Decision #55/13 - Type: Workers Compensation
Preamble
The worker is appealing the decision made by the Workers Compensation Board ("WCB") which determined that he was capable of working within National Occupational Classification ("NOC") 6421, Retail Sales, and that it was appropriate to implement a post-accident deemed earning capacity of $400.00 per week after June 17, 2012. A hearing was held on April 3, 2013 to consider the matter.Issue
Whether or not it is appropriate to implement a post-accident deemed earning capacity of $400 per week after June 17, 2012.Decision
That it is appropriate to implement a post-accident deemed earning capacity of $400 per week after June 17, 2012.Decision: Unanimous
Background
The worker has an accepted claim with the WCB for a right shoulder injury that occurred in February 2008. The compensable diagnosis was a right rotator cuff impingement. The worker has permanent compensable restrictions to avoid repetitive over the shoulder activities and single lifts above shoulder height over ten pounds.
The file was referred to the WCB's vocational rehabilitation branch to assist the worker in finding employment that met his compensable restrictions. A Vocational Rehabilitation Initial Assessment dated June 1, 2011, indicated that the worker wanted to return to work but did not want to take any computer training. He saw himself working with people, possibly in retail sales or working with animals.
An Individualized Written Rehabilitation Plan ["IWRP"] was developed under National Occupational Classification ("NOC"') 6421, Retail Sales. The plan duration was to run from November 28, 2011 to June 17, 2012. In the event that the worker did not secure employment by the end of the plan, his benefits would be reduced in accordance with WCB policy.
On April 18, 2012, the worker advised the WCB that he would not be looking for work as his shoulder pain was getting worse. He said the pain travelled to his neck and jaw. The worker indicated that he knew his benefits would be ending and that he would be appealing the decision.
On April 20, 2012, the worker was advised the WCB found the medical information on file did not support that he was totally disabled from work activities as a result of his shoulder injury. He was advised that his vocational rehabilitation plan would end on June 17, 2012 and that wage loss benefits would end on that date as well.
On June 14, 2012, the worker advised the WCB that he was appealing his vocational rehabilitation plan because he considered himself to be totally disabled due to his ongoing shoulder symptoms.
A Vocational Rehabilitation Deem Summary dated June 18, 2012 provided the following rationale to deem the worker:
Prior to the implementation to this IWRP and at points during the job search period [the worker] expressed concerns about the outcome of his shoulder surgeries and his ability to work a full 8 hour day due to pain issues. He noted his shoulder was worse after his surgery. Meetings were held with the Case Manager and Manager to discuss [the worker's] concerns, but this did not result in any change in his restrictions or expectations for his participation in his IWRP.
Based on the restrictions on file to avoid repetitive over the shoulder activities and avoid single lifts above shoulder height over ten pounds it is felt work in NOC 6421 Retail Sales was realistic. Efforts were made by the Employment Specialist ["ES"] to focus on the areas of this NOC that were most appealing to [the worker] in working with animals and also at home improvement stores such as Rona or Home Depot. The ES provided customized services to [the worker] based on his expressed interests while also providing him leads outside his immediate areas of interest to show him what work was available to him.
Recommendation
Based on the above information, the worker is considered fully employable in NOC 6421.
On September 14, 2012, Review Office determined that the worker was not entitled to wage loss benefits after June 17, 2012 as it was unable to find the evidence to support that the worker was unable to work in any capacity. Review Office noted that the worker had sufficient range of motion to work in NOC 6421 based on the Permanent Partial Impairment examination notes dated July 15, 2011. It referred to the treating physician's comments of February 15, 2012 that the worker was encouraged to consider an occupation that would allow him to keep his shoulder adducted.
