The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

This appeal deals with the relationship between the worker’s pre-existing condition and two workplace injuries. It also deals with the worker’s entitlement to further preventive vocational rehabilitation. The worker was injured in 1998 and again in 2000. He applied to the Workers Compensation Board (WCB). Both claims were accepted and benefits were paid. It was subsequently determined that the worker had recovered from the workplace injuries. He was then provided with preventive vocational rehabilitation services and benefits. Difficulties arose with the vocational rehabilitation plan resulting with the suspension of the plan and benefits. The worker appealed the decision to the WCB Review Office which upheld the primary level decision. The worker then appealed to the Appeal Commission.

An appeal panel hearing was held on September 13, 2006, at the request of a worker advisor, acting on behalf of the worker. The panel discussed this appeal following the hearing.

Issue

October 7, 1998 claim:

Whether or not a causal relationship exists between the worker’s right hip difficulties, which led to arthroplasty, and his low back injury of October 7, 1998.

February 28, 2000 claim:

Whether or not the worker had recovered from the effects of the February 20, 2000 injury by June 5, 2001;

Whether or not wage loss benefits should have been suspended as of March 7, 2003; and

Whether or not further Preventive Vocational Rehabilitation Services should be offered.

Decision

October 7, 1998 claim:

That there is no causal relationship exists between the worker’s right hip difficulties, which led to arthroplasty, and his low back injury of October 7, 1998.

February 28, 2000 claim:

That the worker had recovered from the effects of the February 20, 2000 injury by June 5, 2001;

That wage loss benefits should have been suspended as of March 7, 2003; and

That further Preventive Vocational Rehabilitation Services should not be offered.

Decision: Unanimous

Background

October 7, 1998 claim:

The worker was unloading a large picture window off a truck with his boss which necessitated the worker to twist at his waist which caused a sharp pain in his lower back. The worker sought treatment from a chiropractor for his back difficulties on October 13, 1998. The diagnosis rendered was an acute lumbar disc facet syndrome.

On October 19, 1998, chiropractic x-rays were taken of the worker’s lumbosacral spine and right hip region. The radiological report related to the lumbosacral spine indicated “Discopathy L5 with osteoarthritic changes. Anomalous and asymmetric facets. Very minor thoraco-lumbar scoliosis.” The radiological report pertaining to the right hip indicated “Osteoarthrosis of the right hip joint. Facet asymmetry. Pelvic unleveling and apparent scoliosis.”

On November 26, 1998, the chiropractor discharged the worker from treatment and the worker returned to work on November 29, 1998.

February 28, 2000 claim:

The worker was moving a large heavy object at work on February 28, 2000 when he experienced back, hip and groin pain.

Following the accident, the worker attended a general practitioner and a chiropractor for treatment. The worker was diagnosed with a lumbar strain and a possible right inguinal hernia by the attending physician. The chiropractor’s diagnosis was an acute right groin pull and a lumbar strain/sprain.

An earlier x-ray of the right hip dated December 14, 1999 noted mild osteoarthritic changes with superolateral joint space loss. There was a right osteophyte about the femoral neck. No other significant bone or joint abnormality was seen.

An x-ray of the lumbosacral spine dated March 14, 2000 noted scoliosis convex to the right and five lumbar type vertebrae. Alignment was otherwise noted to be within normal limits. Disc space narrowing was noted at the L5-S1 level with minor anterior lipping. Vertebral heights were otherwise preserved. Pedicles were intact.

Follow-up medical reports showed that the worker’s pain complaints were worsening and he was referred for physiotherapy treatment and to an orthopaedic surgeon. On May 8, 2000, the worker was examined by a WCB physiotherapy consultant to further assess his back and hip complaints and to determine whether physiotherapy should continue.

The examining WCB physiotherapy consultant noted that the worker expressed complaints of ongoing hip pain which was becoming worse on a daily basis. Following discussion with a WCB medical advisor, a possible pathological fracture was suggested and a bone scan was scheduled.

