The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on November 21, 2000, at the request of legal counsel, acting on behalf of the claimant. The Panel discussed this appeal on November 21, 2000.

Issue

Whether or not the claimant is entitled to payment of wage loss benefits for the period January 8, 1999 to June 8, 1999.

Decision

That the claimant is entitled to payment of wage loss benefits for the period January 8, 1999 to June 8, 1999.

Background

While employed as an electrician on July 18, 1996, the claimant was standing on a six foot ladder when a bracket broke causing a steel trough weighing approximately 110 pounds to hit the claimant's chest which caused the claimant to fall on his back landing on forklift bars. Initial medical examination by the attending physician diagnosed the claimant's condition as a back strain. The claim was accepted by the Workers Compensation Board (WCB) and the claimant received benefits up to January 8, 1999, when it was determined that he had recovered from the effects of the compensable accident and was suffering from a pre-existing spinal condition. The following is a brief summary of medical reports that led primary adjudication to this decision:

• on January 14, 1997, a bone scan of the lumbosacral spine and pelvis revealed a normal regional bone scan. On January 27, 1997, a CT scan of the lumbosacral spine revealed an L5 spondylolysis associated with mild forward spondylolisthesis. No disc protrusion was demonstrated.
• a WCB rehabilitation and physical medicine specialist stated on February 20, 1997, that the spondylolysis and spondylolisthesis were pre-existing conditions and that these conditions were aggravated by the claimant's fall.
• on October 6, 1997 a neurosurgeon noted that the claimant had undergone an extensive course of conservative management including a back brace, management by the Canadian Back Institute and physical therapy. The specialist thought that the claimant had congenital ischemic spondylolisthesis which had been made symptomatic by his recent injury. "Since he has exhausted other forms of management I am prepared to offer the patient surgery involving instrumental fusion." Subsequent evoked potential studies were read as being normal.
• the claimant was examined by a WCB medical advisor on December 17, 1997. The medical advisor indicated that the claimant may have some limitation with respect to carrying weight and prolonged forward flexed postures but was not disabled from the duties of an electrician. Recommendations were made for ongoing strengthening and therapy and a return to the workforce in the next four to six weeks. The claimant began a physiotherapy program commencing January 26, 1998.
• in late March 1998, the claimant entered a graduated return to work program which was set up for 4 hours a day, increased by one hour each week. It was reported by the claimant's solicitor on April 20, 1998, that the claimant managed well in the first week of the program as he was able to work in a seated position, albeit with considerable pain. The claimant was, however, unable to achieve the gradually increasing hours due to pain.
• on May 11, 1998, the claimant underwent a right L4-5 and L5-S1 facet injection for low back pain. On June 9, 1998, the treating specialist indicated that the claimant reported no relief following this injection. On September 2, 1998, the claimant underwent another injection to the right sacroiliac joint.
• on May 15, 1998, the attending physician stated the claimant was unable to work 4 hours daily due to increased pain and stiffness. The work trial was not conditioning but actually worsening the claimant's pain. The physician strongly believed that the claimant was motivated to work and the failure of the work trial indicated that the claimant was unable to work as an electrician due to his back injury. The physician asked that the WCB initiate plans for vocational rehabilitation.
• in a memorandum dated October 8, 1998, a WCB orthopaedic consultant stated in part, the following:
  • there was no anatomical diagnosis of a medical condition arising out of the work related injury or even an aggravation of pre-existing spondylolisthesis which would prevent the claimant from returning to his regular occupation.
  • the surgical option of instrumental spinal fusion should not be supported by the WCB under no circumstances. The consultant advised against any further investigations or invasive treatments.
  • the consultant stated that he could see no evidence that the WCB was obligated to consider vocational rehabilitation for the claimant.
  • a functional capacity evaluation was raised at some point but it was probable that the result would indicate less than full effort it would not add anything to the management of the case.

On April 28, 1999, a solicitor representing the claimant wrote to Review Office appealing the WCB's decision that the claimant was not entitled to wage loss benefits after January 8, 1999. The solicitor was of the view that it was clear from the medical evidence that the claimant continued to suffer from an injury that prevented him from returning to his work as an electrician. In support, the solicitor provided additional information from the claimant's treating physician dated March 31, 1999 for consideration by Review Office.

Prior to considering the appeal, Review Office noted that the claimant underwent a functional capacity assessment on May 26, 1999. The results showed that the claimant's ability to use his back was significantly limited and that the claimant passed all the veracity tests. Review Office also contacted the claimant on May 31, 1999 at which time the claimant indicated he had not been seeking employment since his WCB benefits ended as of January 1999. The claimant stated he had seen a physiatrist and had further appointments scheduled.

