Public Decision No. 123/2010
Return to Public Decisions for 2010
The worker suffered an injury to his right shoulder in a work related accident. In August 2007, it was determined by the Workers Compensation Board ("WCB") that the worker was fit to return to a modified duty position with his employer. The worker refused to participate in the modified duty position and his entitlement to benefits ended on August 26, 2007. The worker disagreed and an appeal was filed with Review Office. Review Office upheld the decision that the worker was capable of performing the modified duty position and was not entitled to benefits. The worker appealed the decision to the Appeal Commission and a hearing was held on November 4, 2010 to consider the matter.
Whether or not the worker is entitled to full wage loss benefits after August 26, 2007.
That the worker is entitled to full wage loss benefits after August 26, 2007.
The worker reported that he injured his right shoulder on September 28, 2005 while performing the following work related activities:
"I was shoveling wood chips that pile on top of the trailer. The wood chips are packed together and I had to use force to shovel them into the corners of the trailer. I was shoveling for an hour and after that my arms were sore. About 2-3 hours later I started to get pressure and tightness in my right shoulder like someone was pushing their knuckles beside my shoulder blade."
Following the accident the worker sought medical attention and was diagnosed with a right rotator cuff strain or rhomboid muscle strain. As his shoulder difficulties continued, the worker underwent an MRI assessment and a subacromial spur was identified with no rotator cuff changes. On October 5, 2006, the worker underwent an arthroscopic acromioplasty of the right shoulder and the postoperative diagnosis outlined was a right shoulder subacromial impingement.
On March 13, 2007, the worker was examined by a WCB medical advisor as the file notes indicated that the worker's shoulder pain did not improve despite physiotherapy, ultrasound, TENS massage and exercise. Following the examination, the medical advisor noted that there was clinical evidence of a myofascial pain syndrome and treatment for the area was recommended. It was felt that the worker was fit for modified duties with long term restrictions. The medical advisor felt there was no pre-existing condition affecting the worker's recovery.
In a report dated March 14, 2007, the treating surgeon stated that the worker's shoulder "is no better after the acromioplasty and in fact is worse with some myofascial regional pain around the parascapular area". It was felt that the worker had a permanent disability and the surgeon was not optimistic about the worker returning to work as a truck driver. It was recommended that the worker be retrained for alternative duties which would not involve heavy activity involving the arm.
In early July 2007, a WCB case manager stated in a note to file that she was awaiting a formal response from the employer about accommodating the worker into a modified duty position but in the meantime was referring the claim for vocational services.
On July 10, 2007, the worker told his case manager that he considered himself to be totally disabled due to his shoulder status but agreed to speak with a WCB vocational rehabilitation counselor. On July 16, 2007 a Vocational Rehabilitation Initial Assessment was conducted.
The worker's compensable restrictions were as follows:
- No lifting greater than 20 pounds;
- No overhead work;
- No repetitive or sustained activity with the right arm away from the body;
- No static positions with the neck.
In e-mail correspondence dated August 20, 2007, the employer advised the WCB that they had a job for the worker that involved travelling to Winnipeg to pick up parts and supplies, sorting and stocking the parts as well as security detail. On August 22, 2007, the worker was provided with the details associated with his return to work position. It was indicated to the worker that the job would commence on August 27, 2007 at 40 hours per week and that he would be paid his regular wages.
On August 23, 2007, the worker expressed concerns to his case manager that he was not capable of alternate duties and was not confident that he could participate in VR. The worker stated that he was in constant shoulder pain and was unable to do housework activities.
On August 27, 2007, the case manager wrote the worker to advise that a review of the alternate duty position showed that it was within his physical capabilities and was a reasonable accommodation on the part of his employer.
On August 28, 2007, the case manager recorded that the worker was opposed to the alternate duty position for the following reasons:
- he was not capable of working and currently was too disabled to work;
- the restrictions were inadequate and did not reflect his level of pain and disability; there was no restriction against shoveling or sweeping;
- the worker did not consider the accident employer to be his employer as they told him following the accident that he was laid off even though later they said that he wasn't;
- the worker was a practicing Christian and has never worked on Sundays as he attends a service and treats it as a day of rest.
- he no longer had a vehicle and had no way to get to the workplace.
File records showed that the worker contacted his case manager on September 4, 2007 to advise that he was unable to perform the alternate duties as driving aggravated his shoulder. He indicated that the repetitive activity with the arm away from his body caused him pain and that he cannot accept the security portion because of religious reasons.
In a submission to Review Office dated September 5, 2007, the worker appealed the case manager's decision of August 22, 2007. The worker felt that he was unable to perform the modified job duties as driving aggravated his shoulder and was outside the restriction of no repetitive or sustained activity with the right arm away from the body. He noted that sorting and stocking heavy equipment parts were outside of the 20 pound restriction and that because he was a follower of Christ, Sunday was a day of worship.
