The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decisions made by the Workers Compensation Board ("WCB") that his current medical conditions, other than his wrist condition, were unrelated to his compensable injury and that he was capable of obtaining employment. A hearing was held on November 5, 2014 to consider these matters.

Issue

Whether or not, in addition to the left wrist condition, responsibility should be accepted for the worker's other complaints in relation to the July 30, 2003 compensable injury; and

Whether or not the established deemed earning capacity is appropriate.

Decision

That, in addition to the left wrist condition, responsibility should not be accepted for the worker's other complaints in relation to the July 30, 2003 compensable injury; and

That the established deemed earning capacity is appropriate.

Decision: Unanimous

Background

In August 2003, the worker filed a claim with the WCB for injuries to his back, left wrist and legs which he related to a work accident occurring on July 30, 2003. The worker described the accident as follows to the WCB's call centre:

Inside the grinder - the grinder is about 4 feet high and I have to crawl into the grinder with hoses and wear a wet suit. The wet suit was ripped up on the right side of the leg and when I climbed into the grinder I was half way in - my pants got caught on one of the grinder wheels, the machine was turned off. I was in a crouched position and my pant leg got caught and I fell backwards and I hit the grinder and fell inside the machine. I had a hard hat on and the hat fell off when I fell down and hit my head and got a concussion, having problems with mostly right ear for his hearing. When someone talks most of the sound is muffled and I get double and blurred vision and cannot drive at the present. Can't make out letters when I read. I was black and blue most of my body from this. My legs still have some bruises on them.

When the accident occurred, the worker indicated that it was his first day on the job and the accident happened 3 hours into his shift.

On September 12, 2003, the worker provided the WCB with further information related to the July 30 accident. The worker indicated that when he entered the machine his hose got caught on a clamp. The worker yanked the hose and snapped it and pulled it to come loose. The power for the machine was off. His pants caught on one of the blades. He fell backwards from a crouched position. He had his left hand reached out behind him after dropping the hose. He hit his head on the rail and his hard hat fell off. He hit his back on the rails as well. The worker said it was very dangerous inside the machine as the floors were slippery due to the hot water in the machine. There was fat and blood in the machine. The worker indicated that he crawled out and told his supervisor what happened. The worker indicated that he was told to go back to work and he did so for another 4.5 hours. The worker indicated that he did not know the extent of his injuries. He thought he sprained his wrist and bruised his back. As he worked, the pain continued to get worse.

On August 5, 2003, the worker underwent x-rays of the lumbosacral spine which revealed a compressed fracture of the T12 vertebral body. The left hand and wrist showed: "There is a congenital fusion of the trapezium with the scaphoid. A small separated ossicle which appears to be the lower pole of the scaphoid is present forming a pseudojoint with the rest of the scaphoid, and associated sclerosis and irregularity. No evidence of recent abnormality."

The WCB obtained medical information from the worker's treating physician as well as information from a hospital emergency facility.

On September 17, 2003, the WCB accepted the worker's claim for a back injury (T12 fracture) and wage loss benefits were paid. The worker was also advised that his case would be referred to the WCB's case management department for further consideration regarding his left wrist difficulties. The decision also indicated that based on a September 12, 2003 conversation with the worker, the worker indicated that his head injury had resolved and therefore no further action would be taken by the WCB in that regard.

On October 28, 2003, the worker's legal representative indicated that the worker was going to have a CT scan on October 24, 2003 due to his ongoing problem with headaches. In a hand-written note on a memo to file dated October 29, 2003, it was documented that: "Spoke to clmt, he said he did not go for his CT scan. I enquired as to why he did not go, he said, his headaches have gone away, and he didn't feel he needed it."

In January 2004, the worker was seen by an orthopedic specialist for left wrist pain and the worker was diagnosed with an aggravation of his left scaphoid non-union.

In a doctor's progress report dated April 30, 2004, it was noted that the worker's left hand was unchanged and that surgery was scheduled for June 7. The worker also complained of ongoing daily headaches and blurred vision. His back had normal range of movement.

A CT brain report dated June 1, 2004, indicated "No significant intra or extraaxial abnormality is identified."

