, Accounting and Related Clerks (NOC 1431). A hearing was held on November 24, 2010 to consider the matter.Issue
Whether or not the worker's wage loss benefits for the period April 16, 2001 to July 9, 2004 should have been reduced based on a minimum wage earning capacity; and
Whether or not the worker's wage loss benefits should have been reduced effective February 8, 2005 based on a deemed post-accident earning capacity of $346.00 per week.
Decision
That the worker's wage loss benefits for the period April 16, 2001 to July 9, 2004 should have been reduced based on a minimum wage earning capacity; and
That the worker's wage loss benefits should have been reduced effective February 8, 2005 based on a deemed post-accident earning capacity of $346.00 per week.
Decision: Unanimous
Background
On December 3, 1999, the worker injured his low back in a work related accident. His claim for compensation was accepted based on the diagnosis of a low back strain and benefits were paid to the worker. At a WCB call in examination on February 8, 2000, the medical advisor diagnosed the worker with mechanical lumbar pain extending from the L1-L5 level.
As the worker continued to experience ongoing back pain, the worker was interviewed at the WCB's pain management unit. It was determined that the worker did not meet the criteria for chronic pain syndrome. It was recommended that the worker see a physiatrist for treatment and to participate in a conditioning program.
On September 6, 2000, the physiatrist outlined the opinion that the worker was deconditioned, had chronic pain beliefs and workplace disability. Arrangements were made for the worker to undergo advanced physical therapy and a more advanced reconditioning back stabilization program.
On December 8, 2000, the worker was seen again at the WCB's office and the examining medical advisor noted that the worker continued to experience mild mechanical low back pain. There appeared to be no significant restriction in the lumbosacral range of motion, power or flexibility and there was no evidence of nerve root involvement or significant myofascial involvement. It was recommended that the worker enter into a work hardening program followed by a graduated return to work program.
On March 29, 2001, the WCB received a work hardening discharge report. It stated that the worker continued to be pain focused and demonstrated a limited understanding of his pain. The report indicated that the program goals focused on increasing the worker's physical and functional abilities to a level consistent with the physical job demands as outlined in the job descriptions provided (i.e. "Float PRCP PW, Lh & RH Masking/Prep PW, Undercoating PW, Sanding PW".) The discharge report indicated that the worker could return to work to any of the outlined positions.
File records showed that a graduated return to work program was scheduled to occur during the period March 19 to April 13, 2001 but it never transpired as the worker had been laid off work.
In a letter dated March 22, 2001, the worker was advised that based on the work hardening program results, he was considered functionally fit to return to his pre-accident employment. He was advised that wage loss benefits would be paid to April 13, 2001 inclusive since it was the WCB's plan to continue his wage loss benefits until completion of his graduated return to work program.
On July 26, 2001, a CT of the lumbar spine showed no evidence for disc herniation. There were bilateral spondylitic defects at L5.
In August 2001, the worker advised his case manager that he was experiencing ongoing back difficulties and was still laid off from his employment.
In a memo to file dated September 26, 2001, the WCB case manager recorded that he discussed the CT findings with a WCB medical advisor. It was the medical advisor's opinion that the spondylitic defects at L5 suggested a degenerative pre-existing condition in which the articulating surfaces of vertebrae break down. There was no evidence of stenosis or nerve root compression anywhere along the spine. This degenerative condition was not considered related to the compensable injury.
On January 10, 2002, a physiatrist assessed the worker and stated "Clinically no evidence of radiculopathy except he has suffered related to lifting injury, lumbosacral strain, possibly causing spondylitic lesion related to lifting injury at L5 level further complicated by renal myofascial trigger points and sensitive spinal segments." Treatment plan included a bone scan to rule out any significant increased activity at the L5 para interarticularis as well as paravertebral blocks and regional myofascial trigger points to desensitize the segments. A bone scan was subsequently performed and revealed a normal regional bone scan.
On March 11, 2002, a WCB case manager advised the worker that based on a review of the CT scan results, the report from the physiatrist and the WCB exam findings in February 2000, the WCB remained of the opinion that he had recovered from the effects of his compensable injury.
