Thomas Brown
1114 – C Blackwood St. N.
Regina, Sask.
S4X 3E5
June 3rd,
2005
Members of the Board
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
your decision of September 29, 2004. This information is further to my August 3, 2004 appeal, and also takes issue with the
boards’ most recent allegations.
It should be noted the board
acknowledged very little of my last appeal, and neglected to address the majority of my concerns. As a result, I am again
requesting that the board address these issues. It is my contention these issues are of great significance, as they confirm
the mishandling of my work injury claim.
The board maintains its’ position that the physical difficulties I began experiencing in September of
1997, were the result of a non-compensable injury that had occurred 22 years earlier. Despite oral and written confirmation
from my former employer, my physicians, and myself, the board continues to dispute that my physical difficulties had coincided
with a significant change in my work duties. While the medical reports of my specialist acknowledged the presence of a 22-yr-old
condition, his findings conclude that this condition was materially aggravated and accelerated. Upon review of the significant
change in work duties, my specialist also concluded that the physical actions associated with these duties would certainly
have resulted in this aggravation/acceleration. The board has completely discounted these reports however, insisting that
the opinion of my specialist deals with legal issues that fall within the boards’ exclusive jurisdiction. The board
has specifically stated:
“The
determination of whether or not a work injury occurred however, is a legal question rather than a medical one.”
In filing this appeal it is my intention to show that to date, the boards’
decision to deny my work injury claim is unsupported. I further intend to show that the chain of events that have led to this
decision were both inappropriate, and extremely biased.
As it was not addressed in the boards’ September 29, 2004 decision,
I am again taking issue with the boards’ “Internal
medical investigations”:
I again direct your attention
to the boards’ requests for medical consultation from its’ own general practitioner. Following each request is
the consultation received.
During the boards’ initial
investigation into my neck injury claim, WCB client service representative Craig McKenzie made this request of the boards’
general practitioner on February 16, 1998:
“Please review and comment, see MAD 02/07/98 on file, in particular could you comment
specifically on the CT findings, it is my impression that the results of this scan suggest that this is a long standing problem
rather than a recent injury, would you agree??”
The same day (Feb. 16/98) the
boards’ general practitioner responded with:
“Obviously, this man has had a lot of longstanding problems with his neck and right
arm related to his gunshot injury at age 17. In addition to this, he has a lot of chronic degenerative changes in his neck
that have led to C5-6 disc protrusion and further complaints. There was no injury to this man’s neck. His description
of injury of lifting portions of logs should not cause his present status.”
During the boards’ investigation
into my initial appeal, WCB appeals officer Andre Gelinas made this request of the boards’ general practitioner on August
27, 1998:
“You had reviewed this file previously and I refer you to your memorandum of February
16, 1998. Mr Brown underwent surgery on July 31, 1998. He had an anterior C5-6 and C6-7 discoidectomy and fusion. Would you
agree that the surgery was performed because of Mr. Brown’s pre-existing degenerative problems and spinal stenosis and
that the findings at the time of surgery would not be related to Mr. Brown’s duties as a tree trimmer?”
The following day (Aug.28/98)
the boards’ general practitioner responded with:
“This
man has apparently undergone surgery at the C5-6 levels with discoidectomy and fusion. I think this was done because of Mr.
Brown’s pre-existing degenerative problems and for the disc protrusion at C5-6 that was probably also related to degeneration
in his neck. I would reiterate that there was no injury to this man’s neck as far as I can see. I do not have the opportunity
to review the surgical report at this time. I doubt it would shed any further light on this picture; however, it may be worth
reviewing if you are able to obtain it.”
On September 2, 1998 the appeals
officer again contacted the boards’ general practitioner with:
“Further
to your memo of August 28, the operative report is attached for your review. Comments??”
The same day (Sept. 2/98) the
boards’ general practitioner responded with:
“Thank
you for obtaining the surgical report on this gentleman. The report is quite brief and simply notes that from an anterior
approach, they did a C5-6 and C6-7 discoidectomy and fusion. My opinion remains the same as my memo of August 28, 1998.”
In regards to these investigations,
I respectfully request that the board consider the following:
1. These alleged requests for medical consultation appear more as instructions, rather than bona fide enquiries. The consultations
received certainly attest to this.
