The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

A non-oral file review was held on February 23, 2005, following receipt of an appeal submission by the worker with respect to a decision rendered by the Review Office of the Workers Compensation Board (WCB) dated November 3, 2004.

Issue

Whether or not the worker is considered totally disabled and therefore entitled to full wage loss benefits; and

Whether or not the worker's Permanent Partial Disability award and Special Additional Compensation award should be transferred from the 1989 claim to the 1978 claim.

Decision

The worker is not considered totally disabled and therefore is not entitled to full wage loss benefits; and

The worker's Permanent Partial Disability award and Special Additional Compensation award should not be transferred from the 1989 claim to the 1978 claim.

Decision: Unanimous

Background

On March 27, 1978, the worker struck his left elbow and back when he slipped getting out of a truck. The initial diagnosis rendered was contusions to the left elbow and sacrum. The worker was later diagnosed with a central prolapsed disc and underwent a laminectomy for decompression of the L5 nerve root and removal of the sequestrated L5-S1 disc.

In October 1978, the worker was examined by an assistant chief medical officer with the WCB who recorded complete lack of objective findings of any disability. He noted that he had spoken with the treating surgeon and it was agreed that the worker could return to work providing no heavy lifts were indulged in. Subsequent file records showed that the worker returned to his regular duties on April 16, 1979.

On October 13, 1989, the worker reported injuries to his left leg, ankle and hip due to a work related accident.

On April 24, 1990, a CT scan was performed and it revealed L5 nerve root encroachment secondary to lateral recess stenosis and facet joint hypertrophy. In June 1990, the worker underwent a laminectomy and decompression of the nerve root as well as excision of the disc. Following surgery, file records showed that the worker continued to suffer from back pain and was treated conservatively.

On September 24, 1993, a WCB medical advisor reviewed the file information and determined that the worker was not totally disabled; that he was severely deconditioned which was contributing to his low back discomfort and disability; and that he was capable of modified work with restrictions.

In January 1994, the worker suffered a myocardial infarction. In a signed declaration dated February 21, 1994, the worker indicated that he had not worked since May of 1990 and that he was attributing his heart attack to a combination of his back condition and his dealings with the WCB.

On April 6, 1994, under his 1989 claim, the WCB denied responsibility for the myocardial infarction as it was not established that the worker's physical activity on January 14, 1994 was greater than normal living activity.

The worker was interviewed by a medical advisor from the WCB's Pain Unit on October 19, 1994. It was felt that the worker would not benefit from a multi-disciplinary pain management program.

On January 20, 1995, a WCB medical advisor was asked to identify restrictions that would be related to the worker's back injury. The medical advisor stated that past restrictions of no heavy lifting, no repetitive bending/twisting and no prolonged sitting/walking without the opportunity to move from time to time were appropriate and should be considered permanent. After 2 surgical procedures on his back, the medical advisor stated that the worker's back condition would not likely improve.

In June 1996, the worker submitted a letter to Review Office in which he disagreed with a number of decisions that had been made on his 1989 claim file. In a July 12, 1996 decision, the Review Office confirmed that the worker's myocardial infarction was not acceptable and that the worker's earnings should be deemed at the provincial minimum wage. Review Office also confirmed that the worker was not totally disabled from employment based on its review of the documented medical information on file.

Effective March 1997, the worker began to receive Special Additional Compensation (SAC) from the WCB under his 1989 claim.

On July 21, 1999, the worker was examined by a WCB impairment awards medical advisor for the purposes of establishing a Permanent Partial Disability (PPD) award resulting from his 1989 back injury. Based on this assessment, it was determined that the worker qualified for a 9% PPD award.

In March 2004, the worker asked that his "injury reoccurrence claims for compensation be against the original claim with [his employer]". The WCB considered the relationship between his 1976 claim for a stomach injury and his 1989 claim. The worker subsequently clarified that he was referring to his 1978 claim for a back injury.

In a letter to the WCB dated May 18, 2004, the worker argued that his 1990 surgery was at the same anatomical site as his first surgery under his 1978 claim. He felt that his second back surgery was done to clean up scarring left from his first surgery.

On May 20, 2004, Rehabilitation and Compensation Services advised the worker that no change would be made to its earlier decision of May 12, 2004. The WCB recognized that the worker had undergone two back surgeries to the same area of his lower back. The new incident of October 13, 1989 caused the worker to stop working. The WCB considered this a new and distinct accident resulting in his 1989 claim. The second surgery was not proposed until after he sustained the new accident in 1989. It was noted that the worker had made a good recovery from his first lower back surgery and that he had returned to work for almost 11 years until he had his 1989 accident.

On May 26, 2004, the worker provided Review Office with an October 14, 1992 letter concerning a meeting that took place on October 8, 1992 between the worker's WCB rehabilitation consultant and a vocational rehabilitation consultant with SMD services. The worker contended that this evidence supported his position that he was disabled and unemployable.

In a decision letter dated November 3, 2004, Review Office made reference to its previous decision of July 12, 1996 when it determined that the worker was not totally disabled from employment due to his compensable injuries. Review Office advised the worker to appeal to the Appeal Commission if he disagreed with its decision.

