The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing four decisions made by the Workers Compensation Board ("WCB") with respect to his 2014 compensation claim. A hearing was held on May 3, 2018 to consider the worker's appeal.

Issue

Whether or not the vocational rehabilitation plan for the National Occupational Classification (NOC) 0911 - Manufacturing Managers is appropriate;

Whether or not the implementation of a post-accident deemed earning capacity of $918.00 per week effective February 24, 2018 is appropriate;

Whether or not responsibility should be accepted for the worker's psychological difficulties as being a consequence of the February 20, 2014 accident; and

Whether or not responsibility should be accepted for the medications Metformin, Ramipril, Atorvastatin, Apo-Gliclazide and Adalat in relation to the February 20, 2014 accident.

Decision

That the vocational rehabilitation plan for the National Occupational Classification (NOC) 0911 - Manufacturing Managers is not appropriate;

That the implementation of a post-accident deemed earning capacity of $918.00 per week, or of any deemed earning capacity, is not appropriate at this time;

That responsibility should be accepted for a diagnosis of depression as being a consequence of the February 20, 2014 accident; and

That responsibility should not be accepted for the medications Metformin, Ramipril, Atorvastatin, Apo-Gliclazide and Adalat in relation to the February 20, 2014 accident.

Background

The worker, a plant manager, sustained an injury to his right hip/lower back on February 20, 2014 when he slipped and fell off the back of a semi-trailer truck. The worker attended a chiropractor, a physician and a physiotherapist. He had a CT scan and MRI. The worker stopped working in May 2014.

The claim was initially denied, but was subsequently accepted in August 2014 and payment of various benefits commenced. On September 19, 2014, Compensation Services advised the worker that his claim had been accepted for a thoracic/lumbar strain/sprain. They advised that as he would have recovered from the strain/sprain injury by May 20, 2014, wage loss benefits after that date were paid in error and there was no entitlement to further benefits.

On October 8, 2014, the worker was seen by a neurosurgeon. Based on his examination of the worker, the neurosurgeon opined that the worker suffered from L5 radiculopathy with the possibility of involvement of the S1 nerve root. The neurosurgeon advised that the worker was "…an appropriate surgical candidate for relief of the compression of his nerve root."

On November 12, 2014 Review office found that there was entitlement to benefits after May 19, 2014. Review Office found that the evidence established a continuity of complaints resulting from the effects of the workplace accident, from which there was a loss of earning capacity. Review Office accepted that the worker had back pain since the February 20, 2014 accident, and that the evidence showed a worsening of symptoms, rather than a resolution of symptoms.

On November 25, 2014, a WCB medical advisor advised the neurosurgeon that the WCB accepted responsibility for the recommended right L4-5 microdiscectomy for decompression of the right L5 nerve root. On January 27, 2015, the worker underwent surgery and was diagnosed post-operatively with L4-5 right-sided disc herniation with sciatica.

On August 11, 2015, the worker attended a Functional Capacity Evaluation ("FCE") to determine his current functional and work abilities. On October 15, 2015, after reviewing the results of the FCE and an August 26, 2015 report from the worker's neurosurgeon, the WCB medical advisor provided the worker with permanent restrictions.

On October 26, 2015, the employer advised the WCB that they were unable to accommodate the worker's permanent restrictions.

As the worker was unable to return to his pre-accident employer, the WCB developed a vocational rehabilitation plan, with the occupational goal of a position in the National Occupational Classification (NOC) 0911 - Manufacturing Managers. The start date for the plan was January 18, 2016 and the end date July 1, 2016. In a letter dated February 10, 2016, the WCB advised the worker that his full wage loss benefits would be reduced by $918.00 per week at the end of the vocational rehabilitation program on July 1, 2016, as he would be considered employable at that time.

On June 21, 2016, the worker requested that Review Office reconsider the vocational rehabilitation plan for NOC 0911, as he was in a great deal of pain from his injury and on stronger medication now which was still not helping to deal with the pain.

On June 24, 2016, prior to the end of the vocational rehabilitation program, the WCB advised the worker that they felt he should attend a reconditioning program to improve his fitness, within his restrictions. By letter dated July 18, 2016, the WCB confirmed that the worker's vocational rehabilitation program had been placed on hold while he underwent the reconditioning program. The worker was advised that once the reconditioning program was completed, he would be referred again for an FCE, after which his file would be reviewed by the WCB's Healthcare Department to confirm his permanent restrictions. The restrictions would then be reviewed in relation to the worker's vocational rehabilitation plan.