2. The individuals making these alleged requests are not medical personnel. Despite this fact one individual offered interpretation
of a complex medical report (CT Myleogram Scan), the other determined the alleged reason for surgery.
3. The boards’ general practitioner has never physically examined me and as such, has no first hand knowledge of
me or my pre-existing condition.
4. The boards’ general practitioner has never reviewed any prior medical documentation concerning me or my pre-existing
condition and as such, has no knowledge of either.
5. These are the only consultations the board has requested of its’ general practitioner and as such, they are the
sum total of the boards’ medical support/evidence.
6. The boards’ general practitioner has no comprehension of the actual work duties that caused my symptoms/injury
Re: “Lifting portions of logs” (this issue is addressed in the next segment of this appeal).
7. The board insists, “The determination of whether or not a work injury occurred is a legal question rather than a medical one”;
yet in its’ August 27, 1998 enquiry it asked its’ general practitioner to make this determination.
8. And finally not unlike my own physicians, the boards’ general practitioner clearly made a determination of “Whether
or not a work injury occurred” in all 3 consultations.
Regardless of these facts the board has accepted the opinion of its’ general practitioner over that of
my family physician of 15 years, and the specialist that has twice operated on this injury (Neurosurgeon/Clinical Professor
of Neurosurgery).
The most blatant example of
bias is that the board accepted the opinion of its’ general practitioner regardless that he made a determination of
“Whether or not a work injury occurred”; yet it discounted the opinions of my physicians for doing the same. The
fact that the board asked its’ physician to make this determination, only further attests to this bias. It would be
reasonable to conclude that it is in fact appropriate for physicians to make this type of determination, providing it supports
the boards’ position. By no means do I accept this.
Section 25(2) of The
Workers’ Compensation Act clearly states:
“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.”
The manner in which my physicians
presented their opinions/evidence, is in no way different than the boards’ general practitioner. It is my contention
that instead of weighing “The evidence in support of the opposite sides”, the board deliberately and
inappropriately discounted the opinions/evidence of my physicians. I firmly believe this was done with the intent to offset
the balance of evidence, so that consideration of Section 25(2) would not be warranted.
Based on all aforementioned
information, it remains my contention that the boards’ internal medical investigations were deliberate, dishonest, and
extremely biased.
I am
also taking issue with the WCB general practitioners’
interpretation
of my work duties:
In the February 16, 1998 consultation (previous segment), the boards’
general practitioner specifically states:
“There was no injury to this man’s neck. His description of injury of lifting
portions of logs should not cause his present status.”
Under
no circumstances have I, my former employer, or my physicians, ever taken the position that my neck injury resulted from such
activity. The only reference I have ever made to lifting or loading portions of logs, was to have included it among several
other duties that made up my work routine. This occurred during a telephone conversation with WCB client service representative
Kathy Basnicki on November 3, 1997. Ms. Basnicki’s handwritten comments regarding our conversation (on file) suggest
that “Lifting portions of logs” caused my injury. This assumption or misinterpretation is entirely her
own, and it is certainly in sharp contrast to my initial report of injury (also on file). In addition to this comment, Ms.
Basnicki indicated the area of injury as being the C4-5 level of my neck. As the board is well aware, my injury is at the
C5-6 and C6-7 levels.
The position
that I, my former employer, and my physicians have always taken is that my neck injury arose out of the significant change
that occurred to my work duties. We contend that the transition from trimming trees at eye level with a chainsaw while standing
in a “Man lift” (for some 16 years), to trimming trees manually with a 30 foot “Pole saw” while standing
on the ground, is a very significant change. It is our contention that my injury arose out of, and in the course of my employment
(Section 29 of The Workers’ Compensation Act). As my physical difficulties coincided precisely with the significant
change in my work duties, it is our contention that this change aggravated and accelerated my pre-existing condition (Section
50 of The Workers’ Compensation Act – these sections are referenced at the end of this appeal).
There should be no question
that the preceding information would, to a very great extent, influence the opinion of boards’ general practitioner.
With that said, the documentation on file would indicate that the boards’ physician is not fully aware of these facts.
