Decision #81/17 - Type: Workers Compensation
Preamble
The worker is appealing the decision made by the Workers Compensation Board ("WCB") regarding his post-accident deemed earning capacity that was implemented on March 16, 2017. A hearing was held on April 13, 2017 to consider the worker's appeal.
Issue
Whether or not a post-accident deemed earning capacity of $559.12 per week should have been implemented effective March 16, 2013.
Decision
That a post-accident deemed earning capacity of $559.12 per week should not have been implemented effective March 16, 2013.
Background
The worker injured his non-dominant left shoulder in a work-related accident on September 16, 2010. His claim for compensation was accepted, and benefits and services were paid to the worker. The diagnosis accepted as compensable was a full thickness tear of the supraspinatus muscle, partial tearing of the infraspinatus muscle, medial dislocation of the long head of the biceps with associated high-grade tearing of the subscapularis tendon (left shoulder).
In April 2012, the case was referred to the WCB's vocational rehabilitation branch as the accident employer was unable to accommodate the worker with a position that met his permanent compensable workplace restrictions.
In a memorandum to file dated May 14, 2012, a WCB Vocational Rehabilitation Consultant ("VRC") stated:
…it is my opinion that [worker] may be capable of securing alternate employment within NOC 7411 - truck driver. As documented, [worker] operated a cement/concrete truck which is typically considered to be the most demanding of the truck driving jobs. Moreover, as documented, [worker] has limited education and transferable skills and it would be my opinion that the most prudent vocational rehabilitation path would be to keep him in the occupational cluster for NOC 7411.
…[Worker] will be referred…for a 10-hour refresher course…They will develop a plan with the view to assist him in transitioning into long-haul and/or any other trucking jobs within his capabilities.
On July 11, 2012, the worker advised his VRC that he was doing well in his driving refresher course and that he wanted to investigate driving a gravel truck. The worker also said he was "compelled to return to employment too soon following his surgery and according to this, has had adverse effects on his shoulder…he has had residual effects of emotional and psychological distress as a result of this."
At the request of the VRC, an earning capacity assessment was carried out on August 7, 2012. It was concluded that:
• There is a job market for NOC code 7411 for Winnipeg, Manitoba and surrounding areas.
• The earning capacity for this NOC is $559.12 per week to a maximum of $743.49 per week.
A vocational rehabilitation plan was written for the worker with the occupational goal of NOC 7411, Truck Driver which would provide him with 26 weeks of job search assistance. The plan was to start on September 1, 2012 and end on March 2, 2013.
On September 17, 2012, the worker began a training-on-the job position with a small trucking company.
In December 2012, the worker advised his VRC that driving the gravel truck was causing constant pounding on his shoulder and that he was working beyond his restrictions.
In a report dated January 8, 2013, the treating orthopedic surgeon reported that the vibration, jolting and jarring while driving a truck on any kind of road surface aggravated the worker's shoulder to an unacceptable level. In view of how the worker had responded to his cuff tear, the surgeon concurred that staying away from that kind of work was probably best.
On January 18, 2013, a WCB sports medicine advisor stated: "There is no objective medical evidence to support a change in the…restrictions. Body vibration during driving is not a medically accepted mechanism of injury to the rotator cuff."
By letter dated January 18, 2013, the WCB advised the worker that there was no objective medical evidence to support a change to his workplace restrictions and that body vibration during driving was not a medically accepted mechanism of injury to the rotator cuff.
On January 28, 2013, the worker advised his VRC that "all trucking is out" due to the vibration and pounding when driving which aggravated his shoulder.
A Vocational Rehabilitation Deem Summary is on file dated February 6, 2013. It was stated that the worker was considered employable in NOC 7411, and effective March 8, 2013, his benefits would be reduced by the earning capacity for this NOC, which equated to a starting wage of $540 weekly.
Based on a memo to file dated February 15, 2013, it was noted that the worker did not feel that working as a Class I Truck Driver was within his restrictions. The worker said he was open to other work that he felt was within his restrictions, such as gas station attendant or shuttle bus driver.
In a memo to file dated February 25, 2013, a WCB case manager stated:
Worker ceased employment there 3 weeks ago as he found his symptoms of pain in his left shoulder were getting progressively worse and just couldn't do the job anymore. When he started there he thought he would be fine. It (sic) believes it is the uneven roads that cause more of a jarring vibration on his shoulder. The constant bumps move his shoulder up and down. He had a great truck. Was smooth on the hi-way or paved roads and had air ride but as soon as he was on the uneven gravel roads it became very bumpy. He was often on hwy…which was really uneven. In addition to the bumpy roads he also had to climb in and out of the truck and shovel excess gravel out if over the limit. He didn't always have an extra person to do that.
