The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on June 30, 1999, at the request of legal counsel, acting on behalf of the claimant. The Panel discussed this appeal on June 30, 1999.

Issue

Whether the effective date of the permanent partial impairment award has been correctly established as June 20, 1997.

Decision

That the effective date of the permanent partial impairment award has been correctly established as June 20, 1997.

Background

While working as an electrician on April 5, 1975, the claimant was lifting a circuit breaker using his head and arms when he developed neck pain. The initial diagnosis was a sprain of the neck muscles. X-ray examination later revealed a fracture of the mid portion of the 5th cervical vertebrae. The claim was accepted by the Workers Compensation Board (WCB) and benefits were paid accordingly. By June 23, 1975, the claimant was considered fit for light duties by his attending physician.

Subsequent medical information revealed that the claimant sought medical treatment from an orthopaedic surgeon between 1978 and 1980 regarding pain at the back of his neck and between the shoulder blades. The claimant was also reported to have numbness to the middle and index fingers of both hands. Laboratory investigations during this period revealed no evidence of any nerve root lesion at C6, 7 or 8, however, tomograms of the spine showed an old compression fracture of C5 with evidence of degenerative disease at C5 and 6 and possibly C4 and 5. On March 15, 1979, a WCB medical officer determined that there was no PPD (permanent partial disability) following review of x-rays films.

Between November 1985 and June 18, 1986, the claimant was assessed by general practitioners as well as orthopaedic surgeons with regard to ongoing neck pain and paresthesia in the left upper limb. Neurological examination was normal. The claimant was treated by physiotherapy and home traction. On July 7, 1986, a WCB neurology consultant felt that in the absence of significant objective findings at the last examination in June 1981, there was no PPD.

On March 14, 1997, a general practitioner reported that he first saw the claimant in August 1987, regarding neck problems and that he has continued to see him over the years on a regular basis. The physician outlined his examination findings commencing in August 1987 through to March 3, 1997, as well as provide commentary regarding cervical spine x-rays. The physician concluded that the claimant suffered from neck pain and stiffness as a result of his work related injury in 1975. The claimant had developed chronic neck problems due to cervical spondylosis with an old healed fracture of C5 associated with degenerative changes involving the C5-C6 disc as well as chronic neck strain resulting in straightening of the normal cervical lordosis. The physician believed that the claimant would continue to have problems with his neck indefinitely together with the pain and stiffness waxing and waning from time to time.

The claimant was examined by a WCB impairment awards medical advisor on June 20, 1997. Based on his assessment, the medical advisor documented the fact that the claimant had 95 degrees loss in range of motion of the cervical spine. The PPI (permanent partial impairment) award was calculated at 8.4% rounded off to 8%. On August 1, 1997, the WCB advised the claimant that he was entitled to a permanent impairment award of 8% effective June 20, 1997.

In a letter dated May 6, 1998, legal counsel for the claimant requested an explanation of the PPI calculation and the effective date. On June 17, 1998, a WCB adjudicator wrote to the solicitor indicating that the permanent impairment award was calculated based on the claimant's average earnings which were in effect as of June 20, 1997. The benefits were not made retroactive to the date of accident, The claimant's file had been reviewed in March 1979, June 1980, and in June 1986, and there was no impairment rating indicated. On November 27, 1998, the solicitor appealed the effective date of the permanent impairment rating and submitted a November 13, 1998, report from the attending physician in support.

On December 18, 1998, the Review Office confirmed that the effective date of the award was June 20, 1997. The Review Office acknowledged that the claimant had ongoing neck difficulties including a loss in range of movement related to the 1975 accident. Review Office took particular note of the various medical reports and measurements of the claimant's cervical spinal movement taken over the years. In the opinion of Review Office, the worker's neck impairment was not ratable, nor was the rating ever quantified until the examination of June 20, 1997. It was therefore the opinion of Review Office that June 20, 1997 was the correct effective date for the award. It was also pointed out that the worker's current earnings had been taken into account in making the award effective in 1997. If the award was back dated, then the earnings would be effective from that point in time. Review Office also determined that the impairment award should be increased from 8% to 8.4% and in this regard, the case was referred back to the Payment Specialist to recalculate the award utilizing an impairment rating of 8.4%.

On April 5, 1999, the solicitor appealed the Review Office's decision in regard to the effective date of the impairment award. As a result, a hearing was scheduled for June 30, 1999.

Reasons

Section 32(1) of The Workers Compensation Act (the Act) in effect at the time of the claimant's compensable injury, allows the board to provide compensation in periodical payments during the lifetime of the workman sufficient, in the opinion of the board, to compensate for the physical loss occasioned by the disability, but not exceeding seventy-five per cent of his average earnings.

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.

It is also important to note that because pain is immeasurable, 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.

The WCB determined that the effective date of the claimant's permanent partial impairment (PPI) award should be June 20th, 1997. This decision was based on the fact that the neck impairment was not ratable nor ever quantified prior to the claimant's examination carried out in 1997. The claimant's solicitor appealed this decision on the basis that the claimant's residual disability has been continuous since 1975 and particularly severe since 1987.

When determining a PPI award, the WCB relies upon a permanent impairment rating schedule adopted by the Board of Directors. It 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."

The evidence on file confirms that the claimant's compression fracture at C5 healed with conservative treatment and did not produce any initial permanent loss of range of movement of his cervical joints. Later reports suggested limitation of movement to varying degrees and affecting different movements. However, it is important to note that the claimant's decreased range of movement caused by pain and spasm was generally intermittent and as such did not qualify him for a PPI award because it was not a permanent condition.

The claimant's case was reviewed by WCB medical advisors on three occasions subsequent to the compensable injury, March 1979, June 1980 and July 1986. The findings were such that a permanent impairment could neither be confirmed nor rated. The claimant's permanent loss of range of movement began to occur with the development of degenerative disc disease over the years. The reported incidents of limitation of movement in the years preceding the 1997 rating examination were somewhat variable and could not reasonably be assigned a permanent rating. We note that the claimant experienced an increase in symptoms from 1987 to 1997 as a result of two non compensable motor vehicle accidents which aggravated his neck condition.

There has been no evidence presented to the WCB or to this Panel establishing an earlier date for the permanent partial impairment. Therefore, we find that the effective date of the PPI award has been correctly established as June 20th, 1997. Accordingly, the appeal is hereby dismissed.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
R. Frisken, Commissioner

Recording Secretary, B. Miller

R. W. MacNeil - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 5th day of August, 1999