The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

A non-oral file review was held on February 20, 2003, at the claimant's request.

Issue

Whether or not the claimant is entitled to full temporary total disability benefits for the period January 1, 1996 to December 25, 2001; and

Whether or not the claimant is entitled to reimbursement of costs associated with long distance telephone calls to the WCB.

Decision

That the claimant is not entitled to full temporary total disability benefits for the period January 1, 1996 to December 25, 2001; and

That the claimant is not entitled to reimbursement of costs associated with long distance telephone calls to the WCB.

Decision: Unanimous

Background

While lifting concrete blocks on July 6, 1988, the claimant injured his back region when his right leg gave out from under him and he fell. File records showed that the claimant was seen by a number of physicians and on January 4, 1989 a CT scan of the lumbosacral spine revealed a right-sided large disc herniation at L4-5.

On May 4, 1989, the claimant had undergone an L4-5 discectomy and was discharged from the hospital on May 6, 1989. By July 14, 1989, the treating orthopaedic surgeon reported that the claimant was making a reasonable recovery following his surgery and was continuing with physiotherapy treatments.

The claimant received full wage loss benefits from the Workers Compensation Board (WCB) between July 1988 and September 1989 when he returned to work with a different employer as a labourer.

In March 1994, the claimant contacted the WCB with further back complaints that he related to the 1988 compensable injury. Medical information from the attending physician dated March 1, 1994, diagnosed the claimant with "lumbar disc ? L3-4, recurrence of old injury." On June 22, 1994, an MRI of the lumbosacral spine read as follows: "Post-operative right L4-5 laminotomy for discectomy. Epidural fibrosis adjacent to the discectomy site." Full wage loss benefits were restored to the claimant effective February 28, 1994.

On September 19, 1994, the claimant was assessed at the WCB for the purposes of a permanent partial impairment (PPI) award. On October 14, 1994, the WCB awarded the claimant a lump sum payment in the amount of $37,284.17 in recognition of his 11.9% PPI rating with respect to his lumbar spine. On October 6, 1994, a WCB medical advisor outlined permanent restrictions of no lifting over 15 lbs., no undue bending or twisting, no prolonged standing, sitting or walking.

In October and November 1994, the claimant was assessed by a clinical psychologist and by a neurologist.

In December 1994, primary adjudication asked a WCB medical advisor to review the case and to answer specific questions whether or not the claimant was capable of full time work and for what duration. The medical advisor responded that the claimant was only capable of part-time work given that he had arachnoiditis and that this would cause severe pain at times. He suggested that the claimant could work four hours per day for now "although the chances of his condition improving are slim." In December 1994, the claimant left the Province of Manitoba and moved to Portugal to assist his father in a fishing business.

In August 1995, a second WCB medical advisor reviewed the file information at the request of primary adjudication to determine whether or not the claimant suffered from arachnoiditis. In this regard, the medical advisor responded as follows:

"No. In my opinion, the absence of evidence of nerve entrapment on electrophysiological assessment would, on the balance of probabilities, tend to exclude a diagnosis of arachnoiditis.

Firm confirmation of this diagnosis by further investigation such as direct observation by surgical exploration could do more harm than good."

On May 17, 1996, a worker advisor wrote to the WCB advising that the claimant's condition was deteriorating and that he was no longer able to perform any type of work. In support of his position, medical information from Portugal was attached to the worker advisor's submission for consideration.

In a medical report dated March 19, 1996, (which was unofficially translated from Portuguese to English), the following comments were made regarding the claimant's physical status: I certify that the above mentioned is ill and incapacitated from all and any professional activity, since March of 1995, due to (artrodise) of the L4, L5 and S1 vertebra." In a further translated medical report dated March 7, 1996, the physician indicated that the claimant complained of pain on palpation of the apophyseal L4-L5 and SI posterior apophyseal joints.

On October 9, 1996, a WCB adjudicator asked a WCB medical advisor to review the up-dated medical information and to comment on the claimant's work capabilities and the previously stated restrictions. The medical advisor responded as follows:

"There is not enough information on file for a comment on his work restrictions. The report from the doctor in Portugal is very brief and does not mention work limitations or aggravating factors. Otherwise there has been no information for almost 2 years. Considering his age he may have changed and improved considerably in that period of time. The restriction of not lifting over 15 lbs. also seems rather severe. I feel the claimant should be re-examined here with appropriate imaging studies."

