The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker appealed a decision made by Review Office of the Workers Compensation Board ("WCB") which determined, in part, that his current back difficulties were not related to his 1962 workplace injury. A hearing was held on May 18, 2011 to consider the matter.

Issue

Whether or not the worker's current back difficulties are related to the October 15, 1962 compensable injury.

Decision

That the worker's current back difficulties are not related to the October 15, 1962 compensable injury.

Decision: Unanimous

Background

On October 15, 1962, the worker reported that he injured his back when he and a co-worker were pushing a furnace off a truck. On the same date of accident, the worker sought medical treatment and the treating physician's examination findings revealed moderate paravertebral spasm bilateral at the L4-5 level, range of motion and straight leg raising was restricted. The worker was hospitalized. The treating physician did not anticipate that a permanent disability would result from the injury.

An x-ray of the lumbar spine taken October 22, 1962 showed the following findings:

"Lumbar lordosis is present. There is slight scoliosis convex to the left in the mid lumbar region. Slight narrowing of the disc between L5 and S1 is suggested. No other significant abnormality of disc, bone or joint is seen. The sacroiliac and hip joints appear to be within normal limits."

By October 24, 1962, the worker had returned to work.

On September 26, 1972 the worker lifted a tongue of a trailer and reported pain to the right side of his back. When seen for medical treatment on the same day, the treating physician reported point tenderness at L5-S1 and right sacroiliac joint pain on moving his right leg and on weight bearing. The diagnosis was a lumbosacral strain injury, and the worker was admitted to hospital for bed rest.

In a report dated November 7, 1972, an orthopaedic surgeon outlined his examination findings related to the worker's lumbar region. He noted that lumbar spine x-rays were within normal limits and the dorsal spine showed some degenerative change in the mid-dorsal spine which undoubtedly pre-dated his back. The surgeon's impression was that the worker's condition was more of a musculoligamentous type injury and there was no clinical evidence of discogenic disease at this time. He recommended that the worker would benefit from physiotherapy, ultrasound and active exercises.

In a report dated November 23, 1972, the hospital physician reported that the worker had been hospitalized from October 1, 1972 and was discharged on October 8, 1972. When seen on October 13, 1972, the worker still complained of right-sided low backache and he still had spasm of the lumbar muscles with tenderness on both sides, although straight leg raising was ninety degrees on both sides but with discomfort. The worker was given a prescription and a lumbosacral support.

The worker was paid benefits to January 18, 1973. File information indicates that the worker moved to Alberta and found a job as a machine operator.

In August of 1979, the worker contacted the WCB to advise that he had been experiencing further back difficulties which he related to his 1962 accident. Four medical reports dating from 1973 to 1979 were reviewed by a WCB medical advisor on September 26, 1979. The medical advisor stated that the information contained in the reports did not support that the worker's then-current problems were a Manitoba WCB responsibility.

On October 5, 1979, the worker was advised by the WCB that his current back condition was not related to either of his compensable injuries from 1962 or 1972. This decision was again confirmed by the WCB's Review Office in a letter dated April 19, 1994. In 2010, the worker appealed Review Office's decision that his current back difficulties are not related to the 1962 compensable injury to the Appeal Commission and a hearing was arranged.

Reasons

Applicable Legislation

In deciding appeals, the Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the Board of Directors.

This appeal deals with an accident that occurred in 1962. The Act as it existed at that time is the authority for this appeal. Specifically, Subsection 3(1), 29(1) and 44(2) are applicable.

Worker's Position

The worker attended the hearing. Regarding the 1962 injury, the worker expressed concern about a statement included in his doctor's report which questioned his motivation for claiming benefits. He described the statement as slanderous. The worker advised that since his injury his leg has continued to collapse and that he has not been able to sustain employment as a result of his injury. The worker advised that subsequently, while living in another province, he had two surgeries on his back.

The worker advised that as a result of an accident approximately 14-15 years ago, he suffered an injury which has eliminated his memory of the first 20 years of his life. The worker was unable to answer questions from the panel surrounding the 1962 accident. He advised that the source of his information was his sister and the claim file information, and that he was comfortable proceeding on the basis of the evidence placed in the file at that earlier time.

Employer's Position

The employer was represented at the hearing by an advocate and its WCB caseworker.

The employer representative noted as this is a 1962 claim, the employer did not have access to the medical information on the file.

The representative noted that the employer has limited information regarding the worker. The employer's information indicates that the worker was injured on October 15, 1962 and again in 1972. She noted that both injuries were diagnosed as low back strains. She advised that the employer's records indicate the worker only missed 8 days of work for the 1962 injury. She noted that on two occasions, the WCB invited the worker to file a claim for the 1962 injury but that no response had been received from the worker until 1969.

She submitted that the worker's current difficulties originated after his surgeries in Alberta, and after he suffered head injuries while working there. There is no evidence of a causal relationship between his current musculoskeletal problems and his low back injury in 1962.

Analysis

The panel found the worker to be forthright and honest in his discussion with the panel, and in particular his advice about a significant head injury or concussion that he suffered approximately 15 years ago. He advised that there are decades of his life that he cannot remember, and that the only information that he has in regard to the issues before the panel was based on what he had read in the claim file and been told by his sister.

The panel did make a number of inquiries regarding events described on the file and agrees with the worker's honest self-assessments as to his memory recall.

For these reasons, the panel will rely on the available file evidence as the basis for its deliberations, as these documents were established contemporaneously to the events they describe.

The issue before the panel is whether the worker's current back difficulties are related to the October 15, 1962 compensable injury. For the worker's appeal to be accepted, the panel must find, on a balance of probabilities, that the worker did not recover from his 1962 injury and that his current back difficulties are related to this injury. The panel was not able to make this finding.

For the reasons that follow, the panel finds, on a balance of probabilities, that the worker's current back difficulties are not related to his October 15, 1962 compensable injury.

• The 1962 injury is reported to have occurred as the worker was moving heavy equipment on a truck. The Doctor's First Report dated October 18, 1962 estimates the minimum length of total disability resulting from the injury to be "7 - 14 days or less." The report indicates that no permanent disability was anticipated from the injury. In the panel's view, this report suggests that the 1962 injury was minor.

• The worker was off work for 8 days for the 1962 injury and then returned to work.

• There is a lack of supporting medical evidence on file to connect his current symptoms to his 1962 injury, or that the worker had not recovered from the 1962 injury. In this regard, the panel notes that the worker returned to his regular job duties nine days after his October 15, 1962 injury, and did not receive any medical attention or treatment for that part of his body for a number of years after.

• Since the 1962 injury, the worker has had multiple other workplace injuries resulting in two surgeries in another jurisdiction.

The worker's appeal is denied.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 28th day of June, 2011