The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on August 31, 2000, at the request of a worker advisor, acting on behalf of the claimant. The Panel discussed this appeal on August 31, 2000.

Issue

Whether or not the claimant has permanent physical restrictions related to the effects of the 1991 accident or to a combination of any or all of the compensable accidents.

Decision

That the claimant does not have permanent physical restrictions related to the effects of the 1991 accident or to a combination of any or all of the compensable accidents.

Background

On January 30, 1991, the claimant was unloading boxes of beer from an employer's truck when he felt a pull in his lower back. The diagnosis rendered by the attending physician on January 31, 1991 was a low back sprain. The claim was accepted as Workers Compensation Board (WCB) responsibility and benefits were paid accordingly. The claimant also has previous back claims with the WCB dating back to 1983.

With regard to the 1991 claim, the claimant underwent x-rays of the lumbosacral spine on March 28, 1991. The impression revealed minimal narrowing of the disc space at L5-S1.

On April 5, 1991, an orthopaedic specialist reported that the claimant had mildly restricted back motion together with some discomfort on the extremes of motion. There were no neurological abnormalities. The specialist stated that the claimant's job involved constant lifting and that he had been doing this job for over 11 years. "His symptoms are probably related to disc degeneration."

Subsequent progress reports received from the attending physician indicated that the claimant needed job retraining for sedentary work and that it was unsafe for him to return to his regular heavy work.

On May 17, 1991, a CT of the lumbosacral spine revealed a central L5-S1 disc herniation with minimal inferior sequestration.

On June 25, 1991, a WCB medical advisor outlined temporary restrictions for a six month duration. These included no lifting, bending or twisting of the lumbar spine. The claimant was to avoid prolonged standing and no more than 2 hours sitting at one time.

A report was received from the treating orthopaedic specialist dated June 24, 1991. The specialist concluded that the claimant was disabled from work and that with 4-8 weeks of progressive rehabilitation he would be allowed to return to his job without consequences.

On September 3, 1991, a WCB medical advisor reviewed the case at the request of primary adjudication. The medical advisor was of the opinion that the claimant's continued symptoms were due to degenerative disc disease as a result of long term heavy work. With respect to restrictions, the medical advisor indicated they were the same as were outlined in June and the duration was "6 months initially - probably permanent."

In April 1992, the claimant was called in for an examination at the WCB's offices for an assessment of his physical status. The medical advisor indicated that the claimant had a resolving herniated disc problem. The claimant had no neurological signs, was well developed and the tone of his muscles were excellent. The medical advisor noted that as the claimant had a history of nine back injuries in nine years, it would not be wise for him to return to heavy manual labour. However, the claimant was considered fit for medium duties and that retraining was probably the answer to his chronic pain problems.

On May 12, 1992, primary adjudication asked a WCB medical advisor for an opinion as to whether the claimant had recovered from the January 1991 compensable injury and whether restrictions should be imposed on a preventative basis. In response, the medical advisor stated, "If my recommendation of not returning to a heavy manual labour job means preventative restrictions then so be it."

In a decision dated November 3, 1992, primary adjudication advised the claimant that in its view he had recovered from the effects of the January 1991 compensable injury based on file evidence and the examination at the WCB offices on May 4, 1992. The claimant was further advised that the restrictions imposed on his return to work were for preventative reasons only. The claimant later participated in a vocational rehabilitation plan under the WCB's preventative rehabilitation policy which included institutional retraining and a job search. The vocational rehabilitation plan ended on March 30, 1997, and the claimant was advised he would no longer be entitled to receive further vocational rehabilitation services.

On March 30, 1998, the claimant appealed the decision made in November 1992 that he had recovered from the effects of his January 30, 1991 compensable injury. The claimant disagreed that restrictions were imposed for preventative measures only. On May 12, 1998, the claimant told a WCB Review Officer that he was currently unemployed and felt that the WCB did not do enough through rehabilitation to help him. The claimant believed that he had not recovered from the 1991 injury and was still suffering from the accident.

On June 19, 1998, Review Office confirmed that the claimant had recovered from the effects of the January 30, 1991 injury and that the claimant did not have permanent physical restrictions as a result of this accident. Review Office stated the claimant had degenerative disc disease in his lower lumbar spine that pre-existed the accident. After consulting with a WCB orthopaedic specialist, Review Office concluded that the claimant had recovered from the accident and that the need for physical restrictions were more probably related to the pre-existing state of his spine than to the effects of the accident.

Review Office made reference to a report submitted by the attending physician dated March 25, 1997, in which the physician stated that he never lifted any restrictions and that he always maintained the claimant should avoid bending, twisting and lifting of his lower back. Review Office stated the report was unclear as to why these particular restrictions were imposed. Review Office did not believe that restrictions of a permanent nature were required as a result of this particular accident.

On January 12, 2000, a worker advisor asked Review Office to reconsider its decision of June 23, 1998. Two issues were identified. One pertained to whether the claimant was entitled to rehabilitation benefits under policy 34.00, Vocational Rehabilitation. The other issue was whether the noted restrictions were permanent and directly related to the claimant's numerous workplace injuries.