On September 5, 2007, the employer advised the WCB that the worker did not report to work as planned nor had he been in contact with them since he left their employ in September 2005. This left them without security at the work site and they had to hire someone else for the position.
On October 4, 2007, Review Office determined that there was no entitlement to wage loss benefits after August 27, 2007. Review Office outlined the following as a basis for its decision:
- there was no further medical documentation to contradict the worker's ability to work within the physical restrictions;
- the treating specialist felt the worker was capable of work that did not involve heavy activity with the right arm;
- the alternate duties were within the worker's restrictions, which did not preclude him from driving; and,
- with respect to Sunday being the worker's day of worship and rest, Review Office did not consider this to be a reason not to participate in alternate duties on any other day of the week.
The worker was interviewed at the WCB's Pain Management Unit ("PMU") on October 9, 2007. In a PMU case conference held on November 15, 2007, it was determined that the worker did not meet the criteria for chronic pain syndrome as per WCB Manitoba criteria as the disability was not proportional in all areas of functioning.
In a letter to the WCB dated November 21, 2007, the treating physician stated: "I last saw this gentleman at my office on November 19. He is unable to drive as a job at this point because of the pain in his shoulders. He recently was taking his uncle into Winnipeg and found this driving very painful, especially when he has to keep his hands up in the 10 o'clock - 2 o'clock position. Although he may tolerate driving for short periods of time I do not think this would be the appropriate job for him".
In 2008, the worker continued to receive medical treatment for his shoulder difficulties. Based on the results of a Functional Capacity Evaluation, it was determined on December 29, 2008, that the worker's restrictions were as follows:
· no overhead work with right arm away from the body against force
· no pushing/pulling over 60 pounds
· no carrying over 20 pounds
· no lifting over 30 pounds
On April 9, 2009, a worker advisor submitted to Review Office that the worker was entitled to partial wage loss benefits after August 26, 2007 and to full wage loss benefits after September 5, 2007. The worker advisor noted that in a memo to file dated August 20, 2007, it was indicated that the worker was going to be provided with modified duties at 40 hours per week. However, based on the employer's information, the worker's hours per week pre-accident were on average 60 hours per week. It was felt that although the worker did not participate in the available modified duties, there was an entitlement to partial wage loss benefits based on WCB Policy 43.20.25, Return to Work with the Accident Employer.
The worker advisor also submitted that the worker remained in a loss of earning capacity beyond September 5, 2007. The worker advisor noted that the employer informed the case manager on September 5, 2007 that alternate duties were no longer available because the job was no longer available. The worker advisor referred to a medical report dated October 5, 2007 which indicated that the worker "would not be able to tolerate a driving job" and this supported that the driving duties involved with the modified duties were not appropriate. Also indicated was that the worker's drive to his Functional Capacity Evaluation on December 1, 2008 resulted in an increase in his right shoulder pain.
On May 29, 2009, the employer stated, in part, "In offering [the worker] a position with our company August 2007 with the understanding he was capable of modified duties… It was with our understanding that he would be paid for any wage difference, which we totally agree with".
In a June 4, 2009 decision, Review Office determined there was no new evidence submitted to change its decision of October 4, 2007. Review Office outlined the opinion that the presence of pain would not preclude the worker from participating in the alternate duty program; that the alternate duty program included a variety of tasks of which driving was one part; there was no requirement for an employer to keep a position open indefinitely when a worker refuses to participate in a return to work program; and it was reasonable for the employer to make other arrangements to ensure their operational needs were being met.
Review Office also determined that there was a basis to provide the worker with partial wage loss benefits effective the date that the alternate duty program was to commence on August 27, 2007.
On July 27, 2010, the worker appealed the Review Office's decision that he was not entitled to full wage loss benefits after August 26, 2007. A hearing was then arranged.
Chairperson Walsh and Commissioner Walker:
The issue in this appeal is whether or not the worker is entitled to full wage loss benefits after August 26, 2007.
This appeal turns on the issue of whether the modified duties of the job which was offered to the worker in August of 2007, were suitable, given the worker's medical and physical condition. In August of 2007, wage loss benefits were discontinued when the Case Manager thought a job offered suitable alternate duties. On October 4, 2007, the Review Office determined that the alternate duties offered by the employer were within the worker's physical restrictions. Among other things, it found that those restrictions did not preclude the worker from driving and that there was no evidence that the worker was physically incapable of driving. It therefore upheld the decision that there was no entitlement to benefits after August 26, 2007.
