Decision #153/08 - Type: Workers Compensation

Preamble

A hearing was held at the Appeal Commission on October 21, 2008 at the request of a worker advisor, acting on behalf of the worker.

Issue

Whether or not wage loss benefits and services are payable beyond February 7, 2003.

Decision

That wage loss benefits and services are not payable beyond February 7, 2003.

Decision: Unanimous

Background

The following is a brief summary of each of the worker’s WCB claim files pertinent to the worker’s appeal:

July 19, 1993 – the worker reported an injury to his low back when he attempted to lift and empty a garbage container. The diagnosis rendered by the treating physician was a lumbosacral spine strain. X-rays taken on July 21, 1993 were reported as being within normal limits. In October 1993 the worker returned to his regular work duties.

September 14, 1994 – the worker felt a sharp pain in his right groin region while picking up garbage. He was diagnosed with a right inguinal hernia. The treating physician also noted that the worker had a previous right inguinal hernia that also occurred at work. Surgery was suggested. The worker did not incur any time loss as a result of the incident.

January 18, 1995 – the worker attempted to empty a garbage barrel that was frozen to the ground when he slipped forward and the barrel fell on his back. The diagnosis rendered was a contusion and low back strain. X-rays revealed minor degenerative changes but no significant change from the last study of July 1993. On March 30, 1995, the worker was enrolled in a work hardening program but it was soon determined that he was not a suitable candidate for the program as he showed signs of abnormal pain behavior. On May 16, 1996, the worker was examined by a WCB medical advisor who noted evidence of psychosocial stressors and inconsistencies on physical examination. He found no objective evidence of any neurological compromise and felt that abnormal illness behavior was present. It was felt that the worker could return to work with no restrictions and that input from the Chronic Pain Unit was required from a psychological prospective. A CT scan of the lumbosacral spine dated June 10, 1995 revealed mild diffuse disc bulge without evidence of focal herniation. On June 16, 1995, the treating orthopaedic specialist stated that the CT scan confirmed the presence of degenerative changes but ruled out any significant nerve root compression either by disc protrusion or stenosis.

March 6, 1998 – the worker reported that he slipped backwards while walking on ice and injured his right low ribs. He was then seen at a hospital emergency facility and was diagnosed with a right back and left elbow contusion. X-rays of the elbow did not reveal a fracture. X-rays of the thoracic spine revealed extensive degenerative changes in the upper, mid and low thoracic spines. By April 27, 1998, the worker returned to his full duties.

December 11, 1998 – the worker lifted an electric starter at work and suffered an injury to his low abdomen. The attending physician’s diagnosis was a recurrent right sided direct inguinal hernia. He noted that the worker had previous surgery to this area in 1989 and 1994. On January 8, 1999, the worker underwent surgery to repair the right inguinal hernia. By April 1999, the worker returned to his pre-accident employment. A Doctor’s First Report dated May 26, 2000 indicated a diagnosis of a left inguinal hernia. On July 4, 2000, surgery was performed to repair the left inguinal hernia and was accepted as a WCB responsibility.

October 22, 2001 – the worker was unrolling a rubber mat at work when he felt a pain in his mid back and could not straighten up. A Doctor’s First Report dated October 23, 2001 diagnosed the worker with a left paravertebral lumbosacral sprain/strain. The pre-existing condition was degenerative disc disease of the lumbosacral spine. In a progress report dated November 20, 2001, the treating physician noted that the worker was showing a gradual improvement but still had pain with extension. He indicated that the worker could return to work on November 20, 2001. On December 14, 2001, the accident employer advised the WCB that the worker’s back was a little stiff but he did not miss any further time from work. The employer said the worker was performing modified duties as they did not want him to re-injure himself.

On October 30, 2003, a WCB case manager met with the worker and his family. In a memorandum of the same date, the WCB case manager noted that the worker had received EI benefits along with social assistance and was now receiving CPP disability benefits. The worker indicated that he was unable to find work due to his disabilities and felt that most of his difficulties arose from his hernia and low back injuries. The case manager explained that the spondylosis/osteoarthritis referenced in the treating physician’s report of May 13, 2003 was considered a pre-existing condition and was not related to a workplace injury.