Review Office noted that the worker eventually returned to his regular work duties when his 1978 claim ended. He then sustained the injury of October 13, 1989 which was clearly a distinct and separate accident compared to his March 1978 injury. As the definition of accident had been met regarding his October 13, 1989 injury, compensation benefits were calculated based on the worker's average earnings at the time of the new accident. Review Office therefore concluded that the worker's SAC award was correctly implemented on his 1989 claim as opposed to his 1978 claim.

Review Office also determined that the worker's PPD award should stay with the 1989 claim. Review Office noted that a WCB orthopaedic consultant had commented in July of 1990 that a severe blow to the leg with progressive onset of leg symptomatology could have pulled the nerve root, causing it to swell and therefore producing the worker's leg symptomatology. This was what possibly led to the need for the second surgery. Once the second surgery commenced, the surgeon noticed the scarring that was evident and corrected the situation. Review Office pointed out that the worker had worked 11 years without the need for this surgery and it would clearly appear that the 1989 accident triggered the need for surgery. Review Office therefore agreed with the WCB's handling of the situation which included the assignment of the PPD award to the 1989 claim.

On November 16, 2004, the worker disagreed with Review Office's November 3, 2004 decision and a non-oral file review was conducted.

Reasons

There were two distinct issues to be considered in the worker's appeal.

We were asked whether the worker is considered totally disabled and therefore entitled to full wage loss benefits. For this appeal to be successful we must find that the worker is totally disabled by reason of his workplace injury. After considering all the evidence and particularly the medical evidence, we found that the worker is not totally disabled.

We were also asked to determine whether the worker's PPD award and SAC award should be transferred from the worker's 1989 claim to his 1978 claim. For the appeal on this issue to be successful we must find that the worker's condition for which he is in receipt of SAC and a PPD award is caused by his 1978 injury. We were not able to arrive at this conclusion.

Analysis

Issue 1:

We have reviewed the file and in particular the medical information to assist in determining whether the worker is totally disabled.

There is a Doctor's Progress Report dated January 16, 2004 which indicates the worker complains of severe pain and stiffness in the lower back. It notes objective findings of reduced range of motion of lower back. The report notes the worker will never return to regular duties and is not capable of alternate work. We attach little weight to this report as it does not provide any details of the examination and tests, if any, that were used to arrive at the opinion. Nor does it provide facts and reasons upon which it is based.

We note the worker was examined in July 1999 by a WCB impairment awards medical advisor. The purpose of the examination was to assess the worker for a PPD award. The worker was assessed a PPD of 6.8% for his lost range of motion. We note the examiners observations:

"Some pain was experienced towards the end-points of forward flexion, extension and lateral flexion to the right. No motor weakness was present in the lower limbs where the knee reflexes were brisk and equal. The ankle jerk was, also, brisk on the right but absent on the left side. Plantar responses were normal. No sensory deficit was present in either lower limbs."

While this examination does not address the worker's level of disability, it does suggest that the worker's back impairment is not severe.

We note that the worker's disability was addressed in a report by a WCB medical advisor dated September 24, 1993. The medical advisor found that the worker was not totally disabled, was probably severely deconditioned, and was capable of modified work with restrictions. In reaching his recommendation, the medical advisor noted a recent MRI report and discussion with a neurologist and commented that there was no clinical evidence of significant nerve root compression.

In arriving at our determination, we place significant weight upon this report. We find, on a balance of probabilities, that the worker is not totally disabled by reason of his workplace injuries and is not entitled to full wage loss benefits.

Issue 2:

The worker has asked that his benefits be transferred from his 1989 file to his 1978 file. As previously noted, to approve this change, we must find that the worker's condition and PPD award are due to the 1978 claim. We were not able to reach this conclusion.

We note that the worker's 1978 injury occurred on March 27, 1978 and that he was considered fit to return to work, avoiding heavy lifts, on October 10, 1978. Medical reports document that the worker injured his left elbow and sacrum. On July 26, 1978 the worker underwent a laminectomy for decompression of the L5 root and removal of the sequestrated L5-S1 disc. There are no medical reports regarding this injury subsequent to 1979. The worker apparently worked for approximately 11 years after the injury without further medical treatment.

The worker's next injury occurred on October 13, 1989. In his claim form, the worker describes the injury as "I was doing up a beartrap chain tightener when the pipe I was using slipped off and it sprung back and hit my leg. I then fell on the steel I was securing and hit my hip and twisted my ankle." We find this to be a distinct accident, meeting the definition of accident in Section 1(1) of The Workers Compensation Act (the Act). As a result of this distinct accident, a claim file was established and the worker was paid benefits. The benefits paid under this claim include the worker's SAC benefits and PPD award that the worker has asked to have transferred to his 1978 claim.

The 1989 injury involved the worker's left leg, ankle, and hip, and ultimately involved surgery to the same area of the worker's back as the 1978 claim. On this point we note the opinion of the WCB medical advisor on October 6, 1995:

"…If we assume the disability is more likely due to these injuries I think the disability is more likely due to the second injury (claim #8907 4881) than the first (claim #7807 1061). He appeared to make a rapid recovery after the surgery in 1978 and there is no record of disability between 78 & 89. I did not see any record of him returning to work since 1989. For these reasons I would say the injury of 1989 is of more significance."

We find, on a balance of probabilities, that the worker's SAC award and PPD award are properly attributed to and paid on the worker's 1989 injury file. We place significant weight on the fact that the worker returned to work in 1978 and did not require further medical attention until the 1989 injury.

The worker's appeal is dismissed.

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 24th day of March, 2005