The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

A non-oral file review was held on September 30, 2003, at the request of an advocate, acting on behalf of the claimant.

Issue

Whether or not the effective date of the 7.6% portion of the permanent partial disability award is June 25, 1998.

Decision

That the effective date of the 7.6% portion of the permanent partial disability award is June 5, 1998.

Decision: Unanimous

Background

The claimant injured the dorsum region of his right hand on August 17, 1981, when he accidentally struck it with a running band saw blade. Medical reports on file confirmed that the claimant was diagnosed with a delayed rupture of both extensor tendons of the right index finger which was surgically repaired on November 2, 1981. On January 15, 1982, the attending physician reported that the claimant had full range of movement of his right hand and almost normal strength. It was felt that the claimant could return to work on January 25, 1982 following a course of occupational therapy.

In August of 1987, the Workers Compensation Board (WCB) received a Doctor's First Report dated August 25, 1987, which showed that the claimant complained of numbness around the scar area of his right hand along with pain and stiffness. As a result of this information, arrangements were made for the claimant to attend the WCB's offices on November 23, 1987 for a permanent partial disability (PPD) assessment. The examination results revealed that the claimant would be unable to undertake any heavy labour work and that this restriction would apply indefinitely. The medical advisor concluded that there was no measurable rating.

On February 12, 1988, a WCB payment assessor advised the claimant that based on all of the information on file, he incurred a small impairment to his right hand but it was not of sufficient degree to be actually rateable in the WCB's Schedule of Permanent Impairment Ratings. As it was recognized that his right hand was not as it was before the accident, he would be awarded $615.00 in settlement of the existing impairment.

The next medical report received on file was from a British Columbia physician dated June 5, 1998. It was reported that the claimant was experiencing chronic pain in the dorsum of his right hand along with loss of function in his 3rd and 4th fingers. On June 19, 1998, the physician reported that the claimant was moving furniture and felt a sudden pain in his right hand radiating up his arm. The physician felt that the claimant should be referred to a plastic surgeon for treatment.

On April 10, 2000, another B.C. physician reported that the claimant was seen for pain involving the dorsal aspect of his right hand radiating into the right third finger of 19 years duration. Following examination of the claimant, the following impression was expressed "Neuropathic pain secondary to right third finger lateral digital nerve trauma at the mid point of the dorsal surface of the hand resulting in motor and sensory loss. Neuroma is the most likely possibility although the deafferentation (sic) pain cannot be excluded."

On February 2, 2002, the claimant's advocate wrote to the WCB indicating that the claimant should be assessed for a permanent functional disability pension. On May 2, 2002, a WCB impairment awards medical advisor wrote to the Workers Compensation Board of British Columbia to request an assessment of the claimant's wrists and hands and to take photographs of any scarring of the right hand. A report from the B.C. board regarding this assessment was later received dated August 19, 2002 and the results were reviewed by a WCB medial advisor on September 3, 2002.

On September 25, 2002, the claimant was notified that he was entitled to a cosmetic impairment award of 1% effective November 2, 1981 and that he was also entitled to an additional award of 7.6% effective June 25, 1998. On October 4, 2002, the claimant's advocate disagreed with the June 25, 1998, effective date of the impairment award and the case was forwarded to Review Office for consideration.

In a decision dated February 14, 2003, Review Office determined that the effective date of the 7.6% portion of the permanent partial impairment award was June 25, 1998. Review Office commented that the early 1980's could not be used as the effective date of the award as the permanent partial impairment aspect of the claim was reviewed in 1987 and it was deemed that the claimant did not have a rateable condition at that point in time. There was no medical confirmation of any condition which would meet the criteria for the implementation of a permanent partial impairment award until June 5, 1998. Review Office therefore was of the view that the June 25, 1998 date was a reasonable date to use. On July 11, 2003, the claimant's advocate appealed this decision to the Appeal Commission and a non-oral file review was arranged.

Reasons

Section 60(2) of The Workers Compensation Act ( the Act ) in force at the time of the compensable injury provides exclusive jurisdiction to the Workers Compensation Board (WCB) to determine the existence and degree of a disability (impairment) by reason of any injury arising out of and in the course of employment. According to section 40(1) of the Act, the WCB shall determine the degree of a worker's disability (impairment) expressed as a percentage of total disability (impairment). Also, Section 4(9) allows the awarding of compensation in respect of the permanent disability even though there has been no temporary total disability.

An injured worker's permanent disability (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 disability (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 disability (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 disability (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 disability (impairment) award based on pain alone.

When determining a PPD award, the WCB relies upon a permanent impairment rating schedule adopted by the Board of Directors. It provides in part:
"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."

As the background notes indicate, the claimant sustained a laceration to the back of his right hand as a result of a workplace incident on August 17th, 1981. The initial diagnosis was an extensor laceration. The claimant later underwent an extensor tendon repair right on November 2nd, 1981 and this was later followed by physiotherapy. On January 15th, 1982, the claimant was discharged from further care by his treating plastic surgeon, who reported that there was a full range of movement and almost normal strength of the claimant's right hand.

Almost six years later, the claimant was examined by a WCB medical advisor on November 19th, 1987 for the purpose of establishing a potential permanent partial disability (PPD) rating as a consequence of his compensable injury. Following his examination of the claimant, the medical advisor concluded that "There is no measurable impairment rating that can be given to this claimant at the present time".

There is no further contact with the WCB by the claimant for the next 11 years until a medical report dated June 5th, 1998 was submitted. The report indicated that the claimant was experiencing chronic pain in the dorsum of his right hand together with some loss of function. A few years later the claimant requested that a determination with respect to a permanent disability pension be undertaken. This exercise was carried out by the WCB of British Columbia for and behalf of the WCB of Manitoba on July 16th, 2002.

The WCB determined that the effective date of the claimant's permanent partial disability (PPD) award with the exception of the cosmetic award for the scar would be deemed to be June 25th, 1998. This date was subsequently confirmed by Review Office in its decision of February 14th, 2003.

A closer review of the effective date for the claimant's 7.6% PPD award should in our view, however, be June 5th, 1998 because according to the evidence that is the date when the claimant's disabled condition was first clinically documented. It would appear that the two previous levels of adjudication inadvertently and incorrectly ascribed June 25th, 1998 as being the effective date. We note that the permanent partial impairment award - exhibit 7 dated September 23rd, 2002 clearly indicates that the effective date for the 7.6% award is to be June 5, 1998. In addition, there has been no evidence presented to the WCB or to this Panel, which establishes an earlier date for the permanent partial disability (impairment) award. Therefore, we find that the effective date for the claimant's 7.6% portion of the permanent partial disability award is June 5th, 1998.

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 27th day of October, 2003