On June 7, 2004, the worker underwent to surgery to his left wrist which was accepted as a WCB responsibility.

In a memo to file dated September 8, 2004, the WCB case manager documented a phone conversation he had with the worker. The worker indicated that his hand condition had not improved despite surgery. He also mentioned that his back was sore and painful and that nothing had been done with his back as the doctors were more concerned about his left hand. The worker noted that his lower back and tailbone area were painful. The worker claimed that he injured his left knee at the time of his compensable injury. He noted that his knee locks when kneeling and it was painful on the lateral side.

On November 1 and 3, 2004, a WCB medical advisor reviewed the claim file with respect to the worker's complaints of headaches, dizziness and back problems. The medical advisor indicated that there was no evidence on file to suggest head injury symptoms. With respect to the worker's left knee and back symptoms, it was stated "No indication on file that back support indicated and Lt knee problems unrelated to C.I. [compensable injury] - no previous mention of knee problems related to C.I."

In a report dated November 12, 2004, the treating surgeon reported that the worker was last seen on September 16, 2004 and that he still experienced ongoing wrist pain with no improvement from surgery. The surgeon indicated that he referred the worker to the pain clinic because of a possible reflex sympathetic dystrophy (RSD); however, a note from the pain clinic indicated that the worker did not wish to attend for treatment. Regarding the worker's functional abilities, it was felt that the worker would have a lot of difficulty using his left hand for any type of gripping, twisting or repetitive activity and that this may be a permanent restriction.

In a note to file dated November 30, 2004, the WCB case manager documented that she spoke with the worker's treating physiotherapist who stated that the worker did not complain about his knee, hands, head, etc. while undergoing physiotherapy.

In a report dated January 4, 2005, the treating physician noted that the worker had been seen on four occasions since his surgery and on each occasion, the worker complained of constant pain in his wrist where surgery had been performed. The worker complained of headaches, low back pain, and left knee pain which he related to his compensable injury. The physician noted that the worker walked normally and had a normal range of motion of his back and as such, these did not seem to be limiting factors.

On February 7, 2005, the worker was at the WCB's offices for a call-in examination. The medical advisor outlined his examination findings and stated:

Based on the inconsistent findings, the abnormal pain behaviour and the non-anatomic findings regarding the low back, I am unable to relate his current low back symptoms with the diagnosis originally accepted as related to the compensable injury, that is aggravation of the pre-existing un-united left scaphoid fracture and the compression fracture of the T12 vertebral body. The claimant's current symptoms appear to be at a level lower than the T12 vertebral body and he was non-tender and asymptomatic in this T12 area.

Of some concern, he also appeared to have some possible congenital abnormalities....It is recommended that the claimant follow-up with [family physician] for further evaluation of these possible problems; however, these would be unrelated to the compensable injury.

The medical advisor outlined work restrictions related to the worker's left wrist which were as follows:

• no lifting more than 10 pounds maximum.
• no repetitive gripping, flexion, extension or push/pull activities with the left hand and wrist.

In a decision dated May 13, 2005, the worker was advised by his WCB case manager that the WCB would continue to accept responsibility for his left wrist condition only and that no responsibility would be accepted for his back, left knee or head injury symptoms based on the following factors:

• the April 30, 2004 report from the family physician indicated that the worker's back symptoms had resolved.
• the November 1, 2004 WCB medical advisor opinion that there was no evidence to relate any left knee symptoms to the compensable injury; and
• the November 3, 2004 WCB medical advisor opinion that there was no evidence to support head injury symptoms related to the compensable injury.

The WCB case manager advised the worker that his file would be referred to the WCB's vocational rehabilitation branch as the accident employer was unable to provide him with alternate duties that met his compensable left wrist restrictions.

File records showed that the WCB developed an Individualized Written Rehabilitation Plan ("IWRP") for the worker under National Occupational Classification ("NOC") 6421, Retail Sales & Related Clerks. The start date of the plan was August 29, 2005 and was to end on January 6, 2006.

