The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on December 10, 2001, at the request of legal counsel, acting on behalf of the claimant. The Panel discussed this appeal on December 10, 2001.

Issue

Whether or not the worker is entitled to payment of temporary total disability benefits for the period February 16, 1991 to January 22, 1992; and

Whether or not a Medical Review Panel should be convened.

Decision

That the claimant is entitled to payment of temporary total disability benefits for the period February 16, 1991 to January 22, 1992.

That a Medical Review Panel should not be convened.

Decision: Unanimous

Background

The claimant incurred multiple injuries on March 31, 1989 when he fell against a rebar and concrete foundation during the course of his employment as an ironworker. The Workers Compensation Board (WCB) accepted the claim for compensation and the claimant commenced receiving temporary total disability benefits as of April 3, 1989.

In June 1990, a WCB medical advisor specializing in otolaryngology provided the opinion that the claimant was still suffering from the effects of his compensable injury but was fit for modified or suitable work with temporary restrictions. The case was then referred to a Vocational Rehabilitation Consultant (VRC) to assist the claimant in returning to suitable employment.

A progress report from the family physician dated August 16, 1990 noted that the claimant "can't work probably permanently." The physician commented that the claimant's left wrist still got sore to the point that he couldn't use it and that his left ankle got so painful that he couldn't stand on it. The physician also indicated that the claimant must now wear bilateral hearing aids.

Following a rehabilitation assessment interview on December 4, 1990, a VRC documented that the claimant began to have recurring symptoms of pressure in his ears when he drank either hot or cold liquids and that he complained of dizzy spells in addition to pain and loss of strength in his ankle, back and wrist. The claimant wished to stall any vocational rehabilitation until he saw his doctor on November 9, 1990. The VRC also noted that the claimant refused to sign CPP pension or income tax release forms.

A report was received from the treating otolaryngologist dated November 20, 1990. The specialist indicated that the claimant's basic complaint as of November 9th was earaches and some throat discomfort of one month's duration. The claimant was found to have a very mild upper respiratory tract infection and other than nasal spray, nothing further was prescribed. The specialist indicated that the claimant did not complain of experiencing dizziness.

On December 21, 1990, the claimant was informed by primary adjudication that the medical report from his treating otolaryngologist provided no findings that would suggest that he could not participate in a vocational rehabilitation plan. The claimant's benefits were paid to February 16, 1991 inclusive and final.

Subsequent medical information was received from an orthopaedic specialist dated February 7, 1991. The specialist commented that the claimant was complaining of problems with his foot, his hand and back and that he had a problem with hearing and dizziness since the accident. The claimant's main concern at this time was related to his left wrist and ankle. With respect to treatment, the specialist indicated that the claimant was referred for an ankle x-ray and was given an injection into his left wrist. A left ankle x-ray was later found to show mild degenerative changes involving the fibula and tibia but no fracture or other abnormality was seen.

A report was received from the treating otolaryngologist dated February 21, 1992, which was addressed to the claimant's worker advisor. The specialist stated that the claimant was suffering from very severe bilateral neurosensory hearing loss and also had dizzy spells in the past. The specialist said he did not see the claimant often because it was a permanent problem and he was unable to restore his hearing. The claimant's hearing was not getting better and had shown marked deterioration since 1968.

On January 23, 1992, the claimant fell at home when he incurred an attack of postural vertigo. As a result of the incident, reports were obtained from a chiropractor, a local hospital, the attending physician and from a dentist and oral surgeon. Following an investigation into the accident, the WCB determined that the fall was a sequela of the compensable injury and benefits were restored as of January 23, 1992 and were paid up to August 31, 1992.

The case was considered by Review Office based on an appeal from a worker advisor who disagreed with the WCB's decision to end the claimant's benefits as of August 31, 1992. In a decision dated June 18, 1993, Review Office restored the claimant's temporary total disability benefits between September 1, 1992 and December 17, 1992.

In 1996, the claimant's solicitor asked the WCB to consider a report from the family physician dated October 3, 1996, to determine whether or not the claimant was totally disabled for the period between February 16, 1991 to January 22, 1992. The physician's report indicated that the claimant was seen on several occasions between February 27, 1991 and January 7, 1992. During this time frame, the claimant had dizziness, low back pain, chronic left wrist pain and degeneration and left ankle pain. The physician stated that she considered the claimant disabled during this period.

On June 26, 1997, the WCB wrote to the claimant's solicitor to advise that the report from the family physician had been reviewed and that a WCB medical advisor had been consulted. It was still the WCB's opinion that there were no objective findings to support a contention that the claimant was totally disabled for the period February 16, 1991 to January 22, 1992.

A different solicitor, acting on the claimant's behalf, wrote to the WCB on February 11, 1999. The solicitor noted the comments that were made by the family physician in her report dated October 3, 1996, i.e. that the claimant was disabled between February 1991 and January 1992. The solicitor concluded that this opinion was in direct contrast to the opinion of the WCB's medical advisor and that a Medical Review Panel (MRP) should be convened. The solicitor also provided an additional report from the family physician dated December 31, 1998 for consideration.

