Appeals Commission for Alberta Workers Compensation

Transcription

1 Decision No.: Page 1 Appeals Commission for Alberta Workers Compensation Introduction Docket No.: AC Decision No.: [1] The worker appeals the April 17, 2014 decision of the Dispute Resolution and Decision Review Body (DRDRB) in respect to the Workers Compensation Board (WCB) decision that he does not have a permanent totally disability (PTD). The following circumstances give rise to the appeal: [1.1] The worker submitted a worker s report of injury for an injury which had occurred on June 14, On June 23, 2005, the WCB accepted the worker s claim for a back injury. [1.2] On January 29, 2014 the worker s representative requested that the worker be declared to have a PTD. On February 4, 2014, the WCB informed the worker that he did not qualify as having a PTD. [1.3] The worker did not agree with this and, on March 11, 2014, requested that the decision be reviewed. The WCB decision was reviewed by the DRDRB and, on April 17, 2104, the decision was upheld. [2] The DRDRB decision was appealed to the Appeals Commission on May 1, The employer was informed of the appeal by letter dated May 29, There was no response. [3] A hearing was originally scheduled for October 23, 2014, however, on September 11, 2014, the worker s representative requested an adjournment, which was granted. Issue [4] Does the worker have a permanent total disability? Preliminary Matters [5] At the opening of the hearing the worker s representative provided a one page copy of her presentation notes, which was marked as Exhibit A. [6] There were no other preliminary matters.

2 Decision No.: Page 2 Analysis Legislation and Policy [7] Section 24(1) of the Workers Compensation Act, RSA 2000, c W-15 (the Act) indicates that compensation is payable to a worker who suffers personal injury by an accident. [8] Section 43 of the Act states as follows: 43(1) If permanent disability results from an accident, the evaluation of the worker s disability shall be made on behalf of the Board by one physician and one claims adjudicator employed by the Board. (2) Permanent total disability shall be conclusively presumed in all cases in which the injuries suffered consist of or include any or all of the following: (a) total and permanent loss of the sight of both eyes; (b) the loss of both feet at or above the ankle; (c) the loss of both hands at or above the wrist; (d) the loss of one hand at or above the wrist and one foot at or above the ankle; (e) an injury to the spine resulting in permanent and complete paralysis of both legs, both arms or one leg and one arm; (f) an injury to the central nervous system resulting in mental incompetence that renders the worker incapable of being gainfully employed. [9] Section 56 of the Act states, in part, as follows: (6) The amount of the periodic payment of compensation is (a) in the case of permanent total disability and temporary total disability, 90% of the worker s net earnings, and (b) in the case of permanent partial disability and temporary partial disability, a proportionate part of 90% of the worker s net earnings based on the Board s estimate of the impairment of earning capacity from the nature and degree of disability. (7) Compensation for permanent total disability and permanent partial disability is payable to the worker during the worker s lifetime and shall not be less than (a) in the case of permanent total disability, $900 per month, and

3 Decision No.: Page 3 (b) in the case of permanent partial disability, a proportionate part of $900 per month based on the Board s estimate of the impairment of earning capacity from the nature and degree of disability. [10] Under WCB Policy 04-04, there are no specific provisions or criteria to apply when determining whether to grant a worker PTD status for reasons other than those presumptions in section 43(2) of the Act. [11] However, Policy does speak to permanent disability. It states, in part: [11.1] A worker is considered to have a permanent disability when a work injury results in permanent measurable clinical impairment or an impairment of earning capacity due to permanent compensable work restrictions, or both. [11.2] When an accident occurs on or after January 1, 1995, the WCB provides the following permanent disability benefits: a non-economic loss payment (NELP), which is a lump sum payment based on the measurable clinical impairment; and an economic loss payment (ELP), which is a periodic payment based on the permanent loss of earning capacity caused by the disability. [11.3] The WCB determines a permanent impairment of earning capacity by assessing the impact permanent compensable work restrictions will have on a worker s ability to earn in any suitable employment. [11.4] The WCB determines permanent impairment of earning capacity when the worker has reached both a medical and vocational plateau. An exception is made when the worker is permanently totally disabled, in which case it is not necessary to reach a vocational plateau before determining impairment of earning capacity. [11.5] The WCB compares the worker s annual net earnings at the time of the accident with the worker s actual or estimated post-accident net earnings. The WCB then evaluates whether any reduction in earnings is attributable to the permanent disability. [11.6] The ELP compensates the worker for loss of earnings if the injury results in compensable permanent work restrictions that cause a permanent impairment of earning capacity. It is 90% of the difference between the worker s pre-accident net earnings and the greater of the worker s post-accident net earnings or estimated post-accident net earning capacity. [11.7] Part II, Application 3 of Policy specifically states that the ELP is normally paid until age 65 (or retirement age), at which time it is adjusted to reflect the impact of retirement income. Questions 3 and 14 state that the only exceptions are workers with 100% permanent clinical impairment (PCI)