Review Office found that the job duties within NOC 6421 were considered in the "light" category and that this type of work was within the worker's restrictions. It confirmed that there was a known positive labour market for NOC 6421at the time the IWRP was developed and when the deem was implemented in June 2012. Review Office thought it was appropriate for the worker's wage loss benefits to be based on a deemed earning capacity of $400.00 per week effective June 18, 2012. On November 19, 2012, the worker appealed Review Office's decision to the Appeal Commission and a hearing was arranged.
Reasons
Applicable Legislation and Policy
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.
This appeal deals with the provision of benefits on an accepted claim. Subsections 4(2), 39(1) and 39(2) of the Act provide that wage loss benefits are payable where an injury results in a loss of earning capacity and are paid until such a time as the loss of earning capacity ends.
Pursuant to subsection 27(20) of the Act, the WCB may provide academic, vocational and rehabilitative assistance to injured workers.
WCB Policy 43.00 Vocational Rehabilitation (the “Voc Rehab Policy”) explains the goals and describes the terms and conditions of academic, vocational and rehabilitative assistance available to a worker. The Voc Rehab Policy states that: “The goal of vocational rehabilitation is to help the worker to achieve a return to sustainable employment in an occupation which reasonably takes into consideration the worker’s post-injury physical capacity, skills, aptitudes and, where possible, interests.”
The Voc Rehab Policy also provides that: “The WCB will help the worker as much as possible to be as employable as she/he was before the injury or illness. Once this is done and where necessary, the WCB will provide reasonable assistance to the worker so that she/he actually returns to work. However, services may not always continue until the worker actually returns to work.”
Worker's Position
The worker attended the hearing with his spouse.
The worker told the panel that he has been a painter for more than 35 years. He said that as a result of painting so long, he developed tendinitis in his left shoulder.
The worker had several concerns about his medical treatment. His concerns include:
· he was rushed into surgery and should have had more rehabilitation before surgery.
· he was not a good candidate for shoulder surgery because he is diabetic.
· he believes his shoulder is worse and feels that another MRI should be performed.
The worker advised that because of unending pain he is restricted from performing many of the activities that he used to perform. Besides not being able to work, he cannot cut his grass, shovel snow, work in his yard or drive his boat more than a half mile. On the other hand, the worker advised that he walks his dog for an hour each day, makes meals, does laundry, does house cleaning, has learned to vacuum with his left arm and can hold a book with his right hand.
The worker said that ice is the only treatment that provides relief. He ices his shoulder 3 to 4 times each day. He does not use pain killers. He said that before the surgery he would have been able to return to work but he is no longer able to work. His pain level is rarely below 7 out of 10. With ice, the pain level can drop to 4 out of 10. He said that both his neck and jaw hurt. He said that the injury and pain from the injury has also worsened his depression. He noted that he worked for years with depression but feels that it is now preventing him from returning to work. His psychiatrist has provided a letter dated November 8, 2012 which indicates that chronic pain exacerbates his depression and makes it difficult for him to function.
The worker advised that he is able to manage his temporal mandibular joint (TMJ) problem. He indicated that this condition was not preventing him from working.
The worker advised that he has attended two pain treatment facilities. He attended a private clinic where the treatment provided temporary relief but was very expensive. He also attended a hospital-based pain clinic in 2012 and will be attending again. The treatment involved physiotherapy including ultra sound, massage and electrical current.
The worker said that he exercises every day to prevent his shoulder from freezing.
Regarding his job search, the worker indicated that he could not find a job which complies with his restrictions of no lifting more than 10 pounds. He said that each job he applied for required more lifting than he was authorized to do. He acknowledged that he was interested in employment in a pet store and had contacted the owner who told him she was looking to hire a younger person. He advised that he applied for jobs on-line.
The worker said that it is not that he doesn't want to work but that he can't work. The worker advised that he had intended to work until he reached 65 years of age and asked that he get paid by WCB until he reaches 65 years of age.
Employer's Position
The employer did not participate in the hearing.
Analysis
The issue before the panel was whether it is appropriate to implement a post-accident deemed earning capacity of $400.00 per week after June 17, 2012.