The majority panel is of the view the evidence does support a finding that the job which was offered to the worker in August of 2007 was not suitable given his physical capabilities. In particular, the medical evidence supports a finding that the worker was physically incapable of performing the driving duties at the time the modified duties were offered and subsequent. Based on the evidence which came out at the hearing, it is clear that the job which was offered by the employer was one which involved a significant amount of driving and was, therefore, not suitable for the worker.
From the evidence given at the hearing, it is clear that both the employer and the worker had concerns about the suitability of the duties which the employer was able to offer in August of 2007. The majority panel has reviewed the evidence at the hearing and on file so as to ascertain whether the modified duties did in fact match the worker's physical condition and restrictions. In our view, based on the evidence, they did not.
WCB policy 43.20.20 entitled Modified and Alternate Return to Work with the Accident Employer deals with modified and alternate return to work with the accident employer. The stated purpose of the policy is to reduce the impact of injuries by helping the worker to return to work. The policy acknowledges that this is best achieved by returning the worker to the same job with the same employer. Pursuant to the policy, the WCB becomes involved in such placements when either the worker or employer requires financial or technical support to help the worker return to work or where the worker and employer disagree about whether the modified work placement is appropriate.
Section B.2 of the policy entitled Goals and Objectives provides that
"Modified or alternate work facilitates a safe return to work with the accident employer and helps workers regain their earning capacity. The primary goal after the injury is to safely return the worker to work. The best approach is a co-operative arrangement between the accident employer and the disabled worker. Returning to work with the same employer … includes modified or alternate work.
The worker and employer should establish most placements jointly to ensure the return to work is safe and timely. The WCB will become involved when there is a need for special services or assistance."
Section B.4 of the policy entitled Criteria – Acceptable Modified or Alternate Work provides that when the need for WCB involvement in a modified work situation has been established the WCB will work with the worker and the employer to help the worker safely return to work. The criteria in the policy require that the WCB must believe that the worker can do the job without aggravating or enhancing the injury and that the placement considers the worker's pre-injury job, along with the worker's post-injury physical capabilities, aptitudes and skills.
The policy also provides that when the employer initiates the modified or alternate work and there is a disagreement about whether it is suitable for the worker, then the WCB will determine if the work placement is appropriate under the policy. If it is, and the worker refuses to participate after being informed by the WCB, compensation benefits will be reduced or eliminated by an amount consistent with the amount the worker would have earned in the modified or alternate work situation. In this case, as discussed above, because the WCB determined that the job offer was suitable it discontinued the worker's benefits when he expressed concern about and refused to participate in the modified duties.
In the majority panel's view, in August of 2007, at the time the job offer was made, the policy requires that the modified duties offered by the employer were appropriate for the worker in light of his physical capabilities, aptitudes, and skills.
Based on a totality of the evidence, the majority panel determines that the work placement in this case was not appropriate and therefore disagrees with the termination of wage loss benefits after August 26, 2007, once the modified position was offered.
In reaching this decision, the majority panel relies on the following evidence.
The appeal panel had the benefit of hearing directly from the employer. His evidence was clear that driving formed a significant part of the job which was being offered. In describing the modified job duties, the employer testified that in an effort to offer the worker meaningful work it had bundled together three different types of jobs totaling a 40 hour week. Previously the worker had been employed at a 60 hour week. Included in those 40 hours were two 10 hour days which would involve 6 hours of driving per day. Also included was a security position where the employer would drop him off at a bush camp on Friday afternoon and pick him up 48 hours later for a flat fee of $250.00.
The employer testified that it was unable to offer even a 40 hour week without any driving at all. The employer also testified there was no discussion with the WCB about whether or not the worker was allowed or able to drive.
It was the worker's evidence as well that just to get to the job site involved a 4 hour drive from where he lived.
It should be noted that in all of the appeals which were filed by the worker, of the various decisions made in this matter, his main area of focus has been his inability to fulfill the driving requirement associated with the job offered by the employer. The evidence in the file shows that an inability to drive was a concern of the worker's from the outset.
As early as November 2005 there is evidence in the WCB file of discussions between the Case Manager and the worker regarding the worker's ability to drive. In a memo to file dated November 24, 2005, the Case Manager documented discussing a driving only position that was offered to the worker. The note indicated that the worker still had concerns about his ability to perform those duties. The Case Manager, in response, indicated that she would ask the worker's doctor about his ability to drive only, by sending a fax in advance of his medical appointment. This fax was sent on November 28, 2005 to the worker's physician. Specifically the Case Manager advised "The claimant's employer is attempting to accommodate him with an alternate duty position which would involve driving only (chip truck). Is the claimant able to drive? Please advise."
Unfortunately, the report which the physician provided in response did not specifically address the question regarding driving. The physician did, however, indicate that it was unknown as to when the worker could return to regular duties and that at that time (as of November 29, 2005), the worker was not capable of alternate or modified work.
