A Sample WCB Review Division Submission

  

Below is a sample letter to the WCB Review Division. You may find this helpful if you don’t have an advocate.

——————————————————————–

September 1, 2008

 

Re: WCB Claim No. 1234

 

Dear Sir or Madame:
We are in receipt of your letter of August 6, 2004. Please find below our submission to the WCB Review Division arising from the claim filed by Mr….. that has been denied.


Issue: Whether Mr. …. medical condition diagnosed as Osteoarthritis, was aggravated by the nature of his employment, causing disability & therefore is it compensable under Section 6 of the WCB Act.


Background
Mr…… has been a power lineman for thirty years. It is common ground that he has climbed up and down power poles most of his working life. In the late to mid nineties he started to experience increasing stiffness in his hips and was eventually disabled from working. Mr. …. believes that his disease was aggravated by the years of service in his occupation as lineman.



Remedy

We contend that the claim should be allowed and benefits are paid. It is clear that Mr…. will not be returning to work and we will be seeking accommodation for a modified position from the employer. Moreover, if the claim is allowed we are asking that the costs of the medical/legal reports should be reimbursed. Receipts are attached to this document.


The Law
Section 6 of the Workers Compensation Act states that:
6 (1) Where

(a) a worker suffers from an occupational disease and is thereby disabled from earning full wages at the work at which the worker was employed or the death of a worker is caused by an occupational disease; and

(b) the disease is due to the nature of any employment in which the worker was employed, whether under one or more employments, compensation is payable under this Part as if the disease were a personal injury arising out of and in the course of that employment. A health care benefit may be paid although the worker is not disabled from earning full wages at the work at which he or she was employed

The WCB Act goes on to say:

(4.2) Despite subsection (4.1), the Board may designate or recognize a disease as being a disease that is peculiar to or characteristic of a particular process, trade or occupation on the terms and conditions and with the limitations set by the Board.

We also refer to Policy Item 26.55 where it states, in part:

“Where a worker has a pre-existing disease which is aggravated by work activities to the point where the worker is thereby disabled, and where such pre-existing disease would not have been disabling in the absence of that work activity, the Board will accept that it was the work activity that rendered the disease disabling and pay compensation. Evidence that the pre-existing disease has been significantly accelerated, activated, or advanced more quickly than would have occurred in the absence of the work activity, is confirmation that a compensable aggravation has resulted from the work…To be compensable as a work-related aggravation of a disease, the evidence must establish that the employment activated or accelerated the preexisting disease to the point of disability in circumstances where such disability would not have occurred but for the employment… An aggravation of a pre-existing disease which is not attributed to a specific event or trauma, or to a series of specific events or traumas, will be treated as a disease.

Argument
We have provided you with a report from Doctor Dewey Feelgood, MD, MPH, FRCS (C), specialist in Orthopedic Surgery. Dr Feelgood is a very prominent Orthopedic Surgeon. Dr. Feelgood is also a Hip and Knee Replacement specialist practicing at a General Hospital where he performs approximately 300 hip replacements a year. Moreover, he is a teaching position at the Faculty of Medicine. It is self-evident that he is an expert in the field of Orthopedic Surgery and in hips in particular.

It is also important to note that rather than just reviewing the WCB file, Dr. Feelgood is working directly with Mr….. and is his attending surgeon. It is our respectful submission that the expertise of Dr. Feelgood places him in a better position to assess Mr….. and accordingly his evidence should be given greater weight then the opinion of the WCB Medical Officer.

In Dr. Feelgood’s medical/Legal letter of 2007, June 9 he confirms our belief that the claim should be allowed. He refutes the assertions of the WCB Medical Officer in several respects. Specifically, Dr. Feelgood states in point number one in the above letter, “Mr….. certainly did have some subtle anatomic abnormalities which likely predisposed to his bilateral hip OA. I am sure that even without the aggressive pole power line technician job for 30 years that he would have developed OA in both hips however he may not have received such extensive disability and the need for bilateral hip surgery until several or many years to come. I therefore feel quite strongly that the very aggressive and high load nature of Mr….. job likely did exacerbate the condition and therefore lead to accelerated bilateral hip surgeries….”

Further, the Medical Officer stated that Cozaar was known to cause osteoarthritis. It should be noted that there is no evidence to that effect. In contrast, Dr. Feelgood, an expert in osteoarthritis, stated that “he is not aware of the medication Cozaar having any significant causative or aggravating relationship of OA.”

In our view, the suggestion from the Medical Advisor that the weight distribution of the feet when you are climbing a pole is the same as when you are standing is nonsensical. Further, the idea that the Osteoarthritis rate among power lineman would be higher if the work contributed to this disease is unproven and contrary to the report provided by the Physiotherapy and Rehabilitation Centre. When describing daily work activities, they refer to the constant insertion and removal of the workers boot spikes into the wooden poles. They conclude, “In order to ensure the spike secures into the pole and in order to remove the spike from the pole while climbing, the worker is required to shift body weight laterally from side to side for each step while the opposite leg performs a rotational movement of the hip involving internal and external rotation.” They continue on to say the above process, “requires a substantial amount of force,” while, “it supports most of the worker’s weight.” It is clear to us that standing on he ground and climbing a pole is not the same and that activity does place extra load on the hips.

In closing, we believe that the worker has fulfilled his requirement under section 6 of the Act and under section 26.55 of the Policy Manual. It is clear that Dr Feelgood is in a better position to assess this case and he feels strongly that the aggravation of OA was caused by Mr…. workplace activities. Accordingly, the claim should be allowed.

Respectfully submitted,

Injured Worker or Advocate

Leave a Reply