Decision #91/04 - Type: Workers Compensation
Preamble
An Appeal Panel hearing was held by teleconference on May 20, 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 worker is entitled to temporary total disability benefits retroactive to 1974.Decision
That the worker is not entitled to temporary total disability benefits retroactive to 1974.Decision: Unanimous
Background
On July 21, 1974, the claimant was caught by a diamond drill at work and sustained a severe and extensive laceration over the lower abdomen above the pubic area. He also complained of pain over the right hip and back region. The claimant's condition was followed by his treating physician and by November 4, 1974, he was considered fit to return to work.In a report dated December 31, 1974, a second physician reported that the claimant complained of pain in his right hip, right lower back and supra pubic area following his return to work. Full range of motion was noted in the hip and back and there was no evidence of root or nerve damage. The claimant was tender over his scar area. It was suggested that the claimant be seen by a specialist.
In a memo dated January 20, 1975, a WCB medical advisor stated that he contacted an Ontario surgical consultant who stated that the claimant had sciatica and lumbosacral damage.
On January 22, 1975, lumbosacral spine x-rays revealed narrowing of the disc space at L3-4 which suggested early degenerative changes.
In a report dated January 30, 1975, the treating surgeon outlined his examination findings and stated his opinion that the claimant possibly had a lumbosacral strain which may have more significance than was apparent.
On February 13, 1975, a physician from the Ontario WCB's Hospital and Rehabilitation Centre diagnosed the claimant with a soft tissue injury of the abdominal wall and a contusion to the low back on the right side. The prognosis was that the claimant should be able to return to work as a diamond driller.
On February 17, 1975, an orthopaedic specialist was of the opinion that the claimant showed objective signs of having suffered an injury to his lower lumbar and lumbosacral region which was persisting to give him some back pain and nerve root irritation. This was very suggestive of discogenic disease with the main involvement being the L4-5 level on the right side.
In a report dated July 7, 1975, the attending physician reported that the claimant had a neuroma on his right groin excised on May 16, 1975. In a discharge report dated June 7, 1975 the physician commented that the claimant sustained a significant injury to both the low back and soft tissue of the right groin which may develop into more problems. In a further report dated January 16, 1976, the physician stated that the claimant continued to have pain in his right hip and right groin region and that he missed out on two jobs.
On May 17, 1976, a report from General Surgical Services diagnosed the claimant with "pain, right inguinal region, status post-industrial accident July 1974."
On February 7, 1985, primary adjudication asked the WCB's healthcare branch to comment on whether or not the claimant was entitled to a Permanent Partial Disability (PPD) award for either his abdomen or the back injury. The medical officer responded that there was not enough medical information to be able to comment. The claimant suffered a laceration of the abdominal wall (anterior) and subsequently had the wound infected, delaying recovery. He noted that a complete recovery was recorded as having been made following the 1977 surgery. The medical officer could not relate the abdominal swelling to the 1974 injury.
In a report dated March 8, 1985, the attending physician commented that he saw the claimant on March 28, 1984 concerning exacerbation of his lumbar degenerative disc disease.
On April 24, 1987, another physician reported that he saw the claimant on March 3, 1987 for pain in his left groin which was considered to be muscular in nature. On January 8, 1988, the physician reported that the claimant continued to complain of right and left groin pain as well as low back pain.
In a report dated May 13, 1998, the attending physician reported that the claimant complained of lower abdominal pain for a number of years which dated back to a work related accident when a wrench tore open his lower abdomen. Two other treating physicians thought the claimant had scar tissue in his groin. In a further report dated June 25, 1998, the physician stated that he had been seeing the claimant every month or two for the last 9 years and that he complained intermittently of localized low back pain and right lower quadrant abdominal pain.
On September 9, 1998, primary adjudication referred the case to a WCB medical advisor to review the latest medical information on file. Primary adjudication noted that the claimant has not worked since 1985 and had been on a disability pension. The claimant contacted the WCB and was relating his ongoing abdominal and back problems to the 1974 accident. When asked what the current diagnosis was, the medical advisor responded "arthritis". He indicated the evidence did not support a direct cause-effect relationship between the 1974 injury and the current diagnosis. He stated that the injury would not result in a PPI (permanent partial impairment). He indicated the claimant's degenerative back predated his injury and that his extremity complaints were not related.
In a decision of September 16, 1998, the claimant was advised by primary adjudication that the evidence did not support an ongoing causal relationship between the work injury of May 1974 and the need for any medical treatment or medications. The current diagnosis was arthritis and there was no relationship between the current diagnosis and the compensable injury.
