Decision #101/12 - Type: Workers Compensation
Preamble
The worker is appealing the decision made by Review Office of the Workers Compensation Board ("WCB) that she was not totally disabled and that it was appropriate to implement a post-accident deemed earning capacity effective October 2, 2011 at $400.00 per week. A hearing was held on August 23, 2012 to consider the matter.Issue
Whether or not it was appropriate to implement a post-accident deemed earning capacity of $400 per week effective October 2, 2011.Decision
That it was appropriate to implement a post-accident deemed earning capacity of $400 per week effective October 2, 2011.Decision: Unanimous
Background
On May 23, 2003, the worker injured her low back during the course of her employment as a cashier/server when she lifted a heavy garbage bag to throw into a waste container. Her claim for compensation was accepted based on the diagnosis of an L5-S1 disc protrusion and various types of benefits and services were provided to the worker while she underwent treatment for her injury. File records also indicate that the worker had non-compensable pre-existing back issues.
On October 21, 2008, a WCB medical advisor documented to the file that the worker had reached MMI (maximum medical improvement) according to the comments made by her treating orthopaedic surgeon and that the worker's back restrictions were now considered permanent. The restrictions included the avoidance of lifting more than 10 pounds, no repetitive or sustained bending or twisting of the spine, able to work with the spine in a neutral position and able to change positions as needed (e.g. no sitting greater than one hour and no standing in one position for more than 10 minutes at a time).
As the accident employer was unable to provide the worker with a position that met her compensable restrictions, the worker was assigned a vocational rehabilitation consultant ("VRC") to assist with identifying an appropriate occupational goal. It was later determined that National Occupational Code ("NOC") 6623, Other Elemental Sales Occupations or NOC 6651 Security Guards were within the worker's restrictions and were the most cost-effective options.
In June and July 2008, the worker was provided with information related to the application of the WCB's Relocation Policy and her entitlement to wage loss benefits should she choose not to relocate (the worker's home town is in a rural community and there was a small labour market in the area). In August and September 2008, the worker advised the WCB that she was not willing to relocate.
On September 22, 2008, a WCB Employment Specialist prepared an Earning Capacity Assessment for NOC 6623. She stated that the worker was physically capable of performing the duties of Other Elemental Sales Occupations, that there was a viable labour market for this occupation in the Winnipeg area and that the starting wage was $340.00 per week.
A vocational rehabilitation plan was developed for the worker under NOC 6623, specifically telemarketing. The plan duration was to run from October 1, 2008 to October 1, 2011. Quoted in the plan was the WCB's Relocation Policy 43.30.40 which stated: "Where it is reasonable for the worker to decline relocation, this will not affect wage loss benefits for 3 years." The plan stated that after the 3 year relocation period on September 15, 2011, the worker's benefits would be reduced based on the starting wage for NOC 6623.
On May 12, 2010, a WCB case manager documented a conversation she had with the worker regarding her VR plan and the benefits she was entitled to once the VR plan was completed. During the conversation, the worker advised the case manager that she could not work full time hours as she continued to have problems and was going for another MRI on her low back.
An MRI report of the lumbosacral spine dated July 5, 2010 indicated that a comparison was made with the MRI of July 30, 2008. The impression was read as follows: "Post surgical and degenerative changes. The enhancing epidural fibrosis adjacent to the SI nerve roots appears slightly less prominent then July 2008."
In a March 1, 2011 report, an orthopaedic specialist reported that the worker had been having ongoing problems with her back and had right leg pain. Following his examination of the worker and review of the lumbar spine MRI, he stated that the worker's symptoms were likely related to the fibrosis around the nerve root. He noted that operative intervention was not an option as the worker may develop more scar tissue around the nerve root but suggested other forms of treatment including analgesics, physiotherapy for back range of motion and core strengthening.
On April 25, 2011, a WCB medical advisor reviewed the updated medical information at the request of primary adjudication. He noted that the worker was seen by the specialist and a thorough back exam was done. The medical advisor stated:
The worker had no leg pain with bending or extending the back. She had negative SLR (straight leg raising), decreased sensation right L5, normal motor exam and normal reflexes (consistent with no progressive nerve impingement). She could walk without aid and could heel and toe walk. When compared to previous clinical findings, there would not appear to be any significant change. The most recent MRI showed no worsening of her condition (and could be interpreted as showing less scarring). The reported clinical findings would not support total disability and the current (permanent) restrictions take into account any limitations expected from reported clinical findings. Based on this review, there would be no need to change current restrictions. These were sent out based on GMA and PMU call in exams, surveillance, FCE and review of multiple reports from her doctors.
