The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing decisions made by the Workers Compensation Board ("WCB") that he was capable of participating in vocational rehabilitation and that his permanent restrictions were appropriate. A hearing was held on June 11, 2014 to consider these matters.

Issue

Whether or not the worker's permanent restrictions are appropriate; and

Whether or not the worker's vocational rehabilitation plan is appropriate.

Decision

That the worker's permanent restrictions are appropriate; and

That the worker's vocational rehabilitation plan is appropriate.

Decision: Unanimous

Background

The worker suffered injury to his left shoulder and neck on December 28, 2009 when pulling a hot water tank. Subsequent medical reports showed that the worker was diagnosed with a long thoracic nerve injury and associated scapular winging. In March 2011, it was determined by the WCB that the worker was capable of performing light sedentary work. In May 2011, the worker met with a WCB vocational rehabilitation counsellor ("VRC") to discuss vocational rehabilitation planning.

On September 7, 2011, the worker underwent a Functional Capacity Evaluation (FCE) and the file information indicated that the results represented the worker's minimal physical abilities.

On September 29, 2011, the worker advised the WCB that he was taking a home study course online about computers. The worker indicated that he took breaks and would lie down on the couch because of sitting intolerances.

In November 2011, videotape surveillance was taken of the worker's activities.

On November 2, 2011, the treating physician reported that the worker could not lift anything with his left upper limb due to pain localized to his thoracic spine, left shoulder and scapula. He noted that the worker wore a scapular stabilizing brace and demonstrated a winged scapula on shoulder extension.

A WCB medical advisor reviewed the videotape surveillance on December 7, 2011 and stated:

"..the claimant is able to sit for prolonged periods of time, he obviously has no difficulty with ability in concentrating and being in charge of a vehicle. He has no difficulty with range of movement of the left shoulder and forearm and hand. The claimant was also noted to be able to rotate his neck with satisfactory movements in order to have the ability to drive. The claimant therefore has no specific restrictions at this time in relationship to sitting, to spending periods of time in concentrating in a classroom and no difficulty in using the left arm in terms of functional positioning, however no comment can be made on ability to lift weights. The claimant has no restrictions in terms of his neck movements."

In claim notes dated December 19, 2011, the WCB medical advisor outlined the following permanent work restrictions: limit light lifting with the left arm, no weights greater than 15 pounds and to limit repetitive lifting with the left arm.

On December 29, 2011, the WCB advised the worker that vocational rehabilitation efforts would resume in January 2012 and that his failure to participate may result in a suspension of benefits.

From January to October 2012, the worker attended computer upgrading courses.

On February 20, 2013, a WCB orthopedic consultant's medical opinion was that the worker's current symptoms of pain and weakness and deformity of the left shoulder was related to the workplace injury. He noted that surgery was not recommended and that the worker was at MMI (maximum medical improvement). The consultant noted that there did not appear to be medical indications to limit hours of work shifts.

On April 9, 2013, the worker was seen for an assessment at the WCB's Pain Management Unit ("PMU"). Based on the results of this assessment, the PMU consultants concluded that the compensable injury did not prevent the worker from successfully participating in and completing appropriate vocational rehabilitation.

On October 4, 2013, the worker advised the WCB that he was not willing to participate in vocational rehabilitation activities as he was totally disabled and was not able to participate in re-training.

On October 8, 2013, the WCB confirmed to the worker that the restrictions outlined by the WCB orthopedic consultant on February 20, 2013 were considered permanent.

In a memo to file dated October 21, 2013, the vocational rehabilitation consultant ("VRC") noted that the medical information on file now indicated that there was no reason why the worker could not participate in a vocational rehabilitation process on a full time basis. It was felt that the worker was employable in NOC 6623, Other Elemental Sales Occupation based on his Grade 12 (GED) standing and basic computer skills. He also noted that persons with a criminal record can secure and maintain employment in the occupational sections.

By letter dated January 9, 2014, details were provided to the worker regarding NOC 6623. The VRC noted that this occupation was light in nature and some of these jobs included customer service working for trade companies or businesses providing information as needed.

On January 27, 2014, the worker appealed the January 9, 2014 decision to Review Office. The worker indicated that he did not feel physically fit to be in vocational rehabilitation or a return to work program. The worker said that he did not have a shoulder or neck injury, he had long thoracic nerve palsy which led to a winged scapula. He had pain in his mid-upper back and shoulder pain.

On February 13, 2014, the worker was advised that his VR benefits would be suspended as of February 15, 2014 given that he chose not to participate in the VR plan.

On February 18, 2014, Review Office spoke with the worker by phone to discuss his appeal. The worker also asked Review Office to reconsider his permanent restrictions.

