The Appeal CommissionThe Workers Compensation Act of Manitoba

This case involves a worker who injured his back, in September 1998, while working as a carpenter. His claim for compensation was accepted and benefits were paid accordingly. In March 2001, he was notified that, following some job search assistance, his benefits would terminate on May 25, 2001. That decision was twice reconsidered by the Review Office and upheld on both occasions. He has now appealed that decision to this Commission.

A separate issue - whether or not he was entitled to examination by a Medical Review Panel - was also reconsidered twice by Review Office and was the subject of an appeal to this Commission. On all occasions, this request was denied. It is not before the Panel in this appeal.

For his appeal to be successful, the Panel would have to determine that the worker's loss of earning capacity beyond May 25, 2001 was as a result of his compensable injury of September 1998. We have so determined.

In coming to our decision, the panel members conducted a thorough review of the claim file, as well as conducting a hearing at which we heard testimony from the claimant and his advocate.

Under subsection 39(2) of The Workers Compensation Act, "wage loss benefits are payable until … the loss of earning capacity ends, as determined by the board …"

In determining that this worker's loss of earning capacity ended in May 2001, the board relied on a consultation with a board medical advisor who was of the opinion that - given the claimant's original diagnosis, a history of prior back problems, evidence of a pre-existing condition, and an extended conditioning program - the worker's symptoms, by March 2001, would not be related to the September 1998 workplace accident.

This doctor also recommended preventive restrictions of no lifting greater than 50 pounds. While preventive restrictions do not come with compensation benefits, a restriction against lifting more than 50 pounds would preclude this worker from returning to his pre-accident employment.

The board - both the initial adjudicator and the Review Office - determined that the claimant's ongoing problems in May 2001 - were due to a pre-existing condition with his back, in particular, degenerative disc disease at L4 - 5 and L5 - S1. The claimant, through his advocate, did not dispute this. What was at issue was whether or not the pre-existing degenerative disc disease, in concert with the workplace injury, continued to cause a loss of earning capacity.

A fair bit of consideration was given as to whether or not his pre-existing condition had been permanently "enhanced" or temporarily "aggravated" by the workplace accident. The board concluded that it had been an aggravation, resolved by early 2001.

We did not have to make a finding on that issue, as we were able to determine that the workplace injury did contribute to a loss of earning capacity after May 25, 2001. This determination was based on medical evidence on file.

We gave considerable weight to the following:

1. Report of the Functional Capacity Evaluation, conducted February 23, 2001, which found:

• That the claimant had given a full voluntary effort on all tests.
• That, in respect of functional capacity, he would have occasional restrictions on bending and frequent restrictions on reaching and stooping.
• That, in respect of occasional lifting capacity, his demonstrated ability, at all levels, was 21 - 50 pounds. His job requirement was 100 - 250 pounds, with help.
• That, in respect of frequent lifting capacity, his demonstrated ability, at all levels, was 11 - 25 pounds. His job requirement was 100 - 250 pounds, with help.

2. Discharge Report of the Wellness Institute work reconditioning program, dated March 6, 2001. The claimant had commenced this program on November 6, 2000. The report noted the following:

• The claimant participated fully in all components of the program.
• He continues to present with postural abnormalities and mobility restrictions to his spine.
• In respect of functional abilities, he is performing at a sub medium level. He continues to be limited for activities requiring trunk flexion, trunk extension and compression forces through the spine with material handling.
• He does not match the demands required of a truss assembler, the job he was performing at the time of injury.
• He has reached a plateau with regard to physical conditioning.

3. Letter from the claimant's family doctor, dated April 11, 2001:

• Noting that he had not treated him for any back problems prior to September 1998, the doctor expressed the opinion that his present functional abilities are much less than prior to the workplace accident and are a direct result of it.
• In his opinion, the claimant's injury constituted an enhancement of the pre-existing condition.
• He felt the claimant's abilities would be restricted as set out in the FCE report (noted above).

4. Letter from the claimant's family doctor, dated February 20, 2002:

• Again noting that he could not comment on the functional state of the claimant's back prior to September 1998, he wrote: "All I know is that [the claimant] functioned normally at his workplace in spite of his occasional mild to moderate back symptoms until the injury occurred in September 1998. After the injury in 1998, he was rendered disabled to perform his normal duties."

• He reiterated this, writing: "Never before September 1998 did [the claimant] need to stay away from work for long periods of time due to back symptoms. On this grounds only, I can therefore say that obviously … [he] did not achieve his pre-September 1998 baseline status."

5. Report of a specialist in occupational health, who examined the claimant, dated June 20, 2002. This doctor wrote:

• "…. I would agree with the general opinion that the diagnosis is that of degenerative disc disease that restricts [the claimant] in range of motion and is aggravated by lifting, prolonged standing and walking in particular. While there is no significant radiographic evidence of advancement between 1997 and 1999 CT-scans, there was definite clinical enhancement with significant loss of functional ability since his September 1998 injury. There is general medical opinion that his former work as a truss assembler is no longer appropriate for him …"

• "According to the WCB, the September 1998 injury produced an aggravation of an underlying pre-existing condition, but four years later there has been little clinical change despite various treatments. By my assessment, this constitutes clinical enhancement, given that the aggravation has not subsided sufficiently that he can return to his pre-accident duties."