Decision #113/12 - Type: Workers Compensation

Preamble

The worker is appealing the decision made by Review Office of the Workers Compensation Board ("WCB") which determined that he was capable of working in the occupational classification of a truck driver and that the increase in his deemed earning capacity to $559.12 per week was justified. A hearing was held on October 17, 2012 to consider the matter.

Issue

Whether or not the worker's wage loss benefits should be reduced based on a deemed earning capacity of $559.12 per week effective July 6, 2011.

Decision

That the worker's wage loss benefits should be reduced based on a deemed earning capacity of $559.12 per week effective July 6, 2011.

Decision: Unanimous

Background

The worker filed a claim with the WCB for a left knee injury that occurred on September 23, 1981. His claim for compensation was accepted and various types of benefits and services have been paid to the worker. Medical information showed that the worker underwent surgery to his knee on four occasions between 1982 and 1990. As of February 2012, medical reports confirm that the worker has osteoarthritic changes in his left knee.

In 1985, the worker first met with a vocational rehabilitation consultant to discuss vocational rehabilitation planning. In August 1995, the worker was placed onto long term wage loss benefits and services as it was determined that he had maximized his earning potential within the occupational areas of shoe maker, retail sales and customer service.

On January 18, 2011, a WCB case manager noted to the file that the worker was "observed entering a tow truck close to the WCB premises."

On June 2, 2011, a WCB case manager spoke with the worker to obtain an update on his status. The worker denied working and said he had no other sources of income. The worker indicated that his knee was shot and he had difficulty getting around. The worker indicated that he does what he can during the day like cutting grass or visiting friends and that he frequently had to take breaks and sit. He favored his left knee and could not bend it much. If he went for a walk he has increased swelling. The worker said he takes one naproxen per day and that he periodically looked for work within his restrictions but would not be able to do anything laborious in nature.

A surveillance video of the worker's activities was taken on July 5, 6, 13 and 14 and August 3, 2011.

On August 30, 2011, a WCB medical advisor reviewed the worker's file and the video surveillance. The medical advisor stated that the worker's present permanent restrictions included the avoidance of repetitive squatting, the avoidance of stair/ladder climbing and the avoidance of extended walking on rough sloping surfaces. The medical advisor commented that the worker's activities during the surveillance were in marked contrast to those reported by the worker on June 2, 2011. With respect to gait, the worker was observed to have no apparent difficulty climbing or descending stairs or entering or exiting the raised cab of his tow truck. The worker at one point was observed jogging briefly. There were frequent episodes of squatting, kneeling and crouching. The worker was seen lifting and carrying heavy objects. Based on the activities demonstrated by the worker on the video surveillance, the medical advisor recommended that the worker's current suggested restrictions would only include the avoidance of prolonged standing and walking.

On September 22, 2011, an investigator with the WCB's Special Investigation Unit noted that the worker was first observed on July 6, 2011 operating a tow truck and moving vehicles. The worker was then observed engaging in all aspects of vehicle towing on July 13, 14 and August 3, 2011. On July 14, 2011, the worker towed 11 cars by himself. The report also indicated that the worker was interviewed on September 19, 2011 (a complete report of the interview is on file) and in brief, the worker stated:

  • He was allowed to work.
  • He was not paid for operating the tow truck but he accepted auto parts and "whatever" as payment.
  • The tow truck owner is a neighbor and would call him up to ask if he wanted to come for a ride. There were occasions where he has towed vehicles on his own.
  • He has not spoken to a doctor about operating a tow truck.
  • He did not tell his case manager about his activities because he was not paid, he did not do it full time and he was not working at that time. The case manager did not ask about "extra-curricular activities."
  • He has only been driving around with the tow truck owner for about one year.
  • He has not experienced any difficulties because of his activities with the tow truck.
  • The only physical aspect of tow truck operation he has difficulty with would be jumping off the deck and kneeling.

On September 22, 2011, a WCB vocational rehabilitation consultant submitted to the file an earning capacity analysis for National Occupational Classification ("NOC") 7411, Truck Driver.

In a decision dated September 28, 2011, the WCB confirmed to the worker that based on his physical capabilities shown on the surveillance evidence, he was considered fit and capable of employment within NOC 7411, Truck Driver. Effective July 6, 2011, his ongoing partial wage loss benefits had been recalculated using the starting wage of tow truck driver which was $559.12 per week.

On October 25, 2011, the WCB case manager wrote the worker to advise that based on the opinion outlined by the WCB's healthcare branch, his current permanent restrictions with respect to his left knee were only the avoidance of prolonged standing and walking.

