Decision #26/13 - Type: Workers Compensation
Preamble
The worker is appealing a number of decisions made by Review Office of the Workers Compensation Board ("WCB") with respect to his low back condition that arose from a workplace injury on October 30, 2007. A hearing was held on January 23, 2013 to consider the matter.Issue
Whether or not the worker's restrictions are appropriate;
Whether or not the occupational goal of NOC 7411 - Truck Driver is appropriate;
Whether or not the worker is entitled to wage loss benefits after May 18, 2012;
Whether or not the worker's treatment from a pain specialist should be authorized after October 5, 2010;
Whether or not the worker's treatment from a physical medicine and rehabilitation specialist should be authorized after May 13, 2011; and
Whether or not the worker's permanent partial impairment rating has been correctly calculated.
Decision
That the worker's restrictions are appropriate;
That the occupational goal of NOC 7411 - Truck Driver is appropriate;
That the worker is entitled to partial wage loss benefits after May 18, 2012 based on a deemed earning capacity of $743.79 per week.
That the worker's treatment from a pain specialist should not be authorized after October 5, 2010;
That the worker's treatment from a physical medicine and rehabilitation specialist should not be authorized after May 13, 2011; and
That the worker's permanent partial impairment rating has been correctly calculated.
Decision: Unanimous
Background
On October 30, 2007, while unloading product from a trailer, the worker felt a small pop and sharp pain in his low back when he pulled on a crate that was hooked onto a pallet. His claim for compensation was accepted by the WCB and benefits and services were paid to the worker. The compensable diagnosis outlined by a WCB medical advisor on January 25, 2008 was an acute lumbar strain with disc herniation at L4-5.
In May 2010, the worker was seen by a pain specialist for treatment. The pain specialist reported that the worker had chronic mechanical low back pain syndrome that had been unresponsive to conventional therapies and two trials of epidural steroid injections. The specialist recommended a trial of paralumbar local anesthetic injections and a graduated active exercise program by a physiotherapist. On June 14, 2010, the WCB authorized the recommended treatments.
In a follow-up report dated August 25, 2010, the pain specialist reported that the worker had not responded favorably to the paralumbar injections, and a trial of therapeutic Botox injections for refractory low back pain was suggested. On October 5, 2010, the pain specialist was advised by the WCB's healthcare branch that the Botox treatment would not be approved at that time.
On October 14, 2010, the worker was seen at a call-in examination by a WCB physical medicine and rehabilitation (physiatrist) consultant. Based on his examination findings, the consultant found no indication to proceed with Botox treatment for the soft tissues. He requested an orthopaedic surgeon's opinion with respect to whether there were any surgical options.
On November 9, 2010, the worker was seen at the WCB's offices by a WCB orthopaedic consultant. It was concluded that the worker had continuing symptoms which he claimed influenced his activity level, but the examination had not identified a pain generator which would explain the reason for continuing disabling symptoms. The consultant felt there was no indication for surgical intervention.
The worker underwent a Functional Capacity Evaluation ("FCE") on January 5, 2011.
On February 24, 2011, the treating physiatrist reported that the worker underwent a lumbar medial branch block procedure and that the worker noted a definite improvement in his pain level for several hours. "His symptoms at the time of today's appointment are not severe, as he has avoided activity. I felt that it was still sufficient to go ahead with the follow-up block."
In March 2011, the worker commenced a work hardening program. In the May 2, 2011 discharge report, it was indicated that the worker's demonstrated strength ability was at medium strength level and that he met the physical demands of his prior job as a truck driver.
On April 26, 2011, the physician at the work hardening program stated that the worker made minimal progress while in rehab and his rehab participation had been marginal. The consultant stated: "…he has shown good daily activity tolerance within the daily rehab schedule and his current physical ability level was tested at the Medium level…"
On April 27, 2011, the treating physiatrist noted that the worker continued to experience persistent lumbosacral pain. The specialist recommended that the worker undergo percutaneous radiofrequency (thermal) neurotomy at the L4, L5 levels bilaterally (affecting the L5-S1 facet joints)."
On May 12, 2011, a WCB orthopaedic consultant reviewed the treatment recommendations made on April 27, 2011. He stated: "The diagnosis of the compensable injury of this claim is a left lower limb radiculopathy which had resolved by the time of my call-in examination November 9, 2010. A subsequent MRI ordered by the WCB Physical Medicine Consultant February 26, 2011, showed very little change in the findings at L4-5, perhaps even improvement with reference to the L5 root. This would be consistent with the findings at my call-in examination. Treatment directed at the lower left and especially lower right posterior articulations is not a WCB responsibility." The consultant further indicated that the compensable restrictions were as follows: No occasional lifts over 100 pounds and no repetitive lifts over 60 pounds, for a duration of six months and then review. This information was communicated to the worker and his employer in a letter dated May 13, 2011.
