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The following is the most recent appeal I've filed with the Saskatchewan Workers’ Compensation Board (August 24th, 2006). In it I refute all the issues (excuses) that have been used to deny my work injury claim to date.  

  

It should be noted that on April 23rd, 2007, the Members of the Board at WCB finally rendered their decision. For those of you counting, that’s an 8-month waiting period. While this in itself may seem unremarkable, the extraordinary part is that when all was said and done the Board did not address one single issue in my appeal. In light of the fact it was they who initially raised these issues, and denied my claim as a result of them, this would have to be the most blatant example of the injustice surrounding my case. 

 

At any rate you will find the Board’s decision immediately following my appeal... Should you choose to review it without first reviewing my appeal, you will unquestionably fail to see the injustice in it.

 

______________________________

 

 

Thomas Brown

1114 – C Blackwood St. N.

Regina, Sask.

S4X 3E5

 

 

August 24th, 2006

 

 

Members of the Board

Saskatchewan Workers’ Compensation Board

200 – 1881 Scarth Street

Regina, Sask. S4P 4L1

 

 

Re: Thomas Brown – WCB Claim #1007 0989 21D

 

 

 

Members of the Board:

 

The following is to appeal the Board’s non-acceptance of my work injury claim, and is further to the appeal documentation I submitted on June 3, 2005. Initially I had intended to supplement that appeal with additional medical information, and had requested that the Board Members hold their decision for this reason. However, I have since decided to replace that appeal documentation altogether. While the issues raised in it are well founded, and the Members of the Board are certainly welcome to review it; the following will focus more on the central issues of my claim.  

 

On September 7th, 1997 while employed with Regional Tree Service in Regina, a very significant change occurred to my 16-year tree trimming duties. Instead of performing my regular duties of trimming trees with a chainsaw from a man lift basket (cherry picker), I was required to trim them manually with a 30 foot tall ‘Pole Saw’ while standing on the ground. Although I awoke the following morning with mild pain in my neck, shoulder, and right arm, I performed pole saw duties on 3 other occasions by which time my symptoms had significantly worsened to a point where medical attention was sought.

 

After learning I had a herniated disc in my neck I continued to perform my managerial duties for Regional Tree Service, and whatever lighter duties I was capable of. Considering my employer had started his business in light of my Arborist (tree trimmer) and EUSA (power line) certification, and this certification was a prerequisite for the SaskPower contracts his business depended upon; I remained on his job site for these reasons.  

 

These are the facts of my work injury claim and they have been substantiated ad nauseam by my now former employer, my physicians, and myself. While further clarification has been offered over the years, in no way has this information changed as implied in the Board Member’s September 29, 2004 decision.

 

As the Members of the Board will know, it is my contention that my injury occurred as a result of the significant change in my work duties. In other words my injury arose out of, and in the course of my employment (Section 29 of The Workers’ Compensation Act, 1979). Further, it is the contention of my physicians that my pre-existing condition (degenerative arthritis) was both aggravated and accelerated by this injury (Section 50 of The Workers’ Compensation Act, 1979).

________________________

 

By decision dated April 21, 1999, the Members of the Board denied my claim consideration under Section 29 of the legislation stating:

 

“The Board next considered whether the duties of a tree trimmer could account for a posterior cervical disc protrusion. While Mr. Brown has medical support through Dr. Ekong’s report and Dr. Katz’s submission, the factual review of the possibility concerning disc protrusion occurring as a result of flexing one’s neck backward to perform the duties of pole sawing, could not physically result in a posterior disc protrusion. Therefore, the Board find that the medical opinions presented must be discounted as incomplete.”

 

While I will eventually be addressing this issue further in this appeal, I will however take this opportunity to point out that “the possibility concerning disc protrusion occurring as a result of flexing one’s neck backward”, is not an issue for factual review by the Board. It is in fact a medical issue and despite the November 7, 2003 request of advocate Marilyn Bird; the Board has refused to provide medical evidence that substantiates this statement, let alone any factual evidence.

 

By the same decision (April 21, 1999) the Members of the Board also denied my claim consideration under Section 50 of the legislation, stating:

 

“The Board do not believe the work duties materially aggravated or accelerated Mr. Brown’s underlying condition as he did not stop working at the time he claimed to have experienced difficulties but rather continued to complete the contract and, in fact, increased the number of hours that he worked.”

 

The Members of the Board argued this point further in their January 15, 2004 decision stating:

 

“He began a new contract in October commencing on October 16, 1997 working full eight to nine hour days. It was also this contract that he presented as requiring 90% pole sawing in his work duties.”

 

The Members of the Board again argued this point in their September 29, 2004 decision stating:

 

“He began a new contract in October commencing on October 16, 1997 and it was with this contract that he reported requiring 90% pole sawing duties. This statement is contained in his letter of June 28, 1998.”