4 Decision No.: Page 4 and worker s presumed to be PTD under section 43(2) of the Act. In these cases, the WCB does not deduct any post-accident earnings, nor does it adjust the ELP at age 65. Key Submissions [12] The following key submissions were provided on behalf of the worker: [12.1] In a memo dated January 24, 2014, the WCB acknowledged that section 43(2) does not state that the six presumed instances of PTD are an exclusive list of what would constitute PTD under the Act. In any case other than the six conditions, PTD is not presumed but would have to be established on the evidence. [12.2] Workers who were found to be PTD in the absence of a presumption could still be retrained by the WCB and that could have the effect of rendering the worker not totally disabled. [12.3] To be found PTD in the absence of a presumption, injuries must be reasonably equally as severe and/or debilitating as injuries conclusively presumed PTD. [12.4] On December 10, 2008, the worker underwent an independent medical examination (IME) by a specialist in neurosurgery for the purpose of establishing a permanent clinical impairment (PCI). On January 15, 2009 the IME was reviewed by a WCB medical consultant who established a PCI of 53% of the whole person. [12.5] The six injuries under section 43 that are presumed to result in PTD equate to PCI range of 50% to 100%. [12.6] Section 43(2)(b) refers to the loss of both feet above the ankle. The worker's feet were not amputated above the ankle, but functionally he has lost the use of both feet above the ankle. Therefore, the literal meaning of loss has been met. The Act does not say amputation; it says loss. [12.7] Bilateral foot amputation at or above the ankle carries a PCI rating of 50%. This is less than the 53% that has been awarded. [12.8] Section 43(2)(e) refers to an injury to the spine that results in permanent and complete paralysis of both legs. The worker does not quite meet this requirement as he has partial use of his legs. [12.9] The worker has very limited use of his legs. The workers family physician, in a report dated January 29, 2013, stated that the worker is unable to walk without braces. [13] The following key evidence was provided by the worker:

5 Decision No.: Page 5 [13.1] The worker has no feeling between his left ankle and knee. He has thigh muscles on both sides, which is how he is able to walk. [13.2] His right foot is classified as a dead foot. When walking, he just throws it forward. He has lost muscles in his rear which makes it difficult to balance on rough ground. [13.3] It is difficult to predict bowel movements. It can happen in the middle of the night. This limits what he wants to do because he does not know when this will happen. [13.4] An individual with two amputated feet and prosthetics would probably be better off than the worker is. At least that person would have bowel and bladder control. [13.5] It takes the worker twice as long as it did before to do anything physical. [13.6] The worker used to enjoy hunting and fly fishing. He can no longer hunt but would like to get back to fly fishing to take his mind off the pain in his rectum. He refuses to take narcotic pain medications. The stress of working increased his pain. [13.7] The worker can no longer do the job he did for 35 years. There was a time when he could manage 30 or 40 projects at a time. He was offered a managerial position but refused. He just wanted to do his job. [13.8] Dealing with pain takes a lot of his energy. Pain has made him lose his life outside of work. It has been 10 years of horror. [13.9] The worker has been trying to get back some kind of a life but it has not been easy. He has tried working at three different places in the last four or five years and it has not worked out. He always prided himself on being able to work with people. [13.10] The worker gets into arguments easily. He has had arguments with good friends. [13.11] The worker has had narcolepsy since 1976, however, it is currently well under control. He does have to be careful about how long he drives. [13.12] The reason he stopped working was more because of his inability to maintain working because of his symptoms. [13.13] The worker has tried to return to work but was not able to bring the level up to where he was before. He would like to have some work to do but could no longer work at the level that he used to.

6 Decision No.: Page 6 [13.14] The worker lives on an acreage and cuts about two acres of grass using a riding mower. He uses a 4 x 4 utility vehicle to drive around with tools to trim trees and perform maintenance. He has a blade on the front of his ATV to plow snow in the winter. Questions to Answer [14] In view of the legislative provisions, the panel must answer the following questions: [14.1] Does the worker meet one of the presumptions under section 43(2) of the Act? [14.2] If not, is it possible for a worker to be found to be PTD in the absence of a presumption and, if so, does this worker otherwise qualify for PTD status under this claim? Evidence/Findings [15] The panel finds that the worker does not meet any of the presumptions under section 43(2) of the Act. Our basis for this is as follows: [15.1] We acknowledge the worker s representative s argument that the worker has lost the use of his feet and, accordingly, should qualify for PTD pursuant to section 43(2)(b) of the Act. The section states that a worker is presumed to have PTD if he has lost both feet at or above the ankle. The representative argues that the section does not stipulate that the feet have been amputated and, in any case, the worker would have probably been better off if both feet had been amputated and he had prosthetics. [15.2] The panel disagrees. The section clearly states that the feet have been lost at or above the ankle. The panel interprets that to mean that the feet have been amputated. [15.3] The representative also argues that section 43(2)(e) may apply. This section refers to an injury to the spine resulting in permanent and complete paralysis of both legs. [15.4] The panel again disagrees. The worker has limited use of his legs and is able to walk using braces. While we acknowledge that his mobility is limited, his paralysis is not complete. [16] The panel finds that it is possible for a worker to be found to be PTD in the absence of a presumption and this worker does otherwise qualify for PTD status under this claim. Our basis for this is as follows: [16.1] While not bound by previous Appeals Commission decisions, the panel finds the analysis in Decision No informative. The relevant portion is as follows:

