The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he had recovered from the effects of his compensable accident by March 3, 1986. A hearing was held on February 3, 2015 to consider the matter.

Issue

Whether or not the worker is entitled to benefits after March 2, 1986.

Decision

That the worker is not entitled to benefits after March 2, 1986.

Decision: Unanimous

Background

On July 18, 1983, the worker wrenched his low back when he slipped while prying a piece of material. The accident caused the worker pain through his back and down his right leg. The claim for compensation was initially accepted based on the diagnosis of a lumbosacral strain. Subsequent file records showed that the worker continued to complain of back pain and was seen in consultation by orthopedic specialists. In 1992, a WCB orthopaedic consultant opined that the worker was suffering from the combined effects of the compensable injury, degenerative disc disease and pre-existing leg shortening. The worker was awarded a permanent partial disability ("PPD") award for his back condition as well as other WCB benefits including vocational rehabilitation.

On May 23, 2014, legal counsel representing the worker, submitted an appeal to the WCB's Review Office regarding seven WCB decisions made on the worker's claim file. The issues being appealed included the worker's deemed earning capacity, the amount of his PPD award, the implementation of Special Additional Compensation, whether the worker's increased back pain as of 2001 was considered compensable and whether a psychological condition was acceptable.

On July 15, 2014, Review Office determined that the worker had recovered from his compensable accident by March 3, 1986 and that he was not entitled to compensation benefits beyond that date. Review Office found that all other issues or WCB decisions made after March 3, 1986 were rendered moot. Review Office's decision was based on the following medical information:

1. October 18, 1983 orthopedic specialist opinion: "I thought that this man had sustained a simple lumbosacral strain, probably related to his leg length discrepancy. I did not think any active treatment was required...suggested he wear a half inch right heel lift."
2. Second orthopedic specialist opinion of March 23, 1984 that there was a correlation between the worker's degenerative disc disease and what he referred to as a "lumbar disc strain." The specialist characterized the worker's back issue as "mechanical low back pain". The specialist noted there was "no evidence of neurological compromise."
3. Third orthopedic specialist opinion from April 1985 that "Though this man has a major amount of complaints I cannot see very much in the form of positive findings." After reviewing CT scan results of a small central disc protrusion at L5-S1, the specialist indicated that the disc protrusion was not causing any pressure on the nerve and concluded that "I am unable to find anything to account for his symptoms and as such no treatment can be recommended."
4. A neurologist's opinion of January 24, 1986 that "I cannot find any neurological defect in this patient at the present time."
5. Nerve conduction studies of March 3, 1986 showing normal results with no abnormalities.
6. April 6, 1992 third party consultant to the WCB stating: "We must conclude that there is insufficient objective medical evidence to conclude that the claimant is disabled from degenerative disc disease or for that matter, that the strain injury resulted in degenerative disc disease. We do not feel that there is enough evidence to support a continued cause and effect relationship."
7. October 14, 1992 WCB orthopedic consultant opinion that: "The pathophysiological hypothesis for this mechanical back pain are numerous but the most likely in this case is lumbar degenerative disc disease with mechanical dysfunction of the motion segments due to leg length discrepancy. The injury he suffered in prying a heavy rock back in 1983 likely contributed to an exacerbation of this problem. However there is no objective evidence that the injury itself is causing the ongoing difficulties...General deconditioning is another factor that is likely contributing to stiffness and pain."
8. September 29, 2003 file review by a WCB healthcare advisor: "...at least four orthopaedic surgeons have found no physical findings to account for his symptoms and the neurologist found no neurological deficit. Ergo the original C.I. (compensable injury) represented a strain. Also has Pre-x leg discrepancy, plus spina bifida. No physical cause found for symptoms...Current back difficulties - possible mechanical back pain, degenerative disease of lumbar spine - none having a direct relationship to the C.I."

Review Office indicated that the medical information and numerous reviews of the worker's back complaints did not support a continued cause and effect relationship to the compensable accident and therefore it was unable to support the continuance of WCB benefits. Review Office concluded that by March 3, 1986, the date of the nerve conduction studies, the worker was considered recovered from his compensable accident.

On August 4, 2014, the worker's legal representative appealed Review Office's July 15, 2014 decision to the Appeal Commission and an oral hearing was arranged.

Reasons

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.

The worker was injured in 1986, accordingly the Act as it existed on the date of injury is applicable to this appeal, including the provisions related to the payment of compensation and medical expenses.

