The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

A non-oral file review was held on October 27, 2004, at the request of an advocate, acting on behalf of the worker.

Issue

Whether or not the 16% permanent partial impairment award has been properly assessed against the worker's 1999 claim rather than against his 1972 claim.

Decision

That the 16% permanent partial impairment award has been properly assessed against the worker's 1999 claim rather than against his 1972 claim.

Decision: Unanimous

Background

On July 31, 1972, the worker suffered an injury to his back region during the course of his employment as a pipe fitter. As a result of the accident, the worker was diagnosed with a disc protrusion at L4-L5 and underwent an L4-L5 disc excision on January 8, 1973. In a subsequent progress report dated June 21, 1973, the attending physician reported that the worker had full and normal range of motion in his back with no neurological findings. The Workers Compensation Board (WCB) accepted responsibility for the claim and benefits and services were paid to the worker up to July of 1973.

On October 19, 1999, the worker twisted his lower back while pulling a blower assembly out of a furnace. The initial diagnosis was an acute right sciatic neuritis. The WCB accepted responsibility for the claim and benefits were paid accordingly.

On November 9, 2000, an MRI examination of the lumbar spine was performed and it demonstrated severe multi-level lumbar spinal stenosis.

On March 9, 2001, the worker was assessed by a WCB orthopaedic consultant who reported that the worker's signs and symptoms were consistent with a lumbar spinal stenosis and degenerative changes in his spine.

The worker underwent surgery on March 5, 2002 which consisted of a laminectomy with nerve root decompression at L2-3, L3-4 and L4-5.

A Medical Review Panel (MRP) was ordered based on a difference of medical opinion as to the cause of the worker's ongoing back difficulties and its relationship to either his 1972 and 1999 accidents. An MRP was convened on July 11, 2002. In brief, the MRP concluded that the worker's pre-existing condition was permanently enhanced by his 1999 injury. The MRP also found evidence of neurological changes which were considered to be due to compression of the cauda equina by the spinal stenosis.

On August 30, 2002, Review Office commented that the MRP made it clear that the worker continued to suffer from the effects of his two compensable injuries and that the October 1999 accident permanently enhanced the pre-existing condition in the worker's spine.

In a report dated November 6, 2003, a urologist noted that the worker developed acute cauda equina syndrome in 1999 which included bowel and bladder problems and that arrangements were being made for urodynamic studies.

In a follow-up report by the urologist dated February 11, 2004, he commented that the urodynamic studies confirmed the presence of a neurogenic bladder. He further stated, "I believe that he had some left over effect of his spinal injury on his bladder and there is not a certainty as to whether this will go back to normal over time."

On May 21, 2004, the worker was assessed by a WCB Impairment Awards Medical Advisor for the purposes of establishing a PPI rating. Following this assessment, it was recommended that the worker's PPI for the sequela of his back injuries which included his 1972 and 1999 injuries would be rated at 16.0%. This included 1.0% for a cosmetic impairment, 1.9% for loss in range of motion, subtotaled to 2.9% and rounded to 3.0%, plus 12.5% for the cauda equina syndrome, rounded to 13.0%. The medical advisor further stated "…leads me to determine that this man has, post 1999 injury and operative report, developed a cauda equine (sic) syndrome resulting from spinal stenosis and possible post-operative scarring."

In a decision dated June 18, 2004, the WCB advised the worker that his 16% PPI rating, consisting of three components, were related to his 1999 enhancement and was payable under his 1999 claim. In reaching this decision, the WCB made reference to a Review Office decision dated August 30, 2002 along with the opinions expressed by the Impairment Awards Medical Advisor on May 21, 2004 and from the urologist's report of November 6, 2003.

On August 3, 2004, an advocate, acting on the worker's behalf, appealed the above decision to Review Office, outlining his position that the worker's impairment rating should be based on his 1972 accident rather than his 1999 claim.

On August 19, 2004, Review Office confirmed that the 16% award was attributable to the 1999 claim. Review Office considered the MRP's findings that the worker would not have had any rateable impairment if he had not suffered the 1999 accident. The MRP clearly stated that the 1999 accident caused the worker's enhancement and that it led to the neurogenic condition and the cauda equina syndrome. Review Office went on to state that the bulk of the impairment award (i.e. 13%) reflected the development of the cauda equina syndrome which was not present prior to the 1999 accident and which could not be attributable to the 1972 accident. On August 26, 2004, the advocate disagreed with Review Office's decision and a non-oral file review was arranged.

Reasons

We were asked to determine whether the 16% PPI award has been properly assessed against the worker's 1999 claim rather than against his 1972 claim. We have determined that it has been properly assessed.

As this was a review, the worker's advocate provided a written submission in support of the position that the worker's impairment rating is due to the combination of the 1972 compensable injury, 1973 compensable surgery scarring; the 1999 compensable injury and the 2002 compensable surgery. In support of his submission the advocate referred to the July 2002 MRP report.

We have concluded, on a balance of probabilities, that the worker's PPI arose from the 1999 injury and has been properly assessed against this claim. There is one minor exception; the scarring from the incision for the 1973 surgery is clearly attributable to the 1972 accident. However, based on our review of the legislation applicable to these accidents, there is no entitlement to payment of a cosmetic award for scarring arising out of the 1972 compensable injury. We note that prior to the 1999 injury the worker had no symptoms of a permanent impairment.

The reasons for our conclusion are as follows.

• Following the worker's return to work after the 1972 injury and related surgery, there is no evidence of any ongoing problems related to the 1972 injury. A WCB medical officer notes in a memo dated June 19, 1973 that the operation for a prolapsed disc carried out on January 8, 1973 should not carry any PPD (permanent partial disability). A Doctor's Progress Report dated June 21, 1973 reports the worker has "back ROM normal" and no neurological findings.
  
  
• In July 2002 the MRP reported that it was unable to note any decreased range of motion in the worker's spine.
  
  
• In May 2004 the worker was assessed by a WCB Impairment Awards Medical Advisor who found that the worker had a loss of range of motion of the thoracic and lumbar regions of 15 degrees which amounted to a permanent impairment of 1.9%
  
  
• The MRP found that the worker's pre-existing condition was permanently enhanced by the 1999 injury.
  
  
• The most significant portion of the permanent impairment award, 13%, is for the worker's cauda equina syndrome. This condition did not arise until after the 1999 injury. In May 2004 the WCB's Impairment Awards Medical Advisor noted that the worker has, post 1999 injury and operative repair, developed a cauda equina syndrome resulting from spinal stenosis and possible post-operative scarring. On a balance of probabilities, we find that the cauda equina syndrome is attributable to the 1999 injury and related surgery.

The worker's appeal is denied.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

A. Scramstad - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 18th day of November, 2004