The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") with respect to his post-accident deemed earning capacity that was implemented on November 5, 2016. A hearing was held on October 18, 2017 to consider the worker's appeal.

Issue

Whether or not it was appropriate to implement a post-accident deemed earning capacity of $440.00 per week effective November 5, 2016.

Decision

That it was appropriate to implement a post-accident deemed earning capacity of $440.00 per week effective November 5, 2016.

Background

The worker reported that he was pushing a gantry on November 8, 2012 during the course of his employment as a labourer when he felt a pop in his left shoulder and numbness in his left arm. On November 8, 11 and 12, 2012, the worker sought medical attention for his left shoulder and neck pain which he related to the November 8, 2012 incident. The claim for compensation was accepted based on the diagnosis of a left shoulder rotator cuff tear and cervical disc herniation with left upper limb radiculopathy at C5-6-7. On October 31, 2013, the worker underwent an anterior discectomy and arthroplasty at C5-6-7 which was accepted as a WCB responsibility.

In September 2014, the case was referred to the WCB's vocational rehabilitation branch for an initial assessment, as the worker's accident employer was unable to accommodate a return to work.

In February 2015, the WCB established the following permanent work restrictions for the worker:

• No overhead work; • Limit work with arms held away from the body either unsupported or against force; • No lift/push/pull/carry greater than 10 lbs (this would be considered a sedentary level); • Work with spine in neutral position, no awkward positions; • Change position as needed.

File records showed that the WCB developed a vocational rehabilitation (VR) plan for the worker under National Occupational Code (NOC) 4212, Community and Social Services Workers. On May 20, 2016, it was determined that the VR plan was no longer viable, and a second plan was developed under NOC 1453, Customer Service Information and Related Clerks. The plan duration was from July 4, 2016 to October 23, 2016, following which it would be expected that the worker would be capable of earning $440.00 per week.

On September 6, 2016, the WCB advised the worker that a driving restriction would not be considered a permanent objective medical restriction and would not preclude him from participating in his VR plan for NOC 1453 Customer Service.

In a letter dated October 4, 2016, the worker was advised that the WCB was unable to accept complex pain syndrome as a diagnosis related to his compensable injury and that the WCB continued to be of the view that he was fit to participate in NOC 1453.

Effective October 24, 2016, the worker's wage loss benefits were reduced by the earning capacity associated with NOC 1453.

In a letter to the worker dated November 9, 2016, the case manager stated, in part:

Spondylosis and ossification of the anterior longitudinal ligament are largely age related. A degree of the observed calcification noted in the January 7, 2015 call-in exam may also (sic) related to the normal healing process following the surgery performed on your cervical spine. The findings would not affect your restrictions or ability to participate within your deemed NOC 1453 Customer Service. As such, I am unable to accept a recurrence of your injury and reinstate full wage loss benefits.

On March 8, 2017, the worker's case was considered by Review Office as the worker appealed a number of decisions that were made on his claim. In particular, Review Office determined that the worker's deemed earning capacity of $440.00 per week effective October 24, 2016 was incorrect.

Review Office noted that the worker had permanent work restrictions in relation to his compensable injuries and that an earning capacity assessment which was completed in June 2016 provided reasoning for pursuing a VR plan in the NOC 1453. It noted that the duration of the VR plan was from July 11, 2016 to October 23, 2016, which included 13 weeks for job search. Review Office concluded that the duration of the plan should have been extended until November 4, 2016 based on an update to the WCB policy as of July 1, 2016, and found that the worker was entitled to an adjustment of his wage loss benefits for an additional two weeks.

Review Office noted that the worker's representative provided the opinion that the worker was unable to work based on the advice of his physician, because he would be seeking further treatment, and due to his permanent restrictions. Review Office did not agree with this reasoning, and found that the worker was not totally disabled. Review Office concluded that the job demands of NOC 1453 were compatible with the worker's transferable skills and restrictions, and that the implementation of a deemed post-accident earning capacity, which was equivalent to 40 hours at the provincial minimum wage, was appropriate.

On March 17, 2017, the worker's advocate appealed the Review Office decision to implement a post-accident deemed earning capacity of $440.00 per week effective November 5, 2016, 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.

Under subsection 4(2), a worker who is injured in an accident is entitled to wage loss benefits for the loss of earning capacity resulting from the accident, but no wage loss benefits are payable where the injury does not result in a loss of earning capacity during any period after the day on which the accident happens.

