Decision #108/21 - Type: Workers Compensation
The worker is appealing the decisions made by the Workers Compensation Board ("WCB") that she is not entitled to further benefits and services including temporary total disability, medical aid, permanent partial disability and vocational rehabilitation. A teleconference hearing was held on May 6, 2021 to consider the worker's appeal.
Whether or not the worker is entitled to further benefits and services including temporary total disability, medical aid, permanent partial disability and vocational rehabilitation.
That the worker is not entitled to further benefits and services including temporary total disability, medical aid, permanent partial disability and vocational rehabilitation.
The worker has two accepted claims with the WCB. The first claim is for an upper back injury that occurred at work on November 10, 1988. The worker was diagnosed with a soft-tissue strain injury and related muscle spasm and three days' wage loss was paid. The worker contacted the WCB in or about November 1989 to report ongoing difficulties, but responsibility for the worker's ongoing difficulties was not accepted as the medical evidence did not establish a connection between those difficulties and the workplace accident.
The second claim was for an incident at work on October 12, 1989, where the worker injured her right shoulder, back and leg. The diagnosis provided for the worker's right shoulder and arm was a soft-tissue strain injury. Due to ongoing reports of pain, the worker underwent a right shoulder anterior acromioplasty and bursectomy in December 1990, after which the treating orthopedic surgeon reported reasonable recovery of range of motion and strength. The worker was referred for a reconditioning program or about March 1991, and when assessed by a rehabilitation medicine specialist in August 1991, the worker was diagnosed with "…chronic pain syndrome with behavioural disturbance…perpetuated by stress, anger and tension." The worker was then provided with further treatments extending to December 1991.
Between February 1991 and April 1993, the WCB provided the worker with various forms of medical aid and vocational rehabilitation services. Effective May 1, 1993, the worker's wage loss benefits were discontinued as it was determined that the worker was not fully participating in the vocational rehabilitation efforts and was not totally disabled from working. A further comprehensive reconditioning program was arranged for the worker and full temporary total disability benefits were paid from December 14, 1994 to May 31, 1995 while the worker was participating in that program.
The worker continued to report ongoing issues which she related to the two workplace accidents in 1988 and 1989. In October 1998, the WCB agreed to convene a Medical Review Panel to interview and examine the worker and consider her claim. The Medical Review Panel met on March 19, 1999. In their report from those proceedings, the Panel subsequently concluded, in part, that the worker had fully recovered from the effects of the work-related injuries and the only relationship between the worker's present diagnoses and her work-related injuries was temporal.
On May 14, 1999, Review Office determined that the worker:
…has fully recovered from the effects of her work-related accidents in 1988 and 1989; and had probably done so by August 1991…when the predominant diagnosis of her ongoing complaints apparently related to a somatoform pain disorder, and psychological factors; and
…there are no further benefits payable, or services which should be provided, under the provisions of the Workers Compensation Act…in respect of this claimant's work-related accidents in November 1988 and October 1989 (including wage loss, medical aid, impairment benefits, and rehabilitation services)…
The WCB had limited contact with the worker between 2001 and 2007, when a review of the worker's file was undertaken to determine a permanent partial disability ("PPD") rating and award. On February 19, 2007, following the recommendation of a WCB physiotherapy advisor, the WCB determined that the worker was entitled to a 1% PPD award for cosmetic disfigurement.
On April 1, 2008, the worker requested that Review Office reconsider the May 14, 1999 decision that she was not entitled to further benefits, and provided a submission detailing her disagreement with various decisions on her claim. On April 9, 2008, Review Office determined there would be no change to the May 14, 1999 decision and the worker was not entitled to benefits beyond those she had already received. Review Office noted the worker's submission did not provide any additional medical information to support her request for retroactive entitlement to further benefits.
On March 24, 2009 and October 20, 2016, in response to further requests for reconsideration, Review Office advised that there would be no change to the earlier decisions. On June 8, 2020, the worker again requested that Review Office reconsider their decisions, and by letter of the same date, Review Office advised the worker that as no new medical or other information had been provided, the earlier decisions would not be reconsidered.
On January 19, 2021, the worker appealed the Review Office decision to the Appeal Commission, and a teleconference hearing was arranged and proceeded on May 6, 2021.
Following the hearing, the appeal panel requested additional medical information prior to discussing the case further. The requested information was later received and was forwarded to the worker for comment. On August 16, 2021, the appeal panel met further to discuss the case and render its final decision on the issue under appeal.
The Appeal Commission and its panels are bound by The Workers Compensation Act (the "Act"), regulations under the Act and policies established by the WCB's Board of Directors.
As the workplace accidents occurred in 1988 and 1989, the provisions of the Act as they existed at that time are applicable.
Subsection 4(1) of the Act provided that where a worker suffered personal injury by accident arising out of and in the course of employment, compensation shall be paid.
Subsection 4(2) provided as follows:
4(2) Where an injury does not disable the worker during any period after the day on which the accident occurs, no compensation other than medical aid is payable; but if the injury disables the worker 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 27(1) of the Act allowed the WCB to provide such medical aid or treatment in addition to other compensation as the WCB "…may deem reasonably necessary at the time of the injury, and thereafter during the disability, to cure and relieve from the effects of the injury…"
Subsection 27(15) of the Act allowed the WCB to provide vocational training to an injured worker whose earning capacity had been permanently impaired by the injury.
Subsection 40(1) of the Act allowed for compensation with respect to permanent partial disability where permanent partial disability resulted from the injury.
Subsection 43(1) of the Act provided for temporary total disability compensation where such disability resulted from the injury.