7 Decision No.: Page 7 The question of access to PTD status outside of the presumptive provision of section 43(2) of the Act has been addressed by other panels at some length. The worker representative pointed the panel to Decision No , where the panel had found the worker was PTD status; although not under section 43(2). An extensive analysis of the question was carried out in Decision No which we find particularly compelling. As was pointed out by the WCB legal representative, there is common ground between these recent decisions, the WCB legal submissions, and the submissions of the worker representative: there is an acknowledgement that it is possible for a worker to be found to be PTD without a need to rely on the section 43(2) presumptions. That part of the analysis seems to be without dispute. What does become a point of contention are the particular tests that are set out to determine if a worker has equivalent-to-43(2) status. For example, in this case the WCB submitted that a finding of PTD would need to be based on an inability by the WCB to restore a worker to employability. That submission suggests that a finding that a worker had zero earning capacity would be a necessary first step prior to PTD status. This was countered by the worker representative who suggested that a total loss of earnings was not necessary. Her primary argument for this was that the presumptive conditions in section 43(2) did not require a total loss of earning capacity. In this regard we disagree with both the worker representative and the WCB submissions. The basis for the presumptive injuries of section 43(2) is not, in the panel s interpretation, tied to any particular ability or inability to earn income. Those injuries are set apart from other injuries specifically because of the profound nature of the injury s impact on the integrity of a person s being. Those profound injuries might result in a total loss of income, or no loss of income, as income is not the test. For example, the total loss of sight, the loss of both feet, both hands or one hand and one foot are all injuries that would require major adaptation to permit a person to, for example, live independently. At the same time, it is possible and probable that people with those very profound injuries could recover to the point of full-time employment. Therefore, the primary reason for the section 43(2) injuries being presumptive is the impact on the person, and not the impact on other factors such as employability. PTD status reflects total disability and not necessarily total loss of earning capacity. Our conclusion, based on our interpretation of the Act, is that the legislature intended the presumption of PTD to apply only to the most grievous of injuries. That class of injuries would require major adaptations to conduct the activities of daily living or to continue employment. Those injuries would not presuppose any particular level of clinical impairment, as impairment is focused on a measure of the loss of function in a body part. Even the presumptive cases of section 43(2) are not injuries that would be rated at 100 percent PCI. In the absence of a definition in the legislation or policy, we have set out through an interpretation of the policy and legislation what we consider

8 Decision No.: Page 8 would constitute the definition of an equivalent-to-43(2) PTD injury. In the referenced Decision No that panel set out an assessment framework, and then concluded based on the facts that the worker was totally disabled, and therefore had PTD status. While that panel did consider earning capacity, this was in the context of a number of other factors that were also assessed. We will conduct a similar analysis, based on the medical evidence, to determine if this worker should be assigned PTD status. [emphasis in original] [16.2] The panel concurs with the above analysis. [17] Based on our review of the medical evidence, and specifically the following, we find that the worker s injuries entitle him to PTD status: [17.1] A January 15, 2009 memo from a WCB PCI medical consultant established the worker s PCI at 53% of the whole person. [17.2] The WCB has accepted responsibility for a fracture of the L1 vertebrae with retropulsion compression of the conus and distal cord, resulting in partial paralysis of both legs, sexual dysfunction, bladder dysfunction, bowel dysfunction and prolonged depressive reaction. [17.3] The WCB considers the worker to be a severely injured worker as illustrated by the fact that he has been provided with a personal care allowance as well as a home maintenance allowance since the date of accident. [17.4] The worker s condition is not going to improve. An independent medical examination by a specialist in Neurosurgery, for an examination on October 25, 2013, indicated that the worker s neurological condition is not going to change. [18] The panel concludes that the worker s partial parapalegia in combination with loss of sexual function, bladder dysfunction and bowel dysfunction has an effect on the integrity of his being comparable to some of the conditions for which PTD status is conclusively presumed pursuant to section 43(2) of the Act. Conclusion [19] The panel concludes that the worker is entitled to PTD status, pursuant to section 43(1) of the Act.

9 Decision No.: Page 9 Decision [20] The worker has permanent total disability. [21] The appeal is allowed. The decision of the Dispute Resolution and Decision Review Body is reversed. This decision is made with the full agreement of the hearing panel. Decision signed in Edmonton, Alberta on July 17, R. Reimer Hearing Chair (on behalf of the panel) Hearing Panel: R. Reimer Hearing Chair T. Thain Commissioner B. Madoche Commissioner Typed by: jr/jeb DEC08 ( )