By letter dated April 26, 2011, the worker was advised that the report from the specialist whom she saw in February 2011 had been reviewed by a WCB healthcare provider and it was the WCB's position that there was no significant change in her clinical findings and the MRI done in July 2010 did not show any worsening of her condition. Therefore, no change would be made to her permanent restrictions and she was considered to be capable of working. WCB wage loss benefits would be paid to October 1, 2011 inclusive and final.
A Vocational Rehabilitation Deem Summary dated June 27, 2011, indicated that the worker was considered fully employable in NOC 6623 and that her benefits would be reduced by the starting wage within NOC 6623 equal to $400.00 per week effective October 1, 2011. A letter confirming this information was sent to the worker on August 26, 2011.
A progress report received from the family physician showed that the worker was seen on October 12, 2011 for back and neck pain. The physician's recommendation was that the worker should not go back to the work force indefinitely. He noted that the worker had been referred to a pain clinic in August but no appointment had been made yet.
The family physician's report was reviewed by a WCB medical advisor on December 5, 2011. The medical advisor indicated that the doctor reported loss of range of motion of the lumbar spine with tenderness and limited straight leg raising. No neurological impairment was noted. The medical advisor stated: "While these findings do support ongoing back problems, they do not support total disability." The medical advisor noted that the worker's restrictions were very appropriate for her back condition.
By letter dated December 16, 2011, the worker was advised by the WCB that she was not considered totally disabled in relation to her compensable injury based on the opinion expressed by the WCB medical advisor on December 5, 2011 and that no change would be made to her permanent compensable restrictions. On February 15, 2012, the worker appealed the decision to Review Office stating that she was unable to work.
On April 26, 2012, Review Office indicated that it was unable to find through the evidence that the VR plan for NOC 6623 or the implementation of the deem was not appropriate. Review Office indicated that the evidence did not support the worker's contention that she was unable to work in any capacity and it accepted the opinion of the WCB medical advisor outlined on December 5, 2011.
Review Office found that the VRC and case manager were correct in offering relocation to the worker as part of the worker's vocational planning. It stated that the worker's decision to decline relocation was reasonable given she had significant attachment to her community. It noted that the worker was informed of the consequences of declining relocation and that it would not affect her wage loss benefits for three years from October 1, 2008 to October 1, 2011. In accordance with the WCB's Relocation Policy, this was the maximum time frame allowed. Review Office stated that it concurred with the case manager's decision to pay the worker full wage loss benefits for this time period.
Review Office further indicated that the occupational goal of NOC 6623 was appropriate and within the worker's permanent restrictions. It stated that given the worker's transferable skills, work history and education, it was appropriate that the worker was paid partial wage loss benefits based on a deemed earning capacity of $400.00 per week effective October 2, 2011.
On May 3, 2012, 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(1) of the Act, where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid to the worker by the WCB.
WCB Board Policy 44.80.30.20 Post Accident Earnings - Deemed Earning Capacity (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.
WCB Board Policy 43.20.40 Relocation (the "Relocation Policy") outlines how the subject of relocation of a worker will be addressed where it becomes an issue during the management of the case. The Relocation Policy provides that: "Where it is reasonable for the worker to decline relocation, this will not affect wage loss benefits for 3 years."
Worker’s Position
The worker was self-represented at the hearing. The worker submitted that she was totally disabled from any type of employment. Since the workplace accident, she suffered from ongoing pain in her low back, right leg, hip and foot. This had now spread to her left leg as well. She had been taking pain medication for years and felt that the medications were taking a toll on her body. Her doctors had advised her that surgery would have little chance of success and she would have to learn to live with her condition. The worker stated that she was trying to do the best she could with her situation, but she knew that with the pain she experienced, she could not go to a job and work. On good days, she may be able to work for a few hours, but on bad days, she could not. When she had bad days, she needed to stay at home and lie down. The worker felt that she would never be able to maintain a job because she would need to call in sick so frequently. It was therefore the worker's position that it was not appropriate to implement any deemed post-accident earning capacity, as she was unable to maintain any type of employment.
With respect to the Relocation Policy, the worker acknowledged that she was aware that if she chose to not relocate, her benefits would be adjusted after three years and the WCB would deem her capable of working a certain amount. She explained that relocation was not an option for her as she lived alone and had no friends or family support outside of her home community.
Analysis
The issue before the panel is whether it was appropriate to implement a post-accident deemed earning capacity of $400 per week effective October 2, 2011. 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 working this amount or whether her compensable injury disabled her from achieving this level of earning capacity. After reviewing all of the evidence, the panel finds that the worker was capable of earning this income.
