Decision #39/19 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that the implementation of a post-accident deemed earning capacity of $418.00 per week effective August 12, 2013 is appropriate. A hearing was held on March 11, 2019 to consider the worker's appeal.
Whether or not the implementation of a post-accident deemed earning capacity of $418.00 per week effective August 12, 2013 is appropriate.
The implementation of a post-accident deemed earning capacity of $418.00 per week effective August 12, 2013 is not appropriate.
This claim has been the subject of a previous appeal. Please see Appeal Commission Decision No. 75/12, dated June 20, 2012. The background will therefore not be repeated in its entirety.
On April 28, 2008, the worker suffered an electrical shock when she grabbed a wet cloth and touched two pieces of machinery to move them apart. The worker reported that the shock "went from my right hand/arm and through my chest and out of my left arm. It was 120V. I was not knocked out. I had mild discoloration but no severe burns on the skin."
The worker attended a hospital facility for treatment on April 28, 2008. The attending physician noted slight tenderness of the left volar wrist at watch strap, no burns, no erythema or discoloration to either palms, digits, wrists and no chest skin discoloration. The diagnosis outlined was a low voltage electrical shock.
The claim for compensation was accepted and benefits were paid to the worker from April 29, 2008 until her return to work on May 5, 2008. On May 21, 2008, the worker advised the WCB that she was experiencing pains in her arms and hands which she related to the April 28, 2008 accident.
On September 9, 2008, the worker's medical condition was assessed by a WCB medical advisor at the request of primary adjudication. Following the assessment, the medical advisor provided the opinion there were inconsistencies in the examination findings and the worker exhibited abnormal pain behaviours. The medical advisor was unable to relate the worker's current symptoms to the April 2008 accident.
Based on the medical advisor's assessment results, primary adjudication informed the worker on September 16, 2008 that no responsibility would be accepted for her time loss from work or medical treatment as it was felt that her pain complaints and symptoms to the upper body were not related to the April 28, 2008 workplace injury.
The worker's representative appealed the decision to Review Office on January 7, 2011 and Review Office determined on February 1, 2011 that there was no entitlement to benefits and services beyond May 21, 2008. The worker's representative appealed the Review Office decision to the Appeal Commission on February 22, 2011. A hearing was held on September 13, 2011. Following the hearing, the appeal panel requested further information from the specialist who conducted a medical assessment of the worker on October 11, 2011. The report from the specialist was later received and forwarded to the interested parties for comment. On January 30, 2012, the panel met further to discuss the case and a Medical Review Panel ("MRP") was requested under subsection 67(3) of The Worker's Compensation Act (the "Act"). On April 27, 2012, the MRP was held and its report to the Appeal Commission dated May 10, 2012 was forwarded to the interested parties for comment. On June 20, 2012, the Appeal Commission decided in Decision 75/12 that the worker was entitled to benefits and services beyond May 21, 2008.
At the request of Compensation Services, a call-in examination of the worker was arranged for November 26, 2012 to determine the worker's functional capacity and ability to participate in vocational rehabilitation. The WCB's physiotherapy consultant noted on November 26, 2012 that the worker was unable to complete the Functional Capacity Evaluation due to "significant symptoms". The WCB medical advisor who examined the worker on November 26, 2012 provided the following opinion, in part:
The examination does not provide clear anatomical distribution in sensation testing. It gives some evidence of allodynia and some evidence of reduction of sensitivity, particular in the forearms. The presentation of the worker was a barrier to providing real insight into the claimant's ability to lift, etc. However, it was clearly evidence objectively that there was difficulty in even making comment on strength of the dorsiflexion, plantar flexion, and hand grip strength of the hands.
I am not sufficiently convinced to give the symptoms and the presentations a diagnosis. There is a clear disconnect between the compensable injury and the current presentation of the worker…
On June 2, 2013, after reviewing surveillance video of the worker conducted after her attendance at the call-in examination, the WCB medical advisor provided an addendum to the examination notes indicating that despite the worker's presentation during the examination, she was seen to be able to tolerate the cooler temperature, was seen lifting and carrying grocery items and was able to sustain activities with no evidence of distress for the 7.5 hours covered by the surveillance video. Based on the WCB medical advisor's review of the file and the video, it was recommended that the worker would have "…no restrictions in terms of gripping, pushing and pulling, hand dexterity, movement of wrists, forearms and elbows. In terms of weight, the worker is capable of lifting weights up to 10 lbs on an occasional basis. The worker has no reduction in physical stamina in terms of ability to sustain activities over a period of time…"
The worker was advised on June 6, 2013, that based on the WCB medical advisor's examination, review of her file and the video surveillance, the WCB was proceeding with vocational rehabilitation planning to explore alternative employment opportunities for her based on her restrictions of no lifting greater than ten pounds.