While there is evidence that the boards’ physician was informed of my pole sawing duties, there is nothing indicating
that these duties were a significant change from my regular work duties. More importantly, that my physical difficulties had
coincided precisely with this significant change. In addition to this, there is no file documentation amending the boards’
assumption/misinterpretation that my injury had resulted from “Lifting portions of logs”. All of these
facts are quite evident in the consultations between the board and its’ physician (previous segment).
The facts of the matter
are that the boards’ general practitioner is clearly of the impression that I contend my injury was caused by “Lifting
portions of logs”. In response to this, the boards’ physician has offered the opinion that such duties would
not result in a neck injury. Regardless that this information is erroneous and
completely irrelevant to my work injury claim, the board has nonetheless accepted the opinion of its’ physician. The
fact remaining is that the boards’ physician has offered no opinion whatsoever with respects to the actual duties that
caused my injury.
During
my initial appeal I provided the board with a detailed explanation of the significant change that occurred to my work duties.
My purpose in this had been to give the board and its’ general practitioner a clear understanding of pole sawing, and
to emphasise the strain it places on ones’ neck. I provided a video taped demonstration of this activity, as well as
the following description:
“Pole
sawing on the other hand is much more physically demanding, and requires different movements altogether. The tree trimmer,
myself, uses a 30 foot telescopic pole with a 10 inch saw-blade attached to the top. Using an up and down movement with the
pole, it is not uncommon to saw through limbs which exceed 4 inches in diameter. This movement alone is strenuous enough,
but doing it with ones neck bent and in some cases looking straight upwards 30 feet, is by far the most strenuous part of
this procedure. Some limbs would require this movement for 5 minutes or more before they would be cut free of the tree. Because
the pole is very flexible, it is also very difficult to control and keep the saw-blade in any one saw groove. It has been
my experience throughout my career that the most common complaint of persons pole sawing is that they experience acute pain
and stiffness in their necks. The second most common complaint incidentally, is being struck by falling limbs. It is a somewhat
unsafe practice, but it is unavoidable where trees are inaccessible for a man lift. Where power-lines are involved as they
were in our case, SaskPower does not allow any other trimming method to be used.”
The
above description (and video taped demonstration) was first submitted to the appeals committee on September 30th,
1998. Considering there have been no consultations between the board and its’ general practitioner since September
2nd, 1998, it is reasonable to conclude that the boards’ physician has never been privy to this
information. It is also reasonable to conclude that the board is satisfied with the initial opinion of its’ physician,
regardless that it is based on the activity of “Lifting portions of logs”.
It is my contention that the
board has never made its’ physician aware of the actual circumstances surrounding my injury. I am thoroughly convinced
the board intentionally led its’ physician to believe that my injury had allegedly resulted from, “Lifting
portions of logs”. Given the unlikelihood that a neck injury could result from such activity, I contend this was
intentionally done in order to obtain medical opinion that stated my injury was not work related. Subsequently it is my firm
belief that the opinion of the boards’ general practitioner must be discounted as erroneous, and incomplete.
Based on these facts it is
my contention that this information attests to the boards’ dishonesty, and extreme bias in my case.
Upon review
of the aforementioned work description, my specialist provided significant medical opinion concerning the activity of pole
sawing. Among it he has stated:
“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.”
“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 April 21, 1999
the board discounted these as “Incomplete”, and countered the opinion my specialist with:
Once again I am formally requesting
that the board provide medical evidence substantiating this statement. I firmly believe I have the right to review evidence
that has discounted the expert medical opinion of a Neurosurgeon/Clinical Professor of Neurosurgery. Considering the boards’
general practitioner is neither aware of the actual duties that caused my injury nor the aforementioned description of them,
it is reasonable to conclude that the board has no medical support for its’ statement. The fact that the board has now
twice ignored this issue, would also indicate this. The only medical opinion on record with respects to the boards’
statement is that of my specialist. In it he offered:
“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
(herniation).”
The simple facts of the matter are that the board has discounted expert medical opinion, with unsubstantiated,
non-medical opinion. In doing this, the board has inappropriately discounted the only medical opinion on record that is based
on the actual duties that caused my neck injury.
It therefore remains my contention that the boards’ statement is completely unfounded, and was simply
contrived to belittle my work duties, and undermine the merit of my specialists’ opinion. It is also my contention that
the boards’ refusal in addressing this issue is ultimately confirmation of its’ dishonesty, and extreme bias in
my case.
