The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held via teleconference on July 17, 2002, at the claimant's request. The Panel discussed this appeal on July 17, 2002.

Issue

Whether or not the worker is entitled to wage loss benefits between April 1993 and August 1993;

Whether or not the worker is entitled to wage loss benefits beyond August 15, 1999;

Whether or not the worker's permanent partial impairment rating should have been reduced by 50%;

Whether or not the worker is entitled to the full cash value of an unreduced permanent partial impairment rating; and

Whether or not the worker is entitled to vocational rehabilitation assistance.

Decision

That the worker is not entitled to wage loss benefits between April 1993 and August 1993;

That the worker is entitled to wage loss benefits beyond August 15, 1999;

That the worker's permanent partial impairment rating should have been reduced by 50%;

That the worker is entitled to the full cash value of an unreduced permanent partial impairment rating; and

That the worker is not entitled to vocational rehabilitation assistance at this time.

Decision: Unanimous

Background

On February 21, 1992, the claimant was bending over to pick up a bottle of acid when she pulled a muscle in her back. When seen by her attending physician in March 1992, it was reported that the claimant suffered from a rapid worsening of her back and leg pain. The physician also indicated that in 1991, the claimant had undergone a laminectomy from which she had recovered.

A CT scan of the lumbar spine dated March 25, 1992, revealed a prominent bulging disc at the L4-L5 level which had not changed appreciably in appearance from the previous scan. On March 28, 1992, the claimant underwent a laminectomy and recurrent discectomy at L4-5.

On December 4, 1992, the treating neurosurgeon noted that the claimant's condition was improving very slowly. She continued to experience right hip and leg pain and back spasms. The surgeon concluded that the claimant would not be ready to return to work until about April 1, 1993.

The claim for compensation was initially denied by the Workers Compensation Board (WCB) as it was determined that the claimant's time loss and further surgery were related to her pre-existing condition and not to an accident arising out of and in the course of her employment. This decision was overturned by an Appeal Panel on May 13, 1993 when it was determined that an accident occurred at work on February 21, 1992 which resulted in the claimant having to undergo surgery. The Panel was also satisfied that there was an enhancement of a pre-existing condition. Following the Appeal Panel's decision, the claimant was paid wage loss benefits from March 24, 1992 to March 31, 1993 inclusive.

In a March 23, 1993 report, the attending neurosurgeon noted that the claimant slipped on ice in January and immediately experienced severe low back pain. The surgeon recommended a CT scan to either confirm or rule out any further surgical problem. An intensive course of physiotherapy was prescribed. In a follow-up report dated June 15, 1993, the surgeon indicated that the claimant was gaining more range of movement in her back and was experiencing less pain. The surgeon felt that the claimant was still not ready to return to work.

A CT scan of the lumbar spine taken March 23, 1993, revealed no evidence of a focal disc herniation. There was mild central disc bulging seen at the L5-S1 level without evidence of a focal herniation.

On July 15, 1993, the WCB wrote to the treating neurosurgeon. Reference was made to the surgeon's report of December 4, 1992 in which he recommended a return to work date of April 1, 1993. The surgeon was asked to provide a diagnosis in relation to the claimant's fall in January 1993. In a response dated July 22, 1993, the surgeon concluded that "it was mainly a soft tissue injury which appeared to aggravate the back but in retrospect has done no harm."

In a report dated August 30, 1993, the attending neurosurgeon indicated that the claimant was doing very well and had resumed all her normal activities. She was looking forward to going to business school next week.

Following consultation with a WCB medical advisor on September 15, 1993, the claimant was informed in a letter dated September 17, 1993, that the difficulties she experienced beyond March 31, 1993, were not directly related to the compensable injury but rather to her non-compensable secondary injury sustained in January 1993 from which her recovery was prolonged. As a result, the WCB would not be issuing any monies beyond March 13, 1993. The case was then forwarded to a Vocational Rehabilitation Counsellor (VRC) to determine whether the claimant qualified for preventive vocational rehabilitation benefits and services.

On October 28, 1993, the VRC contacted the claimant's pre-accident employer. She was advised that the company had offered the claimant her pre-accident lab technician job back in August 1993, but to date the claimant had not responded. It was noted that the claimant relocated to Saskatoon with her family and that her husband resigned his position with the company. The claimant was participating in a retraining program. The VRC concluded that as the claimant had pursued other options and was not looking at returning to the company and the job which placed her at risk of further injury, that she was not eligible for preventive vocational rehabilitation benefits and services.

