The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on July 23, 1998 following receipt of an appeal by the claimant. The Panel discussed this appeal on July 23, 1998, and again on January 21, 1999.

Issue

Whether the claimant's permanent partial impairment has been correctly calculated.

Decision

That the claimant's permanent partial impairment has been correctly calculated.

Background

On July 16, 1962, while installing transformers on an "H" frame, this electrician fell approximately 35 feet to the ground. The worker sustained simple comminuted fractures to both ankles, a fractured right wrist, and other injuries.

Responsibility was accepted and compensation benefits were paid to January 4, 1963. By letter dated April 1, 1963, the claimant was advised that he had been awarded a temporary partial disability of 15% which would be paid for a period of one year. The letter went on to say that his entitlement would be reviewed again after the one year period.

By letter dated April 20, 1964, the Workers Compensation Board (WCB) advised the claimant that his permanent partial disability had now been rated at 20%. Compensation was therefore paid on a pension basis from April 1, 1964 at that rate. In May of 1981, following a hearing, the WCB granted the claimant's request that he be provided with a lump sum settlement of his impairment award. The lump sum in the amount of $18,829.80, was paid to the worker in June, 1981.

On May 28, 1984, the worker underwent R.A.F. fusion, right ankle. Effective May 26, 1984, temporary total disability benefits commenced and were paid until June 17, 1984.

On August 30, 1984, subsequent to the surgery, a WCB medical officer reviewed the file. Based on this file review, it was determined the claimant's entitlement to a permanent partial impairment should be increased from 20% to 34%.

In August, 1996, a medical report was received at the WCB from the claimant's treating physician suggesting the claimant's condition may have deteriorated. As such, arrangements were made for the claimant to be re-assessed for the purpose of determining an entitlement to an increase in his impairment award.

The claimant attended at the offices of the WCB in Winnipeg on November 19, 1996, at which time his medical condition was re-assessed. Based on the results of this assessment, the medical advisor expressed his opinion that the reduced ranges of movement would entitle the claimant to a permanent partial impairment of 28%.

On December 12, 1996, primary adjudication advised the worker that, following the results of the examination by the WCB medical advisor on November 28, 1996, the permanent impairment was rated at 28%. However, the letter went on to state:

"We have compared findings at the time of your previous assessment on August 30, 1984 and the examination of November 28, 1996. The findings are relatively equal.

Therefore, it has been determined that there will be no reduction in your permanent partial impairment rating."

In a letter dated December, 1996, the worker appealed the Primary Adjudication decision to Review Office.

On January 23, 1997, Review Office determined that the WCB was not able to award specific benefits for pain or discomfort, in compliance with existing legislation or policy, except where the pain or discomfort contribute to a loss of earning capacity. Review Office further indicated that it could not find any reason to alter the permanent impairing rating associated with the ankle injuries, since it is based almost entirely on reduced ranges of ankle movement.

On May 24, 1998, the worker appealed to the Appeal Commission and requested an oral hearing.

The Appeal Panel hearing was held on July 23, 1998, and before deciding the case, the Panel required additional information be obtained. Specifically, the Panel requested that the claimant be examined by a WCB impairment awards medical advisor for the purposes of re-assessing the claimant's permanent partial impairment award.

The claimant's ankles were re-assessed at the WCB offices on November 10, 1998. The examination results were forwarded to the parties having an interest for comment. Responses were subsequently received from the claimant and the employer's representative. The Panel met on January 21, 1999, to render its final decision.

Reasons

Section 60(2) of the Workers Compensation Act of Manitoba ( the Act ), provides exclusive jurisdiction to the Workers Compensation Board (WCB) to determine the existence and degree of an impairment by reason of any injury arising out of and in the course of employment. According to Section 38(1) of the Act, the WCB shall determine the degree of a worker's impairment expressed as a percentage of total impairment. Also, Section 4(9) allows the awarding of compensation in respect of an impairment even though there has been no loss of earning capacity.

