Decision #149/08 - Type: Workers Compensation

Preamble

The worker filed a claim with Workers Compensation Board (“WCB”) for a back injury that occurred at work on November 14, 1983. The claim for compensation was accepted and the worker was paid benefits. In April 2008, it was determined by primary adjudication that the worker was not entitled to wage loss benefits beyond November 7, 1988 nor was he entitled to a permanent partial disability award. This decision was confirmed by Review Office on June 18, 2008. The worker disagreed and filed an application to appeal with the Appeal Commission through the Worker Advisor Office. A hearing via teleconference was held on October 2, 2008 to consider the issues.

Issue

Whether or not the worker is entitled to temporary total disability benefits beyond November 7, 1988; and

Whether or not the worker is entitled to a permanent partial disability award.

Decision

That the worker is not entitled to temporary total disability benefits beyond November 7, 1988; and

That the worker is entitled to a permanent partial disability award.

Decision: Unanimous

Background

On November 14, 1983, the worker twisted his low back while lifting a board of asbestos. The diagnosis rendered by the treating physician was a strain of the lumbar spine. The claim for compensation was accepted and benefits were paid to the worker.

On February 13, 1984, an orthopaedic specialist diagnosed the worker with an acute disc herniation with left sided sciatica, the latter of which had resolved. It was felt that the worker suffered from mechanical back pain as a result of the disc herniation and a facet joint strain.

In a report dated March 14, 1984, the orthopaedic specialist noted that the worker still had tenderness at the L4-5 interspace with paravertebral spasm and there was no evidence of neurological compromise.

As the worker’s back complaints continued, the orthopaedic specialist arranged for the worker to have a myelogram examination. In a follow-up report dated June 20, 1984, the specialist reported that the myelogram was completely normal. He stated that in view of the myelogram results, the worker was suffering from lumbar degenerative disc disease without disc herniation and nerve root compromise.

A WCB medical officer examined the worker’s back region on September 13, 1984. He stated, “There is no doubt that the claimant has suffered a severe musculo-ligamentous strain likely in the L3 area and in spite of the negative myelographic findings, I cannot rule-out the possibility of a disc at that area which may have been missed myelography.”

An x-ray of the lumbosacral spine dated September 19, 1984 revealed spurs on the bodies of L3 and L4. The remaining bodies, discs and pedicles all appeared normal. The sacroiliac and hip joints were not remarkable.

A bone scan examination took place on October 25, 1984. The radiological report indicated that no abnormalities were seen except for possible degenerative changes in the knees and in the L4-L5 region.

In February 1985, the orthopaedic specialist reported that the worker had ongoing marked back pain which at times radiated to his left leg. He considered the worker to continue to be unfit for work.

On March 15, 1985, the orthopaedic specialist noted that the worker still had back pain and left leg pain to the knee. He reported that a CAT scan was taken on March 7, 1985 which included slices of L3, L4 and L5. No abnormalities were identified. In view of these findings, the specialist indicated that the worker had mechanical insufficiency but no herniation.

On June 5, 1985, the orthopaedic specialist reported that facet joint blocks done on May 7, 1985 dramatically improved the worker’s leg symptoms and partially improved his back symptoms. He felt it would be reasonable to proceed with a facet joint rhizolysis. This procedure was carried out on October 4, 1985.

The worker had lumbar spine x-rays taken on October 30, 1985. The results indicated the following: “The alignment of the spine is normal. Mild degenerative changes are present. There is minimal narrowing of the disc space at L3-4 and L4-5. There is otherwise no structural lesion seen.”

On February 19, 1986, a WCB medical officer reviewed the file and opined that the worker was fit for suitable employment and he outlined specific physical restrictions for the worker. Based on this opinion, the WCB determined that the worker’s rehab benefits would not be extended past April 11, 1986.