On May 13, 2011, the WCB orthopaedic surgeon stated that the current diagnosis was L4-5 disc herniation based on the recent MRI report.
On May 26, 2011, the family physician stated:
On review of the letter sent to [the worker] dated May 13, 2011, I cannot support the restrictions that have been placed for the next six months. The Functional Capacity Evaluation done in January/11 recommends no floor to thigh lifting and only a 10 pound maximum of thigh to shoulder lift. Even without having a copy of the above Rehab report, the restrictions listed in the letter of May 13, 2011 are inappropriate for [the worker] and his back injury.
On June 3, 2011, the WCB orthopaedic consultant proposed the following modification to the worker's restrictions: No occasional lifts over 75 lbs. and no repetitive lifts over 50 lbs. for five months duration and then review.
On September 8, 2011, the family physician reported "No significant change, continues to have left leg numbness, increasing pain back when he attempts yard work, can't bend forward…". The physician reported "this patient will not be able to return to regular duties in the future. The patient should not be doing any lifting or bending in the future."
On September 8, 2011, the accident employer advised the worker that his employment was terminated as of August 31, 2011 in accordance with the collective agreement and they did not have employment that met the restrictions outlined by his family physician.
On September 8, 2011, a Vocational Rehabilitation Consultant ("VRC") noted to the file that the worker had been employed in a driving occupation most of his working life and would like to continue to pursue this path. The worker obtained his Class I license and stated that he knows many people in the industry and would have no trouble finding a job. The VRC noted that he reviewed the worker's restrictions of no occasional lifts over 75 pounds and no repetitive lifts over 50 lbs. with a career consultant at a professional transport driver training school. It was confirmed that this occupation was within the worker's restrictions. It was felt that there was a large labour market for long haul drivers and the worker had many transferrable skills within this occupation.
On October 18, 2011, the WCB orthopaedic consultant noted to the file that the family physician's comments of not doing any lifting or bending in the future was not supported by any clinical evidence.
In a decision letter dated October 21, 2011, the worker was advised by the WCB the report from his family physician dated August 18, 2011 had been reviewed by a WCB medical advisor on October 18, 2011 and there were no changes to his restrictions of no occasional lifts over 75 pounds and no repetitive lifts over 50 pounds.
On October 28, 2011, the worker was advised by his VRC that the physical demands for the occupation of NOC 7411 Truck Driver occupation was within his physical capabilities and that he was therefore entitled to 12 weeks of job search and resume/interview skills workshops.
On October 28, 2011, the worker requested Review Office reconsider the decisions made with respect to his restrictions and the appropriateness of the occupational goal of NOC 7411. The worker noted that the restrictions outlined by his physician were disregarded and there was no mention of his extreme pain and discomfort from remaining in one position for a period of time which would be essential for Class I driving.
On December 9, 2011, the WCB orthopaedic consultant reported that the worker's restrictions were based on a diagnosis of L4-5 disc herniation, which was accepted as the diagnosis of the compensable injury. The worker's restrictions of no occasional lifts over 75 lbs. and no repetitive lifts over 50 lbs. pounds were now considered permanent. This decision was communicated to the worker on December 14, 2011.
In a decision dated December 21, 2011, Review Office determined that the worker's restrictions were appropriate and that the occupational goal of NOC 7411 Truck Driver was appropriate. With respect to the worker's restrictions, Review Office placed weight on the WCB call-in examinations of October 2010 and November 2010 and the opinion expressed by the WCB orthopaedic consultant in October 2011. Review Office accepted the orthopaedic consultant's restrictions of no lifting greater than 75 lbs. and no repetitive lifting greater than 50 lbs. It found that the evidence on file including the diagnosis, treatment rendered, clinical findings and time that had passed supported that the restrictions imposed on the worker were appropriate. There was insufficient medical evidence to support that the worker was unable to sit for prolonged periods of time. Review Office noted that the family physician did not indicate that the worker required a restriction of no prolonged sitting.
Review Office indicated that NOC 7411 Truck Driver was appropriate for the worker given that his restrictions were found to be appropriate. Review Office indicated that the evidence on file, which included an earning capacity assessment, supported that the worker was physically capable of performing and competing for employment as a truck driver.
On February 7, 2012, the WCB VRC prepared a Vocational Rehabilitation Deem Summary. The VRC concluded that the worker was considered fully employable in NOC 7411 and effective February 24, 2012, the worker's benefits would be reduced by the starting wage within NOC equal to $559.00 per week.