Based on an appeal submitted by the worker dated October 30, 2011, Review Office referred the file back to primary adjudication to arrange for the worker to be examined by a WCB orthopaedic consultant and to obtain a sworn statement from the owner of the tow truck that the worker was operating. After the information was obtained, primary adjudication was asked to review their decision to invoke a deemed earning capacity of $559.12 per week effective July 6, 2011.

In a memo to file dated November 16, 2011, the WCB obtained the following information from the owner of the tow truck driven by the worker:

  • He had the worker come for rides on the tow truck when the worker was bored.
  • Sometimes the worker would help out and other weeks he only came along for the ride.
  • The worker assisted him when picking up and dropping off vehicles with the tow truck. The worker would unhook the vehicles.
  • He did not pay the worker any money but would give him some auto parts such as tires, batteries, windshield wipers. The value would be approximately $700.00.

On January 11, 2012, the worker was seen by a WCB orthopaedic consultant for a medical assessment. The consultant reported that osteoarthritis of the left knee has occurred as a complication of the 1981 workplace injury. She said the worker's low back and right knee complaints are not related to the workplace injury of the left knee. Permanent restrictions with respect to the osteoarthritic condition of the left knee were recommended as follows:

  • No repetitive kneeling, crawling or squatting;
  • No repetitive stair or ladder climbing;
  • No requirement for running or jumping; and
  • No walking for more than 30 minutes without an opportunity to rest.

The consultant also indicated that he reviewed the surveillance video. The consultant stated: "Of interest is the observed kneeling on both knees when applying tow-truck hitches to wrecked vehicles. There is no observed pain behavior when walking rapidly, bending down or kneeling, climbing in the cab, carrying heavy objects, and jogging. The observed behavior is at odds with apparent inability to kneel and squat exhibited during the call-in examination."

On February 2, 2012, the worker was advised by his WCB case manager that it was still the WCB's opinion that he was employable in NOC 7411. The case manager also advised the worker that she considered the permanent restrictions outlined in the recent call-in exam notes and was of the opinion that the restrictions outlined did not preclude him from obtaining or performing employment in NOC 7411. On February 8, 2012, the worker appealed the decision to Review Office.

On March 26, 2012, Review Office determined that the worker's wage loss benefits were correctly reduced based upon a deemed earning capacity of $559.12 per week effective July 6, 2011. Review Office noted in its decision that the worker asserted that his physical capabilities related to his compensable injury were variable from day to day making full time employment impossible. Review Office noted there was a complete lack of any medical updates on the worker's condition between the early 1990s and late 2011 after his benefits were reduced. After reviewing the videotape, Review Office concurred with the WCB orthopaedic consultant's statement that the worker showed no limitation of function or pain behavior while he was seen walking briskly, jogging, carrying heavy objects, etc. Review Office also noted that the worker self-reported that the duties that he performed operating the tow truck at no time caused any worsening in the condition of his knee. On July 6, 2012, the worker appealed Review Office's decision to the Appeal Commission and a hearing was held on October 17, 2012.

Reasons

Applicable Legislation and Policy

In deciding appeals, the Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the Board of Directors.

The worker's injury occurred in 1981, accordingly it is dealt in under the provisions of the Act as it existed at that time. The Act in 1981 provided a scheme for payment of income replacement benefits to workers who were disabled and were unable to work or return to their pre-accident employment. Payments, in cases where workers could return to some level of employment were generally authorized under the rehabilitation provisions of the Act.

The WCB Board of Directors have enacted several policies which deal with payment of benefits to workers who are not able to return to work, including:

· WCB policy 44.80.30.20, Post Accident Earnings - Deemed Earning Capacity. This policy provides that when the WCB implements a deemed earning capacity, it must demonstrate that the worker has the physical capacity needed to obtain and keep employment in the occupation in the labour market on which the earning capacity is based.

· WCB policy 44.10.30.60, Practices Delaying Worker's Recovery. This policy provides that where a worker fails to mitigate the consequences of the accident, the WCB may reduce the compensation paid to the worker to the level, if any, that would likely have been payable otherwise.

  • WCB Policy 43.00, Vocational Rehabilitation. This policy describes the terms under which vocational and rehabilitative assistance is available to a worker.

Worker's Position

The worker attended the hearing with his spouse who assisted with the worker's presentation. The worker answered questions posed by the panel.

The worker advised that after unsuccessful attempts to return to work, including an attempt at self-employment, he was deemed at minimum wage and told that the WCB would subsidize his income. He said that he was told that he could work but was limited in the amount he could earn. He said that his understanding was that it was okay for him to work. He advised that over the years he found odd jobs but never worked for a significant length of time. He said he still performs odd jobs but is not employed full time.

