The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on November 2, 1999, at the request of legal counsel, acting on behalf of the claimant. Legal counsel raised two issues for the Appeal Panel to consider. The hearing was adjourned sine die in order to obtain further information from the Workers Compensation Board Finance Department in connection with the second issue.

Arrangements were made to reconvene the hearing on February 24, 2000, to entertain further evidence and argument. On February 23, 2000, it was agreed by all parties to adjourn the second issue (i.e. whether or not the discount factor of 5.25% had been appropriately utilized in the calculation of the claimant's commutation award.) The Panel therefore met on February 24, 2000, to determine the first issue and render its final decision.

Issue

Whether or not the claimant is entitled to a Permanent Partial Impairment Award for his Chronic Pain Syndrome.

Decision

That the claim is not entitled to a Permanent Partial Impairment Award for his Chronic Pain Syndrome.

Background

On June 24, 1991, the claimant injured his left third finger when he was pulling out viscera from a hog. The claim was accepted as a Workers Compensation Board (WCB) responsibility and benefits were paid accordingly.

A Medical Review Panel (MRP) was convened on April 15, 1998, under Section 67(3) of The Workers Compensation Act (the Act). Briefly, the MRP made the following conclusions with respect to the claimant's condition:

• the probable diagnosis following the June 24, 1991 accident was a soft tissue injury involving the third finger of the left hand. It appeared that tenosynovitis of the left third finger developed later and was probably work related.
• prior to the June 24, 1991, injury the claimant probably had early degenerative changes in the DIP joint of the left third finger.
• the present diagnoses of the claimant's condition were an amputated left third finger (directly related to the June 24, 1991, work place injury), chronic pain disorder (related to the claimant's reaction to his hand condition) and Dupuytren's contracture, palmar fascia (which appeared due to early tenosynovitis and the scar tissue following his operation).
• the MRP concluded that the claimant had not recovered and that prognosis was poor.
• restrictions related directly to the June 24, 1991 accident would be in relation to his absent third finger. Any other restrictions were indirect and resulted from the claimant's chronic pain behavior.
• the MRP agreed that the claimant had some loss of function. Any of the requested measurements would be unreliable, however, due to the large psychological overlay demonstrated by the claimant.

In a report dated July 14, 1998, a clinical psychologist made the following statement/conclusion following his assessment of the claimant: "The degree of impairment associated with [claimant's name] Associated With Both Psychological Factors and a General Medical Condition (DSM-IV 307.89), also called a Chronic Pain Syndrome, is 45%."

On October 30, 1998, a WCB medical advisor specializing in pain management stated the following:

"...After review it is my opinion based on the comments of 2 psychologists that this man does indeed suffer from chronic pain syndrome. Based on the level of illiteracy and the degree of symptoms of his CPS as well as the length of time he has been off work, it is my opinion that he is currently unemployable therefore specific restrictions re: occupation is irrelevant. Because of his illiteracy and the length of time away from work any treatment for his CPS has < 1% chance of success. Because of his very limited English there is no intensive long term interdisciplinary program that is available to attempt to treat his CPS. The only hope this man appears to have to regain some improved quality of life while employable is to have him (as he indicates he wishes) return to his native Paraguay where familiar surroundings might help him...".

On February 2, 1999 and April 30, 1999, Claims Services advised the claimant that he was not entitled to a permanent impairment award although it was agreed that he had a compensable diagnosis of chronic pain syndrome. This decision was appealed to Review Office by a solicitor, acting on behalf of the claimant. On June 25, 1999, Review Office determined that the claimant's chronic pain syndrome disorder was not rateable under the WCB's permanent impairment rating schedule.

Prior to rendering its decision, Review Office referred the case to the Director of Healthcare on June 18, 1999 to consider whether or not an injustice would be created if this condition (i.e. chronic pain syndrome) was not rated and whether other schedules of disability/impairment should be utilized. In response, the Director stated the following:

"As you are aware, the PPI Rating Schedule does not include a rating for chronic pain syndrome. Although the Director of Healthcare may provide non-schedule ratings, I will only use this discretion in individual circumstances where a particular injury or combination of injuries is unusual. I would not use the discretion permitted to create or change a rating for an entire group of claimants or category of injury, thereby in effect changing Policy. Clearly in my view, changes of that nature should only be made by the Board of Directors."

In its June 1999 decision, Review Office agreed with the above comments and was satisfied that chronic pain syndrome did not merit a rating under the WCB's approved schedule of impairment ratings and the worker was therefore not entitled to an impairment award for this condition. The solicitor subsequently appealed this decision and an oral hearing was held on November 2, 1999.

The November 2, 1999, hearing was adjourned sine die in order to obtain further information from the WCB's Finance Department with respect to the issue of whether or not the discount factor of 5.25% had been appropriately utilized in the calculation of the claimant's commutation award. Following receipt of the WCB's response, the hearing was to reconvene.

File information showed that arrangements were made to reconvene the hearing for February 24, 2000. However, the claimant's solicitor requested to adjourn the issue relating to the discount factor and a reconvened hearing did not take place at that time. Instead, the Panel met on February 24, 2000, to render a decision with respect to "Whether or not the claimant is entitled to a Permanent Partial Impairment Award for his Chronic Pain Syndrome."

Reasons

The etiology of chronic pain syndrome can be multifactorial and the medical community generally acknowledges that it can be treated. The WCB has recognized chronic pain syndrome as a potentially compensable condition. However, the WCB has not elected to consider chronic pain syndrome as being rateable for the purposes of establishing a permanent partial disability or impairment.

We note that WCB policy 44.90.10 together with the impairment rating schedule is inclusive in nature and does not list or contain chronic pain syndrome as a specifically defined and/or rateable condition. The reason why this is so is set out in the WCB's Director of Healthcare Service's memo of June 18th, 1999:

"As you are aware, the PPI Rating Schedule does not include a rating for chronic pain syndrome. Although the Director of Healthcare may provide non-schedule ratings, I will only use this discretion in individual circumstances where a particular injury or combination of injuries is unusual. I would not use the discretion permitted to create or change a rating for an entire group of claimants or category of injury, thereby in effect changing Policy. Clearly in my view, changes of that nature should only be made by the Board of Directors."

We are in total agreement with the above statement. And inasmuch as we are statutorily bound by the policies of the Board of Directors, we can not unilaterally grant entitlement to the claimant to a permanent impairment award for his chronic pain syndrome. Therefore, the appeal is hereby denied.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
R. Frisken, Commissioner

Recording Secretary, B. Miller

R. W. MacNeil - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 31st day of March, 2000