Decision #04/08 - Type: Workers Compensation
Preamble
A hearing was held via teleconference on November 21, 2007 at the worker’s request.Issue
Whether or not the worker’s back complaints are related to the September 1974 compensable injury; and
Whether or not it was appropriate to implement the worker’s deemed post accident earning capacity of minimum wage for a 40 hour week effective September 25, 2003.
Decision
That the worker’s back complaints are not related to the September 1974 compensable injury; and
That it was appropriate to implement the worker’s deemed post accident earning capacity of minimum wage for a 40 hour week effective September 25, 2003.
Decision: Unanimous
Background
During the course of his employment as an ironworker on September 2, 1974, the worker fell approximately 20 feet onto cement and rebar and was diagnosed with a compound comminuted fracture of his left tibia and fibula, a perforating wound in his right thigh, a laceration to his forehead and a tear to the internal ligament of his left knee. By June of 1975, it was determined that the worker had recovered from his compensable accident except for some weakness of his left quadricep.
Subsequent file records revealed that the worker attempted to return to work as an iron worker but did not continue at this occupation. He then obtained jobs in a variety of positions but ultimately desired to work in the journalism field.
In 1987/1988, the worker advised the WCB that he was experiencing problems with his back which he related to his compensable injury. In order to determine its responsibility in this regard, the WCB obtained medical information from the worker’s treating chiropractor dated February 23, 1988. The chiropractor noted that the worker attended his office in July 1987 with complaints of constant low back pain which progressed over the years following convalescences from his 1974 compensable accident. The diagnosis rendered was degenerative hypertrophic spondylitis localized to the lumbar region.
The WCB obtained a report from a general practitioner dated February 22, 1988. The physician indicated that the worker was seen in June 1985 with pain in his back and his knee since the 1974 injury. He noted that x-rays confirmed moderate to marked osteoarthritis and intervertebral disc disease at the L5-S1 level. He stated that in due time, the worker may develop more symptoms with his L5-S1 intervertebral disc.
On January 22, 1990, an orthopaedic specialist commented that the worker was seen for back, hips, left knee and right thigh complaints. He stated the worker suffered from degenerative disc disease of the lumbar spine.
In a letter dated March 31, 1988, a WCB claims officer advised the worker that the WCB was unable to accept any responsibility for his current back complaints as he did not sustain an injury to his back at the time of his September 1974 accident.
In September 2003, the worker asked the WCB to review his permanent partial disability (PPD) as he felt that his knee/leg had deteriorated since his last examination. On February 25, 2004, the worker was advised that he was entitled to a lump sum settlement based on an impairment rating of 8%.
On May 10, 2004, the worker requested reconsideration of his PPD award on the basis that his left leg was shorter than his right and that it placed stress on his back and hips when walking. The worker also appealed the decision that his back complaints were not related to his 1974 compensable accident.
A WCB Review Officer spoke with the worker on August 4, 2004. The worker indicated that he was looking for financial compensation as he considered the vocational rehabilitation program he was provided with in the mid-1970’s was not appropriate and that he lost considerable income over the years from not being able to work as an iron worker. Review Office then referred the case back to primary adjudication to determine whether the worker was entitled to wage loss benefits and whether he was entitled to temporary total disability (TTD) benefits as a result of his left knee arthroscopy that was done on April 8, 2004.
On November 22, 2004, a WCB case manager advised the worker that he was not entitled to any retroactive payment of wage loss or vocational assistance prior to April 2004 as he had been provided with sufficient vocational supports post-accident that was consistent with the WCB Act and policies in that time period. The worker was advised that he was entitled to wage loss benefits during the period April 8 to July 12, 2004 during which time he underwent surgery for his left knee condition. He was not entitled to vocational rehabilitation services following his April 8, 2004 surgery.
In a decision dated January 13, 2005, Review Office determined that the worker’s back complaints were not related to his September 1974 accident but were due to degenerative changes of his lumbosacral spine. It noted that the worker had multiple site degeneration which suggested to Review Office that it was naturally occurring and was not the result of the 1974 fall. Review Office did not accept that the worker’s leg length discrepancy caused degenerative disc disease.
Review Office also determined that the vocational rehabilitation assistance that the worker received in the 1970’s and in the 1980’s was in keeping with WCB’s policies and practices of the times and therefore he was not entitled to further benefits for that time period. Review Office determined that the worker could be entitled to vocational rehabilitation assistance commencing September 25, 2003 if his current earning capacity was less than $607.85 per week (his pre-accident earnings). It directed that the case be referred back to primary adjudication to make a determination on this issue.
On May 12, 2005, the worker was advised by a WCB vocational rehabilitation consultant and WCB case manager that his earning capacity had been established at $675.00 a week based on NOC 4123 - Journalism. As this exceeded his pre-accident wages indexed forward of $607.85 a week, he was not entitled to any further vocational rehabilitation benefits. This decision was appealed by the worker to Review Office.
