Decision #90/02 - Type: Workers Compensation

Preamble

A non-oral file review was held on May 27, 2002, at the request of legal counsel, acting on behalf of the claimant.

Issue

Whether or not the worker is entitled to temporary total disability benefits for the period October 10, 1990 to April 7, 1993; and

Whether or not the worker is entitled to temporary total disability benefits for the period December 1, 1993 to January 30, 1994.

Decision

That the worker is entitled to temporary partial disability benefits for the period October 10, 1990 to April 7, 1993; and

That the worker is entitled to temporary total disability benefits for the period December 1, 1993 to January 30, 1994.

Decision: Unanimous

Background

On June 8, 1988, the claimant sustained an injury to his lower back during the course of his employment as a machine operator in a furniture manufacturing plant. Subsequent medical evaluation revealed that the claimant incurred an acute lumbosacral strain. X-ray examination revealed a mild Grade I spondylolisthesis. The Workers Compensation Board (WCB) accepted the claim and compensation benefits were issued.

In early February 1990, a WCB orthopaedic surgeon assessed the claimant to determine whether or not he was still suffering from the effects of his compensable accident. The consultant's opinion was that the claimant's symptoms were diffusely in the lumbar spine, extending up to the lower thoracolumbar area, extending right across the lumbar spine which were not symptoms typical of spondylolisthesis. The symptoms were more typical of a back strain combined with a lack of exercises to fully remobilize and strengthen the spine. Suggestions were made for the claimant to enter into an intensive exercise program to see if this would help alleviate his symptoms. On March 15, 1990, the claimant commenced physiotherapy treatments.

On September 26, 1990, primary adjudication determined that temporary total disability benefits would be paid to October 10, 1990 inclusive. Following consultation with the WCB's healthcare branch, primary adjudication concluded that there were no objective findings to indicate that the claimant had not recovered from his compensable low back sprain and that he was fit to resume his pre-accident employment.

In July 1991, the claimant's solicitor submitted two medical reports dated May 14, 1991 and June 10, 1991 for consideration by Review Office. The solicitor contended that these reports confirmed that the claimant was still suffering from the effects of his workplace accident, which prevented him from being gainfully employed.

Following consultation with a WCB orthopedic consultant and after a review of file documentation, Review Office determined on September 27, 1991, that no further benefits were payable to the claimant. Review Office was of the opinion that the claimant had recovered from the effects of the June 8, 1988, accident and that any limitations he had were more likely due to his pre-existing condition than to the effects of the accident.

In March 1992, the claimant's solicitor requested the convening of a Medical Review Panel (MRP) in light of the two medical reports which were previously submitted dated May 14, 1991 and June 10, 1991. On January 22, 1993, Review Office granted the request for a MRP and it later took place on April 7, 1993.

In a July 29, 1993 decision, Review Office stated that the MRP results and clarifying letter showed that the claimant still continued to be affected by his compensable injury. Review Office did not believe, however, that the claimant was totally disabled from returning to employment. He was therefore not entitled to receive further temporary total disability benefits beyond October 10, 1990. Review Office specified that the claim was to be referred to a Vocational Rehabilitation Consultant (VRC) who was to determine what assistance the worker was entitled to receive including any retroactive benefits.

On August 27, 1993, the claimant was notified by his VRC that he would be provided with vocational rehabilitation benefits effective the date of the MRP which was April 7, 1993. The claimant was not entitled to retroactive benefits from October 1990 as he was not considered totally disabled and was not actively pursuing employment during this period. The VRC pointed out that the claimant would continue to receive vocational rehabilitation benefits as long as he actively participated in a vocational rehabilitation plan.

In a December 7, 1993 report, a neurologist diagnosed the claimant with a bilateral L5 root impingement. The claimant was referred to a neurosurgeon for possible surgical intervention.

On February 2, 1994, the claimant underwent an L5 laminectomy which was authorized and accepted as a financial responsibility of the WCB. On April 26, 1994, primary adjudication advised the claimant that he was not entitled to payment of temporary total disability benefits from December 1, 1993 to January 31, 1994 as he was considered capable of performing work duties with restrictions until he was admitted to hospital on February 1, 1994.