On August 13, 2002, a worker advisor provided the WCB with a report from the treating physiatrist dated July 15, 2002 to support the position that the worker had not yet recovered from his compensable injury. This led to the convening of a Medical Review Panel ("MRP") which ultimately took place on April 28, 2004.
On October 8, 2002, a call-in examination was conducted by a WCB physical medicine and rehabilitation consultant. Based on his clinical exam, the consultant felt that there was no contraindication for a plan of increasing the worker's activities and remobilizing. He felt the worker should be able to progress to a return to work.
The MRP report dated June 8, 2004 diagnosed the worker's current back complaints as disc pathology and spondylolysis that was caused from excessively heavy lifting which had done damage to the involved tissues. The MRP outlined restrictions for the worker involving lifting, both repetitive and heavy, repetitive bending and prolonged standing and sitting and stated that the worker should be retrained.
On June 23, 2004, the worker advised his case manager that he had not worked at all since his WCB benefits ended. He received EI sick benefits for 16 weeks shortly after his WCB benefits ended. He did not receive disability benefits. The case manager asked the worker if he thought about working at lighter work during the past three years such as at a video store. The worker indicated this type of work was approximately $10 less per week than what he was earning at his regular employment and that he did not have the skills for this type of work.
In a letter dated July 9, 2004, the worker was advised that the WCB was accepting responsibility for his current back symptoms based on the MRP's findings. As the MRP did not support that the worker was totally disabled by reason of his 1999 injury, it was determined that he was entitled to partial wage loss benefits between April 16, 2001 and April 1, 2004 based on an ability by the worker to work in job duties at the provincial minimum wage level. The worker was advised that his case would be referred to a WCB vocational rehabilitation consultant ("VRC") as the accident employer was unable to provide him with work that met the restrictions outlined by the MRP.
In September 2004, the worker met with a VRC to discuss vocational rehabilitation planning and in January 2005, an Individualized Written Rehabilitation Plan (IWRP) was established for the worker. The occupational goal was Accounting and Related Clerks (NOC 1431). The start date for the plan was January 31, 2005 and the end date was July 29, 2005. It was felt that the physical duties of NOC 1431 would not compromise the worker's restrictions to avoid repetitive and heavy lifting, bending, and prolonged sitting and standing. At the completion of the plan, it was anticipated that the worker would be capable of earning $346.00 per week. If the worker did not secure employment after the "training" period of the plan, his benefits would be reduced in accordance with WCB policy related to Earning Capacity Assessment practices.
On January 27, 2005, the VRC met with the worker to discuss the IWRP. The worker stated that he was unable to work more than 20 hours per week. The worker said he tried to work 3 consecutive 8 hour days but found it too painful. He said he suffered from back pain 24-7. The worker stated that he was not refusing to participate in the plan but would only be able to attend work on a part time basis. The VRC advised the worker that the medical information on file did not support part time work and that if he was unable to fully participate in the plan, his benefits would be reduced based on his earning capacity.
On January 28, 2005, a WCB case manager advised the worker in writing that there was no basis to change his restrictions to support restricted hours. The worker was given one week to reconsider his position and to provide objective medical evidence that would support his contention of part time hours.
On January 31, 2005, the worker advised the WCB that he had an appointment with an occupational health physician on March 31, 2005 with regard to his ability to only work part time.
On February 8, 2005, the worker advised his case manager that he could not work full time and would not participate in full time hours.
On February 10, 2005, the case manager wrote the worker to advise that if she did not hear from him by February 22, 2005, she would assume that his position remained unchanged and that his benefits would be reduced based on his earning capacity as outlined in the IWRP of $346.00 per week. On March 3, 2005, a union representative acting on the worker's behalf appealed the decision to Review Office.