I am once again taking issue with the boards’ false
allegations
regarding employment
history, and business registrations:
As both of my physicians had partly based their opinions on the 16 years that I worked in my trade,
the board further discounted their opinions in its’ April 21, 1999 decision stating:
“While he is claiming and has apparently told his physicians of
long standing tree trimming duties being performed, there is no T4 information which can attest to this statement. Nor have
any of the tree trimming businesses he claims to have owned or worked for been registered with the Workers’ Compensation
Board.”
In my last appeal I indicated
that not only had this statement implied that I was untruthful, it had it fact confirmed the boards’ dishonesty. I indicated
that in the temporary absence of T4 information, documentation on file with the WCB confirmed much of my employment history.
I indicated that with a single telephone call to the boards’ assessment department, advocate Marilyn Bird confirmed
that all tree trimming businesses had in fact been registered with the WCB, and that I had been the owner/operator of one
of these. In addition to this it was confirmed that I had been compensated by the board for a minor wrist injury in March
of 1986 (claim # 8601-1011), while employed with one of the other businesses that allegedly had not been registered with the
WCB. I indicated it was extremely unlikely that the board had overlooked the assessment information of 3 separate businesses
spanning a 16-yr. period, when it had been readily obtained by an individual outside of its’ office.
I also took issue with the
fact that the board had not acknowledged the advocate’s December 1, 1999 correspondence that had confirmed the assessment
information, nor the employment records that I subsequently provided to the board.
In its’ September 29,
2004 decision, the board responded to these issues with only this:
“Mr Brown takes issue with the Board’s comments about there being a lack of T4
information concerning his various work for businesses either his own or for others. Ultimately, confirmation did occur that
Mr. Brown had worked in the tree trimming industry for a number of years and the Board did accept his explanation of this
upon receipt of his various documentation.”
Whereas I am truly grateful
to have received (for the first time) the boards’ acknowledgement of my employment history, this was not my purpose
in raising these issues. My sole purpose was in fact to further demonstrate the boards’ willingness in making false
allegations, and basing its’ denial of my claim on erroneous information. It is my contention that the board is deliberately
sidestepping these issues. I have further reviewed the documentation surrounding these issues, and offer the following.
Prior to the boards’ false allegations of April
21, 1999, I had suggested that I would sign whatever release form necessary for the board to access my T4 information. I had
also suggested that the board could easily contact the “Contract Services” and “Purchasing” departments
of SaskPower, to verify my lengthy contracting history with them. Not unlike the WCB, SaskPower is also a government body,
and information concerning this history was readily available to the board. The board was obviously not interested in any
evidence supporting my employment history, as it instead made false allegations, audited my former employer, and investigated
into my family’s past receipt of Social Service benefits. Clearly this was a deliberate and biased attempt at finding
evidence to discredit my employment history, and defame my character.
With respects to its’ second allegation; the board
will know that in accordance with section 133 of The Workers’ Compensation Act, crown corporations such as SaskPower
can not employ any contractor until it first receives a letter confirming that contractor’s “Good Standing”
with the WCB. Subsequently SaskPower must also receive a letter of “Clearance” from the WCB, before any final
payments or holdbacks can be released to that contractor. All of the tree businesses that I either owned or worked for contracted
exclusively for SaskPower and as such, were required to be registered with the WCB. For the board to have claimed they were
not, was yet another deliberate and dishonest attempt to discredit my employment history, and defame my character.
It therefore remains my contention that the boards’
false allegations regarding employment history and business registrations were deliberate, dishonest, and extremely biased.
I am once again taking issue with the boards’ disregard
for my specialists’ evidence:
The opinion of my specialist is based on an abundance of medical evidence. This evidence was obtained
through physical examinations, conventional x-rays, 2 interpretations of a CT Myleogram Scan, 3 MRI examinations, and 2 surgical
procedures that he himself performed. His opinion is also based on the fact that I was able to perform my regular tree trimming
duties for nearly 16 years without incident or injury, until the significant change to those duties occurred. My specialist’s
opinion is both clinically and logically sound.
