The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

A non-oral file review was held on July 7, 2005, at the request of a worker advisor, acting on behalf of the worker. Following its review, the Panel determined that additional information would be required from the healthcare branch at the Workers Compensation Board (WCB) prior to discussing the case further. The WCB's report then was forwarded to the interested parties for comment. On September 14, 2005, the Panel met to render its final decision.

Issue

Whether or not the worker's 1% Permanent Partial Disability Award, is, and remains, accurate.

Decision

That the worker's 1% Permanent Partial Disability Award, is, and remains, accurate.

Decision: Unanimous

Background

In 1987, the worker filed a claim with the Workers Compensation Board (WCB) for difficulties that he began to experience with his left arm which gradually moved to his right. The worker had been employed as a miner since 1976 and had been drilling for 11.5 years.

In an August 5, 1987 report, a vascular specialist stated, "There is no evidence of a systemic disorder to which the vasospastic symptoms would be secondary. It appears that his Raynaud's phenomena are secondary to his occupation… . In most miners with Raynaud's phenomena the cold sensitivity test shows abnormal responses but in about 20% of patients with Raynaud's phenomena of various etiology the test may be 'falsely negative'. This appears to be the case in this patient…".

Following review of the medical information which included the report received from the vascular specialist, a WCB medical advisor suggested that the worker was entitled to a 1% permanent partial disability award (PPD award).

In early 1992, the worker advised the WCB that he was still experiencing severe hand pain and asked that his condition be re-evaluated.

On December 4, 1989, the treating vascular specialist indicated that the worker complained of Raynaud's phenomena which he had in 1987 and which continued and progressed to involve his thumb and other fingers. As well, the worker complained of pains and aching in the upper arms and forearms which radiated to the base of some digits and hands which were not symptoms typical of a vascular disorder. In a further report dated December 15, 1989, the specialist suggested a referral to a rheumatologist or an orthopaedic specialist as he felt that the worker's symptoms in the upper arms and down his extremities to his hands were not vascular in origin.

In a July 30, 1991 report, a vascular surgeon indicated that he saw the worker in consultation on June 10, 1991. He stated that all pulses in the worker's upper and lower extremities were normal and that digital pressures were all normal.

In a report dated September 23, 1991, a neurologist reported his examination findings:

"I agree he has white hands syndrome related to his occupational exposure to chronic vibration. The fact that the electrophysiological studies are negative only serves to exclude any associate or superimposed focal entrapment or underlying polyneuropathy. The negative findings do not exclude the diagnosis of vibration induced neuropathy since the electrophysiological techniques currently available are relatively insensitive to detecting abnormalities of small sensory fiber neuropathies. I am unaware of any reliable treatment other than avoidance of exposure to vibration."

In early January 1992, a WCB internal medicine consultant reviewed the medical reports on file and stated that the reports did not show arterial occlusion or trophic changes that would change the worker's impairment rating.

On January 27, 1992, a benefits adjudicator informed the worker that based on a review of all the information on file, it was the WCB's position that he was not eligible for an increase in his PPD award as there had been no further decrease in his condition. On February 7, 1992, the worker appealed this decision to Review Office.

On April 3, 1992, Review Office confirmed that the worker's 1% PPD award was accurate. Review Office indicated that there had been no objective change in the findings since August 1987 and that the 1% rating was correctly determined and was consistent with others who had suffered similar injury while working in the Province of Manitoba. On April 24, 1992, the worker appealed Review Office's decision and the case was forwarded to the Appeal Commission for consideration.

Following a non-oral file review that took place on August 6, 1992, the then Appeal Panel decided to request additional information prior to discussing the case further. Specifically, the worker was examined by a vascular specialist and reports are on file dated November 19, 1992 and December 1, 1992. A report was also received from a neurologist dated November 25, 1992 along with nerve conduction study results.

On March 2, 1993, the WCB's director of healthcare management services stated, "Dr. [vascular specialist's] reports of November 19 and December, 1992, and the test results on file, confirm that the claimant is entitled to a 1% PPI rating under WCB Policy (copy attached). To warrant a higher rating the claimant would need to have either 'objective evidence of arterial occlusion' and/or 'digital trophic changes', neither of which he demonstrates."

In a decision dated April 15, 1993, the then Appeal Panel confirmed that the 1% PPD award was accurate based on the weight of medical evidence.

On March 19, 1999, a WCB adjudicator asked the WCB's internal medicine consultant to review the peripheral vascular function studies on file dated January 27, 1999 and to comment on whether or not there had been any change to the worker's level of impairment related to his white hands disease. In a response dated March 30, 1999, the consultant stated "…over the past 12 years there has been no change in the laboratory data. There is no evidence of arterial obstruction of any of the digits as measured by pressure studies and there is no indication of cold sensitivity. Thus, in my estimation, there has been no deterioration of the condition."