On February 11, 2000, Review Office determined as follows: that the claimant had recovered from his various low back injuries sustained in the workplace; that the claimant did not require permanent physical restrictions related to the effects of any or all of these accident; and that the claimant did have preventative physical restrictions based on the total number of injuries sustained to his lower back as well as the pre-existing degenerative disc disease condition.

Review Office reviewed all of the claimant's prior back files. Review Office was of the opinion that the claimant had recovered from each of these claims. The claimant had developed degenerative disc disease over the years, which was not related to any one of these specific accidents or to a combination of all of the accidents. It was agreed that the claimant required preventative restrictions based on his pre-existing spinal problems and given the total number of low back injuries that he had sustained since 1983.

Review Office also felt that the claimant had been well compensated under the WCB's preventative rehabilitation policy. It was of the opinion that the claimant did not qualify for what might be termed "regular" rehabilitation benefits under WCB policy 43.00. The claimant was therefore not entitled to payment of ongoing wage loss benefits as claimed by the worker advisor.

In May 2000, the worker advisor appealed Review Office's decision and an oral hearing was convened.

Reasons

The Act provides for the payment of wage loss benefits to an injured worker until such time as the WCB determines that the worker's loss of earning capacity has ceased or until the worker has attained the age of 65 years. In many cases, workers who have not fully recovered from their compensable injuries can be assigned physical restrictions by the WCB's medical consultants. The permanency and duration of these restrictions often determine whether or when a worker can return to his pre-accident employment on either a graduated or modified basis or perhaps to a different job altogether with the same or different employer. These medical or compensable restrictions remain in effect until such time as the worker is considered to have recovered from the accident. During the period of time when these restrictions are in force, the WCB frequently takes an active role in minimizing an injured worker's loss of earning capacity by providing rehabilitation benefits and services and/or medical aid benefits in conjunction with the payment of wage loss benefits.

In situations where a worker has a pre-existing medical condition or a predisposition to a particular form of injury, it may be appropriate for the WCB to recommend restrictions for the worker because of this pre-existing condition or predisposition. Even though these restrictions may affect the worker's ability to perform his or her job, they are nevertheless preventive restrictions that would be appropriate for the worker to consider, even without having sustained a workplace accident. The WCB does not assume any responsibility financial or otherwise that may occur as a result of its recommendation of preventive restrictions.

In the present case, the claimant qualified for and received preventive vocational rehabilitation services from the WCB. His worker advisor advanced the argument that the granting of such benefits and services from the WCB was equivalent to the imposition of compensable restrictions, which would therefore entitle the claimant to receive regular vocational rehabilitation benefits.

Our review of the WCB's Preventive Vocational Rehabilitation policy 43.10.60 suggests that preventive vocational rehabilitation is a very limited discretionary tool. Preventive vocational rehabilitation benefits and services are only available in circumstances where the worker is considered to have sufficiently recovered from the effects of the compensable injury to return to work and where no benefits would otherwise be payable, but a significant risk of re-injury has been identified. That is, the worker does not have compensable restrictions. The risk or potential of future injury that leads to the consideration of preventive rehabilitation is not a 'restriction', but rather, is an approach available to both the WCB and the worker, in a limited number of cases, to avoid possible future injuries through a career redirection initiative.

After a thorough review of the file, the weight of evidence does not lead us to the conclusion that the claimant's restrictions, as recognized by the WCB, are related to the 1991 compensable injury and/or any of the claimant's previous accidents. The claimant has a back at risk and we find that his restrictions are preventive in nature because of this fact. The evidence confirms, on a balance of probabilities that the claimant had successfully recovered from the effects of each and every one of his compensable injuries.

In arriving at our decision, we attached considerable weight to the following body of evidence:

• WCB orthopaedic consultant's memorandum dated June 11th, 1998 wherein he states: - "The claimant has degenerative disc disease leading to recurrent symptoms. Any imposition of restrictions on a permanent basis is because of this condition & to prevent any recurrence of problems."
• WCB orthopaedic consultant's memorandum dated February 8th, 2000 wherein he states: - "My opinion remains unchanged. Any claimant with this number of recurrent back problems in association with degenerative disc disease requires preventative restrictions to prevent any further recurrences of the problem. It is the sum total of the numerous claims that necessitate the imposition of preventative restrictions."

The employer's advocate urged the Panel to find that the claimant's appeal was frivolous in nature. Section 60.8(7) of the Workers Compensation Act (the Act) deals with the imposition of costs where the Panel is of the opinion that an appeal is frivolous. We note that this particular section was first introduced as part of the amended Act of 1992. Inasmuch as this appeal relates to a compensable accident, which arose in 1991 we lack the necessary legislative authority to make such a finding of frivolousness.

In conclusion, we find that the claimant does not have permanent physical restrictions related to the effects of either the 1991 accident or to a combination of any or all of the compensable accidents. Accordingly, the claimant's appeal is hereby dismissed.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
C. Monk, Commissioner

Recording Secretary, B. Miller

R.W. MacNeil - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 4th day of October, 2000