The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

A file review was held on March 1, 2006, at the worker's request. Following the review, the appeal panel reviewing the worker's appeal directed the Recording Secretary of the Appeal Commission to write to the Workers Compensation Board's Healthcare Management Services Department to consider whether the worker's facial erythema condition was rateable under the Workers Compensation or other, Impairment Schedule. The Recording Secretary did so on March 3, 2006. An answer was received on March 14, 2006 and the worker provided his comments on March 23, 2006. When the appeal panel reconvened to further discuss the worker's appeal, it was discovered that one of the panel members had a potential conflict of interest in hearing the appeal. For this reason, a new panel was convened on June 5, 2006, at which time the worker's file was reviewed and discussed.

Issue

Whether or not the worker is entitled to a Permanent Partial Disability (hereafter "PPD") Award in relation to his facial condition.

Decision

That the worker is entitled to a PPD award in relation to his facial condition at a rate of 1% in addition to the former 10% PPD award for cosmetic and mechanical impairment.

Decision: Unanimous

Background

Reasons

Background
This appeal comes by way of a reconsideration which was granted on January 3, 2006 with respect to Board of Commissioners Order No. 94/89 (hereafter Order No. 94/89) in relation to the worker's entitlement to a PPD award for his facial erythema condition.

On November 15, 1973, an explosion occurred at work, which left the worker with second and third degree burns to his face, right side of his body and right upper extremity. The worker's claim for compensation was accepted by the Workers Compensation Board (hereafter "WCB").

Since 1975, the worker has undergone several medical assessments to rate his impairment. The impairment ratings have dealt with the worker's range of motion of his shoulder, the keloid formation on his chest, the scarring and the permanent erythema condition on his chest.

The worker seeks a PPD award for the erythema condition on his face. The file indicates that as of approximately April, 1985, the worker developed a facial erythema condition when he came into contact with the sun or toxic fumes.

Although the WCB did accept the facial erythema condition as related to the compensable injury in 1994, retroactive to 1986, it has refused to grant the worker a PPD for this condition for two reasons:

1. It is not rateble under WCB Policy and Schedule;
2. It was initially considered to be temporary.

Overview of Claim History as it relates to the PPD Award
Over the course of the worker's claim with the WCB, the worker has been examined by several WCB medical practitioners for the purposes of establishing a PPD award. The worker has also filed numerous appeals in relation to this issue. The chronology of these examinations and appeals is essential to understanding this appeal:

- On February 12, 1975, the worker was granted a 10% PPD award for his right shoulder impairment, which included 5% for the limitation of right shoulder abduction and 5% for extensive keloid formation;

- On February 21, 1975, the worker was paid a lump sum settlement in full payment of this PPD award;

- On June 16, 1987, a WCB medical officer examined the worker for the purposes of establishing whether or not he had an impairment relative to the facial erythema condition. The medical officer's examination findings indicate the following:

"[The worker had] much mild erythema of the cheeks and a little on the forehead, as well as the anterior neck. There is some swelling of the tissues of the cheeks. There is some slight redness of the conjunctiva of both eyes…On the basis of this examination, there is nothing in the guidelines for permanent impairment for the condition of which he is complaining. There is no doubt that this may cause a disability and make it difficult for the claimant to work when he is like this, but it seems that medical treatment usually gets rid of the condition on a temporary basis." [Emphasis added]

- On August 27, 1987, the Board issued Order No. 162/87 in relation to the worker's facial erythema:

"…The Medical Officer had noted the claimant was complaining of trouble with his face, especially recently from sunshine, and that he was experiencing a great deal of burning.
The claimant had indicated to the Medical Officer that he feels the cause of his skin condition is because of the burn suffered to his face in the gas explosion in 1973.
The Medical Officer said that at the time of examination there was mild erythema of the cheeks and a little on the forehead, as well as the claimant's anterior neck. He has also stated there was some swelling of the tissues of the cheeks and some slight redness of the conjunctiva of both eyes.
The Medical Officer has said that on the basis of his examination, there is nothing in the guidelines being utilized for permanent impairment for the condition of which the claimant is complaining. He indicated there is no doubt it may cause a disability and make it difficult for the claimant to work when the erythema occurs, but it seems that the medical treatment usually gets rid of the condition on a temporary basis." [Emphasis added]
...The Board noted that the claimant, on occasion, incurs a temporary erythema to his face…It was the opinion of the Board that given it is a mild temporary condition, a permanent partial disability award is not payable." [Emphasis added]