In 1999, the claimant contacted the WCB and made enquiry about a permanent partial impairment award. The claimant noted that she underwent surgery in December 1998 for the same disc that was injured previously. The claimant felt that she was still suffering from the residual effects of her work place injury which necessitated the second surgery. On September 27, 1999, the claimant provided the WCB with a number of up-dated medical reports for review and consideration.

On September 6, 2000, a WCB adjudicator wrote to the claimant. The adjudicator noted that the case had been forwarded to a WCB medical advisor to determine whether her ongoing problems were related to the compensable injury and for consideration of an impairment award. The opinion offered by the medical advisor was that the claimant incurred a recurrence of a disc problem after her pregnancy and delivery at the same level as her compensable injury. A cause and effect relationship therefore existed between the claimant's ongoing back difficulties and her February 21, 2002 compensable injury. The claimant was advised that she would be considered for an impairment award. The claimant was also advised that the WCB would accept responsibility for any medical treatment related to the compensable injury but would not accept further time loss as the claimant took herself out of her position as of April 1, 2000 and therefore there was no loss of earning capacity.

The claimant was assessed on September 20, 2000 by a medical consultant in the Yukon Territory. After reviewing the examination results, the Acting Director of Healthcare assigned the claimant a 24% permanent partial impairment award. The claimant subsequently accepted a $15,000.00 lump sum payment in this regard.

On January 3, 2001, the claimant wrote to the WCB concerning a number of issues. In a response dated January 22, 2001, a WCB case manager determined the following:

• That the claimant was not entitled to time loss benefits between April 1993 and August 1993. The case manager noted that the attending physician cleared the claimant for a return to work commencing April 1, 1993. Had the claimant not experienced a non-compensable slip and fall on ice, it was felt the claimant would have been able to return to work on April 1, 1993.
  
  
• With respect to loss of earning capacity, the case manager noted that the claimant voluntarily left the employ of the accident employer and therefore she did not incur any loss of earning capacity.
  
  
• Further assistance related to a return to work - the case manager noted that this issue related to loss of earning capacity. Since the claimant left the employ of her accident employer, it was felt that she did not have a loss of earning capacity and that assistance related to a return to work would not be offered.

On February 20, 2001, the claimant appealed the above decisions to Review Office. On June 8, 2001, the claimant provided Review Office with a number of documents to consider.

On July 20, 2001, Review Office rendered several decisions in response to the claimant's appeal submission. In particular, Review Office determined the following:

• the claimant was not entitled to wage loss benefits between April 1993 and August 1993. Review Office considered that the time loss between this period was the result of a new and separate accident and was not a recurrence of the original injury.
  
  
• a current loss of earning capacity was not related to the accident of February 21, 1992. Review Office acknowledged that the claimant temporarily relocated to Saskatoon in April 1993 to seek further medical treatment. Based on opinions expressed from the claimant's treating surgeon and a medical advisor, recovery was anticipated for April 1, 1993 in the absence of the non-compensable intervening event of January 1993. Review Office noted that the claimant applied for and was accepted into a retraining course and chose to pursue re-training in Saskatoon rather than to pursue employment with the accident employer located in Flin Flon in August 1993.
  
  
• the current loss of earning capacity was, on balance, not due to the 1992 compensable injury. It followed that assistance related to return to work would not be offered.

On September 28, 2001, Review Office considered the case again based on a further appeal submission from the claimant dated July 31, 2001. Review Office rendering the following decisions in this regard:

• it was confirmed that the claimant was not eligible for wage loss benefits from April 1993 to August 1993 as the weight of medical evidence suggested that the claimant was not totally disabled due to the 1992 surgery beyond April 1993. It was felt that the January 1993 soft tissue injury unlikely prolonged recovery from the claimant's compensable surgery until August 1993.
  
  
• the claimant was entitled to wage loss and other benefits beyond the date of the December 1998 surgery. Review Office accepted that the back fusion surgery was required, in part, due to the 1992 enhancement of the claimant's pre-existing condition. Review Office acknowledged that the claimant discontinued her employment with the pre-accident employer in 1993. While there were other reasons for the loss of earnings prior to the surgery, it remained that the fusion surgery would have been required in 1998 and a compensable loss of earnings would have resulted. It was anticipated that the loss of earnings would end following the claimant's recuperation from surgery and a post-surgery ability to perform some type of work.
  