A report was received from an orthopaedic surgeon dated June 7, 2000. He noted that the worker had a history of right hip dislocation at the age of 16 treated by the insertion of pins. The worker said that he had symptoms off and on throughout the years but nothing severe until the recent injury. The orthopaedic surgeon reported that he reviewed a lumbar spine CT scan that took place on May 31, 2000. The specialist presumed that the worker’s hip condition arose out of a slipped epiphysis, and that the worker may be a candidate for joint replacement. Because of the worker’s age, the surgeon felt it would be better for the worker to continue with anti-inflammatory medication for as long as possible.

In a follow-up report dated August 9, 2000, the orthopaedic surgeon reported that the worker complained of persistent low back and right groin pain. He commented, “It is possible that the workplace injury caused an aggravation of the condition of degenerative osteoarthritis of the right hip which may improve in time…”.

In an October, 2000 report, a physical medicine and rehabilitation specialist commented as follows after his examination of the worker: “Impression is that he has osteoarthritis of his right hip with pain, which is a major problem and is limiting all of his functions. In addition, he has degenerative disk disease but with no evidence of radiculopathy…”.

In a November 7, 2000 report from a different orthopaedic surgeon, it was expressed that the worker had findings consistent with degenerative changes of his right hip.

On March 9, 2001, a WCB orthopaedic consultant reviewed the file evidence and commented that the worker had degenerative osteoarthritis of his right hip likely due to a slipped epiphysis. The worker also had degenerative disc disease of L5-S1. He noted that osteoarthritis was seen on x-rays in December 1999 which was before the work related injury.

On May 29, 2001, it was determined by the WCB case manager that the worker’s ongoing difficulties were related to his pre-existing conditions of osteoarthritis to the hip and degenerative disc disease. It was felt that the worker had recovered from the effects of his February 28, 2000 compensable accident and that wage loss benefits would be paid to June 4, 2001 inclusive and final.

The WCB later determined that the worker qualified for preventive rehabilitation based on his pattern of injury while employed in the carpentry field. Effective November 1, 2001, the worker began receiving preventive vocational rehabilitation benefits.

On February 28, 2003, a WCB vocational rehabilitation consultant suspended the worker’s preventive vocational rehabilitation benefits effective March 7, 2003 as it was felt that he was not fully participating in his vocational rehabilitation program.

In a report from his treating physician dated April 29, 2003, it was indicated that the worker was undergoing arthroplasty surgery due to the severe osteoarthritis of his right hip. He said that the worker’s osteoarthritis was from genetic and environmental factors. He stated, “Certainly recent events such as motor vehicle accident or previous work conditions may have made this worse.”

In a submission dated July 22, 2003, the worker referred to the evidence provided by his treating physician and chiropractor. He stated that his back and hip injuries were a result of his work environment and that he had not fully recovered from his injuries. He indicated that he had a total hip replacement and has not felt any of the great pain that he had in his groin area since his February 2000 claim. His back continued to bother him. The worker requested that he be allowed to continue with his vocational rehabilitation program.

On August 27, 2003, a WCB medical advisor reviewed the file evidence and outlined his opinion that the worker’s right hip/lower back difficulties remained unrelated to his compensable injury and that the compensable injury did not enhance his pre-existing condition. Based on the medical advisor’s opinion, the worker was informed on September 5, 2003 that no reversal would be made to the original decision dated May 29, 2001.

On September 12, 2003, the case manager informed the worker that preventative vocational rehabilitation services would not be offered as the original goals in his vocational rehabilitation plan could no longer be met because the funds required or allocated to finish the plan were no longer available. This was due to the worker’s absenteeism from school which increased the rehabilitation claim costs on this file.

The case was considered by Review Office on October 17, 2003. It was determined that the medical evidence did not provide any clinical objective evidence that the worker’s underlying pre-existing degenerative conditions in his low back and right hip had been enhanced by his February 20, 2000 injury. Review Office noted that the worker had problems with his low back and right hip which pre-dated his February 20, 2000 compensable injury based on the x-ray results of December 14, 1999.

Review Office also felt that the decision to suspend the worker’s wage loss benefits on March 7, 2003 was justified given that he was warned on a number of occasions regarding his poor attendance at school.