In a report to the WCB case manager dated September 1, 2005, the family physician indicated that he reviewed the worker's chart regarding his pelvic/tailbone condition. He noted that the worker originally complained of lumbar back pain after his injury of July 30, 2003 and that he was not aware of back complaints prior to the injury date. There were several months in 2004 where the worker did not complain of the back pain in question. The physician also stated:

Of note, the patient did have a T12 compression fracture on x-ray. This fracture, however, does not coincide with where he has described his back pain. Regardless, any such compression fracture would have healed over a period of one to two months from the injury date. As well, I cannot explain how he could have sustained such a compression fracture from the mechanism of injury described. Aside from this compression fracture, there are no other abnormalities displayed on his back x-rays. The only non-compensable factor that may impede him from proceeding with vocational rehabilitation may be a certain element of depression as well as his ongoing focus on disability and resulting compensation.

On August 24, 2005, the worker was seen by a clinical psychologist for an initial assessment. In his report to the WCB dated November 20, 2005, the specialist noted that the worker presented as a depressed individual who was experiencing a significant degree of depression and experienced pain. The worker also expressed views that he had cracks in many of the bones on the left side of his body as a result of his compensable injury. The clinical psychologist felt that the worker may be experiencing both a depressive disorder as well as delusional thinking. The clinical psychologist indicated "I would place his current Global Assessment of Functioning at approximately 35, given the symptoms noted above. I do not view him as currently being able to obtain and maintain competitive employment due to the mental status issues of suicidal impulses and disorders in thinking. I do not believe he has the level of psychological functioning to actively undertake an effective job search, nor present to the public in a satisfactory manner and relate to it effectively in a retail job situation. I believe there are associated problems with attention, concentration, sustained effort and chronic pain, as well."

On November 29, 2005, the worker was seen by a WCB psychological advisor at a call-in assessment. The specialist stated: "...saw him as suffering from depressive disturbance associated with the change in his functioning, his perception, the change in his social and recreational activity, his athletic activity, and his earning potential and, this is in the context of what appears to be low self-esteem, poor coping skills, idiosyncratic ideation, some self-aggrandizing that is ego defensive. He is having difficulty coping with the fact that he will not be able to engage in the physical activity that he reports he has engaged in previously...He seems to have mild to moderate level of depression, however there is no psychotic features I can determine. There are cluster A and B personality features..."

In a report dated January 23, 2006, the clinical psychologist stated: "In my professional view, [the worker] is not currently able to attain and maintain competitive employment due to his deficits in cognitive and academic functioning, and his disturbances in thought...In my professional opinion, this drop in functioning is likely to be long-term or permanent."

In a memorandum to file dated February 14, 2006, the WCB case manager stated the following with respect to the worker's involvement with vocational rehabilitation:

[The worker] has a Grade XII education including training in auto repairs, metal and carpentry. He also received job search training through WCB. He has owned his business in renovations, worked as a labourer in drycleaning businesses and managerial work.

[The worker] has received in-depth job search from October 17, 2005. This was extended another 6 weeks to February 18, 2006 to assist him through a mild to moderate level of depression. [ES] arranged for an interview at ... for a FT Sales and Service Desk Association position on October 17, 2005. [The worker] showed neither an interest nor disinterest in filling the position. Regrettably, [the worker] was not successful in securing this or any other positions during the Job Search program. There have been many documented events where the claimant initially refused to participate then changed his mind when advised of the potential outcome of suspending his benefits. He has recently applied for CPP disability benefits claiming he was unemployable. Please refer to the VR summary and the ES22 regarding job search leads.

Deem Recommendation:

It is my opinion that [the worker] would be capable of earning a starting wage of $290/week...on February 19, 2006.

On February 22, 2006, the worker's legal representative noted that there was definitely medical evidence on file that the worker was incapable of working given the findings outlined on January 16, 2006 by the clinical psychologist and he asked the WCB to reinstate the worker's benefits.