On March 26, 2014, Review Office determined that the worker's permanent restrictions were appropriate based on the compensable diagnosis of a long thoracic nerve injury and associated scapular winging. Review Office's decision was based on medical evidence such as the results of Nerve Conduction Studies, the FCE findings, reports from the physical medicine specialist and surveillance of the worker's activities.

In addition, Review Office found that the worker's vocational rehabilitation plan was appropriate. In making this finding, Review Office referred to the worker's pre-injury work experience, the worker's transferable skills and the physical activities associated with NOC 6623. Review Office also referred to the PMU findings that the compensable injury would not prevent the worker from participating and completing vocational rehabilitation. It did not find the worker's criminal record was a barrier in terms of his employability.

On April 8, 2014, the worker appealed Review Office's decision to the Appeal Commission and an oral hearing was arranged.

Following the hearing, the appeal panel requested additional information which was forwarded to the worker for comment. On July 17, 2014, the panel met to discuss the case and rendered its decision.

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.

This case deals with the appropriateness of restrictions arising from a workplace injury and the appropriateness of the worker's vocational rehabilitation plan.

Issue 1: Appropriateness of Permanent Restrictions

Subsection 60(1) of the Act provides the WCB with the exclusive jurisdiction to determine all matters arising under the Act. This includes the assessment of restrictions.

When a worker is injured, the WCB assesses the worker's injury to determine whether restrictions need to be placed on the worker's activities. This is required when a worker is considered fit to return to work or is looking for employment. Restrictions are based on medical information and can be temporary or permanent.

Issue 2: Appropriateness of Vocational Rehabilitation Plan

Pursuant to subsection 27(20) of 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 under subsection 27(20). 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 was accompanied to the hearing by his daughter. He explained his reason for appealing and answered questions from the panel.

The worker expressed concern that the WCB "started to portray a picture of me as a being a kind of dishonest guy." He said it was based on video surveillance that the WCB performed in 2011 and 2013. He referred to certain scenes and said that the WCB is misrepresenting and exaggerating what the videos show. The worker also said the WCB used the Functional Capacity Evaluation results to discredit him by indicating that he did not provide full voluntary effort. The worker was also critical of the observations made by the WCB Pain Management Unit at his interview with them.

Issue 1: Whether the worker's permanent restrictions are appropriate.

The worker told the panel that he is not able to work and that the restrictions must be amended to recognize this fact. He asked that the restrictions include a prohibition on sitting for extended periods of time.

The worker said that sitting causes severe pain in his mid back area and as a result he must lay flat on his back. He noted that he first raised a concern about sitting in 2009. He said there are times that he spends most of the day "flat out on my back." He noted that while he can drive, he does not drive long distances or sit in a vehicle for long periods of time. He also advised that he gets tired when he is up too long. He said that if the pain issue can be addressed and he can tolerate sitting, he could then apply for work.

The worker advised that he is not receiving treatment for his condition. He said that he wears a brace to keep his scapula in place. The brace does not eliminate the pain but does reduce it.

He advised that as a result of the injury he is no longer gardening, biking, golfing, and swimming.

The worker advised that he can walk for two hours but then needs to sit down. He said he walks very slowly. He said that he is able to stand for an hour but is constantly stretching his back. He said he is "better with motion."

The worker agreed with the ten pound limitation on lifting and carrying.

The worker noted that a WCB medical advisor deemed him totally disabled and the WCB then disregarded this opinion.

Issue 2: Whether the worker's vocational rehabilitation plan is appropriate.

The worker identified several issues that prevent him from working, including:

• an initial delay in treating his injury, neglect by the WCB, the WCB cutting off his physiotherapy treatment, and a delay getting a proper fitting brace
• he has not properly healed
• his pain issue has not been addressed
• the WCB has unreasonable expectations of his ability to get and remain employed
• discrimination by medical profession; he is currently without a family physician and is unable to find a replacement
• he is not bondable because he has a criminal record and is waiting for his pardon

He identified other concerns that prevent him from returning to work, including:

• he can't sit for prolonged periods
• he types with one hand and is not proficient on a computer
• he has never worked in sales but has always worked in labour positions.
• he has severe pain
• he has trouble dealing with people so can't work in a field where he has to deal with people
• he is not patient with subordinates and cannot work in a supervisory position
• he can't work in the retail field because of his criminal record

The worker acknowledged that he did not attempt the vocational rehabilitation plan.

When asked about possible jobs the worker said that he could work at something really light with no lifting. The worker said that he might be able to work as a parking ticket/meter person where there are no physical demands, you can take your time and can sit down if needed. He did not think he could work as a water or gas meter reader because of the kneeling and squatting. He thought he might be able to work as a gas inspector as it does not involve the bending and crawling. He also identified security work in institutions and driving a food cart at a hospital.

