The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel review was held on December 11, 1998, following receipt of an appeal from an advocate, acting on behalf of the claimant. The Panel discussed this case on December 11, 1998, and on January 25, 1999.

Issue

Whether there is an entitlement to a Permanent Partial Disability award.

Decision

That the claimant is entitled to a Permanent Partial Disability award.

Background

In 1969, the claimant sustained a compensable back injury from lifting a roll of carpet. On May 28, 1969 an L5-S1 discectomy was performed and was accepted as Workers Compensation Board (WCB) responsibility. By February 23, 1970, the claimant was reported to have good movement of his lumbar spine with 90 degrees straight leg raising on both sides. The claimant was paid time loss benefits between April 1969 and February 1970 as a result of the accident.

In 1988, the claimant contacted the WCB stating that he continued to have back problems following the 1969 surgery and felt that he may be entitled to a disability pension.

Consequently, the WCB obtained additional information which revealed that the claimant had a claim with the Alberta WCB regarding an incident which occurred on July 13, 1987. At that time the claimant was reported to have slipped off a pipe landing on his back and fracturing his left wrist. Medical information obtained from Alberta revealed the following:

• an orthopaedic surgeon reported on May 17, 1988 that the claimant had a lumbosacral disc protrusion on the right side on the basis of S1 sciatica. The specialist recommended a CT scan which was later performed on June 16, 1988. The CT scan suggested a possible posterolateral to central disc protrusion at L4-5. In a further report from the orthopaedic surgeon dated December 6, 1990, he commented "This man has CT evidence of L4-5 disc protrusion which is probably related to his work injury of July, 1987, but this disc does not appear to be causing symptoms at this time. The patient does appear to be having lumbosacral symptoms with S1 sciatica and numbness, which is consistent with his work injury under the Manitoba WCB in 1969.
• on November 10, 1989, a neurosurgeon reported that the claimant's lumbosacral ROM (range of motion) was moderately decreased to 2/3s normal for his age. SLR was 45 degrees on the right and 80 degrees on the left. After review of CT scans and myelogram the neurosurgeon felt the investigations showed post surgical scarring but no new surgical lesions. His impression was that there was scar tissue around the nerve roots and that the claimant's back pain was related to the degenerative joint disease and exacerbation. The specialist did not think this was a surgical lesion.
• on January 15, 1990, an orthopaedic surgeon reported that the Alberta WCB did not take into consideration the claimant's back surgery which would normally be rated at 5%;
• on July 27, 1990, an independent consultant examined the claimant at the request of the Alberta WCB. Clinical examination findings revealed that the claimant showed ongoing restricted mobility, subjective pain, subjective hypoesthesia in his right leg and slight decrease in the ankle jerk. According to the consultant, it was possible that many of these findings were attributable to the claimant's old discectomy. He did feel, however, that the claimant was "legitimate" in his back pain and that some of his current problems were due to an aggravation of his pre-existing situation and that he had some permanent impairment on the basis of aggravation of the pre-existing condition.
• in a report dated August 22, 1990, a physical medicine and rehabilitation specialist made note of the accident which occurred on July 13, 1987, and stated that the Alberta WCB acknowledged the back injury on a pre-existing basis. "The basis for this is that Mr. [the claimant] had a work related accident in Manitoba in April 1969. He underwent surgical decompression in May 1969 and this appears to be a one level decompressive procedure. Mr. [the claimant] returned to his regular work as a carpenter. He continued working until his most recent accident." The specialist stated, "Mr. [the claimant]'s current clinical status is directly related to pre-existing problems. Therefore, my feeling is that the whole person permanent partial disability is directly related to the Manitoba accident and surgery." In summary, the specialist concluded that 5% relates to the pre-existing work related accident in Manitoba and 10% to the current physical status related to the Alberta work related accident.

