The Appeal CommissionThe Workers Compensation Act of Manitoba

Issue #1 – Whether the worker is entitled to benefits beyond February 11, 2005

In determining whether a worker is entitled to benefits, the Panel is bound by the provisions of The Worker’s Compensation Act (the “Act”) and WCB policy.

Subsection 4(1) of the Act states:

“Where…personal injury by accident arising out of and in the course of the employment is caused to a worker, compensation as provided by this Part shall be paid by the board out of the accident fund…”

The WCB does not provide benefits for disablement resulting solely from the effects of a worker’s pre-existing condition as a pre-existing condition is not “personal injury by accident arising out of and in the course of employment”.

WCB policy 44.10.20.10 sets out a framework for assessing cases that involve pre-existing conditions, providing in Part A Section 1 as follows:

1. WAGE LOSS ELIGIBILITY

(a) Where a worker’s loss of earning capacity is caused in part by a compensable accident and in part by a non compensable pre-existing condition, or the relationship between them, the Worker’s Compensation Board will accept responsibility for the full injurious result of the accident.

(b) Where a worker has:

1) recovered from the workplace accident to the point that it is no longer contributing, to a material degree, to a loss of earning capacity, and

2) the pre-existing condition has not been enhanced[1] as a result of an accident arising out of and in the course of the employment, and

3) the pre-existing condition is not a compensable condition, the loss of earning capacity is not the responsibility of the WCB and benefits will not be paid.

Evidence concerning the progression of a pre-existing condition based on statistical norms, (such as those contained in standardized disability guides), or predictions based on the best available data, may be considered as evidence. However, where it is determined that the worker’s inability to work is a result of a compensable accident and evidence suggests, on a balance of probabilities, that the accident, or the accident in concert with the pre-existing condition, is causing the on-going loss of earning capacity the WCB would pay so long as the loss of earning capacity continues.

In the case at hand, the worker’s compensable injury was initially diagnosed as a lower back strain involving the right S1 nerve root with S1 radiculopathy. Possible disc involvement was noted and an MRI conducted on February 23, 2001 confirmed a small right disc herniation at the L5-S1 level. The WCB accepted the worker’s claim for compensation based on this diagnosis, however, it was noted that the worker also suffered from multiple pre-existing discopathies described in the CT scan as degenerative disc disease at the L4-L5 and L5-S1 levels accompanied by lower lumbar facet arthropathy as well as the presence of a right posterior lateral osteophyte at the L5-S1 level that involves the right S1 nerve root. It was the opinion of the WCB chiropractic advisor on December 8, 2000 that the worker’s pre-existing degenerative disc disease was affecting the worker’s recovery.

Given the evidence of the pre-existing degenerative condition that is non-compensable, the issue that the panel must determine is whether by February 11, 2005 the evidence indicates that on a balance of probabilities, the worker had recovered from his disc injury to the point that it was no longer contributing, to a material degree, to a loss of earning capacity.

After a careful review of all of the evidence on file and the evidence elicited at the hearing, the panel has concluded that on the balance of probabilities the worker has so recovered. The following medical evidence supports this determination:

