Decision #147/17 - Type: Workers Compensation

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he was capable of earning $156.00 per week effective November 28, 2000 as a delivery driver. A hearing was held on September 28, 2017 to consider the worker's appeal.

Issue

Whether or not the worker's post-accident deemed earning capacity should be $156.00 per week effective November 28, 2000.

Decision

That the worker's post-accident deemed earning capacity should be $156.00 per week.

Background

The worker has an accepted claim with the WCB for a back injury that occurred on November 4, 1991 when he lifted a snowmobile into the back of a half ton truck. The worker was provided with various benefits from the WCB which included vocational rehabilitation benefits on the basis that he was unable to return to his pre-accident employment as a mechanic. In November 2000, it was determined by the WCB that the worker was capable of a post-accident deemed earning capacity of $156.00 per week.

In a submission to the WCB dated January 19, 2001, a worker advisor indicated that they were appealing the appropriateness of the worker's Vocational Rehabilitation Plan ("VRP") which indicated that he was capable of performing the duties of a delivery driver and that this occupation was within his permanent restrictions of no lifting, no bending and no twisting. The worker advisor noted that a delivery driver required repetitive twisting and bending from getting in and out of the car or truck as well as repetitive lifting. It was suggested that the occupation of a delivery driver was outside of the worker's permanent restrictions even on a part-time basis as it had been identified throughout the file that repetitive back movements create pain and disability.

The worker advisor included medical information with her submission dated December 14, 2000, which noted that the worker tried to perform the duties of a delivery driver but was unable to continue. Therefore the VRP was inappropriate and the worker should not have been deemed at $156.00 per week.

On May 25, 2001, Review Office determined that the post-accident deemed earning capacity of $156.00 effective November 28, 2000 was correct.

Review Office noted that delivery driver jobs do not always require heavy lifting. Even if the worker was not suitable for a delivery driver position, he would have been able to secure employment paying him $156.00 if he chose to do so. Review Office noted that the worker's pattern of activity was not consistent with an inability to work and confirmed the decision to implement a deemed post accident earning capacity.

On February 23, 2017, the worker's legal representative appealed Review Office's decision to the Appeal Commission and a hearing was held at the Appeal Commission on September 28, 2017 to consider the worker's appeal.

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.

The worker's accident occurred in 1991, accordingly this appeal is considered under the provisions of the Act as they existed at that time.

Subsection 4(1) and 4(2) of the Act provided:

Compensation payable out of accident fund 

4(1) Where, in any industry within the scope of this Part, personal injury by accident arising out of and in the course of the employment is caused to a worker, compensation as provided by this Part shall be paid by the board out of the accident fund, subject to the following subsections.

Limitation on compensation payable 

4(2) Where an injury does not disable the worker during any period after the day on which the accident occurs, no compensation other than medical aid is payable; but if the injury disables the worker during any working day after the day on which the accident occurs, compensation is payable from and including the working day next following the day on which the accident occurs.

WCB Policy 44.80.30.20, Post Accident Earnings - Deemed Earning Capacity (Deemed Earnings Policy), provides that in some cases the WCB will deem the amount that the worker is capable of earning and will include it in the calculation of post-accident earning capacity as if it had, in fact, been earned. The policy describes when a worker will be deemed capable of earning an amount that he is not actually earning and how the deemed earning capacity will be determined. This policy applies to all initial decisions on or after April 1, 1996. As the decision to deem the worker was made in 2000, this policy applies to the decision.

The panel notes that Section 8 of the Deemed Earnings Policy provides that deemed earning capacity will be used under the WCB's broader policy on mitigation (Policy 44.10.30.60, Practices Delaying a Worker's Recovery) when:

i. The worker voluntarily leaves the workforce by expressing that he or she is not interested in looking for any work. In this case, the deemed earning capacity will be the worker's earning capacity at the time of leaving, unless it is demonstrated that the worker is capable of, through rehabilitation, a higher earning capacity. The WCB must be prepared to undertake this rehabilitation (i.e., must offer it to the worker). 

ii. The worker refuses to cooperate in or complete a program of vocational rehabilitation. In this case, the deemed earning capacity will be the earning capacity expected on completion of the vocational rehabilitation plan. 

iii. The worker refuses to participate or cooperate to a degree that it is impossible to undertake adequate vocational assessment/plan development and reasonably/accurately determine an anticipated earning capacity. In this case, it will be presumed that the worker has no loss of earning capacity until the worker demonstrates a willingness to cooperate in the development of a plan.

Worker's Position

The worker was represented by legal counsel. The worker's representative made a presentation to the panel. The representative and the worker answered questions from the panel.

