The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

A non-oral file review was held on May 20, 2004, at the claimant's request. Following discussion of the case, the Panel requested further information from the healthcare branch at the Workers Compensation Board (WCB). The requested information was later obtained and the Panel met further to discuss the case on July 14, 2004.

Issue

Whether or not the claimant has a compensable psychological condition;

Whether or not the claimant should have a deemed post accident earning capacity of minimum wage;

Whether or not the 10% Permanent Partial Impairment award for the claimant's back condition has been properly calculated; and

Whether or not the claimant's 10% Permanent Partial Impairment award for his back condition should be reduced by 50%.

Decision

That the claimant does not have a compensable psychological condition;

That the claimant should have a deemed post accident earning capacity of minimum wage;

That the 10% Permanent Partial Impairment award for the claimant's back condition has been properly calculated; and

That the claimant's 10% Permanent Partial Impairment award for his back condition should not be reduced by 50%.

Decision: Unanimous

Background

During the course of his employment as a sheet metal worker on January 22, 1996, the claimant injured his neck and back while assembling a 12 foot canopy. The claimant was later diagnosed with an L5-S1 disc herniation with right S1 radiculopathy. The Workers Compensation Board (WCB) accepted the claim for compensation and benefits were paid to February 1997 when it was determined that a cause and effect relationship no longer existed between the claimant's compensable injury and his ongoing complaints. This decision was later reversed by Review Office and benefits were reinstated. Review Office also suggested that the case be referred to a vocational rehabilitation consultant to assist the claimant in resuming appropriate employment.

On August 25, 2000, the claimant was interviewed by a WCB impairment awards medical advisor for the purposes of establishing a permanent partial impairment (PPI) award. The medical advisor outlined comments expressed by the claimant whereby he felt that his "employer was negligent". The claimant was also found to be extremely pain and disability focused and of the view that he had been mishandled and mistreated by the workplace and the WCB. The medical advisor stated, "…examination today would not have yielded any accurate information that could be used for a PPI rating, and as a result, no official record of range of motion is being submitted and no recommendation for PPI is being made."

On December 18, 2001, the claimant's treating psychologist provided the WCB with a summary of consultations that he had with the claimant over the past year. The psychologist stated, in part, that the claimant continued to experience periods of episodic distress and depression, behavioral agitation and disorganization as well as manifestations of self-defeating behaviour.

The claimant was interviewed by the WCB's Pain Management Unit (PMU) on September 24, 2002. In a PMU case conference memo dated October 3, 2002, it was noted that the claimant "...does not meet the diagnostic criteria for a Chronic Pain Syndrome as the disability is not proportionate in all areas of function. As well there appear to be significant workplace issues which, as well, constitute a contraindication to the diagnosis of Chronic Pain Syndrome."

With respect to vocational rehabilitation, the WCB developed an Individualized Written Rehabilitation Plan (IWRP) for the claimant which entailed sponsorship into a Dental Tech program which was to run between September 2001 to June 28, 2002. The plan called for the claimant to receive 24 weeks of work experience, 12 weeks of job search and full wage loss benefits throughout the plan. It was anticipated that the claimant would be capable of earning $373.00 per week at the completion of his vocational plan.

In a memo dated January 16, 2003, a WCB case manager spoke with the claimant as he had not been attending school since January 7, 2003. The claimant voiced his concerns to the school administrator about the intense pressure he was experiencing and that he would be returning to school after his MRI assessment on January 20, 2003. The claimant advised his case manager about the injustice he felt by the WCB system and the hardship it caused on his family. The case manager told the claimant that the WCB would be proceeding to the end of his VR plan and likely deeming him according to the IWRP.

In a letter dated January 17, 2003, the claimant was advised of the WCB's decision to suspend his wage loss benefits effective January 7, 2003, which was the last time he attended school. The WCB was also of the position that the claimant did not have any psychological condition directly related to his compensable injury and that funding for his psychological treatment would be ending after 4 additional sessions of therapy were completed. It was noted that the claimant was offered treatment for anger management issues which were a barrier to his vocational rehabilitation program.

On February 13, 2003, a WCB orthopaedic consultant reviewed the file which contained an MRI report of the lumbosacral spine dated January 20, 2003. The consultant noted that the radiologist had not reported any findings beyond those noted on the CT scan of June 17, 1997. There was mild degenerative disc changes at L5-S1 (desiccation and narrowing). There was a moderate sized central right disc protrusion at this level. Degenerative changes at this level were noted on x-rays and CT scan of January and February 1996. The consultant doubted that the claimant's ongoing symptoms were due to a work related injury and that the appearance of a disc protrusion was at least partly due to the degenerative disc disease.

The case was reviewed by a WCB senior medical advisor on March 5, 2003. He outlined his opinion that the claimant's ongoing low back pain was likely due to enhancement of his pre-existing degenerative disc disease and disc protrusion at L5-S1 level which was at least partly related to the compensable injury. He felt that the claimant was entitled to a PPI award and that his current restrictions should be permanent with respect to his lower back.

In a letter dated March 6, 2003, the WCB advised the claimant that he was considered capable of earning $373.00 per week as a Dental Technician effective January 22, 2003, had he participated in and completed the vocational rehabilitation plan. He was also advised that the WCB had reviewed the recent MRI results and call-in examination of November 14, 2002 and that he had permanent work restrictions.