There is no evidence in the file that this physician ever answered the question asked.
Ultimately the worker had surgery on his shoulder on October 5, 2006 but unfortunately, despite a variety of treatments, he did not experience improvement.
The worker was seen by a WCB Physical Medicine and Rehabilitation Consultant on March 21, 2006. The physician noted in his report that the worker expressed concern with respect to employment that because of the discomfort in his shoulder, he was unable to shift or handle a steering wheel.
The worker was examined in a call-in examination by the WCB Medical Advisor on March 13, 2007. The Medical Advisor noted that the worker indicated that when driving, he was using his left arm more and even resting his right arm in one position would increase his pain. The Medical Advisor found that the worker would be fit for modified duties with no lifting greater than 20 pounds, no overhead work, no repetitive or sustained work with his right arm away from his body, no repetitive motions with the right shoulder, and no static positions with his neck. She further found that the prognosis for him to return to his pre-accident duties was considered guarded due to the length of time of his symptoms.
On March 14, 2007, the orthopedic surgeon who performed the shoulder surgery stated in a report: "We feel that he has a permanent disability and are no longer optimistic about his chance of returning to work as a truck driver. We feel that he would have to be retrained for alternative duties which will not involve any heavy activity involving the right arm."
The WCB, therefore, in July of 2007, made a decision to refer the worker for vocational services.
In a memo to file dated July 10, 2007, the Case Manager recorded a discussion she had with the worker that day in which the worker advised he was unable to attend an appointment at the WCB because he was in too much pain to drive to Winnipeg. He stated he had a migraine headache and a lot of pain in his shoulder. He also questioned why he had to meet with the Vocational Counselor.
The Case Manager explained that while the likelihood of his returning to driving was very poor, the worker was not totally disabled and the vocational rehabilitation services would prepare him to return to work that was within his physical capabilities.
The evidence is clear, therefore, that as of July 2007 an acknowledgement was already recorded in the medical evidence listed above, regarding the worker's inability to return to full-time driving. It was for this reason that the worker was being sent to vocational rehabilitation for vocational rehabilitation services.
The worker did attend for vocational rehabilitation assessment. He testified that he found just participating in the initial assessment caused him a considerable amount of pain and discomfort and he was bedridden after the initial assessment was performed. Shortly after his initial participation in vocational rehabilitation, however, the worker was offered the modified duties as described above, by the employer. The WCB determined that the modified duties were within his restrictions and appropriate and therefore discontinued the vocational rehabilitation process. Throughout, the worker maintained that he was unable to participate in the job which was offered largely because of the driving component.
The file does note and the worker acknowledged in his testimony that he raised a number of other reasons as to why the job was not suitable. Those included the fact that part of the job required him to work on a Sunday, which was contrary to his religious practices.
The worker was asked at the hearing about the variety of reasons other than an inability to drive that he put forward in disputing suitability of the job. The worker testified that his main objection to the job was his physical inability to drive but that when that was not accepted by the WCB he "panicked" and began to list additional reasons.
As indicated above, the majority panel is of the view that the medical evidence supports a finding that the worker was physically incapable of performing the driving duties at the time the modified duties were offered. The majority panel notes the following evidence that supports this finding.
Repeated concerns were raised by the worker about his ability to drive. These concerns were noted by the WCB Physical Medicine and Rehabilitation Consultant in his report of March 21, 2006 and by the WCB Medical Advisor in her report of March 13, 2007. And the orthopedic surgeon himself in his report of March 14, 2007 advised as to the worker's inability to return to work as a truck driver.
The worker's concerns about his ability to drive were again documented in September 2007. On September 4, 2007, the Case Manager noted a phone call in which the worker again discussed the pain he experienced when spending any time driving. The worker also expressed the view that the act of driving which required repetitive activity with the arm away from the body was included in his physical restrictions. The Case Manager advised the worker that her understanding of the restrictions he referenced would not preclude him from driving but that she would double check with the WCB physician and get back to him. There is no evidence in the file that this was ever done, however, there is a medical report dated August 24, 2007 from the worker's physician which noted that the worker advised he felt he could not do the job which had been offered by the employer because of experiencing pain when driving. The physician noted that he asked the worker whether he could do a driving job if one could be arranged more locally and that the worker indicated a willingness to do this.
When asked about this at the hearing, the worker testified that although he experienced pain in driving, he had been willing to try something that required less driving than the job that was offered by the employer on August 20, 2007, especially given that even to attend to that employer's job site required a 4 hour drive from his home.
Again, on October 5, 2007, the worker's physician reported that the worker could not even tolerate driving from his home to Winnipeg and therefore "would not be able to tolerate a driving job."
