The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

A non-oral file review was held on January 13, 2005, at the request of a worker advisor, acting on behalf of the worker.

Issue

Whether or not the worker is entitled to a permanent partial impairment award.

Decision

That the worker is not entitled to a permanent partial impairment award.

Decision: Unanimous

Background

In April 1999, the worker submitted a claim to the Workers Compensation Board (WCB) for a herniated disc at the level of L5-S1 which she related to her work duties as an x-ray technologist. On April 5, 2000, the claim for compensation was accepted by an Appeal Panel and various types of benefits and services were provided to the worker.

With respect to the issue under appeal, the worker provided the WCB with a report from her treating physician dated July 17, 2002. The treating physician commented that the worker had "flare-ups - L lower back - sporadic radiation - mostly into the ankle. Careful about activity…".

On October 16, 2002, a WCB medical advisor wrote to the file that he had reviewed the report from the attending physician and found no clinical evidence to support the need for a permanent partial impairment (PPI) exam.

On February 6, 2003, the case was again reviewed by a WCB medical advisor. He referred to a report from the treating physician dated January 19, 2001 where it was noted that the worker showed 90 degrees of straight leg raising bilaterally. This suggested that any reduction in flexion of the spine would not pass a validity test. The medical advisor commented that in Manitoba, there were no PPI awards for disc protrusion, only loss in range of motion measurement.

On September 3, 2003, the case was reviewed by a WCB impairment awards medical advisor. The medical advisor took note of the attending physician's reports of January 19, 2001 and July 17, 2002 where it was stated that the worker's straight leg raising was 90 degrees bilaterally and her range of motion was "intact". In his opinion, the worker had occasional exacerbation of symptoms but no permanent loss of range of motion of the thoracic and lumbar regions. He stated that there was nothing in the recent reports to support a PPI award based on the Manitoba Permanent Impairment Rating Schedule.

In a letter dated November 24, 2003, the WCB advised the worker that she was not entitled to a PPI award based on the opinion expressed by the WCB impairment awards medical advisor. The letter further stated that impairment awards were not provided for disc protrusions in Manitoba and that PPI awards were not provided for exacerbation of symptoms or pain complaints.

On February 27, 2004, the case was considered by Review Office at the worker's request. Review Office confirmed that the worker was not entitled to a PPI award. Based on a review of all of the file evidence, Review Office was unable to establish that the worker had any permanent loss of range of motion related to the compensable disc herniation sustained in 1999 and was not entitled to a PPI award.

On October 21, 2004, a worker advisor submitted new medical information to Review Office for consideration by the worker's attending physician. On November 3, 2004, Review Office stated, "Medical reports submitted, the documentation received from Dr. [attending physician] are not conclusive in reporting decreased lumbar flexion. Whereas Dr. [attending physician] indicates Ms. [the worker] demonstrated positive straight leg raising on the left and a loss of lumbar flexion, other reports from Ms. [the worker's] own doctors are totally contradictory. Accordingly, I am not prepared to alter my earlier decision denying a permanent partial impairment award." In November 2004, the worker advisor appealed Review Office's decision and a non-oral file review was arranged.

Reasons

We were asked to consider whether the worker is entitled to an impairment award. For the appeal to be successful, we must find there is sufficient evidence available to permit the implementation of an impairment award. We were not able to make this determination. We found that at the current time, the worker is not entitled to an impairment award.

Worker's Position

In support of her appeal, the worker made a written submission to the Appeal Commission. She reviewed the background to her claim and advised of difficulties she is currently having as a result of her injury. Of specific concern to the worker was her inability to obtain long term disability insurance with coverage for her back.

The worker reviewed the various medical reports and noted that the report dated October 12, 2004 indicates her flexion is 40 degrees with a positive left SLR. She concluded that it is apparent she is entitled to an impairment award.

Applicable Legislation and Policy

Subsection 4(9) and section 38 of The Workers Compensation Act (the Act) deal with impairment awards. Subsection 38(1) provides that the WCB "…shall determine the degree of a worker's impairment expressed as a percentage of total impairment." Subsection 38(2) provides a scale for the value of lump sum awards based on the degree of impairment. This scale is adjusted annually and is published in a regulation.

The Board of Directors made Policy 44.90.10.02, Permanent Impairment Rating Schedule. The schedule is designed to measure the degree of permanent impairment of a body function following an injury. Permanent impairment is measured by factors such as the loss of mobility in a joint. With respect to the spine, the criteria involves measurement of restricted motion. The spine is divided into cervical and lumbar/thoracic regions for rating purposes. The impairment rating for partial loss of movement is proportional to the amount of movement that is lost on clinical findings, as a percentage of the assigned ratings for complete immobility, taking into account flexion, extension, lateral flexion, and rotation.

In considering the worker's appeal, we are bound by the Act, regulations and policies of the Board, including Policy 44.90.10.02, Permanent Impairment Rating Schedule.

Analysis

The worker has provided various medical reports in support of her request for a permanent impairment award, with the most recent report dated October 12, 2004. We have considered the reports and other medical reports on the file including the report of the WCB impairment awards medical advisor. Having considered all the evidence we are not able to find that the worker is currently entitled to an impairment award. The evidence on file does not at this time support a finding that the worker has suffered a permanent impairment.

We note that in September 2003, the worker's file was reviewed by the WCB's impairment medical advisor. He noted that a report dated July 17, 2002 reported "Assess range of motion- Intact" and that a prior report of January 19, 2001 indicated "SLR 90degrees bilaterally. Reflexes 2+ bilaterally. Power 5/5." He concluded that "At this time, it appears that this lady has occasional exacerbation of symptoms but NO PERMANENT loss of ROM of the thoracic and lumbar regions. She obviously has to be careful and perhaps needs some permanent restrictions, but there is NOTHING in the most recent reports to support a PPI based upon the Manitoba Permanent Impairment Rating Schedule." (emphasis in original)

The worker expressed concern that the ROM was measured by one of her physicians who pushed her left leg up. She stated that she could not lift the leg unless someone pushed it up. We note, however, that for impairment award purposes, passive range of motion is an acceptable measurement.

The report of October 12, 2004 which the worker relies upon, does not provide sufficient evidence of a permanent impairment. The findings in this report are inconsistent with reports provided by the worker's other physicians on January 19, 2001 and July 17, 2002. It is difficult to explain the change of ROM over this short period of time, given the type of injury the worker suffered and that the worker's condition has been described by two physicians as "stable" and "very stable". We note that in the most recent report the physician added the comment that the impairment is "minimal." We are satisfied that at the current time there is no assessable impairment based upon all the evidence.

The appeal is denied.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

A. Scramstad - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 24th day of February, 2005