Workplace Health, Safety & Compensation Review Division

Transcription

1 Workplace Health, Safety & Compensation Review Division WHSCRD Case No: WHSCC Claim No: Decision Number: Marlene A. Hickey Chief Review Commissioner The Review Proceedings 1. The hearing of the review application was held at the Workplace Health, Safety and Compensation Review Division office in Mount Pearl, NL on June 26, The worker participated in the hearing, accompanied by her spouse and was represented by Mel Strong with the Government Members Office. 2. Neither the employer nor the Commission participated in the hearing process. Introduction 3. On June 16, 2010 the worker sustained a back injury while employed as a Department Manager. The diagnosis was mechanical back pain. Chiropractic and physiotherapy were prescribed. Wage loss benefits were approved as the worker remained off work for treatment. 4. A June 21, 2010 CT scan and an October 4, 2010 MRI of the lumbar spine showed evidence of pre-existing disc bulging and early stages of degenerative changes. 5. On November 24, 2010 the worker was assessed by a Neurosurgeon, who recommended a referral for chronic pain management. A referral for an EMPOWER assessment was also made. 6. A March 7, 2011 EMPOWER assessment report recommended rehabilitation for the worker with the goal of re-entry into the pre-injury position. The worker subsequently participated in Worksite Occupational Rehabilitation (WSOR), Clinic Based Occupational Rehabilitation (CBOR) and Progressive Goal Attainment Programs (PGAP). 7. On January 9, 2012 the worker was seen by an Anesthesiologist and began receiving cortisone injections for treatment of her chronic pain, through to April 2012, with little success. 8. On April 17, 2012 a Functional Capacity Evaluation (FCE) found the worker capable of a 4- hour workday at a light degree of strenuousness. A referral for a Labour Market Re-entry (LMR) assessment was made. 1

2 9. The July 24, 2012 LMR report identified three direct entry employment options and one retraining option. The worker did not feel capable of working in any capacity and did not choose an option. 10. On July 24, 2012 the Medical Consultant, reviewed the worker s file to provide an opinion on proportionment and concluded the work injury was minor and the pre-existing back condition was moderate. 11. Two separate August 7, 2012 Case Manager s decisions informed the worker that National Occupational Classification (NOC) Minor Code 662, Other Sales and Related Occupations, had been selected on her behalf and that she was entitled to partial Extended Earnings Loss (EEL) benefits which would be subject to a 75% proportionment factor, effective September 19, The worker appealed. 12. The October 29, 2012 Internal Review decision upheld the Case Manager s decisions of August 7, It is this decision the worker is appealing before the Review Commissioner. Issues 13. The worker is requesting a review of the decision of the Commission dated October 29, The worker requests that I find she is not capable of four hours of work per day, in alternate work, in NOC Minor Code The worker also requests that I find her entitlement to EEL benefits should not be proportioned by a rating of moderate for her pre-existing injury and a rating of minor for her work injury. Outcome 15. The decision of the Commission dated October 29, 2012 is in accordance with the Act, Regulations and policies. There is no change to the worker s entitlement to EEL benefits. With respect the review is denied. Legislation and Policy 16. The jurisdiction of the Chief Review Commissioner is outlined in the Workplace Health, Safety and Compensation Act (the Act), sections 26(1) and (2), 26.1 and 28 which state, in part: Review by review commissioner 26(1) Upon receiving an application under subsection 28(1) a review commissioner may review a decision of the commission to determine if the commission, in 2

3 making that decision, acted in accordance with this Act, the regulations and policy established by the commission under subsection 5(1) as they apply to (a) compensation benefits; (a.1) rehabilitation and return to work services and benefits; (b) an employer's assessment; (c) the assignment of an employer to a particular class or group; (d) (e) an employer's merit or demerit rating; and the obligations of an employer and a worker under Part VI. (2) An order or decision of a review commissioner is final and conclusive and is not open to question or review in a court of law and proceedings by or before a review commissioner shall not be restrained by injunction, prohibition or other process or proceedings in a court of law or be removable by certiorari or otherwise in a court of law. Review commissioner bound by policy 26.1 A review commissioner shall be bound by this Act, the regulations and policy. 28(1) A worker, dependent or an employer, either personally or through an agent acting on their behalf with written consent, may apply to the chief review commissioner for the review of a decision as referred to in subsection 26(1), within 30 days of receiving the written decision of the commission... (2) A review commissioner shall not review a decision under subsection (1) except in accordance with subsection 26(1)... (4) A review commissioner to which a matter has been referred for review shall (a) (b) notify the person seeking the review and the commission of the time and place set for the review; and review the decision of the commission and determine whether it was in accordance with this Act, the regulations and policy. (4.1) Where a review commissioner determines that the decision of the commission was in accordance with this Act, the regulations and policy, he or she shall confirm the decision of the commission. (4.2) Where a review commissioner determines that the decision of the commission was not in accordance with this Act, the regulations and policy, he or she shall identify how the decision of the commission was contrary to this Act, regulations and policy, specify the contravened provision, set aside the decision of the commission and 3