In April 1986, the worker commenced treatment with a physical medicine specialist (“physiatrist”) in British Columbia. In a report dated April 1, 1986, the physiatrist diagnosed the worker as suffering from chronic mechanical low back pain and chronic pain syndrome. The worker was noted to have a severely deconditioned spine and isometric and range of motion exercises were recommended. The physiatrist’s opinion was that the prognosis was guarded given the length of time of the injury. He also opined that the worker should give some reconsideration to resuming work, though not necessarily in the same job he previously held.

Based on the new medical information, the worker’s benefits were reinstated effective April 14, 1986.

In September 1986, the physiatrist reported that the worker had regularly attended physiotherapy and back education sessions, but had not progressed very far. The worker tended to resist harder exercises and at his present level of output, he could not be expected to recondition his back.

In a report dated November 4, 1986, the worker’s treating physician advised that he was still not yet fit for suitable employment as he had considerable back pain and restricted range of motion.

In January 1987, it was determined by the WCB’s Long Term Disability Committee that the worker should be examined at the medical department of the British Columbia Workers Compensation Board to determine his current medical status, the appropriateness of the current medical management and if his condition had plateaued. This examination took place on February 27, 1987. The impression of the worker’s condition was chronic low back pain syndrome and that his condition had plateaued. It was indicated that the worker presented himself as totally disabled and the examination revealed overreaction, inappropriate pain response and presumptive evidence that the worker was not as disabled as he presented himself. The worker was assessed an impairment rating of 5% based on moderate loss of range of motion in extension and side bending.

In a memo dated March 30, 1987, a WCB assistant director indicated that it would be premature to award the worker a 5% pension given that the worker was still in the midst of treatment and because of the worker’s overreaction, inappropriate pain response, etc. during the examination on February 27, 1987.

On November 25, 1987, the worker was examined by a WCB medical officer specializing in orthopaedics. The medical officer indicated that the worker’s mechanical low back pain was compatible with the nature of his accident but had been perpetuated by inadequate exercising. He stated that if the worker had performed exercises conscientiously as he had been advised by his orthoapedic surgeon, it was probable that he would now be symptom-free. It was felt that it would be of benefit for the worker to obtain a job and temporary restrictions were outlined for a six month period.

In August 1988, the worker was advised that the WCB would pay benefits to November 7, 1988 inclusive for the purposes of job search. In a further decision dated May 31, 1989, it was confirmed that the worker was not entitled to any more vocational rehabilitation or time loss benefits because it was felt that he was “capable of participating in a restricted type of employment.”

On September 6, 1990, an x-ray of the lumbar spine was compared with a previous one dated January 9, 1990. It revealed “Slight narrowing of the L3/4 disc space again noted, unchanged from the previous. There is slight marginal spurring from L-3 to L-5. This, too, is unchanged from the previous. No other abnormality noted.”

In a December 17, 1990 report, an orthopaedic specialist stated that the worker’s symptoms had been present for a long time and in many respects, seem worse than the physical findings. To confirm the true extent of his condition, further investigations were recommended such as a myelogram, CT scan and for the worker to undergo caudal blocks.

A WCB medical officer reviewed the file on July 9, 1991. He indicated that the worker apparently had no flexion or extension of his spine and that he was considered disabled but could probably do sedentary type work.

The worker’s file remained virtually inactive from 1992 to 2007.

In March 2008, the worker advised a WCB case manager that he was requesting full wage loss benefits from November 1988 and a Permanent Partial Disability (“PPD”) award.

A report was received from an orthopaedic surgeon dated February 26, 2008 recommending that the worker undergo a rhizotomy. At the request of primary adjudication, this report was reviewed by a WCB medical advisor on March 3, 2008. He stated,

  1. "The diagnosis on file by [orthopaedic surgeon] appears to be a right sided lumbar radiculopathy secondary to a disc herniation at the L5-S1 level.