The worker was self-represented on the appeal. The worker made an oral presentation at the hearing and responded to questions from the panel.
The worker's position was that she has not recovered from the effects of her work-related accidents and injuries, and is entitled to further benefits and services.
The worker submitted that the WCB process resulted in re-injuries from which she has never recovered. She argued that the WCB did not honour reports from her healthcare providers. The WCB ignored the permanent restrictions which were provided and sent her back to work in unacceptable and unsafe conditions, which resulted in her being re-injured. Rough treatment at a WCB call-in examination further resulted in her back being snapped and re-injured.
The worker submitted that numerous procedures or treatments which she underwent and were covered by the WCB were evidence of the permanent nature of her injuries. Surgery was required for right shoulder impingement, which helped but did not correct her problems. Numerous cortisone shots were administered, which caused further damage to the muscular area and spinal column and resulted in the bursa having to be removed. The worker submitted that she still suffers spasms to her back and spasming affecting her right arm and back and her functionality. She noted she continued to require medication, which was also evidence of her continuing problems.
The worker added that she has continued to receive a permanent partial impairment award or pension of $18.12 per month. She noted that this is not enough to cover really anything, but submitted that the fact that she qualified for such a pension again indicated that her condition was permanent and compensable.
The worker further submitted that poor filing practices and procedures at the WCB resulted in medical reports and other information not being reviewed and being lost or ignored, and influenced the decision-making process. The worker noted she also injured her back in a slip and fall incident at the workplace, which she reported to the employer, but the employer's report and references to that incident are missing from the file. The worker further stated that she had provided numerous medical reports for the Medical Review Panel, which were to be copied to the WCB file and returned to her, but the reports went missing. The worker argued that as a result, when it came to the Medical Review Panel, these reports and above issues were not taken into account or were brushed to the side.
The worker stated that as a result of her work-related injuries, she has been unable to work and has suffered a loss of income. She submitted that wage loss benefits should be reinstated as of the cut-off date. In addition, she said she still requires medical aid benefits as a result of her injuries, including for medications and physiotherapy, where needed, and is entitled to be reimbursed for amounts she has paid out of pocket for such items. She also requires assistance and supports for daily living, including mobility issues, home modifications and yard care; replacement of items the WCB had covered before, including heating pads and a back support; and provision of other items needed to control or minimize her back spasms.
The employer did not participate in the appeal.
The issue before the panel is whether or not the worker is entitled to further benefits and services including temporary total disability, medical aid, permanent partial disability and vocational rehabilitation. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker's ongoing difficulties are related to the injuries she sustained in the workplace accidents of November 10, 1988 and/or October 12, 1989.
Based on our review of all of the information which is before us, on file and as provided at the hearing and in response to requests from the panel, and the submission of the worker, the panel is unable to find that the worker's ongoing difficulties are related to her workplace accidents.
The panel is of the view, based on the evidence, that the mechanism of injury and the initial injuries, as reported, appear to have been relatively minor in nature.
The panel relies on and accepts the report of the Medical Review Panel who, following their review of the WCB files and examination of the worker, opined:
• That the worker's work-related accidents likely resulted in soft tissue strains to the right shoulder and right upper back.
• That the worker had fully recovered from the effects of the work-related injuries.
• That the present diagnoses of the worker's condition and etiology of the condition were somatoform pain disorder, due to underlying psychological factors; congenital cervical fusion; thoracolumbar spondylosis, consistent with the aging process; and abnormalities consistent with premature delivery.
• That the only relationship between the worker's present diagnoses and her work-related injuries was temporal. (i.e. There is no medical relationship)
• That there was no cause and effect relationship between these work-related accidents and the worker's current lumbar complaints.
While the worker stated that medical reports and information were ignored, lost or not taken into account, including reports which had been submitted to be reviewed and considered by the Medical Review Panel, the panel is unable to arrive at that conclusion. The panel notes that there is a very considerable amount of medical information on file from the worker's treating healthcare providers. The report of the Medical Review Panel states that they were supplied with the "Workers Compensation Board records, plain x-rays, CT and MRI scans." The report also indicates that the worker provided the panelists with "a further box of medical documents, records and a fair number of plain x-ray films" and that those documents and films "that were not already in the Workers Compensation Board files were copied and distributed to the Panel Members."
The panel notes that when asked at the hearing whether the original injuries to her right shoulder, upper back and neck were better or worse, the worker responded that they were all worse now. The panel is unable to account for such a worsening of the worker's conditions or injuries in relation to the workplace accidents.
The worker argued that the fact that she qualified for a permanent partial impairment or disability award or pension indicated that her condition was permanent and compensable. The evidence shows, however, that the 1% PPD award was for cosmetic disfigurement only, relating to a scar from the worker's December 1990 surgery.
While the worker referred in her submission to a slip and fall in the workplace having resulted in further back or disc difficulties, the panel notes that there is not only, as indicated by the worker, a lack of evidence on file with respect to any such incident, but no separate claim appears to have filed relating to same.
In conclusion, the panel acknowledges the worker's reports of continuing pain and difficulties, but is unable to find that the medical evidence supports that her continuing or ongoing difficulties are causally related to the workplace accidents or compensable injuries.
As a result, the panel finds, on a balance of probabilities, that the worker had functionally recovered from her compensable injuries and her ongoing difficulties are not related to the injuries she sustained in the workplace accidents of November 10, 1988 and/or October 12, 1989. The panel therefore finds that the worker is not entitled to further benefits and services, including temporary total disability, medical aid, permanent partial disability and vocational rehabilitation.
The worker's appeal is dismissed.
M. L. Harrison, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
M. L. Harrison - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 7th day of September, 2021