 

With these statements the Board has repeatedly implied that I continued to pole saw after learning of my disc herniation. This was not the case and the Members of the Board have been made aware of this fact. The purpose of my June 28, 1998 statement was to stress how the demand for pole sawing had significantly increased over a short period of time. Any reference made to the October pole-sawing duties being my own was due to the fact that as manager, and the only certified Utility Arborist on staff; these duties were in fact mine as was every aspect of this line-clearing operation. In his letter of June 2, 2003 (submitted with my Nov. 7/03 appeal) my former employer reaffirmed his position regarding these issues, stating:

 

“Tom and I worked together on every job sight of every SaskPower contract awarded to my company in 1997. Without his qualifications and contacts within SaskPower such contracts would not have been obtainable by me. As the only qualified person on staff Tom was required to be present during all line clearing operations.

 

The large majority of SaskPower line clearing (prior to Sept/97) was performed by aerial lift of which Tom was the sole operator. In early September some areas became inaccessible by aerial lift and had to be cleared manually by pole saw. It was at this time that I first became aware Tom had injured his neck. It also became apparent that the more he pole sawed the worse his symptoms became.

 

When an additional contract (requiring mostly pole sawing) was awarded to me I insisted that Tom see his doctor about his neck. After learning the extent of his injury additional personnel were hired to relieve him of pole sawing. Tom performed much lighter duties from that point on.

 

Where it is true there was an increase in the amount of hours Tom worked, he worked them performing lighter/managerial duties. These hours were also worked in an effort to meet the requirements of the new contract. This contract would have extended into 1998 (until the next tendering) and I had renewed Tom’s tree pruner license for that purpose. Unfortunately he was unable to continue working.”

  

Further to this issue it should be noted that my former employer’s payroll statement to WCB confirms that additional personnel were hired when his October 16, 1997 contract commenced.

 

Regardless that my former employer’s submission corroborates my report of light duties, and refutes the reason used to deny my claim consideration under Section 29; for reasons unstated the Board Members remain adamant that I continued to pole saw after learning of my disc herniation. It is my contention that this contravenes Section 25(1) of The Workers’ Compensation Act, 1979.

________________________

 

As acknowledged in the Board Members April 21, 1999 decision, my work injury is supported with medical reports from neurosurgeon Dr. Ekong, and my primary physician Dr. Katz. The only other medical opinion available to the Board is that of its own medical advisor Dr. Cadman, who dismissed the possibility of a work injury occurring. Although the Board has never clearly indicated to what extent Dr. Cadman’s opinion was used in arriving at their decision, there are numerous inconsistencies with the information on which his reports were based.

 

As evidenced by the WCB file documentation concerning my claim, the medical information provided to Dr. Cadman did not include the abovementioned reports of my physicians. In fact, the file documentation shows that the medical evidence available at the time of Dr. Cadman’s assessment was for the most part preliminary. More importantly this documentation shows that when updated medical evidence was received by the Board, Dr. Cadman was not consulted with this information, nor were any other WCB medical personnel. Bearing in mind that the last consultation from Dr. Cadman was on September 2, 1998; the following is a list of medical reports that have neither been received nor reviewed by Board medical personnel:

 

1.       The December 16, 1998 medical report of my primary physician Dr. Ronald Katz

2.       The January 4, 1999 medical report of attending Neurosurgeon Dr. Chris Ekong

3.       The February 5, 1999 consultation report (Dr. Ekong/Dr. Katz)

4.       The February 19, 1999 radiology report of Dr. E.C. Lembke

5.       The March 12, 1999 MRI report of Dr. C. Wallace

6.       The March 23, 1999 consultation report (Dr. Ekong/Dr. Katz)

7.       The October 9, 2003 medical report of attending Neurosurgeon Dr. Chris Ekong

 

As also evidenced by the file documentation, as well as his February 16, 1998 report, Dr. Cadman was provided 2 WCB reports that clearly contained false and misleading information. The first report dated November 3, 1997 was from CSR Kathy Basnicki in which she reported my neck injury occurring as a result of “lifting portions of logs”. Regardless that this was established as being Ms. Basnicki’s misinterpretation of the information provided to her by telephone (see March 19/99 memorandum to file – Pg. 4 Para. 1); at no time was Dr. Cadman advised of this significant fact. While pole sawing was mentioned in his report, Dr. Cadman did not comment on whether or not this activity could account for my injury. He instead determined:

 

“There was no injury to this man’s neck. His description of injury of lifting portions of logs should not cause his present status.”

 

By memorandum dated February 16, 1998, Dr. Cadman was specifically directed to a second report containing false and misleading information. This report was entered into my file by Client Services Manager Ernie Hinck on February 2, 1998, and is also in regards to a telephone discussion. One area of concern is Mr. Hinck’s apparent recollection of me stating, “he always did have a pronounced right-sided weakness, notably the right arm”. Under no circumstances have I ever made such a comment regarding the injury I sustained 22 years earlier. To date, the only comment I’ve made with respects to this was in my letter of June 28, 1998 where I stated, “the only lingering affect from this 22 year old injury had been a slight decrease in range of motion in my right arm.”

