The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on January 24, 2005, at the request of an advocate, acting on behalf of the worker. The Panel discussed this appeal on the same day.

Issue

Whether or not the worker's permanent impairment rating of 60% is correct; and

Whether or not the financial value of the impairment award is correct.

Decision

That the worker's permanent impairment rating of 60% is correct; and

The financial value of the impairment award is correct.

Decision: Unanimous

Background

The worker sustained multiple physical and psychological injuries as a result of a work related incident on August 8, 2000.

Over the course of his compensation claim, the worker has been assessed on a number of occasions for the purposes of establishing a Permanent Partial Impairment (PPI) rating for his physical and psychological conditions.

On May 7, 2003, the worker's advocate presented argument to the Review Office that both the impairment award of 60% and the financial value of the award should be increased given the extent of the worker's injuries and the impact that it had on his family. Included with the submission was a report from an occupational health physician for consideration.

In a decision dated October 24, 2003, Review Office made reference to WCB policy 44.90.10.02, Permanent Impairment Rating Schedule and subsection 4(9) and section 38 of The Workers Compensation Act (the Act). Review Office accepted the findings and recommendations that were made by the WCB's impairment award medical advisor, the WCB's internal medicine consultant and the WCB's psychiatric consultant. Using the combined tables, Review Office confirmed that the total impairment rating of 60% was correct. Review Office also confirmed that the financial value of the award was correct and was in keeping with subsection 38(2), Calculation of Impairment Award. On September 23, 2004, an advocate for the worker appealed Review Office's decision and an oral hearing was arranged.

Reasons

We were asked to consider whether the worker's permanent impairment rating of 60% is correct and whether the financial value of the impairment award is correct. We have answered "yes" to both of these issues.

We found that the permanent impairment rating was properly and thoroughly assessed and accurately reflects the worker's permanent impairment as provided by WCB policy as of the date of the assessment. We also found that the award was properly calculated.

Applicable Legislation and Policy

Subsection 4(9) and section 38 of 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 a part of the body or loss of mobility in a joint or cosmetic deformity of a body part.

We note the following provisions of the Policy which are significant to this appeal:

2. Whenever possible, and reasonable, impairment ratings will be established strictly in accordance with the schedule attached as appendix A.

3. In the event that the Healthcare Management Services Department feels that strict adherence would create an injustice, or if it is felt that an impairment exists that is not covered by the schedule, Healthcare Management Services may deem it just and fair to establish an impairment rating that is not specifically covered by the schedule. In such cases they may use information other than the schedule such as the American Medical Association Guides to the Evaluation of Permanent Impairment established for a similar purpose. In such cases the award will not be official until it is reviewed and approved by the Director of Healthcare Management Services. The Healthcare Management Services Department will document the case and explain the justification for the non-scheduled award in full. Awards in excess of 20% must be reviewed and approved by the Director of Healthcare Management Services.

Another aspect of the Policy and schedule which are significant in this appeal are the combined values chart set out in the schedule. The following explanation is provided for the use of the combined values chart:

The figures outlined in the schedule are percentages of impairment of the total body. Multiple injuries, due to a single accident, resulting in more than one impairment are evaluated on the basis of the whole person, rather than by adding the individual values. This is done with the aid of a combined values chart, as established by the American Medical Association Guides to the Evaluation of Permanent Impairment.

In considering the worker's appeal, the Appeal Commission is bound by the Act and policies of the WCB, including Policy 44.90.10.02, Permanent Impairment Rating Schedule.

Evidence and Argument at the Hearing

The worker was represented by an advocate. Both the worker and his wife answered questions posed by the advocate and the Panel. The employer did not participate in the hearing.

The worker and his wife provided detailed testimony on the incident including: descriptions of his employment duties, previous fatalities he witnessed at the workplace, the events which resulted in his injuries, the recovery process, his current condition both physical and psychological, impact of the incident on his family and his need for closure. In addition, the worker showed the Panel photos of his burns and graft sites.

The worker's advocate stated it is their opinion that the actual range for the cosmetic disfigurement, psychiatric, hearing, dry eyes, speech, mastication and diglutition impairments are underrated individually and combined. She also stated that the WCB incorrectly used the combined tables to calculate the total impairment. She submitted that the result of the underrating and the use of the combined values chart is a total impairment rating of 60% which is unfair considering the nature and extent of the worker's impairment.

With respect to certain ratings, the advocate suggested that the WCB should have used discretion to recommend a greater rating which is provided in Paragraph 3 of the Policy.