On July 24, 2013, the worker was advised that a Vocational Rehabilitation Plan had been developed for her with the occupational goal of NOC (National Occupation Code) 6623 other elemental sales. The plan would commence on July 30, 2013 and be completed by April 24, 2014 with the worker's post-accident earning potential noted to be $418.00 per week. Arrangements were made for the worker to attend a twelve week computer upgrading program starting July 30, 2013. On July 31, 2013, the worker was advised by the WCB that attempts had been made to contact her to begin the computer upgrading program however, she had not responded. It was further noted that if she had not registered or attended the program by August 12, 2013, the WCB would implement the deemed earning capacity for NOC 6623 and her wage loss benefits would be reduced.
The WCB advised the worker on August 12, 2013 that as she had not registered or attended for the computer upgrading program arranged for her, the WCB had deemed her earning capacity at $418.00 per week, being the amount she would have been capable of earning at the end of the vocational rehabilitation program developed by the WCB.
The worker requested reconsideration of the WCB's decision to Review Office on October 15, 2013. She noted in her application that her healthcare providers had requested she attend for therapy on her hands and arms before commencing retraining, and provided letters in support from her treating family physician and her Physical Medicine and Rehabilitation specialist.
Review Office on December 13, 2013 determined that the implementation of a post accident deemed earning capacity of $418.00 per week effective August 12, 2013 was appropriate. Review Office found that the worker did not mitigate the effects of her workplace injury when she declined to participate in the vocational rehabilitation plan and did not register or attend the twelve week computer upgrading program arranged for her. Review Office relied on WCB policy 126.96.36.199 Post Accident Earnings - Deemed Earning Capacity which notes:
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 upon completion of the vocational rehabilitation plan.
Review Office agreed with the WCB's decision to implement the deem for NOC 6623 as of August 12, 2013 as the worker had been provided with a notice on July 31, 2013 and still had chosen not to participate in the vocational rehabilitation plan.
The worker filed an appeal with the Appeal Commission on August 16, 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 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 188.8.131.52, 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 attended the hearing with her husband. The worker's physical medicine and rehabilitation specialist (physiatrist) also attended the hearing and provided evidence regarding the worker's medical condition.
The worker noted that a Medical Review Panel (MRP) was convened on her file and that it found a diagnosis of neuropathic pain, with features of complex regional pain syndrome Type 2. She noted that her physicians, specifically her treating physiatrist agreed with this decision. She also noted that the Medical Review Panel found her PTSD was a direct result related to her workplace accident in 2008.
The worker submitted that, after the above decision, everything the WCB planned for her in a VR program was based on a wrong diagnosis, and a total disregard for her PTSD.
The worker called on her physiatrist to give evidence surrounding her diagnosis and treatment. In reply to a question about the worker's diagnosis, the physiatrist stated:
Well, so you have neuropathic pain, which is from an electrocution injury that you had at work, and although I didn't see you for a couple years after that, that was your diagnosis, the electrocution injury, and your features are very, like neuropathic pain is a clinical diagnosis, and so your features are very in keeping with that.
And within that neuropathic pain diagnosis you have had, again, many features of it, including allodynia, which is where if you just brush lightly, it's very painful, the burning, the shooting, the lancinating, the cold, so, many features of neuropathic pain that are very typical. And so there are some features of the complex regional pain syndrome, so when it's associated with neurologic injury it's called Type 2, and that's why the Type 2 part.
The physiatrist explained the classification of Type 1 and Type 2 as follows:
So Type 1 is just out of nowhere, or whatever, after a musculoskeletal injury sometimes.
Type 2 is more when there's been a neurologic thing.
The physiatrist explained that:
So there's, the particular part about what you said about the mild carpal tunnel syndrome, so you did have EMG nerve conduction studies done by one of my colleagues, [name], and the problem with doing those studies is, you measure how fast the nerves conduct, to try and see if there's an entrapment somewhere.