A WCB employment specialist ("ES") prepared a document for file dated May 9, 2012 with his comments on the worker's earning capacity for NOC 7411. He stated:
"…[the worker] was earning $1,041.63 in his pre-accident wage as a truck driver. ES also investigated the current higher level wages in this profession. ES contacted the (Manitoba Trucking Association) and several large trucking firms for data. When asked what a driver with more than 15 years experience should be able to earn all expressed similar data. They stated at minimum drivers at this level should be able to start at the weekly wage of $961.54 ($50,000 annualized) and at the top end workers may be able to earn as much as $1,153.85 ($60,000 annualized)."
In a decision dated May 11, 2012, the worker was advised by his WCB case manager that based on market research, his significant years of experience within the industry, and his permanent restrictions, he was considered capable of earning his weekly pre-accident wage of $1,041.63 and as a result he was no longer entitled to further WCB wage loss benefits. The worker was advised that based on WCB policy, his benefits would continue up to and including May 18, 2012.
On June 19, 2012, the worker was seen at the WCB for the purposes of establishing a permanent partial impairment ("PPI") award. Following the examination, it was determined that the worker was entitled to a PPI of 6.3% based on passive range of motion of the lumbar and thoracic regions.
Subsequent file records showed that the worker requested Review Office to reconsider the decisions made by the WCB with respect to his PPI award and his entitlement to partial wage loss benefits beyond May 18, 2012. He also asked Review Office to reconsider the WCB decisions made on May 13, 2011 and October 5, 2010 with respect to medical treatment.
On November 20, 2012, Review Office determined the following:
That the worker was not entitled to further treatments from the pain specialist after October 5, 2010 or from the physiatrist after May 13, 2011.
Review Office noted that the pain specialist proposed Botox injections, as five anesthetic injections had proven to be of little benefit to the worker. It was then determined by the WCB physiatrist that local anesthetic injections under fluoroscopy were a more appropriate form of treatment. The worker received the treatment but only experienced temporary relief. The issue of Botox injections was not discussed further. After limited success from the injections under fluoroscopy, the treating specialist requested further treatments, but it was felt by the WCB orthopaedic consultant that the treatment was not related to the compensable injury and would not be approved. Review Office noted that further treatments from injections were not likely "to provide relief" or "cure" the worker's lumbar disc herniation. It noted that the requested treatment of April 27, 2011 was for bilateral facet injections. The treatment area would not be considered related to the compensable injury and was not considered associated with the compensable left sided L4-5 disc herniation.
That the worker was not entitled to wage loss benefits after May 18, 2012.
Review Office noted that the workplace restrictions imposed on the worker made it impossible for him to continue with his pre-accident employer but it did not stop him from finding work as a truck driver elsewhere. Review Office concluded that the worker's restrictions changed the type of truck driving job he could accept, but did not change his earning capacity and he therefore was not entitled to benefits beyond May 18, 2012 as he was considered fully and competitively employable after that date.
That the worker's PPI rating was calculated correctly.
Review Office noted that the rating schedule as per Policy 44.90.10 was set by the WCB and its legislation and the worker only qualified for a PPI for his combined loss of range of motion as was detailed in the PPI notes of June 19, 2012. Any other complaints were not measurable and would not be considered. It found that the worker's PPI rating was accurate at 6.3%.
The worker appealed Review Office's decisions to the Appeal Commission and a hearing was held on January 23, 2013.
Reasons
Applicable Legislation and Policy
In considering 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 has an accepted claim arising from a 2007 workplace injury. The WCB terminated the worker's wage loss benefits as of May 18, 2012. This appeal deals with several issues related to the termination of wage loss benefits, vocational rehabilitation, calculation of permanent partial impairment award and medical care and treatment.
Decisions regarding entitlement to wage loss benefits are made under Subsection 39(2) of the Act which provides that the WCB will pay wage loss benefits until such a time as the worker’s loss of earning capacity ends.
Decisions with respect to medical care and treatment are made under subsection 27(1), vocational rehabilitation under subsection 27(20), and permanent impairments under subsection 4(9) and section 38.
Policies which apply to this appeal include WCB Policies: 43.00 Vocational Rehabilitation, 44.120.10 Medical Aid, and 44.90.10 Permanent Impairment Rating Schedule.
Worker's Position
The worker was assisted at the hearing by his father.