On February 18, 2002, a solicitor, acting on behalf of the claimant, wrote to a WCB case manager to indicate that the claimant was still experiencing problems or pain in his abdomen, low back and right/left groin. The pain should be considered chronic as it had been evident for the past 28 years. As the claimant was still experiencing difficulties, it was felt that he should be assessed for a PPI award for his abdomen, low back, right and left groin, erection problem and chronic pain. Legal counsel also felt the claimant was entitled to wage loss benefits retroactive to 1974 as he had been unable to return to the mining industry and earn his pre-accident wages.
In a letter dated August 1, 2002, the claimant was advised by his WCB adjudicator that responsibility would not be accepted for the difficulties he was experiencing in his back as the condition was not related to his 1974 injury. The case manager noted that the claimant's 1974 injury was a low back strain or contusion that may have temporarily aggravated his pre-existing degenerative disease of his cervical, thoracic and lumbar spines. This disease was already present at the time of his 1974 injury and since that time there was documented evidence of progressive advancement of the degenerative disease in the spine.
With respect to pain and discomfort in the left/right groin area with erectile difficulties, the case manager denied responsibility for this as there was no medical information to support that the claimant's ongoing problems could be related to the supra pubic scarring. Regarding complaints of right lower quadrant abdominal pain, the case manager stated it was reasonable to expect that the pain in the lower abdominal area was related to the 1974 claim and that the pain was likely secondary to the multiple surgeries that had been accepted by the WCB.
Following receipt and review of additional medical information from the claimant's treating physician, primary adjudication wrote to the claimant on June 20, 2003 and stated the following:
- "A review of your claim in its entirety suggest the majority of your pain and discomfort is in the lower back area. You have made comments regarding the right lower quadrant discomfort as well but the majority however is in your right lower back. The back problems are not related to the 1974 injury. Wage loss benefits will therefore not be provided as the ongoing cause of the majority of your disability is not related to this 1974 claim."
- The file would be forwarded to the WCB's healthcare branch to assess for cosmetic scarring in the lower abdominal wall.
On September 2, 2003, the claimant's solicitor appealed the 3% impairment rating as well as the WCB's decision to deny the claimant wage loss benefits. The case was forwarded to the Review Office for consideration.
On January 23, 2004, Review Office determined that the claimant was not entitled to total temporary disability benefits retroactive to 1974 and that no responsibility could be accepted for his ongoing low back and groin complaints. Review Office noted the solicitor's contention that the claimant was permanently disabled from his chosen occupation due to the injuries that he sustained on July 21, 1974 when he was struck by a wrench in his lower abdomen. Responsibility had been accepted for the abdominal injury and the claimant had been awarded a PPI award in recognition of the surgical scarring in this area.
With respect to the claimant's low back complaints, Review Office stated there was no evidence that the injury to the back in 1974 was anything other than a contusion. Diagnostic testing revealed pre-existing degenerative changes in the lumbar spine which could not be associated with the work injury of July 21, 1974. Review Office noted that the claimant had a wide range of physical ailments and numerous areas of complaint and there was little in the way of objective medical findings or diagnostic testing to support a diagnosis for the majority of his complaints. Review Office could not establish that the claimant continued to be disabled to the present date due to the injuries sustained on July 21, 1974. On March 16, 2004, the claimant appealed Review Office's decision and a hearing was held by teleconference on May 20, 2004.
Reasons
After having thoroughly considered all of the evidence, we were able to reach the conclusion that the medical evidence generated 2-3 years following the compensable injury did not support the claimant's assertion that his back and hip difficulties were affected by the original workplace accident. In making this determination, we attached considerable weight to the following body of evidence:- December 31, 1974 letter from treating physician to the Ontario WCB - "On examination to-day, there is a full range of hip movement with no obvious pain. There is a full range of back movement and no evidence of nerve root damage."
- February 17, 1975 Ontario WCB orthopaedic examination - "…clinically I could not find any abnormality in relation to his right hip or right knee."
- June 14, 1976 letter from treating physician to the WCB - "Physical examination demonstrated a full range of back movement with no increase in pain either on forward flexion or extension of the lumbar spine. Straight leg raising was 90 degrees bilaterally with no evidence of nerve root irritation and the power, reflexes and sensation in both lower limbs were normal. I could find no evidence of hip joint involvement on the right side nor any indication in that the pain experienced in Mr. [the claimant's] inguinal region was referred from his low back."
- October 18, 1977 out-patient consultation - "…low back pain of sudden onset some 5 days ago. Straight leg raising, reflexes, sensory and motor modalities were all normal."
Panel Members
R. W. MacNeil, Presiding OfficerA. Finkel, Commissioner
M. Day, Commissioner
Recording Secretary, B. Miller
R.W. MacNeil - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 30th day of June, 2004