So he did find that you had mild carpal tunnel syndrome, but that is an entrapment syndrome that is likely, you know, maybe you had some carpal tunnel from all the handwork you did at work. But that's, the finding of electrocution injuries sometimes is often not found in the nerve conduction studies, because our pain fibers, our C fibers are these small unmyelinated fibers that don't conduct very fast, and they are the ones that are often causing neuropathic pain.
When you zap from here to here with a nerve conduction study to see how fast that nerve is going, it's the large myelinated fibers, the other type of nerve fibers are working okay, then it will conduct just fine. And so those C fibers, when you've got damage to the C fibers and the pain fibers, you often can't even diagnose that on an EMG and nerve conduction study. So, it really is a clinical diagnosis. So that's why that comment about the mild carpal tunnel syndrome came up, I guess, not in the head of the WCB medical people, but that is I think where that came from. But, again, neuropathic pain is a clinical diagnosis, and as far as measuring those C fibers, you can't really do that.
In reply to a question about whether the worker's condition will ever get better, the physiatrist stated:
So, unfortunately, you know, this type of, with neuropathic pain it's symptom management at this point. I mean, even when I first saw you in 2011, it was already a couple of years after your injury and, you now, if you're going to get neurologic recovery with peripheral nerves and stuff it's going to happen in the first couple years.
The physiatrist explained that her role is to try to help the worker manage her symptoms.
In reply to a question about whether repetitive work like computer work cause the worker pain, the physician explained even examining the worker, including checking grip strength, causes pain. Regarding the worker's ability to return to work, the physiatrist sated:
No. I mean, I don't know what you could do that you're not using your hands in any significant capacity, so the answer is no, as far as I can tell.
The physiatrist had a copy of letters she has written regarding the worker's condition. Copies were provided to the panel and marked as exhibits No. 1 to No. 7 and were attached to the worker's WCB file.
Regarding whether the worker has complex regional pain syndrome, the physiatrist commented:
Although she doesn't have the classic signs of complex regional pain syndrome such as the acute phase or chronic phase, certainly she has neuropathic pain which can be a component of it. So, I mean it's, you know, any syndrome is a constellation of symptoms, so it's not like with a blood pressure, with hypertension you say, okay, this amount equals hypertension, so a syndrome is, you know, putting together all this complex, or, I guess complex, all this constellation of syndromes, of things to make the syndrome. So, yes, there's elements of it, and that's why we keep saying elements of chronic regional pain syndrome Type 2.
The physiatrist declined to answer a question about whether the worker currently has CRPS, noting that she is not an expert in CRPS to make that diagnosis.
Regarding how one typically presents neuropathic pain, the physiatrist commented that:
So typically, you know, yes, it's ever present, but if you try and do something where, even like stretching the nerves, I mean, it's going to be different with everybody, but if you try and do something where you're stretching the nerves or, because the allodynia, like, if you're constantly trying to do anything, then that's going to exacerbate it. So the person with neuropathic pain and allodynia tends to not want to touch anything, and tends to want to just hold their hands in a, like, still, like, whatever. But one of the treatments for it is actually trying to do some desensitization techniques, where you have therapists that actually do certain types of things that can allow those nerves to get used to the sensation.
Regarding treatment of neuropathic pain, the physiatrist commented that:
With neuropathic pain you try to dampen it as quick as possible, so there's no specific time that it's too late. It's kind of like, you know, the more time you go, is -- That's what we think. I mean, we don't have the greatest evidence for that, but we think that the quicker you can dampen neuropathic pain, the better. And so there's even studies with nerve injury of people starting to give gabapentin even before you get neuropathic pain, because really dampening it right away is, you know, the best treatment.
With respect to allodynia, the physiatrist stated:
So you can, I mean, if you do something that's painful to you a few times a day, to function and live life, that's one thing, but if you do that same thing that's painful to you, you know, several times an hour, or whatever, that's a different story. So I mean, I encourage [worker] to live life and, you know, go out shopping, whatever, like, I think that's important for her, to be able to, you know, in a grocery store occasionally grab a can of whatever, but, you know, open a car door. So there's no one that I would say, don't do that stuff, but to do that, like, several times in an hour, like, does opening a car door hurt your hand? But I want you to do that stuff, because it's --
There's a difference between doing it occasionally and trying to still function, rather than sit at home and lie in your bed or sit in a chair all day long and not be able to do absolutely anything, which psychologically and whatever is worse for you. But I don't want that person, you know, constantly doing that, so you have to balance that, for sure. So I know that opening a car door is going to hurt her, but, I mean, cause pain, but I wouldn't want her to have a job where she's constantly opening car doors for people.