On August 9, 2016, the WCB was advised that the worker was not able to continue the reconditioning program due to illness. On September 22, 2016, the physiotherapist advised the WCB that they were discharging the worker from the reconditioning program due to the worker's medical situation.

On November 9, 2016, the worker underwent another FCE. Following the FCE, a WCB medical advisor recommended the following permanent restrictions:

• No prolonged walking on rough or uneven surfaces over 15 minutes 

• No sitting over 30 minutes without opportunity to change position 

• Limit one flight of stairs 

• Lifting capacity preferably within the body envelope, no more than 10 lbs 

• No carrying over 10 pounds 

• No occasional push/pull activities over 30 pounds, 15 lbs frequently.

On March 7, 2017, the worker was advised that his wage loss benefits would be reduced effective April 15, 2017 based on his deemed earning capacity of $918.00. That same day, the worker requested that Review Office reconsider the WCB's decision that the vocational rehabilitation plan for the NOC 0911 - Manufacturing Managers was appropriate.

On May 9, 2017, Review Office determined that the vocational rehabilitation plan for the NOC 0911 - Manufacturing Managers was appropriate. Review Office found that the duties associated with the NOC 0911 were within the worker's physical restrictions and the vocational rehabilitation plan was a realistic goal based on the worker's transferable skill set.

Review Office went on to determine that the implementation of a deemed earning capacity of $918.00 per week effective April 15, 2017 was not appropriate. Review Office found that worker had reported ongoing back/right leg complaints which were related to the February 2014 workplace accident. Review Office accepted comments by the worker's family physician, including that the worker was currently "unable to work due to residual neuropathic pain" and "unable to concentrate due to pain," that he had "insomnia due to pain" and continued "to be off work due to pain." Review Office found that the worker was not capable of working effective April 15, 2017 within the NOC 0911. Given the worker's pain complaints, Review Office further recommended that the worker be assessed by the WCB's Pain Management Unit ("PMU").

On June 6, 2017, the worker was assessed by a WCB psychological advisor and a WCB medical advisor to the PMU. The results of the assessment were discussed at a PMU Case Conference on June 20, 2017, where it was concluded that the worker did not appear to be experiencing any psychological difficulties related to the compensable injury and there did not appear to be any psychological barriers to his return to work. No recommendations were made for psychological treatment at that time. It was recommended that an updated assessment of the worker's physical status be obtained from a WCB physical medicine consultant.

On August 10, 2017, the worker attended for a call-in examination with the WCB's physical medicine consultant. The physical medicine consultant reported that the current examination of the worker indicated "…no signs of any right sided lower lumbosacral nerve compression or associated significant impairment. Nor were there any lower lumbosacral nerve irritation signs able to be induced on specific testing." The WCB physical medicine consultant also reviewed the treating neurosurgeon's post-surgical follow-up with the worker which noted that no further surgery was indicated and there was no indication for proceeding with any further diagnostic testing.

On December 5, 2017, the worker was advised by the WCB that based on the examination by the PMU on June 6, 2017, there was no need for psychological restrictions in relation to his workplace injury. Based on the worker's ongoing complaints of pain, however, they were re-establishing the permanent restrictions which were most recently in place. The WCB advised the worker that given the length of time he had been inactive, they were prepared to enroll him in a multidisciplinary program to help him reintegrate back into the workforce. The worker was further advised that at the completion of the program, he would be deemed capable of earning $918.00 per week.

On January 30, 2018 and on February 21, 2018, the worker was advised by the WCB that as the multidisciplinary program he was enrolled in was scheduled to be completed on February 23, 2018, his wage loss benefits would be reduced based on his established earning capacity of $918.00 per week effective February 24, 2018.

On March 8, 2018, the worker was advised by the WCB that his file had been reviewed by a WCB psychological consultant following receipt of a psychological report from the multidisciplinary program which opined a new diagnosis of depression. The worker was advised that based on the WCB psychological consultant's opinion, the WCB was unable to accept the new diagnosis of a Major Depression as being related to his February 20, 2014 workplace accident.