At the request of workers’ advocate Marilyn Bird, my specialist has responded to board allegations,
and those of its’ general practitioner. All of the advocates’ requests were bona fide medical enquiries. There
should be no doubt that as a Neurosurgeon/Clinical Professor of Neurosurgery, my specialist is fully qualified to diagnose
cervical spine (neck) injuries, and he is undeniably knowledgeable of the movements and actions that damage a cervical spine.
The board has been provided with his expertise in both instances, and both have been inappropriately discounted.
As evidenced in the January 5, 1998 CT Myleogram, and the February 19, 1999 interpretation that
the board obtained, my disc protrusion (herniation) contained “Hard and Soft components”. Of these components
my specialist has made the following medical determinations:
“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 more symptomactic
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”.
By decision January 15, 2004,
the board discounted this report with only this:
“The board
does not believe this provides sufficient explanation of the actual mechanics of the injury to justify changing their opinion.”
“The determination
of whether or not a work injury occurred however, is a legal question rather than a medical one.”
In regards to my specialists’
report, I respectfully request that the board consider the following:
- Based on medical evidence alone (the herniation of the soft component), my specialist determined that
I sustained a physical injury to my neck. Further, he determined that the soft component herniation was responsible for the
symptoms I began experiencing in September 1997.
Note: Neither the board
nor its’ physician have made any reference whatsoever to the soft component, much less offer an opinion or explanation
of it.
- My specialist is fully aware of my employment history, and from a clinical perspective he has taken into
consideration the 16 years I worked in my trade. In his medical opinion, my pre-existing condition (the hard component) had
not physically hindered my ability to perform my regular tree trimming duties.
Note: The board has received
confirmation from my family physician that there had been no prior neck related incidents or complaints. In his medical opinion,
he too concluded that my pre-existing condition had not physically hindered my ability to perform my regular tree trimming
duties. With respects to my employment history; despite its’ false allegations and unwarranted disbelief, the board
has recently acknowledged my years in the tree trimming trade.
- From a clinical perspective my specialist carefully considered the physical actions of pole sawing, as
described earlier in this appeal. He unequivocally determined that this activity most certainly would result in a cervical
disc herniation, especially in an abnormal cervical spine such as my own.
Note: The board has received
both oral and written confirmation from my former employer and myself, that pole sawing duties commenced on September 7, 1997.
The board has also received oral and written confirmation from my former employer, my former spouse, and myself, that I awoke
the morning of September 8, 1997 experiencing pain in my neck, shoulder, and right arm. The initial medical reports of my
family physician and specialist also support this.
The opinion of my specialist
is based on actual medical evidence. It is also based on actual activities and events that have been substantiated ad nauseam.
In short, my specialist has merely confirmed what the evidence had already determined for him. His opinion fully supports
that my pre-existing condition (the hard component) was materially aggravated and accelerated by the significant change that
occurred in my work duties. It also fully supports that the physical actions associated with the significant change, resulted
in this aggravation/acceleration (the soft component).
I am thoroughly convinced that
the board is unable to discount my specialists’ opinion medically, and therefore is discounting it legally. While I
recognise the boards’ legal right to determine “Whether or not a work injury has occurred”, I do
not believe this legal right entitles the board to disregard medical evidence that confirms a work injury.
Subsequently the board
has rest its’ case on the opinion of its’ general practitioner; a physician that not only made a determination
of “Whether or not a work injury occurred” based on an erroneous cause (lifting portions of logs), but
one that has made zero reference to the one component causative of my physical difficulties (the soft component).
It is my contention that
the medical evidence supporting my claim far outweighs that which the board has presented. However, there should be no doubt
that it is at least equal to that which the board has presented, and therefore warrants due consideration under Section 25(2)
of The Workers’ Compensation Act (referenced at the end of this appeal). The fact that it has not been given this consideration
would again attest to the boards’ dishonesty, and extreme bias in my case.
I am once again taking issue with the boards’ enquiry into the
“Hard component” of my disc protrusion (herniation):
To
reiterate, on February 4, 1999 the assistant to the board made this request of WCB medical consultant Dr. Skeet:
“The Members
of the Board are reviewing this claim concerning an appeal on behalf of
Mr. Brown. They note the findings of the CT Myelogram of 5 January 1998 comment that at C5-6 there is a moderately
large disc protrusion and the disc has a hard component and is associated with a large osteophyte. Please comment on the findings
Re the “Hard component”. What does this finding suggest to you? It is my understanding this infers age or a hard
and already calcified disc. If you believe an opinion from a radiologist is required, would you undertake to obtain same.