  1. The writer is unable to establish a temporal relationship to the compensable injury of 1983. This is in light of i) symptoms at the time of the compensable injury were left sided, ii) normal CT scan early in the injury, ii) (sic) normal CT myelogram, iii) diagnosis of chronic mechanical low back pain by multiple health care providers, iv) no noted neurogenic deficits other than left sided lateral thigh hypoesthesia in previous reports, v) medical reports from the 1980’s from multiple orthopaedic specialists, pain medicine specialists, and physical medicine and rehabilitation specialists that indicated little objective evidence of radiculopathy or gross structural abnormality.

  1. As above, the writer is unable to establish a causal relationship between the compensable injury and the diagnosis of a right sided lumbar radiculopathy or the proposed right sided rhizotomy.”

In a letter dated March 11, 2008, the WCB case manager advised the worker that based on a review of all information and the opinion provided by the WCB medical advisor on March 3, 2008, there was no indication of a rateable PPD in relation to the November 14, 1983 injury. The case manager also advised the worker that no changes would be made to the previous WCB decision regarding his entitlement to wage loss benefits where it was determined that: “Appropriate Vocational Rehabilitation Services were offered at that time, and you would not be considered to be totally disabled from employment”.

On March 26, 2008, a worker advisor asked the WCB to reconsider the decision to end wage loss on the claim after April 11, 1986 and to implement a permanent impairment award. The worker advisor made reference to medical reports ranging from 1986 and 2008 to support his position that the worker had not recovered from his work related injury and had been unemployable since 1983. He also indicated that the worker had an impairment of 5% which was never awarded based on the examination that took place on February 27, 1987.

In a decision dated April 1, 2008, the WCB case manager indicated that the worker was paid wage loss benefits to November 7, 1988 on the basis that he possessed the transferable skills to return to work. This finding was later confirmed in decisions made by the WCB in 1988 and 1989. The case manager noted that the recent medical information noting right sided lumbar radiculopathy and myofascial pain syndrome had been commented on by a WCB healthcare consultant on March 11, 2008 and that these conditions had not been accepted in relation to the workplace accident. The case manager further indicated that when assessing a permanent impairment, all medical information will be assessed. He stated that based on his review of the file information, a permanent impairment related to the compensable injury of November 14, 1983 could not be established. On April 30, 2008, a worker advisor appealed the case manager’s decision to Review Office.

On June 18, 2008, Review Office determined the following:

  • That the worker was not entitled to temporary total disability benefits beyond November 7, 1988. Review Office noted that the worker’s claim was accepted on the basis of a back sprain/strain and that any ongoing effects of the compensable injury would have long since resolved. It concurred with the WCB supervisor’s May 1989 decision that under the WCB’s current policies and practices, the worker was not entitled to further assistance. It also found that the worker’s current symptoms were not causally related to his November 1983 compensable injury. As of November 7, 1988, the worker was determined to be capable of possessing the transferable skills to seek gainful employment and therefore his entitlement to WCB benefits and services ended.
  • That the worker was not entitled to a PPD award. Review Office noted that the worker’s claim was accepted on the basis of a sprain/strain. Based on this compensable diagnosis, the worker would not be expected to experience a permanent disability which would result in entitlement to a permanent partial disability award.

On June 14, 2008, the worker advisor appealed Review Office’s decision to the Appeal Commission. A hearing was held by teleconference on October 2, 2008.

Reasons

Worker’s Position

The hearing was conducted by teleconference with the worker, who now resides out of province. He was self-represented. It was the worker’s position that right from day one to the present time, the doctors have all indicated in their reports that he will not be returning to work and that he cannot return to work. He stated that his condition plateaued in the early 1980’s and there has been no change since then and no gain in his range of motion. He is currently scheduled for a rhizotomy in November, 2008, related to pain he is now experiencing, greater on the right than the left.

Applicable Legislation

The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the Board of Directors. As the worker’s claim was made in 1983, his benefits are assessed under the Act as it existed at that time (the “1983 Act”). Under subsection 4(2) of the 1983 Act, if a personal injury by accident disables a worker, compensation is payable for so long as the injury disables the worker.

