The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

A file review was held on March 21, 2006, at the worker's request.

Issue

Whether or not the worker is entitled to a permanent partial disability award for cosmetic disfigurement.

Decision

That the worker is not entitled to a permanent partial disability award for cosmetic disfigurement.

Decision: Unanimous

Background

On June 12, 1965, the worker sustained a crush injury to his right foot when it became caught in a swamp buggy. On January 6, 1967, he was awarded a 1% Permanent Partial Disability (PPD) award for limited range of motion of his metatarsal phalangeal joint of his right great toe.

On March 26, 2001, the worker was re-examined by a medical advisor with the Workers Compensation Board (WCB) to determine whether or not his PPD had increased. Based on the examination findings and review of color digital photographs, it was found that the worker was entitled to a 2% PPD for loss in range of motion of his right metatarsal phalangeal joint and the interphalangeal joint and a 1% cosmetic impairment.

Based on the above examination, the worker was advised by letter on April 20, 2001 that his PPD and cosmetic impairment was rated at 3%. "Since your impairment was rated at 1% in 1967, you are now entitled to an increase of 2%. This increase is effective the date of your examination here, which was March 26, 2001."

On June 20, 2001, the worker expressed three concerns with respect to his PPD rating. In particular, the worker asked the WCB to quantify how the 1% cosmetic impairment was arrived at.

In letters dated September 7, 2001 and September 18, 2001, the case manager informed the worker that he was not entitled to a cosmetic impairment award because of the date of his accident and the legislation that was in effect at the time. It was the case manager's decision that the total amount of the worker's PPD award was 2% instead of 3% as was previously advised. As the worker disagreed with the decision to deny him the cosmetic impairment award, the case was forwarded to Review Office for consideration.

On November 16, 2001, Review Office confirmed that the correct impairment rating should be 2% based on the workers' loss in range of movement in the joints of his great toe. It also confirmed that the worker was not entitled to a cosmetic impairment rating based on Section 32(2) of The Workers Compensation Act (the Act) that was in effect at the time of the accident. On January 17, 2006, the worker appealed Review Office's decision to deny him a cosmetic award and a file review was arranged.

Reasons

The issue before the panel is whether the worker is entitled to a PPD award for cosmetic disfigurement. The worker suffered a disfiguring injury to his right foot in 1965. The worker has asked that a PPD award be granted for the cosmetic disfigurement. The worker has received a PPD award for the loss of function of the right foot. The worker's request was declined by the WCB which said that the legislation applicable to this claim does not provide statutory (legal) authority to grant an award for a cosmetic disfigurement of the foot.

In considering this appeal, the panel has to determine which version of the Act is applicable to the worker's accident and to his request for a PPD award.

The worker's accident occurred in 1965. Accordingly, the Act as it existed in 1965 would be applicable unless a subsequent amendment was made that was expressly made to apply to claims from 1965. The panel finds that the Act as it existed on June 12, 1965 is applicable. The Act was amended in 1974, but the amendment did not apply to accidents that occurred before July 1, 1974. It did not create a retroactive benefit for earlier claims.

With respect to cosmetic disfigurement, the relevant section of the Act was subsection 28(2) [subsequently renumbered subsection 32(2)]. This subsection provided, in part, that "…where, in the circumstance, the amount which the workman was able to earn before accident has not been substantially diminished the board may, in case the workman is seriously and permanently disfigured about the face or head, or otherwise permanently injured,…"

This subsection permits awards for cosmetic disfigurements in relation to a worker's face and head. It does not refer to disfigurement of other parts of the body and is limited to the areas specifically identified.

Given that the Act did not authorize cosmetic awards for disfigurement of the foot in 1965, 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 9th day of May, 2006