• The MRI taken on February 23, 2001 confirmed that there was a small disc herniation and that in comparison to the earlier CT scan, it had decreased in size. The MRI stated that there was no definite displacement or compression of the right S1 nerve root, although it was slightly enlarged. The report raised the question of whether there was any clinical evidence of a right S1 radiculopathy;
• On March 22, 2001, the WCB chiropractic advisor noted that the worker’s condition was improving and the S1 radiculopathy was resolving;
• The MRI report of August 23, 2002 confirms that there is a very small disc herniation at the L5-S1 level. The report notes that disc material contacts the right S1 nerve root and there may be very mild compression or irritation of the right S1 nerve root. Again, clinical correlation is recommended;
• The rheumatologist’s report dated December 11, 2002 noted that the worker had advised that he had longstanding back pain since 1980 on an intermittent basis and had been off work for about two years in total with back pain in the 1980’s. On examination, the rheumatologist reported that the worker had full range of motion in his cervical lumbar spine and neurological examination revealed normal strength to the lumbar nerve roots;
• In a report dated January 24, 2003 from a sports medicine specialist it was noted that there were no signs of radiculopathy at that time;
• When examined on February 20, 2003 by the WCB physiatrist and WCB chiropractic advisor it was noted that there were no lumbosacral nerve root irritative symptoms and that straight leg raise testing was to 70° bilaterally (when tested on July 20, 2000 straight leg raise on the right was 50° and 85° on left). The worker advised that his lower back discomfort favours the right side but also extends to the left lumbosacral region. With respect to the evidence of diminished right ankle jerk, the report stated that this suggests an old nerve root injury, however, there was no evidence of weakness or sensory loss and that the worker’s history suggests very minor nerve root irritative symptoms. The report concluded that on clinical examination there were limited objective findings; subjective findings were only of very mild mechanical low back symptoms and there was good lumbosacral range of motion despite symptoms. There was no evidence of any significant lumbosacral nerve root compression;
• On November 25, 2004 it was the opinion of the WCB physiatrist that the worker’s lumbar disc injury with lumbar sacral nerve involvement had resolved as evidenced by the radiological studies showing disc shrinkage. The physiatrist points out that the worker’s back symptoms are more diffuse and that there were no specific mechanical findings. The physiatrist indicates that there was evidence of improvement in the range of movement and recovery from prior findings of facet irritability;
• An MRI taken on April 18, 2005 notes that the L5-S1 disc herniation compressing the S1 nerve root has improved since the previous MRI;
• On March 3, 2005 the worker was examined by a neurologist who noted that spinal movements were normal; percussion of the spine revealed no tenderness; there was no paraspinal muscles spasm or tenderness; straight leg raising test, Forsst maneuver and Kernig’s test were all normal bilaterally; and no weakness at any joint. There were no neurological defects detected apart from the absent right ankle jerk. EMG and nerve conduction studies done on March 14, 2005 showed no abnormality.

The above medical evidence leads the panel to conclude that the worker’s disc injury and associated nerve root irritation gradually resolved. In February 2001 the CT scan confirmed that the very small disc herniation had decreased. It was noted in January 2003 that S1 radiculopathy had resolved. By February 2003, the clinical evidence indicated very minor mechanical low back symptoms, good range of motion and no evidence of nerve root compression or irritative symptoms. The normal EMG and nerve conduction studies done in March 2005 and the lack of any neurological abnormalities apart from the absent right ankle jerk indicate to the panel that the worker had little if any continuing S1 nerve root symptoms relating to the workplace injury.

The worker advisor argued at the hearing that the evidence on the MRI scans of disc herniation and compression on the S1 nerve root and the absent right ankle reflex indicates that the compensable disc injury is contributing to the worker’s loss of earning capacity.

The panel disagrees with this conclusion, as the medical evidence also indicated that despite these findings, the worker did not have any ongoing clinical symptoms of nerve root compression or nerve root irritation. The absent right ankle reflex, while it may be associated with nerve root compression, is not a significant finding if the worker did not have any related clinical symptoms of compression or irritation that could contribute to a loss of earning capacity.

Further, the gradual improvement of the disc herniation noted on the MRI scans, the medical evidence that by February 2003 the worker had good range of motion and only very minor mechanical low back symptoms, and the March 2005 test results showing normal straight leg raises bilaterally suggests that the worker’s disc injury had resolved to the point where it was no longer contributing to a material degree to a loss of earning capacity.

The panel notes that there is evidence the worker had experienced significant back symptoms prior to the workplace injury. The worker testified at the hearing that in 1982 and 1983 he had back problems unrelated to any specific injury and which he described as a very sore back that required that he miss 18 months and a further 6 months of work while employed with another employer. He testified that at that time his back problems where related to either osteoarthritis or ankylosing spondylitis.

The worker’s history of ongoing back problems, which have become more diffuse involving other areas of his spine and left leg, are more probably related to the deterioration of his pre-existing degenerative disease and lower lumbar facet arthropathy. In addition, the medical evidence does not support a finding that the worker’s pre-existing degenerative condition was permanently enhanced by the workplace accident.

