The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on June 5, 2001, at the request of the claimant. The Panel discussed this appeal on June 5, 2001 and again on September 19, 2001.

Issue

Whether or not the worker's permanent partial impairment rating and lump sum settlement have been calculated correctly; and

Whether or not the claimant is entitled to partial wage loss benefits beyond September 16, 1998.

Decision

That the worker's permanent partial impairment rating and lump sum settlement have been calculated correctly; and

That the claimant is entitled to partial wage loss benefits beyond September 16, 1998.

Background

On May 6, 1997, the claimant was placing a case of beer into a fridge when the train he was working on lurched forward and he "rammed" his elbow into the corner of the fridge. Medical reports on file confirmed that the claimant was diagnosed with a focal ulnar neuropathy at the elbow. On June 25, 1998 the claimant underwent the following surgical procedures:

1. Neurolysis right ulnar nerve;
2. Anterior transposition right ulnar nerve;
3. Arthrotomy elbow joint and excision ganglion.

The claim was accepted by the Workers Compensation Board (WCB) and benefits were paid from August 7, 1997 up to September 16, 1998, when the claimant returned to work. It was also noted that at the time of accident, the claimant had been working part-time as an electrician.

On February 10, 2000, the claimant was assessed at the WCB's offices for the purposes of evaluating a permanent partial impairment (PPI) award. Following assessment, the claimant was awarded a PPI rating of 10% and was provided with a lump sum settlement of $1,090.00 on March 10, 2000.

In a memo to a WCB medical advisor dated March 14, 2000, a WCB adjudicator noted that the claimant was never able to resume his concurrent employment as an electrician, which he attributed to the effects of his compensable injury and his subsequent surgery. The medical advisor was asked to provide his comments as to whether the file evidence supported the need for ongoing restrictions as a direct result of the compensable injury and whether such findings precluded the claimant from a return to work in his concurrent position as an electrician.

On April 4, 2000, the claimant was notified of the WCB medical advisor's comments that no ongoing restrictions were required with respect to the claimant's work activities. The rationale being that his ongoing difficulties and symptoms appeared to be mainly sensory and that recorded muscle power was adequate. The WCB medical advisor noted that the claimant's range of movement had been decreased, but in his opinion it appeared to be adequate. In view of these comments, the WCB stated that it was unable to compensate the claimant for his ongoing wage loss with respect to his part time electrician's position.

On November 17, 2000, Review Office considered the case at the request of the claimant, who had appealed the WCB's decisions of March 10, 2000 and April 4, 2000. Review Office rendered the following decisions with respect to the claimant's appeals:

That the Permanent impairment rating of 10% was correct as established.

Review Office confirmed that the calculation of the degree of impairment was correct (i.e. 10%) as provided for by the Workers Compensation legislation and WCB policy with respect to the Impairment Awards Schedule.

That the financial value of the capital award was correct.

Review Office confirmed that the total impairment award financial value of $1090.00 was correct and was in accordance with section 38(2) of the Act.

That there was no entitlement to partial wage loss benefits.

Review Office placed significant weight on the opinions expressed by the WCB medical advisors and an orthopaedic consultant as well as the examination findings at the time of the impairment awards examination. Review Office concluded that there was no reason to apply restrictions to the claimant's capabilities and therefore there was no entitlement to partial wage loss benefits.

On June 5, 2001, an oral hearing was held at the Appeal Commission pursuant to an appeal application filed by the claimant dated February 28, 2001. Following the hearing and discussion of the case, the Appeal Panel decided that arrangements be made for the claimant to undergo a Functional Capacity Evaluation (FCE) to determine his current physical capabilities. A FCE was later carried out on July 30 and 31, 2001. The final FCE report was forwarded to the claimant for comment. On September 19, 2001, the Panel met to render its final decision with respect to the issues under appeal.

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 by reason of any 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. Also, Section 4(9) provides for 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 judgement as to the degree of impairment.

It is also important to note that because pain is immeasurable, 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.

In the particular case at hand, a WCB Impairment Awards medical advisor examined the claimant on February 10th, 2000. She recorded in her examination notes the following assessment for loss of nerve function and calculation of range of motion of the elbow:

"The PPI rating for complete loss of ulnar nerve function at the elbow is 10%. Since there is some evidence of loss of function from the ulnar nerve as evidenced by loss sensation in the ulnar distribution and loss of grip strength, a rating of 5% is recommended in this case.

The PPI rating for an ankylosis of the elbow in a position of function is 20%. The loss of range of motion of the right elbow is 20 degrees (90-70). 20/90 x 20 = 4.4%.

The claimant was sent for photographs for cosmetic purposes of the scarring at his elbow before a final rating was awarded. WCB Impairment Award medical advisors employ certain criteria when making a determination of cosmetic impairment. Some of the factors considered when reviewing scarring include location of scar, form, multiple sites, texture, colour etc. Photographs are taken of the scarring and they are then reviewed independently by three medical advisors. A portfolio of photographs is also maintained at the WCB for purposes of comparing similarity and ensuring consistency.

The evidence on file confirms that three Impairment Award medical advisors reviewed photographs of the claimant's scarring. It was a consensus opinion that a 1% rating be given for scarring. While we did not have the benefit of being able to compare the claimant's photographs with folio photographs on file at the WCB, we find no reason to disturb the ultimate consensus opinion reached by the medical advisors.

The method of calculation adopted by the WCB's medical advisors is simply to combine or add the two lowest percentages together (1+4.4) and the sum is then added to the next higher percentage and so on. If both numbers (1+4.4) are less than 5, then the numbers are merely added together without any rounding (1+4.4 = 5). Rounding only begins when one or both of the percentages are greater than 5 and it is at this point that the combined value chart is used. It is important to note that the combined value chart requires whole numbers and it is for this reason that rounding takes place.

We have reviewed the calculations of the claimant's impairment rating and find same to have been correctly calculated in accordance with the legislation and the Permanent Impairment Rating Schedule adopted and approved by the Board of Directors. Therefore we find that the claimant's permanent partial impairment rating has been properly rated at 10%. In addition, we further find that the amount of the lump sum settlement ($1090.00) is the maximum allowable under section 38(2) of the Act based on a rating of 10%.

With regard to the second issue dealing with entitlement to partial wage loss, we requested that the claimant undergo a functional capacity evaluation (FCE) before making a final determination. In our view, the FCE of July 30th and 31st demonstrates that as a consequence of his compensable injury the claimant has been limited in his being able to perform some of his concurrent employment duties.

"With respect to Mr. [the claimant's] abilities to perform functions requiring use of the upper extremity, a moderate level of cumulative fatigue is noted with extensive use of the right upper extremity. This corresponds with the decreased endurance noted on physical assessment. This decrease in endurance results in poor quality of movement of the right upper extremity with accompanying compensatory patterns, as well as overcompensation of the left upper extremity at times. This cumulative fatigue of the right upper extremity is most noticeable in tasks requiring sustained overhead, forward reach or screwing, but is also noticeable in tasks requiring repetitive forward reach."

It is now up to the WCB to determine what amount and to what extent that the claimant is entitled to partial wage loss benefits.

The claimant has asked the Panel to supply him with a laptop computer, which would allow him to prepare his reports while performing his primary employment functions. As the WCB has not previously dealt with this issue, we lack the necessary legislative jurisdiction in order to deal with this matter at the present time.

Panel Members

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

Recording Secretary, B. Miller

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

Signed at Winnipeg this 26th day of September, 2001