The worker advised that the WCB has told him to return to truck driving but he is not able to do this because he cannot pass the medical required for Class 1 license. When asked whether he has actually had the medical the worker advised that "I did not get the medical completed…it's $200.00 and …I didn't get the medical completed for that fact alone." He advised that his treating physician told him he could not pass the medical.
With respect to returning to truck driving, the worker disagreed with the WCB assessment that he had 15 years of Class 1 truck driving experience. He said that this is misleading. While he has driven for many years, he did not obtain his Class 1 license until 2003 and stopped driving in 2007 when he injured his back. This error affected the wage level that he was considered to be able to earn, under the earning capacity assessment.
The worker also disagreed with the WCB assessment that he could return to trucking and earn his pre-accident income. He said that he has restrictions which will impact his ability to find employment. He noted that the decisions regarding his return to work were based on WCB physicians' opinions. He noted that his treating physician feels he is more restricted than the WCB physicians.
Regarding his experience with the work hardening program and the agency that administered it, the worker said that the program tells him one thing and writes another thing in its reports to the WCB. He said that he participated fully and did every exercise that he could.
The worker said that his rehabilitation involved a course on resume writing and interview training for a week. He did not receive any retraining.
In answer to a question, the worker advised that he has seen the treating physician on two occasions in 2012. He saw him recently to give him an update and to obtain a prescription renewal. He also attended his local hospital after he had slipped on some stairs. The worker advised that he has not seen the pain specialist or physical medicine and rehabilitation specialist since the WCB declined their treatment recommendations.
The worker advised that he worked briefly as a school bus driver. This was a relief position and he has not been called back. He has also applied for jobs in his area, including a position at a large retail outlet. He feels he did not get the position because of his restrictions.
Employer's Position
The employer did not attend the hearing but outlined its position in a letter dated October 18, 2012.
Analysis
This appeal dealt with the following six issues relating to the worker's 2007 low back injury.
1. Whether the worker's restrictions are appropriate?
For the worker's appeal to be successful, the panel must find that the worker's restrictions were not appropriate given his injury. The panel, on a balance of probabilities, found that the restrictions are appropriate.
The panel notes that the WCB found the worker's permanent restrictions, arising from the workplace injury, to be no occasional lifts over 75 lbs. and no repetitive lifts over 50 lbs.
The worker advised the panel that his treating physician disagreed with the WCB restrictions. The treating physician wrote to the WCB on May 26, 2011 indicating that "I cannot support the restrictions that have been placed for the next six months. The Functional Capacity Evaluation done in January/11 recommends no floor to thigh lifting and only a 10 pound maximum of thigh to shoulder lift." In a progress report of an August 18, 2011 appointment the physician wrote that "The patient should not be doing any lifting or bending in the future."
The worker told the panel that he had difficulty lifting and bending and that such activity could result in debilitating pain. He said that he must be careful with all his activities.
In finding that the restrictions are appropriate, the panel relies upon the Work Hardening Program Discharge Report dated May 2, 2011. This report concluded that the worker "Meets physical demands of prior job" of a driver. It also reported that the worker "…has demonstrated the physical tolerance for Medium level activity which is consistent with the physical requirements of his previous job as a truck driver."
The panel also relies upon the opinion of the WCB orthopaedic consultant who examined the worker, considered the FCE report, the Work Hardening Program Discharge Report dated May 2, 2011 and compared the various MRIs. The orthopaedic consultant in referring to the restrictions wrote that "These restrictions are based on a diagnosis of L4-5 disc herniation, which was accepted as the diagnosis of the compensable injury of this claim. They may now be considered permanent."
The worker's appeal of this issue is dismissed.
2. Whether the occupational goal of NOC 7411 - Truck Driver is appropriate?
The worker stated that he could not return to truck driving and that the NOC 7411 was not an appropriate occupational goal. For the worker's appeal to be successful, the panel must find that the worker is not able or qualified to be a truck driver. The panel was not able to make this finding.
In support of this decision, the panel notes the Work Hardening Program Discharge Report found that the worker demonstrated the physical tolerance for medium level activity which is consistent with the physical requirements of his previous job as a truck driver.
The panel also notes that the WCB vocational rehabilitation consultant reviewed the worker's restrictions with a career consultant at a professional truck driving training school. The career consultant confirmed that the occupation was within the worker's restrictions and there is a large market for long haul drivers and the worker has many transferable skills in this area.
Finally, the panel notes the worker has significant transferable skills suited to truck driving as set out in the WCB memo dated September 8, 2011.
The panel finds, on a balance of probabilities, that NOC 7411 - Truck Driver is appropriate. The panel finds that this decision is made in compliance with the vocational rehabilitation policy. The worker's appeal on this issue is dismissed.