- The worker's facial erythema condition was re-visited on May 30, 1989 by the Board, which once again refused the worker's request for a PPD award in relation to it. By Order No. 94/89, the Board wrote:

"In respect of the claimant's request for a Permanent Partial Disability award in relation to his facial condition, arrangements were made for him to be examined by a Workers Compensation Board Medical Officer. On the basis of this Medical Officer's examination and opinion, the previous Board concluded there to be no permanent rateable impairment in relation to the facial condition. The current Board, after consideration of the recent argument and available information, can find no basis on which to alter the previous decision."

- The worker was then examined by a medical advisor to the WCB on January 5, 1993. At that time, the worker was found to have an 8.5% impairment: 5% for cosmetic impairment, generally; 3.5% in relation to his mechanical impairment. This impairment rating was lower that the former 10% rating.

A February 6, 1995 memorandum from the medical advisor that rated the worker on January 5, 1993 clarifies this rating:

"1. The areas considered were the claimant's face, right side of his body, right arm and chest, including the axilla.

2. Reduced ROM in the right shoulder equates to an impairment value of 3.5% as of January 5, 1993.

PPD of 10% was awarded on February 17, 1977 [sic] (5% for reduced ROM in right shoulder and 5% for keloid scarring). No change in PPD recommended…

3. On the cosmetic PPI form, signed by me, shows a cosmetic impairment value of 5%, which would understandably apply, in addition to any mechanical PPI. The latest mechanical PPI value was 3.5% on January 5, 1993 (with the previous value being 5.0%)

(a) New cosmetic impairment value of 5.0%
Reaffirms old impairment value of 5.0% [Emphasis added]

(b) New mechanical impairment value of 3.5%
Is recommended to replace old 5.0% value."

- Sometime in 1994, the WCB accepted that the worker's facial erythema condition was related to his compensable injury, retroactive to June 26, 1986, as evidenced, for example, in a letter of June 24, 1994 and memoranda of October 13 and November 15, 1994;

- Subsequent file records show that the worker requested reconsideration of Order No. 94/89 on several occasions, the last being on September 12, 2005. A decision granting the request for reconsideration was made on January 3, 2006.

The Law and Policy
Section 32 of The Workers Compensation Act, S.M 1973, Cap. W200 provides, in part:

"32(1) Where permanent partial disability results from the injury, the board shall allow 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.

32(3) Where the impairment of the earning capacity of a workman does not exceed ten per cent of his earning capacity, instead of the weekly payment, the board shall, upon request of the workman, direct that a lump sum calculated to be the equivalent of the weekly payment shall be paid to the workman in settlement of his claim; but the settlement is final only in respect of the condition of the workman attributable to the accident as that condition was known at the time the payment is made."

The degree of impairment suffered by a worker is determined in accordance with WCB Policy 44.90.10, which provides, in part:

"A. Policy

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…"

Analysis
As indicated previously, the worker was assessed by a WCB medical officer on January 5, 1993 for the purposes of establishing a PPD award.

At that point in time, the worker's facial erythema condition was not rated as it was not considered to be a compensable condition. However, as noted above, in 1994 the WCB appears to accept responsibility for the erythema condition as being related to the compensable injury and the worker is paid for his loss of earnings. Despite this change in compensability, no change was made to the worker's PPD award.

The evidence on file clearly indicates that the worker's facial erythema condition is permanent. This was the conclusion of the WCB medical officer in 1987. This conclusion is borne out by the fact that the worker continues to suffer from it to this date.