Subsection 4(1) of the Act provided that where personal injury by accident arising out of and in the course of the employment is caused to a workman, compensation shall be paid. Subsection 4(2) provided that if the injury disables the workman during any working day after the day on which the accident occurs, compensation is payable from and including the working day next following the day on which the accident occurs. Subsection 21(1) provided, in part, that any payment to a workman may be reviewed by the board; and, on the review, the board may put an end to or diminish or increase the payment. Subsection 24(1) provided that the board may provide an injured workman with medical treatments, services, etc.

Worker's Position

The worker was represented by legal counsel and was accompanied by his wife.

The worker's legal counsel advanced several arguments regarding the Review Office's right to expand the issues under review, Review Office's refusal to address the issues appealed by the worker and the merits of the Review Office decision.

Right to Expand Issues

The worker's counsel submitted that Review Office did not have authority to expand the issues raised by the worker's request for reconsideration. He advised that the worker sought reconsideration of three issues and Review Office expanded the list to seven issues, one of which was at the root of the claim, "whether the worker is entitled to benefits."

In regards to the Review Office decision, the worker's counsel submitted that:

"... I feel that they acted outside their jurisdiction, and without authority, doing what they did, because there’s nothing in the legislation that allows Review Office to take decisions that were rendered on file, and backdate, you know, nearly 30 years, and say, everything else in the file is moot."

The worker's counsel disagreed with Review Office's position on its ability to reconsider an issue where the worker did not raise the issue and it was not directly related to the issues on which the worker had sought reconsideration.

The worker's counsel disagreed with Review Office's comment that evidence was missed or overlooked or ignored and therefore Review Office could consider the evidence and make a decision on an issue that was not appealed by the worker. The worker's counsel submitted that the evidence relied upon by Review Office was on the file and had been considered. He submitted:

"So the underpinning of expanding the issues, again, is completely unfounded, in my respectful submission. There was nothing missed, and the policy’s clear, that they need to provide these reasons, and these reasons need to be accurate. I mean, accurate, that’s implicit. But you would figure that would be the case, so I’m bringing that to this panel’s attention, and those were the areas that, in terms of procedure that I’m raising for this panel... "

Regarding subsection 60(3) of the Act and WCB Policy 21.00, "Review Office", the worker's counsel submitted that there must first be a decision by the WCB on the issue before there can be a reconsideration. He noted that with respect to Review Office's decision that "As of March 3, 1986, the worker is not entitled to benefits...", there was no decision granting benefits as of that date. He disagreed with Review Office that the decision was implicit and could be as simple as the payment of ongoing benefits. He submitted that without a decision a worker cannot know the case he must meet. In his view, the actions of Review Office are contrary to the Rules of Natural Justice. He submitted that a decision must be externally communicated to meet the requirements of the Act and policy. He asked whether Review Office has properly interpreted the Act and policy.

The worker's counsel expressed concern that Review Office's actions are "heavy handed" and in bad faith. He expressed concern that the power to reconsider can be used to intimidate workers and prevent them from seeking review of important decisions.

Refusal to Address Issues Appealed by Worker

The worker's counsel disagreed with Review Office's position that it did not have to address the issues raised in the worker's request for reconsideration. He disagreed with Review Office determining that the issues were moot. He asked the Appeal Commission to address the issues or direct Review Office to address the issues.

The worker's Appeal Form states that:

"It was only when the worker filed his appeal with regards to the 1991 wage loss deem based on a Drafts Person, the Review Office made the decision to go back 28 years to 1986 and terminate the worker's wage loss benefits. As a result, the Review Office refused to answer to the issues raised in worker's Appeal dated May 23, 2014. They stated, "The issues brought forward by the worker's representative are considered moot".

The worker disagrees with that position, and claims the Review Office has failed to do their statutory duty set out in the WCB Act, and provide him a decision based on the issues the worker raised in his May 2014 appeal."

Merits of the Decision

With respect to the merits of Review Office decision, the worker's counsel suggested that the overwhelming evidence supports that the worker was injured in the workplace accident and has never recovered.

The worker's counsel noted that Review Office appeared to give significant weight to a claim review by a third party consultant. He noted that the report neither identifies the author nor the author's qualifications. He suggested this report should receive little weight.