3. Whether the worker is entitled to wage loss benefits after May 18, 2012?
The worker noted that WCB found he was capable of earning his pre-accident income and was not entitled to wage loss benefits. He disagreed with this conclusion. For the worker's appeal of this issue to be successful, the panel must find that the worker suffered a loss of earning capacity after May 18, 2012 due to the workplace injury.
In considering this issue, the panel must have regard to its decision in issue 1 and 2 above. The panel has accepted the worker's restrictions are appropriate and that NOC 7411- Truck Driver is appropriate. However, the panel finds that the worker is entitled to further wage loss because the worker's deemed earnings as of May 2012 were set at an unreasonably high level. The panel finds that it is unlikely that the worker could have earned his pre-accident income as of May 18, 2012.
The panel notes that upon the completion of the vocational rehabilitation plan, the worker's weekly earnings were deemed at $559.12, the starting wage within NOC 7411-Truck Driver. The panel agrees that this was an appropriate deemed earning amount at that time. Effective May 18, 2012 the worker's weekly earnings were deemed at $1,041.63, which is equivalent to his pre-accident weekly wage. As a result of this increase in deemed earnings, the worker no longer had a loss of earning capacity and was not entitled to wage loss benefits.
The panel disagrees with the decision to increase the worker's deemed earnings to his pre-accident weekly wage of $1,041.63. Part of the rationale for this increase was that a worker with 15 years of experience would be able to earn a greater income, up to $1,153.85. The panel notes that the worker had only 3 years experience driving with a Class 1 license, had been out of the workforce for approximately 5 years, had physical restrictions, and was out of condition. The panel considers it unlikely that the worker could have earned his pre-accident wage in such a short period of time. The panel considers it more appropriate to deem the worker's earnings as of May 18, 2012 at the weekly sum of $743.79 which is noted to be the maximum earnings range in this category for a starting driver.
The worker's appeal of this issue has been accepted. The worker's deemed earnings as of May 18, 2012 should be set at $743.79 per week.
4. Whether the worker's treatment from a pain specialist should be authorized after October 5, 2010?
The worker advised the panel that he is willing to undergo any treatment which will improve his condition. He asked that he be permitted to receive treatment from the pain specialist who last treated him in July 2010.
The panel notes that between June 22 and July 27, 2010 the worker received a series of paralumbar local anesthetic injections. The pain specialist advised that the worker did not respond favourably to the injections. He also noted that the worker had not derived prolonged relief from injections performed by the worker's physical medicine and rehabilitation specialist. The pain specialist then proposed a trial of Therapeutic Botox injections.
The request for these injections was considered by a WCB physical medicine and rehabilitation consultant. He examined the worker and reviewed the various treatments which the worker received. He commented that "On review and with the current examination, there was no indication for proceeding to Botox treatment for soft tissues."
The panel accepts the opinion of the consultant and declines the worker's request for further treatment from the pain specialist at this time.
5. Whether the worker's treatment from a physical medicine and rehabilitation specialist should be authorized after May 13, 2011?
It is noted in the file that the specialist carried out bilateral L4 and L5 medial branch blocks in December 2010. He reported that the worker responded positively with a significant reduction in pain which gradually returned after several hours. It is also noted that the treatment was bilateral, although there was only authorization to treat the worker's left side. The specialist then recommended percutaneous radiofrequency neurotomy at the L4-L5 levels bi-laterally. This request was considered by a WCB orthopaedic consultant who declined to approve the treatment.
The panel accepts the WCB orthopaedic consultant's complete file review and opinion of May 12, 2011 who noted that "Treatment directed at the lower left and especially lower right posterior articulations is not a WCB responsibility."
The worker's request for coverage of further treatment from the physical medicine and rehabilitation specialist is declined. The worker's appeal on this issue is dismissed.
6. Whether the worker's permanent partial impairment rating has been correctly calculated?
For the worker's appeal to be successful, the panel must find that the measurements of range of motion were inaccurate and/or the calculations of the impairment award was incorrect. The panel was not able to make these findings.
At the hearing, the worker was asked about the examination and measurements used by the WCB medical advisor in calculating his PPI award. Specifically he was asked whether he agreed that the measurements of range of motion made by the medical advisor were accurate. He agreed that the measurements were accurate for a "good day."
The panel has reviewed the calculation of the worker's PPI award using the medical advisor's measurements and finds that it has been properly calculated in accordance with the Act and the Permanent Impairment Rating Schedule.
The worker's appeal of this issue is dismissed.
Panel Members
A. Scramstad, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
Signed at Winnipeg this 21st day of February, 2013