The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that:

1. The worker’s ongoing back complaints are not related to the November 20, 2000 accident; 

2. They are not entitled to further benefits in relation to the back injury; and 

3. It was appropriate to implement a post-accident deemed earning capacity.

A hearing was held on June 27, 2024 to consider the worker's appeal.

Issue

1. Whether or not the worker’s ongoing back complaints are related to the November 20, 2000 accident; 

2. Whether or not the worker is entitled to further benefits in relation to the back injury; and 

3. Whether or not it was appropriate to implement a post-accident deemed earning capacity.

Decision

1. The worker’s ongoing back complaints are not related to the November 20, 2000 accident; 

2. The worker is not entitled to further benefits in relation to the back injury; and 

3. It was not appropriate to implement a post-accident deemed earning capacity.

Background

The worker has an accepted WCB claim for injuries to their right shoulder and low back that occurred as a result of an incident at work on November 20, 2000. The worker sought medical treatment shortly after the incident and was diagnosed with a right rotator cuff and low back injury by their treating family physician. The worker continued to receive treatment and on December 19, 2001, underwent a right rotator cuff repair surgery. Permanent restrictions were put in place for the worker’s right shoulder including no working above shoulder height and no lifting over 20 pounds using the right arm.

With respect to their lower back, the worker was examined by a WCB medical advisor on January 22, 2001. The WCB medical advisor noted the worker’s reporting of daily central low back pain with no radicular signs and decreased sensation to parts of their right leg. The advisor opined the worker had mechanical low back pain after examining the worker and finding discrepancies in straight leg raise testing and that the worker did not meet all of the veracity checks. The worker also attended for chiropractic treatment, and was diagnosed with a lumbosacral strain/sprain with mechanical back pain on March 14, 2001. The worker was later discharged from treatment due to lack of response.

On July 5, 2001, the worker attended for a further call-in examination with a WCB orthopedic consultant. After examining the worker, the consultant indicated the worker had full range of motion in the lumbar spine without discomfort and had reported decreased sensation in their entire left leg. A January 2, 2001 lumbosacral x-ray was reviewed which noted some loss of lumbar lordosis but not significant disc space narrowing. Small anterior osteophytes at L4-L5 consistent with mild degenerative changes were found. The orthopedic consultant opined the worker had no “positive objective findings” after examining the worker’s lower back but did have good range of motion. The consultant noted the worker’s reporting of decreased sensation in their entire left leg and lumbar pain on hip abduction but indicated their belief those findings were doubtful.

A functional capacity evaluation was conducted on June 17, 2002. The physiotherapist evaluating the worker indicated it was a full voluntary effort, with the worker passing 4 out of 5 veracity checks. Range of motion testing on the worker’s lumbar spine was indicated to be “excellent”, with the except of right lateral flexion. However, the physiotherapist noted a lack of correlation between the worker’s demonstrate lumbar spine range of motion and their straight leg raise testing.

The WCB referred the worker for vocational rehabilitation services, with an initial meeting with a rehabilitation consultant taking place on July 15, 2002. The worker was referred for a psychologically-oriented vocational assessment, which took place in August 2002. The psychologist provided their opinion the worker had a significant learning disability and recommended against any formal retraining with an academic component for the worker. Types of occupations involving assembly, repair or other types of mechanically related within the worker’s restrictions were recommended. An individualized written rehabilitation plan for the worker within an occupation of a service station attendant was developed for the worker. The worker was examined by a WCB chiropractic consultant on August 26, 2002. The consultant recorded the worker’s complaints of pain in the left lumbosacral and thoracolumbar spine at the midline, with occasional numbness, usually to their right lateral thigh. Good range of motion, full straight leg raise testing and inconsistent veracity tests were noted. The WCB chiropractic consultant opined there were no findings that would preclude the worker from returning to full, unrestricted duties based on their low back function, noting their worker’s symptoms appeared very mild on presentation. The consultant went on to note the worker’s pain complaints were disproportionate to the “…relatively minimal objective findings on examination.” A short course of chiropractic treatment to December 13, 2002 was approved.

Another functional capacity evaluation was conducted on December 6, 2002. The evaluator found the worker’s range of motion in their spine had changed, with lumbar lateral flexion increasing, with others decreasing. The worker had reported complaints of symptoms in their low back in the L4-L5 and T10-T12 areas and inability to lift from below their knees. The WCB vocational rehabilitation specialist met with the worker on February 21, 2003 to discuss their attempt to secure employment. The worker advised the specialist at that time they did not feel they were able to work due to their back difficulties but did make efforts to find employment and their entitlement to wage loss benefits was continued.

