The Appeal CommissionThe Workers Compensation Act of Manitoba

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 1966, his benefits are assessed under the Act as it existed at that time (the “1966 Act”). Under subsection 3(2) of the 1966 Act, if a personal injury by accident disables a worker, compensation is payable. Subsection 29(1) provides that where TTD results from the injury, the compensation shall be a periodical payment during the continuance of the TTD.

The Worker's Position

The worker was self-represented at the hearing. Information on the WCB file outlines the worker's view that he has suffered from the effects of four surgical procedures he had in 1966 to repair hernias. Although the WCB did not have medical reports for the time period during 1966 to 1978 that might have spoken to the difficulties he had functioning, the worker's pattern of earnings, as outlined in a Statement of Contributions from Canada Pension Plan ("CPP"), suggested that his injury did negatively influence his ability to work. The worker stated that there was no question that during this time period, the hernias affected his ability to work and also negatively affected his functioning in his daily life. It was the worker's position that he should be entitled to TTD benefits for the period August 25, 1966 to May 2, 1978.

Analysis

The issue before the panel is whether or not the worker is entitled to TTD benefits between August 25, 1966 and May 2, 1978. In order for the appeal to be successful, the panel must find on a balance of probabilities that during this period of time, the injuries the worker sustained in the June 21, 1966 workplace accident disabled him from earning income, and that he has not been compensated for this loss of income. We are not able to make that finding.

Consideration of this appeal was difficult due to the long period of time which has elapsed since the events in question. We are trying to reconstruct the worker's life during the period August 25, 1966 to May 2, 1978. This is a period of almost twelve years which occurred over four decades ago. At the hearing, the worker candidly admitted that over time, his memory is not as sharp as it once was. When asked about this period of time, the worker only provided the panel with generalities of his work history. He indicated that he worked in drywall and masonry and that he worked on large projects, including the former WCB building on Maryland Street in Winnipeg, the swimming pool in Thompson, and most of the shopping malls in Saskatchewan. When asked about his ability to function, the worker's evidence was that because of his hernia susceptibility, he could not operate like a normal person.

The paper documentation from the relevant time indicates that as of August 24, 1966, the worker's surgeon discharged the worker as a patient and indicated the following:

• Wounds well healed - no evidence of recurrence
• Fit condition to resume usual employment; full duties on 25 August 1966
• Not likely to have any permanent disability resulting from the injury
• Use care in lifting

The worker has reported that in October/November 1966, he underwent subsequent bilateral inguinal hernia repairs. Unfortunately, despite numerous inquiries, no medical records from these surgeries could be located. Nevertheless, for the purposes of this appeal, the panel is prepared to accept that two surgeries did occur in late 1966 as alleged by the worker.

When a worker undergoes surgery for a compensable condition, that worker is entitled to TTD benefits for the time spent in surgery and recovery. In the present case, the WCB has accepted responsibility for all hernia recurrences subsequent to the initial surgeries in July 1966 and therefore the worker would be entitled to TTD benefits for the time loss associated with the second set of 1966 surgeries. Although in this appeal, the worker is asking for benefits for this time loss, previous testimony given by the worker would indicate that he has already been paid benefits for the time loss associated with these surgeries. Specifically, the panel notes that the report from the Medical Review Panel of May 27, 1994 states: "Various records exist stating that the claimant had both hernias redone in November 1966 … [the worker] told the Panel that this re-do was also covered by the Manitoba Workers Compensation Board."

The report from a Saskatchewan WCB Medical Board exam held August 23, 1993 states: "Three to four months later (October - November, 1966) - - bilateral hernia repairs were again done a day apart in Winnipeg at [Hospital] which were also under the auspices of the Manitoba WCB."

The panel also notes the Appeal Commission decision dated October 2, 1996 states: "The claimant also suffered further recurrences and further surgical repair in 1966 and in 1978 in relation to his hernia condition. TTD benefits were paid to the claimant accordingly."

As noted earlier, the worker candidly admits that he has difficulty remembering all of the events which occurred so long ago. This is natural and understandable. The panel, however, must rely on the best available evidence and we therefore accept and rely on the earlier statements on file as those statements are more likely to be accurate as they were made closer to the time when the events occurred when memories were fresher. The panel therefore finds that the worker has already received compensation in respect of the October/November 1966 surgeries and is not entitled to any further TTD benefits in that regard.

With respect to the balance of the time period, the panel finds that there is not enough evidence to establish on a balance of probabilities that the hernia susceptibility affected the worker's ability to earn income up to May 2, 1978. We do know that the worker resumed his employment as a labourer after his surgeries in 1966. The worker's evidence was that in 1967, he worked on the construction of the swimming pool complex in Thompson, Manitoba. Over the next few years, the worker transitioned more into drywall work and it would appear that he was able to develop sufficient proficiency in this trade such that he began to be recognized as a leader in the field. He moved to Saskatchewan and later in the 1980's he was involved in establishing a training course for drywallers and was proactive in having drywalling recognized as a designated trade. It would therefore appear that the worker was busy in his profession during the 1970's. Installing drywall involves a fair degree of physical labour but the worker's hernia susceptibility did not appear to have prevented him from establishing himself in the field.

In reviewing the WCB file, we note there are documents which report that the worker was able to earn regular income during the period in question. The Medical Review Panel report of November 17, 1997 states: "Aside from mild occasional pains in the inguinal areas, he was fine until 1978. At that time, he had surgery for a recurrent right sided inguinal hernia." The report later states: "[Worker] had his last full time job in 1980. Prior to 1980, he only missed minimal amounts of work."

In a medical report arising from an independent external medical examination dated April 4, 1996, the history set out by the physician stated: "…he had a second repair of both right and left recurrent inguinal hernias in October and November of 1966. Thereafter it is noted that he returned to his employment. Twelve years later, at the time of his next right inguinal hernia repair in 1978, he was working subcontract work with drywall. Prior to the discovery of this hernia he had noticed a discomfort in the groin area but did not notice a lump because of a degree of obesity."

A hospital emergency department report from March 1978 indicated: "Two days ago developed hernia on right side; history of double hernia." This would indicate a recent onset of the hernia recurrence in 1978.

The panel was not able to identify any other significant documentation regarding the worker's condition during this time period. Notably absent was any record of the worker seeking medical attention for his hernia condition from 1966 to 1978.

The worker relied on a CPP contribution statement outlining the years 1966 to 1990 to support his assertion that his earnings were affected by his hernia susceptibility. The statement shows a varying pattern of contributions, with some years having only minimal contributions, and two years 1976 and 1978, having no contributions at all.

The panel is not satisfied that the CPP contribution statement is an accurate reflection of the income actually earned by the worker during this time period. The amount of the CPP contributions is affected by several factors, one of which is accuracy of reported income. In that regard, the panel notes that although the entry for 1976 shows no contribution for that year, the worker's evidence at the hearing was that he was working as a drywaller when he suffered a wrist injury. The medical reports on file confirm that the wrist injury occurred in October 1976.