With regard to further preventive vocational rehabilitation benefits, Review Office agreed that the worker was not cooperating with his plan and that WCB staff were correct in their implementation of the guidelines explained in WCB policy 43.10.60 (Preventive Vocational Rehabilitation) regarding the potential for suspension of benefits.

A report was received from the worker’s orthopaedic surgeon dated June 23, 2004 which was in response to questions posed to him by a worker advisor. In part, the orthopaedic surgeon stated,

“It is my opinion that the injury the patient sustained at work did result in the patient having surgery at an earlier date. It is my opinion that the patient would have had a right total hip arthroplasty in the future even if he did not have that injury. It is my opinion however that the injury did accelerate the symptoms from the degenerative changes of his hip, and therefore did precipitate surgery at an earlier date. The patient’s ongoing symptoms and recent surgery therefore are related to his workplace injury.”

On August 30, 2004, the same orthopaedic surgeon responded to a letter written by Review Office on July 28, 2004. He stated, in part, “After review of this patient today it raises the question whether the aggravation of the osteoarthritic changes of his hip were initially precipitated by the injury at work of October 7, 1998. That would be consistent with you mentioning that the patient had approximately one and half years of low back pain and hip pain preceding the compensable injury of February 20, 2000.”

In light of the comments expressed by the orthopaedic surgeon, the file was returned to primary adjudication for consideration.

On November 5, 2004, the worker told his WCB case manager that his right hip problems started after his 1998 work place injury. He said his symptoms started in his groin and over time progressively became worse. He said he had no medical treatment for any hip problem between his 1998 and 2000 claims. He had not had any hip pain since his hip replacement in July 2003 and that his lower back still bothered him on occasion. The case manager then wrote to the orthopaedic surgeon and asked him to comment on whether or not he felt that there was a cause and effect relationship between the worker’s right hip difficulties and the injury he sustained in 1998.

On April 4, 2005, the orthopaedic surgeon provided the case manager with the following opinions:

• the pulled groin mentioned by the worker to his family physician was in fact an injury to the hip joint;
• the October 7, 1998 accident may well have aggravated the osteoarthritic changes of the hip. The worker did have some back problems but also hip problems. The worker gave a clear history of problems with his hip following that particular injury;
• the injury the worker had on October 7, 1998 may well have precipitated a total hip arthroplasty at an earlier date.

The worker was informed on April 21, 2005, that after considering all the information, it was the WCB’s opinion that he had recovered from his 1998 workplace injury and that his ongoing difficulties would not be related to this claim. It was unable to support that the previous workplace injury of 1998 caused any permanent changes to his right hip that would have precipitated a total hip arthroplasty. The report from the orthopaedic surgeon did not provide any new medical evidence. This decision was appealed by a worker advisor on June 23, 2005 and the case was referred to Review Office.

Prior to considering the worker advisor’s appeal, Review Office referred the case to a WCB orthopaedic consultant to review the medical information and to provide an opinion as to a possible relationship between the 1998 work injuries and the worker’s right hip symptoms leading to arthroplasty.

On August 24, 2005, the WCB orthopaedic consultant indicated that the worker was treated for low back symptoms under his 1998 claim rather than for a right hip condition. He stated that the worker had hip and back symptoms following the February 20, 2000 accident but also had prior hip symptoms relating to pre-existing osteoarthritis of the right hip unrelated to either accident. He opined that neither compensable injury led to the resultant hip arthroplasty.

In a decision dated August 24, 2005, Review Office confirmed that a cause and effect relationship did not exist between the worker’s right hip difficulties which led to arthroplasty and his low back injury of October 7, 1998. Review Office indicated that the majority of the worker’s complaints to his chiropractor under the 1998 claim were related to his low back symptoms. Review Office was of the opinion that the worker’s degenerative osteoarthritic right hip continued to deteriorate and eventually led to the arthroplasty.

On December 30, 2005, a different worker advisor asked Review Office to reconsider its previous decisions. The worker advisor outlined his position that the worker’s 1998 and 2000 claims were responsible for the worker’s right hip complaints leading to surgery.