With respect to medical treatment, the worker advised that he is not currently receiving treatment. While he has not had physiotherapy treatment since 2010, he recently attended a physiotherapist. He had asked the physiotherapist for a note but he could not afford the cost of the note. He said the physiotherapist gave him home exercises which he performs.

The worker also recently saw an occupational health clinic physician. He said that the physician showed him exercises to do and is referring him to a specialist. He understands that the treatment may include injections.

Employer's Position

The employer did not participate in the hearing.

Analysis

Issue 1: Whether the worker's permanent restrictions are appropriate.

In this case, the worker is appealing the restrictions that have been identified by the WCB with respect to his 2009 injury. He argues that the restrictions are not sufficient and should be increased. He believes he is not currently employable and that the current restrictions do not recognize his current condition. He has asked that the restrictions be amended to recognize that he cannot sit for extended periods of time beyond 2 hours. He believes that with his restrictions and his pain condition he is not currently fit to return to work. For the worker's appeal to succeed, the panel must find that the restrictions arising from this compensable injury are not appropriate. The panel was not able to make this finding.

The panel notes that a WCB medical advisor reviewed the worker's file and addressed the issue of appropriate restrictions. The medical advisor concluded that the worker was at maximum medical improvement (MMI). He recommended the restrictions noted below and commented that "Within such restrictions, there do not appear to be medical indications to limit hours of work shifts."

The worker's current permanent restrictions are:

• No lifting and carrying, pushing or pulling, more than 10 lbs. with the left upper limb.
• No use of the left upper limb in a position unsupported away from the side of the body.

The panel has also considered a recent report by an occupational health physician and notes that the report does not support any additional restrictions being added to those already set out, particularly in relation to sitting.

The panel therefore finds, on a balance of probabilities, that the worker's identified restrictions are appropriate.

The panel notes the worker's evidence, in response to questions, that he is able to sit for 2 hours and walk for 2 hours. The panel observed that the worker was able to sit for more than two hours at the hearing but acknowledges that the worker said he had some discomfort. The panel also notes that he was also able to sit for greater than 2 hours when he met with the WCB Pain Management Unit. The worker advised that he might be able to stand for an hour but prefers to be moving. He said that he was better in motion than standing still.

The panel notes that the worker was seen by numerous medical professionals including a neurologist and surgeon. Specifically the panel attaches weight to the following:

• June 4, 2013 report from a neurologist who conducted nerve conductions studies and concluded that the worker is unable to tolerate any heavy work with his left arm. The panel finds that the restrictions address this concern by limiting use and movement of the left arm.
• January 2013 report from an orthopedic surgeon which indicated that the worker is not a good candidate for surgery and should be retrained for sedentary work. The panel finds that the restrictions address this concern.

The worker's appeal of this issue is dismissed.

2. Whether the worker's vocational rehabilitation plan is appropriate.

The worker stated that the vocational rehabilitation plan is not appropriate. He also disagreed with the selection of NOC 6623 as an appropriate vocational goal. For the worker's appeal to be successful, the panel must find that the worker is not able participate in the VR plan and that he is not capable of working in a job with NOC 6623. The panel was not able to make this finding.

The panel finds that the worker meets physical requirements of jobs in this code and has the skills to perform jobs in this code.

The worker cited several reasons as to why the vocational rehabilitation plan is not appropriate including:

• he can't sit for prolonged times
• he types with one hand and is not proficient on a computer
• he has never worked in sales but has always worked in labour positions.
• he has severe pain
• he has trouble dealing with people so can't work in a field where he has to deal with people
• he is not patient with subordinates and cannot work in a supervisory position
• he can't work in the retail field because of his criminal record

The panel notes that the worker did not attempt the plan and attaches limited weight to the worker's assertion that the plan was not appropriate.

The panel has reviewed the plan and notes that:

• the plan is mainly sedentary and is consistent with the worker's restrictions
• there is a positive and active labour market for NOC 6623

Regarding the worker's ability to participate in the plan the panel accepts the April 24, 2013 Summary, Comments and Decisions of the Pain Management Unit assessment that noted "Based on PMU assessment, there does not appear to be a reason related to the compensable injury that would prevent the claimant from successfully participating in and completing appropriate vocational rehabilitation."

The panel considered the Vocation/Educational Assessment prepared by the WCB Vocational Rehabilitation Consultant. The panel notes that the assessment identified many positive skills and aptitudes, including:

• the worker's word knowledge is well above the average range.
• the worker's oral communication is strong.
• the worker has strong employment skills and a demonstrated ability to learn skills and develop competencies in the workplace.

The panel finds, on a balance of probabilities, that the vocational rehabilitation plan is appropriate and that NOC 6623 is appropriate. The panel notes this decision is made within the prescribed framework of the vocational rehabilitation policy.

The worker's appeal on this issue 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 29th day of July, 2014