On May 7, 1999, Review Office considered the case again based on new evidence submitted by the claimant's solicitor with respect to the claimant's entitlement to benefits for the periods October 10, 1990 to April 7, 1993 and December 1, 1993 to January 30, 1994. Review Office made the following determinations in its decision:
  • the current evidence and particularly the 'new' information did not justify any interference with previous decisions concerning the claimant's retroactive entitlement to wage loss benefits between October 10, 1990 to April 7, 1993;

  • based on objective findings noted on neurological examination of the claimant in January 1994, the absence of specific clinical pathology to support total disablement, and the opinion of a WCB medical advisor about the functional status of the claimant's lower back, Review Office did not find there was significant evidence to show that the claimant was totally incapacitated by low back impairment between December 1, 1993 and January 30, 1994. Review Office also found that the claimant did not make a reasonable effort to co-operative with the rehabilitation program during the above period.
On February 24, 2002, the solicitor appealed Review Office's previous decisions and a non-oral file review was arranged.

Reasons

This case involves a worker who injured his back in a workplace accident in 1988, for which he received benefits from the WCB.

Over the life of this claim, it has been the subject of a number of reviews and one appeal to this commission on different issues. The current appeal is on the issues noted above.

Issue #1 - Is the worker entitled to temporary total disability benefits for the period October 10, 1990 to April 7, 1993?

If the Panel were to determine that the claimant had recovered sufficiently from the effects of his compensable injury to enable him to return to his former position, then the appeal on this issue would not succeed. We did not come to that determination. However, we did find that the claimant was not totally disabled during this period.

We note that previous decisions in respect of this claimant found that, during the period in question, he was not totally disabled. We find those decisions to have been correct. However, we do note that there is significant medical evidence on file supporting the position that he was not totally recovered. Included in this evidence is the report of the Medical Review Panel, dated April 7, 1993. We note the following comments of the MRP:
  • "The Panel agrees that he is still disabled as a result of the accident."

  • "The Panel agrees that he is restricted due to the accident and that he should not lift more than 10 lbs. There should be no prolonged standing or sitting."
This conclusion supports the opinion of a specialist in rehabilitation medicine, who, in June 1991, had concluded that the claimant was partially disabled.

In a subsequent clarification to its report, the MRP noted that:
  • ". It appears that there is some enhancement of the pre-existing spondylolisthesis over the period since the accident."
While there is conflicting medical evidence on the file, given the nature of the MRP process, we chose to accord more weight to the evidence of the panel.

Review Office, in its decision of July 29, 1993, accepted this finding of the MRP, but held that benefits should not be retroactive to October 1990. Rather, they should begin as of the date of the MRP report.

We find that the preponderance of evidence supports a conclusion that the claimant was temporarily partially disabled and, thus eligible for benefits pursuant to subsection 44(1) of the 1988 statute.

However, we also find that the claimant did little if anything to mitigate his loss of earnings. While he was not able to return to his previous position, he was certainly capable of engaging in alternative, less-strenuous employment. We note that subsection 40(1) of the 1988 statute allows for the payment of benefits "to compensate for the physical loss occasioned by the disability", up to 75% of his average earnings.

We leave it to the board to determine the amount of loss incurred by the claimant.

Issue #2 - Is the worker entitled to temporary total disability benefits for the period December 1, 1993 to January 30, 1994?

We find that the initial decision to terminate benefits for this period was correct, as the decision to go forward with an operation was made by the claimant and his treating physician, with no board involvement at that stage. We note that the board, in terminating benefits, did state a contingency, which implied that once the board confirmed that an operation had been scheduled, benefits would resume.

On February 22, 1994, after consulting with a board medical advisor, the board did accept the operation as being necessitated by the effects of the compensable injury. We are of the view that, once that decision had been made, the board should have paid him benefits retroactively, for the period at issue here. We now conclude that he is entitled to full temporary total disability benefits for that period.

Accordingly, the appeal is allowed, as noted above.

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 19th day of July, 2002

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