On February 28, 2013, the worker filed an appeal with Review Office regarding the WCB's decision to implement a deem.
On March 4, 2013, the WCB advised the worker that effective March 16, 2013, his weekly wage loss benefits would be reduced by the deemed earning capacity to $352.27.
On April 5, 2013, the worker called his VRC and advised that he had been driving truck and had a huge lump on his neck which he contended was the result of his inability to drive. He added that the WCB forced him to return to trucking.
In a submission to Review Office dated April 26, 2013, the employer's representative responded to the worker's appeal and stated that they believed the worker was capable of working as a Class 1 driver at or close to his pre-accident rate of pay.
On June 26, 2013, Review Office determined that the deem of $559.12 weekly effective March 16, 2013 was correct in all aspects, based on the following findings:
• The fact that the results of a March 21, 2012 Functional Capacity Evaluation were invalid;
• Review Office had not previously encountered a restriction as suggested by the orthopedic surgeon in his report of January 8, 2013 (to avoid vibration);
• The comments made by the WCB sports medicine consultant on January 18, 2013;
• Comments made by the worker on February 25, 2013 regarding the ride quality of trucks on other than rough roads;
• The August 7, 2012 earning capacity analysis and the worker's comparative lack of varied experience as a truck driver.
On December 5, 2016, the worker appealed Review Office's decision to the Appeal Commission and an oral 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 WCB's Board of Directors.
Subsection 4(1) of the Act provides that 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.
Subsections 4(2), 39(1) and 39(2) of the Act provide that wage loss benefits are payable when a compensable injury results in a loss of earning capacity and are paid until such time as the loss of earning capacity ends.
Pursuant to subsection 27(20) of the Act, the WCB may provide academic, vocational, or rehabilitative assistance to injured workers.
WCB Board Policy 43.00, Vocational Rehabilitation (the "VR Policy"), explains the goals and describes the terms and conditions of academic, vocational, and rehabilitative assistance available to a worker. The VR Policy states, in part:
1. 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.
2. The WCB will help the worker as much as possible to be as employable as she or he was before the injury or illness. Once this is done and when necessary, the WCB will provide reasonable assistance to the worker so that she or he actually returns to work. However, services may not always continue until the worker actually returns to work.
WCB Policy 44.80.30.20, Post Accident Earnings - Deemed Earning Capacity (the "Deem Policy") describes when a worker will be deemed capable of earning an amount that he or she is not actually earning and how the deemed earning capacity will be determined. The Deem Policy states, in part:
3. REQUIREMENTS FOR WCB TO DEMONSTRATE DEEMED EARNING CAPACITY:
a. The WCB must demonstrate (through adequate vocational assessment, plan development, and documentation) that the worker is capable of competitively finding, competing for, obtaining, and keeping employment in the occupation or group of occupations on which the earning capacity is based.
b. The WCB must demonstrate that the worker has the physical capacity, education, skills, aptitudes, interests, and personal qualities needed to obtain and keep employment in the occupation or group of occupations in the labour market.
Worker's Position
The worker was assisted by a worker advisor, and was accompanied by his spouse at the hearing. The worker advisor made a presentation on the worker's behalf, and the worker responded to questions from the advisor and the panel.
The worker's position was that he should not have been deemed and is entitled to full wage loss benefits from March 16, 2013 to July 18, 2014, as he was not able to perform his truck driving duties due to his ongoing left shoulder difficulties.
The worker advisor reviewed the history of the worker's accident and injury, and his ongoing symptoms and difficulties since that time. The advisor submitted that medical and file information showed that the worker continued to complain that vibration and jolting and jarring activities aggravated his left shoulder following his April 2011 surgery and rehabilitation. The worker was not able to perform his regular duties between March 16, 2013 and July 18, 2014 as his left shoulder became very irritated with the jarring and jolting from driving on rough surfaces.
It was submitted that the arthroscopic surgery to the worker's left shoulder on July 21, 2014 confirmed that the worker required additional repair of his left shoulder condition, and the worker's current restrictions include no driving on rough surfaces.
In conclusion, it was submitted that the evidence supports that the worker was not capable of performing his regular duties between March 16, 2013 and July 18, 2014, and a post-accident deemed earning capacity of $559.12 per week should therefore not have been implemented.
