The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel review was held on June 8, 1999, at the request of a worker advisor, acting on behalf of the claimant.

Issue

Whether or not the claimant is entitled to benefits effective March 1, 1998 in relation to his compensable injury of December 12, 1986.

Decision

That the claimant is entitled to benefits effective March 1, 1998, in relation to his compensable injury of December 12, 1986.

Background

While self-employed as a radiator repairman/tow truck operator on December 12, 1986, the claimant slipped while hooking up a towing cable to a vehicle and injured his back muscles and left groin region. Initial medical information diagnosed the claimant with acute muscle spasms and x-rays revealed osteoarthritic changes at the L4-5 level and L5-S1 levels. As a result of the accident, the claimant was awarded a 6.9% Permanent Partial Impairment (PPI) award in 1992 and received vocational rehabilitation benefits up to August 1997.

On July 9, 1998, the claimant wrote to the Workers Compensation Board (WCB) indicating that he had to sell his business as he could no longer work anymore. The claimant requested reinstatement of "life-time" benefits. In a memorandum, dated August 18, 1998, a WCB adjudicator documented the following facts after speaking with the claimant's wife:

• the claimant's condition had deteriorated since he had been back at work. He had to utilize pain killers and received treatment from a chiropractor in order to keep going. The claimant could never find dependable workers and subsequently had to perform most of the work by himself. His attending physician felt that he should remain off work permanently.
• there were no new accidents or injuries which may have caused the claimant's current difficulties. The claimant had been off work completely since March 1, 1998 and was claiming benefits from that date on. It was concluded that the claimant had never completely recovered from the effects of the 1986 injury and that his current difficulties were located at the same anatomical site as the 1986 injury.

A Chiropractor's First Report, dated December 22, 1997, indicated a diagnosis of "chronic recurrent lumbosacral sprain with associated L5-S1 subluxations complicated by radiculitis and neuralgia." A later progress report received from the chiropractor, dated December 9, 1997, indicated that chiropractic treatments were rendered on an "as needed basis". The chiropractor also provided a narrative report which was received at the WCB on July 14, 1998.

The treating physician supplied copies of his consultation notes, dated July 4, 1998, July 23, 1998, and August 24, 1998. In his covering letter of October 6, 1998, the physician stated his opinion that the claimant was fully disabled from his tow truck operation by virtue of his chronic back pain and diminished flexibility.

On October 15, 1998, the case was referred to a WCB medical advisor for his opinion based on the available medical information. The medical advisor stated that although responsibility had been accepted by WCB for some time, much of the claimant's problems were pre-existing, i.e. his body size; degenerative osteoarthritis of the spine and facet joints; myofascial pain; the natural ravages of age and time, were causing the claimant's ongoing difficulties, not the compensable injury. The medical advisor was of the view that the original compensable injury diagnosed as acute muscular spasm should have resolved long ago on a balance of probabilities.

In a letter, dated November 2, 1998, the claimant was advised that the WCB would not authorize benefits from March 1, 1998 to date, as it determined there was no evidence to support total disability as a result of the 1986 compensable injury. On December 10, 1998, this decision was appealed to the Review Office by a worker advisor acting on behalf of the claimant. The Review Office confirmed in its December 18th, 1998, decision that the claimant was not entitled to benefits effective March 1, 1998, in respect of his lost income.

The Review Office commented that as the WCB had awarded the claimant a permanent partial impairment, it was being assumed the WCB continued to accept that the claimant's 1986 accident played a role in his current presentation. However, there was no doubt the claimant was not precluded from all forms of work. As such, he was not entitled to temporary total disability benefits under subsection 43(1) of the Workers Compensation Act (the Act).

The Review Office further gave consideration to subsection 27(20) of the Act which allows for the provision of vocational rehabilitation assistance on a discretionary basis. After successfully operating his two businesses for many years following the accident and after increasing the profits over the past several years to the point where he did not qualify for partial wage loss payments, the Review Office concluded there was no evidence that the claimant would not have been able to continue operating his business until an expected retirement date had he chosen to do so.

Finally, the Review Office stated that the claimant was not entitled to special additional compensation as the evidence did not show that the claimant had suffered a long term reduction in his earning capacity. On April 28, 1999, the worker advisor appealed the Review Office's decision and a non-oral file review was conducted on June 8, 1999.