After consulting with the WCB medical department on May 1, 1991, the claimant was advised by a claims adjudicator on May 17, 1991, that the symptoms he was currently experiencing were not a direct sequela of the 1969 surgery in Manitoba. It was considered that the disc protrusion at the L4-5 level was the direct result of the July 13, 1987, fall. The claimant's request for a disability pension was therefore denied. This decision was confirmed by the Review Office on August 30, 1991.

On May 4, 1998, an advocate for the claimant requested reconsideration of the decision not to award the claimant a permanent partial disability award. In support, additional medical information was submitted from an orthopaedic surgeon dated April 1, 1998.

In a letter by Review Office dated July 29, 1998, the claimant was informed that there was no basis to extend a permanent partial impairment award based on the following weight of evidence:

• that the claimant was able to work as a carpenter without appreciable difficulty until falling approximately 17 years post-accident;
• the opinion of a WCB orthopaedic consultant that the claimant's trouble was related to the secondary fall.

In view of the above, the Review Office concluded that the claimant did not have any physical loss of disability related to the April 1969, accident. On August 24, 1998, the advocate appealed this decision to the Appeal Commission and presented further argument in a letter dated November 23, 1998.

Following a non-oral file review on December 11, 1998, the Appeal Panel requested that the claimant be examined by the WCB for the purposes of determining whether impairment existed in relation to the 1969 compensable accident. On January 8, 1999, an impairment awards medical advisor responded to the Appeal Panel's request. A copy of the memo was forwarded to the interested parties for comment. On January 25, 1999, the Panel met to render its final decision and took into consideration the advocate's final submission dated January 20, 1999.

Reasons

The issue in this case is whether the claimant is entitled to a Permanent Partial Disability Award (PPD).

The relevant subsection of The Workers Compensation Act (the Act) is subsection 3(10), Revised Statutes of Manitoba, 1954, which provides for compensation for permanent disability.

Subsection 3(10) states:

Permanent disability. (10) The board may award compensation under this part in respect of the permanent disability suffered by a worker but without temporary total disability.

Relevant WCB Policy is Section 44.90.10, Permanent Impairment Rating Schedule, effective date October 1, 1996 For All Decisions (initial, reconsideration, and appeal). The policy as paraphrased indicates the following:

The impairment rating policy sets out that the degree of impairment will be established by WCB Healthcare Management Services in accordance with the policy and that whenever possible, and reasonable, impairment ratings will be established strictly in accordance with the schedule attached as appendix A.

The policy further indicates that in the event that Healthcare Management Services Department feels that strict adherence would create an injustice, or it is felt that an impairment exists that is not covered by the policy, Healthcare Management Services may deem it just and fair to establish an impairment rating that is not specifically covered by the schedule.

The policy goes on to provide guidelines for such exceptions. The policy articulates the process involving a pre-existing condition and outlines that Healthcare Management Services will assign a fair rating to a pre-existing condition based on the best information available.

The claimant was involved in a workplace accident in 1969 in Manitoba which resulted in a L5-S1 disc protrusion and a consequent discectomy for which WCB accepted full responsibility. The claimant returned to work as a carpenter and subsequently sustained a second work-related accident in Alberta on July 13, 1987 when he fell from a scaffold and injured his left wrist and aggravated his lower back. The claimant contacted the Manitoba WCB in 1988 and 1998 requesting a permanent partial disability award which was denied on both occasions by Review Office. Following the 1987 injury, the Alberta WCB awarded the claimant a 5% permanent partial impairment award for an aggravation of a pre-existing spinal condition at L5-S1.