On April 4, 2003, the worker attended another call-in examination with a WCB medical advisor. The advisor noted the worker’s reporting of constant left lower thoracic and left lower lumbar back pain with daily numbness in areas of their lower extremities. After examining the worker, the WCB medical advisor found straight leg raise tests to 90 degrees and noted the worker’s reported thoracic pain was a recent development and not related to the workplace accident. The advisor further noted the worker had been referred for a CT scan and requested the results be provided to them for further comment. The restrictions noted were to avoid repetitive bending and twisting of their low back. The CT scan was conducted on April 25, 2003 and indicated “No focal disc protrusion causing nerve root compression identified. Diffuse posterior disc protrusion prominence and early disc degeneration L4-5.” The WCB medical advisor reviewed the CT scan and provided the opinion the worker’s ongoing back difficulties were not related to the November 20, 2000 workplace accident. The WCB advised the worker on May 27, 2003 ongoing responsibility for their back difficulties was not accepted. On July 7, 2003, the worker was advised by the WCB, a post-accident deemed earning capacity would be implemented as of July 26, 2003.

The worker requested reconsideration of the WCB’s decisions and on December 19, 2003, Review Office found the worker’s ongoing back difficulties were not related to the November 20, 2000 workplace accident and it was appropriate to implement a deemed post-accident earning capacity. Review Office found the medical evidence supported the worker had recovered from the workplace accident and the worker’s occasional low back pain was related to the degenerative changes indicated on the diagnostic imaging. With respect to the post-accident deem, Review Office found the evidence supported there was an active job market for the occupation the worker was deemed capable of gaining employment, which work was within their permanent compensable restrictions.

The worker contacted the WCB various times between 2003 and 2007 to report ongoing back complaints. In addition, the employer contacted the WCB in September 2006 to advise the WCB the worker had returned to work on modified duties. Medical reports were also received from a pain clinic physician, detailing the worker’s treatment for their reported ongoing low back pain. On April 17, 2007, the worker requested Review Office reconsider the December 19, 2003 decision that their ongoing back difficulties were not related to the November 20, 2000 workplace accident. Review Office met with the worker on April 18, 2007 to discuss their reconsideration request. The worker advised Review Office they continued to experience difficulties, and noted when those difficulties were acute, they could not work. The worker further advised they were requesting consideration for full wage loss benefits retroactive to 2003. Review Office advised the worker they would be requesting further medical information from their treating healthcare providers. On May 15, 2007, Review Office received chart notes and other medical information from the worker’s treating pain management clinic physician from November 2006 to April 2007. On June 11, 2007, chart notes from January 2004 to June 2006 were received from the worker’s treating chiropractor. Review Office spoke with the worker’s treating family physician on September 12, 2007. The physician advised they had been treating the worker for a number of years for their ongoing back complaints, with various treatment modalities, and the worker has not reported any improvement. The physician further advised their clinical findings are consistent with the worker’s presentation, and that the worker always had very limited range of motion. Review Office discussed the worker’s file and the medical information gathered with a WCB medical advisor on September 19, 2007. The advisor opined the previous medical advisor’s opinion of May 8, 2003 was correct and the worker’s compensable diagnosis was a soft tissue injury to their low back which would have resolved. It was further noted the worker had degenerative disc disease at L4-L5 at the time of the workplace accident, with the medical evidence provided indicating progression of the degeneration. On September 20, 2007, Review Office determined the worker’s ongoing back complaints were not related to the November 20, 2000 workplace accident. Review Office acknowledged the worker had ongoing low back pain and was receiving treatment by various healthcare providers however, Review Office accepted and agreed with the opinions of the WCB medical advisors that the worker’s compensable injury resulting from the workplace accident was a soft tissue injury for which the worker had recovered.

On several occasions, the worker met with the WCB and requested the decision not to accept further responsibility for their back difficulties. The WCB provided the worker with decisions letters on January 12, 2009, January 15, 2013, February 2, 2015, October 3, 2016 and again on September 5, 2018 advising there would be no change to the decision not to accept further responsibility. On February 24, 2020, the worker met with their WCB case manager and provided further medical information, including information from the out of country spine surgery they had in May 2018. The worker advised the WCB since that surgery, they were no longer experiencing any back difficulties however, due to the opioid medications they were taking for pain, they were unable to work. On February 25, 2020, the WCB advised the worker the information provided would be forwarded to Review Office to reconsider the previous decision.

Review Office determined on March 20, 2020, the worker was not entitled to further benefits in relation to their back injury. Review Office noted the medical information from the worker’s treating orthopedic surgeon provided the worker’s back difficulties were related to the November 20, 2000 workplace accident, with the worker’s degenerative disc disease exacerbated by the accident. However, Review Office preferred the opinions of the WCB medical advisors and concluded the worker’s back difficulties were not related to the workplace accident and represent a progression of the worker’s degenerative changes, which were not caused or enhanced by the workplace accident.