On November 21, 2007, the worker's physician wrote again to the WCB advising that the worker was unable to drive as a job because of the pain in his shoulders. The physician stated "Although he may tolerate driving for short periods of time I do not think this would be the appropriate job for him."
The WCB medical advisor later sent a letter to the worker's physician on July 21, 2010 in which she indicated that she had not understood driving to be part of the worker's restrictions and she asked the worker's physician whether he had new information that restricted the worker's ability to drive.
In response, on July 22, 2010, the physician reiterated his opinion to the WCB Medical Advisor reaffirming that the worker "… should have a driving restriction limiting his driving to less than 2 hours a day".
The worker pointed out at the hearing that he and the WCB Medical Advisor had talked about driving and the worker's difficulties in doing so when he saw the Medical Advisor in March of 2007. The worker testified that he told the Medical Advisor that it was not simply shifting that bothered him with driving but also reaching up and out towards the steering wheel and handling the steering wheel. Indeed the Medical Advisor's report of March 13, 2007 acknowledges "when driving, he uses his left arm more and even resting his right arm in one position will increase his pain".
The worker pointed out in his testimony that this was six months before the employer's job offer was made.
The evidence was clear that the worker had no real experience or skills other than driving a truck. Indeed, it was for this reason that he was being sent for vocational rehabilitation training because it had been acknowledged by the WCB that full-time truck driving was no longer a suitable occupation.
Given the evidence at the hearing from the employer as to the extent to which the modified duties involved driving a truck, therefore, the worker's failure to participate in that job does not seem unreasonable.
Accordingly, the majority panel finds it was reasonable for the worker to express concerns about participating in the modified duties offered by the employer and to expect further clarification before being required to participate in same. The evidence at the hearing from both the worker and the employer showed that further discussions between the worker, the employer and WCB were expected before finally determining the suitability of the duties which the employer was offering in 2007.
Based on the evidence it is clear that even in 2005 the worker was expressing concern about his ability to drive without pain. Reference is made in the medical reports by WCB physicians to the worker reporting an inability to drive without pain, in 2006 and 2007. The orthopedic surgeon advised as early as March of 2007 that he did not think the worker would return to truck driving. Vocational rehabilitation was therefore recommended. It was terminated, however, early on because of the timing of the modified duties which were offered by the employer. The employer was appropriate in making efforts to bundle together duties which would constitute meaningful modified work for the worker. The evidence at the hearing made it clear, however, that the modified duties involved a significant portion of driving and that both the employer and the worker felt that further discussion was required to ascertain the suitability of the modified duties for the worker.
The FCE which was carried out in December 2008 noted that the worker indicated he seldom drove due to his pain although he had to drive himself to the assessment which resulted in increased right shoulder pain. Notwithstanding these comments, it does not appear that any functional capacity evaluation of the worker's ability to drive was ever carried out.
The majority panel finds it was reasonable for the worker to express concerns about the position that was offered to him on August 20, 2007 and not reasonable to expect him to participate in those duties without further assessment and investigation. Doing this would have addressed safety and suitability issues which, based on their testimony at the hearing, were clearly of concern to both the worker and the employer.
For all of the above reasons, the majority panel finds that the worker is entitled to full wage loss benefits subsequent to August 26, 2007.
S. Walsh, Presiding Officer
P. Walker, Commissioner
Recording Secretary, B. Kosc
(on behalf of the majority panel)
Signed at Winnipeg this 29th day of December, 2010
Commissioner Finkel's Dissent
The worker in this appeal is seeking the reinstatement of full wage loss benefits after August 26, 2007, based on his assertion that he was unable to work at a modified duties job offered to him by his employer, or for that matter in any job at all.
Applicable Legislation and Policy
The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), any supporting Regulations, and policies enacted by the WCB Board of Directors.
Section 39 of the Act provides that a worker is entitled to wage loss benefits as long as there is a compensable loss of earning capacity from a workplace injury.
For workers who are participating in a vocational rehabilitation process, Policy 43.20.20 provides general guidance (as does Section 22 of the Act which deals with injurious practices by a worker or the obligation to mitigate the costs of a claim) to the effect that where a worker declines appropriate alternate work, compensation benefits will be reduced or eliminated by an amount consistent with the amount the worker would have earned in the alternate work situation.
The Worker's Position
The worker was self-represented at the hearing. His position is that he has not recovered from the effects of his workplace injury and the related right shoulder surgery. He was and is unable to work in any position. He believes that no employer will hire him because he cannot guarantee that he can show up on a given day or how long he might last on a given day. He indicated that his shoulder condition worsened significantly while he was undergoing written aptitude testing in a psychologist's office on August 22, 2007. His shoulder was coming along prior to that testing. Afterwards, he was unable to work for his pre-accident employer, and in fact he considers himself totally disabled from working for any employer at the current time.
