Decision #29/03 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on February 12, 2003, at the request of the claimant. The claimant was appealing decisions that were rendered by the Review Office of the Workers Compensation Board (WCB) which determined that his impairment had been correctly rated, that the monetary award should have been reduced for age factors in accordance with Section 38(3) of the Act and that the impairment award should be reduced due to a pre-existing condition. The Panel discussed the appeal on February 12, 2003.

Issue

Whether or not the impairment has been correctly rated;

Whether or not the monetary award should have been reduced for age factors in accordance with Section 38(3) of the Act; and

Whether or not the impairment award should be reduced due to a pre-existing condition.

Decision

That the impairment had been correctly rated;

That the monetary award should have been reduced for age factors in accordance with Section 38(3) of the Act; and

That the impairment award should not be reduced due to a pre-existing condition.

Decision: Unanimous

Background

While employed as a courier driver on February 9, 1999, the claimant slipped on a patch of ice striking the back of his head. When seen at an emergency facility the following day, the claimant complained of a gradual onset of neck stiffness, posterior head pain, vertigo and nausea. A CT scan revealed no mass lesion, hemorrhage or large vessel infarct. A chest x-ray was normal. The diagnosis rendered was a concussion.

The claimant was again seen at a hospital emergency facility on February 17, 1999. The claimant informed hospital personnel that he re-injured his head five days before by hitting a headboard. The diagnosis on this occasion was a head trauma and concussion. The Workers Compensation Board (WCB) accepted the claim and benefits were paid to the claimant commencing on February 10, 1999.

Over the course of the claim, file records showed that the claimant was examined by a number of specialists, had undergone numerous laboratory investigations and received treatment for vestibular related symptoms. It was also established from medical reports that the claimant had a past medical history of transient ischemic attacks (TIA) and hypertension. According to a WCB Psychological Advisor (letter on file dated August 2, 2000), the claimant was found to have "…multiple hypertensive, lacunar strokes in the deep white and grey matter of his brain which appeared to have produced symptoms of memory problems, difficulty with concentration and 'throbbing headaches'."

On April 9, 2001, a WCB psychiatric consultant interviewed the claimant and provided the following comments:
"It is the claimant's perception that all of the above problems began after his injury and are causally related to his injury. When asked if his other medical problems, including cardiac arrhythmia, hypertension, TIA's and multiple strokes were a significant problem, the claimant emphatically stated that they were not. To him, they are all very small problems, particularly when viewed in light of his head injury."
The psychiatric consultant concluded that the claimant did not qualify for a PPI (permanent partial impairment) award for mental health problems including cognitive and emotional deficits. It was felt, however, that the claimant may qualify for a PPI for vestibular dysfunction.

In letter dated January 8, 2002, a neurologist reported that the claimant had been free of dizziness and headaches for several months until December 2001. He then developed sudden onset of vertigo, especially with turning his head to the right and looking up. This was associated with return of the headaches. The neurologist stated that both the headaches and vertigo were improving but had not resolved. The claimant exhibited no focal neurological symptoms.

On April 24, 2002, the claimant was assessed for functional independence in activities of daily living. The results of this assessment are on file in a letter dated April 30, 2002. In a subsequent telephone conversation with a WCB case manager on May 13, 2002, the treating occupational therapist remarked that the claimant suffered loss as a result of his vestibular injury but he remained quite independent and she did not believe that he required assistance, i.e. attendant care home-making.

A WCB medical advisor reviewed the case on June 24, 2002 regarding a PPI for vertigo. The medical advisor noted that there was objective evidence of right peripheral vestibular loss as documented by the claimant's treating neuro-ophthalmology and neuro-otology specialist. He noted that the claimant was unable to drive and that he could perform some of his ADL (activities of daily living). According to the AMA (American Medical Association) Guide (5th Edition), the claimant's impairment was consistent with Class 3 (11 - 30%). In a further memo dated July 4, 2002, the medical advisor recommended that the claimant be awarded a 20% PPI award. On June 25, 2002, a WCB ENT (ear, nose and throat) consultant reviewed the case and agreed that the claimant's impairment fell under Class 3 of the AMA guide, i.e. 11 to 30%.