On April 8, 1999, the worker was provided with the opinion that had been expressed by the WCB's internal medicine consultant dated March 30, 1999. He was advised that there had been no deterioration of the vibration induced white hands disease and that there was no basis to alter the terms with which his claim had previously been accepted.

In a decision dated December 6, 2002, a WCB adjudicator wrote to the worker concerning a number of issues. In particular, the adjudicator indicated that the worker's bilateral wrist difficulties were not related to his claim for vibration induced white hands disease.

On January 7, 2003, the worker asked whether the WCB would authorize an angiogram to determine any deterioration in his white hands disease. On January 7, 2003, the adjudicator discussed the worker's request with the WCB's internal medicine consultant. The consultant's opinion was that there was no evidence on file to support the need for an angiogram.

On March 14, 2005, the worker wrote to the Chief Appeal Commissioner requesting reconsideration of the Appeal Panel's decision of April 15, 1993 based on new medical evidence.

On May 3, 2005, the Chief Appeal Commissioner granted the worker's request and directed the Appeal Commission to reconsider its previous decision based on the results of a June 23, 2004 angiogram which stated, in part, "Incomplete filling of the digital arteries is present likely related to vasospasm."

On July 7, 2005, a non-oral file review took place to consider the worker's appeal. Following discussion of the case, the Appeal Panel arranged to have the file reviewed by a WCB medical advisor to comment on whether there had been deterioration in the worker's condition and whether this deterioration would be causally related to the compensable condition. A response from the WCB's internal medicine consultant dated July 14, 2005 was received and forwarded to the interested parties for comment.

On August 25, 2005, the Panel met to discuss the case and considered a submission from the worker dated August 1, 2005. The worker asked the Panel for more time to prepare his final submission as he wished to undergo further angiogram testing and to submit the test results to the Panel for consideration. On August 25, 2005, the Panel advised the worker that a decision with respect to his appeal would be made with the information that was already on file. The worker was given until September 9, 2005 to provide the Panel with his final written comments.

On September 13, 2005, the Panel met further to discuss the case and considered the worker's final submission dated August 31, 2005.

Reasons

The Workers Compensation Act (the Act) in effect on the date of the workplace injury provides exclusive jurisdiction to the WCB to determine the existence and degree of disability by reason of any injury arising out of and in the course of employment.

An injured worker’s disability 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 disability do not allow for exact measurement, it becomes necessary for the medical advisor to make a subjective judgement as to the degree of disability.

It is also important to note that because pain is immeasurable, it does not become a component in the determination of whether a worker qualifies for a PPD award. For instance, a worker who has complete and full range of motion of a shoulder following an injury to that shoulder would not be eligible for a PPD 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 PPD award based on pain alone.

In appropriate cases, WCB Impairment Award medical advisors, for purposes of determining a cosmetic disfigurement 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 PPD award, the WCB relies upon a 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 worker has received a 1% PPD award in recognition of the permanent damage to his hands caused by his exposure to the use of vibratory tools and to the cold in a mine. A worker advisor acting on behalf of the worker presented information in support of the contention that the 1% PPD award did not adequately reflect the worker’s current degree of disability. Prior to making any decision, the Appeal Panel arranged to have the worker’s file reviewed by a WCB medical advisor to assist in determining whether there has been a deterioration of the worker’s disability and if so, whether this deterioration is causally related to the compensable condition.

A WCB Internal Medicine consultant extensively reviewed the worker’s file together with the materials submitted by the worker advisor including a June 16, 2004 angiogram report. The medical advisor summarized the foregoing report as follows:

“…No significant abnormality in the right subclavian arm axillary artery. The right arm angiogram shows normal brachial artery throughout the upper arm. The radial and ulnar arteries were also normal and patent. The palmar arch was patent. There was incomplete filling defect in the digital arteries, likely due to vasospasm. No false aneurysm or other pathology was demonstrated.”

After his review, the Internal Medicine consultant arrived at the following conclusions:

“The angiogram suggests that there is no organic basis for obstruction to any of the digital or other vascular structure in the right hand. The vasospasm is a temporary affair and is caused by stimulation of autonomic nervous system. Vasospasm could therefore result from arterial puncture, emotional factors, and part of Raynaud’s phenomenon. Since there is no permanent occlusion, the impairment rating remains 1%.

In summary, although we do not have any information regarding the clinical examination, it is clear from the angiogram done in June 2004 that there is no organic obstruction to the arteries supplying the right hand including the fingers. Thus, the case for deterioration of the condition has not yet been made.”

We find based on the weight of evidence that the worker’s 1% PPD award remains accurate as there has been no apparent deterioration. Accordingly, the worker’s appeal is hereby dismissed.

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 14th day of October, 2005