In a decision dated February 24, 2006, the WCB case manager determined that there was insufficient medical information to support the clinical psychologist's statement that the worker was competitively unable to secure and maintain employment. The case manager noted that an indepth neuropsychological assessment with validity measurements had been done and it was concluded that the cognitive results were not seen to be valid in total due to evidence of suboptimum effort. The neuropsychologist was of the opinion that the worker was grieving the loss of his sense of physical stature. He did not feel the worker was delusional but that there were strong personality/coping issues. The case manager also referred to other file evidence to support that there was insufficient medical information to support the opinion that the worker was unable to secure and retain an entry level position due to cognitive problems related to the workplace injury and that the deem should remain in effect.

In March 2007, the WCB case manager wrote the worker to acknowledge that he reviewed the medical information submitted by the worker and that there would be no basis to change the WCB adjudicative decision of May 13, 2005.

On May 19, 2010, the WCB case manager advised the worker that he considered the list of symptoms outlined in a document dated March 26, 2010 which the worker related to his workplace injury. The letter stated:

...with regards to your left ankle, fracture talus, chronic pain, T11-12 vertebrae fracture, lumbosacral spine L4-5 (symptoms), rash over your feet and head, chronic airway disease, arthritis of the left knee, radiation poisoning, hearing problems and depression/stress; I am unable to accept any responsibility. I am unable to relate these conditions to your workplace injury on July 30, 2003. As such, no further wage loss benefits beyond the partial payments, treatments and/or aids will be paid.

On October 13, 2011, Review Office received an appeal from the worker regarding the WCB's decision to only accept responsibility for his left wrist injury and the WCB decision to establish a deemed earning capacity.

On December 12, 2011, Review Office determined that responsibility should only be accepted for the worker's left wrist condition. Review Office stated that there was insufficient evidence on file to support a causal relationship between the worker's left knee pain, left ankle pain, low back pain, chronic airway disease, hearing problems, deteriorating eyesight, stress, radiation poisoning or rash and the 2003 workplace accident. Review Office indicated that it placed weight on the medical reports provided by the worker's family physician as he was the treating physician following the July 30, 2003 workplace accident. Review Office also relied on reports provided by an orthopedic specialist as he outlined the clinical findings to support his expressed opinions. Review Office noted:

• there was no evidence that the worker sustained a left knee injury or a left ankle injury at the time of the workplace accident.
• other than the T12 compression, there was no evidence that the worker sustained any other back injuries.
• the February 2005 WCB medical advisor opinion that he was unable to relate the worker's current low back symptoms to the T12 compression fracture.
• the orthopedic specialist's comments that there was no pathology of the lumbar spine, sacrum or coccyx.
• the worker reported hitting his head at the time of the accident. However there were no reported findings of a head or brain injury.
• the worker attended a clinical psychologist in 2005 but discontinued his anti-depressant medication in January 2006.
• there was no medical evidence on file that the worker was currently experiencing stress directly related to the 2003 workplace accident.
• there was no medical evidence supporting a causal relationship between the worker's hearing and vision problems and the 2003 workplace accident.
• no cognitive deficiencies were documented during the vocational rehabilitation process.
• there was no documentation on file regarding the worker's chronic airway disease, radiation poisoning or rash and therefore there was no evidence supporting a causal relationship between these conditions and the 2003 workplace accident.
• no weight was placed to the medical reports on file that the worker submitted from a new physician as the physician provided an accident description that was not consistent with what was provided to the WCB in 2003. The physician's undated report did not provide any clinical findings to support a causal relationship between the worker's conditions, other than the T12 fracture and the left wrist condition and the workplace accident.

Review Office also determined that the established earning capacity was correct. Review Office found that the permanent restrictions imposed on the worker's left wrist were appropriate and given the compensable restrictions, it found that the worker was physically capable of performing the duties of NOC 6421.

On August 19, 2014, legal counsel for the worker appealed Review Office's decision to the Appeal Commission and an oral hearing was arranged.

Reasons

Applicable Legislation and Policy

The worker has an accepted claim. He is appealing the Review Office decision that certain injuries are not related to the compensable workplace accident. He is also appealing the appropriateness of the established deemed earning capacity.

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(2) of the Act, a worker who is injured in an accident (as defined under the Act) is entitled to wage loss benefits for the loss of earning capacity resulting from the accident.

