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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.

 

 

As the following continues to be ignored, I am once again taking issue

with the boards’ disregard for my specialists’ opinion:

 

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:

 

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

 

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:

 

  1. 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.

 

  1. 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.

 

  1. 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”

            http://tombrownskwcb.tripod.com/