On March 13, 2018, the worker was also advised that the WCB was unable to accept responsibility for the medications Metformin, Ramipril, Atorvastatin, Apo-Gliclazide and Adalat in relation to his February 20, 2014 injury.

On February 8, 2018, the worker requested that Review Office reconsider the January 30, 2018 WCB decision implementing his deemed earning capacity of $918.00 per week as of February 24, 2018. On March 14, 2018, the worker requested that Review Office also reconsider the March 13, 2018 decision denying responsibility for certain medications.

On March 27, 2018, Review Office determined that the worker's deemed earning capacity of $918.00 per week was correct as of February 24, 2018. Review Office noted that they had previously ruled that the worker was capable of full-time employment in NOC 0911. They noted that medical information received since then supported the worker was capable of working with fewer restrictions, but respected Compensation Services' adjudicative decision to continue to honour the worker's restrictions as they were, given the level of subjective pain complaints made.

Review Office did not accept the worker's complaints of forgetfulness, depression, anxiety and confusion as arising out of or in the course of his employment or as being directly related to his low back injury. Review Office concluded that the worker was mentally and physically capable of employment within NOC 0911 as of February 24, 2018.

Review Office also determined that the medications Metformin, Ramipril, Atorvastatin, Apo-Gliclazide and Adalat were not accepted in relation to the compensable accident and there was no entitlement to benefits for same. Review Office noted that the worker was requesting these medications to treat non-compensable health problems, including diabetes, high blood pressure (hypertension) and high cholesterol, which were pre-existing conditions. Review Office noted that these conditions occur systemically and are not affected by or associated with a low back injury; none of these health concerns were related to the claim, and the evidence did not support that the worker's pre-existing conditions were predominantly attributable to the compensable injury or made worse as a result of the worker's low back pain.

On February 1, 2018, the worker appealed the Review Office decision regarding the appropriateness of the vocational rehabilitation plan to the Appeal Commission. On April 17, 2018, the additional issues relating to the implementation of the worker's deemed earning capacity of $918.00 per week as of February 24, 2018, his psychological difficulties and his entitlement to coverage for the five medications were added to the worker's appeal, and an oral hearing was arranged to address all four issues.

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.

Subsection 4(2) provides that 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 27(1) of the Act provides that the WCB "...may provide a worker with such medical aid as the board considers necessary to cure and provide relief from an injury resulting from an accident."

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. 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.

WCB Policy 44.10.80.40, Further Injuries Subsequent to a Compensable Injury (the "Further Injuries Policy") applies to circumstances where a worker suffers a separate injury which is not a recurrence of the original compensable injury, but where there may be a causal relationship between the further injury and the original compensable injury. The Further Injuries Policy provides, in part, as follows:

A further injury occurring subsequent to a compensable injury is compensable:

(i) when the cause of the further injury is predominantly attributable to the compensable injury; or

(ii) when the further injury arises out of a situation over which the WCB exercises direct specific control; or

(iii) when the further injury arises out of the delivery of treatment for the original compensable injury.

  Worker's Position

The worker was self-represented, and was accompanied by his wife. The worker made a presentation at the hearing, with the assistance of his wife, and responded to questions from the panel.

With respect to the first issue, the worker's position was that the vocational rehabilitation plan for NOC 0911 was not appropriate. The worker referred to the description of the main duties and employment requirements for the NOC 0911 as set out in the WCB's Transferable Skills Analysis dated December 17, 2015, and submitted that he did have any of the qualities or abilities as listed. He indicated that the WCB had overstated his education or qualifications as a manager. In terms of education, he had his Grade 12, but had never attended university and did not have a college or university degree. He had taken one management course, which consisted of one day per week for eight weeks, and focused on how to deal with employees and nothing more. He had an expired first aid course and H2S certificate.

The worker went through each of the main duties of manufacturing managers as listed in the December 17, 2015 Analysis for the NOC 0911, and submitted that he did not meet any of these. He also reviewed each of the "Worker's Transferable skills" as set out in that Analysis, and indicated that these were not accurate. He noted that it seemed like a management job in the city was different from a management job in the country. He worked in a plant in the country, which had one big department only. He had never planned, organized, directed, controlled or evaluated operations, and never developed or implemented any financial plans. He only did as he was told by the owner. He had a card which said "manager", but he believed his job was more like that of a lead hand. He worked with a small group of employees in a physical job that had a high level of turnover. He did do the hiring, but this was an informal process.