Pursuant to subsection 27(20) of the Act, the WCB may provide academic, vocational and rehabilitative assistance to injured workers. Subsection 27(20) provides:

Academic, vocational and rehabilitative assistance

27(20) The board may make such expenditures from the accident fund as it considers necessary or advisable to provide academic or vocational training, or rehabilitative or other assistance to a worker for such period of time as the board determines where, as a result of an accident, the worker:

(a) could, in the opinion of the board, experience a long-term loss of earning capacity

(b) requires assistance to reduce or remove the effect of a handicap resulting from the injury; or

(c) requires assistance in the activities of daily living.

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.”

WCB Board Policy 44.80.30.20 (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 the amount the worker is determined or deemed to be capable of earning after the accident. 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 44.10.80.40, Further Injuries Subsequent to a Compensable Injury (the "Further Injuries Policy") provides that the WCB will only accept responsibility for the effects of that injury where it is causally related to the original injury.

Worker's Position

The worker was represented by legal counsel. The worker and his wife answered questions posed by counsel and the panel.

Issue 1. Whether or not, in addition to the left wrist condition, responsibility should be accepted for the worker's other complaints in relation to the July 30, 2003 compensable injury?

The worker's representative reviewed the various injuries which the worker has attributed to the workplace injury. He advised that the worker is pursuing only the T12-T11 spine injury, head injury, left hand, and depression and stress condition in this appeal.

He also advised that the worker is not pursuing claims for lumbar spine injury, chronic airways disease, radiation poisoning, left ankle and knee difficulties. He said the worker also relates his vision and hearing problems to his head injury.

T12 injury: The worker's representative advised this injury is the worker's main concern. He noted there is no argument about whether he suffered a fracture; rather, the issue is how it affects the worker.

With respect to its impact on the worker, the worker said that every day is the same for him. He cannot sleep due to pain from the injury. A typical day includes: getting up and watching TV, an inability to do anything, constant pain, and massive collapses. His wife said that he has shrunk in stature and is 1 1/2 inches shorter.

The worker's representative reviewed the medical reports and commented that the opinion of the worker's family physician is not valid. He noted the June 2008 report of the orthopedic surgeon which indicated there is definite wedging of the T12 and arthritic change with narrowing of the disc space between C11 and 12. The worker's representative referred to literature regarding the symptoms of a T12-T11 compression fracture, noting that symptoms can include severe pain in the back, legs and arms.

Head injury: The worker's representative submitted that the worker sustained a head injury when he fell at work. He noted that it was initially accepted but found to have resolved. He said that the panel should rely upon the worker's wife's evidence that the worker was more functional before the accident. The worker's representative acknowledged there is no medical evidence to link the worker's symptoms to a head injury.

The worker advised that his vision and hearing have worsened as a result of the injury. The worker advised that he must wear glasses. In answer to a question, he advised that he has never had his vision tested and has never seen an ear, nose and throat specialist (ENT) or audiologist for his hearing.

Left Hand injury: The worker's representative submitted that the worker's left hand condition has been enhanced as a result of the workplace injury. The worker required surgery as a result of the accident.

Depression and stress: The worker's representative submitted that the worker's depression and stress are related to the head injury and/or that the life changes resulting from the accident sent him into depression. He relied upon the opinion of the clinical psychologist. In answer to a question, the worker's representative submitted that even if the depression is not related to the accident, it is a barrier to the worker's re-employment and must be considered in relation to his vocational rehabilitation.

Issue 2: Whether the established deemed earning capacity is appropriate?

The worker's representative submitted that the worker's deteriorating cognitive function is related to hitting his head in the workplace injury. He acknowledged that a CT scan showed no abnormality. He submitted further that even if the head injury is not related to the accident, the worker is not capable of participating in the NOC which the WCB selected. He said that the vocational goal is not realistic as it does not take into account the worker's cognitive ability.

He asked the panel to give weight to the January 23, 2006 opinion of the clinical psychologist who opined that the worker "...is not currently able to attain and maintain competitive employment due to his deficits in cognitive and academic functioning, and his disturbances in thought. As far as I am able to ascertain from his work history, his capacity to sustain competitive employment does appear to have dropped over the past few years, for whatever reason or reasons."