The worker's counsel noted that in the April 16, 1985 report of an external orthopedic specialist, the specialist suggest that the worker not return to his pre-accident occupation. He also noted that in an August 30, 1985 report, the same specialist commented that a myelogram (CT scan) reported at the L5-S1 there is a small central disc protrusion but the clinical significance of this lesion is uncertain.

The worker's counsel noted that the January 21, 1986 report from a neurologist indicates no abnormal findings. The worker's counsel said that this does not tell the whole picture. The worker continued to complain of pain shooting down the leg and believes this demonstrates continued nerve involvement. He noted that the worker was being treated at a pain management clinic in 1987.

The worker's counsel noted that in a memo arising from an October 14, 1992 examination, a WCB orthopedic consultant opined that the worker's injury "likely exacerbated" the worker's degenerative disc disease, although there is no objective evidence that the injury itself is causing the ongoing difficulties.

The worker's counsel also addressed the issues which the worker had originally appealed to the Review Office and which Review Office declined to address in its decision.

Notice of Termination of Benefits

The worker's counsel submitted, that Review Office should have provided notice to the worker in accordance with WCB Policy 44.30.60, Notice of Change in Benefits or Services. He noted Review Office position that

"Notice starting with the date of the decision letter is only applicable if the worker was not provided with any type of notice prior to the decision letter going out as stated in 4.(b). 4(d) states that part of advanced notice can and should include anticipated changes in benefits as communicated to the worker and part 4(e) states that up to 12 weeks can be provided if approved by the Director. This was discussed with my Director and the decision was that the screening letter sent on June 5, 2014 was sufficient advance notice."

The worker's counsel requested that the worker be provided with 12 weeks notice from the date that his benefits were terminated.

After the close of the oral hearing, the panel provided the worker's counsel the opportunity to provide a written brief outlining the worker's position on the validity and application of WCB Policy 21.00. The worker's counsel provided a submission.

Employer's Position

The employer provided a written submission with a cover letter dated November 25, 2014. The submission indicated, in part, that:

"We are certain that the decision by the Review Office to expand the issues raised by the worker's advocate was made with careful consideration and with sensitivity to the impact this decision would have on the worker. However, four orthopedic surgeons found no neurological deficit or very little in the form of positive findings. There was insufficient medical evidence to support that the worker's ongoing difficulties were related to his work place injury....The Review Office Decision should be upheld."

Analysis

As noted above, the worker's appeal raised several matters in addition to an appeal of the Review Office decision. The panel has chosen to address the jurisdictional and procedural matters raised by the worker's representative prior to addressing the decision regarding entitlement to benefits after March 2, 1986.

1. WCB Policy 21.00 - Right to Expand Issues and Requirement for a Written Decision

Right to Expand Issues

This case involves the re-adjudication of a claim almost 31 years after the worker's July 18, 1983 accident. The worker first began to receive benefits in 1983 and had continued to receive various benefits through most of this period until the Review Office decision of July 15, 2014.

In response to an appeal by the worker of three specific issues on the worker's claim arising from decisions made in 1991 and 2001, Review Office gave notice that it was expanding the issues to include the issue of whether the worker is entitled to benefits and other additional issues. Review Office determined that the worker was not entitled to benefits beyond March 3, 1986. It declined to address the other issues, including the issues which the worker had appealed.

In support of its decision to expand the file and review a decision made approximately 28 years ago, Review Office noted in a memo dated June 9, 2014 that "...we are unable to decide on these issues without first evaluating ongoing responsibility of the worker's back condition. Section 60(3) allows the board to review decisions at any time."

The panel acknowledges that the Act in conjunction with WCB Policy 21.00, Review Office, provides Review Office with the authority to reconsider any decision at any time, as it did in this case. Specifically the Policy provides that:

"The Review Office will normally review decisions for which a request has been received, but may include any issue if in its opinion it is reasonable and necessary to undertake a fair and impartial review. For example, it may be that a decision appears to be in error or the request for reconsideration implicitly involves another decision."

The panel finds that Review Office did not exceed its jurisdiction as provided by the Act and policy in reviewing the worker's entitlement to benefits.

As noted earlier, the worker's counsel expressed concern that Review Office's actions in this case are "heavy handed" and in bad faith. He expressed concern that the power to reconsider can be used to intimidate workers and prevent them from seeking review of important decisions.

The panel finds that Review Office's actions were not in bad faith.

