The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on February 22, 2001, at the request of the claimant's spouse. The Panel discussed this appeal on February 22, 2001.

Issue

Whether or not the claimant's permanent partial impairment award for brain injury has been properly calculated.

Decision

That the claimant's permanent partial impairment award for brain injury has been properly calculated.

Background

While employed as a construction worker on March 6, 1996, the claimant was clearing snow with a bobcat machine when it fell through the ice of a river. File information showed that the claimant was submerged for approximately 10 minutes and developed hypothermia, cardio-respiratory arrest, respiratory failure and neurological complications which included a comatose state for five days. The claim was accepted as Workers Compensation Board (WCB) responsibility and benefits were paid accordingly.

The claimant, his wife and daughter were interviewed by a WCB consultant psychiatrist on June 4, 1998 for the purpose of evaluating a permanent partial disability impairment award. Following the assessment and after reviewing all medical reports, it was determined that the claimant fell into Class III of the WCB's impairment rating schedule with respect to chronic brain syndrome and was entitled to a 45% award.

On September 8, 1998, a WCB Payment Specialist advised the claimant that he had been rated at 45% and was entitled to a lump sum award of $25,423.20. On November 9, 1998, the claimant's spouse appealed the 45% impairment rating and the case was referred to Review Office for consideration.

In a decision dated December 4, 1998, Review Office noted that the claimant had not been physically examined to determine if the impairment award should be higher than 45% based on physical impairment. Arrangements were therefore made for the claimant to be physically examined by a WCB medical advisor specializing in the rating of permanent impairments. The examination later took place on January 19, 1999. The claimant was also assessed by a neurologist and his report dated March 25, 1999 is located on file.

On July 30, 1999, Review Office determined that the claimant's impairment award should be increased to 60%. Review Office noted that the Medical Director of Healthcare had determined that the following ratings should apply to the claimant, i.e. chronic brain syndrome 45%, neurologic impairment (due to tremor and movement disorder) station and gait 15%, manual dexterity 5%, verbal communication 2.5%, sterility (due to ejeculatory dysfunction) 5%, bladder dysfunction 2.5%.

Review Office commented that in cases where more than one bodily function has been affected the board's combined value tables must be utilized when dealing with permanent impairments. It was therefore not possible to simply add up the various impairment ratings to come to a total rating. The rating of the claimant's impairment based on the combined value tables was 60%. Review Office concurred with this rating. Review Office also commented that the 60% rating took into account not only the chronic brain syndrome but also other neurologic and physical impairments that have resulted from the accident. Review Office agreed with the Medical Director that the claimant's case should be reassessed in two year's time.

In a letter dated September 10, 1999, the claimant's spouse wrote to the Review Office indicating the following: "The appeal was based on the brain injury my husband [name] suffered. There has been no change in the percentage (45%) of the permanent impairment rating schedule given originally for his brain injury. I am appealing the decision based on this fact."

In response to the above appeal submission, Review Office indicated in a letter dated September 24, 1999, that it was unable to alter the specific percentage of the claimant's award dealing with the organic brain damage. The case would therefore be forwarded to the Appeal Commission which was the final step in the appeal process.

On November 13, 1999, an appeal submission was received from the claimant's spouse who disagreed with Review Office's final decision and an oral hearing was then arranged.

Reasons

Section 60(2) of The Workers Compensation Act of Manitoba (the Act), provides exclusive jurisdiction to the Workers Compensation Board (WCB) to determine the existence and degree of an impairment incurred by reason of an injury arising out of and in the course of employment. According to section 38(1) of the Act, the WCB shall determine the degree of a worker's impairment expressed as a percentage of total impairment. In other words, impairment awards are calculated by determining a particular rating, which best represents the percentage of impairment as it relates to the whole body. Also, section 4(9) allows the awarding of compensation in respect of impairment even though there has been no loss of earning capacity.

An injured worker's permanent impairment is appraised by the Medical Services Department of the WCB when it conducts either a medical examination of the worker or by its reviewing the treating physician's medical reports. Certain factors are taken into consideration: loss of the particular part of the body; loss of mobility in the joints; loss of function of any body organs; and cosmetic deformity of the body. As some forms of impairment do not allow for exact measurement, it becomes necessary for the medical advisor to make a subjective judgment as to the degree of impairment.