In a report dated June 8, 2005, an occupational health physician stated:
"In conclusion, [the worker] has not made satisfactory recovery from his 1999 work injury. My physical findings demonstrate significant muscle tension contributing to activity related pain and fatigue, as well as restrictions in hip and back range that have been generally consistent since the 1999 onset with the workplace injury. Overall diagnosis by my assessment is mechanical back pain, resistant to various treatments directed at facet joints, myofascial trigger sites, stabilization and reconditioning programs. There is pre-existing L5-S1 spondylolysis from which he was entirely symptomatic (sic) prior to the workplace injury…Since the outset of his Vocational Rehabilitation plans, [the worker] has been limited by his ongoing back pains and has not been capable of working full time hours. The 2003 assumption retroactive to April 2001 that he is capable of working 40 hours a week at a minimum wage job was (sic) little foundation in reality. Reviewing his poor response to treatments after WCB closure and his significant levels of ongoing pain impairing activities, he has not been capable of all but sedentary tasks (which are unlikely conditions in a minimum wage job scenario) and unlikely to maintain at full-time hours."
In a decision dated November 1, 2005, Review Office concluded that the worker was capable of working full time hours in NOC 1431 effective February 22, 2005 and that the worker was not entitled to retroactive full-time wage loss benefits to February 10, 2005. Review Office reached its decision based on the following factors:
- the opinion of the MRP that the worker had disc pathology and spondylolysis and that the worker needed to understand that he would continue to have pain and needed to learn to cope with it.
- the opinion of the occupational health physician that the worker had not fully recovered from his injury and continued to have pain complaints was not significantly different from the MRP's opinion.
- the occupational health physician did not provide any objective medical evidence that the worker was incapable of working on a full time basis in NOC 1431. He stated that the worker could only perform sedentary work. In the opinion of Review Office, the physical requirements of NOC 1431 would be considered sedentary.
On February 8, 2008, the worker appealed the decision that he was capable of working 40 hours per week at minimum wage. The worker stated that the majority of minimum wage jobs fell outside of his restrictions. He stated "the most benevolent employer would not employ me if I told them at the interview that I could not lift heavy objects, repetitively lift. Nor could I do any prolonged sitting, standing or receptive (sic) bending."
On May 27, 2009, the worker's solicitor requested reconsideration of the case manager's July 9, 2004 decision that the worker would be paid partial wage loss benefits based on a capability to earn the provincial minimum wage retroactive to April 16, 2001. The solicitor stated, "It is our position that this decision is without any merit and my client was unable, due to his condition, to even obtain a job at minimum wage because he could not stand for any length of time, sit for any length of time, lift anything of any consequence and with his education during that time frame he would have been hard-pressed to obtain any minimum wage job and the medical evidence supports that."
In a submission to Review Office dated July 10, 2009, the employer outlined the position that there was no objective evidence to dispute the worker's ability to train and obtain full time employment at full time hours. The employer requested that the decision be upheld and that no full wage loss benefits entitlement existed.
On July 23, 2009, Review Office spoke with the employer. In regard to the period 2001 to July 2004, the employer stated that it could have accommodated the worker in modified or alternate duties. In their view, the worker was not totally disabled during this period.
On July 23, 2009, Review Office determined that there was no entitlement to full wage loss benefits for the period of April 16, 2001 to July 9, 2004 and that the worker's retrospective wage loss benefits for the period of April 16, 2001 to July 9, 2004 were correctly paid based on a minimum wage earning capacity.
Review Office referred to the work hardening program discharge report, a September 26, 2001 physician report, and MRP findings to support that the worker was not totally disabled during the above time frame and was fit for sedentary work activities. Review Office noted that the worker's case manager approved a 3 month gym program and that the worker had an ongoing responsibility to mitigate the effects of his workplace injury by keeping active and carrying out the recommendations of his treatment providers. Any deterioration in the worker's physical injury status was not considered due to the effects of the workplace injury. Review Office noted that the worker had a grade 12 education with a vocational certificate in mechanics. This supported that the worker had the skills necessary to obtain employment at the provincial minimum wage level. On February 3, 2010, Review Office's decision was appealed 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.
