The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on November 4, 2004, at the claimant's request. The Panel discussed this appeal on the same day.

Issue

Whether or not the permanent partial impairment of 4.5% has been correctly established; and

Whether or not the monetary award of the impairment rating in the amount of $570.00 has been correctly calculated.

Decision

That the permanent partial impairment of 4.5% has not been correctly established; and

That the monetary award of the impairment rating in the amount of $570.00 has been incorrectly calculated.

Decision: Unanimous

Background

In December 1999, the claimant injured his left knee during the course of his employment as a labourer/machine operator. The Workers Compensation Board (WCB) accepted the claim for compensation and benefits and services were paid accordingly.

On November 26, 2003, the claimant was examined by a WCB impairment awards medical advisor for the purposes of establishing a Permanent Partial Impairment (PPI) award with respect to the claimant's left knee. The recommended PPI was calculated at 9%. This included 2% instability of the left knee, 2% for cosmetic impairment and 5% for loss in range of motion of the left knee. In light of a documented pre-existing condition, the 9% PPI was reduced by 50% to 4.5% and was rounded to 5%.

Based on the November 26, 2003 examination findings, the claimant was advised by the WCB that he was entitled to an impairment award of 5%, which was calculated in accordance with Section 38(2) of The Workers Compensation Act (the Act). The award entitled the claimant to a one-time payment in the amount of $1,130.00.

On April 6, 2004, the claimant asked the WCB to reconsider the amount of his PPI award on the basis that he was not paid for his scars and because he felt his impairment rating was not high enough. The case was forwarded to Review Office for consideration.

In a May 21, 2004 decision, Review Office determined that the correct impairment rating was 4.5% and that the claimant should have received $570.00 instead of $1,130.00 based on the following rationale:

"According to Section 38(2) of the Act, an impairment that is 1% or greater, but less than 5% (4.9%) should merit an award of $570.00. The worker, in fact, has been awarded $1,130.00 based on a 5% rating. There is a range between 5% and 9.9% that would merit a financial settlement of $1,130.00. Therefore, it is a moot point whether the rating was 5% or 9% as rated, the dollar figure for the lump sum settlement would be the same. In actual fact, the rating has properly been cut in half to 4.5%, to reflect pre-existing knee problems, but the worker has improperly had this rating rounded up to 5%, thus giving him the higher figure…".

Review Office concurred with two WCB orthopaedic consultants that it was difficult to attribute all of the internal damage to the worker's knee from the mechanics of his January 12, 1999 compensable injury. Review Office also recognized that the WCB had authorized three separate surgical procedures and that the worker had a permanent impairment to his left knee. Review Office decided that the compensable accident most probably enhanced a pre-existing condition in the left knee which was the WCB's responsibility. In August 2004, the claimant appealed Review Office's decision and an oral hearing was arranged.

Reasons

Section 60(2) of the Act provides exclusive jurisdiction to the 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(9) provides for the 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. 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 awards 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 examined the claimant November 26, 2003. Based on his examination, the WCB impairment awards medical advisor made the following permanent partial impairment rating recommendations:

“Loss of range of movement of the left knee when compared to the expected range was 30º. Based on 25% impairment for a complete ankylosis of the knee, the PPI calculation is 30/150 x 25 = 5%. It is further recommended that the lateral patellar instability be rated at 2% and that cosmetic loss for the multiple scarring of his knee be rated at a further 2%.

The total PPI recommended for this man’s injuries is therefore: Cosmetic 2%, plus left lateral patellar instability 2% plus loss of ROM [range of motion] left knee of 5% which equals 9%. In view of the documented evidence of a pre-existing condition, this PPI should be reduced by 50%. The final recommendation therefore for this man’s PPI is 4.5% rounded to 5%.”

In its decision of May 21, 2004, Review Office quite properly reduced the 5% rating to 4.5% as rounding only becomes applicable when one or both of the percentages is greater than 5%. However, after reviewing both the WCB impairment awards medical advisor’s and Review Office’s calculations regarding the claimant’s impairment rating, we find that the rating has been incorrectly calculated. Both the WCB impairment awards medical advisor and Review Office incorrectly included the claimant’s cosmetic loss of 2% in its 50% reduction for the pre-existing condition. The cosmetic loss did not preexist the compensable injury, but rather, it resulted as a by-product of the several surgeries necessitated by the compensable injury.

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:

In conclusion, we find that the claimant’s permanent partial impairment rating of 4.5% has not been correctly established and should be corrected to 5.5%. In addition, we further find that the monetary award of the impairment rating in the amount of $570.00 has not been correctly calculated. According to the Act, the amount of the monetary award for a PPI rating greater than 5% but less 10% should be $1,130.00 and therefore this is the amount to which the claimant is entitled.

The claimant’s appeal is hereby allowed with respect to both issues.

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 26th day of November, 2005