It is also important to note that because pain is not measurable, it does not become a component in the determination of whether a claimant qualifies for a permanent impairment award. For instance, a claimant who has complete and full range of motion of a shoulder following an injury to that shoulder would not be eligible for a permanent impairment award because of his continued experience of pain. Without a loss of range of motion or function of body part, the WCB will not authorize a permanent impairment award based on pain alone.

When determining a PPI award, reliance is placed upon the Permanent Impairment Rating Schedule, which forms part of WCB policy 44.90.10. This schedule provides, in part, guidelines for permanent impairment evaluation:

"Permanent impairment is evaluated by conducting a medical examination of the worker or by reviewing the medical history documented on file as described in the policy statement. Evaluation of a permanent impairment is made when treatment has been completed or when, in the opinion of the Board's physician, the medical condition has stabilized and no further improvement is expected. The timing of the evaluation, therefore, varies according to the individual circumstances."

In the present case, the WCB impairment awards medical advisors determined that the claimant's permanent partial impairment (PPI) award should be established at 60%. This impairment rating included the following ratable conditions: chronic brain syndrome, station and gait, manual dexterity, verbal communication, sterility due to ejaculatory dysfunction and bladder dysfunction. The claimant's advocate appealed this overall rating on the grounds that the "percentage [did] not reflect the extent of [the claimant's] injury."

As the background notes indicate, the claimant sustained a hypoxic insult to his brain after being submerged for some 10 to 15 minutes in cold water, when the machine that he was operating broke through the river ice on which he was working. Approximately two and a half years following the compensable incident, the WCB conducted its assessment of the claimant for purposes of establishing a permanent impairment award as a result of his injury. Sadly, the claimant's hypoxic brain injury resulted in, amongst other things, impairment of his mental faculties. The WCB medical advisors assessed the claimant's cognitive functions involving such thinking skills as language use, calculation, perception, memory, awareness, reasoning, judgment, learning, intellect, social skills and imagination.

Following this assessment, an impairment rating for the claimant's brain injury was established in accordance with WCB policy 44.90.10. The rating schedule contained in this policy outlines two classifications for the evaluation of brain damage injuries. The first category is called Organic Brain Syndrome, which can include such things as "defects in orientation; ability to understand concepts; memory; judgement; and decision process." A basic impairment rating of 35 to 40% is generally attributed to an individual where his or her "ability to carry out most activities" requires supervision. The second category is known as Chronic Brain Syndrome, and it "is directly associated with organic brain injury resulting from trauma. It is essentially characterized by impairment of orientation, comprehension, memory and of the abilities to learn, anticipate, make decisions and exercise judgement." A basic rating of 45% for a Class III impairment is attributed to an individual with extremely severe impairment, and who requires help even in meeting his or her most elementary needs.

As can be seen from the foregoing, the terms 'organic brain syndrome' and 'chronic brain syndrome' both deal with the same subject matter, which is the impairment of the higher cognitive functions. The terms are quite often used interchangeably by the WCB's medical advisors. According to the wording of the rating schedule, the only significant difference in meaning between these two terms is that 'chronic brain syndrome' is "directly associated with organic brain injury resulting from trauma." It is a generally accepted practice among WCB Impairment Awards Medical Advisors to assign the higher rate when alternate categories, such as exist in this case, cover the same aspect of impairment. In this regard, we note, in particular, the WCB medical director's comments, which are contained in the PPI rating memorandum, dated July 19th, 1999. "[A] brain injury rating of 45% is consistent with a fair application of the schedule, and with ratings provided to others similarly injured. For comparison, using the alternative category of organic brain syndrome, the maximum rating would be 40%."

The claimant's advocate advanced the argument that the claimant was entitled to a higher impairment rating, because, in his view, 'organic brain syndrome' and 'chronic brain syndrome' were distinct and separate categories of impairment, which should have been rated individually. We do not agree with this approach for the previously outlined reasons. We find, therefore, that the claimant's permanent partial impairment award for brain injury has been properly calculated in accordance with the WCB's rating schedule. Accordingly, the appeal is hereby dismissed.

We would, however, like to point out two important matters for future reference and possible consideration. Firstly, we note the WCB's medical director indicated in his July 19th, 1999 memo that "Mr. [the claimant] should be reassessed in two years." And secondly, the advocate made reference at the hearing to further deterioration of the claimant's sense of smell and taste and bladder control, and that the diminution of these functions may not have been fully explored at the time of the initial rating.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

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

Signed at Winnipeg this 9th day of April, 2001