WCB Board Policy 44.80.30.20 (the “Deeming Policy”) deals with “Post Accident Earnings - Deemed Earning Capacity”. Loss of earning capacity is defined as 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
The worker attended the hearing in person and was assisted by legal counsel. With respect to the first issue, it was submitted that the WCB essentially created a fiction that the worker could have worked during the period in question at a minimum wage job. In fact, the worker continued to be debilitated by his pain and medications and he did not have the physical ability to work on a continuous basis. It was also noted that the worker had limited education and that most minimum wage positions are physically demanding. On the second issue, it was submitted that the WCB's attempts to retrain the worker in the accounting field were beyond his abilities. Even though being an accounting clerk was not physically demanding, one must still have to be able to sit and focus and be productive. To expect the worker to go to class in addition to working six hours per day was impossible for the worker. He was only able to sit or stand for short periods of time, after which he would have to lie down. In addition, the medications he was taking for the pain greatly affected his ability to concentrate. The occupational health physician who examined the worker was called as a witness. Overall, it was submitted that the deemed abilities that the worker had been given by the WCB were unrealistic and not supported by the evidence.
Employer's Position
A representative from the employer appeared at the hearing. It was the employer's position that the WCB decision should be upheld. The employer did not wish to suggest that the worker's pain was not genuine, but it was submitted that how a person deals with pain is very individual and may have an absolute impact on their ability to cope with pain. There are many subjective reasons which can compound and complicate treatments.
Analysis
The issues before the panel are whether or not the worker's wage loss benefits for the period April 16, 2001 to July 9, 2004 should have been reduced based on a minimum wage earning capacity and whether or not the worker's wage loss benefits should have been reduced effective February 8, 2005 based on a deemed post-accident earning capacity of $346.00 per week. In order to decide the appeal, the panel must consider the evidence regarding the worker’s post-accident condition and abilities and determine whether the worker was capable of earning these amounts or whether his compensable injury disabled him from achieving these levels of earning capacity.
After considering the evidence on file and the testimony given at the oral hearing, the panel finds that the worker was capable of working in a minimum wage position during the period April 16, 2001 to July 9, 2004. We further find that the reduction of his wage loss benefits effective February 8, 2005 was appropriate.
Minimum wage earning capacity
The first issue concerns the period April 16, 2001 to July 9, 2004. The worker alleges that he continued to suffer disability from his compensable lower back injury and was incapable of any type of employment during this period.
There is no indication on the WCB file that the worker was suspected of "faking" his injury and the panel also accepts that the worker's complaints of pain were real. The difficulty, however, is determining the extent to which the worker's earning capacity was impacted by the pain, and for which the worker is entitled to benefits.
In early 2001, the worker participated in a six week WCB sponsored work hardening program. By discharge report dated March 29, 2001, the worker was reported to have demonstrated functional findings which included ability to lift up to maximum of 55 lbs (on a rare basis per day), push/pull approximately 90 lbs, lift 30-40 lbs on an occasional basis, and carry 30 lbs with either hand on an occasional basis. He also demonstrated the ability to maintain a sustained crouch, kneel, unweighted rotation in standing, and climb a ladder or stairs on a frequent-constant basis. The discharge report also noted that during the work hardening program, the worker was resistant to attending group education and refused individual psychotherapy sessions. The concern was that the worker continued to be pain focused and demonstrated a limited understanding of his pain.
We know that following the work hardening program, the worker was laid off by the accident employer and therefore was not able to participate in a graduated return to work plan. Unfortunately, much of his time after his work hardening was spent negotiating his entitlements with the WCB and he did not return to the workforce, other than to assist in his family's business on a limited basis. At the hearing, the worker's evidence was that after the work hardening program he felt he was dysfunctional and immobile.
Chronologically, the next medical report after completion of the work hardening program was a report from the family physician dated September 26, 2001. On examination, the family physician found tenderness over the L2 area. Straight leg test did not elicit pain; hips were normal. The worker had pain on extension of his spine with restriction of 10 degrees, but rotation and flexion were normal. Reflexes and power were also normal. The family physician recommended that due to constant backache and pain with extension, the worker should be tried on modified duty with restricted lifting, and preferably a sedentary job where he would be allowed to do some stretching.