In a submission dated December 17, 2004, a worker advisor indicated that the worker was currently unable to perform his duties as a janitor or the alternate duties of an auto part stripper because of the cumulative effects of his various compensable injuries and asked that the WCB accept responsibility for the worker’s ongoing disability and reinstate his wage loss benefits. Attached to the submission was a medical report from an occupational health physician dated December 15, 2004 which outlined the view that the worker was limited in his functional abilities due to his workplace activities and compensable injuries.

On December 30, 2004, the accident employer advised a WCB case manager that the worker was terminated from employment due to his misconduct.

On December 30, 2004, the WCB case manager advised all parties of his decision that the worker was not entitled to compensation benefits as his current loss of earning capacity was related to his loss of employment with his employer and was unrelated to his compensable injuries or work duties.

On March 21, 2006, a different worker advisor provided the WCB with a March 9, 2006 report from an occupational health physician to support the worker’s position that he had not recovered from his numerous compensable injuries and asked that the worker be assessed by a surgical consultant experienced with the assessment of failed inguinal hernia repairs. The worker advisor requested that the WCB review the new medical report and reverse the decision that was made on December 30, 2004.

The file contains medical information from a neurologist dated September 13, 2005 addressed to the occupational health physician. He stated that the worker’s clinical presentation was not necessarily suggestive of a radiculopathy and that most of the symptoms experienced by the worker were mechanical in nature and related to the degenerative changes seen on a CT scan. He said that the injury in October 1988 might be adequate to injure the lumbosacral region and produce the type of discomfort the patient was reporting. He felt that surgical intervention was not indicated.

The file also contains a letter from a physical medicine and rehabilitation specialist dated October 11, 2005. He opined that the worker was not able to work at this point because of the pain in his left hip region. He felt the worker’s present condition derived directly from the incidents in the workplace.

On March 22, 2007, a WCB medical advisor reviewed the worker’s files at the request of primary adjudication. She said there was no ongoing cause/effect relationship between the worker’s hip/back complaints and any compensable injury. Based on this opinion, the WCB case manager decided on March 26, 2006, that there was no direct cause and effect relationship between the worker’s current symptoms and his numerous compensation claims. On August 10, 2007 and September 26, 2007, the worker’s representative appealed the decision to Review Office.

On October 18, 2007, Review Office confirmed that wage loss benefits and services were not payable to the worker from February 7, 2003 as it felt that there was no evidence that the worker’s ongoing complaints had a relationship to any of his prior compensable claims. Review Office based its decision on the following factors:

  • The worker had surgery for his right inguinal hernia in 1989, however there was no indication of a WCB claim for this time period and thus there was no indication that the original right inguinal hernia was covered through the WCB.
  • Regarding the left inguinal hernia, Review Office referenced a July 4, 2000 operative report which suggested that the worker had a recurrent left inguinal hernia condition prior to the hernia condition that was accepted by the WCB. There was no evidence that the original left inguinal hernia situation was a WCB responsibility.
  • The worker had an abdomen which pre disposed him to hernias. There was no file evidence that the original trauma to either the left or right inguinal region came about through a work related scenario covered through the WCB. Therefore, the WCB had no long term responsibility for these conditions.
  • It agreed with the WCB medical advisor that the worker’s low back conditions were strains that improved with treatment and enabled him to return to work. The report by the physiatrist dated December 15, 2004 stated, “Left sided sacroiliac and/or facet joints involvement. Left hip restrictions may be related to the sacroiliac dysfunction or a result of shortened intense musculature”. Review Office referred to the medical advisor’s comment “When this diagnosis is compared to the compensable diagnoses reported above, you can see that they are quite different and in no way related to the compensable injuries.”
  • The worker’s multi-level degenerative disc and facet changes noted on the multiple imaging studies were deemed not to be work related by Review Office.
  • The second physiatrist noted on October 11, 2005 that the worker injured his left posterior pelvic region in 1988 when he fell from the ladder. The worker had stated that this incident was the start of his low back and hip problems. Review Office indicated, however, that the WCB had no record of this incident and that an x-ray from 1993 showed no evidence of any significant previous bony injury.