Subsection 39(2) of the Act provides that the WCB will pay wage loss benefits until such time as the worker's loss of earning capacity ends or the worker attains the age of 65 years.

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 under subsection 27(20) of the Act. The VR 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 Policy 44.80.30.20, Post Accident Earnings - Deemed Earning Capacity, 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.

Worker's Position

The worker was assisted by a worker advocate and was accompanied by a family member, all of whom participated in the hearing by videoconference. The worker advocate made a presentation on the worker's behalf, and the worker responded to questions from the panel.

The worker's position was that the WCB should accept responsibility for his full wage loss benefits from November 4, 2016 as an ongoing result of his November 8, 2012 compensable injury.

The worker advocate submitted that the worker had been participating in the VR plan and was taking courses under NOC 4212, where he was able to work at his own pace. He was doing well in this program until the WCB decided that they could no longer support it and placed him under NOC 1453, Customer Service Information and Related Clerks.

It was submitted that although the WCB deemed him fit to work in NOC 1453, the worker still had limitations and things he could not do. For example, telemarketing, which was one of the recommended jobs, could support some but not all of his restrictions. As a telemarketer, he would be required to sit for long periods of time at a desk working on a computer, yet his restrictions included that he be able to change position as needed. The worker advocate submitted that the worker continued to suffer from chronic pain and discomfort, and that it was important to consider his restrictions from the perspective of what a customer service job entails. She suggested it was unlikely that a new employer would hire a person with his restrictions unless they were very accommodating and empathetic.

The worker advocate submitted that the worker was unable to return to work on October 24, 2016, as his doctor had said he was unfit to work due to further complications from his surgery, and was to be assessed for further treatment and possible future surgery. In his chart notes for October 6, 2016, his treating physician stated that the worker needed to be seen by a pain specialist and was going to see the GI specialist "and then one will have to see how we will pursue his chronic pain and his employment in the future." (worker's emphasis) On November 24, 2016, the worker's treating physician provided a note stating that the worker would be off work indefinitely due to cervical radiculopathy.

The worker advocate submitted that the worker had been diagnosed with a number of other conditions which, in their view, were related to the compensable injury, including complex pain syndrome, cervical herniation/radiculopathy, and chronic spondylosis as well as anterior ossification of the longitudinal ligament resulting in fusion. The worker's treating surgeon reported in a letter dated May 13, 2017 that the surgery in 2013 had failed and gone into fusion; that the worker had persistent left arm pain and symptoms; and that a recent CT scan confirmed a large osteophyte in the foramen at C6-7 which would correspond to the worker's symptoms. The advocate noted that the worker is currently waiting to see a surgeon to correct these issues.

In response to questions from the panel, the worker further stated that he did not believe the restrictions were appropriate. He submitted they were based on a failed Functional Capacity Evaluation. He said he had asked the WCB to put his VR plan on hold for further medical testing and attendances, as his symptoms were becoming increasingly worse. Instead, the WCB had moved him to a different NOC.

The worker submitted that his treating physician supported him in everything. He agreed to NOC 1453 as long as the worker was on the right medications to control his pain and his care was being accommodated. His physician indicated that they would have to look at his employment if and when his symptoms and pain were under control. The worker stated that they were not under control in the fall of 2016 or since then.

The worker acknowledged that none of the doctors had said he was incapable of working in NOC 4212 or NOC 1453, but noted that he had asked that his VR plan be put on hold. He said that he was basically incapacitated at the time, due to his worsening condition and physical barriers, as well as the medications he was taking. He had to spend a lot of time lying down, and submitted that a prospective employer was not going to accommodate his need to lie down for periods of time. He submitted that any employer would also be concerned that he would be a danger to others, given the medications he was on.

The worker also submitted that no one had ever tested him to say that he was able to work eight hours a day or 40 hours a week, and no one had said he could work full-time hours in NOC 1453. He noted that he was never offered a graduated return to work program. The worker further stated that he had never worked for minimum wage, and should not have to do so.

Employer's Position

The employer was represented by its business manager and its safety officer at the hearing. The employer's representative stated that he was a businessman in the construction industry, not a doctor, and therefore had to take the worker's medical conditions and assessment at face value. Having said that, he noted that they wanted to be sure that everyone was looking at all of the relevant factors pertaining to the worker's case, including all of his pre-existing conditions and history, while at the same time taking into consideration the type of industry they were in, where there is a lot of wear and tear on a person's body over time.