4 (a) (b) make a decision which is in accordance with this Act, regulations and policy; or where it is appropriate to have a new decision from the commission, refer the matter to the commission for a new decision with or without direction on an appropriate remedy. 17. Other relevant sections considered are Sections 43.1, 60(1), 74(1) and 74(3) of the Act, along with Policy EN-02: Proportionment, Policy RE-14: Labour Market Re-entry Assessments, Policy RE-15: Determining Suitable Employment and Earnings and Policy EN-20: Weighing Evidence. Relevant Submissions and Positions 18. Mr. Strong provides an overview of the mechanism of injury sustained to the worker s back and provides clarification that the injury was triggered by lifting a case of bleach rather than a bottle of bleach. The diagnosis at that time was mechanical back pain and treatment consisted of physiotherapy and chiropractic. 19. A report from the worker s treating Neurosurgeon dated November 24, 2010 is referenced as support for the worker s position in that, she has significant pain and surgery is not recommended. 20. As well, Mr. Strong notes the worker participated in an EMPOWER assessment in March 2011, which triggered a flare up of her symptoms. In April, 2012 the worker also participated in a Functional Assessment (FA). The LMR process of June 2012 was referenced whereby it was determined the worker was capable of working in three identified LMR options. 21. Mr. Strong points out that a Chiropractic Report dated November 9, 2010 notes there is no return to work indicated and refers to the objective findings with a diagnosis of mechanical back pain. Further, the treating physician, in his report of November 2010 indicates he has been treating the worker for herniated disc with no work recommended. 22. A physiotherapy report on December 9, 2010 notes objective findings and a diagnosis of mechanical back pain. Further referenced is another report of the treating physician of February 8, 2011 and it is noted the treating physician indicates the worker is not ready for CBOR or OT Assessment. 23. Mr. Strong references a report dated March 18, 2011 from the worker s treating physician where he refers the worker to a Neurosurgeon. Mr. Strong emphasizes the contents of the referral letter. It states as follows: You previously saw this lady a few months ago. She had a workplace injury to her back with an L4/5 disc protrusion and nerve root impingement. She has no leg drop, but she has numbness, tingling, paresthesia and decreased reflexes to the legs, right worse than left. 4

5 This lady has done physiotherapy, chiropractic therapy, etc. with worsening of her symptoms. During her last view, she has found not to be a surgical candidate, but your advice on her further management in light of the worsening symptoms would be much appreciated. In 2011, Mr. Strong notes there was a change in treating physicians. On October 4, 2011 the new treating physician provides a report as well as a Chiropractor report of October 4, 2011 all state the same objective findings. 24. In January 2012 the worker was seen by an Anesthesiologist who prescribed three steroid injections. Two of the three injections were provided and some temporary relief was experienced. However, the third injection, Mr. Strong states was cancelled by the Commission. 25. A March 6, 2012 and a March 27, 2012 report from the treating physician notes the same objective findings with no return to work recommended. A further report of the treating physician dated May 20, 2012 is also referenced by Mr. Strong. He notes the following from the report, definitely not yet fit to return to work. 26. Mr. Strong submits the worker s chronic pain and current physical restrictions prevent her from any form of work including the option identified in the LMR process. He references Policy RE-15: Determining Suitable Employment and Earnings and notes the Commission is required to take into consideration the worker s functional abilities, aptitudes and capacity to work and earn. He notes the worker is following all the treatment advice of her treating health care providers. 27. Mr. Strong argues it is puzzling that the worker can be found capable of working by the Commission yet; all three of her treating health care providers have indicated a return to work is not recommended. He submits, the worker, in her current condition presents as a liability to any potential employer. Her physical restrictions make it impossible for her to work and her current medication is such that she is prevented from driving any distance. Mr. Strong requests that the medical information be reviewed and a finding made that the worker should not have to return to work. 28. The worker states that she is in pain continuously. She relies heavily on her husband for support and assistance. She describes the limitations she experiences on a daily basis in her activities of daily living. She no longer has a social life and previously participated in an exercise program which she can no longer participate in. Prior to the injury, she had a very active lifestyle and enjoyed shopping, dancing, etc. Simple tasks are difficult and her life has been significantly affected by the injury. 29. The worker submits she is not a malingerer. She wants to work, but cannot due to the injury. She expresses frustration with her current situation and states this is not the life she imagined she would have at this point. 5