On July 27, 2005, Review Office determined that the worker’s post-accident earning capacity should not be $675.00 per week. It stated in its decision that it had not been established that the requirements for the implementation of a deem as set out in Policy 44.80.30.20, Post accident Earnings – Deemed Earning Capacity, had been met. It indicated that $675.00 per week was an average and the worker was not capable of competing for jobs at the higher end of the scale. At best, the worker’s current earning capacity was $462.00 which was what he was being paid at his current position. Review Office further noted that the worker was currently involved in a work experience as a reporter and that once this was completed, an opinion should be obtained from the employer as to the worker’s employability in NOC 5123.
On October 27, 2005 (per memo dated November 1, 2005), the VRC spoke with the work experience employer who indicated that the worker would not be offered a journalism position with the paper. On November 17, 2005, a WCB case manager informed the worker that he would not have an earning capacity within NOC 5123 – Journalism, and that his earning capacity would be best represented by minimum wage in the province of Saskatchewan. Effective September 25, 2003, his earning capacity was the province of Saskatchewan’s minimum wage. He would be entitled to “top up” from that wage level to his indexed pre-accident earnings of $607.85. The worker disagreed and appealed to Review Office.
On April 20, 2006, Review Office determined that a retroactive to September 25, 2003 deemed post accident earning capacity of minimum wage for a 40 hour work week should have been implemented. Review Office indicated that the worker had the skills and physical ability to work at minimum wage on a full time basis. It considered that the implementation of a minimum wage deem was consistent with WCB practice in circumstances such as the worker’s.
On August 29, 2007, the worker appealed the decisions made by Review Office to deny responsibility for his lower back problems and to implement a deem effective September 25, 2003. A hearing via teleconference was arranged for November 21, 2007.
Reasons
Applicable Legislation and Policy
The Appeal Commission is bound by The Workers Compensation Act (the Act) and the policies of the WCB’s Board of Directors.
Subsection 4(1) of the Act as it existed in 1974 provided that where a worker is disabled by a workplace accident, compensation is payable during the period that the worker is disabled. Subsection 24(16) of the Act provided that vocational training may be provided for injured workers whose earning capacity is permanently impaired. Subsection 24(21) provided that the WCB may take such measures as it deemed necessary to aid in getting injured workers back to work.
WCB Policy 43.00, Vocational Rehabilitation, made in 1994 is applicable to all decisions on claims made on or after October 1, 1994. The purpose of this policy is to explain the goals and describe the terms and conditions of academic, vocational, and rehabilitative assistance available to workers.
Worker’s Position
The hearing proceeded by telephone conference call. The worker explained his position and answered questions posed by the panel.
Issue 1:
Issue 1: Whether the worker’s back complaints are related to the September 1974 compensable injury.
Regarding the first issue, the worker noted that a chiropractor wrote to the WCB in 1988 and again 2003 indicating that the worker’s back problem was related to his 1974 workplace injury. The worker noted that the WCB ignored the 1988 report.
When asked what is causing his current back problem, the worker responded that he believes it is caused “…when you’re walking your hips are thrown out because of the limp, and over the years it causes the stress, causes the…muscle spasms.”
With respect to whether the back injury occurred in 1974, the worker indicated that it could have occurred in 1974. He advised that he was medicated and on his back for over a month and then his left leg was in an open cast for two or three weeks. He thought that he could have had a soft tissue injury at that time. He acknowledged that he did not receive any treatment for his back and had no back spasms at that time or in the years immediately following.
He advised that the current diagnosis for his back is osteoarthritis and a disc problem.
The worker advised that he believes his limp started after he left the hospital in 1975. In response to a question regarding a physician’s report dated May 15, 1975 which indicated that the worker was walking without a limp, the worker advised that the limp began right after he left the physician’s office. The worker confirmed that the first medical treatment he received for his back was provided by a chiropractor in 1986 or 1987. He noted that he received treatment from a chiropractor in 1987 and 1988, and again many years later.
Analysis
The issue before the panel was whether the worker’s back complaints are related to the September 1974 compensable injury. For the worker’s appeal to succeed, the panel must find that the September 1974 compensable injury caused the back condition. The panel was not able to make this finding. The panel finds, on a balance of probabilities, that the worker’s back condition and resulting complaints are not related to the September 1974 workplace injury.
The panel notes that a treating chiropractor advanced a theory that the worker sustained a soft tissue injury to the low lumbar spine that over the years has contributed to his back condition. The chiropractor also commented that the worker’s symptoms have been progressing for several years to the degree that he had to depend on a cane in an effort to sustain his weight bearing. The chiropractor comments that the worker’s back pain commenced upon the worker’s return to work.
In considering this issue, the panel notes the worker’s evidence that he first sought treatment for the back injury in 1986 or 1987 and that the chiropractor who provided the report did not treat the worker for his back complaints until 1987. This is more than a decade after the compensable injury. The panel also notes the worker’s report of accident and medical records at the time of the injury do not indicate that the worker suffered a back injury. As well, a medical report from 1975 indicates that the worker did not have a limp. This evidence is not consistent with an injury having occurred in 1974. The evidence does not support the history provided to the chiropractor of back pain upon the worker’s return to work.