In a letter dated July 9, 2002, a WCB case manager notified the claimant that he was entitled to an award based on an impairment rating of 20%. This award was calculated in accordance with section 38(2) of The Workers Compensation Act (the Act). In accordance with section 38(3) of the Act, the amount of the impairment award would be reduced by 2% for ever year the claimant was over the age of 45 to a maximum possible reduction of 40%. The case manager stated that the award resulted in a one-time payment of $7955.20. On July 24, 2003, the case manager provided the claimant with a further detailed explanation as to how his impairment award was arrived at and why his monetary award was reduced. On July 26, 2002, the claimant appealed these decisions to Review Office.

On October 7, 2002, a WCB medical advisor responded to a September 16, 2002 memo written by the Review Office. The medical advisor commented that the AMA guidelines were used and that based on the claimant's subjective complaints and vertigo he was placed in the mid range of Class 3. He stated that the claimant had significant pre-existing conditions due to his stroke and for this reason, his award had been reduced.

In a Review Office decision dated October 11, 2002, the following decisions were reached:
  • That the impairment had been correctly rated at 20%.

    Review Office noted that in this worker's case, there was no specific rating in the WCB's schedule for conditions such as the claimant suffered from. The WCB's healthcare services branch had correctly utilized the AMA guidelines for vestibular disorders and placed the claimant in the middle range of Class 3. As the rating for this type of condition was largely subjective and based upon reported symptoms which were assessed by an independent occupational therapist, Review Office believed the current rating of 20% adequately reflected the claimant's present degree of impairment from this accident. Review Office stated that the overall rating would also take into account any pre-existing factors, thus inflating the rating somewhat and this was the reason for the 50% reduction according to the pre-existing policy.

  • That the monetary award should have been reduced for age factors in accordance with Section 38(3) of the Act.

    Review Office noted that section 38(3) of the Act called for a sum payable under subsection 2 to be reduced by 2% for each year of age the claimant was over 45 years of age at the time the WCB determined he had an impairment, but the reduction shall not exceed 40%. The claimant was determined to be 63 years of age at the time of the impairment and therefore lost a total of 36% of his award because of aging factors. Review Office found that the reduction in the worker's award from a total of $12,430 to $7,955.20 to be appropriate and in accordance with the Act.

  • That the claimant did have a relevant pre-existing condition and that the claimant's award, by policy, should have been reduced because of the pre-existing condition.

    Review Office believed that the claimant did have a significant pre-existing condition as identified by his many physicians as well as WCB healthcare medical advisors. Review Office concurred that the claimant's award should have been reduced by 50% to take into account the pre-existing factors involved in creating his overall level of impairment. This would be in keeping with WCB policy 44.10.20.10 which dealt with the adjudication of pre-existing conditions.
In November 2002, the claimant disagreed with the decisions reached by Review Office and an oral hearing was requested and later convened on February 12, 2003.

Reasons

Issue 1:

The Appeal Panel is of the unanimous opinion that the claimant's impairment has been correctly rated. In coming to this conclusion, this Panel has taken into account the relevant sections of the Act as well as the policies associated with interpreting those sections. The claimant requested an impairment rating for his diagnosis of vestibular dysfunction. Board Policy 44.90.10 sets out a ratings schedule and whenever possible and reasonable this schedule is to be used to set the impairment rating. Unfortunately, there are some injuries that have not been included on the ratings schedule. Vestibular dysfunction is one such injury. In the case of an injury not appearing on the ratings schedule, Board policy dictates that healthcare management, who has the responsibility for rating individual injuries, may utilize guidelines such as those set by the American Medical Association ("AMA").

In the case at bar, a procedure was followed whereby healthcare management did utilize the guidelines of the AMA to rate the claimant's impairment. This guideline was utilized because it was correct and proper to do so and because those guidelines did have a section which comprehensively dealt with the injury of vestibular dysfunction.

After a review of the AMA guidelines, healthcare management determined that the claimant should be placed within class 3 in the guidelines for rating impairments due to vestibular disorders. This classification provides a range from 11 to 30% impairment depending upon the individuals level of impairment. Under the AMA guidelines, an individual who falls within Class 3 has "symptoms or signs of vestibular dysequilibrium present with supporting objective findings and activities of daily living cannot be performed without assistance, except for simple activities (eg., self-care, some household duties, walking, and riding in a motor vehicle operated by another person)."

