Decision #29/19 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his physical restrictions are appropriate. A hearing was held on October 30, 2018 to consider the worker's appeal.
Whether or not the worker's physical restrictions are appropriate.
The worker's physical restrictions are appropriate.
The worker reported injuring his lower back to the WCB on August 9, 2013 in an incident that occurred on August 1, 2013 described as:
I do believe, it occurred when I was hammering railway spikes or climbing in and out of equipment. Really unsure.
The worker sought medical attention at the urgent care department of a local hospital on August 4, 2013. He was examined by a doctor and diagnosed with acute radicular pain in his right leg. An x-ray taken during the examination indicated "Mild degenerative changes L5-S1."
The WCB accepted the worker's claim for a lower back injury on September 3, 2013 and the payment of wage loss and other benefits started. The worker returned to work on a graduated basis but discontinued due to ongoing symptoms. On December 3, 2014, the worker underwent a Functional Capacity Evaluation (FCE) which identified restrictions of:
• Limit bilateral carry to 8lbs. and occasionally to 20 lbs.
• Limit floor to thigh lifts to 9 lbs. and occasionally to 18 lbs.
• Limit thigh to shoulder lifts tom (sic) 14 lbs. and occasionally to 25 lbs.
• Limit overhead lifts to 8lbs. and occasionally to 16 lbs.
After a further review by a WCB medical advisor on October 6, 2015, the worker's restrictions were determined to be permanent. The worker and the employer were advised of the restrictions on October 14, 2015. On November 3, 2015, the employer advised that they could not accommodate the worker's permanent restrictions and the worker was then enrolled in the WCB's vocational rehabilitation (VR) program. After a discussion with his VR worker and his case manager, the worker's claim file was reviewed again by a WCB medical advisor who, on December 10, 2015, added the following to the worker's permanent restrictions:
• Limit sitting or standing for periods of greater than 30 minutes at a time without the opportunity to stand or sit.
On January 25, 2017, the worker was advised by the WCB that there was no medical information on his file to support a restriction on the number of hours he can work and his permanent restrictions remained unchanged.
The worker requested reconsideration of the WCB's decision to Review Office on February 15, 2017. The worker noted in his request that he had returned to work on a graduated basis of four hours per day but felt "great discomfort and pain." He noted that he worked limited hours and modified duties but could only work "a couple of days in a row, then my manager would send me home cause (sic) I could barely move."
Review Office determined on March 14, 2017 that the worker's restrictions were appropriate. Review Office noted that the worker's restrictions were identified based on the worker's abilities demonstrated at an FCE in December 2014. As it was noted the worker passed the FCE's validity checks, Review Office accepted the results of the FCE and the WCB medical advisor's opinion that the worker required restrictions regarding his compensable workplace injury. Review Office further noted that the FCE did not have any formal testing regarding the worker's ability to stand or sit for periods of time, so the type of back injury the worker sustained was considered. Review Office found, on a balance of probabilities, that the worker's restriction regarding limiting standing or sitting for greater than 30 minutes to be reasonable based on the worker's compensable injury. However, Review Office determined that if the worker performed his job duties within the permanent restrictions set out, it would not compromise his workplace injury and as such, he would not require reduced work hours.
On June 2, 2017, the worker submitted further medical information dated April 26, 2017 from his athletic therapist with the following recommendation:
Given the patient's current condition and previous experience with increased work hours, I strongly believe there will be much difficulty and a likelihood to exacerbate current symptoms. The patient should continue with shortened work hours; as well as, return to a rehabilitative program focusing on improving a quality pain free range of motion in the hip and spine, and functional capacity.
The WCB advised the worker on June 28, 2017 that the medical information from his athletic therapist would be considered by Review Office to determine if the information changed or impacted their March 14, 2017 decision.
Review Office determined on August 10, 2017 that the worker's current physical restrictions were appropriate and found, on a balance of probabilities, there was no need to limit his hours of work.
An MRI was conducted on the worker on December 15, 2017. The MRI noted "There is potential for irritation of the S1 nerve roots." Based on the MRI evidence, a call-in examination with a WCB orthopedic specialist was arranged for January 31, 2018. On February 8, 2018, the worker was advised by the WCB that the WCB orthopedic specialist had recommended a change to his restrictions and they were now:
• No lifting and carrying more than 9 lbs.
• No repetitive twisting and bending of the spine.
• No sitting, standing or walking for periods greater than 10 minutes at a time without opportunity to rest lying down.
On February 22, 2018, the worker's case manager sent the worker a further letter noting that his claim had been reviewed and a meeting had been arranged with the WCB orthopedic specialist who had conducted his call-in examination on February 14, 2018. It was determined that there was no basis to support a change in his restrictions as noted in the WCB's letter of February 8, 2018. The WCB orthopedic specialist confirmed that there was an insufficient change in the MRI studies conducted in 2015 and 2017 to account for the worker's report of increasing pain and decreased function. The WCB orthopedic specialist clarified that the recommendation for the change in the worker's restrictions was based on the worker's subjective complaints of increased pain with activity and not based on objective medical findings. The WCB further clarified that the worker's restrictions remained unchanged.
The worker requested reconsideration of the WCB's decision to Review Office on May 2, 2018. The worker disagreed with the WCB's decision to reverse the restrictions set out by the WCB orthopedic specialist on February 8, 2018. The worker felt that those restrictions better indicated what he was capable of doing with respect to his job duties.
On May 11, 2018, Review Office determined that the worker's restrictions were appropriate. Review Office accepted the WCB orthopedic specialist's February 14, 2018 comments and noted that there was an insufficient change in the MRI conducted on the worker in 2015 and the MRI conducted in 2017. On a balance of probabilities, Review Office found that the worker's restrictions set out in the February 22, 2018 letter from the WCB were appropriate.