One year later, on October 8, 2002, the worker was examined at a call-in examination by a WCB physical medicine specialist. It was noted that the worker was able to perform activities of daily living, but was not able to do much in terms of house activities. His activity level was down significantly and most of his time was spent lying down. With respect to exercises, he only did some stretches as taught to him by physiotherapy. There did not appear to be any follow through of the exercises to maintain fitness following the work hardening program.
On examination, the specialist found little evidence of significant facet involvement, mechanical irritability, neurological involvement, active myofascial trigger points or internal disc disruption. He felt that there was no contraindication for a plan of increasing activities and remobilizing.
After reviewing the reports, the panel finds that there is insufficient medical support for the proposition that the worker was totally disabled from any form of work during the period April 2001 to July 2004. The reports all contemplate the worker as being capable of some work, albeit with restrictions. It is only the worker who claims that he was not capable of performing any type of employment.
The panel finds that there is not enough evidence to cause us to vary from the WCB's opinion that the worker was not totally disabled during this period of time. The WCB determined that the worker was able to perform at least some type of work, and it set the worker's earning capacity at the lowest possible level, namely minimum wage. The panel agrees with this assessment. In the panel's opinion, the limits to the worker's ability to re-enter the work force were self-imposed and stemmed from his own perception of total disability. They were not medically supported.
We therefore find that the worker's wage loss benefits for April 16, 2001 to July 9, 2004 should have been reduced based on a minimum wage earning capacity. The worker's appeal on this issue is dismissed.
Participation in Vocational Rehabilitation
The considerations for the second issue are similar to the first, and deal with what the worker was capable of doing. The worker claims that it was impossible for him to participate in the vocational rehabilitation plan and achieve an earning capacity of $346.00 per week. The panel does not accept this and feels that the worker was capable of successfully completing the NOC 1431 accounting program.
The panel's concern is that the worker had become massively deconditioned in the years following his workplace accident. At earlier stages in the claim, there was some psychological involvement in the worker's file to address his chronic pain beliefs and approach to pain management. The worker is reported to have been resistant to this type of assistance.
At the hearing, an occupational health physician who examined the worker on five occasions, first in 2005 and most recently in August 2010, was called as a witness. His evidence was that the worker had been quite consistent over time in his complaints of pain. The extent of the muscle tension and restrictions, particularly in forward flexion, the tenderness of the lower extensor area and overlying in the lower lumbar segments, had been consistent. His clinical impression was that the worker had very tight back muscles and the limitations he had in stretching his back and using those muscles invariably led to postural changes and a more chronic pattern of restrictions. There had also been a progression of the pain to extend up the back and towards the middle and upper back. Most of the problems the worker now had were in tight, tender, symptomatic musculature. The therapies that he felt would be most useful would be more focused physiotherapy work. The physician opined that the worker would not be able to sustain working any job on a full time basis at the present time. With reference to the functionality reported in the work hardening discharge report from March 2001, the physician felt that the worker was no longer able to meet this level of functioning due to the definite decline in his condition caused by muscle tightness.
As with issue 1, the panel feels that the worker's barriers are self-imposed and not supported medically. Even the evidence of the occupational health physician called by legal counsel for the worker supports the concept that the worker's approach towards recovery may have had a significant role to play in his ability to return to the workforce and the worker's current medical status. It is notable that the worker's current presentation of tight back musculature, worsened posture and progression of pain to the middle and upper back are all suggestive of a worsened condition resulting from chronic inactivity and deconditioning. It is difficult to relate the worker's current diagnosis to the original injury and the panel notes that the WCB is not responsible for a worker's failure to mitigate the effects of his injury by performing proper self care. In the absence of any medical findings of facet involvement, mechanical irritation, discogenic or neurologic involvement, or myofascial trigger points, the panel finds that the self-limiting lifestyle the worker has adopted is most probably the cause of his current loss of earning capacity.
Overall, the panel is of the opinion that the worker's decision to refuse to participate in the vocational rehabilitation plan was not reasonable, given the medical findings at the time, and that he could have completed the vocational rehabilitation training. The panel therefore finds that worker's wage loss benefits should have been reduced effective February 8, 2005 based on a deemed post-accident earning capacity of $346.00 per week. 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 21st day of January, 2011