Thanks.”
In my last appeal
I took issue with the fact that the board only enquired into the “Hard component” of my disc herniation. Given
that this specific component is indicative of an old injury, it was/is my contention the board intentionally sought misleading
opinion that would suggest my pre-existing condition (the hard component) was alone responsible for my physical difficulties.
I also took issue
with the fact that the board has made zero reference to the “Soft component” of my disc herniation. There is no
mention of this in any of its’ medical enquiries, or file documentation to date. Given that this specific component
is indicative of a new or recent injury that would typically produce my symptoms, and my specialist identified this component
as being the direct cause of my difficulties, it was/is my contention that the board deliberately disregarded the significance
of this component.
In its’ September
29, 2004 decision, the board responded to these issues with only this:
“Mr. Brown
suggests that the Board has refused to acknowledge the presence of a soft component in his disc protrusion. The Board has
made no comment concerning this, and is aware the soft component refers to the disc protrusion. Enquiry into the meaning of
the hard component was to determine what this was as it is not a usual finding.”
By no means do I feel this
has addressed my concerns. I have further reviewed the documentation surrounding these issues, and offer the following.
As was suggested by the assistant
to the board on February 4, 1999, your Dr. Skeet did request a radiology opinion concerning the hard component. At that time
this opinion was clearly important to the boards’ case, as the assistant to the board forewarned me (in writing) of
a possible delay with my appeal pending receipt of this. Regardless that the February
19, 1999 opinion was received in time for that appeal, the board made
no reference to it in the appeal decision that followed, nor any file documentation to date.
Throughout these appeal processes
the board has insisted that my 22-yr-old pre-existing condition is alone responsible for my physical difficulties. Because
the hard component of my disc herniation is indicative of age (or an old injury), the board had specifically requested opinion
that defined this component alone. However, given that the soft component of my herniation protruded over and above the hard,
the radiologist that prepared the Feb. 19/99 report was evidently reluctant
to comment on one component alone. In his report the radiologist specifically stated:
“The term
“hard component” refers to bony osteophytes 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.”
“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.”
This report unquestionably
confirms that my pre-existing condition (the hard component) is not responsible for my physical difficulties, as it is “Non-acute”.
More importantly this report identifies the soft component as causative for any “Development or worsening of symptoms”,
which is precisely what has been proven in my case. These 2 facts combined solidly support that my pre-existing condition
(the hard component) was materially aggravated and accelerated, resulting in the soft component portion of my disc herniation.
Irregardless that the board itself requested this information, and that this opinion is completely independent of all others,
the board has disregarded this report.
It should be noted that my
specialist was not privy to this radiology report in 1999. In September of 2003, advocate Marilyn Bird provided him with this
document and requested his opinion of it. His most recent documentation to date (previous segment) was based on this radiology
report.
By its’ own admission
(Sept. 29/04) the board has made no comment concerning the soft component. It should again be noted that the boards’
general practitioner has also made no comment concerning this component, much less offer an explanation of it. Combine this
with the fact that the board has disregarded all documentation pertaining to the soft component, and it is reasonable to conclude
that the board has deliberately ignored this evidence. It is also reasonable to conclude that this is due to the fact that
it firmly supports my work injury claim. The board claims that only it has the legal right to determine “Whether
or not a work injury occurred”. With all due respect, the board cannot make an honest or unbiased determination
of this, if it is not willing to consider all of the evidence.
By the same admission (Sept.
29/04) the board claims that its’ enquiry into the meaning of the hard component was to determine what this was. Regardless
that this particular information was contained in the report it requested, the board has made no reference to it. It is reasonable
to conclude that this is due to the fact that it disproves the boards’ theory that my 22-yr-old pre-existing condition
was alone responsible for my physical difficulties.
Of
the abundance of medical documentation concerning my case, the board has only acknowledged that which could support its’
irrational theory. Apart from the erroneous and incomplete opinion of its’ general practitioner, the board has no support
whatsoever. The board specifically states it has found no evidence of “Trauma” or “Injury”.