The worker also pointed to specific difficulties associated with his employer's job offer. In particular, it required significant amounts of driving which he was unable to do. He was also uncertain as to whether he could perform the light lifting associated with the delivery job, and was concerned over his reliability in being able to show up pain free to work every day. He also had concerns over scheduling conflicts with church services. As to the employer's later offer of work in its own offices, the worker indicated that he could not guarantee his ability to work on any given day, given the condition of his right shoulder.
The Employer's position
The employer was represented by its owner. His position was that in the summer of 2007, he found out that WCB had checked with his company again as part of their vocational rehabilitation process, to see if he could take back the worker in some sort of modified duties position. He was quickly able to cobble together a position composed of several elements, including driving to Winnipeg to pick up small parts, and driving to their work camps to live onsite in their trailers to discourage vandalism and theft. He indicated that the simple presence of someone in the camp was sufficient. The individual was not required to confront or act in a formal security capacity. The driving job was available because of the maternity leave of a female employee. He indicated that the individual who had been doing the job was very small in stature and weight and was easily able to handle the small parts and small weights, so he anticipated no difficulties for the worker. The owner also noted that if these jobs didn’t work out, he was prepared to consider other options. He was prepared, for example, to have the worker work indoors in his office in sedentary duties, and hopefully take on greater responsibilities as he learned more about the business.
For the worker to succeed in his appeal, I would have to find that his compensable medical condition precluded him from working at all, as of August 26, 2007. I was unable to make this finding. I find that the worker was not totally disabled: He had effectively blocked efforts aimed at reemploying him, and had refused to participate in a sincere offer by his employer to take him back into an alternate duties position. It was therefore appropriate to reduce the worker's loss of earnings by the amount that he would have earned with that employer, as of August 26, 2007. I would accordingly deny the worker's appeal for the reasons that follow.
At the outset, I note that two parallel arguments have been presented throughout the file as to why the worker should be provided with full wage benefits.
- The first argument is that the worker was totally disabled and thus unable to perform any jobs at all at the time his benefits were terminated, and that this disability continues to this day.
- The second argument is more specific, that the worker had specific compensable restrictions that were not respected by the specific job offer made by the worker's pre-accident employer in August 2007. Accordingly, the vocational rehabilitation plan was flawed, and the worker should be restored to full wage loss benefits until a better plan was developed for him.
These arguments presented a challenge to my analysis, and indeed to the panel, as they require completely different conclusions as to the residual effects of the worker's injury and to the compensable restrictions that are to be placed on the worker. A worker cannot on the one hand be totally disabled from working at any job (as suggested by the first argument), and at the same time be ready and able to work in a modified duties position on the other hand, if the position was designed correctly (the second argument).
At the hearing, the panel pointed out during questioning that these two arguments had been in play in the course of the file, and specifically asked the worker as to what he was asking us to decide. The worker was very specific in his response, indicating that he considered himself to be totally disabled from working in any job in August 2007 and beyond. He indicated that no job, including that offered by his pre-accident employer, would have worked out. In response to other questions by the panel, the worker indicated that he has done essentially no job search in the past three years post-termination of his WCB benefits, and could not identify any occupation in which he might have a chance to succeed.
Based on my review of the evidence on the file and at the hearing, I agree that this has been the main thrust of the worker's position for quite some time. While a technical review of the specific job offer made by the employer in August 2007 is tempting, it is, in my view, too limiting an analysis.
Rather, I have concluded that well before the August 26, 2007 termination date, and well before the interest/aptitude testing that took place on August 22, 2007, the worker was firmly resisting any return to work, or any involvement with vocational rehabilitation counselors, and simply wanted to be declared totally disabled, just as he proposed at the hearing. As such, I view any specific analysis of the details of the employer's job offer in this case as premature. In my view, the worker had placed significant non-compensable barriers in the way of any return to work, and made personal decisions that precluded him from being paid his pre-accident wages from his employer.
More specifically, vocational rehabilitation is a discretionary tool available to the WCB. It requires the worker to be an active and willing participant. There is nothing in this case that suggests that any future vocational rehabilitation efforts will be any more successful than the first attempt. The evidence on this file strongly supports the conclusion that the worker will not succeed in a vocational rehabilitation plan, and that restoring him retroactively to a discretionary program is unrealistic. In the absence of that participation by a worker, it remains open for the WCB (and the Appeal Commission) to determine what the worker would have been paid if they had participated.