 

While it is true Dr. Cadman made no direct reference to Mr. Hinck’s comment, this unquestionably contributed to his medical theory that “Obviously, this man has had a lot of longstanding problems with his neck and right arm”. Unbeknown to Dr. Cadman however, this theory is thoroughly disproved in medical reports that were not provided to his office. One such report is from my family physician dated December 16, 1998 in which Dr. Katz stated:

 

“Mr. Brown has been a patient of our clinic since 24 June 1990, however it was only on 6 October 1997 that Mr. Brown presented for the first time with complaints of right shoulder and right arm pain. At that point the complaints had been present for about 3 weeks.”

 

Another concern I have with Mr. Hinck’s report is with respects to his comment regarding my employment, specifically:

 

“More recently, he has been on social assistance and only just got into a work situation with the tree trimming business.”

 

While I am not ashamed to have had my family’s income subsidised between contracts, my concern is that Mr. Hinck clearly implied that I had only just started in the tree-trimming business. To add to my concern, the file documentation available at the time of Dr. Cadman’s assessment shows there are no reports indicating my 16 years in the tree-trimming trade. More importantly there are no reports indicating the significant change that occurred to my 16-yr. work duties (from man lift to pole saw), let alone that the onset of my symptoms had coincided with this change. 

 

Knowing the aforementioned information would have a profound impact on Dr. Cadman’s position, I presented this evidence to his office by correspondence dated September 6, 2005 (attached). The response I received however was not from Dr. Cadman but rather the Assistant to the Board who by letter dated October 6, 2005 stated, “Dr. Cadman is an internal Medical Officer and I suspect he will not be responding to your correspondence”. By letter dated October 11, 2005 (attached) I attempted to obtain Dr. Cadman’s response through the College of Physicians and Surgeons, however the Board prohibited any involvement by the College. Finally, as a last resort, I wrote Case Manager Janice Offet on February 3, 2006 (attached) requesting that all omitted medical reports be submitted to WCB Medical Services for consideration. In Ms. Offet’s response dated February 8, 2006, this request was also denied.

 

Clearly Dr. Cadman was not apprised of the actual circumstances of my injury, nor did he review all medical evidence pertaining to my case. It is my contention that such consultations are needed in order for the Board Members to reach a decision that is based on the real merits and justice of my claim. Without them, compliance with Section 25(1) of the legislation is in every practical sense, unachievable.

________________________

 

Returning to the issue of my C5-6 disc protrusion, and to reiterate, by decision dated April 21, 1999 the Members of the Board stated: 

 

“The possibility concerning disc protrusion occurring as a result of flexing one’s neck backward to perform the duties of pole sawing, could not physically result in a posterior disc protrusion.”

 

To date, the only medical opinion on file with respects to this statement is that of neurosurgeon Dr. Ekong, who of significance is also an Associated Professor of Neurosurgery at the University of Saskatchewan. In his October 9, 2003 report Dr. Ekong refuted the above claim, stating:

 

“I would like to see the evidence for such a statement. I am of the opinion that any significant injury to the neck be it in extension or in flexion could cause enough damage to the disc material to a point that it may ultimately crack and result in a protrusion.”

  

In the same report Dr. Ekong provided an abundance of medical information pertaining to my injury, and also made the following observation regarding pole sawing:

 

“I have no doubt in my mind that such a repetitive action could result in a neck injury that might ultimately precipitate a disc protrusion.”

 

By decision dated January 15, 2004 the Members of the Board dismissed Dr. Ekong’s report, stating:

 

“The Board does not believe this provides sufficient explanation of the actual mechanics of the injury to justify changing their opinion.”

 

Please find enclosed with this appeal one of two “Peer-reviewed” medical journal articles entitled ‘Intervertebral Disc Herniation’, which fully supports Dr. Ekong’s position regarding this issue. (Note: for easy referencing I have numbered each medical journal article, and placed an alphabetical letter aside each paragraph referenced.)

 

In the following article (document #1) medical researchers at the University of Waterloo set out:

 

“To determine whether repeated motion with low magnitude joint forces, and flexion/extension moments consistently produce herniation in a non-degenerated, controlled porcine spine motion segment.” (Paragraph 1a)

 

The following determinations were made from this study:

 

“Herniation occurred with modest levels of compression and flexion/extension moments but with a high number of motion cycles. All herniations that were created during testing occurred in the posterior or posterior-lateral areas of the annulus.” (Paragraph 1b)

 

“These data suggest that highly repetitive flexion/extension motions and modest flexion/extension even with relatively low magnitude compressive joint forces, consistently resulted in intervertebral disc herniations. Given the radiological documentation of progressive tracking of the nucleus, there is no doubt that disc herniation is a cumulative process that can result with modest forces if sufficient flexion/extension cycles are applied.” (Paragraph 1c)

 

“The testing conditions were limited to flexion extension motions of the motion segments. While the spine moves with six degrees of freedom the largest motion present is in the sagittal plane (flexion/extension) which will provide the greatest strain to the intervertebral discs and other passive structures.” (Paragraph 1d)