The worker's position was that she was totally disabled from any type of employment. The occupational goal identified by the WCB of NOC 6623 - Other Elemental Sales includes workers who sell goods or services during home demonstrations or by telephone soliciting, retail exhibitions or street vending. According to the Earning Capacity Assessment ("ECA") dated September 22, 2008, the strength requirements of NOC 6623 are limited, with a combination of sitting, standing and walking. There would be opportunity to move about as required. The physical restrictions in place for the worker were: no lifting more than 10 lbs, no repetitive or sustained bending or twisting of the spine, ability to work with the spine in a neutral position, ability to change position as needed, and specifically no sitting more than 1 hour at a time without being able to get up and move, and no standing in one position more than 10 minutes at a time without being able to move around. The ECA concluded that the worker had the skills and abilities needed to perform the duties of NOC 6623 and that she was physically capable of performing the duties. The panel agrees with this assessment.
Notably, although the worker claims that she is totally disabled from any type of employment, there is insufficient medical opinions to support this position. The panel did not identify any medical opinions on file in 2008 which would confirm an inability to maintain sedentary employment. Indeed, the panel notes that the surveillance footage from September 2006 would tend to confirm that the worker is not totally disabled, in that she demonstrated the ability to be up and about for a period of over 12 hours.
The worker's own evidence at the hearing confirmed that she is not completely housebound and that on good days, she is able to get up and out of the house. She has the good fortune of having a strong family network who will not allow her to just stay in the house, and they force her to come out. The worker receives help with the heavier duties around the house (vacuuming, mowing lawn, etc.) but she is generally able to maintain her own household.
At the hearing, the worker indicated that she had difficulty walking to get her mail, which requires her to walk approximately ½ block. The panel notes that this was also reported in a doctor's progress report dated November 10, 2004 from the worker's physician, where he states: "Cannot walk to mailbox (1/2 a block)." This was also reported to the WCB medical advisor during the call-in examination of December 22, 2004. This reported limitation, however, would appear to be inconsistent with the ability demonstrated in the surveillance footage.
The worker was examined on four occasions by the WCB medical advisor (November 19, 2003, September 14, 2004, December 22, 2004 and May 4, 2006). Although Waddell's signs were negative at the first examination, by the fourth examination, the worker had 3/5 Waddell signs. The WCB medical advisor wrote: "I cannot explain on an anatomic or physiologic basis why she has not had improvement and in fact seems to be in more pain now than when I had previously examined her. She has now developed some abnormal pain behaviour and she seems quite focused on the pain."
Overall, the panel simply does not accept that, as a result of the effects of her compensable L5-S1 disc protrusion, the worker lacks the ability to perform any kind of work. The most recent MRI of the lumbar spine taken July 5, 2010 shows no worsening of the condition, and in fact, suggests that it may have improved.
The medical opinion dated December 5, 2011 by the WCB medical advisor states:
As noted above, the worker's restrictions are very appropriate for her condition. They limit all activities that could stress a back. They are basically sedentary but allow for regular positional changes. The restrictions are based on the FCE, call in exams, surveillance and the nature of her problem. There is nothing on MRI that would support disability and many with similar changes would have full capacity for activity. The limiting factor here is self reported pain, so the worker's tolerance for activity is limited and the only way that will improve is by gradually challenging the body with safe activity; the restrictions clearly allow for safe activity.
Based on the evidence as a whole, the panel accepts the December 5, 2011 medical opinion. We therefore find that the worker is not totally disabled and that as of October 1, 2008, the occupational goal of NOC 6623 - Other Elemental Sales was appropriate for the worker and was within her physical capabilities.
With respect to application of the Relocation Policy, the worker has acknowledged that she was aware of the consequences of her refusal to relocate. Given her attachment to her community and the support network which she has there, the panel finds that it was reasonable for the worker to choose to decline relocation. The effect of her choice, however, is that after three years, a post-accident deemed earning capacity would be instituted. As the worker has now received her full wage loss benefits for the three year period, the panel finds that it was appropriate to implement a post-accident deemed earning capacity of $400 per week effective October 2, 2011. This earning capacity is commensurate with income she would earn if she was employed in NOC 6623 on a full time basis.
The worker's appeal is dismissed.
Panel Members
L. Choy, Presiding OfficerA. Finkel, Commissioner
C. Anderson, Commissioner
Recording Secretary, B. Kosc
L. Choy - Presiding Officer
Signed at Winnipeg this 26th day of September, 2012