The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel teleconference hearing was held on December 13, 2001, at the request of legal counsel, acting on behalf of the claimant. The Panel discussed this appeal on December 13, 2001. It should be noted that the Appeal Panel was to address a further issue regarding the claimant's entitlement to temporary total disability benefits beyond August 6, 1999, however, at the request of claimant's counsel, this issue was withdrawn.

Issue

Whether or not the claimant is entitled to an increase in his permanent partial disability award.

Decision

That the claimant is entitled to an increase in his permanent partial disability award.

Decision: Unanimous

Background

This case has been the subject of a previous Appeal Panel decision (50/96) and as such, complete details of the case will not be repeated at this time. Briefly, while employed as a heavy duty mechanic on August 10, 1978, the claimant was pinned against a wall by a jumbo (mining vehicle/equipment) resulting in injuries to his left knee and both thighs.

The claim was accepted by the Workers Compensation Board of Manitoba (WCB) and benefits were accordingly extended to the claimant. At the time of the previous appeal, the Appeal Panel hearing the case was asked to address multiple issues. In the decision 50/96, dated April 12, 1996, the Appeal Panel rendered the following decisions:

That responsibility not be accepted for the claimant's cervical and thoracic complaints as they are not related to the injury of August 10, 1978; and,

That a cause and effect relationship between a condition of the claimant's hips and the compensable injury he sustained to his left knee on August 10, 1978 has not been established; and,

That the claimant does not have a rateable impairment to his right knee which is compensable; and,

That the claimant does have a compensable low back condition which would entitle him to a PPI (sic) award; and,

That the 12.5% permanent partial impairment award does not appropriately reflect the claimant's degree of impairment as a result of the August 10, 1978 accident.

That the claimant's impairment be established at 3.33% for the compensable left knee; 1.5% for shortening of the left leg; and 3.75% for the lumbar spine all effective June 1, 1996 [total 8.58%]; and,

That the claimant is capable of working 40 hours per week at sedentary work.

In light of the nature of the claimant's injuries and the decisions rendered by the Appeal Panel, the claimant was awarded Special Additional Compensation Benefits (SAC) until February 1999. At that time, the claimant underwent total left knee replacement surgery and accordingly full wage loss benefits, less the SAC benefits, were provided. Full benefits were provided to August 6, 1999, when the WCB considered the claimant to be capable of working within stated restrictions.

With the assistance of legal counsel, the claimant appealed various issues to the WCB's Review Office. In its decision dated April 7, 2000, Review Office concluded that the claimant was capable of performing sedentary duties and that there was no entitlement to payment of temporary total disability (TTD) benefits beyond August 6, 1999. In reaching this conclusion, Review Office placed weight on opinions provided by a WCB medical advisor and an Orthopaedic Consultant to the WCB which suggested that although the claimant did have certain restrictions, these would not prevent him from performing sedentary duties.

The issue of the claimant's entitlement to TTD was then appealed to the Appeal Commission. At a pre-hearing meeting, the Panel assigned to this case noted that the claimant was to be assessed medically by a WCB in another jurisdiction. In light of this, the Panel requested that it be provided with a copy of the assessment report prior to convening the oral hearing.

The results of this assessment dated February 6, 2001, were reviewed by a Manitoba WCB medical advisor. In a report dated March 5, 2001, the medical advisor expressed the following opinion with respect to the degree of the claimant's permanent partial disability (PPD):

"The total recommended PPI (sic) would therefore be cosmetic 2% +instability and varus 1% + thoracolumbar spine 3.75% + left knee range of motion 6.6% = 13.35%, rounded to 13%."

By letter dated May 2, 2001, the claimant contested the comparison range of motion used in determining the degree of impairment related to his left knee. The case manager assigned to this case advised the claimant by a May 7, 2001 letter that the calculations were properly done. Through his counsel, the claimant appealed this decision to Review Office. Inasmuch as the issue relating to the claimant's PPD had been the subject of a previous Appeal Commission decision, Review Office advised that it did not have jurisdiction to hear the current issue. The claimant was advised that he would have to request a reconsideration of the previous Appeal Commission decision pursuant to the provisions of Section 60.91 of the Workers Compensation Act (the Act).

At the request of claimant's counsel, a request for reconsideration was submitted to the Chief Appeal Commissioner. Counsel contended that the February 6, 2001 assessment report as well as the comments of the Manitoba WCB medical advisor of March 5, 2001, constituted new evidence as required by the Act. By letter dated August 15, 2001, the Chief Appeal Commissioner advised counsel that reconsideration was granted and that the Panel assigned to address the issue of the claimant's entitlement to TTD beyond August 6, 1999, would also address the issue with respect to the PPD.