Following review of all the evidence on both claims, Review Office stated on February 28, 2006 that it could not rescind its prior decisions. The worker advisor subsequently appealed Review Office’s decisions on both the worker’s 1998 and 2000 claims and an oral hearing was arranged.

Reasons

Applicable Legislation and Policy

In this case the worker is seeking wage loss benefits. Under The Worker's Compensation Act (the Act), the worker is entitled to wage loss benefits if he has a loss of earning capacity caused by the workplace injury. In general terms, if the worker is unable to work or suffers a partial loss of income as a result of the workplace injury, wage loss benefits are payable. Applicable provisions include subsections 4(2), 39(1) and 39(2).

Where the worker has a pre-existing condition, as in this case, wage loss benefits may be payable under the WCB’s pre-existing condition policy, No. 44.10.20.10.

The worker was in receipt of preventive vocational rehabilitation benefits. These benefits are paid in accordance with WCB’s preventive vocational rehabilitation policy, No. 43.10.60.

Worker’s Position

The worker attended the hearing with a worker advisor who made a presentation on his behalf. The worker answered questions posed by his representative and the panel.

The worker’s representative outlined the worker’s position on the issues before the panel. He submitted that the worker did not recover from the workplace injuries. Regarding the relationship between the workplace injuries and the worker’s pre-existing hip condition, the worker’s representative submitted that the 1998 workplace injury aggravated the worker’s hip and that the 2000 workplace injury accelerated it to the point where the worker needed surgery. He submitted further that because the worker had not recovered from the injuries and their effect on his hip condition, the work restrictions placed on the worker were compensable rather than preventive. This in turn meant that the worker should have been provided with appropriate vocational rehabilitation benefits and not be subject to the limits of the preventive vocational rehabilitation policy.

The worker’s representative referred to the opinion of the worker’s treating orthopedic surgeon in support of this position. He stated that “…our interpretation of his comments is that he was attempting to explain that the 1998 claim aggravated the degenerative condition and that the 2000 claim accelerated it to the point where he needed the surgery…”. The representative asked the panel to accept the orthopedic surgeon’s opinion and noted that he had treated the worker’s condition since 2000 and performed the surgery on the worker’s hip, unlike the WCB medical consultants who only reviewed the worker’s files.

The worker advised that he injured his hip when he was 16 years old. He stated that he had surgery which included the insertion of four three-and-a-half-inch pins and traction for six weeks. He advises that the hip did not bother him again until the time of the 1998 workplace injury. He advised that he injured both his back and hip in 1998, although he first thought he injured his groin and was not aware of the hip injury. He advised that he was treated by a chiropractor but the chiropractor did not treat the groin injury. He also advised that prior to the 1998 injury he had a lower back problem but that he did not have groin pain.

With respect to the 2000 injury, the worker advised that he may have told his new employer that his lower back and hip were problems. He advised that while moving a heavy glass case he experienced a “huge shooting pain in my groin and my lower back, and it even shot down my leg.”

The worker advised that he had problems with the vocational rehabilitation plan because he was missing time. He had trouble getting around the school due to the stairs and hallways. His hip was also causing pain and he was taking medications which upset his stomach.

Regarding his hip condition, the worker advised that he had a hip replacement in July 2003. He advised that the orthopedic surgeon told him that his hip “…just degenerated to the point … it was time for the hip replacement.” The worker advised that since this surgery he has not had any sharp groin pain although his hip gets sore if it has been overworked.

The worker advised that since the surgery, he has obtained his fifth class engineer’s papers and has been employed with the same employer for more than a year. The worker described his current work as physical.

Analysis

October 7, 1998 claim:

The first issue before the panel is whether or not a causal relationship exists between the worker’s right hip difficulties, which led to arthroplasty, and his low back injury of October 7, 1998. The worker’s representative had argued that the worker’s pre-existing hip condition had been aggravated by the 1998 workplace injury. The panel was not able to agree with this position.

