The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on August 1, 2000, at the request of the claimant. The Panel discussed this appeal on August 1, 2000.

Issue

Whether or not the Permanent Partial Disability rating of 3% is accurate;

Whether or not the effective date of the impairment award is correct as being August 30, 1964;

Whether or not the wages used to calculate the impairment award of $39.85 per week is correct; and

Whether or the claimant is entitled to the payment of any partial or full wage loss benefit beyond that which he has already been paid.

Decision

That the Permanent Partial Disability rating of 3% is accurate;

That the effective date of the impairment award should be February 25, 1954;

That the wages used to calculate the impairment award of $39.85 per week is correct; and

That the claimant is not entitled to the payment of any partial or full wage loss benefit beyond that which he has already been paid.

Background

While employed as a construction labourer on January 11, 1952, the claimant injured his right knee when it was crushed between a truck and a wall. A Surgeon's First Report dated February 9, 1952 indicated that the claimant had a contusion of his right thigh muscles and a strain of the medial collateral ligament with effusion to the right knee. The claimant was off work between January 11, 1952 and January 23, 1952 after which he then returned to light duty work.

Subsequent file records showed that the claimant continued to experience difficulties with his right knee injury. On February 25, 1954, a specialist provided the opinion that the claimant's knee problems were due to an injury involving stretching or a partial tear of the anterior cruciate ligament. The feeling of instability was due to this lesion. The specialist felt that the claimant's disability with respect to the knee was minimal.

On January 16, 1958, a physician noted that the claimant's right knee had locked on January 14, 1958. The diagnosis rendered was a displaced internal semilunar cartilage resulting from the January 11, 1952 accident. On January 30, 1958, a right knee meniscectomy was performed. Operative findings showed that the claimant's internal meniscus was loose, degenerated and fractured.

The claimant was assessed for right knee complaints again on June 15, 1964. The examination noted laxity in the medial crucial ligament. An x-ray of the knee showed a small loose body in the joint. On June 30, 1964, a right knee operation was performed which showed that both menisci were intact, the cruciate ligament was also absent and the posterior ligament was long and lax. Floating thin fibrous bodies were removed. An arthrodesis of the knee or reconstruction of the anterior cruciate ligament was suggested.

On November 15, 1976, an orthopaedic specialist recommended an upper tibial osteotomy to correct the varus deformity and to take strain off the ankle and medial compartment. If this procedure failed, the specialist indicated that an arthrodesis or an arthroplasty, would be indicated, depending on the claimant's symptoms and work duties.

In 1988 the claimant was referred to another orthopaedic specialist who noted that the claimant had signs of instability, secondary arthritis, as well as pseudogout. No treatment for the knee was recommended at this time but the specialist indicated that a right arthroplasty would be appropriate should the claimant's pain ever increase or became more troublesome.

On February 16, 1998, a right total knee arthroplasty was performed. At the time of surgery, the surgeon noted arthritis and deformity of the knee joints.

On June 23, 1999, a WCB impairment awards medical advisor examined the claimant's right knee. The loss of range of motion of the right knee was calculated as being 140-90 = 50 degrees. The permanent impairment rating for a knee ankylosed in a position of function was 25%. The permanent impairment calculation was 50/140 x 25 = 8.9%. A recommendation of 3% (range 0% to 5%) for knee instability was also suggested.

Photographs of the right knee were taken for the purposes of a cosmetic assessment. The cosmetic impairments related to the compensable injury were rated a PPI of 2%, according to the consensus opinion of three medical reviewers. Using the combined value chart, the claimant's total PPI was calculated as 14.5%.

On November 3, 1999, the WCB's impairment awards medical advisor reviewed the case at the request of primary adjudication. The medical advisor was asked, "Initially we were to review this file in 1964 re a PPI. This was never done. Is there any way to establish if the claimant was entitled to some percentage in 58 after the surgery or 64 following the surgery?" In response, the medical advisor indicated the following:

"There does not seem to be any information on file pertaining to the progress following the meniscectomy in 1958 so that a PPI could not be assessed.

