Decision #05/15 - Type: Workers Compensation
Preamble
The worker is appealing three decisions made by the Workers Compensation Board ("WCB") with respect to his 1986 compensation claim. A file review was held on November 20, 2014 to consider the matters.Issue
Whether or not the worker's travelling expenses should be based upon his current residence since 2008 or his residence at the time of his 1986 compensable injuries; Whether or not the worker's left shoulder, knees and hernia conditions are related to the compensable injuries of February 7, 1986; and Whether or not the worker is entitled to benefits for his left shoulder, knees and hernia conditions.Decision
That the worker's travelling expenses should be based upon his residence at the time of his 1986 compensable injuries; That the worker's left shoulder, knees and hernia conditions are not related to the compensable injuries of February 7, 1986; and That the worker is not entitled to benefits for his left shoulder, knees and hernia conditions.Decision: Unanimous
Background
On February 7, 1986, the worker was operating a grader when he was struck by a train at a railway crossing. The worker suffered multiple injuries which included head trauma, fractured ribs and a low back injury. The most serious injury was the head trauma and in 1994, the worker was diagnosed as having suffered Organic Personality Disorder and was deemed incapable of returning to the workforce.
On May 20, 2009, the worker asked the WCB to provide him with additional travel expenses to attend medical appointments in Winnipeg. The worker noted that the travel distance from his rural home to Winnipeg was approximately 210 to 220 kilometers every round trip. On May 22, 2009, a WCB case manager advised the worker that the WCB calculated travel expenses were based on the address/street that he resided on at the time of his compensable accident.
The case manager stated: ...Your normal trip to work at the time of the accident was 5.1 kms to [place of employment]. Your trips to [the clinical psychologist] at [street name] would be 9.6 kms from [his old Winnipeg address]. You are entitled to the excess distance traveled to [the clinical psychologist] office, 4.5 kms per trip and 9 kms for a round trip. For the 23 visits, you are entitled to 207 kms total... On September 17, 2010, the worker appealed the case manager's decision to Review Office. The worker argued that he had been paid travelling expenses to attend a recent Appeal Commission hearing based on his current rural residence and not from his residence at the time of his compensable accident.
In a decision dated November 24, 2010, Review Office advised the worker that travelling expenses to attend Appeal Commission hearings were paid under WCB Policy 21.10.40, Expenses for Attendance at Appeal Hearings and it had no other application. With respect to travel expenses to attend medical appointments, Review Office referred to the WCB's Medical Aid Policy and stated: It limits payment to expenses which are in excess of costs normally incurred by the worker in travelling to and from work. By practice, the WCB only considers there to be excess costs if the distance the worker travels from his (or her) place of residence at the time of his accident to a medical appointment is greater than the distance from the same residence to the worker's place of work.
Generally speaking, any increase in the costs resulting from a post accident change in residence is not compensated. Review Office is of the opinion that the manner in which your travelling expenses to attend medical appointments has been calculated is consistent with both policy and the practices described above. Policy is binding on Review Office and it sees no compelling reason to set aside the practice... On January 18, 2011, the worker asked the Appeal Commission to address a number of issues related to his compensation claim.
In particular, the worker asked the Appeal Commission to address his entitlement to compensation benefits related to both shoulders, both knees and his hernia condition which he felt were caused by his 1986 accident. As this issue had not been addressed by primary adjudication or Review Office, the Appeal Commission was unable to render a decision on the issue. On March 14, 2011, a WCB case manager advised the worker that she could not find medical documentation to support that his knees, shoulders or hernia condition were related to his February 7, 1986 work injury.
The case manager's decision was based on the following file evidence: • The case summary related to the worker's admission to hospital on February 8, 1986 listed the worker's injuries as: Closed head injury, laceration to face, fracture of the left rib cage and fracture of the sternum.
• The February 20, 1986 police report showed that the worker's injuries were a fractured skull, fractured ribs, fractured sternum and soft tissue injury to the right knee.
• A physiotherapy report dated October 22, 1996 indicated that the worker had knee pain when assessed on March 19, 1986. When seen again on June 13, 1988, there was no mention of knee pain.
• The Functional Capacity Evaluation dated January 7, 1996 reported that the worker was able to walk with a normal gait. The worker did not, during the examination, mention any knee complaints but indicated low back pain.