  
• with respect to assistance related to return to work, it was anticipated that a decision to offer any vocational rehabilitation services to the claimant should follow an assessment by Rehabilitation and Compensation Services of the claimant's post-surgery fitness for work and earning capacity.

On October 19, 2001, a WCB case manager wrote to the claimant. It was confirmed that the claimant would receive 4 months of full wage loss benefits in recognition of the recovery period related to the back fusion surgery which took place in December 1998. This was ascertained to be the period in which the claimant recovered to the point of being able to perform sedentary duties. Had the claimant remained in the vicinity of her accident employer, they would have accommodated the claimant in alternate work within her sedentary restrictions. The claimant was also advised that there was no requirement for vocational rehabilitation assistance (job search assistance) as it was determined that she had relocated out of the community and her employer had the reputation of accommodating their employees.

On October 29, 2001, the above case manager wrote to the claimant as it was found that the claimant had been overpaid with respect to her permanent partial impairment award. "The reason for this is that your impairment rating should have been decreased by 50% (from 24% to 12%) in recognition of the fact that you had major back problems prior to your compensable injury. The authority for doing so is Board Policy 44.10.20.10, Pre-Existing Conditions."

The claimant was further advised that the value of her impairment award should have been $3,480.00. As the claimant received $15,000.00, the $11,520.00 difference was considered to be an overpayment.

The case was considered again by Review Office on April 5, 2002, based on appeal submissions by the claimant. In this decision, Review Office determined the following:

• the claimant was entitled to wage loss benefits from April 20, 1999 to August 15, 1999. Review Office noted that the claimant's surgeon indicated that the claimant had a 'stormy postoperative course requiring narcotic analgesics for several months.' By mid August 1999, the claimant had improved to the point where her pharmacological therapy could be moderated. Review Office accepted that until this point, the claimant had a loss of earning capacity.
  
  
• the claimant's 'pre-existing condition' was a major reason why she suffered an injury at work. It was also considered that it was significant enough to qualify for an impairment award if it had been compensable. The permanent partial impairment rating that would have been assigned to the claimant's non-occupational back injury was unknown. By policy, Review Office stated it must be assumed to be 50% of her total impairment rating, that being 12% (50% of 25%).
  
  
• the claimant was not entitled to the full cash value of an unreduced permanent partial impairment rating. Review Office determined that the decisions made with respect to this issue were correct and should be confirmed.
  
  
• the claimant was not entitled to vocational rehabilitation assistance. Review Office considered that had the claimant chose to more vigorously pursue returning to work with the employer using the options available to her as required by section 22 of The Workers Compensation Act (the Act) she would have been successful in doing so. It following that she was not entitled to vocational rehabilitation assistance.

In April 2002, the claimant appealed Review Office's decisions and an oral hearing was convened.

Reasons

This case involves a worker who suffered a back injury as a result of a workplace accident in February 1992. Initially, her claim for compensation was denied, as it was determined that the injury was due to a pre-existing condition. Ultimately, The Appeal Commission, in Decision No. 209/93, overturned this decision and her claim was accepted as compensable. The Appeal Panel determined that the February 1992 injury had enhanced her pre-existing condition.

In the ensuing years, as detailed above in the "Background" section, a number of different issues arose in respect of various aspects of this claim. Five of these issues are the subject of this current appeal. All have been the subject of one or more reconsideration by the Review Office.

In coming to our decision on these issues, the members of the Panel carefully reviewed the claims file. And, we conducted an oral hearing - via teleconference - at which we heard testimony from both the claimant and representatives of the accident employer.

These issues will be dealt with separately, below.

Issue 1 - Is the worker entitled to wage loss benefits between April 1993 and August 1993?

Pursuant to the decision of The Appeal Commission in May 1993, the claimant was paid wage loss benefits from March 24, 1992 to March 31, 1993. It was determined that, by the latter date, she should be fully recovered from the effects of the surgery necessitated by the injury.

In fact, she wasn't fully recovered until the end of August 1993. The board concluded that the reason her recovery was delayed was due to a discrete, intervening event, namely a slip and fall on ice in January 1993.