The worker's Appeal of Claim Decision filed on February 23, 2017 indicates:

Based on the medical evidence the claimant was and continues to be fully disabled from returning to work as a result of his workplace injury. Based on the vocational rehabilitation (VR) information on file, the claimant had and continues to have significant psychological challenges that rendered him unable to participate in VR. As a result, the claimant takes the position that he is entitled to full wage loss benefits from November 28, 2000, until he reached the age of 65 years.

The representative confirmed that the issue to be dealt with at the hearing was whether the worker’s post-accident deemed earning capacity should be $156.00 per week effective November 28, 2000.

The representative submitted that:

[Worker's] position is that he was totally disabled at the time of the decision and did not have an earning capacity. His position is at the time of the decision he was entitled to full wage loss benefits and continues to be entitled to full wage loss benefits as a direct result of the workplace accident.

The representative submitted further that:

In the alternative, if the panel overturns the decision presently under appeal, [worker] would ask the panel to send the matter back to WCB to adjudicate duration of full wage loss benefits.

So in a nutshell, we’re looking at that one decision and whether or not based on the policy and based on the medical evidence, and that’s the vocational rehabilitation policy, [worker] should have been deemed, and our position is no.

[Worker's] position is based on the medical evidence at the time of the decision which supported the permanent restrictions that were in place at the time of the decision, and this is combined with his intellectual challenges which clearly affected vocational rehabilitation.

At the time the decision was made, again, it is [worker's] position that he was completely unemployable and remains that way to date as a direct result of the workplace accident and subsequent surgeries.

The worker's representative noted that on November 4, 1991, the worker suffered a lumbar disc protrusion when he lifted a snowmobile. He returned to regular duties, but due to the severity of his injury he went on total disability in January 1992.

He reviewed the medical information on file including the following opinions:

• February 24, 1992 WCB medical advisor opinion which suggested restrictions of no heavy lifting or frequent bending, due to the worker’s compensable injury, which was diagnosed at that time as low back pain due to a prolapsed disc.

• March 1992 CT scan revealed a moderate size central left posterior L4-L5 disc herniation which resulted in the urgent need for surgery.

• April 21, 1992 surgeon performed an L4-L5 discectomy.

• May 6, 1992 treating surgeon reported that the worker was experiencing dizziness, headaches, right hip pain, left leg pain and concern about a CSF leak.

• September 13, 1992 CT scan revealed minor diffuse prominence of the L3-L4 and L4-L5 discs.

• December 3, 1992 MRI lumbar of the worker's spine showed a mild posterior disc prominence, L2, not thought to encroach the nerve root at the time. Abnormal enhancement of the L4-L5, post-operative fibrous more likely. Pseudo-meningocele extending from the L4 to the L5 two centimeters in diameter and three centimeters long.

• August 25, 1993 medical advisor reported acute lumbar disc herniation at the L4-L5 due to the worker’s compensable injury occurring November of 1991. He noted that it led to a lumbar discectomy which resulted in FBS surgery, and is exemplified by chronic pain in the back and left leg.

• September 27, 1993 report from a second surgeon suggested the removal of the pseudo-meningocele post-surgical scar tissue, fix residual disc herniation at L4-L5.

• May 20, 1996 report from a second surgeon suggests chronic pain rehabilitation, daily health maintenance, and agrees with neurologist that the worker suffered from arachnoiditis.

• August 10, 1995 report from WCB medical advisor noted the complaints from the worker of burning pain in the spine up to the thoracic region, sharp pain in the knees, buttocks and tailbone, numbness in the legs, heels, and left great toe, prickly sensation in thighs and heels, increased activity worsens symptoms, heat sensitive worsens conditions, severe headache, loss of hearing, bowel intontinence.

The worker's representative noted that the second surgeon concluded that the worker was unemployable. He asked that the panel attach weight to the opinion of the second surgeon over that of the WCB medical advisors.

The worker's representative reviewed the history of the worker's claim.

Regarding his vocational background, the worker's representative noted that the worker finished grade 9 and went to work for his father's company where he worked on snowmobiles and tire repairs/changes. He noted that the worker had academic difficulties and physical limitations.

The worker's representative submitted that:

What I can say is this, based on the injury, and we’ll just stick with the physical, leave aside the intellectual issues and leave aside the policy, but based on the injuries he sustained and the restrictions that were on file at the time, it was completely inappropriate to deem him under being a delivery driver.

The worker's counsel submitted that the worker could not physically perform the duties of a delivery driver. He submitted that an adjudicator (in 1997) made the correct decision that the worker was not employable and should be provided with Special Additional Compensation benefits.

He acknowledged that the worker could cognitively perform the duties of a delivery driver provided they did not involve more advanced tasks.

He stated:

My client can barely get in and out of a car without being in pain, never mind delivering things all day. He can’t -- and he would be competitively unemployable given his condition, versus somebody else that has no condition looking for a delivery job.