On May 28, 1999, Review Office determined that the claimant's ongoing back complaints were a sequela of the July 18, 1996 accident and that the claimant's wage loss benefits should be reinstated June 8, 1999 as a continuance. Review Office also instructed primary adjudication to give consideration to the claimant's entitlement to vocational rehabilitation assistance following completion of his treatment by the physiatrist.

In reaching the above decision that the claimant's continuing back complaints were a result of the compensable accident, Review Office placed weight on the report from the claimant's treating physician dated March 31, 1999 and from the result of the functional capacities assessment.

In addition, Review Office took into consideration section 22 of the Workers Compensation Act (the Act) which required that injured workers "mitigate the consequences of the accident". Review Office noted that while the claimant actively sought a medical solution to his back complaints, he did nothing to facilitate his returning to work despite being able to do so in some capacity. Review Office therefore saw no reason to retroactively reinstate the wage loss benefits.

Subsequent file documentation showed that a vocational rehabilitation plan was developed for the claimant in which he is presently pursuing an upgrading program with the expectation that he would apply for entrance to the Faculty of Pharmacy in the spring of 2002.

On July 7, 2000, a solicitor representing the claimant appealed the Review Office's decision stating there was no reasonable basis to deny wage loss benefits to the claimant between January 8, 1999 to June 8, 1999. An Appeal Panel hearing was later arranged for November 21, 2000.

Reasons

Decision: The Appeal Panel met, on November 21, 2000 to conduct a hearing of the claimant's appeal of the Review Office decision in this claim.

The Appeal Panel is of the unanimous opinion that the decision of the WCB Review Office was not correct and that the claimant is entitled to the payment of wage loss benefits for the period January 8, 1999 to June 8, 1999.

Reasons: There was no argument in this case as to the acceptability of the claim. The compensable injury suffered on July 18, 1996 has been accepted as a valid claim. The claimant continues to receive benefits pursuant to this claim, currently and for the next few years in the form of Vocational Rehabilitation benefits.

The key issue in determining this appeal was whether or not the claimant was obligated to seek alternative forms of employment during the period from January 8, 1999, when his wage loss benefits were cut off, and June 8, 1999, when they were re-instated, subsequent to a successful appeal to the Review Office.

(It should be noted, for clarification, that the appeal to the Review Office was successful in part. Benefits were re-instated, as of June 8, 1999; but it is was held that the claimant was not entitled to them for the intervening period.)

In coming to our decision, the panel reviewed the history of the claim. We noted that, from June 1996 to June 1999, the claimant underwent a series of medical examinations to try to determine the cause and nature of his ailment; as well as a series of treatments to deal with this ailment. Throughout this period the claimant's medical condition was consistent. There was no marked, sustained improvement in his condition.

At no time, in this period, was it ever indicated to the claimant that he was expected to find alternative employment. From June 1996 to January 1999, he was considered to be unable to return to work as an electrician and was paid wage loss benefits throughout the period. In June 1999, it was determined that he would never be able to return to work as an electrician and he was entered into a Vocational Rehabilitation Program.

In this case, the expectation of mitigation, by way of alternative employment, was introduced retroactively, as a result of a casual comment made by the claimant during a telephone conversation between the claimant and the review officer. We are of the view that this was unfair to the claimant and that the resulting denial of benefits was unwarranted.

We found the claimant to be a very credible witness on his own behalf. He genuinely wishes to return to gainful employment. If it were physically possible, he would return to his former trade as an electrician. Indeed, he did attempt a graduated return to work, but it was ultimately unsuccessful.

We note, from the file, that the claimant, through his legal counsel, first put forward the idea of vocational retraining in February 1998. However, it was not until the summer of 1999 that he was finally referred to the Vocational Rehabilitation Branch. This came as a result of a recommendation made by the Review Office in its decision of May 28, 1999. This recommendation followed a Functional Capacity Evaluation which determined that the claimant's ability to use his back was significantly limited.

We further note that, during the period when wage loss benefits were not paid, the claimant's file remained under active management by the Board. He continued to see the doctors handling his case and a Functional Capacity Evaluation was conducted at the behest of the Board.

We also note, for the record, that the employer participated in the appeal hearing and was supportive of the claimant's appeal, although this was not a significant factor in our reaching our decision.

For these foregoing reasons, we have concluded that the claimant should not have been denied payment of wage loss benefits during the period in question.

Accordingly, the claimant's appeal is hereby allowed.

Panel Members

T. Sargeant, Presiding Officer
A. Finkel, Commissioner
B. Malazdrewich, Commissioner

Recording Secretary, B. Miller

T. Sargeant - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 6th day of December, 2000