Employer's Position
The employer did not participate in the appeal.
Analysis
The issue before the panel is whether or not a post-accident deemed earning capacity of $559.12 per week should have been implemented effective March 16, 2013. For the worker's appeal to be successful, the panel must find that the worker was not physically able to perform the duties of a truck driver on March 16, 2013. The panel is able to make that finding, for the reasons that follow.
The panel finds that the worker's restrictions in March 2013 were not appropriate and that the new restrictions which were subsequently identified in early 2015, and included a restriction that the worker should not be driving over rough surfaces, should have been implemented in 2013.
The panel places significant weight on the report of the orthopedic surgeon who had performed the original left shoulder surgery in April 2011 and opined, on January 8, 2013:
[Worker] is reviewed regarding his left shoulder. His surgery for his massive tear left shoulder is April/11. Subsequently an MRI showed the thinned out cuff but still intact. Cortisone injection in June/12 gave some relief.
His issues now are that even with truck driving on almost any kind of road…not just the worst gravel roads, the vibration and jolting and jarring aggravates his shoulder to an unacceptable level to him. In view of how he has responded to his cuff tear, I concur that staying away from that work is probably best for a long time…recommendations are for basically long term shoulder restrictions against lifting and overhead activities as well as vibrating and jolting activities such as truck driving.
Evidence of significant further conditions was revealed in an April 21, 2013 MRI of the worker's left shoulder, which showed:
Postsurgical changes are noted as described. Redemonstrated is dislocation of the long biceps tendon into the anterior aspect of the glenohumeral joint likely due to a full-thickness tear of the subscapularis tendon although this is not well assessed.
Surgery was performed on July 21, 2014, consisting of left shoulder scope, biceps tenotomy, arthroscopic subacromial release of adhesions and debridement of rotator cuff, and responsibility was accepted and funding provided by the WCB with respect that surgery.
The panel places considerable weight on the report of the WCB medical consultant who, after reviewing the worker's file and conducting a call-in examination of the worker on January 16, 2015, opined:
Since the file was initially accepted for the rotator cuff tears and two surgeries have been funded for that diagnosis, the current presentation of ongoing rotator cuff tendinopathy can be medically accounted for in relation to the compensable injury. It should be noted that recovery of rotator cuff tears in anyone over age 50, even with surgery, has a poorer prognosis. Many end up with long-term pain and functional limitations. … [Worker] indicates that he is unable to tolerate jarring or jolting of the shoulder when driving on rough surfaces. This has been consistently reported whether it is associated with work or leisure activates (sic). This is not typically a restriction provided for rotator cuff tendinopathy as it has not been shown to strain the cuff. Considering that [worker] appears to be a credible historian, this will be taken into consideration when providing restrictions. It is far more important at this time that [worker] returns to appropriate work than to argue over whether he is able to drive in all situations.
The medical consultant went on to state that the worker would require the following restrictions in relation to his compensable injury:
• No lifting with the left arm greater than five pounds.
• No lifting greater than 10 pounds.
• No work where the left arm is held at or greater than 60° of flexion or abduction. This could preclude him from doing any overhead work.
• He should not do any repetitive movements about the left shoulder.
• He should not do any driving that would involve going over rough surfaces.
The panel places less weight on the January 18, 2013 opinion of the WCB sports medicine advisor who, in the panel's view, did not have full information at that time regarding the worker's actual left shoulder pathology.
In this regard, the panel notes that on February 3, 2015, the VRC and a WCB sector services manager determined that as a result of this change in physical restrictions, the worker's prior NOC was no longer viable and the worker was no longer employable as a Class 1 truck driver. Further intervention was therefore needed, and the file was again referred to the VRC and the vocation rehabilitation process was re-engaged.
Based on the evidence before us, the panel finds that the new restrictions which were identified by the WCB medical consultant on January 16, 2015 were appropriate and in hindsight were also appropriate in March 2013. The panel further finds, based on those restrictions and the information supplied by the worker prior to March 2013 and at the hearing before us, that the worker was not physically able to perform the duties of a truck driver and was no longer employable as such on March 16, 2013.
The panel therefore finds that a post-accident deemed earning capacity of $559.12 per week should not have been implemented effective March 16, 2015.
The worker's appeal is allowed.
Panel Members
L. Harrison, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, B. Kosc
L. Harrison - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 9th day of June, 2017