 

“The specimens used in this study (Class 1) were more representative of the adolescent human spine, which has a much lower occurrence of intervertebral disc herniations. This study has demonstrated that in healthy un-degenerated discs mechanical loading can initiate, and propagate, an injury to the annulus that results in herniation if sufficient motion cycles are applied.” (Paragraph 1e)

 

“This study has shown that disc injuries and herniations can be developed during highly repetitive flexion/extension motions with modest moments and low magnitude compression. Given our years of work loading spines in compression and shearing modes, with only the very rare observation of herniation, we have formed the opinion that numbers of cyclic flexion extension produce cumulative damage and lead to progressive herniation. While there may be a tendency to identify an event that “caused” an intervertebral disc herniation, this work together with our other experiments have led us to form the opinion that this is only a culminating event and that the real cause had already occurred.” (Paragraph 1f)

 

While the specimens used in this study represented that of an un-degenerated adolescent spine that was subjected to high numbers of motion cycles; consideration must be given to the following:

 

1.       In addition to confirming a moderately large posterior disc protrusion (herniation) at C5-6, the radiology information provided to the Board (Jan. 5/98, Feb. 19/99, Mar. 12/99) also confirmed disc degeneration at the C5-6 and C6-7 levels of my spine. Taking this degeneration and the physically demanding nature of pole sawing into account, it would be reasonable to conclude that high numbers of cyclic flexion/extension motions were not needed to produce the disc protrusion in my case. In his January 4, 1999 report Dr. Ekong commented on this, stating:  

 

“There is no question that such strenuous activities could result in a cervical disc protrusion, especially in a cervical spine that was not perfectly normal to begin with.”

 

2.       Taking my 16 years in the tree-trimming trade into account, and regardless that I operated a man lift equipped with a 6’ long hydraulic chainsaw the majority of this time; it would be reasonable to conclude that a good part of my job involved looking up into the trees I was trimming, and being mindful of the high-voltage power lines above me. This unquestionably resulted in an infinite number of cyclic flexion/extension motions over the years, which as evidenced in this study can result in disc herniation.

 

In conclusion of this issue, the preceding peer-reviewed evidence fully supports Dr. Ekong’s position that repetitive flexion of the spine can indeed physically result in a posterior disc protrusion. Subsequently this evidence supports his position that my injury occurred out of, in the course of my employment (Section 29 of The Workers’ Compensation Act, 1979).

________________________

 

Another issue regarding my disc protrusion that has yet to be raised in this appeal, is also referenced in the Board’s decision dated April 21, 1999. In it the Members of the Board claimed:

 

“The simple facts of the matter are that the action of extending one’s neck would not result in a posterior disc protrusion. Alternatively, Mr. Brown’s neck condition, with numerous osteophytes and degeneration could certainly result in a posterior disc protrusion.

 

In his October 9, 2003 report Dr. Ekong disagreed with this statement, arguing:

 

“I do not agree. A more accurate statement would be that numerous osteophytes and evidence of degeneration (wear and tear) could be consistent with evidence of a damaged spine and disc material, which could be more predisposed to a protruded disc occurring when compared to a perfectly normal cervical spine with no evidence of wear and tear.

 

In my opinion the issue is that this man likely had degenerative arthritis in his neck but it took some injury to result in that degenerative arthritis becoming symptomatic and resulting in pain down the right arm.”

 

Please find enclosed a second “Peer-reviewed” medical journal article entitled ‘Rheumatology’ (document #2) which supports Dr. Ekong’s position regarding this issue, and subsequently supports his determination of my injury. In this peer-reviewed article author Dr. Ian Tsang established:

 

“Cervical problems can be divided into 2 main groups: those arising mainly from the joints and associated ligaments and muscles of the neck, and those involving the cervical nerve roots or the spinal cord. (Paragraph 2a)

 

“Patients with nerve root involvement complain of significant root pain, which is usually sharp, intense and often described as a burning sensation. It can radiate out to the trapezial and periscapular areas or down the arm in a dermatomal distribution. Many patients also complain of numbness and motor weakness in a myotomal distribution. Headache may occur if the upper cervical roots are involved. The symptoms often correlate with specific head positions; they become more severe with neck hyperextension, particularly when the head is tilted toward the affected extremity.” (Paragraph 2b)

 

“After establishing whether the problem is neurologic or is arising from the joints, the physician must identify the cause. A history of injury, recent weight loss and morning stiffness lasting longer than half an hour that involves areas other than the neck should alert the clinician to the possibility of injury, infection or inflammation. A careful general physical examination will confirm these possibilities.” (Paragraph 2c)

 

As indicated to the Board Members in this and previous appeals, and as attested to by my former employer, and my now former spouse, I awoke the morning immediately following the work duty change experiencing mild pain and stiffness in my neck. This pain radiated to my head  (headache), and down my right shoulder and right arm. In addition to this I also experienced mild numbness in the fingers of my right hand. When these symptoms persisted, and then significantly worsened from the head and neck positioning of additional pole sawing duties; medical attention was sought.