For her appeal to be successful on this issue, the Panel would have to determine that the reason for the delayed recovery was directly related to her workplace injury and not to the fall on the ice. We did not come to that determination.

In her testimony at the hearing, the claimant argued that she had not exacerbated her back injury in the fall. She noted that she landed on her elbows and, subsequently experienced pain in her shoulders and elbows.

However, we note that, in March 1993, her attending neurosurgeon reported that she had suffered severe low back pain as a result of the fall. He was concerned enough to recommend a CT scan to ensure that no further damage had been done to her lower back. The scan results were negative.

This same neurosurgeon, who had also performed the disc surgery, had written, after an examination in December 1992, that the claimant should be able to return to work on or about April 1, 1993. This physician wrote to the board, in July 1993, that her slip and fall had caused a soft-tissue injury which aggravated, but did not harm, her back. He repeated this in a letter to the claimant in October 1993, adding that he believed it prolonged her recovery.

Board medical advisors, on more than one occasion, expressed the same opinion: that the slip and fall prolonged her recovery.

For these reasons, we have concluded - on a balance of probabilities - that but for the slip and fall, the claimant would likely have been able to return to work by April 1, 1993. Her loss of earning capacity beyond March 31, 1993 was not causally related to her workplace injury.

Accordingly, the appeal on this issue is dismissed.

Issue 2 - Is the worker entitled to wage loss benefits beyond August 15, 1999?

For her appeal on this issue to succeed, the Panel would have to determine that, beyond this date, the claimant's loss of earning capacity was causally related to her compensable injury of February 1992. We have so determined.

We have concluded that she has not yet recovered, and may never, from the effects of the December 1998 surgery, which was accepted by the board as arising from a sequela of the 1992 injury, which had enhanced the pre-existing condition.

In December 1998, the claimant again had surgery on her lower back; this time to fuse part of her spine. In June 2000, the board accepted the need for this surgery as a recurrence of her 1992 compensable injury.

While the board accepted the medical costs related to this surgery, it would not accept payment for any wage loss. Upon reconsideration, Review Office accepted that wage loss and other benefits should be paid as a result of the board's acceptance of the 1998 surgery.

These benefits were paid for four months beyond the surgery, it being determined that this was a reasonable period for recovery. This was later extended to August 15, 1999. That date was chosen based on a letter from her treating neurosurgeon in which he wrote that, by mid August 1999, her post-operative pain had subsided to the point he could alter her medications.

From our review of the file, we note that there is no medical evidence to support that she has yet recovered to the point where she is capable of returning to work. On the contrary, there are a number of statements from examining and treating physicians that she is incapable of any type of work.

In addition, the Canada Pension Plan has determined that she is totally disabled from work and pays her a pension accordingly.

We note that there are statements that she took herself out of the workplace, in 1993, when she left the community in which her accident employer was located. It is argued that as a result of this voluntary action, she has no loss of earning capacity. However, we also note that, once she was cleared by her treating physician in August 1993, she returned to school for upgrading and then worked for a number of years at different jobs. It was only after her back pain became unbearable that she stopped working. It was this recurrence of back pain that led to her surgery in 1998.

The Panel is of the view that she did not voluntarily take herself out of the workplace.

We are of the view that the preponderance of evidence supports the conclusion that she continues to suffer a loss of earning capacity as a result of the 1998 surgery, which has been accepted by the board as related to her 1992 compensable injury. As a result, she is entitled to wage loss and ancillary benefits beyond August 15, 1999.

The appeal on this issue is allowed.

Issue 3 - Should the worker's permanent partial impairment rating have been reduced by 50%?

For the claimant's appeal to succeed on this issue, the Panel would have to determine that the permanent partial impairment (PPI) rating was solely attributable to the 1992 compensable injury. We were not able to make that determination.

As noted above, following a medical examination in September 2000, the claimant was determined to have an impairment rating of 24%. A lump sum payment was paid to her, pursuant to the statute.

More than a year later, in October 2001, a board official concluded that the impairment rating had been calculated incorrectly. Pursuant to Board Policy 44.10.20.10, Pre-Existing Conditions, it was ruled that the impairment award should have been cut in half.