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 not measurable, 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 claimant brings this appeal seeking an increase in his permanent partial impairment that was rated as being 34% for both ankles on August 30th, 1984. The 1984 assessment was a substantial increase to the initial rating of 20% done twenty years earlier in 1964. The Impairment Awards medical advisor recorded his findings in a memo to file:

"Assessing an impairment rating for both ankles as of today (& using our present tables in force), on the basis of his M.D.'s report, the rating would be as follows:

1) 0 range of movement right ankle 15%
2) decreased range of movement right subtalus joint 4%
3) decreased range of movement left ankle 10%
4) Enhancement factor 5%
Total 34%

We do not know what guidelines were used in 1964 or what values were placed on various impairments."

On August 8th, 1996, the treating orthopaedic surgeon, who had carried out the right ankle fusion in 1984, reported severe arthritis and pain in the claimant's left ankle. The claimant decided against further surgery and requested the WCB to reassess his permanent partial impairment rating. This assessment was carried out on November 19th, 1996. The calculation was as follows:

1. Arthrodesis of the right ankle would equate to a PPI of 15%.

2. There has been a loss of total range of movement in the left ankle of 110 - 40 = 70.

PPI equals 70 110 15 = 9.5%.

3. Because of bilateral ankle involvement, an enhancement factor of 50% of the lesser impairment would apply, that is 4.8%.

Using the combined values chart, PPI would be:

5 (4.8) }
} 15 }
10 (9.5) } } 28%
15 }

We note that the WCB never rescinded the 34% rating following the above recommendation for a 28% PPI.

The employer's advocate takes the position that the WCB's calculation of the 34% impairment rating in 1984 was incorrect. He contends that the medical advisor must have neglected to use the combined values chart when doing his evaluation. "Therefore the actual impairment award that was made in 1984 should have been based on a 31 percent rating, rather than the 34 percent rating used. Mr. [the claimant] currently is receiving an award based on a rating that is higher than what he is entitled to under the WCB's impairment rating schedule." The advocate requested that an adjustment be made and that the impairment rating be amended accordingly.

We have no means of challenging the 34% rating that was established in 1984 and therefore, we are left with no alternative other than find it to be correct. However, in light of the calculation rating of 28% done in 1996 by the WCB, we felt it was necessary to have the claimant re-examined to determine, if he may have possibly incurred a further increase/decrease in the degree of his impairment. An examination carried out on November 10th, 1998, by the WCB resulted in a permanent partial impairment rating of 31% inclusive of a cosmetic factor.

It is transparently obvious that the 1984 and the 1998 ratings are at variance with each other. We have no way of knowing whether the 3% difference is as a result of a flawed 1984 calculation, as suggested by the employer's advocate, or whether the claimant's impairment has improved over time. Nevertheless, we recommend that the claimant's impairment rating be established at 31% as determined by the Impairment Awards medical advisor's examination findings and subsequently recorded in her memorandum to file of December 15th, 1998. In addition, we further recommend that the effective date of this rating be December 23rd,1998, being the date when the acting Medical Director of WCB Healthcare confirmed the 31% PPI calculation was correct. We have reviewed this calculation in light of the WCB's impairment rating schedule together with the combined values chart and find that the permanent partial impairment award of 31% has been correctly calculated.

We want to make it clear that there can be no possible suggestion of an overpayment in this case inasmuch as we have determined the 1984 calculation was correct, the 1996 rating was never implemented and WCB policy Section 35.40.50 would be applicable in any event. We would also like to point out to the claimant that we were prohibited from dealing with his back and wrist problems as part of this appeal. Section 60.1 of the Act requires that a particular matter must be determined at two prior levels within the WCB before such matter can be reconsidered by the Appeal Commission.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
C. Monk, Commissioner

Recording Secretary, B. Miller

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

Signed at Winnipeg this 2nd day of March, 1999