Reports spanning the period 15/6/64 to 16/1/98, are suggestive of laxity of the anterior and posterior cruciate ligaments and of the medial collateral ligament. A PPI of 3% would seem reasonable for the ligamentous laxity."

In a letter dated January 10, 2000, the claimant was informed that his impairment had been rated at 3% effective June 15, 1964. Indexing increases were effective July 1983 through to February 1998. The total lump sum settlement offered to the claimant was $6,139.10 or a monthly pension of $39.35 per month. The claimant appealed this decision to Review Office.

On February 28, 2000, the claimant wrote to the WCB indicating that he was applying for loss of wages from 1958 onwards. On March 9, 2000, the WCB denied the request indicating that although the claimant may not have been capable of performing his pre-accident employment, there was no indication that he required assistance for a return to work at that time.

On April 17, 2000, the claimant requested Review Office to review his case with respect to the effective date of his impairment award, the impairment rating and the wages used to calculate his impairment award. In a May 5, 2000 decision, Review Office rendered the following decisions:

• "That the permanent impairment rating of 3% was accurate."

  Review Office indicated that the 3% impairment rating was for ligamentous laxity and there was no information available on file to alter that award. There was minimal loss of stability or ligamentous laxity identified in any of the medical documentation noted on file between 1964 and the present date.

• "That the effective date of the impairment award is correct as being August 30, 1964."

  Review Office noted that prior to 1964 all medical practitioners who had examined the claimant noted that the claimant would not suffer a permanent impairment as a result of the injury sustained on January 11, 1952. Post 1964 there was some indication that the claimant may have some ligamentous laxity and based on that information the PPI award was granted. Review Office stated that the impairment award would be effective from August 30, 1964 as that date was when the claimant had been paid wage loss benefits from his last time loss from work which had been accepted as the WCB's responsibility.

• "That the wages used to calculate the impairment award of $39.85 per week is correct."

  Review Office indicated that based on the file documentation and the financial data provided, the claimant had average weekly income prior to the accident of $39.85. It was also noted that effective 1962 the claimant was self-employed and did not have an income from any other industry. There was no documentation provided to the WCB that might assist in arriving at a different wage rate to be used at that particular time.

• "That the claimant is not entitled to the payment of any partial or full wage loss benefit beyond that which he has already been paid."

  Review Office noted that when considering whether or not the claimant should be paid wage loss benefits after the recent surgery, board policy did not provide for the payment of benefits as the claimant was retired. As the claimant was retired, the policy stated no wage loss benefits would be paid. The claimant was not losing any income as a result of the compensable accident.

On June 6, 2000, the claimant appealed Review Office's decisions and an oral hearing was arranged for August 1, 2000.

Reasons

As to the first issue, we find that the permanent partial disability rating of 3% for ligament laxity is, on a balance of probabilities, accurate.

The effective date of the impairment award being August 30th, 1964 is not correct. In this regard, we note the following comments of the treating orthopaedic surgeon in his February 25th, 1954 letter to the attending physician. "The anterior cruciate ligament, however, on the right is very definitely lax permitting the tibia to come forward an abnormal distance on the femur. When it snaps back into normal position there is an audible cracking sound. This laxity I would say was a 2 on a basis of 4 for a complete rupture." We find that a more appropriate effective date would be February 25th, 1954.

The wages used to calculate the impairment award of $39.85 per week are correct. We note that the calculation was done in accordance with the applicable legislation and WCB policy in effect at the time of the compensable injury.

Finally, the claimant was not able to provide evidence demonstrating a level of disability which would support entitlement of a greater partial or full wage loss benefit beyond the amount already been paid.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
B. Leake, Commissioner

Recording Secretary, B. Miller

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

Signed at Winnipeg this 14th day of September, 2000