Regarding the testing that was performed by the WCB with respect to the worker's ability to use her hands, the physiatrist acknowledged that the limits exhibited by the worker are the same as when she tested her. She noted that the worker can perform many acts once, but cannot perform them on an ongoing basis. She stated:
So if I see that what I do to her when I'm examining her and trying to move her fingers, and trying to get her to move her fingers and wrists, and that causes her discomfort, I wouldn't presumably say that she should be in that level of discomfort consistently all day long. And typically what you see in people with chronic neuropathic pain, or any type of chronic pain, but, is that, you know, if they do something for a short period of time, they can do it. If you do it for, you know, a longer period of time, that it basically can cause a flare as well.
The worker reviewed her file and her contact and interaction with the WCB. She noted that the MRP found that she suffered from PTSD and neuropathic pain with some features of complex regional pain syndrome.
The panel asked the worker about medical treatment she received and is currently receiving. The panel also asked the worker about the surveillance (video) evidence upon which the WCB based its decisions.
In closing, the worker stated, in part, that:
The error is on WCB for not recognizing my pain problem, notwithstanding the reports of Drs. [names], and the three physio reports. WCB did not acknowledge, nor recognize my medical condition and pain.
The error is on WCB. I was set up for failure. I have neuropathic pain with CRPS Type 2, which is a 24/7 pain problem. Everything causes me pain, as well as PTSD, that has not been addressed by WCB.
The video surveillance was showing activities of daily living, but not my daily routine. As shown in two days of videos taken two months apart, I never drove, used a computer, nor carried more than 10 pounds. I can't. The most I carried was one to two pounds. These were simple activities that I have been told to keep doing. I have also been told by the Fair Practices Office, as well as my doctors, that I do not have to do activities that will cause me pain. WCB has to recognize this, rather than re-victimizing the victim here.
The employer firm no longer operates.
The issue before the panel was whether or not the implementation of post-accident deemed earning capacity of $418 per week effective August 12, 2013 is appropriate.
For the worker's appeal to be approved, the panel must find that the deemed earning capacity of $418.00 per week effective August 12, 2013 was not appropriate. The panel was able to make this finding. For reasons that follow, the panel finds that the worker did not have a deemed earning capacity of $418.00 in August 2013.
In making this decision, the panel attaches significant weight to the evidence and opinion provided by the treating physiatrist. The physiatrist opined that the worker continues to suffers from neuropathic pain as a result of her workplace accident. She provided medical reports and her opinion which supports that the worker's current symptoms are related to her workplace accident.
With respect to the WCB call-in examination, the physiatrist agreed with the comments of findings of the WCB medical advisor, but disagreed with the WCB medical advisor's assessment of the worker's abilities and restrictions. The panel accepts the opinion of the physiatrist on this issue.
The panel considered the video evidence but does not equate the limited actions shown in the video to the ability to work full time.
The panel notes that an October 9, 2018 medical report provided by the physiatrist, to the worker's physician, indicates that:
Regarding her neuropathic pain and dysfunction from her electrocution injury several years ago, she describes her pain again as burning, throbbing shooting in the hands bilaterally, especially on the ulnar half of the hand and forearm up to her elbows. Again, she describes that this gets significantly worse with any activity, especially if it is repetitive after a few minutes, such as washing dishes for more than a few minutes. She has had difficulty with activities such as driving since her injury. She describes the nerve pain as also being worse with light touch or even "the wind blowing on it, "which is very typical of neuropathic pain; i.e. it is allodynia.
Regarding the worker's position that she suffers from PTSD as a result of her workplace injury, the panel advised the worker at the hearing that it is not able to address this matter as it must first be addressed by the WCB and the Review Office.
The panel finds that the implementation of a post-accident deemed earning capacity of $418.00 per week effective August 12, 2013 was not appropriate.
The worker's appeal is approved.
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 9th day of April, 2019