The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

A non-oral file review was held on May 26, 2005, at the request of a worker advisor, acting on behalf of the worker.

Issue

Whether or not the worker is entitled to additional compensation benefits and services.

Decision

That the worker is not entitled to additional compensation benefits and services.

Decision: Unanimous

Background

On January 15, 1988, the worker sustained an injury to his back region when he slipped on plywood and landed on his right hip. The diagnosis rendered by the treating chiropractor was "traumatic sprain to the lumbar spine." The claim was accepted by the Workers Compensation Board (WCB) and benefits were paid accordingly.

The worker was examined by a WCB orthopaedic consultant on November 2, 1988. At the conclusion of the examination and after reviewing x-rays dated November 2, 1988, the orthopaedic consultant stated that the worker's symptoms were due initially to straining his back showing evidence of degenerative changes in the lower lumbar region and contusion of his right buttock. It was felt that the worker's symptoms were due to inactivity and obesity. It was felt that the worker could return to work by December 1, 1988 with no restrictions if he performed exercises to remobilize the spine.

In a report dated December 19, 1988, a physiatrist commented that the worker was not ready to return to a labour type vocation because of his complaints of continued discomfort aggravated by any major activity. It was suggested that the worker "take the job as a security guard" and that he should be reviewed again in four months time.

On March 6, 1989, the worker's family physician reported that the worker returned to work as a security guard for 3 or 4 days but had to discontinue the position due to continued back and right hip pain.

In May 1990, a WCB medical advisor determined that the worker was fit to resume employment with restrictions. Based on this decision, the WCB's vocational rehabilitation branch became involved in the case to assist the worker in finding employment.

In February 1991, the worker advised the WCB that he was totally disabled and was not fit to return to any form of employment.

In a letter to the WCB dated April 4, 1991, the family physician stated that the worker had significant low back pain which precluded him from working at any occupation other than sedentary work.

On April 19, 1991, a WCB medical advisor reviewed the file and was of the view that the worker's restrictions were secondary to his workplace injury and to his pre-existing degenerative condition.

On June 13, 1991, the WCB advised the worker that temporary total disability benefits would not be reinstated as there was no objective evidence to support his contention of disability.

In a report dated October 16, 1991, the physiatrist outlined his examination findings and commented that the worker was continuing to complain of right leg and buttock pain secondary to his 1988 injury. He concluded his report by stating, "Recovery from the injury is slow because of his underlying condition plus the gross obesity. At this stage, he appears to be still completely disabled from heavy duty work and job retraining with light duties on a permanent basis would be recommended."

In a memo dated December 1991, a WCB medical advisor stated that he agreed with the adjudicator that there were no ongoing objective clinical findings to indicate that the worker was still suffering from the effects of the January 15, 1988 compensable injury but rather, degenerative changes and obesity.

In May 2004, the worker contacted the WCB. He submitted that his 1988 claim was prematurely terminated and that he was owed some form of compensation for his ongoing pain and suffering.

On September 2, 2004, a worker advisor wrote to the WCB on behalf of the worker and requested that the WCB reinstate wage loss benefits and provide the worker with further vocational assistance and an impairment award.

In a response to the worker advisor dated October 18, 2004, primary adjudication indicated that it had considered the WCB's policy on pre-existing conditions that was relevant for decisions made on or before June 22, 1992. Based on all the available information, primary adjudication outlined its opinion that the worker had recovered from the effects of his compensable accident and there was no evidence that the compensable injury enhanced the worker's pre-existing condition. It was felt that the difficulties experienced by the worker were unrelated to his January 15, 1988 workplace injury.

On October 28, 2004, the worker advisor outlined his opinion that the WCB used the wrong policy in deciding the case. The worker advisor felt that the correct policy to use was dated January 24, 1986 entitled, "Clarification of board policy dated August 1, 1972 regarding pre-existing condition and the second injury fund."

On November 15, 2004, primary adjudication wrote to the worker advisor to state that based on all the available information, the decision outlined on October 18, 2004 remained the same, i.e. that the worker had recovered from the effects of his compensable injury and had returned to his pre-injury state.

On November 16, 2004, the worker advisor asked Review Office to consider the case. On November 26, 2004, Review Office referred the case back to primary adjudication to obtain up-dated medical information and a history from the worker regarding the progression of his back complaints over the past 13 years.

On December 20, 2004, the worker was contacted by a WCB case manager to gather additional information regarding his medical treatment and employment history dating from 1992 onward. Up-dated medical information was also received from the worker's family physician dated January 3, 2005.

In a decision dated January 6, 2005, primary adjudication advised the worker that it remained their opinion that there was no relationship between the injury of January 15, 1988 and his current difficulties.