In making these findings, I place reliance on the following considerations:
- On January 25, 2007, the worker's treating physiotherapist's discharge summary indicates that the worker felt there was no benefit with treatment as the pain was increasing. In a conversation with the case manager that same day, the physiotherapist said she had nothing further to offer the worker and her discharge summary reflects a pain focused patient. A WCB medical advisor was also unable to explain how there was no improvement despite, surgery, physiotherapy, and acupuncture.
- A referral was made by the worker's case manager to the WCB's Pain Management Unit (PMU) on July 30, 2007. The PMU met on October 9, 2007, and undertook an extensive and detailed interview with the worker. The PMU's conclusions are central to this analysis:
"By his report, [the worker] is not currently depressed, although he clearly has suffered from some form of mood/anxiety disorder in the past. He does appear to have a strong pain and disability focus, with a strong mistrust of any medical opinion he has received to date, except for being told that his difficulties are permanent. He has very significant anger toward a number of individuals involved in his care and does appear to have a notable difficulty with anger management. His responses were not always direct and there were some discrepancies in his reporting. He also does not have clear plans for return to work or for retraining in areas that would be available to him. He expressed dissention when the concept of hurt without harm was discussed, and he does not appear to be open to psychological strategies for pain management. The extent to which he would be able to engage psychological treatment for pain and functioning is uncertain as well.
This appears to be an individual with multiple psychological issues and longer-term therapy to address the issues that do not relate to his injury may be necessary prior to his engaging in a successful manner in pain management counseling. Thus, it is difficult for the Pain Management Unit to make recommendations at this time.
Barriers to recovery appear to be: muscular tension, significant report of pain and disability, passive pain management, uncertain return-to-work plans, a disrupted and varied past work history, focus on a medical cure, congenital/developmental personality factors, history of mood/affective difficulties, limited education . . . chronic anger and frustration re: socio-economic status, actions of the WCB, and the treatment received from his health care practitioners."
- The evidence on file suggests that the worker's dealing with the WCB in the return to work process were exactly as anticipated by the PMU's conclusions noted above. On July 10, 2007, the worker's WCB case manager wrote a letter to the worker outlining the worker's compensable restrictions. In that letter, she confirmed that from the restrictions, it was not anticipated that the worker would return to his pre-accident job driving truck. On July 16, 2007, a vocational rehabilitation initial assessment was undertaken. It notes other non-compensable medical issues including arthritis in the hip which make sitting for any length of time to be uncomfortable, and a history of depression and anxiety attacks.
- In a conversation with the case manager on July 10, 2007, the worker continued to propose reasons not to participate in the VR process. He indicated that he was in too much pain to drive to Winnipeg; he had a migraine headache and a lot of pain in his shoulder; he didn’t understand why he has to meet with a vocational counselor. When told he was not totally disabled, the worker stated he did not agree; he considered himself to be totally disabled. He indicated he was in constant pain. During the conversation the worker kept coming back to his physical condition, what had gone wrong, and where the problem originated.
- As part of the early VR process, the worker was scheduled for a written aptitude test on August 22, 2007. At the hearing, the worker advised that he was doing well prior to that date, but it was during that testing, sitting in an uncomfortable chair, that he suffered a significant worsening of his condition rendering him unemployable. His evidence suggested that this was the signal event which altered the course of his injury and his ability to work. The worker's evidence at the hearing was that he was doing well before the aptitude test and was interested in getting back to work. I note, however, that the file evidence suggests that the worker described a worsening of his symptoms on August 22, but in no way supports the worker's contention that he was ready and willing to work before that date. Rather, the worker had been declaring himself totally disabled before that test, as I have noted above. These discrepancies regarding fitness for work were shown to the worker at the hearing, who insisted that comments had been placed in the wrong memos on the wrong dates, and that his chronology was the correct one. I prefer, however, to place greater emphasis on the time frames and chronologies as established on the file, rather than the worker's recollections. I note that the WCB file system is based on an electronic filing system, and there is no basis or motivation established to conclude that the files were incorrect or altered in some respect.
- A number of medical professionals raise concerns on the file, early and often, about the worker's intense focus on his pain, and his belief that the pain must be gone before he could return to work.
· The compensable restrictions placed on the worker are not consistent with a finding of total disability. I note that the worker's restrictions are: no lifting greater than 20 pounds, no overhead work, no repetitive or sustained activity with right arm away from body, and no static positions of neck. A number of non-compensable restrictions have also been listed, including hip osteoarthritis, and a history of depression and anxiety attacks. The compensable restrictions were established by a WCB medical advisor who had examined the worker following his shoulder surgery. In response to a question by the panel as to the appropriateness of the restrictions, the worker in fact agreed or liked the restrictions and thought that they were low, that is, he could probably do more than what they suggested. I note that this answer is internally inconsistent. There is nothing in the compensable restrictions that precludes the worker from full time work.
