WORKERS COMPENSATION APPEALS TRIBUNAL

Transcription

1 WORKERS COMPENSATION APPEALS TRIBUNAL DECISION NO. 1025/94 This appeal was heard in Toronto on December 5, 1994, by a Tribunal Panel consisting of: R.E. Hartman : Vice-Chair, G.M. Nipshagen: Member representative of employers, F. Rao : Member representative of workers. The post-hearing matters were completed in April of THE APPEAL PROCEEDINGS The worker is appealing a decision of N. Kissoore, Hearings Officer, dated May 11, 1994, which denied him entitlement to a permanent disability assessment for a compensable back disability. The worker was present and represented by D. Thompson, union representative. THE EVIDENCE The Panel had before it the Case Description materials, volumes 1 and 2, together with two Addenda, which were entered as Exhibits #1 to #4. The Panel heard sworn testimony from the worker, who was questioned by his representative and the Panel. The worker had a complex claim history at the Board, with respect to low back pain. The Hearings Officer decision under appeal expressly referred to six of these claims. Reference to additional accidents/claims were made in materials and the testimony. Following the hearing, the Panel requested clarification from the WCB regarding the worker s other low back claims, and from the worker s treating doctor, Dr. E. Clark. Written submissions on this information were received from G. Murphy, the union representative who replaced D. Thompson and had carriage of the file. THE NATURE OF THE CASE The appeal before the Hearings Officer related to six compensable accidents involving the lower back: December 3, 1984, January 11, 1985, May 23, 1985, June 3, 1986, October 17, 1988, and April 27, The Hearings Officer found as follows: Given the lack of medical continuity between March, 1985 and his further accidents in and after 1989, the Hearings Officer concludes there is insufficient evidence to establish that [the worker] had suffered a permanent disability as a result of any of the occurrences accepted under Claims [for the December 1984, January 1985, May 1985, June 1986, October 1988]. Noting Dr. Clark s report of March 13, 1985, it appears to the Hearings Officer that the medical evidence establishes that the worker had returned to his pre-accident state by March 13,

2 CONCLUSION The Hearings Officer concludes [the worker] does not have ongoing entitlement and is not entitled to a permanent disability assessment under the following claims: [December 1984, January 1985, May 1985, June 1986, October 1988]. [Although the decision expressly includes the claim number for the April 27, 1989 accident in the heading and in the pages following and defines the issues as an assessment request under all or any of the above-noted claims for the worker s low back condition, the text of the decision itself omits this claim number in the findings. Given the Panel s review of the decision in its entirety, this omission appears to have been an oversight, rather than any indication of the Hearings Officer having come to a different conclusion with respect to the 1989 claim.] The worker had received various periods of temporary benefits, resulting from the above six claims. There were claims for low back accidents both before and after the period covered by these six claims. The worker received a Non-Economic Loss ( NEL ) award as a result of a compensable accident on August 10, 1990, for his low back condition. The worker s representative submitted that the key cause of the worker s current permanent low back impairment was the accident on January 11, 1985, and that, therefore, a life-time pension award should be made under the old pension scheme in addition to the 1990 NEL one-time award. To pursue this, he requested that the worker be assessed by the WCB to determine entitlement under the Act as it stood prior to the NEL provisions. The issue before the Panel is whether or not the worker is entitled to an assessment by the WCB of his low back disability to determine entitlement to a permanent pension as a result of the six claims before the Hearings Officer. While an assessment only is being requested, it is clear that it is for the purpose of pursuing a permanent pension award under one or more of the pre-1990 claims. THE PANEL S REASONS The worker s claim history at the WCB was, at the time of the hearing, incomplete and uncertain. Attempts by the Panel, at the hearing and post-hearing, to clarify the claim/accident history were unsuccessful. This made an informed assessment of the limited and fragmented medical reporting before us impossible as there was no clear context within which to place that information. While references to low back claims/accidents subsequent to April 27, 1989 (the most recent of the six claims before the Hearings Officer), theoretically need only be addressed by this Panel to the extent they affect the medical opinion regarding this worker s current low back condition, references to low back claims/accidents before and during the period before this Panel - December April were critical when considering the impact of the six specified claims under appeal in that period. While the Panel directed the Tribunal Counsel Office to clarify with the WCB, the worker s claim history, the WCB s reply had the unfortunate result of further complicating the claim history. The computer data supplied indicated there was a further low back claim (February 2, 1994), not mentioned in the information before the Panel, and that two claims for accidents on October 17, 1988, and May 23, 1985 were not now in the WCB records even though they were before the Hearings Officer in this appeal. As well, the WCB records did not confirm accident claim files for three other low back 2