On January 21, 2005, Review Office confirmed that the worker was not entitled to additional compensation benefits or services. Review Office stated that it accepted the opinion of the WCB's orthopaedic consultant that the worker's present and ongoing complaints could not be reasonably associated with the contusive strain injury that occurred on January 15, 1988. On April 1, 2005, the worker advisor appealed Review Office's decision and a non-oral file review was arranged.

Reasons

The worker was injured on January 15, 1988 and last received compensation benefits in 1991. In 2004 the worker approached the WCB seeking reinstatement of benefits. The worker obtained assistance from the worker advisor office which made a presentation on his behalf as noted below.

The Panel was asked to determine whether the worker is entitled to additional compensation benefits and services. After a review of the full claim file and a consideration of the legislation and WCB policies, we found that the worker is not entitled to additional compensation benefits and services.

Worker's Position

The worker advisor made a written submission on the worker's behalf. The worker advisor noted that the worker is seeking payment of wage loss benefits from September 2004, vocational assistance and an assessment for any potential permanent partial impairment (permanent partial disability) award and coverage for medications required due to his condition. File information confirms that the worker was not contesting the decision to terminate his benefits in March 1991, but was seeking reinstatement of benefits as noted above.

The worker advisor stated that the worker's entitlement to benefits arises under the WCB policy dealing with pre-existing conditions which was in place when the worker was injured in 1988. The worker's Appeal of Claim Decision form notes that the Review Office applied an incorrect policy.

Analysis

We considered the argument advanced on behalf of the worker that he is entitled to benefits under the WCB's policy dealing with pre-existing conditions which was in force at the time of the accident. We found that the worker was not entitled to any benefits through the operation of this policy or the legislation in place at the time of the accident.

The policy referred to by the worker adviser is an excerpt from the minutes of the Board of Commissioners, dated January 16, 1986. The excerpt purports to clarify the application of subsection 34.1(1) [renumbered subsection 42(1)] of the Act. This subsection provided that:

Compensation for pre-existing conditions
42(1) Where a worker suffers an injury in an accident in respect of which compensation is paid under this Act and there is a relationship between that injury and a pre-existing or underlying condition, the board shall, in addition to any disability compensation arising out of the accident, pay compensation in respect of the pre-existing or underlying condition and that compensation shall not be less that fifty per cent of the amount that the board would have awarded if the whole of the disability had arisen from the accident.(emphasis added)

We find, on a balance of probabilities, that there is no relationship, as intended by the legislature and required by the Act, between the worker's pre-existing condition and his workplace injury. Accordingly this case does not fall within the scope of former subsection 42(1) and the noted Board of Commissioners' excerpt is not applicable.

We also find, on a balance of probabilities, that the worker's ongoing disability is not related to his January 15, 1988 work injury and that the worker is not entitled to additional benefits and services. In arriving at this conclusion we rely upon the following evidence:

• the initial diagnosis made by his treating chiropractor in a report dated January 17, 1988 was traumatic sprain of the lumbar spine.
  
  
• a CT scan taken on February 26, 1988, approximately one year after the accident, demonstrates a significant pre-existing condition. The report noted:

  There is marked degeneration of the L4-5 and L5-S1 discs. At the L4-5 level, there is complicating spinal stenosis, slightly more marked on the left side. There may also be mild stenosis at L5-S1, at this level more prominent on the left."

• in addition to the pre-existing degenerative condition, the worker suffers from obesity which has been identified as a cause of his degenerative condition.
  
  
• the report of a WCB orthopaedic consultant who examined the worker on November 2, 1988 indicated the worker should be able to return to work within a month. The consultant commented that the worker's symptoms were due initially to straining his back. He notes that the symptoms have been perpetuated by inactivity and obesity, with the result that the bulk of symptoms were due to stiffness. He commented that the worker should be fit to return to work in about one month, with no restrictions indicated. The consultant also noted that the worker must lose some weight as this is the basic reason for the degenerative changes in his lower back.
  
  
• the report of an independent orthopaedic surgeon dated October 16, 1991 notes that the worker "…appears to be continuing to suffer from lumbar degenerative disc disease with probable nerve entrapment…"
  
  
• opinion of a second WCB orthopaedic consultant set out in a memo dated January 26, 2005 in response to questions raised by the WCB Review Office. The consultant noted that the probable diagnosis of the injury sustained on January 15, 1988 is a low back strain and contusion. He also notes that the worker suffers from multi-level degenerative disc disease with associated spinal stenosis and morbid obesity. In reply to the question of whether the medical evidence suggests that the work injury continues to play a role in the worker's ongoing physical complaints, the consultant states that the worker's ongoing problems are related to his pre-existing conditions and are progressive. He also notes that the work injury would not have enhanced the worker's pre-existing condition.

Given our findings as noted above, the worker's appeal is accordingly 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 6th day of July, 2005