He also asked the panel not to give weight to the opinions of consulting neuropsychologist and the WCB psychological advisor.

In answer to questions, the worker advised that he was operating a successful business before he was injured. He said he was a contractor doing residential renovation, but that he could not work as a contractor after the injury.

The worker's representative asked the worker's wife if she has noticed changes in the worker after the accident. She advised:

• the worker owned his own business before the accident and now can't physically do things.
• the worker is now more argumentative.
• the worker is embarrassed about the injury and physical limitations.
• the worker has always had beliefs in unusual things, such as ghosts and ghost hunters.
  

The worker's representative was asked to comment on the WCB's duty to accommodate conditions which are not related to the workplace injury. The worker's representative submitted that when the worker is in the vocational rehabilitation process, and an intervening non-compensable event arises, the WCB is responsible.

In the Appeal of Claim form, the worker's representative submitted that "As a direct result of the workplace accident, the worker is both physically and cognitively challenged and unable to participate in the workforce and is totally disabled from doing so."

The worker's representative said the evidence establishes that the worker is not employable, the NOC was not appropriate and that the deemed earning capacity was not appropriate.

Analysis

Issue 1. Whether or not, in addition to the left wrist condition, responsibility should be accepted for the worker's other complaints in relation to the July 30, 2003 compensable injury?

At the hearing, the worker's advocate identified four injuries which the worker believes have resulted from the workplace injury, specifically:

- T12 injury

- head injury with an associated vision and hearing loss

- left hand injury

- depression and stress as a result of the injury

T12 injury: The panel finds that this injury had resolved on a functional level. In making this finding, the panel attaches significant weight to the following:

• March 2004 report from the treating physician that the worker's back range of motion was normal and the September 2005 report from the treating physician which indicates that the worker had a T12 compression fracture but his symptoms relate to a different area of the back.
• February 7, 2005 call-in examination. The notes indicate that the medical advisor examined the worker and was unable to relate his low back symptoms to the accepted T12 fracture. He found the worker's symptoms were at a lower level than the T12 vertebral body and that he was non-tender and asymptomatic in his T12 area.      
• July 21, 2008 report from orthopedic specialist that the worker is capable of light employment although he would have trouble using his left arm and lifting due to the T12 compression fracture. He also reported that the worker had no pathology of the lumbar spine, sacrum or coccyx and he could see no abnormality of his left knee.

  The panel notes that neither the orthopedic specialist nor the WCB medical advisor noted any pain generators in the T12 area.

  Head injury: Regarding the worker's complaint of a head injury, the panel notes:

  • there was no mention of a head injury or loss of consciousness in the early reports from the hospital and treating physician.
  • the June 1, 2004 CT Scan of the brain revealed no significant intra or extraaxial abnormality
  • the March 10, 2006 report from a clinical neuropsychologist concludes that "cannot find evidence of significant brain injury." The report notes that it is possible that he struck his head but that there "is an absence of confirming evidence that it would be serious enough to have had permanent sequelae."
  • when questioned at the hearing about the worker's condition before and after the accident, the worker's wife did not identify significant differences in his mental state or function.

  The panel accepts that the worker bumped his head in the accident but finds, on a balance of probabilities, that the worker did not sustain a head injury or an associated hearing and vision loss in the workplace accident.

  The panel notes the worker's representative's concern that the evidence of the worker and his wife at the hearing differs from the evidence they had provided to him prior to the hearing. The panel notes that the evidence provided at the hearing is consistent with the evidence on the worker's file. The panel is unable to attach weight to the evidence provided by the worker's representative which is not consistent with the evidence of the worker and his wife.

  Left hand injury: In the written Appeal of Claim form, the worker's representative submitted that the worker's impairment award for his left wrist does not reflect the reality with regards to loss of function. The issue before the panel does not include a review of the PPI rating. However, the panel notes that the worker has been assessed a permanent partial impairment (PPI) of 4.5% for the left thumb and wrist. This rating includes a reduction due to the worker's significant pre-existing condition. This injury site is an accepted compensable injury which is not part of this appeal.