Reasons

At the time of his compensable injury, the claimant was a self-employed radiator repairman and tow truck operator. The WCB's rehabilitation services determined that it would be in the claimant's best interests to return to self-employment. Restrictions were put in place for a six month period and the claimant's file was transferred to the vocational rehabilitation department. We note a memorandum on file, dated September 29th, 1987, which states in part the following:

"The general services of the Vocational Rehabilitation Department were discussed with Mr. [the claimant], and he is aware of the goal to return him to work. Again, Mr. [the claimant] as the owner of the business is in a position to assess and decide whether accommodation is possible. Contacts will be maintained with Mr. [the claimant] to determine the outcome of his own assessment as to what type of work he could involve himself in.
In addition, Mr. [the claimant's] restrictions are temporary, and his medical situation will be monitored as to how this will affect his ability to return to work. Should Mr. [the claimant] not be able to accommodate himself in his own business, Mr. [the claimant] was advised that he may have to make himself available for job search activities. Mr. [the claimant's] current compensation benefits are based on an hourly rate of pay of $9.23. However, given Mr. [the claimant's] specialized skill, lack of transferable skills, age, compensable back and hearing restrictions, this could be a difficult task. The most viable cost effective program would be for Mr. [the claimant] to work himself back into his own business involved in lighter duties. As stated above, Mr. [the claimant] will assess the feasibility of this and this counsellor will be continuing to encourage this direction."

Several months later the WCB decided to deem the claimant capable of earning a specific rate of pay and to provide him with wage loss for the balance. "Effective February 1, 1988, you will be deemed capable of earning $246.18 per week or 2/3 of your pre-accident rate of pay. This would entitle you to approximately $100.00 per week in wage loss benefits. The Finance Department will be completing the final calculations and your cheque will continue to be forwarded on a bi-weekly basis. The rationale for continuing with wage loss benefits is in recognition of the loss of earning capacity based on your compensable injury."

Also of particular importance was the assessment done by the WCB vocational rehabilitation consultant with respect to the claimant's work capabilities which then enabled her to arrive at an appropriate wage loss figure. The rationale is contained in a memorandum on file and reads:

"Mr. [the claimant's] disability has disabled him from performing many of the heavier mechanical duties in the shop. However, Mr. [the claimant] is still able to perform many of the lighter duties. In addition, Mr. [ the claimant] is able to train his son and teach some of those skills that he is no longer able to utilize given his back restrictions. This counsellor would suggest that Mr. [the claimant] has lost about 2/3 of his ability to perform heavier duties, but makes up at least 1/3 of that by providing his son with a training opportunity, and also spending more of his time in the general maintenance and management of the company. Based on this, it is this counsellor's recommendation that Mr. [the claimant] be deemed at 2/3 of his pre-accident rate of pay.
This would translate into deeming Mr. [the claimant] at $246.17 per week or at an hourly rate of pay of $6.15. This calculates into an actual wage loss of $3.08 per hour or $123.20 per week. This would entitle Mr. [the claimant] to a compensation weekly rate of $92.40."

On January 26th, 1990, the claimant's restrictions became permanent and following a WCB medical examination in the spring of 1992 the claimant was awarded a permanent partial impairment rating of 6.9% for loss of range of motion of his lumbar spine. It became apparent as early as 1991 that the claimant and the vocational rehabilitation consultant had discussed the sale of the claimant's business and its possible ramifications. In early 1993, the treating physician advised both the claimant and the WCB that the claimant should consider retirement from his business because recovery from the compensable injury was unlikely. Eventually, the claimant did sell his business to his son whom he had been training.

We find, given the claimant's permanent restrictions, that he cannot be considered to have totally recovered from the effects of his compensable injury. The evidence confirms that the claimant is not totally disabled and that he lost only 1/3 of his earning capacity as a result of his compensable accident. Accordingly, the claimant is entitled to receive wage loss benefits. We note that the claimant voluntarily sold his business to his son. We are satisfied, based on a balance of probabilities, the claimant more than likely would have been able to continue working in his business until a reasonable retirement date. In light of this determination, we recommend that the amount of the claimant's benefits should continue at the same 1/3 rate as was previously calculated.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
R. Frisken, Commissioner

Recording Secretary, B. Miller

R. W. MacNeil - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 9th day of July, 1999