We note the following information from the file:

• following the 1987 accident the Alberta WCB accepted responsibility for a Colles fracture of the left wrist, lumbar strain, and a neurological dysfunction. Permanent aggravation responsibility for aggravation of lumbar degenerative disc disease/osteoarthritis and an aggravation of the May 28, 1969 L5-S1 discectomy/laminectomy were also accepted. No responsibility, however, was accepted for the May 28, 1969 L5-S1 discectomy/ laminectomy or sequelae of that surgical procedure;
• the case manager in Alberta advised the claimant's worker advocate that he should contact the Manitoba WCB in regard to any permanent clinical impairment related to his 1969 surgery which took place in Manitoba;
• an attending orthopaedic surgeon in a report dated May 17, 1988 reported results of an X-ray to suggest disc narrowing and anterior spurring at L5-S1. The report went onto indicate that there appeared to be some lumbar facet arthritis right greater than left at the two levels (L4-5, L5-S1);
• a CT scan performed on June 16, 1988 revealed the presence of small osteophytes at L5-S1;
• an orthopaedic surgeon in a report dated January 15, 1990, indicated that the Alberta medical impairment for the claimant's back did not take into account his prior back surgery which would normally be 5%;
• another orthopaedic surgeon from Alberta in his report dated January 15, 1990 reviewed a CT scan dated April 10, 1989 and interpreted the results to show evidence of previous surgery at the L5-S1 level with evidence of scarring in the surgical area;
• an independent medical examination for the Alberta WCB on July 27, 1990 confirmed the 1969 discectomy and indicated that part of the current difficulties were related to this pre-existing problem;
• in a report dated August 22, 1990 a physical medicine and rehabilitation specialist in Alberta indicated that he had examined the claimant and felt his current clinical status was directly related to the Manitoba accident and surgery. He was further of the opinion that 5% of the claimant's disability was related to the Manitoba accident and 10% related to the Alberta accident;
• an orthopedic surgeon in a report dated July 27, 1990 indicated that some of the claimant's problems were related to an aggravation of a pre-existing situation and some of his problems were related to an old L5-S1 discectomy;
• in a report dated April 1, 1998 from an orthopedic surgeon in Alberta, who examined the claimant at the request of the Worker Advocate, reported that in his opinion the claimant deserved a clinical impairment award from the Manitoba WCB. He states:

" However, it is recognized that whenever disc surgery is carried out, patients do end up with some degree of permanent impairment and disability and recognition should be given to this. Therefore I believe this gentleman deserves an assessment of clinical impairment by the WCB of Manitoba."

We note from the evidence that the claimant was never examined for a PPD award by the Manitoba WCB with respect to the 1970 spinal surgery which had been accepted as WCB responsibility. In light of this and the evidence outlined above, the panel determined that the file should be referred to the WCB for the purpose of arranging for an examination of the claimant to determine, if possible, the degree of impairment related to the 1969 accident.

On January 8, 1999 a WCB Impairment Awards Medical Advisor provided the Appeal Commission with a response indicating that a comprehensive file review had been performed. She further indicated, based on a team meeting consisting of three impairment medical advisors, that an examination of the claimant would not assist in clarifying the issue any further in light of the comprehensive medical reports already on file with respect to the degree of impairment relating to the claimant's back condition.

The report of the WCB Impairment Awards Medical Advisor dated January 8, 1999 stated the following:

" Dr. ( medical advisor) and Dr. (medical advisor) agree that a 5% rating related to Mr. (the claimant's) 1969 L5-S1 discectomy would be reasonable even in the presence of reasonable function prior to his 1987 WCB of Alberta claim."

Based on the preponderance of medical evidence including the opinion of the WCB medical advisors the panel is of the opinion that the claimant would be entitled to a 5% PPD as a reasonable consequence of the L5-S1 surgical procedure. In reaching this conclusion we find that there is diagnostic and clinical evidence of degenerative changes involving the L5-S1 area which are consistent with the surgical procedure performed in 1970. Therefore the claimant's appeal is allowed.

The claimant's advocate has asked the panel to make a finding with respect to the effective date of the PPD award. As this is an issue which has not been adjudicated the file will be referred to the WCB in order that the effective date of the PPD award can be determined and implemented.

Panel Members

D.A. Vivian, Presiding Officer
A. Finkel, Commissioner
R. Frisken, Commissioner

Recording Secretary, B. Miller

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

Signed at Winnipeg this 16th day of February, 1999