· As to a restriction against driving, I again note that a formal compensable restriction for driving has not been added to the list. A March 14, 2007 letter from the worker's treating orthopaedic surgeon had suggested that the worker should not return to driving truck. While it is tempting to jump ahead half a year and assume it relates to the delivery job offered by the employer in August 2007, it is my view that this is a significant misinterpretation that takes the orthopaedic surgeon's comments out of context. The worker had been a truck driver before his accident in 2005. His responsibilities involved driving on extremely rough logging roads and in and out of logging camps. Since the injury, he had now been away from those duties for some two years, and then had a right shoulder surgery. The question asked of the orthopaedic surgeon was posed during the post surgical recovery period. In my view, the orthopaedic surgeon's answer of no driving truck was essentially a shorthand way of stating that the worker would not be able to return to driving, or more fully and accurately, he would not be able to return to his pre-accident driving job, in a long distance truck that travelled on rough logging roads. In terms of chronology, this opinion eventually led to the WCB's decision to pursue vocational rehabilitation efforts with the worker. One of these steps included a call-in examination with a WCB medical advisor. Again, following that examination, the WCB advisor, with full knowledge of the earlier restrictions proposed by the orthopaedic surgeon, formally set out the worker's compensable restrictions and did not propose a limitation against driving in general, and did not for that matter restrict the worker in any way in terms of his ability to work full time hours. To this date, the worker remains in claim, and no compensable restriction has been added to the file related to general driving.
· The file notes that as part of the early VR process, the WCB again contacted the worker's employer to find out, one last time, if there was a possible modified or alternate duties job there. There was in fact a job available which the WCB considered to be fully within the compensable restrictions. Again, after considering all the evidence, I find that the worker did not decline the employer's job offer because of driving restrictions or any other specific restriction, but because of his firmly held self-perception that he was totally disabled. I find that the best evidence for the refusal is contained in the August 28, 2007 memo by the case manager which noted that the worker was opposed to the alternate duty position for the following reasons:
- he was not capable of working and currently was too disabled to work;
- the restrictions were inadequate and did not reflect his level of pain and disability; there was no restriction against shoveling or sweeping;
- the worker did not consider the accident employer to be his employer as they told him following the accident that he was laid off even though later they said that he wasn't;
- the worker was a practicing Christian and has never worked on Sundays as he attends a service and treats it as a day of rest; and,
- he no longer had a vehicle and had no way to get to the workplace.
Most significantly, I note that the worker did not propose the driving restriction as the reason for refusal at that time; the first mention of the driving issue did not occur until September 5, 2007, where he spoke with his case manager about a recent driving trip he had taken with his uncle. That was the first time that the worker identified that he would be unable to drive long distances because his right arm was held away from his body, resting on the steering wheel.
- The worker's self-perception of total disability has continued to this day, some 2.5 years after his termination from benefits by the WCB. The worker's evidence is that he had not looked for work. He might have looked for one job in that period of time, but was unclear as to where he applied and when. In any event, he felt that he was not hirable because of his constant unremitting pain, and could not guarantee in any way as to when or how often or how long he could work. At this point, the worker is still unclear as to what type of job he thinks he can do. This mirrors the PMU's interview notes with the worker in October 2007.
Based on this analysis, I have concluded that the worker was absolutely not interested in working for anyone at any time, post-surgery. While it is tempting to suggest that the specific job offer was inappropriate and thus allow for reinstatement of vocational rehabilitation benefits, I specifically cannot support that position. In this case, the WCB and the accident employer were involved in a genuine attempt to accommodate the worker. There was a real position available due to a maternity leave and another employee returning to university. There was a genuine belief by the WCB and the employer that the position was well within the worker's compensable restrictions as proposed by a WCB medical advisor. The job description (driving on highways in a small truck to pick up small parts, and living onsite at work camps to remove the perceptions of an abandoned work camp that could be vandalized) had value to the company. The employer had other alternatives available, in the shop, if the original plan needed adaptation. I must emphasize that establishing modified or alternative duties for an injured worker is dynamic in nature, and requires a lot of consultation and adjustment between the WCB, the worker, and the employer: Things are tried out, and things are changed as things are learned. However, in this case, the worker's general view of his employability fully and effectively blocked the door to the accommodation process. In my view, the analysis of the specific job offer or accommodation can only take place if there is actually an interested worker in the equation. This was not the case here.
I find on a balance of probabilities that the worker was not totally disabled as of August 26, 2007, and that his refusal to participate in a potential return to work with his pre-accident employer was not reasonable. It was therefore appropriate to reduce the worker's loss of earnings by the amount that he would have earned with that employer, as of August 26, 2007.
I would therefore dismiss the worker's appeal.
Signed at Winnipeg, this 29th day of December, 2010.