The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on January 17, 2001, at the request of a union representative, acting on behalf of the claimant. The Panel discussed this appeal on January 17, 2001.

Issue

Whether or not the claimant is entitled to benefits beyond December 20, 1998.

Decision

That the claimant is entitled to partial wage loss benefits between December 20, 1998, and September 19, 1999.

Decision: Unanimous

Background

This case was previously the subject of an Appeal Panel hearing to determine whether there was basis to extend wage loss benefits to the claimant beyond April 7, 1998. Complete details regarding the background of this case can be found in Appeal Panel Decision No. 33/99 and will not be repeated in its entirety at this time.

Briefly, the claimant injured his back region while assisting a patient to a stretcher on July 6, 1997. The diagnosis rendered at this time was a muscle strain to the neck and lumbosacral region.

On November 20, 1997, a Workers Compensation Board (WCB) medical advisor noted that the claimant had a pre-existing history of congenital scoliosis with a T8 to T11 fusion which was performed when the claimant was 16 years old. The claimant also had degenerative changes shown on x-rays of the lumbosacral spine. The medical advisor believed that the claimant strained his right upper trapezius and lower lumbar musculature in July 1997 accident. In December 1997, a pain and stress management specialist diagnosed the claimant with sleep disturbance and myofascial pain in the right supraspinatus, trapezius and both quadratous lumborum.

In March 1998, the claimant was advised that the WCB considered him to have recovered from the effects of his July 1997 accident and that his ongoing complaints were related to his pre-existing condition. Wage loss benefits were therefore discontinued as of April 7, 1998. This decision was later appealed by a union representative and the case was considered by the WCB's Review Office and then by an Appeal Panel in November 1998.

Ultimately, the Appeal Panel determined that there was basis to extend wage loss benefits beyond April 7, 1998. The Panel paid particular attention to the opinion put forth by an orthopaedic specialist who had examined the claimant on November 24, 1998, and who was of the impression that the claimant was recovering from his severe low back sprain superimposed on his pre-existing thoracolumbar scoliosis. The Panel determined that benefits should be extended to around the middle of December 1998 which was when the claimant was scheduled to complete a work hardening program.

Subsequent information showed that the work hardening program ended on December 20, 1998 and benefits were paid up to that date. On December 21, 1998, the claimant returned to work at a part-time position.

On June 23, 1999, the claimant called to inquire whether the WCB would pay him partial wage loss benefits as he had returned to work to a lesser paying job.

In subsequent letters dated July 23 and July 30, 1999, the claimant was informed that it was the WCB's opinion, that he had recovered from the effects of his July 1997 compensable accident following the completion of his work hardening program in December 1998. It was therefore determined that the claimant was not entitled to partial wage loss benefits even though he had taken a lower paying job. This decision was based, in part, on the comments expressed by the treating orthopaedic specialist in his letter of December 16, 1998.

On July 13, 2000, a union representative wrote to the Review Office appealing the decision that the claimant was not entitled to further benefits. It was the position of the union representative that the claimant had not recovered from the effects of his compensable injury as of December 20, 1998 and that the claimant moved to a position of porter because he was physically unable to perform his pre-accident work due to his ongoing and compensable neck and back problems. It was the union representative's view that the claimant continued to suffer a loss of earning capacity as a result of his July 1997 work place injury and that the claimant be provided with partial wage loss benefits retroactively to December 20, 1998. In support of her position, reference was made to medical reports dated December 16, 1998, and December 17, 1999.

In a decision of August 18, 2000, Review Office confirmed that the claimant had recovery from the effects of his workplace injury as of December 20, 1998, and was not entitled to benefits beyond that date. Review Office based its decision on the comments expressed by the orthopaedic specialist in his examination report of December 16, 1998. On October 4, 2000, the union representative appealed Review Office's decision and an oral hearing was convened.

Reasons

The issue to be determined in this appeal is whether or not the claimant is entitled to benefits beyond December 20, 1998.

The claimant returned to work in December 1998, but into a lower paying position. Whereas his position at the time of the compensable injury was .7 of a full-time position, the new one was .6. As well, the new position paid a lower hourly rate. So, the more specific issue is whether he is entitled to receive partial wage loss benefits.

The sections of the Workers Compensation Act, which are relevant to this case, are section 39(1), which calls for the payment of wage loss benefits where an injury to a worker results in a loss of earning capacity; and 39(2)(a), which states that wage loss benefits are payable until the loss of earning capacity ends, as determined by the board.

Did the claimant in this appeal have an ongoing loss of earning capacity that would entitle him to partial wage loss benefits beyond December 20, 1998? To determine this, we must first determine whether or not he had fully recovered from his compensable injury, incurred on July 6, 1997.

The injury was accepted by the WCB as compensable and benefits were paid until April 1998, when the Board determined that the claimant had recovered. This decision was upheld by the Review Office in a decision, dated August 26, 1998. In a subsequent appeal to this Commission, another panel held that there was a basis for payment of benefits beyond April 7, 1998. In its ruling, dated February 19, 1999, the panel implied that benefits should be continued until a "work-hardening" program was completed, which occurred in December 1998.

In a letter, dated July 30, 1999, the adjudicator assigned to this case advised the claimant that the reason for terminating his benefits on December 20, 1998 was that he was recovered from his workplace injury. The letter further states that this was based, in part, on a letter from the attending orthopedic specialist, dated December 16, 1998. This decision was upheld, for the same reasons, by the Review Office on August 18, 2000.

This panel notes that, in that letter, the specialist wrote "My impression then was that [the claimant] was recovering from his severe back sprain .." The panel does not interpret this statement as being definitive.

We are of the view that the adjudicator and the Review Office were remiss in not considering other evidence in the file from the claimant's family physician and from another physician, both of whom said that the claimant was likely to have ongoing, if not permanent, restrictions on his ability to return to work. Both stated that work which would involve heavy lifting, pushing, pulling or bending and twisting would continue to pose problems for the claimant.

We found the evidence of the second physician particularly persuasive as the purpose of this examination was to determine whether or not the claimant was eligible for benefits under an employer-sponsored disability insurance plan.

We conclude that, on a balance of probabilities, the evidence indicates that the claimant had not fully recovered from his July 1997 injury to the point that he could return to the position he occupied prior to the injury. Therefore, he is entitled to partial wage loss benefits beyond December 20, 1998.

The panel also considered for what period these benefits should be paid. Under section 39(2)(a), as noted above, the claimant would be entitled to benefits until such time as it is determined that he no longer had a loss of earning capacity, due to the compensable injury.

We note that the claimant last worked for the employer in question on September 19, 1999, at which time, he alleges, he sustained another injury to his back. His subsequent claim to the WCB was not accepted, as the Board was not able to verify that the injury occurred at work. Subsequent to this, the claimant has become self-employed, terminating his employment with the employer.

We conclude that any loss of earning capacity beyond September 19, 1999 was not attributable to the July 1997 accident.

Therefore, the appeal is allowed to the following extent: the claimant is entitled to partial wage loss benefits for the period from December 20, 1998 to September 19, 1999.

Panel Members

T. Sargeant, Presiding Officer
P. Challoner, Commissioner
B. Leake, Commissioner

Recording Secretary, B. Miller

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

Signed at Winnipeg this 25th day of January, 2001