Decision #27/19 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his post-accident deemed earning capacity remains appropriate. An oral hearing was held on January 21, 2019 to consider the worker's appeal.
Whether or not the worker's post-accident deemed earning capacity remains appropriate.
The worker's post-accident deemed earning capacity remains appropriate.
This claim has been the subject of two previous appeals and the background will therefore not be repeated in its entirety. Please see Appeal Commission Decision Nos. 169/17, dated December 18, 2017 and 98/18, dated June 29, 2018.
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. Various benefits, including wage loss, were paid. Permanent restrictions for the worker were noted to be no overhead work, limit work with arms held away from the body either unsupported or against force, no lift/push/pull/carry greater than ten pounds, work with spine in neutral position, no awkward positions and able to change position as needed.
The WCB developed a vocational rehabilitation (VR) plan for the worker under NOC 1453, Customer Service Information and Related Clerks, which ended on October 23, 2016. The worker was deemed by the WCB as capable of earning $440.00 per week, effective November 5, 2016. The worker's representative appealed this decision. Appeal Commission Decision 169/17, dated December 18, 2017, determined it was appropriate to implement a post-accident deemed earning capacity of $440.00 per week effective November 5, 2016.
On June 12, 2017, the worker's representative contacted the WCB and requested that the worker's claim be reviewed, as they felt the medical evidence provided to the WCB indicated the worker's condition was not improving and was deteriorating. A WCB medical advisor reviewed the worker's file and on July 6, 2017, provided the opinion that the job demands within NOC 1453 remained compatible with the worker's permanent restrictions. The worker was advised on July 19, 2017 that it remained the opinion of the WCB that he was able to work within NOC 1453 Customer Service.
The worker's representative requested reconsideration of the July 19, 2017 WCB decision to Review Office on August 1, 2017. The worker presented the argument that the surgery he underwent in 2013 resulted in his current difficulties, which he described as a recurrence of his workplace accident. The worker's representative submitted a further request for reconsideration on August 9, 2017. With the submission, the worker's representative included a copy of a referral letter from the worker's treating orthopedic surgeon to a neurosurgeon noting "He was operated on by myself in 2013 when a double level disc arthroplasty was done. Unfortunately, this has failed and he has gone onto spontaneous fusion at C5-6 and C6-7 levels." The worker's representative advised the WCB on August 15, 2017 that the worker had been admitted to the hospital on August 8, 2017.
The admission diagnosis provided on August 23, 2017 by the hospital for the worker's August 8, 2017 admission noted, in part:
…Patient with previous neck surgery by [orthopedic surgeon], now suggesting a C5-C8 posterior decompression, awaiting to see [neurosurgeon]. Pain, numbness, both arms weakness.
He is totally sedentary, this man cannot move, and he has pain and numbness in his arms, so he will not be able to work until further notice. He has to be absolutely sedentary, but he will not even fit into a sedentary job at this moment…
On September 20, 2017, a WCB medical advisor reviewed the worker's file and the medical information provided by the worker's representative and provided the following opinion:
1) Is there evidence of a new diagnosis on file? And if yes, on a balance, could it be related to the compensable injury?
The information on file regarding the recent brief admission to hospital relates to a dramatic presentation of total disability due to pain.
…There is no report of any physical assessment of the status of the compensable diagnosis and no information as to any recent incident or injury which would result in a catastrophic clinical deterioration. There is, therefore, no new clinical diagnosis directly related to the compensable injury of cervical radiculopathy and its treatment.
2) Do the permanent restrictions remain appropriate?
Affirmative. There is no change in my opinion, of July 4, 2017.
The worker was advised by the WCB on September 26, 2017 that it was still the opinion of the WCB that his permanent restrictions remained appropriate and he continued to be fit for work within NOC 1453 Customer Service.
The worker's representative filed a further request for reconsideration to Review Office on January 17, 2018. The worker's representative requested that the further medical evidence submitted be reviewed to determine if the worker had suffered a recurrence of the workplace accident and was entitled to full wage loss benefits.
On February 1, 2018, the WCB received a medical report from the worker's family physician. The physician noted "WCB Patient numbness in his face. Weakness left leg. Cervical radiculopathy. ? myelopathy." On February 28, 2018, Review Office advised the worker his claim was being returned to the WCB for further investigation.