6 30. On the issue of proportionment, Mr. Strong submits degenerative disc disease is a poor excuse and very unfair reason to proportion benefits. Degenerative disc disease is part of the aging process and most people suffer the effects of degenerative conditions. 31. Mr. Strong argues that the worker has not experienced any previous back injury and the worker maintained regular work until the injury at work. Such a heavy lift likely affected the progression of degenerative disc disease. 32. Mr. Strong also references the Permanent Functional Impairment report of the Commission s Medical Consultant dated August 16, He notes the following: [The worker] is a 47 year old worker who sustained injury to her back in June of She remains with back pain and discomfort as well as a loss in terms of strength and endurance of activity. On examination today there are signs of muscle spasm and tightness together with restricted movement. There is a loss of strength and endurance of activity. There is neurological involvement. These findings would all be in keeping with a discogenic and mechanical type back pain with radicular features and would be compatible with the injury which [the worker] sustained. The findings would be best addressed by utilizing the WHSCC PFI Assessment Guidelines for Spinal Injury (F2), where the symptoms and signs would fit best into the 20-50% impairment rating category. After having examined her today and having reviewed the medical record, together with having made comparison to others who whose impairment may be similar, it is my opinion that her impairment rating at this time is 25%. This rating is inclusive of and considers the pain component of the impairment. In terms of the pre-existing back condition there is little evidence in the file which I have other than the imaging report which would suggest there was any significant impairment. The impairment would then have to be rated through the same guidelines as above and I would place it in the 0-5% category and having reviewed her today I would place it 2.5%. It is therefore, the remaining 22.5% for the impairment rating which is for the compensable injury. 33. It would appear, Mr. Strong submits, that the effects of her pre-existing condition have been properly considered by the Commission in this respect, however, have not been duly considered for the purposes of entitlement to earnings loss benefits. 34. With respect to weighing evidence, Mr. Strong argues that the evidence weighs more in favour of the worker s condition than against it. The presence of degenerative disc disease should not be used against the worker at this time. Mr. Strong requests that the worker s entitlement not be subject to proportioning. 35. The Commission s position is outlined in the Internal Review decision of October 29, The Internal Review Specialist outlines the relevant legislation and policy in relation to her review. She indicates she has reviewed the LMR Assessment and the four labour market reentry options identified: NOC Minor Code 145 Library Correspondence and Related Information Clerks (direct Entry) 6

7 NOC Minor Code 662 Other Sales and Related Occupations (direct Entry) NOC Minor Code 668 Other Elemental Service Occupations (direct Entry) NOC Minor Code 141 Clerical Occupations, General Office Skills (This option required an upgrading program) 36. The Internal Review Specialist notes in determining suitable employment, the Commission is required to identify a category of jobs which are safe and suited to the worker s skills and within the worker s functional abilities. The Internal Review Specialist acknowledges the worker s basis for her objection to the Case Manager s decision and proceeds to review the issue of whether or not the worker has a capacity to work for four hours per day at a light level of strenuousness. 37. The Internal Review Specialist notes the following: August 25, 2010 Form 8/10, initial Chiropractic Report October 10, 2010 Form 8/10, Physicians Report of Injury. [The family physician] notes continued physiotherapy and a recommendation to expedite an MRI. Under Functional Assessments, he indicates no work. Subsequent reports from [the family physician] indicate a return to work not recommended pending the results of the MRI of October 4, October 4, 2010 MRI report of the lumbar spine: No disc herniation, spinal canal or foraminal stenosis. Degenerative changes as described are most pronounced at L4-5 where there is a posterior broadbased disc bulge, minimally eccentric to the right and associated annular tear. This disc bulge is adjacent to, but does not push posteriorly, the right L4 nerve root. October 14, 2010 Form 8/10, Physicians Report of Injury, [family physician] notes: Needs PT plus chiro- urgent neurosurgery appt. He again indicates, No work. November 24, 2010 [Neurosurgeon], notes history of injury and results of CT scan and MRI. He notes the MRI didn t show anything surgical. He notes on examination: She seemed to be in an extraordinary degree of pain, doesn t seem that she is tolerating things well, functioning at an extremely poor level. She has very poor back movements. Her straight leg raising was negative; hip movements were also normal. She has normal neurological examination. He went on to note that he advised there was nothing that could be done surgically and recommended continuing with the chiropractic treatment as he did not see anything that was going to be corrected by surgery. He stated: I think a lot of her symptoms are probably acutely muscular in nature. So, I told her I would see how she does over the next couple of months. It is now five 7

8 months since her injury. If it does not settle down, then I think a referral to one of the chronic pain doctors would be appropriate. Continue reports from your family physician and chiropractor indicate no change in your limitations. Your chiropractor, on December 6, 2010, indicate some mild improvement in some subjective and objective findings, i.e. numbness, spasm, and abnormal reflexes, however, no change in other areas with difficulty walking, sitting, and radiating pain. Your family physician referred your for epidural steroid injections with the pain specialist. January 20, 2011 Physiotherapy Discharge Reports noted initial assessment was December 9, 2010, but after 11 treatments, discharged due to lack of improvement. Noted: Seems more mechanical than disc. Unable to tolerate even very low weights in exercises. February 21, 2011 EMPOWER Multidisciplinary Team Assessment: Diagnosis Mechanical low back pain, on the background of degenerative disc disease (DDD). The recommendations include; Work Site Occupational Rehab (WSOR) within functional tolerances such as: Facing and stocking shelves as well as price change, etc., performed at waist level with opportunities to sit following 15 minutes of standing. Provision of a sit/stand stool was recommended to allow for postural breaks. It was recommended the WSOR Program commence in conjunction with chiropractic care once per week and be monitored by an Occupational Rehab Provider. It was stated that: In addition, based on [the worker s] high focus on pain and her perceived decreased functional abilities, it is recommended that an Occupational Rehab (OR) Provider offer components of the Progressive Goal Attainment Program (PGAP) once weekly for 4-5 weeks. It was noted that prognosis for return to pre-injury job was good but: Can be reduced to fair due to chronicity of symptoms, limited benefits with rehab to date and her high focus on pain. However, based on medical information returning to the pre-injury job is an achievable goal. March 3, 2011 Form 8/10, Physicians Report of Injury, [Chiropractor], notes: Patient is experiencing an extreme flare up, range of motion is decreased with severe back pain. She goes on to note that you were unable to work due to the extreme pain. Due to your severe symptoms you did not proceed with the Work Site Occupational Rehabilitation Program and the Clinic Based Occupational Rehab Program was also put on hold after one session with follow up anticipated after you receive steroid injections. Your family physician again referred you back to [Neurosurgeon]. April 13, 2011 [Neurosurgeon] stated that following the injury: She went on to develop a fairly profound chronic pain-type picture. She had CT and MRI scanning, but did not show much, a bit of disc bulging. I suspect that her injury was primarily a muscular-type injury, which just has not gotten better. He noted that you had physio which you reported aggravated your condition and chiro which provided minimal short term relief. He stated that on examination 8