The next report on file is from a WCB medical advisor dated March 2, 2001. The medical advisor recommended that the claimant return to Canada so his work restrictions could be reassessed and that he undergo an MRI assessment. File information showed that the WCB cancelled its request to have the claimant come to Canada as the claimant advised that he was not fit to travel to Canada due to prolonged sitting that would be required on the flight. Arrangements were then made for the claimant to undergo testing in Portugal regarding the status of his back condition.

In a report dated February 13, 2002, the attending physician noted that since 1998, the claimant had frequent episodes of lumbar sciatica with an irradiation to the two inferior members. The claimant had vascular insufficiencies of the two inferior members, accentuated varicose. The physician commented, "I think that this is a situation of total and definite incapacity for any type of work as from 26 December of 2001."

In a memo to file dated February 5, 2002, a WCB adjudicator noted based on current medical information received from Portugal, that the claimant was considered totally disabled as of December 26, 2001 and that full wage loss benefits would be reinstated effective December 26, 2001. Subsequent file information revealed that the claimant had undergone repeat surgery to his lower lumbar spine on February 26, 2002.

File records showed that the claimant's spouse corresponded with the WCB on numerous occasions concerning various issues that she disagreed with respecting the claim. One of the issues brought forward by the claimant's wife concerned retroactive back pay from January 1, 1996 to December 25, 2001. It was the spouse's position that the claimant was totally disabled during this time frame based on the diagnosis of arachnoiditis and because of a calcified disc fragment that was found and removed in the surgery, which took place on February 26, 2002.

On September 11, 2002, a WCB case manager wrote to the claimant advising him that the medical reports on file between 1994 and 1999 were limited. "Since we have not had consistent reporting of medical information detailing the period of time and reason for any complete disability, we are not able to increase the payment on your claim to full wage loss benefits. The previous decision and restrictions in place from 1994 until December 25, 2001 would remain the same."

In further correspondence dated September 12, 2002, the WCB case manager notified the claimant that effective September 12, 2002, the WCB would no longer accept long distance telephone charges initiated by his spouse unless there was an emergency. The case manager indicated that the long distance calls were quite lengthy and on many occasions, the information being discussed did not directly relate to the claim.

In late 2002, Review Office determined that there was insufficient evidence on file to support a contention of total disability from January 1, 1996 to December 25, 2001. With regard to the diagnosis of arachnoiditis, Review Office noted the opinion of a WCB orthopaedic consultant that such a diagnosis was not confirmed on file although he stated that it was a very difficult condition to diagnosis definitively. The physician indicated that he wished to see the new MRI results before passing final judgment on this matter.

With regard to the calcified disc, Review Office noted that although it had been identified on file at the time of the February 2002 surgery, its actual impact on the claimant's function between January 1, 1996 and December 25, 2001 was unknown and certainly open to speculation. Review Office was unable to reach a conclusion that there was enough information on file to support the overturning of primary adjudication's decision regarding retroactive wage loss benefits.

With respect to the issue concerning long distance phones calls, Review Office stated that this matter was not governed through legislation or policy and that it was an administrative decision. Review Office noted that originally, collect calls were being accepted by the WCB but the volume of calls became what was viewed as unreasonable and the monthly bill reached $400.00. It was decided after consultation with the sector Director that the claimant would be advised that collect phone calls would no longer be accepted. Review Office agreed with this position.

As the claimant's spouse disagreed with Review Office's decisions on the above two issues, a non-oral file review was requested and later took place at the Appeal Commission on February 20, 2003.

Reasons

In the latter part of 1994, the claimant was assigned permanent restrictions. Notwithstanding the restrictions, however, the WCB deemed the claimant capable of working four hours per eight-hour shift. In December of the same year, the claimant voluntarily decided to leave Canada and move to Portugal.

There has been no medical or other evidence presented that demonstrates the claimant was totally disabled during the period in question (January 1, 1996 to December 25, 2001) and that the claimant was not capable of performing part-time light duties. We find, therefore, that the claimant is not entitled to full temporary total disability benefits during the above period.

As to the second issue under appeal, there is nothing in the legislation, regulations and/or WCB policies, which requires the WCB to pay for collect and/or long distance calls to its offices. Accordingly, we find that the claimant is not entitled to reimbursement for costs associated with his long distance telephone calls to the WCB. As an aside, we note that the claimant's spouse has been communicating quite satisfactorily with the WCB by way of e-mail over the Internet.

Panel Members

R. W. MacNeil, Presiding Officer
P. Challoner, Commissioner
W. Leake, Commissioner

Recording Secretary, B. Miller

R.W. MacNeil - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 12th day of March, 2003