The panel finds, on a balance of probabilities, that the 1998 workplace injury did not aggravate or enhance the worker’s pre-existing hip problem. The panel notes that in his report of injury the worker refers to “lower back, left sided” injury. The panel also notes that the worker was treated by a chiropractor for the 1998 workplace injury. The treatment appears to be primarily aimed at the worker’s lower back. At the hearing the worker confirmed that the chiropractor did not treat his hip condition.

The panel considered that if the worker’s hip had been injured by the 1998 workplace injury, the worker would have reported and sought treatment for the injury along with treatment for his lower back. The panel finds that the hip problem is not causally related to the 1998 workplace injury for the reasons noted above.

The panel was unable to attach weight to the opinion of the treating orthopedic surgeon which is relied upon by the worker. The panel notes in a report dated April 4, 2005 the surgeon’s comments about the 1998 injury that “The patient may well have sustained an injury to his hip in that same accident.” He goes on to state that the 1998 injury “…may well have aggravated the osteoarthritic changes of the hip.” He further comments that the 1998 injury “…may well have precipitated a total hip arthroplasty at an earlier date.” The panel finds the opinion to be speculative and that the weight of evidence does not support that the 1998 injury aggravated or enhanced the worker’s hip condition.

February 28, 2000 claim:

The second issue is whether the worker had recovered from the effects of the February 20, 2000 injury by June 5, 2001. The worker’s representative had argued that the worker’s pre-existing hip condition had been enhanced by the 2000 workplace injury and that the worker’s hip surgery was due to the enhancement.

The panel is not able to agree with this position and finds, on a balance of probabilities, that the worker recovered from the workplace injury by June 5, 2001 and that the ongoing symptoms and resulting surgery were not due to the workplace injury. The panel finds that the evidence does not support a finding that an enhancement occurred. The panel reached this conclusion for the following reasons:

-in December 1999, more than two months prior to the 2000 workplace injury the worker was sent for an x-ray which showed osteoarthritic changes to the hip. The panel notes that the worker clearly had a hip condition which warranted investigation before the 2000 workplace injury occurred.

-report of an orthopedic specialist dated June 7, 2000. The specialist notes that the worker indicated that he had hip symptoms off and on through the years. Three years before the surgery this specialist commented that “I presume the hip condition arose out of a slipped epiphysis, and he is becoming increasingly symptomatic and may well be a candidate for joint replacement…”.

-the opinion of the WCB’s orthopedic consultant that neither compensable injury led to the resultant hip arthroplasty.

As noted under issue one, the panel was unable to attach weight to the treating orthopedic surgeon’s opinion regarding enhancement as the panel considers the opinion to be speculative, and based on an erroneous understanding of the worker’s medical history and chronology.

Vocational Rehabilitation Issues

The third and fourth issues deal with the worker’s entitlement to vocational rehabilitation benefits. The worker’s representative argued that the worker had not recovered from the workplace injuries and that he should have been provided with on-going benefits, including vocational rehabilitation benefits, on the basis of his loss of earning capacity resulting from the workplace injuries rather than discretionary preventative vocational rehabilitation benefits. The panel does not accept this position for the reasons noted under issue one and two above.

Dealing with the third issue which is concerned with whether the worker’s wage loss benefits should have been suspended as of March 7, 2003, the panel finds that the worker’s benefits were properly suspended by the WCB as of March 7, 2003 due to a lack of cooperation by the worker. Examples of the lack of cooperation include the worker’s significant absenteeism from the program and his failure to advise the WCB that he had been involved in a motor vehicle accident. On-going eligibility in the preventive vocational rehabilitation program was dependant on the worker’s cooperation and participation in the plan.

The fourth issue was whether further preventative vocational rehabilitation services should be offered. The panel has considered this request and has found that the worker is no longer eligible for such services. The panel notes that the worker has undergone hip surgery and that the main condition which contributed created to his need for preventive benefits has been removed. The panel also notes that subsequent to the surgery the worker obtained his fifth class engineer certificate. The panel finds that the worker has been rehabilitated through his own efforts and is currently employed.

The worker’s appeal on all issues is declined.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Kosc

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

Signed at Winnipeg this 3rd day of November, 2006