9 you were still functioning at a very poor level: She has very limited back movements. Straight leg-raising is normal, hip movement is normal, and neurological examination is normal. He went to recommend follow up with one of the chronic pain doctors. January 9, 2012 You were assessed by the [Anesthesiologist]. He stated: She has been complaining of low back pain since June She was seen by the [Neurosurgeon] who said there was no need of surgical intervention and when you look at the MRI done on 4 th of October 2010, there is no disc herniation, except that there is no spinal canal foraminal stenosis. Degenerative changes are described, most pronounced at L4, L5 where there is a posterior broad-based disc bulge, minimally eccentric to the right and associated annular tear, which she says the pain is more on the right. The disc bulge is adjacent to, but does not push posteriorly, the right L-4 nerve root. The [Anesthesiologist] went on to discuss the process of steroid injections and you did proceed with two injections on February 20, 2012, and March 5, Further injections were not supported as you reported no improvement with the first two. April 15, 2012 Functional Assessment (FA) Report Postural tolerances were determined to be: Frequent sitting in supporting seating for 35 minute durations, minor standing for 5 minutes durations, and occasionally walking for short distances. Lifting and carrying was determined to be up to 13 lbs. with push/pull at 35 lbs. Balancing was determined to be on an occasional basis only and stair climbing, squatting, and crouching were tolerated on a minor basis only. Reaching, kneeling, crawling, and twisting of the body were unable to be tested due to you terminating the assessment early with complaints of increasing symptoms. The Occupational Therapist predicted a 4-hour work day at a sedentary/limited level of strenuousness. While your lifting was technically at a light level, it was noted that: Based upon postural considerations (restrictions for standing and walking) this client is actually best suited to perform work in a supported, seated posture. The Occupational Therapist conclude that you were unable to demonstrate the postural tolerances for your pre-injury work and that: A return to work for this client would require a position which is completely primarily in sitting without lifting beyond 13 lbs., or she will require strengthening and an increase in postural tolerances for weight bearing postures and a reduction in pain symptoms. A trial of CBOR was noted to be possibly beneficial and: An increase in daily activities is also strongly recommended. Recommendations for return to work noted that if the employer can identify tasks in sitting to accommodate the client s current tolerances, there is no medical contraindication to implementing a return to work program. Success with same is impacting by the client s willingness to work with some discomfort and her understanding that harm is not likely when completing Sedentary tasks. It is felt that further conditioning is necessary for facilitate any tasks for standing and walking. May 10, 2010 The [family physician], noted that you were still reporting severe back pain and lower limb weakness with an inability to stand for longer than 20 minutes. He stated: Definitely not yet fit to return to work. 9

10 July 17, The [family physician] Form 8/10, Physician Report of Injury Not certain this lady can resume any reasonable employment definitely cannot stand or sit continuously for four hours and [the employer] cannot offer anything in that respect. 38. The Internal Review Specialist acknowledges the worker does have permanent restrictions and the worker reports significant pain. With respect to weighing the evidence, the Internal Review Specialist places significant weight on the findings of the functional assessment which establishes an ability to work four hours per day with restrictions noted for standing and sitting. 39. Though the Internal Review Specialist notes the reporting of the treating physician from a functional abilities perspective, she relies on the opinion of the Occupational Therapist. Further, she notes other treating health care providers have not noted total disability and the EMPOWER Program has also supported a return to work which is to say pre-injury work, subject to certain qualifications. 40. It is noted the LMR assessment took into consideration the worker s restrictions including reported pain levels, in establishing a return to work in the LMR options identified. The Internal Review Specialist concluded that the four LMR re-entry options are within the worker s functional abilities. The Internal Review Specialist also confirmed that the worker s level of skill was appropriate for three of the selected options. 41. As the worker was considered to be physically capable and had the skill set necessary for the identified options, the LMR Plan was limited to Employment Readiness Programming. The Internal Review Specialist concluded that the evidence supports an ability to work and earn for four hours per day. 42. With respect to proportioning, the Internal Review Specialist refers to the July 24, 2012 opinion of the Medical Consultant. It states: At your request, I reviewed this claim in order to provide an opinion on proportionment of pre-existing low back problems with respect to the client s current low back injury that occurred on June 16, With respect to the client s previous back problems, there surrounded issues with recurrent low back pain. In one instance it brought her to a local hospital whereby a CT scan was ordered with showed some degenerative changes in the lumbar spine as well as broad based disc bulge at the L4-L5, S1 levels. There was also a note from the client s employer indicating how she had lost time due to back pain around the same period of time as she was experiencing back pain. It is specifically noted that at one point she was off due to back pain. The symptoms, as described back in 2008, were those of low back pain with radiation to both legs. This was noted on the CT scan that was done on July 7, These symptoms as noted in 2009 and findings on CT are quite similar to the CT scan findings and the signs and symptoms related to such following the client s work related injury. Therefore, in this case, we have a previous back injury that is consistent with the client s work related injury that had some associated pathology on CT scanning and resulted in the client s losing some time from work 10