The board maintains this despite that a Neurosurgeon/Clinical Professor of Neurosurgery has indicated that the soft component
portion of my herniation, is significant evidence of both trauma and injury. The board also maintains this despite that independent
radiology opinion, provided the same evidence.
The fact that the board has
deliberately ignored evidence (the soft component) that supports my work injury claim, attests to its’ dishonesty and
extreme bias in my case. The fact that the board deliberately ignored evidence that it itself had requested, further attests
to this.
I am once again taking issue with the following justification
for
denial of my work injury claim:
Throughout these appeal processes
the board has repeatedly justified its’ denial of my work injury claim stating:
“There
was no specific injury.”
Saskatchewan Labour’s
“Office of the Worker’s Advocate” has confirmed there is no legislation in The Workers’ Compensation
Act that states there must be a specific incident for an injury to be compensable. Despite this fact the board continues to
deny my claim for this reason, and a statement to this effect is found in every decision it has rendered. There was however,
one distinct variation of this statement that was included in the boards’ initial denial of my claim. As the board will
know, it is this variable that has been the basis of my appeal efforts to date. The boards’ initial decision of February
27, 1998 specifically stated:
"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."
Neither myself, my former
employer, nor my physicians, have ever taken the position that one specific incident was causative of my injury. The position
we have always taken is that my injury (the soft component) resulted from the sufficient change in my job duties/workload.
We contend that the transition from trimming trees at eye level with a chainsaw while standing in a man lift (for some 16
years), to trimming trees manually with a 30 foot pole saw while standing on the ground, is indeed a sufficient change. The
fact that my symptoms coincided precisely with this change, is positive proof of this. The board has been provided an abundance
of medical and employment evidence that supports this fact. The board has provided no tangible evidence to the contrary, and has instead resorted to a variety of inappropriate
means to discount my supportive evidence.
The board has refused to accept that my pre-existing condition was materially aggravated and accelerated,
because I had continued to work the new job duties/workload for 3 days before seeking medical attention. I have always maintained
that like many spinal chord injuries, I was not immediately aware that I had injured mine until the pain actually worsened.
It was at that time that I sought medical attention. I have also maintained that as my pole sawing duties had increased, so
had my pain. After learning I had herniated a disc but was capable of lighter duties, I continued performing my manager/supervisor
duties, and whatever lighter work I was capable of. As indicated in my initial report of injury and subsequent appeal documentation,
the October 1997 contract required 90% pole sawing. As confirmed by my former employer, additional personnel were hired at
that point to compensate for my inability to pole saw. It should again be noted that WCB assessment information also confirms
that additional personnel were added to the payroll at that time.
It is also worth noting
that my former employer informed the board that he first started his tree trimming business in the spring of 1997, and that
his business hinged on my arborist and power line certification. He further indicated that his investment hinged on the numerous
contacts I had within SaskPower, and on my ability to manage his business. In addition to this he informed the board that
as the only certified individual on staff, I was required to be present on every SaskPower work site. The SaskPower tree trimming
tender that was provided to the board also confirms this. Given that my former employer’s business was solely dependent
on SaskPower contracts, I had continued to perform my manager/supervisor duties for that reason. The fact I was able to persevere
in those duties would only suggest that perhaps I have a higher pain tolerance than some, and that for obvious reasons I had
felt a deep sense of commitment to my former employer. It should also be noted that since my absence, his business has folded.
Rather than disputing
whether or not my pre-existing condition was aggravated and accelerated by my work duties, the board is currently denying
me consideration under Section 50 of the Act on the basis “There was no specific injury.” In its’ September 29, 2004 decision the board specifically states:
The Members
of the Board have also considered Mr. Brown under Section 50 of the legislation which speaks of a pre-existing condition being
aggravated or accelerated by a work injury. As Mr. Brown has never been found to have a specific work injury, he does not
warrant consideration under Section 50.
To reiterate, there is no legislation
in the Act that states there must be a specific incident for an injury to be compensable. I have reviewed Section 50 of The
Workers’ Compensation Act (referenced at the end of this appeal), and there is certainly nothing in this section pertaining
to “A specific work injury”. Clearly the board is of the impression that it’s at liberty to revise
this legislation to suit its’ own purposes. In actual fact Section 50 simply states “The injury”,
and in accordance with the boards’ February 27, 1998 directive, this includes “A sufficient change in
job duties/workload sufficient enough to explain an onset of symptoms.”