The worker filed an appeal with the Appeal Commission on May 6, 2024 and a hearing was arranged.

Reasons

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by the provisions of The Workers Compensation Act (the “Act”), regulations under the Act and the policies established by the WCB's Board of Directors. The provisions of the Act in effect as of the date of the worker’s accident are applicable.

A worker is entitled to benefits under Section 4(1) of the Act when it is established that a worker has been injured as a result of an accident at work. Under Section 4(2), a worker 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. The Act provides at Section 27(20) that, in certain circumstances, the board may make expenditures as it considers necessary or advisable to provide academic or vocational training, or rehabilitative or other assistance to a worker for such period of time as the board determines.

Section 39 of the Act states that wage loss benefits are payable until the loss of earning capacity ends, as determined by the WCB or the worker reaches 65 years of age.

The WCB has established a policy which describes post-accident earnings that may be included in benefit calculations, Policy 44.80.30.10, Establishing Post Accident Earning Capacity (the “Post-Accident Earnings Policy”). The WCB is a wage-loss model which means it pays a worker based upon the difference between the worker’s average earnings before the accident and what the worker earns, or is capable of earning, after the accident.

Policy 44.80.30.20, Post Accident Earnings - Deemed Earning Capacity (the “Deeming Policy”), is a companion to the Post-Accident Earnings Policy. Usually, a worker’s post-accident earning capacity is the amount that he or she is actually earning. However, there are some circumstances in which the WCB will determine that a worker is capable of earning more than he or she is actually earning. In those circumstances, the WCB will deem the amount that the worker is capable of earning and will include it in the calculation of post-accident earning capacity as if it had, in fact, been earned. The Deeming Policy describes:

1. When a worker will be deemed capable of earning an amount that he or she is not actually earning; and 

2. How the deemed earning capacity will be determined.

The Deeming Policy outlines requirements that the WCB must demonstrate for income to be deemed, which include, at paragraph 3 of the Deeming Policy, the following:

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.

c) The WCB must demonstrate that work exists for the occupation or group of occupations on which the earning capacity is to be based.

d) The WCB will use the Individualized Written Rehabilitation Plan (or similar format) as described in WCB policy 43.00, Vocational Rehabilitation, as the basis for collecting and weighing information about the worker's earning capacity.

Worker’s Position

The worker appeared at the hearing on their own behalf and made an oral submission to the panel in support of the appeal. The worker also provided testimony through answers to questions posed by members of the appeal panel.

The position of the worker is that their ongoing back complaints prior to their surgery in 2018 were related to the accident on November 20, 2000.

The worker’s position is that, until the surgery on their spine, they had not recovered from all of the effects of the injuries sustained on November 20, 2000 and continued to experience the effects of those injuries. Therefore, the worker believes they should be entitled to further benefits after November 20, 2020.

The worker describes having no pain prior to the accident on November 20, 2000.

The worker submits that the decisions made by the WCB were based on the diagnosis of a sprain/strain of the back or mechanical back pain. However, the worker states that this initial diagnosis was made prior to the imaging results being received and reviewed. The worker also argues that the CT imaging was done lying down, which shows a different result than if he had been standing up for the test.

The worker asks that the panel rely on the opinion of the surgeon who performed their back surgery, and who states that the disc prominence at L5 was a result of the worker’s workplace accident. The worker submits that the degenerative changes shown on the imaging are the normal result of aging, but that they were not the cause of the disc prominence.

The worker states that the imaging shows that the disc prominence which approaches the nerve roots and, while there is “no significant nerve root displacement”, this was enough to cause the symptoms the worker was experiencing.

The position of the worker is that it was not appropriate to implement a post-accident deemed earning capacity. The worker states that there was no possible way they could have earned the wage that the WCB deemed as their post accident earning capacity as they were still taking multiple medications and as a result it was not safe for them to be working.

Employer’s Position

The employer did not participate in the hearing.

Analysis

Issue 1:

The question for the panel to determine is whether or not the worker’s ongoing back complaints are related to the November 20, 2000 accident. For the appeal to succeed, the panel would have to determine that the back complaints are a result of the workplace accident. As detailed in the reasons that follow, the panel is not satisfied that the worker’s back difficulties are related to the November 20, 2000 accident.

The worker’s evidence is of severe shoulder and back pain as a result of the workplace accident. The worker described that the action of pulling the snow blower cord caused a complete dislocation of his shoulder. The evidence of the worker was that they were bedridden until their shoulder was repaired. The file shows the worker complained of lower back pain and eventually of decreased sensation to his left leg. The panel notes that the medical evidence on the claim file shows that throughout the file the range of motion tests of the worker’s lumbar spine were good or at times, even excellent and that the straight leg raise tests were negative.