11 as well. In this case, one may consider that the proportioning factor could be major. However, with that said, although there is some pre-existing pathology, it is not major despite the fact that the client had severe pain and had lost time from work. Therefore, it would be my opinion that a proportioning factor of moderate would be appropriate for the client s pre-existing back problems. With respect to the client s work related injury, this occurred on June 16, The client was picking up a case of bleach that had six small bottles of bleach in it that the employer reports weighed approximately 1 to 2 pounds in total. This would not, in my opinion, be considered a significant mechanism of injury and would not, in and of itself, be expected from the mechanism to cause any ongoing problems. The most, in terms of injury, that I would expect from the mechanism of injury is a very mild low back strain that would resolve, typically, within one week of the injury. Therefore, in my opinion, the severity of the work related injury would be appropriately rated as minor. 43. The Internal Review Specialist goes on to note that the claim was initially accepted as an aggravation of a pre-existing condition in September, Previous significant back problems were noted. She states; a CT scan of July 7, 2009 prior to your injury, which, under History, states Rule out disc prolapse. Low back pain with numbness in both feet. On findings it is stated There is slight broad based disc bulge posteriorly involving the L5-S1 level with very minimal impression upon the thecal sac, slightly more pronounced to the left. The exiting nerve roots are clear. There is no central canal stenosis or protrusion here. There is very minimal broad based disc bulging posteriorly at the L4-L5 level. Minor facet atrophy is noted at this level. The remaining intervertebral discs in the lumbar spine are unremarked. No other abnormalities seen. Chart notes from the JS Memorial Community Health Center dated June 18, 2010 stated: Pain in lower back radiating down left leg x 3/7. Pain has been getting worse and has difficulty walking. History of two deteriorating discs in back H/O same before Ct showed past disc bulging at L4-L5, L5-S It is also noted that a Discharge Report dated June 26, 2010 indicates similar problems in the past. The Internal Review Specialist found that a proportioning factor of moderate for the pre existing condition, as recommended by the Medical Consultant, would be appropriate. 45. In reviewing the severity of the work injury, the Internal Review Specialist notes that the Medical Consultant deemed the injury to be minor in nature and the mechanism of injury would not be expected to cause ongoing problems. Typically, an injury of this nature would be considered a mild low back strain and would resolve relatively quickly. She notes that the definition of minor pursuant to Policy EN-02: Proportionment is not expected to limit the worker s ability to earn at the pre-injury level. As a result, of the foregoing, the injury was confirmed as minor. 11

12 Analysis Issue 1 - Extended Earnings Loss Benefits 46. In reviewing a decision with respect to entitlement to EEL benefits, the Commission s Policy RE-14: Labour Market Re-entry Assessments and Policy RE-15: Determining Suitable Employment and Earnings are the guiding directives. Essentially, the file evidence must confirm a worker has a physical capacity and skill set to work safely in suitable employment. 47. Policies RE-14: Labour Market Re-entry Assessments and RE-15: Determining Suitable Employment and Earnings are applicable to the Commission s determination that the worker is capable of working four hours per day at a light level of strenuousness. It is the objective of the Commission to assist the worker to regain the capacity to re-enter the labour market and to return to suitable employment. 48. Policy RE-14: Labour Market Re-entry Assessments provides in its Policy Statement the following: A labour market re-entry assessment is conducted to determine whether a worker has transferable skills or requires assistance to reenter the labour market and to determine whether a labour market reentry plan is required. A minimum of three labour market re-entry options will be identified in conjunction with the worker during the assessment process. 49. In this case, the labour market re-entry assessment was conducted and a report dated July 24, 2012 notes the following: [The worker] injured her low back while working as a Department Store Manager at [the employer]. Although she underwent several forms of treatment and therapy, she is unable to return to her previous employment at this time. As per functional testing, [the worker] has the capacity to work a 4 hour workday at the Light degree of strenuousness in primarily a supported seated position. A transferable skills analysis demonstrated that there are direct entry options appropriate for the client considering her adjusted occupational profile but she will not be able to recover her preinury earnings if she were to return to work in those career clusters on a part time basis. [The worker] indicated that she would be interested in retraining, and following research determined that she would be interested in training as a recreational therapist. The results of psychometric testing revealed that while this is a reasonable goal from a learning perspective, it did not present as a viable option for her due to her physical restrictions. The client possesses Average intelligence as well as Average academic abilities. Results suggest that she is a good candidate for pursuing upgrading and possible retraining opportunities in a one to two year non technical college program. 12