 

Upon review of the January 5, 1998 CT myleogram, Dr. Ekong diagnosed the cause of pain radiating down my right arm (in the C6 dermatomal distribution) to be a right-sided C5-6 posterior disc protrusion. Taking the strenuous nature of my recent work duty change into account, and in the absence of any symptoms prior to that change reported by either my family physician or myself, Dr. Ekong concluded that the disc protrusion was clearly the result of a physical injury. In short, he reaffirmed what the evidence itself had determined.

 

Returning to the peer-reviewed evidence of document #2, author Dr. Ian Tsang also established that:

 

“Narrowing of the disc space and the neural foramina and anterior and posterior osteophyte formation are commonly seen at levels C5-6 and C6-7. These changes take years to develop, but they occur in about 50% of patients over 50 years of age and are not usually the cause of a patient’s current symptoms. Patients only develop symptoms when additional factors such as soft-tissue sprain or nerve root irritation occur.” (Paragraph 2d)

 

At this point it should be noted that the above findings are precisely the same as those found in my January 5, 1998 CT myleogram. Of significance, the Board obtained an interpretation of this CT myleogram dated February 19, 1999 in which radiologist Dr. Lembke offered an explanation quite similar to that of the above peer-reviewed evidence:

 

“As stated by Dr. W.G. Brown, there is a right-sided disc herniation at the C5-6 level containing both soft and hard components. The term “hard component” refers to bony osteophyte corresponding in location to herniated disc material. The formation of osteophytes implies that the disc herniation is non-acute as these osteophytes take some time to form.”

 

Although the Board had specifically requested interpretation of the ‘hard component’ only, Dr. Lembke evidently felt that it was important to include the following information concerning the ‘soft component’ of my disc herniation: 

 

“The herniation of soft disc material need not necessarily be stable and an initial small asymptomatic disc herniation may enlarge, perhaps acutely, resulting in the development or worsening of symptoms.”   

 

In his October 9, 2003 report, and in direct reference to the board-obtained interpretation of Dr. Lembke, Dr. Ekong reaffirmed his position regarding my injury stating:

 

“The issue in my opinion is the soft component.

 

The soft component implies that there was a relatively soft disc material that protruded over and above the pre-existing osteophyte (hard component).

 

In other words, even though Mr. Brown had osteophytes of longstanding, there was still enough room for the cervical nerve roots to pass through the foramina without being pinched and it took that extra bulge from the soft disc component for the canal to be compromised significantly in order to produce the radiculopathy (arm pain).

 

In my opinion the issue is that this man likely had degenerative arthritis in his neck (hard component) but it took some injury to result in that degenerative arthritis becoming symptomatic and resulting in pain down the right arm. The effect of that injury likely resulted in the soft component portion of the disc material which then converted a pre-existing degenerative arthritis into a symptomatic problem causing pinching of the nerve down the right arm.

 

In spite of the presumed degenerative changes in his neck prior to the injury, he was able to function as a tree cutter and it apparently took the work injury for the previously asymptomatic situation to become symptomatic. My understanding is that according to the rules of WCB, if a “situation” converts a pre-existing asymptomatic situation into a symptomatic one, that “Situation” should be compensable”. 

 

As evidenced in the aforementioned reports, both Dr. Ekong and Dr. Lembke clearly identified the soft component of my herniation as being indicative of an injury, and responsible for the onset of my symptoms. It should be noted that while the Board Members recognised this component in their September 29, 2004 decision, at no time has a Board physician acknowledged the soft component, let alone commented on its significance.

 

The preceding peer-reviewed evidence supports Dr. Lembke’s position that “numerous osteophytes and degeneration” would not have been responsible for the onset of my symptoms, as such findings are “non-acute”. This evidence further supports Dr. Ekong’s diagnosis that an additional factor other than osteophytes/degeneration was responsible for the radiculopathy in my case, and that the sudden onset of symptoms was consistent with an injury occurring.

 

In conclusion of these issues, all peer-reviewed evidence presented in this appeal supports Dr. Ekong’s position that my pre-existing degenerative arthritis (hard component) was materially aggravated and accelerated by the work duty change, resulting in a bona fide injury (soft component). Subsequently it is my contention that these circumstances warrant consideration under Section 50 of The Workers’ Compensation Act, 1979.

________________________

 

And finally, as indicated in virtually every decision rendered, the Board has repeatedly justified its dismissal of my case stating “there was no specific injury”. While I can only account for a sudden onset of symptoms the morning immediately following my work duty change, and a gradual increase of symptoms the more these duties were performed; there is no legislation stating there must be a specific incident for an injury to be compensable. This was also acknowledged in the February 27, 1998 correspondence of CSR Craig McKenzie in which he explained:

 

"Before we can accept responsibility for medical cost or time loss benefits in connection with a claim, we must be able to confirm a work related cause. This is done by confirming a specific injury, or a sufficient change in job duties/workload sufficient enough to explain an onset of symptoms."