The worker's counsel submitted that Review Office "did not identify and provide to the worker a decision from the primary adjudicative level, for which reconsideration was not sought." The worker's counsel noted that Section IV of the Policy states "before reviewing a decision for which reconsideration was not sought" infers there must be a decision in existence to review in the first place. He submitted that "the meaning of decision is a written decision sent to the worker."

In this case, Review Office was not able to refer to a specific decision. The Director of Review Office suggested, in a memo to file dated June 19, 2014, that "while the worker may not have received a specific decision in 1991 or some other date with reasons re: why ongoing benefits were paid, the order to pay benefits is a decision in itself although not in the traditional sense."

The panel finds that a written decision is not required where entitlements to benefits is being continued on an ongoing basis. We note that the Policy refers to reconsideration of a "matter or specific decision." We recognize that many decisions are made on claims and other files where a written decision is not provided. We agree that each time a further payment is made to a worker, there is in essence a decision notwithstanding that it is not written and provided to the worker. What is important is that the parties understand the issue that is being raised, have access to relevant information, and are able to make representations regarding the issue before a decision is made.

Refusal to Address Issues Appealed by Worker

The worker submitted that in refusing to consider the issues the worker had appealed, Review Office was in breach of its statutory duty set out in the Act. He said it was inappropriate to label the issues as "moot" and not address them.

The panel disagrees with the worker's position. The panel finds that where there is an overriding issue which impacts or supersedes other issues, it is available to Review Office to address the main issue without addressing the inferior issues.

In the case in front of the panel, the determination by Review Office that the evidence showed the worker had recovered by March 3, 1986 rendered all decisions following that date to be of no consequenc, therefore not applicable.

Merits of the Issue under Appeal

The issue before the panel is whether the worker is entitled to benefits after March 2, 1986. For the worker's appeal of this issue to be approved the panel must find that the medical evidence, on a balance of probabilities, establishes that the worker was unable to work as a result of his 1983 workplace accident. The panel was not able to make this finding.

A review of the file shows that the evidence on file as of March 1986 does not support a finding, on a balance of probabilities, that the worker continued to be disabled due to the accident and therefore the worker is not entitled to benefits. The panel attaches weight to the following evidence:

• opinion of an orthopedic specialist on October 18, 1983 that "I thought that this man had sustained a simple lumbosacral strain, probably related to his leg length discrepancy. I did not think any active treatment was required...suggested he wear a half inch right heel lift."

• the opinion of a second orthopedic specialist who saw the worker on March 23, 1984 and opined that the worker had degenerative disc disease and a lumbar disc strain. He indicated the worker had "mechanical low back pain" and that he could find no evidence of neurological compromise.

• opinion of third orthopedic specialist who saw the worker on April 16, 1985 and commented that "Though this man has a major amount of complaints I cannot see very much in the form of positive findings." The orthopedic specialist reviewed the file again and concluded "I am unable to find anything to account for his symptoms and as such no treatment can be recommended."

• opinion of a neurologist who saw the worker on January 26, 1986. After obtaining nerve conductions studies and reviewing the file, the neurologist wrote that "On examination this patient was able to stand, sit, walk normally. Examination of the spine no abnormality. The triptik test was negative, straight leg raising, Lassaigue and Kernig's test were all normal. Motor and sensory examinations, reflexes, plantars, stance , gait and Romberg's test were all normal. Impression I cannot find any neurological defect in this patient at the present time."

• opinion of WCB orthopedic consultant who examined the worker and noted that there are many hypotheses for the worker's mechanical back pain with the most likely being lumbar degenerative disc disease with mechanical dysfunction. He opined that the worker's general deconditioning is another factor contributing to stiffness and pain."

The panel finds that the above reports, on a balance of probabilities, establish that the worker was not entitled to wage loss or medical aid benefits related to the July 18, 1983 workplace injury beyond March 2, 1986.

The worker's appeal is dismissed.

Notice of Termination of Benefits

The panel notes that Review Office made a secondary determination on this case related to the worker's entitlement to notice of change in benefits. The panel disagrees with Review Office's decision on this matter and finds that the worker is entitled to 12 weeks of benefits calculated from the date the Review Office decision was signed and communicated to the worker. The panel relies upon WCB Policy 44.30.60 in authorizing this payment.

The worker's appeal is dismissed.

Panel Members

A. Scramstad, Presiding Officer
R. Koslowsky, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 26th day of May, 2015