3 accidents [May 19, 1983, July 17, 1984, December 8, 1989], which were mentioned in the materials but were not expressly before the Hearings Officer on appeal. The Panel does not know the reason for this incongruity. The Panel wrote to Dr. Clark, the treating orthopaedic specialist in the period 1985 to 1994, to obtain clarification with regard to the worker s medical history. The Panel felt that Dr. Clark would be in a good position to assess the worker s condition in the 1985 to 1990 period, and to distinguish it from his current condition, as well as confirming when maximum medical recovery was reached from each of the accidents. Dr. Clark was advised of the six claims referred to by the Hearings Officer, as well as additional injuries to the back on May 19, 1983, and July 17, 1984, and December 8, 1989, for which no claim information was available. Dr. Clark s response on February 14, 1995, indicated that it was his impression in all the times that I have seen [the worker] that his symptom complex was in keeping with degenerative disc disease of his lumbar spine with some suggestion of stenosis, and this has actually progressed over the years. Dr. Clark noted that there were apparently other factors that will be aggravating the symptomatic complex. Given the confused state of this worker s multiple claim history to the same area of the back in the period under review, more complete information is required to properly assess the impact of the six claims, considered by the Hearings Officer, on the worker s condition prior to the 1990 NEL award. The Panel s attempts to obtain a fuller picture of the worker s claims history and medical record prior to making any conclusions on the medical evidence before it were, as stated, unfruitful. In order to best determine compensation claims, one must look at the whole person and put the various events and findings in context. Given the particular circumstances of this case, the WCB is in the best position to sort out the administrative anomalies in this worker s claim history. Only when the claim history is clarified can a determination be made as to what medical evidence is relevant to determine the issue of pre-1990 residual low back disability. The Panel considered the narrow nature of the appeal - a request for an assessment - and the significant gaps in the evidentiary base before it, as well as the administrative inconsistencies regarding claim history. The Panel determined that in the peculiar circumstances of this case it would be more expeditious and fair to grant the worker s request for an assessment, with conditions designed to ensure a full evidentiary base, than to issue an interim decision and engage in protracted post-hearing communications with the WCB and the worker in an effort to sort out the contradictory information supplied by the WCB and the worker. Once assessed, the decision is appealable through the usual channels, and if necessary, can be considered again by a Panel of this Tribunal. It may well be that, in addition to the 6 claims now adjudicated up to the final level at the WCB, the worker might request assessment under other pre-1990 claims. It would be appropriate that such claims be consolidated so that any future panel of the Tribunal will be able to take more of a whole person approach to this worker s pre-1990 pension entitlement. The Panel, as part of its post-hearing inquiry, received the assessment of the worker s NEL award and notes that this award, under the August 10, 1990 claim, appears to have considered the 1985 claim, among others, in arriving at 14%. The August 1990 employer was granted 50% Second 3

4 Injury and Enhancement Fund relief (SIEF) on the basis of a major pre-existing disability. The Claims Adjudicator, in a memo dated January 12, 1993, identified the pre-existing condition as related to the accidents of January 11, 1985, May 23, 1985, June 3, 1986, October 17, 1988, and April 27, 1989 (i.e. four of the six accident claims before the Hearings Officers), as well as an accident on March 21, Putting aside, for the moment, the question of what went into the NEL award in terms of prior conditions and what did not, the Panel has neither complete and relevant medical information nor a complete and accurate WCB claim history with respect to the pre-1990 period before the Panel. From a total of approximately 13 alleged claims opened and decided in this period which affect the low back, this Panel has confirmation only of six or eight. Six claims were reviewed by the Hearings Officer in his decision. Eight claims were confirmed by the WCB: four pre-1990 and four post The only issue before the Panel was the worker s request to be assessed under the pre-1990 Act for the six claims noted. There is no need for the Panel to remain seized once it determines that an assessment should be granted. In order to make that determination meaningful however, the Panel directs that the assessment be carried out after the appropriate branch of the WCB has thoroughly reviewed the worker s claim history and the medical records contained in each claim related to the low back to ensure that the WCB Medical Assessor has as complete medical documentation as is possible for the period prior to the 1990 statutory change. The Panel s letter to Dr. Clark and his response should be before the Medical Assessor for consideration, along with Dr. Clark s earlier reports. In the particular circumstances of its determination of this appeal, it would be premature for the Panel to make any comment regarding this worker s entitlement to a pension award under any or all of the claims regarding his low back in the period before it. While in some cases it is appropriate to conclude on the medical evidence that some residual disability exists with respect to particular accidents and refer the worker back to the WCB for assessment purposes only as to quantum, this is obviously not such a case. A WCB decision regarding entitlement, following the assessment ordered as a result of this appeal, is appealable as a fresh issue in the normal manner. This Panel, having granted the worker his request for an assessment, does not remain seized. 4

5 THE DECISION The worker s appeal for an assessment for a permanent partial disability award regarding the six claims before the Hearings Officer is granted for the above reasons. The Panel directs the WCB to assess the worker s entitlement to a pension under the six claims noted by the Hearings Officer, using the whole person approach, after undertaking a complete review of the worker s claim history and medical documentation. DATED: October 30, 1995 SIGNED:R.E. Hartman, G.M. Nipshagen, F. Rao 5