In reply to a comment about the worker's ability to work, his representative said:

Well, I’m going to disagree with that. I’m going to say at that point in time he wasn’t capable in the terms of, or in the context of (a) finding employment. He was competitively unemployable due to both his physical restrictions and his mental capacity, okay. So, competitively unemployable. Totally disabled from doing anything in the manual labour part of our industry, which would include delivery driving. And totally disabled in terms of, and this is where it gets a little grey, in terms of moving on to something outside the manual labour industry and competitively unemployable because of his level of education and his cognitive skills.

Regarding the worker's participation or non-participation in the vocational rehabilitation plan, the worker's representative stated that:

I will say it’s very concerning in here when Review Office is questioning whether or not he could be -- the appeal was for the delivery driver NOC code, okay. And they’re saying in their decision, well, maybe he can, maybe he can’t. I think based on the Act and the policy that’s definitely a mistake in law the way they phrase this, there’s no doubt about it.

And secondly, I know what you’re saying with regards to the broad issue, okay, well, maybe delivery driver might not be it, but he can just find something, but that’s not how the policy works, okay.

He submitted that the WCB had to exhaust all the avenues of trying to get the worker back to their pre-accident wages, and if it doesn’t work out and the person at the end of the day is physically able to do something, and mentally able to do something, then down the road after the VR process is exhausted, decisions do come down to whether the worker is capable of finding a minimum wage job.

Regarding the issue of mitigation, the worker's representative submitted that:

I do want to address the mitigation, the non-cooperation and so forth, because that needs to be put into the context of a person that’s living in tremendous discomfort from his condition, okay. And his, in his mind … getting the complete runaround from the WCB, nothing is going anywhere. They’re telling him what he could do, what he has to do, and if he doesn’t do it he’s going to be cut off.

Ten years of dealing with the bureaucracy and so forth, right, what would he be complying with if he showed up to these meetings and so forth? They’re going to tell somebody that’s living in severe agony, right, and has no education and there’s no really chance of future education, what, where would he get if he did show up to those meetings? Just more aggravation, more pain, more suffering.

At some point in time a person says enough is enough, and I suspect that’s what [worker] said at that point in time. At the time what should have been discussed, and I’m sure he would have showed up to meetings and so forth, what should have been discussed was, where do we go from here? Right now you’re on long-term full disabilities, what can we do? Is there anything we can do to get you employable again?

Well, let’s first start with the physical pain and suffering that he’s in, is there anything medically that could be done to alleviate that so he could be functional? And then step 2 would be, is there anything we can possibly do to reeducate [worker]? I think the answer to that is pretty well clear on the file, and the answer was no.

So the only thing really left to deal with at that time that he should have been cooperating with, and he did up until that point, was, what could be done to make him physically able again so he could be employable at something?

He had two surgeries, that didn’t help. He had physiotherapy, he blew something out in his tailbone on that exercise bike. Everything that he did when he was complying, okay, made him worse, not better. And so he’s going to keep going back to the people that are making decisions that are making him worse, not better, and causing him aggravation in his life in terms of financial concern for the future and so forth, the threats of being cut off, being told what to do, what job you’re going to do and so forth.

At some point in time a person says enough is enough, and I believe that’s what [worker] did.

So I don’t think he was failing to mitigate or causing a problem that way, I think he just had enough. There was no progress, there was nothing logical coming out of the Board going forward.

Regarding the WCB's application of the policy, the worker's counsel stated:

At number 3 the requirements for the WCB to demonstrate a deemed earning capacity at (a) says the WCB must demonstrate through adequate vocational assessment, planned development and documentation, that the worker is capable of competing, of competitively finding, competing for and obtaining and keeping employment in an occupation or group of occupations on which the earning capacity is based.

That didn’t happen. That was contravened, 3(a), and I disagree with [commissioner's] interpretation of the Review Office decision that it leaves it open to something other than - I understand you have the jurisdiction, because the way they frame it to look at that, right, but that comment from Review Office doesn’t fit within 3(a) of just saying, okay, just go find something…

The WCB must demonstrate that the worker has a physical capacity, which [worker] doesn’t, is our argument. The education, which [worker] doesn’t, skills and aptitudes, interests and personal qualities needed to obtain and keep employment in the occupation or group of occupations in the labour market. I’m going to postulate that based on what happened in 1992, and just based on hindsight, which is helpful in one sense and not in another, that he wouldn’t have lasted very long as a delivery driver if he would have went and found a job as a delivery driver. Maybe days, maybe weeks, but --

At 3(d)(ii), clearly show and identify an occupation that matches the worker’s vocational profile, again, physical capacity which delivery driver didn’t, educational skills, has none, history as a mechanic, aptitudes, a big problem as noted on the file, training interests and personal importance.