13 Through her work history, she has acquired a strong vocational profile, including numerous skill sets, transferable skills, and strong aptitudes. She can continue to apply these vocational strengths to occupations she has related experience in; such as those outlined below. [The worker] reported that she does not feel as though she is physically capable of working at this time and her medical doctor does not want her to work at anything. The client and her partner were not happy with the identified options and it was reiterated by both the Case Manager and this LMR Planner during the Exit Interview that these options were based on the medical information currently on file. In summary, suitable options for [the worker] are based upon the following Minor Unit Groups; 1. Minor Group Unit Group 2. Minor Group Unit Group 3. Minor Group Unit Group 4. Minor Group Unit Group 145 Library, Correspondence and Related Information Clerks 1453 Customer Service Clerk 662 Other Sales and Related Occupations Telemarketer 668 Other Elemental Service Occupations 6683 Parking Lot Attendant 141 Clerical Occupations, General Office Skills 141 Receptionist The LMR outcome was based considerably on the file information relating to the worker s functional abilities, specifically, the functional assessment of April 17, 2012 which predicted a four hour workday at a sedentary/limited level of strenuousness. It was also noted that the functional Assessor determined the assessment to be Self Limiting. 50. With the objective functional information collected from the functional assessment on the file, the Commission proceeded to establish suitable employment and earnings as required under Policy RE-15: Determining Suitable Employment and Earnings. 51. I note the Act does not define suitable employment, however, it is defined in Policy RE- 15: Determining Suitable Employment and Earnings. It states: Suitable employment is a category of jobs that are safe, suited to the worker s transferable skills, within the worker s functional abilities and aptitude, and will reduce or eliminate the loss of earnings resulting from the injury. Capacity to work and earn not the availability of employment opportunity - is the relevant factor. 52. Suitable employment requires consideration of a number of factors such as functional capacity, transferable skills and aptitude. To determine suitable employment the 13

14 Commission relies on the NOC system. The Policy requires that the proposed re-entry options be selected at the minor grouping within the NOC Codes. 53. In this case, the LMR Planner provided a full review of the worker s functional capacity, transferable skills and aptitude and identified four labour market re-entry options. It is concluded that all four of these options are physically suited to the worker s functional abilities for a four hour workday at the sedentary to light degree of strenuousness. 54. The worker, however, objects to the finding that she is capable of working and submits she is not physically capable of the identified options. In reviewing the worker s objection and the Commission s decision, I have examined the evidence on the file and note the following: 1. The treating physician s reports provide consistent subjective reporting as pain, burning, and numbness. Objective findings are noted as spasm, limited straight leg raising and decreased range of motion. 2. The treating chiropractor s reports appear to focus on pain relief and also note objective findings of hypertonicity, hypomobility, decreased range of motion and spasm. 3. The treating neurosurgeon notes an extraordinary degree of pain, however, objectively the worker s straight leg raising tested negative, there are normal hip movements and a normal neurological examination. He suggests a lot of the worker s problems are probably acutely muscular in nature. 4. The EMPOWER Assessment Report of March 7, 2011 noted: Frequent and occasional tolerances for sitting, standing, walking, lifting, pushing, pulling, bending, squatting, reaching and lower extremity movements. Strength Outcome was noted to be light degree of strenuousness with restrictions for floor level lifting. Minor limitations on range of movement of lumbar spine. Normal neurological examination. Return to work to the pre-injury position was noted to be good but could be reduced due to chronicity of symptoms. ACTION PLAN NOTED: The expected duration of disability based on MDA Guidelines, mechanical back pain of background of DDD was noted to be 28 days. 55. I have also reviewed the functional assessment and note the following recommendations: Opinion on Level of Recovery Attained to Date: 14

15 Based upon the information provided by [Neurosurgeon] and EMPOWER, a higher level of recovery would certainly have been anticipated. However, given rehabilitation treatments and other interventions do date have provided little or no benefit, further significant recovery is not anticipated given [the worker s] high pain reports and chronic pain presentation, unless better pain management occurs. Prognosis for Eventual Return to Pre-injury Work: Guarded: Given her lack of progress with clinical rehabilitation and her chronic pain presentation, as well as large discrepancy in postural tolerances for standing and walking. Prognosis for Return to Alternate Work: Fair: If suitable options for return to work can be identified by the employer that fall within her current tolerances, a return to work program may be successful. However, her chronic pain presentation and high focus on pain may act as a barrier to success. Recommendations: Rehabilitation: o A trial of CBOR may be beneficial to improve the postural tolerances required for work. Success in CBOR would likely be dependent on proper education to the client regarding hurt vs. harm and the benefits of staying active. o An increase in daily activities is also strongly recommended. RTW: o If the employer can identify tasks in sitting to accommodate the client s current tolerances, there is no medical contraindication to implementing a return to work program. Success with same is impacted by the client s willingness to work with some discomfort and her understanding that harm is not likely when completing sedentary tasks. It is felt that further conditioning is necessary to facilitate any tasks for standing and walking. 56. The Functional Assessment also noted a workday prediction of four hours at a sedentary to light level of strenuousness. Restrictions were noted in the areas of standing, walking, lifting, push/pull, squatting, crouching, balancing, bending and stair climbing. The Occupational Therapist noted, It is challenging to compare worker tolerances to job demands when the level of effort in the assessment is (self limiting). 57. I acknowledge the worker s reported levels of pain and her view she is totally disabled. As well, I recognize the worker has been referred for chronic pain management and has received several steroid injections without much pain relief. Notwithstanding this, I note 15