On June 11, 2008, the worker advisor disagreed with Review Office's decision and a hearing was requested.

Reasons

Worker’s submission:

The worker was represented by a worker advisor at the hearing. As English is a second language for the worker, the services of an interpreter were made available at the hearing. It was submitted on behalf of the worker that it was the cumulative effects of the multiple injuries suffered by the worker since 1993 which have caused his loss of earning capacity. Both his low back condition resulting from workplace falls and his abdominal condition resulting from bilateral hernia surgeries have caused him to become impaired and unable to perform the heavier work associated with his original position as a janitor in an industrial setting. The compensable conditions resulted in restrictions in the type of work that the worker was able to perform. In 1995, he was appropriately placed on light duties by the accident employer and eventually given even lighter duties. He should have been allowed to continue at these lighter duties, but instead he was let go by his employer. It was noted by the worker advisor that an Employment Insurance Board of Referees found that the worker was not let go for just cause and that effectively, he had been constructively dismissed. It was submitted that instead of exploring vocational rehabilitation options, the WCB chose to deny responsibility, and as a result, the worker pursued this appeal. It was submitted that the worker had done his best to try to mitigate in this case, and that benefits beyond February 7, 2003 ought to have been granted.

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. Under subsection 4(2) of the Act, a worker who is injured in an accident (as defined under the Act) is entitled to wage loss benefits for the loss of earning capacity resulting from the accident. Subsection 39(2) of the Act provides that the WCB will pay wage loss benefits until such a time as the worker’s loss of earning capacity ends, or the worker attains the age of 65 years.

WCB Policy 44.10.20.10 (the “Policy”) addresses the issue of pre-existing conditions when administering benefits. The Policy states:

The Workers Compensation Board of Manitoba will 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 the employment.” The Workers Compensation Board is only responsible for personal injury as a result of accidents that are determined to be arising out of and in the course of employment.

The Policy further provides:

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 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.

Analysis:

To find that the worker is entitled to benefits after February 7, 2003, we must find on a balance of probabilities that after that date, the worker continued to suffer a loss of earning capacity as a result of his compensable injuries. We are unable to make that finding. In the panel’s opinion, the worker’s loss of earning capacity on February 7, 2003 resulted from his dismissal from employment, and not from the injuries he suffered in the course of his employment.

In coming to our decision, the panel places reliance on the following evidence:

  • Prior to being dismissed on February 7, 2003, the worker was able to carry out the modified duties which were provided to him by his employer. At the hearing, the worker confirmed that he was physically able to perform all of his assigned tasks.
  • The worker’s last workplace back injury prior to February 7, 2003 was a paravertebral lumbo-sacral spasm/strain which occurred on October 21, 2001.
  • The worker had been working steadily since he returned to work in November, 2001.
  • The worker did not suffer an aggravation or enhancement of his condition on or about February 7, 2003.
  • When asked whether he believed he could have continued working if he was not fired, the worker responded that he could.
  • The worker’s evidence was that after he was dismissed, he looked for work, but was unable to find an employer willing to hire a man of his age. He spoke to a shoemaker and an acquaintance involved in the construction industry, but was unable to find any leads. The panel finds that these actions are indicative of the fact that the worker did not consider himself to be disabled from employment at that time.
  • With respect to the groin injury, at the hearing the worker did not indicate that the numbness he feels in the left groin has impaired his earning capacity.

At the hearing, the worker’s evidence was that he has continually had pain in his back and groin. The specific areas identified by the worker were his left groin, left hip, and his mid-back, stretching down to his left buttock. Although we have found that the initial cause for the worker’s loss of earning capacity in February 2003 was his dismissal, we have considered whether in the five years since his dismissal his compensable injuries have worsened such as to now disable him from working.