On December 13, 2001, a standard oral hearing via teleconference was convened. Counsel advised that the claimant did not wish to proceed with the issue relating to his further entitlement to TTD beyond August 6, 1999 at this time. The Panel allowed the withdrawal of this issue and proceeded to hear argument with respect to the claimant's PPD.

Reasons

Section 51(2) of the Workers Compensation Act of Manitoba (the Act) in effect at the time of the accident, provides exclusive jurisdiction to the Workers Compensation Board (WCB) to determine the existence and degree of any disability by reason of any injury arising out of and in the course of employment. Section 4(10) provides for the awarding of compensation in respect of permanent disability suffered by a workman but without temporary total disability.

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. Whenever possible and reasonable, impairment ratings will be established strictly in accordance with a Permanent Impairment Rating Schedule, which forms part of WCB Policy 44.90.10.

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.

In appropriate cases, WCB Impairment Award medical advisors, for purposes of determining a cosmetic impairment rating, will review photographs of an injured worker's operative scars. Certain criteria are employed when deciding on a 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 method that has been adopted by the WCB's Impairment Awards medical advisors for calculating a resulting impairment award is simply to combine or add the two lowest percentages together and the resulting sum is then added to the next higher percentage and so on. If both numbers are less than 5, then the numbers are merely added together without any rounding. Rounding only begins when one or both of the percentages are greater than 5 and it is at this point that the combined values chart is used. It is important to note that the combined values chart requires whole numbers and it is for this reason that rounding takes place. The combined values chart is an integral part of the Permanent Impairment Rating Schedule.

In the particular case at hand, a WCB Impairment Awards medical advisor reviewed an examination report received from the Medical Director of the WCB of British Columbia dated February 6th, 2001 with respect to the claimant. Based on this report, the WCB Impairment Awards medical advisor made the following permanent partial impairment rating recommendations:

"The recommended PPI for a 2.5 cm loss of limb length is 1.5%.

The calculated recommended PPI for loss of range of motion of the thoracic spine is therefore 30/240 x 30% = 3.75%.

A calculated PPI for loss of range of motion of the left knee would therefore be: 35/133 x 25 = 6.6%.

The examination notes referred to 'some noticeable minimal general varum of the left knee' and while there was a 'grade 1 stability of the fibular collateral of both knees with clinically stable cruciate ligaments'. Neither of these by themselves would carry a PPI recommendation, however, combined it is my opinion that a 1% PPI would be recommended.

Although this injury occurred in 1978, at a time when cosmetic PPI's were not being considered, photographs of the operative scars were provided and were viewed by three impairment awards medical advisors and a consensus cosmetic/deformity PPI rating of 2% was recommended.

The total recommended PPI would therefore be cosmetic 2% + instability and varus 1% + thoracolumbar spine 3.75% + left knee range of motion 6.6% = 13.35%, rounded to 13%."

We have reviewed the calculations regarding the claimant's impairment rating and find that the rating has been incorrectly calculated. The WCB's Impairment Awards medical advisor has inadvertently omitted to include the 1.5% for loss of limb length in his final calculation. In accordance with the legislation and the Permanent Impairment Rating Schedule, we have recalculated the claimant's permanent partial impairment rating to be as follows:

• 1% varus left knee etc. + 1.5% loss of limb length = 2.5%
• 2.5% + 2% cosmetic = 4.5%
• 4.5% + 3.75% loss of range of motion of the thoracic spine = 8.25% which is then rounded to 8%
• 6.6 loss of left knee range of motion is rounded to 7%
• Using the combined values chart for consolidating the figures 8 and 7, the resulting PPI rating is then 14%.

In addition to the omission of the 1.5%, counsel for the claimant also advanced the argument that the WCB had miscalculated the loss of range of motion (ROM) of the left knee by comparing the residual left knee ROM with the right knee ROM. Counsel contended that this procedure was contrary to WCB policy No. 44.90.10, which he quoted in part as follows:

“The impairment rating for partial loss of movement or function resulting from direct injury or related surgical procedures…will be proportional to the amount of movement or function that is lost, based on clinical findings, as a percentage of the assigned ratings for complete joint immobility.”

With all due respect, however, counsel appears to have overlooked the balance of the quoted paragraph, which reads:

“As there are great variations from person to person in ranges of movement, when there is a completely normal extremity to compare with, loss of movement in the joint being examined with the movement of the normal joint on the opposite extremity.”

And counsel has overlooked as well, the fact that on April 12^th, 1996, a previous Appeal Panel made the following determination: “After review and weight of all the evidence on file, we do not find that the claimant has a condition in his right knee which was affected by the accident injury.” In fact, the evidence disclosed that the claimant had widespread osteoarthritis involving both knees and that this pathology existed prior to the compensable injury.

In conclusion, we find that the claimant’s permanent partial impairment rating should be corrected to 14%.

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 23rd day of January, 2002