16 the weight of objective evidence noted above does not support the worker s position of total disability even considering her level of pain. Her very high levels of reported pain are noted by the family physician as a basis for the worker s inability to work, however, it appears the pain reporting has been considered and taken into account as part of the methodology in the Functional Assessment that predicted a four hour workday. I cannot, therefore, place greater weight on the opinion of the treating physician as a result as the Functional Assessment provides considerable objective functional information which the treating physician does acknowledge. As well, the treating Neurosurgeon also notes pain yet; his objective findings fail to support a conclusion of total disability as a result. Furthermore, the EMPOWER Assessment also provides significant objective findings in relation to functional abilities. These findings also do not suggest a level of total disability which refutes the worker s position on her level of disability due to pain. I find, therefore, that notwithstanding the presence of pain, the worker has an ability to work for four hours per day at a light level. 58. The LMR Assessment Report provided a comprehensive overview of the LMR options and the respective earnings for the options. I note four options were identified as meeting the worker s physical tolerances, restrictions and functional abilities. 59. Pursuant to the Section 73(1) of the Act, the Commission provides compensation for loss of earning capacity attributable to an injury. In this case, the evidence confirms the worker has a residual earning capacity following her injury. As a result, she receives compensation benefits for the loss of capacity in the form of her partial EEL entitlement. This is the benefit that the Act provides in the circumstances. 60. Upon review of the decision of the Internal Review Specialist, I note she has reviewed the file evidence and has confirmed the worker is capable of four hours of work per day in the selected options. Whether or not the worker was qualified or has the skill set to perform these options, was not argued before me. I do note, however, that three of the options are direct entry and I see no apparent reason as to why the worker would not be considered qualified. 61. In this case, I find that the Commission has correctly concluded the worker has the ability to work and earn for four hours per day in the selected labour market re-entry options. 62. With respect to the issue of proportionment, the worker argues that prior to the injury she did not have any level of disability preventing her from working. On this point, I note that the injury occurred on June 16, The medical evidence confirms that there have been investigations for prior back pain that appear to have disabled the worker from working. I note the following as relevant: 1. A Claim Note dated August 24, 2010 by the Medical Consultant notes the worker has a significant history of back problems. The Medical Consultant confirms the June 16, 2010 incident could have caused an aggravation of a pre-existing low back problem. 2. A Discharge Summary dated June 26, 2010 following the injury notes, The patient had similar problems before but she never needed admission before, usually the pain was controlled with a shot of Toradol or Demerol. 16

17 3. What appears to be chart notes from the treating physician dating back to November 1997 records episodes of back pain in 1998, 1999 and The Employer s Form 7 advises that the employer was aware that the worker has previous impairment to her back. 5. A Claim Note dated July 24, 2012 by the Medical Consultant refers to a CT scan completed in July, 2009 for low back pain. Further the Medical Consultant notes the symptoms of 2008 and 2009 are similar in nature to the current signs and symptoms following the work injury. The Medical Consultant also notes that the worker has previous lost time from work, due to her pre-existing condition. 6. Correspondence to the worker dated September 7, 2010 advises that her claim has been accepted for compensation on the basis of an aggravation of a pre-existing condition. 63. Based on the foregoing I am satisfied that the file confirms the presence of a significant preexisting condition prior to the June, 2010 work injury. I cannot, therefore, accept the worker s position that the Commission erred on this point. 64. In considering the severity of the rating for the pre-existing condition, Mr. Strong refers to a Permanent Functional Impairment (PFI) Assessment Report dated August 16, It is Mr. Strong s submission that the Medical Consultant deemed the pre-existing condition to be very insignificant and that this finding conflicts with the finding of a moderate rating for the pre-existing condition. 65. I note the Medical Consultant provided the worker with a 25% PFI award and proportioned it by only 2.5%. The Report provides the following rationale: [The worker] is a 47 year old worker who sustained injury to her back in June of She remains with back pain and discomfort as well as a loss in terms of strength and endurance of activity. On examination today there are signs of muscle spasm and tightness together with restricted movement. There is a loss of strength and endurance of activity. There is neurological involvement. These findings would all be in keeping with a discogenic and mechanical type back pain with radicular features and would be compatible with the injury which [the worker] sustained. The findings would be best addressed by utilizing the WHSCC PFI Assessment Guidelines for Spinal Injury (F2), where the symptoms and signs would fit best into the 20-50% impairment rating category. After having examined her today and having reviewed the medical record, together with having made comparison to others who whose impairment may be similar, it is my opinion that her impairment rating at this time is 25%. This rating is inclusive of and considers the pain component of the impairment. In terms of the pre-existing back condition there is little evidence in the file which I have other than the imaging report which would suggest there was any significant impairment. The impairment would then have to be rated through the same guidelines as above and I would place it in the 0-5% category and having reviewed her today I would place it 2.5%. It is therefore, the remaining 22.5% for the impairment rating which is for the compensable injury. 17