It is the contention of my
physicians, my former employer, and myself, that my injury (the soft component of my disc herniation) resulted from the sufficient
change in my job duties/workload, and accordingly, this injury warrants due consideration under Section 29 of The Workers’
Compensation Act.
It is the contention of my
physicians and I that my pre-existing condition (the hard component of my disc herniation) was materially aggravated and accelerated,
and accordingly, this pre-existing condition warrants due consideration under Section 50 of The Workers’ Compensation
Act.
And finally, it is my
contention that the medical and employment evidence that supports my work injury claim is at the very least equal to that
of the board, and accordingly, this evidence warrants due consideration under Section 25(2) of The Workers’ Compensation
Act.
The fact that the board has
deliberately and unjustly denied me consideration under these sections of the Act, is confirmation of its’ dishonesty
and extreme bias in my case. The fact that the boards’ denial of my work injury claim is based on erroneous legislation
(no specific injury), is further confirmation of this.
Summation
The board has never accepted my work injury claim, and it remains adamant that my physical difficulties
are the result of a non-compensable injury that occurred 22 years prior to my WCB claim. The boards’ decisions to date
provide no tangible evidence that supports this theory. Rather than providing such evidence, the board has simply and inappropriately
discounted the evidence that supports my work injury claim. The only consistent position the board has taken is in regards
to “No specific injury”, which neither applies to my situation nor has any merit whatsoever. In its’
most recent decision to date the board audaciously states:
“As
evidenced by the Board’s various reviews, Mr. Brown’s case has been examined meticulously.”
As evidenced throughout this
appeal, the only aspect of my claim that has been examined meticulously by the board, has been the means in which to deny
it.
In its’ most recent decision
the board also seemingly boasts that the Court of Queens Bench, and the Court of Appeals have found:
“The
boards’ decision was not unreasonable.”
The board will know that both
court dismissals of my case were based on the boards’ exclusive jurisdiction, as well as the evidence it presented at
that time. As demonstrated throughout this appeal, that evidence has no merit. Consequently the board is denying my work injury
claim simply because it has the legal capacity to do so, which by itself is neither appropriate nor justifiable.
As evidenced in this appeal the board has exceeded its’ jurisdiction, and violated my right
to non-discriminatory treatment. The boards’ handling of my work injury claim has been reprehensive and dishonest from
the beginning, and its’ defamation of character has been deliberate. The board has clearly discriminated against my
disability (the pre-existing condition), which until the change in work duties had not affected any aspect of my life. In
doing these the board has denied me the work injury benefits that I am rightfully entitled to.
Rather than responding to a few select issues as it has done in the past, I respectfully request
that the board address each of these, as no single issue is less significant than the others. All of the documentation/evidence
that supports the mishandling of my work injury claim is contained in my WCB file. In several instances however, the boards’
lack of documentation is itself the evidence.
Sincerely,
ORIGINAL SIGNED
Referenced sections of The Workers’
Compensation Act:
Section 25(2) states:
“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.”
Section 29 states:
“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.”
Section 50 states:
“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.”
Cc: Canadian Human Rights Commission
Saskatchewan Human Rights
Commission
Her Honour the Honourable Dr. Lynda M. Haverstock
Lieutenant Governor of Saskatchewan
Lorne Calvert
Premier of Saskatchewan
Debra Higgins
Minister of Labour
Frank Quennel
Minister of Justice
Glen Hart
Labour Critic – Saskatchewan Party
Mark Wartman
Member of Legislative Assembly
Tom Lukiwski
Member of Parliament
Warren Elder
SaskPower Purchasing Department
Marilyn Bird
Office of the Workers’ Advocate
Lyle Canute
Regional Tree Service
Dale Goldhawk
Goldhawk Fights Back
Julie Van Dusen
CBC National News - Television
David Horth
CBC Regional News – Television
Brett Bradshaw
CBC Regional News - Radio
whistleblower@ctv.ca
CTV National News
W-FIVE
CTV
The Fifth Estate
CBC
The Leader Post
The National Post
The Globe & Mail
Sheila Steele
Injusticebusters.com
“Appealing the Sask. Workers’
Compensation Board”
https://tombrownskwcb.tripod.com/
