The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on August 2, 2001, at the request of the claimant. The Panel discussed this appeal on August 2, 2001.

Issue

Whether or not the claimant's Canada Pension Plan Disabled Contributor Benefits should be deducted from his special additional compensation;

Whether or not the claimant's permanent partial disability award should be deducted from his income replacement benefits; and

Whether or not the American Medical Association Guides for the Evaluation of Permanent Impairment should be used in calculating the claimant's permanent partial disability rating.

Decision

That the claimant's Canada Pension Plan Disabled Contributor Benefits should be deducted from his special additional compensation;

That the claimant's permanent partial disability award should be deducted from his income replacement benefits; and

That the American Medical Association Guides for the Evaluation of Permanent Impairment should not be used in calculating the claimant's permanent partial disability rating.

Decision: Unanimous

Background

In June 1982, the claimant submitted a claim for compensation benefits which was accepted by the Workers Compensation Board (WCB) of Manitoba in relation to a back injury that occurred on May 3, 1982 while shoveling grain into an auger. As a result of the accident, the claimant has received various types of benefits from the WCB, which have included wage loss benefits, rehabilitation benefits, a permanent partial impairment award and special additional compensation (SAC) benefits.

In October 1998, the claimant expressed disagreement with his permanent partial impairment rating of 9%. He was of the view that the WCB should have used the American Medical Association Guides in assessing his permanent impairment. The case was referred to Review Office who in turn arranged for the claimant to be re-evaluated by a WCB impairment awards medical advisor to ascertain whether the claimant's permanent impairment rating had increased.

A WCB medical advisor examined the claimant on August 9, 1999. The examination results were considered to be invalid and recommendations were made for the claimant to undergo a functional capacity evaluation for the sole purpose of measuring his lumbosacral range of motion by using an inclinometer. On September 24, 1999, Review Office agreed with the medical advisor's recommendations and the case was referred back to Rehabilitation and Compensation Services to facilitate a functional capacity evaluation, which later took place on November 8, 1999.

On August 16, 1999, a WCB payment specialist advised the claimant that his benefits for time lost from work would be replaced by special additional compensation (SAC) effective December 1, 1998, pursuant to section 40(2) of the Workers Compensation Act (the Act). The claimant was provided with details as to how his SAC benefits were calculated and the claimant was also asked to notify the WCB if he happened to receive additional income through employment, company pension or Canada Pension Plan benefits so as to avoid any overpayment.

An adjudication supervisor wrote to the claimant on September 20, 1999. The claimant was informed that following a discussion with the WCB's Healthcare Management Services department that it would not be appropriate to apply the American Medical Association guide because the permanent impairment rating schedule adopted by the WCB adequately reflected the claimant's degree of permanent impairment. WCB policy 44.70.10 was referenced in this regard.

The claimant felt that a review of his compensation rate should be conducted. In response, the adjudicator supervisor stated that the claimant's current rate of remuneration had been determined in accordance with the maximums in place for an injury occurring in 1982. Numerous reviews had been conducted and information had been obtained from the claimant's accident employer verifying that the rate of remuneration was correct. The claimant also asked that his permanent partial impairment assessment not be deducted from his benefits. The adjudication supervisor stated that he could not honor this request as it would contravene section 4(1) of the Act.

A WCB adjudicator wrote to the claimant on December 1, 1999. The adjudicator noted that the results of the functional capacity evaluation of November 8, 1999 were considered invalid according to the functional evaluator's opinion. The claimant had demonstrated a much more active range of movement of his lumbar spine when sitting and sitting and bending forward to pick up a piece of paper than he did when standing for range of motion evaluation. Also, there was inconsistency noted in the lumbar spine range of movement findings from standing, to sitting, to lying. Based on this information, the adjudicator indicated that the previous impairment rating of 9% would not be altered.

In response to a questionnaire dated June 19, 2000, the claimant informed the WCB that he started receiving CPP disability benefits effective November 1, 1998, in the amount of $718.02 per month. On August 17, 2000, a WCB payment specialist advised the claimant that in accordance with WCB policy, CPP benefits must be deducted as they were a duplication of benefits for the same injury. As a result, the claimant's SAC benefits were being recalculated so as to include the receipt of his CPP benefits.

On January 19, 2001, Review Office considered the case with respect to three issues which were brought forward by the claimant. The decisions rendered by Review Office were as follows:

Decision 1:
That the American Medical Association Guides for the Evaluation of Permanent Impairment should not be used to rate the claimant's permanent partial disability.

Review Office rendered this decision based on WCB board policy 44.90.10, entitled, "Permanent Impairment Rating Schedule".

Decision 2:
That the claimant's income replacement benefits have been correctly established.

Review Office reviewed all of the income replacement benefit calculations in detail and considered that they were done in keeping with the WCB's practice, policy and the Act.

Decision 3:
That the case manager revisit the issue of whether the WCB should pay for the claimant's massage therapy.

Review Office forwarded the case to the case manager to obtain additional information from the claimant's chiropractor and massage therapist and give further consideration to this issue.

On January 19, 2001, Review Office reviewed the case again at the request of the claimant. The issue brought forward was whether the claimant's CPP Disabled Contributor Benefits should be taken into account when calculating his SAC benefits. Review Office confirmed that the claimant's CPP must be taken into account when calculating his SAC benefits. This decision was reached in accordance with WCB Policy 44.60.30 Special Additional Compensation. On February 14, 2001, the claimant appealed the foregoing decisions of the Review Office and an oral hearing was convened.

Reasons

As the background notes indicate, the claimant qualified for and received full special additional compensation (SAC) benefits effective December 1st, 1998. WCB policy 44.60.30.01 provides, in effect, that when calculating the amount of a SAC benefit, it will be reduced by the amount of any CPP benefits, which are received by the worker subsequent to the compensable accident. Inasmuch as the provisions of the Workers Compensation Act (the Act) together with WCB policies bind us, it necessarily follows that the claimant's Canada Pension Plan Disabled Contributor Benefits must be deducted from his special additional compensation.

A worker's claim with the WCB is governed by the legislation in effect at the time of his or her compensable accident. In accordance with the 1982 legislation, an injured worker is not entitled to receive income replacement greater than 75% of his established average earnings. Therefore, we find that the amount of the partial permanent disability award must be deducted from the claimant's income replacement benefit.

Permanent impairment awards are calculated by determining a rating, which represents the percentage of impairment as it relates to the whole body. To assist in this process, the WCB has adopted a permanent impairment rating schedule, which forms part of WCB policy 44.90.10. The policy states that "[w]henever possible, and reasonable, impairment ratings will be established strictly in accordance with the schedule ". It should be noted as well that the exclusive jurisdiction in determining the existence and degree of impairment rests with the WCB and in particular with its Healthcare Management Services Department. According to the policy, it is solely within the discretion of Healthcare Management as to whether they find it necessary to employ the American Medical Association Guides to the Evaluation of Permanent Impairment when establishing an injured worker's impairment rating.

"In the event that the Healthcare Management Services Department feels that strict adherence would create an injustice, or if it is felt that an impairment exists that is not covered by the schedule, Healthcare Management Services may deem it just and fair to establish an impairment rating that is not specifically covered by the schedule. In such cases they may use information other than the schedule such as the American Medical Association Guides to the Evaluation of permanent Impairment established for a similar purpose."

It would appear after reviewing the materials on file that the Impairment Awards Medical Advisor did not consider it necessary to use the American Medical Association Guides in order to define the claimant's impairment rating. Based on the evidence, we find no reason to disturb this determination.

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 17th day of September, 2001