In a letter to the WCB dated March 31, 2003, the claimant's treating psychologist made the following comments:

"Throughout previous consultations with [the claimant], issues have related primarily to pain and anger management. While up until recently some resolve appears to have been effected over the later, [the claimant] continues to report significant pain and disability which, in his view, has impacted upon his capacity to participate in his educational programme (sic). As a consequence, the WCB's recent decisions have not been particularly well received by [the claimant], where in fact, greater degrees of distress, and more prominently, a reemergence of anger and hostility to the WCB has been expressed by [claimant], which as suggested above, appears to have precipitated a number of phone calls on [the claimant's] part to the WCB where innuendos of threat had been perceived by individuals with whom [the claimant] had been in contact…".

"It would appear from consultations with [the claimant] that recent decisions by the WCB have engendered greater levels of distress and psychological upset in this individual, and the foregoing are largely, if not solely causal issues pertaining to [the claimant's] present distress. Through the course of previous consultations with [the claimant], which he had initially been referred for similar issues in the past, the foregoing appeared to have resolved to some extent, with [the claimant] better able to retain emotional equanimity and restraint of his anger toward the WCB and his accident employer, although recent decisions appear to have resulted in a reemergence of manifest symptoms."

On September 5, 2003, the claimant was again assessed at the WCB's offices for the purposes of establishing a PPI award. Following review of the examination notes, the WCB advised the claimant on October 28, 2003 that he was entitled to an impairment award of 10% and that the award was calculated in accordance with section 38(2) of The Worker Compensation Act. The award resulted in a one time payment of $1,070.00.

On October 3, 2003, Review Office considered a number of issues brought forward by the claimant based on his appeal submission dated April 11, 2003.

Specifically, Review Office determined that the claimant did not have a compensable psychological condition. In reaching this decision, Review Office made reference to the claimant's submission of April 11, 2003, the comments made by the WCB's PMU and the reports by the treating psychologist dated December 18, 2001 and March 31, 2003.

Review Office noted that the claimant related his "dehabilitating psychological condition" not to his accident per se but to the accident employer's and the WCB's response to it. Review Office said the WCB differentiated between psychological and/or psychiatric problems that develop as a result of a compensable accident and those that develop as a result of events that occur after an accident. It considered that psychological conditions such as post traumatic stress syndrome following a traumatic amputation would be compensable. Psychological problems that develop as a result of the WCB's administrative processes or the results obtained such as depression developing after an unwanted termination of benefits not to be considered compensable. It was clear to Review Office that the claimant's self-described "dehabilitating psychological condition" was not the sequela of his accident but rather was the result of what transpired post accident. It followed that it was not compensable.

Review Office determined that a deemed post accident earning capacity should have been implemented. Review Office felt the decision to deem was consistent with WCB policy and practice as the claimant persisted in his unwillingness to participate in the vocational rehabilitation process.

On November 27, 2003, the claimant appealed the WCB's decision to award him a 10% PPI award for his back condition along with the monetary amount of the award. In later correspondence dated December 10, 2003, the claimant provided Review Office with a December 4, 2003 report by an occupational health physician for consideration.

On December 16, 2003, Review Office determined that the 10% rating appropriately measured the permanent impairment for loss in range of movement in the worker's lumbar spine. Review Office made reference to the WCB's Permanent Impairment Rating Schedule which called for a rating of 30% for complete immobility of the lumbar and thoracic spines. The worker's loss in range of movement of 80 degrees was compared to the expected range of movement and he was awarded a 10% impairment rating. Review Office found this to be correct. Note was also made of the examining medical advisor's comments that the worker's impairment award could be reduced by 50% down to 5% if it was determined the pre-existing condition had a major contribution to the permanent impairment. It was noted that throughout the worker's file there had been consistent mention of a major pre-existing condition that had been enhanced by the accident. The award, therefore, should have been reduced by 50%. Review Office did not believe that the calculation for the cervical loss in range of motion should be included in the claimant's award, as it was of the view that the accident was predominantly to the worker's lower spinal area and it found that any loss in range in the cervical spine would not be attributable to this accident but to other factors. The claimant subsequently disagreed with Review Office's decisions and a non-oral file review was requested.

Following the non-oral file review held on May 20, 2004, the Appeal Panel requested additional information from the WCB's healthcare branch with respect to the claimant's degree of degenerative disc disease in 1996 compared to recent findings. The Panel also asked for an opinion with respect to the claimant's degenerative disc disease and whether it was considered to be minor or major and what role did the compensable injury play in the claimant's current physical status. A response was received from healthcare services dated June 25, 2004 and it was forwarded to the claimant for comment. On July 14, 2004, the Panel met further to discuss the case and render its final decisions with respect to the issues under appeal.

Reasons

With respect to the final issue, we find that the claimant’s 10% permanent partial impairment award (PPI) for his back condition should not be reduced by 50%. According to an opinion provided by a WCB orthopaedic consultant, the claimant’s pre-existing back condition was minor in nature. “I would describe the degenerative disc disease as seen on the x-rays of Feb 6/96 as being minor. I do not see any objective evidence of a specific injury or enhancement of his relatively minor degenerative changes in the lumbo-sacral spine. He may well have suffered a strain or an aggravation of the degenerative changes.” Based on the foregoing opinion we therefore find that the 10% PPI should not have been reduced by 50%, and the claimant’s appeal on this issue is successful.

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 6th day of August, 2004