For the worker's appeal to be successful, the panel must find that the worker is not capable of earning $400.00 on a weekly basis as a result of his workplace injury. The panel is not able to make this finding. On a balance of probabilities, we find that the worker's compensable injury does not prevent him from achieving and sustaining this level of earning capacity and that it was appropriate to implement a deemed earning capacity of $400.00 per week after June 17, 2012.
The panel has considered the medical information on file and finds that the medical information does not support the worker's position that he is unable to work as a result of his workplace injury. The panel notes that the PPI Examination Notes dated July 15, 2011 indicate that the worker has restricted range of motion in his left shoulder and an impairment rating of 3.4%. The worker's permanent restrictions are to avoid repetitive over the shoulder activities and avoid single lifts above shoulder height over ten pounds. These restrictions do not suggest that the worker is unable to return to suitable employment.
The panel notes that the worker also relies on a report by his treating physician dated September 29, 2012 in which he stated that "[the worker] has been unable to return to work. He has persistently and consistently complained of right shoulder pain. He has demonstrated decreased and painful range of motion of the joint." The panel finds that this opinion does not provide a specific rationale outside of pain complaints, to support that the worker cannot return to suitable employment. In contrast, the February 15, 2012 report from the treating physician states that "I have encouraged him to consider an occupation that would allow him to keep his shoulder adducted." The panel finds that the attending physician does not support the proposition that the worker is not fit to return to work but rather that the worker return to a position which complies with his permanent restrictions.
In reaching this decision, the panel has also noted the worker's evidence at the hearing regarding his activities. In answer to questions, he told the panel that he was able to walk his dog outdoors for an hour each day, and was responsible for the house work and meal preparation. His evidence suggests a significant level of daily activity, and again is not suggestive of a total disability.
The worker asserts that he cannot work due to his depression. He states that his depression has worsened due to the pain from the injury, and provides a medical report from his psychiatrist supporting his position. He said that he is unemployable. The panel notes that the worker's depression is a pre-existing and non-compensable condition and that the WCB has not accepted responsibility for the depression at this point. In any case, the panel finds the worker's position that he is unemployable to be inconsistent with other information on the file, including his recent PPI examination and award, permanent restrictions and description of his daily activities and functions noted previously. The worker's depression is consistent with the worker's self-limiting behaviors in terms of job search and re-engagement of the workforce under the vocational rehabilitation plan, but as noted above, it is related to a non-compensable medical condition.
The worker has been deemed with a post accident earning capacity of $400.00 per week which is roughly equivalent to the provincial minimum wage. The panel is satisfied that the worker has the skills and ability to work full-time in a position which pays the provincial minimum wage.
The panel notes that in determining the worker's deemed earning capacity, the WCB used National Occupation Code 6421, Retail Sales. The panel considers this to be an appropriate NOC but notes there are other NOCs which have similar physical requirement in which the worker is capable of working at minimum wage, including sedentary jobs and other elemental sales that include the worker's experiences and interests. The panel finds that the deeming decision was properly made in accordance with WCB Policy.
The panel notes the worker was provided with 26 weeks job search assistance and was paid wage loss benefits during this time. The panel has concerns that the worker did not fully participate in the job search. He made a limited number of in-person visits to employers, rather, he applied for jobs on-line. He also repeatedly advised the WCB that he could not work. The panel finds that the worker was employable at $400.00 per week and that due to self-imposed barriers was unable to secure employment.
Finally, the worker asked for another MRI of his right shoulder. On April 20, 2011 a WCB medical advisor considered this request and advised that "Further testing as per the question above is unlikely to lead to a different treatment protocol that would lead to material symptom relief and function increase." The panel also notes that the worker's treating physician advised the WCB on February 15, 2012 that "I do not feel that any further imaging could help to guide treatment, and none is planned." The issue of further imaging is a matter for the worker and his physician.
The worker's appeal 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 18th day of April, 2013