Given that the worker's facial erythema condition is a permanent condition which has not been rated previously, the issue before the panel becomes whether the facial erythema condition is rateable under the WCB permanent impairment rating schedule (hereafter the "WCB Schedule"), and if not, under another schedule.

The WCB Schedule

The WCB Schedule is designed to measure the degree of permanent physical impairment of body function following a compensable injury. Permanent impairment is measured, amongst others, by the cosmetic deformity of the body.

Appendix A to the WCB Schedule contains a guideline for rating disfigurement. Disfigurement is defined as an altered or abnormal appearance and can include a loss of function due to contractures as a result of scarring. Typical awards for disfigurement range between 1 and 5%.

As we read the January 5, 1993 medical assessment, the 5% cosmetic impairment to the worker's entire body includes disfigurement.

The worker's facial erythema condition is not however a cosmetic impairment or a disfigurement. It therefore does not appear to be covered by the WCB Schedule under this heading, or any other heading.

This understanding of the WCB Schedule, was confirmed by the WCB Healthcare Management Services on March 14, 2006:

"Query #1: "Is [the worker's] erythema condition considered rateable under the [WCB Schedule]? …

Based on a thorough review of the Manitoba Workers Compensation Board's Impairment manual, there is no rating for the described "erythema condition".

Consequently, the worker's facial erythema condition is not rateable under the WCB Schedule.

Another Schedule

As indicated above, part 3 of WCB Policy 44.90.10 indicates that "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".

With this discretionary provision in mind, the Appeal Commission wrote to the WCB Healthcare Management Services Department on March 3, 2006. The question and answer are as follows:

"Query #2: "If [the worker's] erythema condition is not rateable under the WCB's…Schedule, would it be rateable pursuant to 0.3 of WCB Policy 44.90.10 which allows for consideration under another schedule? If so, what would be the rating?

…After a review of the file and in particular the report of [the treating dermatologist], and the relevant portion of the AMA Guides to the evaluation of permanent impairments, fifth edition, Page 187, Table 8-2, it is my opinion that if a rating was to be considered based on Policy 44.90.10., it would be a minimum rating in the class I category and the recommendation will be 1.0%.

It should also born [sic] in mind that a disfigurement rating of 5.0% has already been awarded and therefore, the cosmetic effects of the erythema is not to be additionally rated."

The worker was forwarded a copy of the WCB Healthcare Management Services March 14, 2006 memorandum for comment. His reply of March 23, 2006 states:

"In your investigation of my file, I hope that you will identify the many different types employment [sic] I have had in order to accommodate these symptoms. Since 1974, I have had difficulties with continuous work because my face is hypersensitive to different environments, such as exposure to the sun, paint fumes, heat and cold. Over the years I have continuously sought medical treatment to alleviate the symptoms of burning and pain in my face. I have been living with this for the past 32 years. It has affected my work life and home life. I hope that you will consider the medical time loss from work when making your decision on the PPI rating."

Discussion

The PPD is designed to compensate a worker for his physical loss. It is not designed to compensate the worker for his loss of earning capacity, nor his inconvenience.

While we commiserate with the worker's erythema condition, we feel that a 1% PPD award is reasonable in the circumstances of this case.

This 1% award is in addition to the 10% PPD that was determined and paid by way of lump sum settlement to the worker in 1975.

The worker's appeal is therefore granted.

Additional Comments
In his March 23, 2006 letter to the panel, the worker also wrote:

"I understand that you are currently reviewing my file and time loss from work in connection to the erythematous condition to my face as a result of my workplace accident that involved a gas explosion in 1973."

To be clear, this panel has only reconsidered Order No. 94/89 with respect to the PPD for his facial erythema condition. That was the stated grounds for appeal. We have not therefore considered the issue of wage loss, or the issue of whether the worker's prior PPD award was correctly calculated in 1993 when he was re-examined by a WCB medical advisor. It is open for the worker to explore any rights of appeal that he may have with respect to these matters.

Panel Members

L. Martin, Presiding Officer
A. Finkel, Commissioner
B. Malazdrewich, Commissioner

Recording Secretary, B. Miller

L. Martin - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 13th day of June, 2006