 

In my opinion the peer-reviewed evidence presented in this appeal fully supports Dr. Ekong’s position that there was in fact a sufficient change in my job duties/workload, sufficient enough to explain the onset of my symptoms. Other than the erroneous and incomplete reports of its medical advisor Dr. Cadman, the Board has failed to provide medical or factual evidence that would refute a workplace injury occurring in this manner.  

 

The preponderance of evidence provided supports the validity of my case, however should there be any uncertainty remaining; the “benefit of doubt” should clearly be in favour of myself in accordance with Section 25(2) of The Workers’ Compensation Act, 1979.

 

 

Respectfully,

 

 

 

ORIGINAL SIGNED

_________________________

Thomas D. Brown

 

 

 

 

Cc: Lyle Canute

      Former Employer

 

      Dr. Chris E. U. Ekong

      Neurosurgeon

     

      Dr. A. Ali

      Primary Physician

 

      http://tombrownskwcb.tripod.com

 

 

Referenced sections of The Workers’ Compensation Act, 1979:

 

 

Section 25(1): A decision of the board shall be upon the real merits and justice of the case and it is not bound to follow any legal precedent.

 

                 (2): Where the evidence in support of the opposite sides of an issue is approximately equal, the board shall resolve the issue in favour of the worker.

1979, c.W-17.1, s.25; 1998, c.46, s.8.

 

Section 29: Where an injury to a worker arises out of his employment, it is presumed that it occurred in the course of his employment and, where the injury occurred in the course of his employment, it is presumed that it arose out of his employment.

1979, c.W-17.1, s.29.

 

Section 50: The board shall not reject the claim of a worker or a dependant for compensation or reduce the amount of compensation payable by reason of a pre-existing condition of the worker if the injury materially aggravates or accelerates the pre-existing condition to produce a loss of earnings or death.

1993, c.63, s.9.

 

Attachments:

 

 

  • My September 6, 2005 correspondence to WCB medical advisor Dr. Carl K. Cadman

 

  • My October 11, 2005 correspondence to the College of Physicians and Surgeons of Saskatchewan (re: Dr. Carl K. Cadman)

 

  • My February 3, 2006 correspondence to Case Manager Janice Offet

 

  • Peer-reviewed medical journal article: Intervertebral Disc Herniation (document #1)

 

  • Peer-reviewed medical journal article: Rheumatology: 12. Pain in the neck (document #2)

 

On April 23rd, 2007 the Members of the Board responded to my 34-page appeal, with one page of irrelevant rubbish (below). Rather than addressing the issues I had thoroughly refuted in my appeal (the very issues they had previously used to deny my claim), they resorted to using preliminary, outdated medical information to reject my claim.

 

 

 

bddec1.jpg

bddec2.jpg

Rather than taking issue with the fact that the Board completely ignored the appeal issues at hand (and have them simply ignore them once again), I decided to point out that the medical reports referenced in their decision were preliminary, and subsequently incomplete. I also decided to take issue with the fact that the Board has repeatedly ignored my request for consideration under Section 25(2) of the WCB Act (benefit of doubt):

 

 

Thomas Brown

1114 – C Blackwood St. N.

Regina, Saskatchewan

S4X 3E5

 

 

June 6th, 2007

 

 

Members of the Board - Confidential           VIA FAX: 787-0213

SK Workers’ Compensation Board

200 – 1881 Scarth Street

Regina, Sask. S4P 4L1

 

 

Members of the Board:

 

 

Re: Thomas Brown – WCB Claim #1007 0989 21D

 

The following is in response to the Board’s decision of April 23, 2007, and should be considered a supplement to my August 24, 2006 presentation.

 

The basis for the Board’s current decision, as I understand it, is as follows:

 

1.      “When seen by Dr. Ekong on October 11, 1997, he notes Mr. Brown reported there had been no recent injury.”

2.      “Dr. Ekong on June 11, 1998, confirmed he was unable to obtain a definite work injury and could not comment on what injury was the precipitating factor for the ruptured disc in the background of a pre-existing spinal stenosis.”

 

I will address each of these in turn.

 

As confirmed by myself, and acknowledged by the Board throughout these appeal proceedings; there was no specific injury in my situation. That is to say there was no specific point in time on September 7, 1997 where I was suddenly experienced neck pain. As duly noted as fact in the Board’s current decision, “Mr. Brown woke up on the morning of September 8, 1997 experiencing neck pain.” Given there was no “specific” injury; there was presumably no “recent” injury for Dr. Ekong to note in his October 11, 1997 report.

