Decision #52/06 - Type: Workers Compensation
Preamble
A file review was held on February 28, 2006, at the request of an advocate, acting on behalf of the worker.Issue
Whether or not the worker is entitled to wage loss benefits for time losses between February 17, 1996 and December 31, 1998.Decision
That the worker is not entitled to wage loss benefits for time losses between February 17, 1996 and December 31, 1998.Decision: Unanimous
Background
During the course of his employment as a heavy equipment operator on October 26, 1993, the worker was crushed between a back hoe bucket and the tailgate of a motor scraper. The worker was initially diagnosed with a possible rib fracture and a crush fracture to the thoracic level at T8. The claim was accepted and wage loss benefits were paid to the worker commencing October 27, 1993.Subsequent medical information consisted of reports by an orthopaedic specialist, a neurologist and a chiropractor. The worker also underwent various laboratory investigations which included x-rays, bone scans, etc.
On April 28, 1994, it was determined by the Workers Compensation Board (WCB) that the worker had recovered from the effects of his compensable accident and that he was not entitled to wage loss compensation beyond May 5, 1994. In reaching this decision, the adjudicator stated, in part:
"The bone scan performed in December 1993 noted compression fracture of the T7 and T8 areas which were not a result of the compensable injury. A review of Mr. [the worker's] file took place in February 1994 and following this review, it is the opinion of Claims Services that there is no evidence of any current difficulties being related to the compensable injury. This is supported by the orthopaedic surgeon who reports that except for the rib fractures, there is no evidence that any other radiological abnormalities relate to the compensable injury."On September 9, 1994, the case was considered by Review Office based on an appeal submission by legal counsel, representing the worker. Review Office agreed with the decision that the worker had recovered from the effects of his compensable injury. Review Office noted that the worker had multiple disabling problems that were not caused by the compensable accident.
In a letter dated November 28, 1994, a rehabilitation medicine specialist summarized that the worker sustained the following injuries as a result of his work related injury:
- " Fractured ribs which have healed.
- Compression fracture 8th thoracic vertebra which has healed and is not associated with any neurological deficit.
- Myofascial pain of the neck and upper back muscles and to a lesser extent the low back."
On September 4, 1998, a Medical Review Panel (MRP) was convened under subsection 67(4) of The Workers Compensation Act (the Act).
Following a review of the MRP's report, Review Office made the determination that the worker was entitled to payment of wage loss benefits beyond May 5, 1994. Review Office stated, "The claimant's physical injuries had resolved by that date, but the psychological injuries or post-traumatic stress disorder [PTSD] had not resolved prior to his return to work June, 1995…." Based on Review Office's decision, the worker was paid wage loss benefits for time losses prior to February 17, 1996.
On February 11, 2000, a WCB adjudicator advised the advocate that no responsibility could be accepted for the worker's time loss for all the days outlined in his letter of February 9, 2000 as they were not authorized by a treating physician. As well, the dates for time loss in the advocate's letter of February 9, 2000 did not correspond with treatment for post traumatic stress.
On April 20, 2005, the worker's advocate argued that the worker was entitled to 99 days of wage loss benefits between 1996 and 1998. In support of his position, the advocate referred to various medical reports on file and submitted new medical information dated January 27, 2000 and an undated report from a Masters of Social Work (MSW) student clinician and supervising clinician.
In a decision dated May 19, 2005, Review Office determined that the worker was not entitled to wage loss benefits for time losses between February 17, 1996 and December 31, 1998. Review Office stated that there was no supporting evidence to relate the worker's time losses to his PTSD. In reaching its decision, Review Office considered the MRP's report of September 1998, the January 2000 report from an internal medicine consultant and the undated report from the clinicians. On October 18, 2005, the advocate appealed Review Office's decision and a file review was arranged.
Reasons
The panel was asked to determine whether the worker is entitled to wage loss benefits for time losses between February 17, 1996 and December 31, 1998. For this appeal to succeed, the panel must find that the time losses related to the worker's workplace injury and were medically supported. The panel was unable to reach this conclusion based upon the evidence on the claim file.Worker's Submission
The worker was represented by an advocate who made a written submission to the Appeal Commission in support of the worker's request. The worker's advocate submitted that:
The worker's advocate also noted that worker mitigated the circumstance of the accident by attending work as mush as possible. He noted that at times due to a lack of sleep or pain killers he was too tired and in pain to work and was a hazard at the workplace."Review Office erred in the opinion of the writer:
The Review Office, October 30, 1998 (Order No. 703/98), indicated that the claimant was not completely recovered when he returned to work;
The claimant had his 1985 injuries at the time of his 1993 injury. The arthritic wrist; impaired his ability with heavy tools. Ringing in the ears didn't help either;
The poor quality of sleep, nightmares and night sweats were given little consideration;
Claimant had 30% Post-Traumatic-Stress-Disorder;
The note from the Psychologist to the Pain Clinic, June 5, 1998, does not appear to have been taken as a hazard to the claimants' (sic) health, workplace, or co-workers;
The letter from the attending Physician, [name of physician], dated June 27, 2000, was requested by the WCB but given no weight whatsoever;
In a no fault program, this doesn't make any sense."
In addition to above submission, the panel had the worker's full WCB claim file which included other submissions from the advocate.
Analysis
The worker is seeking wage loss benefits for specific dates between February 17, 1996 and December 31, 1998. He is seeking payment for 22 days in 1996, 25 days in 1997 and 52 days in 1998. The worker retired in 1999.
In considering this appeal the panel notes the report of the MRP which was convened on this claim. The panel finds that the subsequent information on the claim file does not show that the MRP findings were inappropriate. The MRP found that the worker's physical injuries had healed but that the worker suffered from PTSD that had not resolved prior to the worker's return to work. With regard to the PTSD, the MRP's psychology consultant commented that "Other than sleep difficulty secondary to pain, few other neurovegetative symptoms were elicited during the interview." The MRP also found that the worker "…has medical problems which give him difficulties at work, but these are not related to the compensable injury."
The panel accepts the MRP's conclusions and agrees that the only ongoing condition related to the accident was the PTSD.
The panel has considered the various reports and submissions on the file dealing with the worker's time loss but is unable to link the reports to the worker's workplace injury.
The panel notes that the report from the internal medicine specialist dated January 27, 2000 refers to physical problems which are not related to the workplace injury. The panel is not able to attach weigh to the physician's comments that "…it would be reasonable if he had taken time off work."
The panel also notes the undated report signed by a MSW student clinician and supervising clinician. This report does not relate the worker's time loss to the worker's PTSD.
In conclusion, the panel finds, on a balance of probabilities that the worker's time loss is not caused by the workplace injury. The panel also finds there is insufficient evidence to support the time loss.
The appeal is denied.
Panel Members
A. Scramstad, Presiding OfficerA. Finkel, Commissioner
M. Day, Commissioner
Recording Secretary, B. Miller
A. Scramstad - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 25th day of April, 2006