The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held via teleconference on September 24, 2001, at the request of legal counsel, acting on behalf of the claimant. The Panel discussed this appeal on September 24, 2001.

Issue

Whether or not the claimant has recovered from the effects of the compensable injuries sustained on August 19, 1986.

Decision

That the claimant has recovered from the effects of the compensable injuries sustained on August 19, 1986.

Background

While a passenger on a company bus on route to a work site on August 19, 1986, the claimant was involved in a motor vehicle accident. The claimant said he flew from his seat and fell sideways causing injuries to his hand, neck and knee. On the day of accident, the attending physician diagnosed the claimant with a neck sprain and old osteoarthritis, a chip fracture of the right middle finger and baseball finger and contusion of the right knee. The Workers Compensation Board (WCB) accepted the claim and temporary total disability benefits began on August 20, 1986.

The following is a brief summary of medical information noted on file:

• x-rays taken on August 19, 1986 showed early osteoarthritic changes involving the right knee and patella with no other bone or joint abnormality. X-rays of the cervical spine revealed cervical osteoarthritis. X-rays of the finger confirmed a small chip fracture involving the posterior aspect of the distal end of the middle phalanx.
• a progress report from the attending physician dated December 19, 1986 stated that the claimant had decreased range of motion with no signs of root irritation. On June 1, 1987, the physician reported quite severe cervical pain and stiffness radiating down both shoulders. The claimant complained of bilateral grasp weakness. All range of motion was decreased from to of normal.
• in a letter of July 20, 1987, the treating physiotherapist reported that the claimant attended 46 physiotherapy sessions for treatment of his right sided neck pain, trapezius spasm and synovitis/tendonitis of the right elbow from December 23, 1986 to May 20, 1987. At the May 20, 1987 appointment, the claimant stated he felt better overall, however, he still had some residual symptoms. The claimant was considered discharged from treatment as they had not heard from him since his last visit.
• a progress report of August 22, 1987 indicated that the claimant complained of right arm weakness and moving pain and stiffness of the cervical spine. Tenderness was noted over the right paracervical muscles and tip of right shoulder. Left flexion was decreased to and left rotation was decreased to 2/3s, strength, sensation, deep tendon reflexes were normal.

In August 1987, the claimant returned to his regular duties as a carpenter, hence, temporary total disability benefits were paid to August 27, 1987 inclusive.

While working in Alberta on October 9, 1987, the claimant walked into a pipe hitting his head. The claimant fell backwards and sideways injuring his neck, both shoulders, ribs and lower back. File information revealed that the claim was accepted by the Alberta WCB and the claimant was paid disability benefits up to 1997.

In a memo to a WCB healthcare consultant dated August 26, 1998, a Manitoba adjudicator noted that the Alberta WCB accepted responsibility for the claim on an aggravational basis only for the claimant's neck condition. The claimant had reported numerous complaints which included low back pain, arm weakness, chronic pain etc. On June 3, 1997, the Alberta WCB denied further responsibility for the claimant's neck problems (implying they were Manitoba's), or for his low back, chronic pain and psychiatric/psychological condition. The claimant's solicitor appealed the Alberta decision which was soon to be heard at the final level. In the meantime, the solicitor requested the Manitoba WCB to make a determination as to whether it would accept any responsibility for the claimant's current physical and psychological/chronic disabilities.

On September 3, 1998, the solicitor was advised that both the Manitoba and Alberta compensation claims were reviewed in consultation with a WCB medical advisor. It was the WCB medical advisor's opinion that there was no enhancement of the pre-existing osteoarthritis and no evidence of a causal relationship between the claimant's neck problems and the 1986 compensable injury. The adjudicator also noted that Claims Services found that the claimant had recovered from his compensable injury and that he returned to work on August 24, 1987. There was no evidence to support a cause-effect relationship between his current medical complaints and chronic pain syndrome and the August 19, 1986 compensable injury.