At the hearing, it was submitted on behalf of the worker that there are two relevant conditions which impair the worker. They are the low back and the left groin. The worker’s evidence was that after being terminated in 2003, the only medical treatment received by him was some water therapy. This treatment helped relieve his back and hip and enabled him to walk better. The worker testified that since 2005, he has not received any further treatment for either his back or his groin. He is not taking any medication. He stated that his condition is generally good, so long as he does not sit, walk or lie in the same position for an extended period of time. There have been no real changes in his general condition since 2003.

With respect to the low back condition, the panel is unable to relate these symptoms to the compensable workplace accidents where the worker injured his back, namely the accidents of July, 1993, January 1995, March 1998 and October 2001. After each of these incidents, the worker was able to return to work, albeit in modified duties. The medical evidence on the WCB file documents a degenerative condition in the worker’s back. The CT scan of February 2005 reveals multilevel degenerative disc and facet changes. The medical report of a neurologist dated September 13, 2005 opined that most of the symptoms experienced by the worker were mechanical in nature and related to degenerative changes seen on the CT scan.

It was submitted that the panel ought to accept the report of the physical medicine specialist dated October 11, 2005 which concludes that the worker’s present condition is derived from the workplace incidents. The report states: “I believe there is a strong probability that each of the claims relates to the original injury.” The difficulty, however, is that the report relates the current low back complaints to an original workplace accident of 1988 where the worker fell from a roof and injured his back. There is no WCB record of this incident and a WCB claim was not filed (although allegedly, a green incident card was completed). Further, the worker did not miss any time from this incident, nor did he not seek medical attention. In the circumstances, the panel does not accept the specialist’s opinion regarding causation as it relates the current back problems to a non-compensable event which did not appear to result in any significant injury.

In the panel’s opinion, any symptoms experienced by the worker in his low back after February 2003 and onwards are attributable to a pre-existing degenerative condition. His last workplace back injury was a lumbo-sacral spasm/strain which occurred on October 21, 2001. Given that this injury caused only 22 days of time loss from work, we find that the injury was relatively minor in nature and it is more likely that his degenerative disc disease is the cause of the symptoms he suffered after February 2003.

At the hearing, the worker also referenced pain he experiences in his left hip. At the hearing, a medical report from an orthopedic surgeon was entered as an exhibit. The medical report dated May 6, 2005 details a consultation the worker had with an orthopedic surgeon for an evaluation of his left hip. The report indicates that no significant intra-articular hip pathology was found and that the worker’s hip symptoms were more likely related to referral from the identified pathology in his lumbar spine. The panel accepts that the hip complaints are part of the symptomatology the worker experiences resulting from his lumbo-sacral degenerative disc disease which the panel has already noted to be a non-compensable pre-existing condition.

With respect to the left groin, although the worker has identified that area as being numb and without any feeling, it was not shown how this would impair his earning capacity. The worker’s evidence was that he has not experienced a recurrence of bulging in either groin since the latest surgeries. When asked what physical impediments he faces, the worker indicated he cannot sit, walk and lie in the same position for an extended period of time. He gestured to his back when outlining these restrictions. Overall, the panel does not feel there is sufficient evidence to find that the numbness the worker experiences in his groin impairs his earning capacity.

For the reasons set out above, we find that on February 7, 2003, the worker was capable of sustained earning capacity at sedentary duties both with respect to restrictions relating to his hernia and restrictions relating to his non-compensable degenerative back and hip condition. For the period after February, 2003, the panel is not satisfied on a balance of probabilities that a compensable medical condition now impairs his earning capacity. As outlined above, we have found that any ongoing difficulties related to his back and hip are attributable to his pre-existing degenerative condition, which is non-compensable. This leaves only his symptoms related to his hernia surgeries, which have not been established as being disabling. As such, the worker is not entitled to wage loss benefits beyond February 7, 2003. The appeal is denied.

Panel Members

L. Choy, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 26th day of November, 2008

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