• The Medical Review Panel report of February 18, 1994 made no mention of any shoulder, knee or hernia issues related to the February 7, 1986 work injury.
• Appeal Commission Decision No. 140/97 stated: "We do not accept that the claimant injured his right shoulder in the accident."
• The treating physician's report of March 20, 1989 mentioned that the worker was experiencing left shoulder symptoms; however, there was no medical documentation afterwards from the physician to support a relationship existed between the worker's left shoulder symptoms and his 1986 work injury.
On July 25, 2011, Review Office considered the worker's appeal regarding the WCB's decision to deny responsibility for his bilateral shoulder, knee and hernia conditions. With respect to the worker's right shoulder condition, Review Office referred to Appeal Commission Decision 140/97 which did not accept that the worker injured his right shoulder in the accident and based on this finding, Review Office stated that it did not have jurisdiction to rule on the worker's request to have his right shoulder condition accepted. With respect to the worker's left shoulder, Review Office referred to the following evidence to support its position that the worker's left shoulder complaints were unrelated to his 1986 workplace injury:
• The initial injury to the left shoulder was soft tissue in nature and there was no clinical or diagnostic evidence to suggest that the worker suffered a more significant injury to his left shoulder due to the 1986 accident, to the extent of lasting in excess of 24 years post accident. • The June 1993 WCB medical advisor comments concerning the worker's left shoulder examination findings. Review Office felt that the medical advisor's examination findings did not show any structural abnormality of the left shoulder.
• In April 2008, the worker had full and normal range of motion in his left shoulder.
• There was no evidence that the soft tissue injury continued to affect the worker over the years in the absence of clinical follow-up or medical investigations. Regarding the worker's knee complaints, Review Office commented that the worker attributed his right knee difficulties to the pain from his compensable back injury. He believed that the WCB focused on his head injury without giving due consideration to his other injuries caused by the 1986 accident. In his March 2011 submission, the worker attributed his left and right knee difficulties to the effects of his 1986 accident. Review Office indicated that it placed weight to the following evidence to support that the worker's bilateral knee condition was unrelated to the effects of his 1986 injury nor related to a secondary accident or injury:
• There was no evidence of a significant injury to the right knee and there was no medical evidence to support that it continued to affect the worker to this day. This was based on the hospital chart notes post accident which indicated that the worker complained of right knee pain and he had swelling and pain and was diagnosed with a soft tissue injury. An x-ray showed no evidence of a fracture or dislocation.
• The findings reported by the worker's treating physician on December 21, 2004: "Examination revealed no swelling, no redness, no effusion. Patient had full range of movement of his right knee, but was tender over the medical (sic) compartment of his right knee. Ligaments were intact. McMurray test was negative for cartilage damage. X-rays were taken December 7, 2004 and reported...there are minor degenerative changes in the tibio-femoral end and patellar femoral joints. No other abnormalities were identified."
• Although the worker complained of losing his balance and falling on his right knee, there was no medical evidence that the current findings of severe osteoarthritis ("OA") in the medial knee was caused by this or by the effects of the 1986 accident. The worker's complaints of falling were about his right knee only and not his left knee. Both knees had severe OA changes and falling onto the right knee did not explain the changes that were equally apparent in his left knee - the knee that the worker did not ever report falling onto.
• The worker was a competitive body builder before his injury. It was felt that since the OA was bilateral, medial and advanced, that it was more likely related to the body building activities rather than the soft tissue injuries that occurred in the 1986 accident or to any compensating for his back injury.
Regarding the worker's hernia condition, Review Office concluded that there was no evidence to link the 2005 and 2007 hernias to the 1986 accident or its consequences. The hernias developed 19 years later after the 1986 accident making it unlikely to have been caused by the accident and there was no medical evidence to show that the worker's hernias were due to compensating for his back injury. Review Office attached weight to the report from the treating surgeon dated January 7, 2008 which stated: "Recurrent Inguinal Hernia Mechanism unknown" and the January 18, 2008 WCB medical advisor opinion that: "The medical documentation relating to management of the c/i [compensable injury] related injuries in 1986 notes no mention of inguinal difficulties/symptoms.