So transferable skills, there wasn’t a lot looked at. And I’ll just leave it at, that I think the decision from 2000 contravene the policy, and I think it was a wrong decision.

The worker's representative referred to the diagnosis of arachnoiditis and whether its an accepted condition in this case, but confirmed that its application to this case is not an issue in this appeal.

Employer's Position

The employer is no longer operating.

Analysis

The worker appealed the May 21, 2001, Review Office decision which found that the worker's post-accident earning capacity should be $156.00 per week as of November 28, 2000. For the worker's appeal to be approved, the panel must find that the worker had no post-accident earning capacity or, in essence, that the worker was not employable. The panel was not able to make this finding.

The panel has considered the information provided at the hearing, in the worker's WCB claim, and WCB Board Policies, including the Deemed Earnings Policy.

The panel accepts the evidence which establishes that the worker sustained a serious permanent injury in the 1991 workplace accident. The issue before the panel is not whether the worker was hurt but rather what he was capable of doing when he was deemed able to work in 2000. The panel notes that the initial decision by the WCB was effective as of November 28, 2000 and that the Review Office decision was made on May 25, 2001.

The worker's restrictions set out in the Individualized Written Rehabilitation Plan at the time the decisions were made were: 

• no lifting 

• no bending 

• no twisting 

• no prolonged standing 

• no overhead work

The panel finds that the worker's physical medical restrictions at the time of the decision did not preclude the worker from performing the duties of a delivery driver, although the panel acknowledges that many delivery driving positions would exceed these restrictions.

Regarding the worker's psychological status at the time he was deemed, the panel notes the opinion provided by a WCB psychological advisor on March 23, 2000:

[Worker] is a 34 year old snowmobile mechanic who was involved in a work related injury on November 4, 1991. He is continuing to present with pain as his primary complaint although it is of note that he is currently taking no medication, is involved in no treatment for his pain and other than avoidance of activity and rest, he makes no other efforts to manage his pain. He does note that he is independent in his daily activities and is able to cook, clean, and provide for his social and recreational needs and it appears it is primarily within the areas of his vocational activities that he finds himself disabled secondary to pain.

In its review of the evidence on the file, the panel noted that:

• the worker did not avail himself of job search assistance offered by the WCB. 

• file information indicates that the worker preferred to be left alone although he verbally agreed with the plan. 

• that the worker was able to drive to Minneapolis in November 1999. 

• in a memo dated July 28, 2000, the worker advised the WCB that he was living in a camp ground in Grande Prairie, Alberta, looking for work doing "something light" in the construction industry. 

• subsequent to the 2000 deemed earning decision and the 2001 Review Office decision, the worker, did not contact the WCB about the deem for more than a decade.

The worker's representative submitted that the worker was competitively unemployable due to his physical restrictions and mental ability, however, as noted above, the panel does not find this to be an accurate depiction of the worker's ability. The medical information supports a finding that the worker could perform work subject to restrictions. Regarding his cognitive ability, the panel notes the worker's evidence that in the past he was able to do repair work on snowmobiles and perform other functions in his parent's repair shop, and had been looking for work at around the time his benefits were terminated in 2000.

The panel finds that the worker had the physical and cognitive ability to participate in a plan, based upon the medical reports on file. The panel also finds that the Labour Market Analysis on the worker's file demonstrates that a market exists for delivery drivers. However, the panel finds that the worker refused to participate in the development of the plan and missed the opportunity to shape the plan.

The evidence does not support a finding that the worker looked for but was unable to obtain employment. The evidence is that the worker did not, in any serious way, look for employment. The evidence suggests that the worker made a choice not to participate in the vocational rehabilitation plan and instead elected to leave the province and pursue (or not pursue) other employment.

Under these circumstances, the panel finds that the worker's conduct falls within the section 8 of the Deemed Earnings Policy. The worker did not cooperate with the WCB in developing a plan, did not fully participate in the plan and left the workforce. Accordingly, the worker's deemed earning capacity in 2000 was properly set at $156.00 per week. The panel notes the worker's representative suggested that the panel accept the Recommendation for Special Additional Compensation made in 1997 which would have resulted in the payment of Special Additional Compensation Benefits to the worker until March 31, 2028. While this decision is not specifically before the panel, the panel finds that it fails to recognize the worker's true abilities and potential which were more fully explored and established in the following three years.

Finally, the panel notes that there was discussion about the worker's compensable medical condition including whether the worker suffers from arachnoiditis. For the purposes of this decision, the presence or absence of this diagnosis does not affect the panel's decision.

The worker's appeal is dismissed.

Panel Members

A. Scramstad, Presiding Officer

A.
Finkel, Commissioner

M. Kernaghan,
Commissioner

Recording
Secretary, B. Kosc

A. Scramstad - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 7th day of November, 2017

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