The worker was advised on March 8, 2018 that the WCB had reviewed the medical evidence submitted but there was no change to the previous decision that he was able to work within his deemed NOC 1453. On March 9, 2018, the worker's representative requested reconsideration of the WCB's decision. The worker's representative argued that the WCB case manager did not provide a rationale for upholding the decision.
Review Office determined, on April 10, 2018, that the worker's deemed earning capacity associated with NOC 1453 remained appropriate. Review Office relied on and accepted the WCB medical advisor's opinions of September 19, 2017 and March 2, 2018 that the worker's permanent restrictions were appropriate and that the job demands within NOC 1453 remained compatible with those restrictions. The WCB medical advisor also added that in the absence of any clinical evidence, such as a neurological examination, the worker's complaints were not medically accounted for in relation to the workplace accident. As such, Review Office concluded that the deemed earning capacity associated with NOC 1453 remained appropriate.
The worker filed an appeal with the Appeal Commission on June 21, 2018. An oral hearing was arranged.
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.
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.
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."
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.
WCB Policy 220.127.116.11, 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.
The worker was self-represented. The hearing was conducted via a video link.
The worker's position was that the WCB should accept responsibility for his full wage loss benefits as result of this 2012 compensable injury.
The worker addressed the issue of whether his post-accident deemed earning capacity remains appropriate. He advised that:
• he has had an increase in physical symptoms.
• he has had an increase in chronic pain, which had been consistent throughout his claim.
He stated that he had tried to complete his vocational rehabilitation, but was cut off for physical reasons, mainly, physical symptoms and pain escalation. He stated that NOC 1453, which was typically a sedentary position, was no longer appropriate for him.
He advised that he was not discussing his mental issues unless the panel wanted him to.
The worker stated that there is a note on file from his physicians indicating that his surgery failed. As a result he was put off work indefinitely. He said he is waiting to see a neurosurgeon for corrective surgery. He told the panel that he had a scheduled appointment to see the neurosurgeon but that he could not attend because the WCB had denied appropriate arrangements for him to travel to Winnipeg. He said he could not drive to Winnipeg and back in one day and that WCB refused to cover his accommodation. As a result of missing the appointment, he is now on a two-year waiting list to see the specialist.
Regarding other issues, he stated:
Other issues pertaining to my injury, which is, the main focus is the chronic pain, which was opined by [WCB medical advisor] who stated that there was evidence of chronic neuropathic injury, predominately at C6/7, consistent with the compensable diagnosis, cervical radiculopathy.
He stated that a WCB orthopedic specialist had opined that his condition appears to be a complication of the surgical procedure of the two-level cervical disc arthroplasty. He added that the orthopedic specialist also stated a radiculopathy is responsible for his galaxy of symptoms.
The worker advised that his permanent restrictions included that he "can only pull and push less than 10 pounds". He said that his arms weigh more than 10 pounds and that he cannot do any overhead work. He said that he cannot clean his house or maintain activities of daily living in his house.
He advised that he is dealing with severe anxiety and depression, which had been under control as of 2006. He is again using cannabis to deal with this condition. He expressed concern that the WCB has refused to pay for certain prescription drugs which have been prescribed by his physician. He acknowledged that this hearing is not an appeal on that issue.
The worker expressed concern that Review Office leans towards the opinions of WCB medical advisors as opposed to his physicians. He stated that WCB is not providing him with his doctors' requests for medications and is not helping him with his permanent restrictions. He said that the WCB medical advisors disagreed with his physicians with no objective evidence or medical in support of their position.
Regarding his prior surgery, he noted that the orthopedic surgeon who performed the surgery opined that the surgery had failed.
The worker also advised that his heart doctor stated that his tachycardia and high blood pressure are related to the compensable injury, as pain causes high blood pressure.
In reply to a question about the issue to be addressed at the hearing, the worker stated that:
Well, I believe that the main issue is the pain, the thing is the pain is getting worse, and with WCB not providing me or my doctors, my doctor has asked for certain medications to deal with my pain, and WCB has denied it.
In a discussion with the panel, the worker answered questions from the panel about his increase in pain:
Question: How has it increased, in what way? Tell me, when you say, pain has it changed? How has it increased? …
Answer: You know, my daily activities have changed considerably.
Question: In what ways?