Regarding the operation of a tow truck, he advised that an acquaintance owned a towing business. In exchange for parts for his truck, he assisted the acquaintance by driving and operating a tow truck and accompanying him on occasional trips. He said that he was not paid for his services. He said that he only picked up scrap cars which did not require the use of dollies.

The worker said that when the WCB asked him if he was working full time, he replied that he was not working. He was later contacted by the WCB Special Investigation Unit regarding driving a tow truck. He said that he drove the tow truck occasionally and received no pay but was given parts to fix his truck.

He acknowledged that he was given a copy of the surveillance video that was conducted by the WCB. He noted that the video shows him working for a limited time over a month. He also said that he has good days and bad days.

He disagreed with the observations of the WCB medical advisors who had watched the video. He asked the panel to accept the opinion of the surgeon who operated on his knee. He acknowledged that he did not show the surgeon the video.

The worker said that his left knee still bothers him and is not getting better. He said the surgeon told him that he may need a total knee replacement within one year. In response to a question from the panel, he acknowledged that the report from the surgeon indicates he would be a candidate for a total knee replacement within 10 years.

When asked whether he could work full time in a courier type position involving mostly driving or waiting and some walking to deliver small packages, the worker replied that he could work full-time. He said that he would basically be working with one leg because his left knee swells up.

The worker noted the advertisements for tow truck drivers he sent to WCB. He said he could not work the long hours or perform the heavy physical labour of a tow truck driver.

When asked about his history of odd jobs, he said that over the years he has worked stocking store shelves, pushing a broom, working behind the counter in an auto parts business and packaging materials. He said he continues to work on an irregular basis.

Employer's Position

The employer did not participate in the hearing as it is no longer in existence.

Analysis

The issue before the panel is whether the worker's wage loss benefits should be reduced based upon a deemed earning capacity of $559.12 per week effective July 6, 2011. For the worker's appeal to be successful, the panel must find that the worker is not capable of performing the duties of NOC 7411 - Truck Driver on a sustained basis. The panel was not able to make this finding.

Having considered all the evidence including the worker's evidence at the hearing, the panel finds, on a balance of probabilities, that the worker is capable of performing the duties of a tow truck operator on a sustained basis. The panel also finds that the work of a tow truck driver matches the worker's skills, aptitude and interests.

Regarding the worker's physical ability to perform the duties of a tow truck driver, the panel relies upon the August 30, 2011 opinion of the WCB medical advisor that "While acknowledging the prior compensable injury and related surgeries, and the long term effects of these, based on the activities observed on video [the worker] appears to be significantly less disabled than he reports."

The panel also relies upon the opinion of the WCB orthopaedic consultant who examined the worker on January 11, 2012. The physician viewed the surveillance video and noted the worker was able to kneel on both knees and perform other activities without any apparent pain behavior. The physician recommended restrictions of:

  • No repetitive kneeling, crawling, or squatting;
  • No repetitive stair or ladder climbing;
  • No requirement for running or jumping; and
  • No walking for more than 30 minutes without an opportunity to rest.

The panel finds that these restrictions are not inconsistent with the duties of a tow truck driver or with the worker's activities demonstrated on the surveillance video.

The panel notes that the worker demonstrated familiarity and good knowledge of the towing industry. The panel finds that the worker has demonstrated the knowledge, skill and familiarity to work as a tow truck driver which are criteria set out in the Vocational Rehabilitation policy.

The worker asked that the panel accept his surgeon's opinion over that of the WCB medical advisors. The panel notes that the surgeon commented that the worker's condition does not "…preclude him from performing chores such as you have observed on occasion - but would not allow for day in, day out full time use." The surgeon comments that the worker would not be a candidate for repetitive squatting, stair and/or ladder climbing.

The panel notes that the surgeon did not view the video surveillance and appears to be referring to chores associated with daily living rather than the demands of the tow truck driver occupation that is under consideration. The panel actually concurs with the surgeon in respect of the worker's ability to perform activities of daily living. However, the surgeon's comments do not provide additional insight as to the worker's ability to work full-time as a tow truck driver. Accordingly, the panel places little weight on the worker's assertion that his surgeon states he could not perform the activities shown on the video on a full-time basis. On the other hand, the panel accepts the surgeon's opinion regarding restrictions. In the panel's opinion, the duties of a tow truck driver are not inconsistent with the restrictions to avoid repetitive squatting, stairs and/or ladder climbing, noted by the surgeon and do not preclude full-time work.

The worker's appeal is dismissed.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 25th day of October, 2012

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