The panel notes that the CT scan of the spine from 2003 shows that there was a disc prominence or protrusion but that there was no nerve root compression from the disc protrusion at that time. This is also consistent with the imaging study in 2014. The panel notes that the treating physicians could not identify any findings to support the worker’s lower limb complaints. While the worker argues that the imaging was done lying down and would have shown a different result had the worker been standing, the panel does not have any imaging results or medical evidence to that effect before it.

The CT scan from 2003 identified that there is early disc degeneration in the spine. The imaging results throughout the file show a progression of the worker’s degenerative disc disease. The panel therefore finds it is probable that the reported symptoms are related to the degenerative changes seen in the imaging rather than the workplace accident.

The panel pointed out to the worker during the hearing that the WCB discontinued responsibility for the claim related to the worker’s back on May 27, 2003, which was after their review the CT imaging results from April of 2003.

The panel relies on the preponderance of evidence from the treating medical doctors, which states that the worker’s symptoms are not related to the workplace accidence but are instead related to degenerative changes.

There is a lack of objective medical evidence before the panel that the accident would have resulted in ongoing back complaints from the date of the accident to the date of the surgery in 2018. The panel finds, on a balance of probabilities, that the worker’s ongoing back complaints are not related to the November 20, 2000 accident.

Issue 2:

The question for the panel to determine is whether the worker is entitled to further benefits in relation to the November 20, 2020 back injury accident. For the worker’s appeal to succeed, the panel would have to determine that as a result of the injuries sustained in the workplace accident of November 20, 2020, the worker sustained an injury that necessitated medical aid or as a result of which the worker continued to experience a loss of earning capacity.

As the panel has determined above that the worker’s symptoms are not related to the workplace accidence, the panel cannot find that the worker is entitled to further benefits.

The worker’s appeal on this question is denied.

Issue 3:

The question for the panel to determine is whether the WCB appropriately implemented a post-accident deemed earning. For the worker’s appeal on this question to succeed, the panel would have to determine that the WCB failed to comply with the requirements of the Act and applicable policies in deeming the worker capable of earning income at the level established for the occupational group selected. As detailed in the reasons that follow, the panel was able to make such a finding and therefore the worker’s appeal is granted on the third issue.

The evidence of the worker is that they had worked for the employer since 1980. The worker had many years of experience in assembly, sales and service. The worker was a sales manager and went to trade shows and dealt with problems at the factory level. The worker describes having independence and autonomy in their position.

The worker also described that their pain level was so high that they were unable to function. The worker says that with all the medication they were taking, they should not have been at work and that it was not safe for them to be working.

While in the hearing, the worker expressed their dissatisfaction with the WCB’s selection of NOC 6621 and job classification (Service station attendant) as an appropriate alternate occupation. The worker stated that a service station attendant requires no training and that he felt he was capable of more. Following the accident the worker returned to his accident employer, rather than work as a gas station attendant.

In reviewing the claim file, the panel noted the process by which the worker’s Vocational Rehabilitation plan was established. A vocational rehabilitation (“VR”) consultant met with the worker in July 2002. The worker was referred for a psychological orientated vocational assessment, which was conducted in August 2002.

In reviewing the claim file, the panel noted that the WCB VR consultant did not adequately consider the worker’s pain levels as an impediment to the VR program. The worker’s symptoms, whether or not related to the workplace accident, were severe and ought to have been given greater consideration as a potential barrier to the worker’s return to work. A recommendation was made that the worker be referred to a pain management clinic, but this was not considered to be the appropriate course of action by the treating physician.

The panel compared the process followed by the WCB in deeming the worker’s post-accident earning capacity with the deeming requirements set out in the Deeming Policy. The Deeming Policy states that the WCB must demonstrate that the worker is capable of competitively finding, competing for, obtaining and keeping employment in the occupation within the NOC. The panel finds that the worker’s pain and abilities as a result of his pain were not sufficiently considered. In the circumstances, the panel is unable to find an evidentiary basis for the determination that the worker was capable of finding, obtaining and keeping employment.

Furthermore, the Deeming Policy states that the WCB must demonstrate that the worker has the physical capacity (among other qualities) needed to obtain and keep employment in the occupation within the NOC. Again, the panel finds that the WCB did not fully consider the physical abilities of the worker. The worker repeatedly expressed concern regarding the condition of his back and stated that his back pain precluded him from working.

Accordingly, the panel finds that errors were made by the WCB in applying the Deeming Policy requirements.

Based on the evidence before the panel and on the standard of a balance of probabilities, we are satisfied that the implementation of a post-accident deemed earning capacity was not appropriate. The worker’s appeal on this question is therefore granted.

Panel Members

R. Lemieux Howard, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

R. Lemieux Howard - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 26th day of August, 2024