With respect to the second issue, the worker submitted that Review Office found in its May 9, 2017 decision that implementation of the deemed earning capacity was not appropriate, and nothing has changed since then. He still has insomnia, his pain medications are not under control and his sleep is all over the map. He still has ongoing back, leg and foot pain every day, and is not able to work at any job because of that. He said he has spoken to a few establishments, but no one is willing to hire him with his restrictions and the pain he has.

With respect to the third issue, being the issue of psychological difficulties, the worker submitted that the psychological report from the multidisciplinary program dated April 3, 2018 opined that the worker met the diagnostic criteria for a major depressive disorder. The worker attributed his depression to no longer being able to do any of the things that he used to do before and having to depend on his wife 98% of the time. The worker noted that the clinical associate and psychologist in the multidisciplinary program assessed him over a four-week period, and diagnosed him with a major depressive disorder directly related to his 2014 workplace accident. The worker suggested that their opinion should be preferred over that of the WCB psychological consultant who only saw him once, for approximately one hour.

With respect to the fourth issue, concerning coverage for certain medications, the worker attributed the need for these medications to his February 2014 workplace injury and the fact that he has been unable to get back to his active lifestyle since his injury. The worker said he was diagnosed with diabetes in May 2014, and submitted that this was because his lifestyle had changed dramatically and he was no longer active. The worker noted that the medications in question had all been added or increased in dosage since his injury.

Employer's Position

The employer did not participate in the appeal.

Analysis

Issue 1. Whether or not the vocational rehabilitation plan for the National Occupational Classification (NOC) 0911 - Manufacturing Managers is appropriate.

For the appeal on this issue to be successful, the panel must find that the vocational rehabilitation plan for NOC 0911 - Manufacturing Managers is not appropriate. The panel is able to make that finding.

Based on our review of the evidence on file and as presented at the hearing, the panel finds that the worker did not meet the criteria or have the skills and abilities which are identified with NOC 0911 that would enable him to obtain or keep employment in that category of occupations.

The panel carefully questioned the worker at the hearing with respect to his previous work experience, his job duties and responsibilities with the employer, the workplace itself and the nature of the business. The worker indicated that the company he worked for was a small enterprise. There were six people working each shift, and he would be included in that number. The plant was very large, but most of the space was used as a bulk warehouse area. While the worker had some ability to hire and fire people, he did not perform many of the other functions of management. The boss exercised fairly tight control over the operations and owned another larger facility, where all the bookkeeping and accounting took place. The plant where the worker worked produced just one product, although there were three different types of that product depending on what the customer wanted. The boss dealt with the customers, and they prepared the product based on the "recipe" which the boss provided.

The panel also reviewed with the worker his "Qualification highlights" and "Transferable skills" as set out in the Transferable Skills Analysis which was prepared in developing the vocational rehabilitation plan. The panel finds that the worker's skills and qualifications as listed therein were not accurate and do not represent the worker's actual skills and abilities or work experiences. The panel is not satisfied that the worker was properly assessed in terms of what he was capable of or his previous experience.

The panel accepts that the worker was more like a lead hand as opposed to an administrative or manufacturing manager, and was not an appropriate candidate for a position in NOC 0911.

Based on foregoing, the panel is satisfied that vocational rehabilitation plan for NOC 0911 - Manufacturing Managers was not appropriate.

The worker's appeal of this issue is allowed.

Issue 2. Whether or not the implementation of a post-accident deemed earning capacity of $918.00 per week effective February 24, 2018 is appropriate.

For the appeal on this issue to be successful, the panel must find that it was not appropriate to implement a post-accident deemed earning capacity of $918.00 per week effective February 24, 2018. The panel is able to make that finding.

In light of our conclusion on Issue #1, that the vocational rehabilitation plan for the National Occupational Classification (NOC) 0911 - Manufacturing Managers is not appropriate, the panel is unable to find that the implementation of a post-accident deemed earning capacity of $918.00 per week effective February 24, 2018 based on that NOC is appropriate.

The panel is not prepared to establish a $918.00 per week or any deemed earning capacity at this time. Given the worker's ongoing medical and pain management issues, the panel finds that the worker is not capable of working at this time.

The panel would add that this finding that the worker is not capable of working at this time is open to review with a new NOC, once the current issues with respect to pain, depression and the combination of the worker's medications, as referred to in Issue #3, have been addressed.

