The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

A non-oral file review was held on January 8, 2004, at the claimant's request.

Issue

Whether or not the impairment rating has been correctly determined; and

Whether or not the worker is entitled to a lump sum payment greater than $519.20.

Decision

That the impairment rating has been correctly determined; and

That the worker is not entitled to a lump sum payment greater than $519.20.

Decision: Unanimous

Background

During the course of his employment as a track service foreman on September 18, 2001, the claimant was struck with a rail which was on a chain hoist sustaining a type III open fracture of his left femur. As a result of the accident, the claimant underwent the following surgical procedures:

1. September 19, 2001 - Debridement open wound left proximal medial thigh, insertion of intramedullary rod; and
   
   
2. September 22, 2001 - repeat debridement and irrigation. Repair vastus medialis and removal of one short distal locking screw and insertion of two appropriate distal locking screws.

The claim was accepted by the Workers Compensation Board (WCB) and benefits were paid to the claimant between September 19, 2001 and May 19, 2002.

On August 13, 2003, a WCB medical advisor specializing in Permanent Partial Impairment (PPI) ratings reviewed the medical information on file along with a report from a Saskatoon hospital dated April 8, 2003. It was concluded that the claimant would only be entitled to a 2 to 3% cosmetic PPI rating for loss of muscle bulk in his left thigh and scarring to both thighs, as he was reported to have full range of motion. On August 19, 2003, the claimant was advised by primary adjudication that he was entitled to an award based on an impairment rating of less than 5%, based on Section 38(2) of The Workers Compensation Act (the Act). This resulted in a one-time payment of $519.20.

On October 3, 2003, the case was considered by Review Office following receipt of an appeal by the claimant, who disagreed with the amount of his PPI award. The claimant was of the opinion that he had a loss of 50 to 75% in his leg together with scarring on both legs. The claimant said he felt pain in his leg when climbing farm machinery or onto the roof of his house.

In its decision dated October 3rd, Review Office confirmed the claimant's impairment rating of 3% and the lump sum payment amount of $519.20. The Review Office provided the claimant with the following rationale/basis for its decision:

• with respect to the worker's claimed loss of 50 to 75% for his left leg, Review Office considered the WCB's adopted schedule for the rating all permanent impairments. "The schedule states that for a knee that is ankylosed or fused in an acceptable position, the total rating would be 25%. Give the fact that this worker has not lost any appreciable range of movement in his left knee as measured by his physicians, he would not be eligible to receive a rating or award based on loss in range of movement which is what the schedule calls for."
  
  
• it was noted that the claimant's left leg is ¼ inches shorter than his right leg. "The rating for shortening of the leg indicates that a worker must have lost 1 inch of shortening to merit a 1.5% award. Under the circumstances, Review Office do not believe the worker would be entitled to receive an award for the shortening of his left leg.
  
  
• Review Office noted that the Schedule stated that the rating for disfigurement was determined on a judgmental basis and that the maximum rating for disfigurement in extreme cases was 25%. Typical awards for disfigurement ranged between 1% and 5%. Review Office believed that the 3% rating awarded to the claimant was appropriate given the description of his left and right thighs and his loss of muscle bulk.
  
  
• for accidents that occurred in 2001, Review Office noted that the rating for an impairment that was between 1% and 5% was a total of $590.00. Section 38(3) of the Act called for a reduction of this dollar amount by 2% for each year of age the worker was over 45 years at the time the WCB determined the worker had an impairment. Such a deduction was not to exceed a total of 40%. Given that the worker was 51 years old in the year of his accident, the reduction of (2x6) 12% was appropriate. The most that the claimant could receive for a rating of 3% was the sum of $519.20.

On October 31, 2003, the Appeal Commission received the claimant's Application to Appeal with respect to Review Office's decision of October 3, 2003. A non-oral file review was then arranged for January 8, 2004.

Reasons

Section 60(2) of the Act provides exclusive jurisdiction to the Workers Compensation Board (WCB) to determine the existence and degree of 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) allows the discretionary awarding of compensation in respect of an impairment that does not result in a 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 partial 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 partial 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 partial 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.

When determining a permanent partial impairment award, the WCB relies upon a permanent impairment rating schedule adopted by the Board of Directors. The schedule 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 was struck on the left leg by a railroad rail. This incident resulted in the surgical repair of a compound fracture to the claimant's left femur. The claimant required further surgery and on September 22nd, 2001 he underwent repeat debridement, irrigation and repair of the vastis medialis, the removal of one short distal locking screw and the insertion of two proper distal locking screws. An out-of-province disability management facility examined the injured worker on April 8th, 2003 and forwarded a comprehensive multidisciplinary assessment report to the WCB. This report was then reviewed by a WCB Impairment Awards medical advisor for purposes of establishing a permanent partial impairment rating for the claimant's injury.

In a memorandum to file dated August 13th, 2003, the WCB Impairment Awards medical advisor recorded the following comments:

• I have reviewed this file and in particular detail the Tertiary Assessment.
  
  
• It appears that as far as a PPI is concerned, there will be 0% for loss of ROM [range of motion] as ROM is reported as full.
  
  
• There is however some loss of muscle bulk Left thigh and scarring on both Left and Right thighs.
  
  
• In my opinion his cosmetic PPI will be less than 5% more likely 2 or 3%.
  
  
• There will be no need to call this man in from Saskatchewan for cosmetic PPI.

The WCB in conjunction with medical examiner's recommendation determined that the worker qualified for a 3% cosmetic award. We have reviewed the calculation of the claimant's permanent partial impairment rating and find that it (i.e., 3%) has been correctly calculated in accordance with the permanent impairment rating schedule. We see no evidentiary reason to disturb the 3% PPI rating, and deny the claimant's appeal on this issue.

We further find that the lump sum payment of $519.20 provided to the worker with respect to the scarring on his left and right thighs is not correct. Section 38(2) of the Act prescribes that where an impairment is determined to be 1% or greater but less than 5% then a lump sum award of $590.00 is payable. However, the Act further states in the succeeding section 38(3) that the sum payable under 38(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". (Emphasis ours)

The claimant was born on January 4th, 1950 and turned 53 on January 4th, 2003. The WCB determined that the claimant had an impairment on August 13th, 2003 and therefore technically in accordance with section 38(3) the reduction should be for 8 years (45-53) and not 6 years (45-51) as calculated by the WCB. Correct calculation of the lump sum would then result in a reduction of 16% or $94.40. A correction of this error would in effect result in a minor overpayment to the claimant of $23.60. Regardless of the foregoing error, we find that the worker is not entitled to a lump sum payment greater than $519.20. Accordingly, we deny the claimant's appeal on this issue as well.

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 24th day of February, 2004