The panel therefore concludes on a balance of probabilities, that the worker’s inability to work is no longer a result of the workplace injury and he had, at least by February 11, 2005, recovered from his workplace accident to the point where it is no longer contributing to a material degree to a loss of earning capacity. Whether or not his pre-existing mastocytosis or degenerative disc disease are the cause of his ongoing broad range of symptoms does not affect the decision to deny compensation benefits, since both the pre-existing mastocytosis and degenerative disc disease are not related to the workplace accident and are not compensable.

The panel has therefore concluded that the worker is not entitled to compensation benefits and services beyond February 11, 2005.

Issue #2 - Whether the worker is entitled to reimbursement of tutorial services in the amount of $720.00

The file indicates that a WCB case manager initially authorized tutorial support on December 30, 2003 to assist the worker with his Spanish courses. On April 15, 2004, the worker submitted a request for reimbursement of tutorial costs that had been paid to a tutor for services provided during the months of February, March and April 2004. On April 27, 2004, the WCB case manager denied the request and the matter was referred to the Review Office for reconsideration.

In a letter dated January 18, 2005, the Review Office advised the worker that his request for reimbursement of tutorial costs could not be considered until further information in the form of receipts for services signed by the tutor were provided.

On January 25, 2005, the worker provided the Review Office with copies of four cancelled personal cheques he had written on February 28^th, March 15^th, March 29^th, and April 9, 2004 together with a list of the number of hours and dates that the services were provided during the months of February, March and April. The worker explained that the tutor had returned to her home in Mexico and he did not have any contact information for her.

In its June 17, 2005 decision, the Review Office denied the request for reimbursement noting that there were inconsistencies on file relating to whether the worker was enrolled in the specific courses for which he had requested tutorial assistance. The Review Office had contacted the university and the student union and was advised that neither had a listing on their tutor registry for the tutor named on the cheques. The Review Office determined that there was insufficient evidence provided by the worker to support the reimbursement of tutorial services in the amount of $720.00.

At the hearing, the worker testified that the WCB had left it to him to locate a tutor, that he had obtained the assistance of a student who had been referred by the course instructor to act as a tutor, that he advised the WCB that he had found a tutor and at no time had the WCB indicated that the tutor had to be a “registered tutor”. The worker testified that the WCB had paid for different tutors in the past without invoices and receipts and that he had always used students who were referred to him by the respective instructor.

The worker testified that he had engaged four different tutors during his studies and that the WCB had paid the first tutor directly based solely on the worker advising the WCB of the number of hours and amount owed. For the subsequent tutors the WCB had reimbursed the worker for payments he made directly to the tutors again based solely on his advising the WCB of the hours involved and the amount he had paid the tutor. The WCB had not asked the worker to provide invoices or receipts from the tutors.

The file contains a letter dated July 23, 2004 written by the worker to his WCB case manager requesting reimbursement for tutorial services provided for the period of April 19 - 23 listing the hours, rate of pay and total fee of $375. The file also indicates that the worker was reimbursed for this payment, notwithstanding that no invoice or receipt was provided from the tutor. The worker testified that the name he called the tutor was different from her legal name and was the same person listed on the cancelled cheques. The worker explained that he prepared the cheques leaving the name for the tutor to fill in and in this case the tutor had filled in her legal name, but that they were one and the same person. The panel also examined the personal cheques and confirmed that they were in fact cashed/cancelled.

The worker also explained that the disputed tutorial services related to assistance he needed to complete an intermediate Spanish course that had been deferred and for which he was not attending class but was completing self-directed assignments on his own for the months of February and March as well as for an oral Spanish course that he had been attending from January 2004 to April 2004.

The panel is of the view, in light of the ongoing WCB authorization for tutorial assistance during the period in question; WCB’s administrative practice of reimbursing the worker without requiring invoices or receipts; the fact that tutorial support as required was included in the worker’s vocational rehabilitation plan and the credible explanation provided by the worker indicating that he was taking two academic courses during the time in question and required tutorial assistance to complete them successfully, that there is sufficient evidence to support the worker’s request for reimbursement. The worker is therefore entitled to reimbursement for tutorial services in the amount of $720.00.