In response to questions, the advocate identified the worker's concerns about each of the impairment ratings:

Dry Eyes: The advocate suggested that the WCB medical department should have used its discretion and recommended a greater rating for the worker's dry eyes. The worker was rated at the maximum amount provided by the schedule.

Urethral Function: The advocate suggested that a greater rating be awarded for urethral functions. As the schedule did not deal specifically with this impairment, the WCB medical department applied the AMA "Guide to the Evaluation of Permanent Impairment" (AMA Guidelines) and rated the impairment as a Class 1 impairment at 2%.

Speech: The worker's speech impairment was considered a Class 2 impairment with a recommended rating of 5%. The advocate suggested that the WCB medical department use its discretion and recommend a greater rating.

Mastication and Deglutition: The advocate suggested a greater rating for mastication and deglutition. As this impairment was not covered by the schedule, the WCB medical department applied the AMA Guidelines and recommended a rating of 5%.

ROM Cervical Spine: The advocate indicated that the worker is satisfied with the recommended rating of 9.7%.

Inhalation and Lungs: The worker's advocate indicated that they accepted the 0% rating for these items.

Cosmetic: The worker's advocate was most critical of the rating for this impairment. She referred to an assessment prepared by an occupational health physician who rated this impairment at 35% based on the AMA guidelines. She stated that the worker should be granted the WCB's maximum rating of 25%. The WCB medical department rated this impairment as 20% out of a possible maximum rating of 25%.

Psychiatric: The worker's advocate indicated that the worker should have been assessed at the maximum which is 45% rather than the actual assessment of 35%. She indicated that the worker's psychologist suggested the rating should be the maximum but acknowledged that the psychologist did not provide a written assessment with a numerical rating. The only assessment of this impairment was provided by the WCB's psychiatric consultant.

Hearing: The advocate acknowledged that an appeal of this impairment is not before the Appeal Commission at this time.

Analysis

We were not able to agree with the position advanced by the worker's advocate. Having considered all of the evidence we found, on a balance of probabilities, that the recommended ratings were appropriate at the date of the assessment and were based upon the medical evidence available at that time.

We note that for the most part the worker's advocate's position was not supported with medical evidence but was based upon the belief that the ratings should be higher. We are sympathetic to the worker's position having heard the evidence of the worker and his wife regarding the impact of this incident upon their lives and having seen the worker's permanent scars but do not find that the impairment rating is incorrect.

The worker's advocate indicated that the main concern was in relation to the ratings for the cosmetic and psychiatric impairments and the use of the combined values table.

Regarding the cosmetic impairment, we note that the worker was assessed at 20% out of a maximum of 25%. In other words, the worker's impairment was considered to be 80% of the maximum. We consider that this rating acknowledges the extent and seriousness of the impairment. We note that the worker's occupational health physician suggested a rating of 35% based upon the AMA guidelines. The WCB does not apply the guidelines in this area and has created its own scale.

We also understand that the WCB medical department follows an established process in assessing cosmetic awards utilizing a panel of reviewers and a library of photographs for comparison and rating purposes, and we consider the process to be reasonable and fair. We found that the rating for cosmetic disfigurement is appropriate.

Regarding the psychiatric impairment, the WCB psychiatric consultant classed the worker's psychiatric condition, PTSD, under the category of Neurosis with a Class II rating of 35%. The worker's advocate argued that the worker should be awarded the maximum rating for psychiatric impairments. In support of her position, she noted that the worker's psychologist suggested the worker receive the maximum rating. This psychologist did not provide a written assessment of the impairment with an actual rating. We find that the assessment by the WCB psychiatric consultant is appropriate and consistent with the evidence at the hearing regarding the impact of the injury in the worker's life at this time. We therefore find that the recommended Class II rating is reasonable.

At the hearing, the worker's wife expressed concern that the worker's psychological condition is worsening. She noted that the worker is more agitated than he was two years ago and finds that he needs to see the psychologist more frequently. We were also informed that the delay in completing the inquest into the incident has resulted in a setback for the worker.

We note that the Act provides that a worker with an impairment may apply for reconsideration of the degree of the impairment, where there has been a significant deterioration of the worker's medical condition. This is set out in subsections 38(6) to 38(8) of the Act. Should the worker's psychiatric or other conditions deteriorate, the worker may wish to consider applying for reconsideration.

The worker's advocate argued that an error was made in the use of the combined values chart. We did not find an error in the use of the chart and note that the use of the chart is directed by the WCB's policy and accordingly we are bound to apply the chart.

Regarding the financial value of the impairment award, the worker and his advocate did not present any evidence on this issue. We have reviewed the calculations and find that they are correct.

The worker's 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 18th day of March, 2005