Payment of compensation for permanent disability was provided for in the 1983 Act under subsections 4(9) and 40(1), which read as follows:

Permanent disability

4(9) The board may award compensation under this Part in respect of the permanent disability suffered by a worker but without temporary total disability.

Permanent partial disability

40(1) Where permanent partial disability results from the injury, the board shall allow compensation in periodical payments during the lifetime of the worker sufficient, in the opinion of the board, to compensate for the physical loss occasioned by the disability, but not exceeding 75% of his average earnings.

Analysis

There are two issues before the panel. Each issue will be addressed in order.

1. Whether or not the worker is entitled to temporary total disability benefits beyond November 7, 1988

Under the provisions of the 1983 Act, a worker is entitled to compensation for loss of wages resulting from disability due to injury. In this case, effective November 7, 1988, the worker’s wage loss benefits ended as the WCB determined that the worker was not totally disabled and was capable of participating in a restricted type of employment. In order for the panel to determine the appeal on this issue, the panel must decide whether or not the worker’s workplace injury disabled him from working at the relevant time. On a balance of probabilities, we find that the worker was, in 1988, and presently remains capable of, engaging in full time employment within his restrictions and accordingly, it was appropriate to end his wage loss benefits as of November 7, 1988.

At the hearing, the worker’s evidence was that by November 1987, his condition had plateaued and it has not improved. When asked about what he felt he was capable of doing, the worker indicated that he could only sit for 15 or 20 minutes, then he would have to get up and move. His tolerance for walking was also limited to about 20 minutes. If he wore a corset to relieve the pressure, he could last longer, but still could not last full time. Stairs were impossible for him to navigate. He could go grocery shopping when assisted by his family, but would have to lean on a shopping cart to do so. He could drive to town, which was approximately a 12 minute trip. While at one time, his medications clouded his thinking, he has since become sufficiently accustomed to the medications so that he is still able to function mentally while taking them. The worker indicated that he has looked for light duty work, but has been unable to find a position which would accommodate him.

Although the worker submitted that the doctors have all indicated that he cannot return to work, in fact numerous medical reports suggest that the worker was actually capable of performing suitable work. The February 19, 1986 memo from the WCB medical advisor indicated that in his opinion, the worker should avoid heavy lifting and excessive bending and twisting of the lower back, but that he was nevertheless fit for suitable employment.

The treating physiatrist in British Columbia was of the view that with conditioning, the worker could return to employment. In his April, 1986 report he stated: “I also stressed that he needs to give some reconsideration to resuming work, not necessarily in the same job as he previously held. There is little evidence to show that for most types of work the type of activity one engages in while “taking it easy around the house” is any less likely to provoke a repeat injury than those activities associated with work.” In a subsequent report dated May 20, 1986 the physiatrist wrote: “… deconditioning has now led to most of his present symptoms and signs, and the need for him to engage in some programmed and vigorous exercises.”

In July, 1988, the treating physician provided a Physician’s Progress Report which indicated: “No real change in condition.” Under the treatment heading, it stated: “Should be retrained at WCB Richmond BC for suitable employment.” In a narrative report dated August 3, 1988, the treating physician wrote: “(Worker) continues to complain of severe incapacitating back pain … Certainly on the basis of this it would be rather difficult for me to tell him to get into some sort of job that would require a lot of back work. I believe that he should be retrained for something that is suitable for his condition with the hopes that by proving to him that he is able to do something that he will eventually get out of this chronic pain syndrome.” On December 15, 1988, the treating physician reported that attempts were made to assist the worker in finding a job suitable for his disability or to find some sort of job retraining program, but these efforts were unsuccessful. He wrote: “He remains disabled as a result of his injury to the back for the type of work that he was doing at the time of the injury.”