The worker's appeal of this issue is allowed.

Issue 3. Whether or not responsibility should be accepted for the worker's psychological difficulties as being a consequence of the February 20, 2014 accident.

For the appeal on this issue to be successful, the panel must find that the worker's psychological difficulties were causally related to the February 20, 2014 workplace accident or predominantly attributable to the compensable injury.

Based on the evidence which is before us, the panel is satisfied that responsibility should be accepted for a diagnosis of depression as being a consequence of the February 20, 2014 workplace accident.

The panel finds that the worker's ongoing difficulties and neuropathic pain symptoms have been verified and accepted as being a consequence of the January 27, 2015 surgery. Information on file thus shows that the WCB has continued to accept responsibility for prescription medications and has covered orthotics and footwear to provide relief from the worker's ongoing pain symptoms.

The panel notes that the worker was seen at the PMU following the recommendation in the May 9, 2017 Review Office decision relating to the worker's ongoing pain issues.

The panel places considerable weight on the April 3, 2018 letter from the treating clinical associate and psychologist in the multidisciplinary program, who opined, as follows:

At the time of our initial report dated February 23, 2018, [the worker] met diagnostic criteria for major depressive disorder (MDD)…

[The worker] has expressed concern that WCB may view his psychological distress as arising solely from his interactions with WCB rather than his accident. After meeting with [the worker] on five occasions (to complete his assessment and provide psychological treatment), our perspective is that, consistent with the conceptualization outlined in our initial report, his depressive symptoms appear to be directly related to the accident and its negative physical and functional consequences. While some of his anxiety-related symptoms seem to be associated with his interactions with WCB, [the worker's] depressive symptoms are the primary source of his emotional distress. It is possible that his anxiety symptoms exacerbate his depressive symptoms but they are not a main factor in his emotional distress and reduced functioning. In our initial report additional treatment to assist [the worker] in managing his depressive symptoms was recommended.

The panel is satisfied, on a balance of probabilities, that the diagnosis of depression is causally related and predominantly attributable to the worker's ongoing pain and compensable injury.

The panel would note that we also have concerns arising out of the PMU medical advisor's June 6, 2017 report with respect to the impact of potential side effects of the medications the worker is taking and whether they were contributing to his psychological state, and their stated need for a review of those medications.

Based on the foregoing, the panel finds that responsibility should be accepted for a diagnosis of depression as being a consequence of the February 20, 2014 workplace accident.

The worker's appeal of this issue is allowed.

Issue 4. Whether or not responsibility should be accepted for the medications Metformin, Ramipril, Atorvastatin, Apo-Gliclazide and Adalat in relation to the February 20, 2014 accident.

For the appeal on this issue to be successful, the panel must find that the medications Metformin, Ramipril, Atorvastatin, Apo-Gliclazide and/or Adalat are necessary to cure and provide relief from the workplace injury. The panel is not able to make that finding.

In the course of the hearing, the worker advised that he was not concerned with respect to coverage for either Rampiril or Adalat, and was asking the panel to focus on the other three medications only.

The worker stated that his prescription for Metformin was for his diabetes, and was directly related to his change in lifestyle and being unable to exercise or lose weight as a result of his accident. The worker's evidence was that he was diagnosed with diabetes on May 5, 2014, almost 2½ months after the workplace accident.

The worker's evidence with respect to Apo-Gliclazide was that it is also for diabetes, and was prescribed for him right after his hospital attendance in 2016. The worker noted that it is stronger that Metformin, and he takes it in the morning.

The worker confirmed that Atorvastatin is for cholesterol, and was prescribed for him on April 15, 2014, or almost two months after the accident.

The panel notes that there are no medical opinions to support that there is a connection between the worker's conditions for which these medications are prescribed and the workplace accident.

Based on the evidence which is before us, the panel finds, on a balance of probabilities, that the medications in question are not necessary to cure and provide relief from the workplace injury.

The panel therefore finds that responsibility should not be accepted for the medications Metformin, Ramipril, Atorvastatin, Apo-Gliclazide and Adalat in relation to the February 20, 2014 accident.

  The worker's appeal of this issue is dismissed.

Panel Members

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

Recording Secretary, J. Lee

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

Signed at Winnipeg this 29th day of June, 2018