The panel also notes that x-rays obtained by the chiropractor showed evidence of “L5-S1 disc narrow with moderate osteoarthritic changes at the same level.” The diagnosis provided was degenerative hypertrophic spondylitis localized to the lumbar region. The panel also notes that the worker was seen by a specialist who reported on January 22, 1990 that the worker’s “back pain is on the basis of degenerative disc disease of the lumbar spine.” The panel finds, on a balance of probabilities, that the evidence does not link this diagnosis to the worker’s 1974 compensable injury. The panel also finds that the evidence does not establish that the worker’s degenerative condition has been accelerated or enhanced by his compensable injury.
The worker’s appeal of this issue is denied.
Issue 2:
Issue 2: Whether it was appropriate to implement the worker’s deemed post accident earning capacity of minimum wage for a 40 hour week effective September 25, 2003.
The worker confirmed at the hearing that he was only seeking an adjustment of the date on which the deemed earning capacity was made effective. He confirmed that he was not challenging other aspects of the Review Office decision, such as; the determination that he could work full-time at minimum wage.
The worker submitted that the period of deemed post accident earning capacity should be made retroactive to an earlier date. He indicated that the WCB should have provided vocational rehabilitation before September 2003. When asked to identify an appropriate date the worker responded, in part:
“…they should have helped me in 1988 when [the chiropractor] wrote a letter or whatever, or they should have helped me in 1983 when I left [the newspaper]. And my mind keeps going right back to the accident, because that’s where – the treatment had been consistent back to the accident.”
The worker described his interactions with the WCB since his 1974 injury. He also described the services and benefits provided by the WCB and the requests for assistance that were denied or ignored by the WCB.
The worker advised the panel of the various jobs he worked at since the 1974 injury. He attempted to return to work as an iron worker but was not able to continue to do this. He tried working as a reporter for small newspapers, editor of a newsletter, security guard, and door to door salesperson. He also tried working with young offenders and at one point established his own newspaper.
The worker advised the panel of the attempts he made to be retrained as a journalist. He advised that he had two years of university education at the time of the injury and wanted to study journalism. He found employment working for small papers in rural areas. In addition to writing articles for newspapers he also wrote two novels, one of which has been published.
He advised that he is currently working part-time as a commissionaire and acknowledged that it is his personal preference to work part-time. He also acknowledged that prior to being deemed, he was likely earning the minimum wage.
Analysis
The worker has confirmed that he is only requesting a change to the effective date of the deemed post accident earning capacity which was September 25, 2003. For his appeal to be successful, the panel must find that the WCB should have implemented a deemed earning capacity at an earlier date, as vocational rehabilitation benefits (a discretionary remedy in the Act) can only be provided where there is ongoing wage loss as a result of the accident. This finding would then allow the panel to consider entitlement to vocational rehabilitation. The panel, however, was not able to make such a finding.
The worker argued that he should have been provided with vocational rehabilitation assistance when his benefits were first terminated. He noted that instead, he was sent back to work as an iron worker. A review of the information on the file at that time suggests that the worker was able to return to work to his pre-accident job and to his pre-accident wages. The panel notes the opinion of the WCB medical advisor dated May 29, 1975 and June 10, 1975. As well, a Doctor’s Discharge Report, dated June 23, 1975, completed by the worker’s treating physician indicates that he can return to work without restrictions. The panel is not able to find that the worker was entitled to benefits in the period following his medical discharge.
The panel notes that at various times since the injury the worker had contact with the WCB and received further benefits and assistance. While the benefits and assistance provided do not match the level or array that are provided to injured workers today, the panel finds they were in keeping with the WCB’s practices and exercise of its discretion at the time.
The panel notes that the Review Office selected September 25, 2003 as this was the date on which the worker had contact with the WCB and requested assistance. (this followed the receipt of a medical report in June 2003 seeking an assessment of the worker). The panel considers this is a reasonable date. The panel notes that prior to this date and for much of the time after the injury, the worker pursued a career as a journalist and as a novelist and in doing so, removed himself from any serious opportunity for re-employment and rehabilitation. The panel notes that these career changes were instigated by the worker on his own accord, originally, and not as a consequence of his 1974 compensable injury. As such, any loss of wages (and potential entitlement to vocational rehabilitation benefits) were as a result of the worker’s personal actions, which would not be the responsibility of the WCB. When he contacted the WCB in 2003, his claim was considered in light of current vocational rehabilitation practices and current WCB policy and further benefits were provided.
The worker’s appeal of this issue is declined.
Panel Members
A. Scramstad, Presiding OfficerA. Finkel, Commissioner
L. Butler, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
Signed at Winnipeg this 8th day of January, 2008