The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held by teleconference on March 25, 2004, at the request of legal counsel, acting on behalf of the claimant. The Panel discussed this appeal on the same day.

Issue

Whether or not the claimant was disabled beyond December 13, 1998 as a result of the December 10, 1998 compensable injury; and

Whether or not the claimant is entitled to a Permanent Partial Impairment award in relation to the injuries sustained by reason of the compensable accident.

Decision

That the claimant was disabled beyond December 13, 1998 as a result of the December 10, 1998 compensable injury; and

That the claimant is not entitled to a Permanent Partial Impairment award in relation to the injuries sustained by reason of the compensable accident.

Decision: Unanimous

Background

On December 10, 1998, the claimant sustained an injury to his neck, upper back, both shoulders and left leg, arm, hip and elbow when the semi-trailer truck he was driving rolled over onto the driver's left side.

Initial medical reports revealed that the claimant had been diagnosed with whiplash and an upper back strain following treatment at a hospital emergency facility and by his attending physician. It was also noted that the claimant has a pre-existing condition, namely degenerative disc disease at the C5-6 and C6-7 region. The claim was accepted by the Workers Compensation Board (WCB) and the claimant received time loss benefits from December 11 to December 13, 1998, when it was determined that he was fit to return to work. By December 19, 1998, the claimant laid off work again due to ongoing problems with his neck and shoulders.

A Doctor's First Report dated January 21, 1999, noted that the claimant had pain in his cervical spine and pain in both shoulders. Objective findings were tenderness in the neck. The diagnosis reported was "no acute injury". The physician indicated that the claimant was totally disabled until the end of March 1999. In a further report dated March 3, 1999, the attending physician diagnosed the claimant with a whiplash injury to the neck (c-spine) and upper T-spine. The recommended form of treatment was medication along with physiotherapy and/or chiropractic treatments.

During a telephone conversation with the claimant on February 16, 1999, a WCB adjudicator noted that the claimant had not had any significant problems with his neck prior to the date of accident. The claimant worked from December 14, 1998 to December 19, 1998 and while trying to tarp a load he felt pain in his neck, shoulders and left arm. His neck increasingly became stiff and sore while driving. There was no new injury.

In a letter dated March 19, 1999, primary adjudication advised the claimant that his file had been reviewed by a WCB medical advisor. Based on the medical information received from the hospital and attending physician, the medical advisor was of the opinion that the claimant had sustained a mild whiplash injury as a result of his December 10, 1998 injury. He was also of the view that the claimant had been fit to return to work on December 14, 1998 and that there were no objective findings indicating that he was unable to continue working. The medical advisor was unable to relate the cervical decreased range of motion that the claimant experienced in March to the December 10, 1998 injury.

Based on the above evidence, primary adjudication ruled that no responsibility would be accepted for any time loss beyond December 13, 1998 because there was no objective evidence to support the claimant's inability to work. Responsibility would be accepted for all medical costs until March 24, 1999 and treatment beyond that date was not considered to be related to the injury of December 10, 1998.

On March 31, 1999, a solicitor, acting on behalf of the claimant, presented information in support of the position that the claimant was entitled to continued benefits from December 20, 1998 along with a permanent partial impairment assessment/award for the neck condition and medical aid coverage subsequent to March 24, 1999. It was the solicitor's opinion that the December 1998 accident "aggravated a pre-existing condition which was identified as deteriorating disc disease of the C-spine and disc narrowing of the C5-6 and C6-7 level."

In a response to the solicitor dated May 3, 1999, primary adjudication stated the following:

• based on the time that had elapsed, the original diagnosis and the lack of objective findings immediately prior to the December 10, 1998 accident along with the WCB medical advisor's opinion, primary adjudication was unable to extend benefits to the claimant past December 13, 1998 as it appeared that the claimant's ongoing difficulties were not related to the December 10, 1998 injury.
  
  
• with respect to a permanent partial impairment award, primary adjudication noted the opinion expressed by a WCB medical advisor on April 26, 1999, that the decrease in range of motion noted on the March 3, 1999 report was not consistent with the diagnosis and the expected improvement in function of a whiplash injury. The claimant was therefore not entitled to an impairment award as primary adjudication was unable to relate his current difficulties to his December 10, 1998 injury.
  
  
• as it was determined that the claimant had recovered from his December 10, 1998, injury, he was not entitled to medical cost coverage subsequent to March 24, 1999.

In correspondence dated December 15, 1999, the claimant's solicitor asked Review Office to consider new medical information received from the claimant's family physician consisting of a report dated November 8, 1999, a memo dated September 21, 1999 and a return to work certificate dated September 27, 1999. In the report dated November 8, 1999, the family physician stated,

"Mr. [the claimant] has suffered from low back pain for at least the last year. Recent MR scan of the lumbar spine confirms a disc herniation as well as possibly a sequestered disc fragment. His back symptoms are severe and he should be considered totally disabled from any type of gainful employment until he sees a neurosurgeon in December 1999."

At the bottom of the report, the family physician stated the following:

"Mr. [the claimant] has cervical strain; chronic as a result of accident in December 1998. It is unlikely be (sic) improving in foreseeable future and is severe enough to prevent him from engaging in any gainful employment also."

In a response dated February 25, 2000, primary adjudication advised the solicitor that the new information did not warrant a change to the WCB's original decision. It was noted by primary adjudication that the worker's claim was related to his cervical spine/neck, an area that was unrelated to the findings in the November 8, 1999 report on the claimant's lumbar spine. In addition, the new information did not offer any medical findings or rationale for the suggested time loss, beyond advising that the claimant was to remain off work.

On March 31, 2000, the case was considered by Review Office at the request of the claimant's solicitor. Review Office had reviewed the medical documentation which it felt did not substantiate the claimant's being totally disabled by reason of the December 10, 1998 accident. Review Office noted that the claimant was disabled for a period of three days following the accident and that he returned to work for a period of one week. Any additional difficulties experienced by the claimant were considered to be due to a pre-existing non-compensable condition.

With respect to a permanent partial impairment award, Review Office found that the claimant did not incur a permanent impairment with respect to his cervical spine as described by either The Workers Compensation Act (the Act) or as provided for by board policy including the permanent impairment rating schedule. It acknowledged that the claimant did have some impaired range of motion in his cervical spine, but this was related to his pre-existing degenerative condition of the spine and not the compensable accident. Review Office believed his condition had not been enhanced by the compensable injury. Review Office also noted that the information provided by the claimant's solicitor dealt with the lumbar spine and not the cervical spine. The lumbar spine area was not injured in the December 10, 1998 accident.

On November 14, 2003, the claimant's solicitor appealed Review Office's decision and a teleconference hearing was requested. Attached with a written submission was correspondence from the Ontario Workplace Safety and Insurance Board, the claimant's income tax returns form 1998 to 2001 and medical documentation related to the motor vehicle accident on December 10, 1998. On March 25, 2004, a teleconference hearing took place at the Appeal Commission to consider the issues under appeal.

Reasons

With respect to the second issue, the claimant is not entitled to a permanent partial impairment (PPI) award in relation to the injuries sustained by reason of the compensable accident. We find that the temporary aggravation of the pre-existing cervical degenerative disc disease has resolved and therefore there is no basis for a PPI assessment. The claimant’s appeal with respect to this issue is hereby dismissed.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

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

Signed at Winnipeg this 11th day of May, 2004