18 66. When reviewing this report, I acknowledge this summary provides a succinct but very clear rationale, as to how the 25% rating was established and why the 2.5% was identified for proportioning. The Medical Consultant clearly indicates how he has exercised his judgment and used his medical expertise to apply the Rating Schedule. Noteworthy in this summary, however, is the Medical Consultant s approach to the proportioning analysis for the PFI purposes. His comment, The impairment would then have to be rated through the same guidelines as above and I would place it in the 0-5% category and having reviewed her today I would place it at 2.5%., I acknowledge, is not typically the approach used in the proportioning of PFI awards. This issue, however, is not under review. 67. Despite this PFI proportioning observation, I acknowledge Mr. Strong s point suggesting there is a superficial discrepancy in the rating for the PFI versus that for wage loss entitlement, considering the 2.5% deduction in relation to the 75% reduction. It must be recalled, however, that the proportioning process for a PFI is completely different than the proportioning process for wage loss benefits. I do not accept that a finding on one relates directly to a finding on the other. 68. In considering the issue of proportionment, I refer to a previous decision I provided on this issue in September, 2012, Decision In Decision I discussed how the proportionment decision must be made in accordance with the Policy as it is written, so to ensure that its application conforms to the wording, spirit, and intent of the Act. Decision involved the case of a pre-existing, progressive disease process. The worker in that case was in his late fifties and had been engaged in physical work for most of his work life with a relatively minimal interruption of his employment history due to the pre-existing condition. That Decision made three significant findings, namely; 1. The Policy in its entirety must be taken into account, and read consistently with Policy 43.1 and the overall statutory context; 2. The ultimate decision is to be made by the adjudicator, and the role of the Medical Consultant is to review the claim and supply the Adjudicator primarily with medical findings, and also an opinion, as to how the findings are consistent with the contents of the Policy; 3. The etiology and pathology are important in establishing questions of cause, but they must be specifically applied to determine the expected impacts of the pre-existing condition and the work injury upon the worker s earning capacity, in isolation from each other, and had the other not taken place. That is the model which the Commission adopted in the ratings table contained in the Policy itself. 69. In that Decision, I made the observation that simply stating that a pre-existing condition was present, and would likely have become symptomatic at some point during an average person s life span, fell short of what is required under the Act, regulations, and policies. The general premise that a person may have inevitably experienced symptoms during their life does not necessarily establish that the condition would have been expected to affect the person s ability to earn in the absence of the work injury interacting with the condition. 18

19 70. It would be a hollow exercise to consider that such a pre-existing disease or condition could be accepted as a proportioning factor if there is no evidence to suggest that the condition would have manifested itself during the worker s remaining work life. If it cannot be established, on the balance of probabilities, that the condition would have manifested itself during the worker s anticipated remaining work life, it is hard to accept the premise that it would attract a level of severity which is defined in the Policy according to the expected effects on the worker s ability to earn in pre-injury employment. 71. If the weight of medical evidence, however, does demonstrate that the condition would, on the balance of probabilities, have manifested itself during the worker s anticipated remaining work life, the Commission is perfectly free to explore the application of the ratings table provided in Policy EN-02: Proportionment. The proportioning factor will be the rating identified by the table, according to the proper application of the definitions to each of the work injuries and the proportioning factor. As indicated, the work injury and the proportioning factor must be assessed separately, without regard for how the other has contributed to the worker s overall compensable disability. It is an error to assess the work injury in a different fashion than the proportioning factor. The expected effects of the work injury and the proportioning factor must be looked at in isolation from each other. It is not appropriate to determine a severity rating for the work injury by looking at the work injury in isolation, but then to determine a severity rating for the proportioning factor by rating it according to how it actually is contributing to the overall compensable disability, or for that matter, according to how it has been worsened or aggravated by the employment injury or activity. In doing so, a different standard would be applied to each. 72. Finally, it should be noted that it is not necessary for the Commission to find that the preexisting condition had already emerged as a pre-existing disability before it can consider a claim eligible for proportionment. Section 43.1 allows the Commission to consider proportionment where there is a pre-existing condition, disease, or disability. Conditions which had not previously caused a loss of earning capacity can be proportioned under the current section and under Policy EN-02: Proportionment, as long as the analysis in the Policy is respected. 73. Considering the analysis outlined in Decision as the basis for reviewing the application of Policy EN-02: Proportionment, when I compare it to the analysis performed on this claim, I find it has been appropriately applied in this case. The evidence is clear that the worker had a significant pre-existing back condition, for which she sought and received treatment. It had already manifested itself and had already advanced to the point it had previously affected the worker s ability to work and earn. 74. The employer indicates an awareness of the pre-existing condition and states the following on the Form 7: It was known for quite some time that [the worker] had physical impairments to her back. She would leave work early on multiple occasions due to back pain but never declared any incident involving a strain or any other injury. I note this evidence is not refuted by the worker. Further, I note the worker indicated at the hearing, when questioned about her symptoms in 2008, she indicated she had simply pulled 19