The panel agrees with the WCB medical officer’s assessment outlined in a memo dated May 2, 1989 which states: “According to (treating physician’s) report … he has urged the man to seek employment and therefore there is no indication of total disability. Support that temporary restrictions be made permanent.” The panel finds that by November 7, 1988, the worker was capable of full time employment within his restrictions and therefore he is not entitled to temporary total disability benefits beyond that date. The appeal on this issue is denied.

2. Whether or not the worker is entitled to a permanent partial disability award.

The guidelines for determining a worker’s permanent partial disability for the purposes of paying compensation under subsection 40(1) of the 1983 Act are set out in a Permanent Impairment Rating Schedule (the “Schedule”). According to the Schedule, permanent impairment is measured by the following factors: “loss of a part of the body; loss of mobility in the joints; loss of function of any organs of the body identified in the schedule; and cosmetic deformity of the body.” In order for the worker’s appeal to be successful, the panel must find that the worker’s injury has resulted in permanent impairment measurable by one of the listed factors. The only factor which is relevant to the worker’s circumstances is loss of mobility in the joints, specifically, loss of movement of the lumbar/thoracic spine.

In the present case, the British Columbia WCB medical advisor performed a PPD examination on February 27, 1987. In his opinion, the worker had definitely plateaued and on a judgment basis, he would assess the worker’s impairment, based on the slight to moderate loss of range of motion in extension and side bending, at 5% of total.

The WCB has determined that the worker is not entitled to a PPD. The rationale for not allowing a PPD award was that the February 27, 1987 PPD examination report summary indicated that “This worker continues to present himself as nearly totally disabled some three and a half years following a modest strain. In today’s examination, there is some overreaction, inappropriate pain response and presumptive evidence that this worker is not as disabled as he presents himself.” Review Office indicated that based on a compensable diagnosis of sprain/strain of the back, a permanent impairment would not be anticipated which would result in the worker being entitled to a PPD award.

In the panel’s opinion, the evidence supports that on a balance of probabilities, the worker’s compensable injury did result in measurable loss of mobility in his lower back. The fact that the worker has work restrictions and has only been cleared for return to “suitable” employment indicates that there is some residual disability resulting from the accident. Further, the fact that the WCB has accepted ongoing responsibility for medications required for treatment of the worker’s lower back condition suggests that there is some ongoing impairment related to the accident injury. We therefore find that the worker is entitled to a PPD award, effective as of the date of the British Columbia PPD examination on February 27, 1987.

Although an impairment of 5% of total was assessed on February 27, 1987, the panel notes that subsequently, on November 25, 1987, a call-in examination was conducted by a Manitoba WCB medical advisor and at that time, the ROM findings were as follows:

Movements of the spine tested when he was standing, showed extension was 10 degrees, lateral flexion in either direction was to 20 degrees and rotation was to 90 degrees… On forward flexion, the fingertips reached to the knees.

To the extent that the November 1987 measurements differ from those taken in February, 1987, the panel finds that the November 1987 measurements should be used to revise the amount of the PPD impairment award. The measurements of the Manitoba practitioner are to be preferred so as to ensure greater consistency with other PPD awards which are granted in Manitoba. The effective date, however, will remain February 27, 1987, as the BC physician clearly indicated that the worker’s condition had plateaued at that time.

The panel wishes to note that the worker has submitted updated medical information regarding his current condition and recently increased symptomatology in his right leg pain. We do not accept that any decreased ROM reflected in this new information relates to the 1983 compensable injury. In other words, the more recent changes in the worker’s condition from 2007 forward do not lead to changes in the amount of the worker’s PPD as the panel does not find that his current complaints from the last few years forward are related to the original compensable injury.

For the reasons stated above, the panel finds that the worker is entitled to a PPD award. The worker’s appeal on this issue is allowed.

Panel Members

L. Choy, Presiding Officer
A. Finkel, Commissioner
G. Ogonowski, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 25th day of November, 2008

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