The worker filed an appeal with the Appeal Commission on May 31, 2018. An oral hearing was arranged.
Following the hearing, the appeal panel requested additional medical information prior to discussing the case further. The requested information was later received and was forwarded to the interested parties for comment. On February 14, 2019, the appeal panel met further to discuss the case and render its final decision on the issues under appeal.
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.
Under subsection 4(1) of the Act, where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid to the worker by the WCB.
Subsection 39(1) of the Act provides that wage loss benefits will be paid: "…where an injury to a worker results in a loss of earning capacity…" Subsection 39(2) of the Act provides that the WCB will pay wage loss benefits until such a time as the worker’s loss of earning capacity ends, or the worker attains the age of 65 years.
WCB Board Policy 184.108.40.206 (the "Deeming Policy") deals with "Post Accident Earnings - Deemed Earning Capacity." Loss of earning capacity is defined as the difference between a worker’s average earnings before an accident and what the worker is determined or deemed to be capable of earning after the accident. Among other things, the Deeming Policy specifically describes how deemed earning capacity will be determined for individual claims and states that it must be demonstrated that a deemed earning capacity is reasonable and realistic. Where deemed earning capacity is used, it means that wage loss benefits will be paid as if the worker were actually earning the deemed amount.
The worker was self-represented. He confirmed that he is appealing the WCB Review Office decision regarding his physical restrictions. He expressed concern that the WCB orthopedic specialist revised his work restrictions and then three weeks later, after talking to his case worker, the WCB orthopedic specialist then revoked his recommended change to the worker's restrictions.
The worker explained that he was examined by a WCB orthopedic consultant on January 31, 2018 who reviewed and revised the restrictions on his ability to return to work. The worker's revised restrictions were noted to be:
a) No lifting and carrying more than 9 lbs.
b) No repetitive twisting and bending of the spine.
c) No sitting, standing or walking for periods greater than 10 minutes at a time without opportunity to rest lying down.
The worker advised that, subsequently, his restrictions were changed back to his previous restrictions which provided:
Limit bilateral carry to 8 pounds and occasionally 20 pounds.
Limit floor to thigh lifts to 9 pounds and occasionally to 25 pounds.
Limit thigh to shoulder lifts to 14 pounds and occasionally to 25 pounds.
Limit overhead lifts to 8 pounds and occasionally to 16 pounds.
Limit sitting and standing for periods of greater than 30 minutes at a time without the opportunity to stand or sit.
As well the worker noted that in an addition to his restrictions, the WCB determined that the worker was fit to work within the functional abilities required for NOC (National Occupational Classification) 1453, Customer Service, Information and Related Clerks, with a deemed earning capacity of $440.00 per week.
The worker questioned the appropriateness of reversing the restrictions.
He advised the panel that:
I was in rehab or through physical therapy right up until 2016, I do believe, up until September. And I’ve always had issue when they did the timing of the evaluation for restrictions as I was at the peak of my recovery.
He reported to the panel that his treating neurosurgeon told him that the minute he stops attending physical therapy, he would degrade quite significantly over time.
The worker advised that he also had issues with his own physician who he reported to a medical authority, as the physician wasn’t sending in medical reports. He said that he attended the physician regularly and had expected him to send in reports on his condition, which he stated had worsened. He also advised that he is on a two-year wait list to see a neurosurgeon. He advised that he had an outside evaluation done in the spring of 2017 which he submitted to WCB.
The worker explained that last year he worked for a friend over the Christmas rush. He worked in a dispatch role, did a little front end store work, which he said falls into NOC 1453. He said he was only able to work for seven hours but he was sent home on the seventh day because he could not get through the six hours on that day. He said he took 24 Tylenol 400s, just to get through the pain, and was doing exactly what the WCB wanted him to do.
He also said that he could not obtain employment in a call center due to his restrictions. He said that as a telemarketer he would be required to sit for long periods of time at a desk, working on a computer, yet his restrictions include that he should be able to change positions as needed, stand up, and move around.
In reply to a question, the worker confirmed that he didn’t have a problem with the lifting restrictions or the lifting and carrying and twisting and repetition. He said that his problem was working eight hours a day.
He said that he tried to work for an online company last year, and he couldn’t work for four hours a day. He was also concerned about his sitting and standing tolerance and restrictions.
The worker's employer did not participate in the hearing.
The issue before the panel is whether or not the worker's physical restrictions are appropriate.
In order for the worker's appeal to succeed, the panel must conclude that the evidence supports the finding that the worker's restrictions do not adequately accommodate the permanently disabling effects of the worker's compensable condition. The panel is not able to reach that conclusion. The panel finds, on a balance of probabilities, that the restrictions are appropriate.
The panel finds that the worker's complaints related to his physical restrictions are not supported by the medical evidence on the worker's file. The panel could find no basis to limit the worker's hours of employment to four hours per day nor to limit his sitting and standing to periods of 10 minutes. The panel notes that the WCB orthopedic specialist acknowledged that the change in restrictions was in relation to the worker's non-verifiable complaints of increased pain on activity, not on a change in objective medical findings.
In conclusion, the panel finds that the worker's ongoing restrictions are correctly noted as:
Limit bilateral carry to 8 pounds and occasionally 20 pounds. Limit floor to thigh lifts to 9 pounds and occasionally to 25 pounds. Limit thigh to shoulder lifts to 14 pounds and occasionally to 25 pounds. Limit overhead lifts to 8 pounds and occasionally to 16 pounds. Limit sitting and standing for periods of greater than 30 minutes at a time without the opportunity to stand or sit.
The worker's appeal of this issue 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 15th day of March, 2019