 

With respects to the second issue, the Board will know from my March 17, 1999 presentation that I apprised Dr. Ekong of my work duties when I first attended his office. As also explained, I could not account for the lack of that information in his preliminary reports. The Board will know however that when an advocate was finally assigned to my case, these issues were subsequently addressed. In her letter of December 10, 1998 advocate Marilyn Bird provided Dr. Ekong with an explanation of the significant change in my work duties, along with a detailed description of those duties. In his January 4, 1999 response Dr. Ekong indicated there was “no question” these duties could result in a disc herniation, especially in a cervical spine (neck) that was not perfectly normal to begin with. Consequently this report supports that my injury occurred out of, and in the course of my employment, and also supports that my pre-existing condition was aggravated and accelerated. The Board will also know that Dr. Ekong’s supplemental report of October 9, 2003, further supports these determinations.

 

Given the Board is fully aware of the aforementioned, I am at a loss to understand its rationale in using Dr. Ekong’s reports of October 11, 1997 and June 11, 1998 as the basis for its current decision. Clearly, through no fault of my own, these reports were incomplete.

 

It remains my contention that I sustained a neck injury as a result of the significant work duty change that occurred on September 7, 1997. This is supported by the employer who worked along side of me, and further supported by my spouse. While the Board refuses to accept that my injury is work-related, it does not dispute that there was a significant change in my work duties on September 7, 1997, nor does it dispute that I awoke the following morning of September 8 experiencing neck pain.

 

The facts of the matter are that in this situation, both stakeholder, and claimant maintain that a work injury occurred. The medical opinions of my primary physician and specialist also support the occurrence of a work injury. Alternatively the Board has no eyewitness accounts to the contrary, but has however presented medical opinion suggesting my injury is not work related. In accepting that medical opinion the Board has concluded that I sustained a degenerative disc herniation, and the fact it became symptomatic at the precise time of a significant work duty change, is mere coincidence. Clearly I do not follow this line of reasoning.

 

While I feel the majority of evidence is in my favour; it is inconceivable to conclude that my supporting evidence is anything less than equal to that presented by the Board. Pursuant to Section 25(2) of The Workers’ Compensation Act, 1979, I am entitled to a decision based on merits. The Board will know that I have requested consideration under Section 25(2) in every appeal I’ve filed, and to date, it has been repeatedly ignored. I am requesting that the Members of the Board acknowledge this issue specifically, and address it accordingly.

 

 

Respectfully,

 

ORIGINAL SIGNED

 

_______________________

Thomas Brown

 

 

 

 

Applicable sections of The Workers’ Compensation Act, 1979:

 

25(2): Where the evidence in support of the opposite sides of an issue is approximately equal, the board shall resolve the issue in favour of the worker.

 

1979, c.W-17.1, s.25; 1998, c.46, s.8.

 

29: Where an injury to a worker arises out of his employment, it is presumed that it occurred in the course of his employment and, where the injury occurred in the course of his employment, it is presumed that it arose out of his employment.

 

1979, c.W-17.1, s.29.

 

50: The board shall not reject the claim of a worker or a dependant for compensation or reduce the amount of compensation payable by reason of a pre-existing condition of the worker if the injury materially aggravates or accelerates the pre-existing condition to produce a loss of earnings or death.

 

1993, c.63, s.9.

 

 

Cc:  Honourable David Forbes, Minister Responsible for Workers' Compensation Board

 

 

 

The Members of the Board, or rather their Assistant, responded to the above with the following:

 

 

 

lastscan.jpg

It should be noted that my June 6, 2007 supplement was specifically addressed to the Members of the Board, and in fact marked “Confidential”. Regardless of this, you’ll note that the above response is from the Assistant to the Board. This has occurred on at least 3 other occasions, and does not sit well with me for 2 reasons:

 

1.   I question whether an Assistant has the authority to reject evidence and/or deny access to a Board level appeal.

 

2.   This is the same Assistant who intercepted, and withheld medical evidence I attempted to provide to the WCB Medical Advisor to my case.

 

Clearly this Assistant is strongly opposed to the acceptance of my claim, and I’m left to wonder what other acts of sabotage she’s coordinated over the years.

 

It is also important to note that the Assistant’s response completely sidesteps the medical information I refuted in my supplemental appeal, not unlike the previous decision of the Members of the Board. Obviously the authors of these responses are one-in-the-same.

 

Taking the aforementioned into account, I recently decided to resubmit my June 6, 2007 supplement to the Board/Chair by registered mail, along with the following letter:

 

Thomas Brown

1114 – C Blackwood St. N.

Regina, Saskatchewan

S4X 3E5

 

 

March 25th, 2008

 

 

David Eberle – Chairman                       REGISTERED MAIL

SK Workers’ Compensation Board

200 – 1881 Scarth Street

Regina, Sask. S4P 4L1

 

 

Dear Mr. Eberle:

 

 

Re: WCB Claim #1007 0989 21D

 

The following is to appeal the April 23, 2007 decision of the Members of the Board, and the former WCB Chair.

 

It should be noted that by correspondence dated June 6, 2007 (attached), I took issue with the medical reports used to deny my latest appeal. In considering the June 12, 2007 response I received from the Board’s assistant (attached), it would appear the Board/Chair did not review this supplemental information. Subsequently I’m providing this information to you via registered mail, and requesting your review of the same.