Based on the available medical information, a cause and effect relationship between the c/i and the left inguinal hernia has not been substantiated." Based on the above, Review Office concluded that no responsibility could be accepted for the worker's left shoulder, knees and hernias and therefore the worker was not entitled to benefits for same. On November 20, 2014, a file review was held at the Appeal Commission as the worker disagreed with Review Office's decisions dated November 24, 2010 and July 25, 2011.
Reasons
Applicable Legislation and Policy: 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(1) of the Act, where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid to the worker by the WCB. WCB Policy 44.120.10, Medical Aid (the "Policy") outlines the WCB's approach to delivery of medical aid services to injured workers.
Section 3.a sets out guidelines for reimbursement of expenses incurred to attend compensable medical treatment. Worker's position: The worker was self-represented in his appeal and he provided written submissions date stamped September 17, 2014 and October 17, 2014. With respect to the travel expenses, the worker advised that from the date of the accident in February 1986 to 2008 when he changed his address to outside the perimeter, the WCB had on file that he would be reimbursed 16 kms one way for WCB related appointments. During that period, he lived at various locations throughout Winnipeg.
In 2008, he decided to retire, sell his Winnipeg residence and live at his cabin. After the move out of Winnipeg, the distance from his primary residence to the compensable location (doctor's office) was approximately 95 kms/190 kms return. The worker also had to travel to pick up medication. He asked that these travelling distances be covered. With respect to the appeals concerning the left shoulder, knees and hernia conditions, the worker submitted that if there was no information on his file regarding his knees/shoulders/hernias, this was because the WCB and his employer were only focused on his head injuries. All those years, he felt he could not complain about these conditions and he simply coped with the injuries. Finally, the worker requested that for the purposes of the review, he be seen by a WCB medical advisor to evaluate and assess all of his bodily injuries and to give opinions on what injuries and disabilities were caused by his 1986 train accident or from his head injury disorders and the permanent back injury.
The worker suggested that the WCB psychiatrist and the worker's doctor should be involved in this review as they would know about the accumulated stressors and pain experienced by the worker over the past 29 years. Analysis: There are three issues being appealed. We will address each issue separately.
1. Whether or not the worker's travelling expenses should be based upon his current residence since 2008 or his residence at the time of his 1986 compensable injuries. The first issue deals with calculation of the entitlement to travelling expenses. In order for the worker's appeal to succeed, the panel must consider the Policy and determine whether there is authority for reimbursement of travel expenses on the basis requested by the worker. On a balance of probabilities, we find that there is not. As noted earlier, section 3.a of the Policy sets out guidelines for reimbursement of expenses incurred to attend compensable medical treatment. Paragraph 3.a(i) provides as follows: The WCB will reimburse an injured worker's actual reasonable expenses related to travelling to medical treatment (wage-loss, travel, accommodations, meals and reasonable telephone charges) which are in excess of costs normally incurred by the worker while travelling to and from work. Prior to the February 7, 1986 workplace accident, the worker resided in a house in Winnipeg. In 2008, he relocated to a house in a rural municipality.
The panel finds that the worker is limited to reimbursement for the additional distance travelled from his pre-accident Winnipeg residence, as this was the location from which he had been "travelling to and from work," as set out in the Policy. The Policy looks to the status of the worker at the time of the injury and it does not matter if the worker subsequently changes his residence post-accident. The panel finds that entitlement to reimbursement of travel expenses is based on the worker's residence at the time of his 1986 compensable injuries, which was his residence in Winnipeg. Travelling expenses should not be based on the worker's current residence in the rural municipality. The worker's appeal on this issue is dismissed.
2. Whether or not the worker's left shoulder, knees and hernia conditions are related to the compensable injuries of February 7, 1986. The second issue concerns the type of injuries sustained by the worker in the workplace accident. In order for the worker's appeal to succeed, the panel must find that the worker's current symptoms in his left shoulder and/or knees, and/or his hernias, are attributable to the effects of the February 7, 1986 accident. There is no question that the February 7, 1986 accident was severe and that the worker suffered extensive injury when the equipment he was operating was struck by a train. It has been, however, almost 30 years since the accident and a person's physical condition inevitably changes over time through the natural aging process.