Answer: I wake up in the morning, I have a cup of coffee, one cup of coffee, and I feed my pets, and then I’m back to lying down on the couch in a position where I’m comfortable. I don’t eat or cook the same way that I used to, my meals consist of Mr. Noodle and can soups.
Question: What else is changing?
Answer: The way I dress has changed, I wear zip-up hoodies and pajama pants, and slip-on slippers. When I try to put socks on, I get major cramping in my shoulders, in my back, in my arms. I have headaches more often, I have to find my comfortable spot. And like I said, I’m using marijuana, and that takes away my pain.
Question: You say your pain has increased, when did your pain increase like that?
Answer: My pain has been progressively increasing prior to 2016. There’s osteophytes that are pinching my nerves that are causing the pain, which were not there before.
The worker suggested that the panel review the opinion from his family physician, dated August 8, 2018. It was noted that there were two different reports from the physician bearing this date. The worker addressed the report with the heading Diagnoses and Problems. The report indicated under HISTORY, in part:
WCB: Please refer to [orthopedic surgeons'] report, as well as his referral to [specialist]. C5-C8 posterior decompression to be done. The patient is in severe stress and pain. Tachycardia. BP 160/110. Discomfort. Pain. Bilateral. Decided to admit to hospital to control pain and see what his tachycardia does…I am basically trying to control his pain. He is anxious. He is depressed. All of this is exacerbated now by what is going on with his neck…
The worker stated that:
And my pain has increased substantially, it’s objectively shown in the CT scans that there are nerves, that there’s impingement, nerve impingement, that there’s disc osteophyte complexion (complex).
Regarding the reference to anxiety and depression issues in the second report from the family physician, the worker advised that he is not asking the panel to add these conditions to his case at this time. He acknowledged that he was hospitalized on that date at the request of his family physician and was later released. He acknowledged that he has not been hospitalized since that time.
In reply to a question about tachycardia and the high blood pressure, the worker advised that he was told that they are side effects from the pain and injury. With respect to the reference to weakness in the legs, the worker advised that his family physician asked WCB to authorize a conditioning program for him because he was very deconditioned.
The worker submitted that:
There’s objective evidence on CT scans, on x-rays, doctors' reports, stating that my radiculopathy, chronic neuropathic pain, these are opinions of WCB doctors that are agreeing with a failed surgery, that my galaxy of symptoms are related to the failed surgery.
He reiterated that he is only dealing with pain caused by the failed back surgery and not with other conditions.
In closing the worker stated, in part:
I would just like to say that I believe that the hearing we’re having today needs to be focused more so on the escalation of my pain that’s not allowing me to work in a sedentary position. And that it be focused on the facts and objective material by my orthopedic surgeon, by [name], my treating physician, who treated me for over five years, as well as [WCB medical advisor], who opined that my galaxy of symptoms are a complication of the surgery, he agrees with that.
The issue before the panel is whether or not the worker's post-accident deemed earning capacity remains appropriate. The worker expressed the view that he is not able to work and that the deemed earning capacity should reflect his inability to perform any type of work. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker's post-accident deemed earning capacity has changed. The panel was not able to make this finding.
For the worker's appeal to be successful, the panel would require new medical information indicating that the worker's condition has changed to the point that he could no longer perform the duties that the WCB determined he could perform.
The panel reviewed the medical evidence and was not able to find new medical information, such as clinical findings or diagnostic tests related to his compensable injury, indicating that the worker could not work at sedentary duties due to his accepted injury. Accordingly, the panel is not able to find that the worker's current compensable restrictions are not appropriate.
At the hearing, the worker specifically directed the panel to the August 8, 2018 report from his family physician. The panel notes that there were two reports, one from the family physician to the WCB seeking assistance with a referral to a specialist and one noting Admission Diagnosis at a local hospital. Both reports address the worker's current condition but neither provides new evidence regarding a change in the worker's accepted injury or a diagnosis of a pain syndrome or pain condition caused by the injury that would affect the worker's ability to perform employment in NOC 1453.
Given the above findings, the panel finds, on a balance of probabilities, that the worker's post-accident deemed earning capacity associated with NOC 1453 Customer Service Information and Related Clerks remains appropriate.
The worker's appeal is dismissed.
A. Scramstad, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
A. Scramstad - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 21st day of February, 2019