The Board's specialist in otolaryngology and the section head of Healthcare found that the claimant's symptoms were within the average range of class 3 and rated him at 20%. This Panel cannot disagree with this conclusion particularly in light of the claimant's own evidence at the hearing of this matter and after reviewing the results of the assessment prepared on the claimant by an independent occupational therapist. This assessment, dated April 30, 2002, was prepared to assess the claimant's functional independence in activities of daily living and confirmed that while the claimant was hampered in his activities of daily living due to dizziness and poor balance, he was also somewhat independent in his activities of daily living including preparation of simple meals, performing light housework, taking care of hygiene and dressing (albeit with some difficulty) and swimming and walking for exercise and leisure. At the hearing of this matter the claimant also confirmed that he was able to walk for one-half hour (taking a rest in between), do water aquatics, use handi-transit and generally take care of himself around his apartment while his wife was at work. Accordingly, taking into account the nature of the claimant's injury and the activities that he is able to perform and the manner in which he is able to perform those activities, this Panel agrees that the rating of 20% adequately reflects the claimant's current degree of impairment from his accident.

Issue 2:

Section 38(2) of the Act states that where a Board has determined that there is an impairment (as has happened in this case) the Board shall, subject to subsection (3), pay to the claimant as a lump sum an impairment award in the following amount, for an impairment that is determined by the Board to be:
  1. 1% or greater but less than 5%, $570.00,

  2. 5% or greater but less than 10%, $1,130.00

  3. 10% or greater, $1,130.00 plus $1,130.00 for each full 1% of impairment in excess of 10%.
The above section is then limited by section 38(3) of the Act which requires any award to be reduced for age factors. Section 38(3) states:
"A sum payable under subsection (2) shall be reduced by 2% for each year of age the worker is over 45 years at the time the board determines the worker has an impairment, but the reduction shall not exceed 40%."
In the claimant's situation, he was 63 years of age at the time of the impairment. The Board calculated that his award had to be reduced due to the requirements of section 38(3) of the Act by 36%. This Panel is in agreement that the Board correctly applied the Act (as is required under Manitoba law) by calculating the claimant's award at $12,430.00 and then reducing it to $7,955.00 as a result of age related factors.

Issue 3:

The final issue in the claimant's appeal revolves around the relevancy of a pre-existing condition and whether or not the impairment award should have been reduced because of a pre-existing condition. This Panel is of the opinion that while the claimant may have suffered a past history of transient ischemic attack, on a balance of probabilities, the evidence on the claimant's file is neither sufficient nor strong enough to establish that there was indeed a pre-existing condition that should have any bearing upon the claimant's impairment rating.

Throughout the claimant's history with the WCB he has denied any ongoing difficulties with respect to an episode of transient ischemic attack which occurred in 1995. At the hearing of this matter, the claimant was clear that prior to the compensable accident and after the initial transient ischemic attack he made a full recovery without any symptoms recurring. It was only after the accident in a routine checkup that the claimant said he was informed by his then family doctor that he suffered from atrial fibrillation. In fact, the claimant indicated that after the initial diagnosis of transient ischemic attack he was not treated with any medication nor was he followed by any particular doctor regarding the episode. It was only 2 to 3 months after he was diagnosed with atrial fibrillation (well after the compensable injury) that he began to take medication for his heart, which medication he believes was only prescribed as a pre-cautionary measure.

The medical evidence on the claimant's file is speculative and contradictory withrespect to there being a pre-existing condition which might be affecting the compensable condition. The clinical psychologist engaged to see the claimant was, however, clearly of the view in his report dated October 27, 2002, that it seemed "unlikely that [the claimant] had major cognitive impairments before his injury, in light of the complexity of his job." A further report by a neurology specialist also notes that the claimant made full recovery from his "TIA" in 1995.

Finally, it should also be noted that the information given to the board's physician in a memo dated June 26, 2002 and upon which the board's physician made his finding that the claimant had a "significant" pre-existing condition, relates only to symptoms experienced by the claimant after his compensable accident. None of the diagnoses referred to were made prior to the compensable injury and no symptoms are referred to that pre-date the compensable injury.

Based upon all of the above, this Panel finds that the impairment award should not be reduced for a pre-existing condition.

Panel Members

K. Dunlop, Q.C., Presiding Officer
J. MacKay, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

K. Dunlop, Q.C. - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 2nd day of April, 2003

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