The panel has reviewed the medical evidence regarding the worker's left shoulder, both his knees and his hernia and we find on a balance of probabilities that these medical conditions are not related to the effects of the 1986 accident. With respect to the left shoulder, the panel was unable to find a continuous reporting of symptoms in that anatomical area from the time of the accident to the present complaints. It is notable that on June 28, 1989, the worker was examined by an orthopedic surgeon. At that time, the surgeon reported that: "his neck and upper limbs and lower limbs have full movements," and that "reflexes, sensations and power in the extremities are normal and there is no muscular atrophy in the extremities." Many years later, on April 16, 2008, the worker was assessed for the purpose of determining entitlement to a permanent partial impairment award related to his head, left shoulder and back.
The report of the WCB medical consultant indicated that on examination: "range of motion of the left shoulder was full and normal." Both of those medical examinations indicate no ongoing symptomatology in the left shoulder. It would appear that any injury the worker may have suffered to his left shoulder in the initial accident had resolved and there was no ongoing or permanent injury to that area. As such, we are unable to find a causal relationship between the worker's current complaints and his workplace injury. We therefore find that the worker's left shoulder condition is not related to the compensable injuries of February 7, 1986. With respect to the worker's knees, the medical reports indicate a diagnosis of severe osteoarthritis affecting first the right knee in approximately 2010, and later prescriptions for medial unloader braces bilaterally in January 2011. At the time of the 1986 accident, the only complaint related to the knees was a soft tissue injury to the knee.
The panel finds that the presence of severe osteoarthritis approximately 24 years later is difficult to relate back to the 1986 injuries in the absence of any internal derangement to the structures in the knee, such as a tearing of a ligament or meniscus. On numerous examinations during the intervening years, the worker made no complaint about knee pain or any impairment in that regard. The panel has given consideration to the worker's argument that due to his organic brain injury, he has experienced vertigo and has repeatedly fallen onto his knees. While the panel does not question the effects of the worker's brain injury, a fall on the knees would be expected to cause injury to the patella or knee cap.
The worker's osteoarthritis is located in the medial aspect of his knees. This is not consistent with a mechanism of injury involving a blow to the front of the knees and we therefore find that the worker's knee conditions are not related to the compensable injuries of February 7, 1986. Finally, with respect to the hernia conditions, in order to find that a hernia condition is attributable to a workplace accident, there must be some evidence of intra-abdominal strain related to work or the effects of a compensable injury. S
trenuous physical effort which causes an increase in intra-abdominal pressure is a known risk factor in the development of a hernia. The panel is unable to find this mechanism of injury in the worker's case. Further, when asked, the worker was not able to identify a specific incident to which his hernia (first diagnosed in 2005) was attributable. Similarly, the worker's family physician reported on January 7, 2008 that the diagnosis of possible repeat inguinal hernia was of unknown mechanism. By memo dated January 18, 2008, the WCB medical advisor reviewed the available medical information and concluded that a cause and effect relationship between the compensable injury and the left inguinal hernia was not substantiated. Further, there is no medical opinion on file suggesting such a relationship. On a balance of probabilities, the panel finds that the evidence does not support that the worker's hernia conditions are related to the compensable injuries of February 7, 1986.
3. Whether or not the worker is entitled to benefits for his left shoulder, knees and hernia conditions. Based on our findings under the second issue that the left shoulder, knees and hernia conditions are not related to the compensable injuries of February 7, 1986, the panel must find that the worker is not entitled to benefits for these conditions. The Act only provides compensation for injuries arising out of and in the course of employment, and as we have found that these conditions are not related to the workplace accident, there is no entitlement to benefits for same.
As a final note, the panel acknowledges the worker's request for a medical examination to assist in the determination of the worker's entitlement to further benefits. The Appeal Commission makes its decisions based on the information available to us. As an enquiry model, we do have the ability to request further information beyond that which is provided to us in the event that we feel this further information is necessary in order for us to make a decision. In the present case, the panel feels that there is sufficient information before us to enable us to decide the appeal, particularly given the determination of the appeal is largely dependent upon review of the historical medical records. There is not much in the way of new information which could be obtained from a further medical examination at this time. We therefore find that it is not necessary to order a further medical examination at this time. The worker's appeal is dismissed.
Panel Members
L. Choy, Presiding OfficerA. Finkel, Commissioner
M. Day, Commissioner
Recording Secretary, B. Kosc
L. Choy - Presiding Officer
Signed at Winnipeg this 20th day of January, 2015