On March 26, 1999, the solicitor was informed that his request for a MRP had been denied. It was the opinion of the WCB that the family physician's report provided no specific reference to the worker being totally disabled from work activities and there were no objective medical findings presented that would support that claim.

In July 1999 Review Office considered the case based on an appeal submission from the claimant's solicitor dated May 5, 1999. Review Office confirmed that the claimant was not entitled to temporary total disability benefits for the period February 16, 1991 to January 22, 1992. Review Office noted that the claimant was relying on reports from his general practitioner rather than his otolaryngologist when in 1990 he indicated that he would be consulting with same regarding his participating in a vocational rehabilitation problem. Neither the general practitioner nor the otolaryngologist's reports supported a finding of total disability during the period in question. Review Office indicated that although a WCB medical advisor indicated that the claimant 'may have been disabled by dizziness', it did not concur with this opinion. Review Office indicated the medical advisor placed weight on the fact that the claimant fell on January 23, 1992, however he did this because he (the claimant) was not appropriately medicated. The information did not establish that the claimant was disabled by dizziness while he was taking his medication.

With respect to the convening of a MRP, Review Office was of the opinion that the information supplied by the general practitioner did not meet the requirements of Sections 67(4) and 67(1) of the Workers Compensation Act (the Act) and that his request for MRP was denied. On October 11, 2001, the solicitor appealed Review Office's decision and an oral hearing was convened.

Reasons

This case involves an ironworker who sustained a number of injuries in a workplace accident in 1989. His claim was accepted by the board as compensable and benefits were paid accordingly.

In December 1990, the board determined that the worker was no longer totally disabled from work and, he was advised that benefits would be terminated as of February 16, 1991. As noted in the Background, benefits were restored in January 1992, after a fall he suffered was determined to be due to dizziness, a sequela of his workplace injury.

He appealed the decision to cut off his benefits for the above-noted period. Review Office upheld the original decision. He also asked Review Office to refer his case to a Medical Review Panel, based on an alleged difference of medical opinion between his doctors and board doctors. Review Office denied this request. He appealed both of those decisions to the Appeal Commission.

For his appeal to succeed on the first issue, the Panel would have to determine that, during the period in question, he was disabled to such an extent that he was unable to work or participate in a vocational rehabilitation program. For his appeal on the second matter to succeed, we would have to determine that his case met the test demanded by section 67(4) of The Workers Compensation Act, for striking a Medical Review Panel.

We have determined that the claimant was unable to work during the period in question, and that benefits should be paid accordingly. In light of this decision, we found it unnecessary to make a determination on the second issue.

In coming to our decision, the Panel members carefully reviewed the claimant's file and had the benefit of an oral hearing, at which we heard testimony from the claimant and his counsel.

We placed considerable weight on the medical evidence contained in the file. We do note that there was a difference of opinion between the claimant's doctor and a board doctor in the fall of 1990, which led to the cessation of benefits. However, we also note that file evidence shows a continuity of symptoms running from shortly after the original injury to the present.

In particular, the claimant has suffered from dizziness due to vertigo throughout this period. Both the claimant's doctors and board doctors agree that these symptoms are related to his workplace injury and that they will continue for the remainder of his life.

However, the vertigo was not the only factor which disabled the claimant. His workplace accident resulted in a laceration to his lip, left hand pain, and various muscle strains, including to his neck and lower back area. The vertigo emerged shortly after the accident.

He received treatment for these other injuries for quite some time after the accident, including throughout the period relevant to this appeal. In a December 1998 letter, his family doctor outlined a series of visits by the claimant between February 1991 and January 1992, during which the worker received treatment for some or all of these ailments. During this same time, he was seeing a specialist for treatment of his vertigo.

At the end of the relevant period, the claimant's vertigo caused him to fall, resulting in new injuries. This led to the reinstatement of his benefits. At the time of this fall, he was not taking the medication for vertigo, as the board had stopped paying for it.

Subsequent to this fall, there is no dispute among the claimant's doctors and board doctors that the claimant is disabled by dizziness. And, there is no dispute that the dizziness is related to his compensable injury. The board continues to pay for medication to treat the vertigo.

This leads us to conclude that there is a clear and unbroken line of medical evidence that the claimant's vertigo/dizziness is causally related to his accident in March 1989. We also find that there is sufficient evidence to support that his other physical injuries due to the compensable injury - the back, neck and wrist pain - contributed to his inability to work during the relevant period.

We do note that there were no reports on file for treatment received during the relevant period prior to the December 1998 letter from his family doctor. This lack of objective evidence to support his position that he was unable to work may well have played a role in the board's decision to terminate benefits in February 1991.

Nonetheless, we are of the view that the preponderance of evidence supports a conclusion that the claimant was disabled from working during the period subject to this appeal.

Accordingly, the appeal is allowed on the first issue.

In respect of the second issue - the request for an examination by a Medical Review Panel - we see no need to strike such a panel. We viewed the issues posed in this appeal as being alternatives, i.e. if we were not able to find in the claimant's favour based on the medical evidence on file, then we should consider seeking further evidence from an MRP. Given our decision on the first issue, the second is now moot.

Panel Members

T. Sargeant, Presiding Officer
G. Overgaard, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

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

Signed at Winnipeg this 18th day of January, 2002