  Depression and Stress: The worker's representative submitted that the worker's depression and stress were caused by his workplace accident and are compensable. It was submitted that the condition arose from either the worker's head injury or the life changes caused by the July 2003 workplace accident. As noted above, the panel found that the worker did not sustain a head injury in his workplace accident and therefore the depression and stress are not a sequela of a compensable head injury.

  The panel finds, on a balance of probabilities, that the worker's depression and stress are not related to the workplace injury. The panel notes the WCB psychological consultant's opinion based on the November 29, 2005 Psychological Call-In Examination. The consultant found that the worker suffered from a mild to moderate level of depression, but attributes this condition to the worker's change in functioning, his perception, the change in his social and recreational activity, his athletic activity and his earning potential and that this is in the context of "low self-esteem, poor coping skills, idiosyncratic ideation and some self-aggrandizing that is ego defensive." The panel accepts the conclusions reached by the WCB psychological consultant, based on his personal examination, which do not establish a causal relationship to the original compensable injury.

  The panel also notes that the clinical neuropsychologist commented that "Most of the depressive ideation however appeared to be focused more upon family and neighborhood issues, rather than upon employment."

  The panel finds that worker's appeal of Issue 1 is dismissed.

  Issue 2: Whether the established deemed earning capacity is appropriate?

  The second issue before the panel is whether or not a deemed post-accident earning capacity is appropriate. In order to decide the appeal, the panel must consider the evidence regarding the worker’s post-accident condition and abilities, and then determine whether the worker was capable of earning this amount or whether his compensable injury prevented him from achieving this level of earning capacity.

  After considering the evidence on file and the testimony given at the oral hearing, the panel finds that the worker was capable of working in NOC 6421 - Retail Sales and that the deemed earning capacity is correct.

  The panel notes that the worker has permanent restrictions with respect to his left wrist injury only. The panel considered the restrictions and finds the restrictions to be appropriate. The panel notes that NOC 6421 includes many jobs which can be performed within these restrictions.

  The worker's representative submitted that the worker was not physically capable of any employment due to his workplace injuries. The panel finds that the worker was physically capable of employment within NOC 6421 at the time the vocational rehabilitation plan was in place. With respect to the worker's physical ability to work, the panel relies upon the opinions of the family physician who treated the worker in 2003-2005, the orthopedic specialist who saw the worker in 2008-2009, and the above noted restrictions, as noted earlier in this decision.

  The panel notes the worker's evidence that he was operating a home repair/improvement/landscaping business at the time of the workplace accident and that it was a successful business. He said that he dealt with customer relations and considered himself to be good at it. The panel finds that the worker's evidence confirms that employment in NOC 6421 was a reasonable goal.

  With respect to the worker's cognitive abilities, the panel accepts the evidence of the clinical neuropsychologist who performed a neuropsychological assessment on the worker in February 2006. The neuropsychologist advised that he could not find typical "cognitive" symptoms such as retrograde amnesia. He also noted that he could not find reports of cognitive difficulties until they were mentioned by the treating clinical psychologist in January 2006. He noted that the longer the time period after an injury, the more difficult it is to link a symptom to an accident. With respect to cognitive deficits on testing, the neuropsychologist noted that when he performed validity tests during the assessment, the conclusion is different than that of the treating clinical psychologist.

  Based on the evidence, the panel finds that the workplace injury did not result in a cognitive deficit. The panel relies on the evidence from the hearing that the worker's psychological condition did not change in the period immediately before and after the 2003 injury. This is confirmed by the assessment undertaken by the WCB psychology consultant that the condition was separate from and well after the accident date (it was first identified in early 2006). The panel notes that the WCB, under its Further Injuries Policy, is only responsible for further injuries where they are causally connected to the compensable injury. In this regard, the panel does not accept the assertion of the worker's legal counsel that the WCB is responsible for the consequences of all subsequent non-compensable conditions (and associated medical restrictions that may arise.)

  The worker's appeal of Issue 2 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 12th day of December, 2014