The relevant sections of the policy read as follows:

3. IMPAIRMENT AWARD ELIGIBILITY
   
   If a worker is injured as a result of a compensable accident and the injury results in a rateable impairment, the existence of a pre-existing condition will not negate the worker's entitlement to an impairment award. However, if the worker's impairment (whether caused by the compensable accident or a surgical intervention made necessary by the compensable accident) is an enhancement of a pre-existing, but non-compensable, impairment, the worker is eligible for an impairment award based on the difference between the new combined rating and the rating assigned to the pre-existing condition.
   
   
4. ASSIGNED RATING FOR PRE-EXISTING CONDITIONS
   
   When it is reasonable to do so, the assigned rating for the pre-existing condition will be based on the impairment rating schedule adopted by the WCB. However, when this is not practical, the assigned rating will be determined as follows:
   
   
   1. A pre-existing condition which is deemed to be minor will be assigned a 0% rating.
      
      
   2. A pre-existing condition which is deemed to be major will be assigned a rating equivalent to 50% of the total combined impairment rating.

In respect of clause 3, the Panel notes that, when the Appeal Commission held that the initial claim was acceptable, it concluded that the 1992 injury had been an enhancement of a pre-existing condition, in particular, the back surgery she had had in 1991.

Given that it is not only unreasonable, but likely impossible to assign an impairment rating to the 1991 surgery, we are of the view that clause 4 should be applied. We would agree with the board medical advisor who determined that the pre-existing condition be deemed to be major. Thus, a rating equivalent of 50% should be assigned to the original condition.

We conclude that the board was correct to reduce the permanent partial impairment rating by 50%.

The appeal on this issue is dismissed.

Issue 4 - Is the worker entitled to the full cash value of an unreduced permanent partial impairment rating?

Subsection 38(2) of the Act sets out the amounts of money to be paid to a claimant for a PPI rating. For a 24% rating, the amount is $15,000, which amount was paid to the claimant shortly after the rating was determined in September 2000. For a 12% rating, the amount was found to be #3,480.

When, in October 2001, it was ruled that the claimant's rating should have been 12%, the board determined her to have been overpaid by $11,520. At much the same time, a Review Office decision gave her an additional four months of wage loss benefits, as a result of the 1998 surgery, amounting to $9270.

This amount was applied against her overpayment. The remaining amount of the overpayment was written-off.

For this appeal to succeed, the Panel would have to determine that board policy explicitly required that an overpayment such as this one be recovered. We did not so determine.

This matter is governed by Board Policy 35. 40.50, Overpayment of Benefits, which sets out the criteria and process for recovering overpayments. The following portions are relevant to this case:

"All overpayments receivable will be pursued for recovery, unless:


2. they resulted from either an administrative error by the WCB .. The exception to this provision is that the overpayment will be pursued if the WCB considers that the error or incorrect information was so material or obvious that the worker should have recognized it and reported it to the WCB .
   
   
5. recovery of the overpayment, in whole or in part, would create financial hardship for the worker and/or the worker's dependants ."

(Our emphasis.)

This overpayment clearly resulted from an administrative error. On its face, the policy is quite clear in stating that this type of overpayment will not be recovered. The policy does set out exceptions to this, but they do not apply in this case. On the basis of this section alone, we conclude that the recovery should not have been made.

However, we find further support in subsection (v). The recovery was made a year after she had received the lump sum payment. It was recovered from wage loss benefits awarded to her after a successful request for reconsideration by the Review Office. While the policy allows for recovery of benefits from future benefits, we feel that, in this case, such recovery would create a financial hardship.

Accordingly, the appeal on this issue is allowed.

Issue 5 - Is the worker entitled to vocational rehabilitation assistance?

For this appeal to succeed, we would have to determine that the claimant would be capable of performing some type of employment were she retrained to do so. We have determined that, at this time, she is not.

The medical evidence on file indicates that, at the present time, she is not capable of performing any alternative employment. While this may change, in the future, as a result of medical intervention or pain management or some other form of recovery, the preponderance of evidence supports a conclusion that she is totally disabled from work, at this time.

In her testimony at the hearing, she stated that she cannot think of any type of employment for which she could be trained, at present.

Therefore, we conclude that to pursue vocational rehabilitation, at this time, would be futile.

The appeal on this issue is dismissed.

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 31st day of July, 2002