Analysis

The issue before the panel is whether or not it was appropriate to implement a post-accident deemed earning capacity of $440.00 per week effective November 5, 2016. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker was not capable of earning $440.00 per week as at November 5, 2016 as a result of his compensable injury. The panel is unable to make that finding, for the reasons that follow.

The worker's permanent work restrictions were no overhead work; limit work with arms held away from the body either unsupported or against force; no lift/push/pull/carry greater than 10 lbs (this would be considered a sedentary level); work with spine in neutral position, no awkward positions; and change position as needed.

The panel finds that the worker's permanent restrictions were supported by the medical information on file and were appropriate. The panel notes that those restrictions were consistent with restrictions which had been listed by the worker's treating physiotherapist in March 2014 as "avoid lifting, avoid push/pull and avoid above shoulder height work." The permanent restrictions were subsequently outlined and confirmed by a WCB medical advisor following her review of the claim file and call-in examination of the worker on January 7, 2015.

The panel notes, in particular, that those restrictions were also supported by the worker's treating physician. The physician acknowledged such restrictions in his chart notes dated September 14, 2016, where he wrote: "I don't think he can do any physical labor, no over head work, no prolonged standing, work with his spine in neutral position, no lifting, pushing and shoving more than ten points. That is more or less what we had."

The panel is further satisfied that the treating physician supported the worker's return to work with those restrictions at that time. In a letter dated September 26, 2016, the physician noted "I would definitely support him to participate in NOC 1453." In a further letter dated September 28, 2016, he stated "I really think this patient will not be able to do any physical labour again. I don't think it is good for this man not be in the workforce and I think any sedentary job should be OK. We will follow him and continue managing his pain but I think getting out into the workforce even if it is in Customer Service, as long as it is fairly sedentary he should be able to function there with the help of the right mix of medication to control his pain and underlying anxiety."

While the worker argued that his treating physician supported his return to work only if and when his symptoms and pain were under control, the panel is unable to arrive at that conclusion. The panel is of the view that there is no indication on file that the worker was not being properly cared for or his pain properly managed at the time. On the contrary, the treating physician indicated that they would continue managing his pain and that it would be good for the worker to be out in the workforce even if it was in Customer Service.

The panel is further satisfied, based on the medical information on file, that the new diagnoses which were referred to by the worker advocate in her submission are consistent with and support the worker's permanent restrictions. The panel notes that the worker's treating physician clarified in his letter dated September 28, 2016 that the worker does not have a complex pain syndrome. In a memorandum to file dated November 1, 2016, a WCB medical advisor opined that regardless of whether they were related to the compensable injury, "the findings noted by the radiologist (ossification and spondylosis) would not further affect [the worker's] capabilities. The restrictions currently on file remain appropriate. At a minimum, sedentary duties would be expected to be within his capabilities." Similarly, a neurologist who examined the worker in April 2017 reported that his findings with respect to radiculopathy did "not suggest functional deficits." In our view, these conclusions are confirmed by the findings of a WCB senior medical advisor and a WCB orthopedic consultant following a two-hour interview and examination of the worker on May 19, 2016 to review his permanent partial impairment.

While new restrictions were also suggested by the worker in the course of the hearing, including restrictions pertaining to hours of work or a gradual return to work program and medications, the panel notes that there is no doctor or medical report supporting any such additional restrictions.

The panel does not view the worker as being totally disabled, and indeed, at the hearing, the worker indicated that he was not completely disabled from doing any kind of work in September or November 2016. As indicated previously, the worker acknowledged that no doctor had said he was incapable of working in NOC 1453 or NOC 4212 in September or November 2016. While all of the positions in NOC 1453 may not have been appropriate for the worker, the panel is satisfied that NOC 1453 is a very broad occupational category and that there would have been jobs in that NOC which the worker could have done, but chose not to pursue.

The deemed earning capacity of $440.00 per week was equivalent to 40 hours per week at the provincial minimum wage. The panel is satisfied that the worker has the skills and ability to work full-time in a position which pays the provincial minimum wage.

Based on the foregoing, the panel finds, on a balance of probabilities, that the worker's compensable restrictions were appropriate, and did not prevent him from working and earning at least $440.00 per week as at November 5, 2016.

The panel therefore finds that it was appropriate to implement a post-accident deemed earning capacity of $440.00 per week effective November 5, 2016.   The worker's appeal is dismissed.

Panel Members

M. L. Harrison, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, B. Kosc

M. L. Harrison - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 15th day of December, 2017