 

As I indicated in attached supplement, the Board/Chair has based its decision on preliminary, incomplete reports from neurosurgeon Dr. Ekong. As I’ve also indicated, Dr. Ekong has since offered extensive updated evidence regarding my case, which is supported with peer-reviewed medical evidence I submitted with my August 24, 2006 appeal. In the attached response however you will find that the Board’s assistant did not acknowledge, much less address this information.

 

You will also find that I again raised the issue of Section 25(2) in my June 6, 2007 supplement. While in response the Board’s assistant claims my case has already been considered under this legislation, I have found no file documentation that would remotely suggest this has occurred. The fact of the matter is that I’ve requested consideration under Section 25(2) in every appeal I’ve filed, and to date, the aforementioned is the first time this request has been acknowledged. This is not supportive evidence of having given such consideration. 

 

It is my contention that if a Board/Chair decision is to be based on the medical evidence of neurosurgeon Dr. Ekong, then I respectfully request that it be based on the updated evidence he has provided. Considering that evidence is, at a minimum, equal to that presented by WCB medical personnel; I further contend that it should be given due consideration under Section 25(2) of The Workers’ Compensation Act, 1979.

 

If after review of this information you feel you are unable to render a decision in favour of myself, I hereby request an oral appeal hearing with the Board/Chair.

 

In closing, given I have taken the necessary measures to ensure your receipt of this information; I would very much appreciate a response from you directly.

 

 

Regards,

 

ORIGINAL SIGNED

 

 

 

 

 

Cc:       Walter Eberle – Board Member

           

Karen Smith – Board Member

 

http://tombrownskwcb.tripod.com/id11.html

 

 

 

Attachments: June 6, 2007 supplemental appeal information

                                   

        June 12, 2007 response of the Board’s assistant

 

 

 

In response to the above, on April 2, 2008 I received the following response from newly appointed (Mar. 7/08) WCB Chair David Eberle:

 

 

 

 

eberledecision.jpg

It would appear that either this newly appointed Chair is a quick study, or my favourite Board Assistant prepared the above response for him. Given the manner in which the medical issues have yet again been evaded, my money is riding on the latter.

 

____________________________

 

 

IMPORTANT UPDATE: June 19th, 2009

 

I’ve recently learned that when a claimant files a Board-level appeal, a Board assistant rewords your appeal into a “summary document”, and submits it to the Members of the Board for decision. As unbelievable and underhanded as this sounds, I have in fact confirmed this with Board Services. Even more underhanded is that claimants are denied access to these summary documents!

 

Unlike the Members of the Board who are government appointed, it’s important to note that Board assistants are WCB employees. Like any insurance corporation, WCB awards these top positions to individuals who have finely honed their machiavellian skills. Considering the summaries prepared by these individuals are inaccessible to claimants, it clearly stands to reason they bear little resemblance to claimant appeals.

 

After nearly 13 years of battling the Board, and the submission of numerous appeals, the Board’s ruling in my case now makes perfect sense… They have never accepted my appeals because they’ve never actually reviewed them. Instead, their ruling has been based on the devious interpretation of a WCB employee!

 

Under normal circumstances I would take this issue directly to The Minister Responsible for WCB. As evidenced here however, he’s refused to address other legitimate concerns I’ve raised. While at present I’m uncertain which direction I’ll head with this information, I offer the following advice to others filing Board-level appeals:

 

  1. Prepare a written appeal that fully explains your circumstances, but do not immediately submit it. Instead, submit only a summary of the issues you disagree with, and request an “oral appeal hearing” with a court stenographer.
  2. Once arranged, bring 3 copies of your full written appeal to your hearing, 1 for each Board Member.
  3. Read your appeal aloud at your hearing, inviting questions from the Board as you go through it.

Please note that the waiting period for an oral hearing can be significantly longer than written appeal submissions. However, such a hearing will ensure the Board has reviewed your appeal submission.

 

In the meantime, I’ll endeavor to keep readers abreast of any developments regarding this issue.

 

____________________________
 

Care to comment on this injustice/corruption?... Please feel free to contact the officials listed below. Be sure to include your full name and mailing address if you wish to receive a response, as these are generally sent by regular post/mail.

 

Walter Eberle (Board Member – Employee Representative)

weberle@wcbsask.com  

 

Karen Smith (Board Member – Employer Representative)

ksmith@wcbsask.com

 

David Eberle (Chairman)

deberle@wcbsask.com      

 

Honourable Rob Norris (Minister Responsible for WCB)

minister.aeel@gov.sk.ca  

 

All My Websites:

 

“WCB: Your Right To Sue” – Click here

 

Saskatchewan WCB Breach Of Privacy” – Click here 

 

“The Saskatchewan Party: Broken Promises & Cover-ups” – Click here 

 

"Appealing the Saskatchewan Workers Compensation Board" – Click here 

 

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