In a letter dated March 18, 1999, the claimant's solicitor indicated that the Alberta WCB had completed its review of the file and they attributed the claimant's problems to his Manitoba accident. The solicitor was therefore appealing the decision reached on September 3, 1998.

Prior to considering the solicitor's appeal, Review Office wrote to the Alberta WCB and obtained a copy of the March 8, 1999, decision rendered by the Alberta's Appeals Commission. In addition, Review Office obtained the opinion of a WCB orthopaedic consultant on June 1, 1999.

In a decision dated June 11, 1999, Review Office determined that the claimant had recovered from the effects of the compensable injuries sustained on August 19, 1986 and that the claimant was not entitled to payment of benefits and the provision of services from the Manitoba WCB. Review Office noted that the claimant had been in receipt of full benefits from another compensation jurisdiction and that his ongoing care and medical treatment had been monitored. Review Office concurred with the WCB's orthopaedic consultant's opinion that the claimant's current difficulties were most probably unrelated to the 1986 claim and therefore no responsibility could be accepted for wage loss benefits, disability pension or medical services. On May 9, 2001, the solicitor appealed Review Office's decision and a hearing was convened via teleconference.

Reasons

This case involves a worker who was originally injured, in 1986, while riding to the jobsite in a company-contracted bus, which was involved in an accident. He was diagnosed as having suffered a neck strain, a fracture to his right hand ring finger and a contusion to his right knee. This claim was accepted as compensable by the Manitoba WCB and benefits were paid accordingly.

Benefits continued for a year, at which time the claimant returned to work full-time at the Syncrude complex in Alberta. Six weeks later, he suffered another work-related injury, which was accepted as compensable by the Alberta WCB. Benefits for this injury were paid for over nine years.

We note that during the Alberta claim, the claimant was party to a successful lawsuit against the Manitoba Public Insurance Co., the insurer of the automobile at fault in the original accident. After a settlement was reached, he received a substantial payment. The claimant was advised during the hearing that pursuant to The Workers Compensation Act of Manitoba, had he been successful in this appeal, any benefits realized would be applied against that payment up to the total amount of the payment.

After the Alberta board terminated its responsibility for his ongoing symptoms, the worker sought to have the Manitoba board re-instate benefits, claiming that his ongoing problems were caused by the 1986 accident. This claim was denied by the Manitoba board. Review Office upheld this decision. He subsequently appealed to this Commission.

At issue in this appeal is whether or not the claimant has recovered from the effects of his 1986 accident. For the appeal to be successful, the Panel must determine that the claimant's current problems are causally linked to that compensable injury.

We were not able to come to that determination.

Medical examination, at that time of the 1986 accident, indicated that the claimant had "old osteoarthritis" in his cervical spine. We found persuasive the opinion expressed by the WCB Healthcare Consultant who noted that the symptoms related to this accident were "mainly soft tissue related, without any neurological signs". He concluded that "the claimant had recovered from the aggravation of the pre-existing osteoarthritis af the C-spine." This opinion was supported by the orthopaedic consultant to the Review Office.

We placed considerable weight on the fact that the claimant was able to go back to work in August of 1987. We do note that his attending physician did state that this return to work would be "for trial only". However, in his testimony to the Panel, the worker stated that he worked at normal duties for the duration of this job, was able to work full time, and did not receive any medical treatment in that period. While the Alberta Appeal Commission wrote that the 1986 accident had resulted in "permanent work restrictions", we find that no such restrictions were articulated prior to his return to work, nor are there indications that restrictions were required.

In addition, we note that there was a highly significant intervening event, that being the accident suffered in Alberta in October 1987, and the resulting long term claim and a loss of earning capacity of more than nine years.

When we put these facts together - the pre-existing degenerative disc disease, the return to work at full duties and the subsequent compensation claim - we conclude that, on a balance of probabilities, the claimant's current medical problems are not causally related to the workplace accident of August 19, 1986.

Accordingly, the appeal is not allowed.

Panel Members

T. Sargeant, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

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

Signed at Winnipeg this 10th day of October, 2001