Decision #08/02 - Type: Victims' Rights

Preamble

(DECISION ORIGINALLY PUBLISHED AS CRIMINAL INJURIES DECISION 2/02)

A non-oral file review was held on June 27, 2002, at the request of the victim’s advocate.

Issue

Whether or not the victim is entitled to an increase in his Permanent Partial (Disability) Impairment Award.

Decision

That the victim is not entitled to an increase in his Permanent Partial (Disability) Impairment Award.

Decision: Unanimous

Background

We note that the two prior levels of adjudication have dealt with this matter as a permanent impairment rating, whereas the language of the legislation in effect at the time of injury refers to a permanent partial disability as opposed to impairment.

In 1974, the victim sustained a deep laceration to the lower part of his nose when he was struck in the face with a beer bottle. The claim was accepted by the Criminal Injuries Compensation Board and benefits were issued between October 7, 1974 and October 18, 1974.

On November 14, 1975, a medical officer examined the victim to determine whether or not he incurred a permanent partial impairment with respect to the 1974 incident. The clinical examination findings showed a well healed scar over the nasal bridge and over the lower eyelid. There was no evidence of any deformity. The medical officer commented that the cosmetic result was satisfactory as far as the victim’s nose and scars were concerned. No rateable disability was found.

On May 4, 2000, the victim was re-assessed by an impairment awards medical advisor. The examination findings revealed a scar measuring 7 cm., immediately below the right eye which extended across the bridge of the nose to underneath the left eye. There was a vertical scar on the right side of the nose which measured 3cm. There was thickened tissue overlying the bridge of the nose and some thickened scar tissue of the nasal bridge on the left side. The medical advisor noted that the victim sniffed frequently during the examination and pushed up his nose. Under the heading “Impression/Discussion”, the medical advisor stated that based on the criteria in the PPI (Permanent Partial Impairment) schedule, the only rateable physical impairment would be the cosmetic appearance. On June 21, 2000, it was the consensus opinion of three reviewers who evaluated color photographs of the victim’s nose, that the victim’s cosmetic impairment was rated at 1.0%. On July 4, 2000, the victim was issued a cheque in the amount of $3,585.45 which was in recognition of the 1% PPI rating.

In September 2000, an advocate requested reassessment of the victim’s impairment award based on an x-ray report of the nasal bones dated August 4, 2000. The report read as follows, “There are no previous films for comparison. There is some deviation of the nasal septum to the right. There is evidence of remote injury to the nasal bone. There is a small bony density seen just anterior to the tip of the nasal bone.”

Subsequent file records revealed that additional information was obtained in the form of medical reports relating to the victim’s admissions to hospital from June 4 - 7, 1981 and July 26 – 29, 1981 along with prior x-ray reports. The additional information was reviewed by an ear, nose and throat consultant on January 18, 2001.

On January 23, 2001, the victim/advocate were advised by the Compensation for Victims of Crime program that the victim was not entitled to a permanent impairment award for the septal deviation as it was not related to the criminal injury that occurred in 1974. “The injury appears to have occurred sometime after the incident in 1974 and prior to the surgery in 1981.”

In a letter dated January 29, 2001, the victim’s advocate requested reconsideration of the above decision based on the following points:

  • the victim denied having sustained any injury to his nose subsequent to the 1974 assault;

  • the seven year lapse between the assault and the 1981 surgery may account for some of the physical problems/symptomatology being experienced by the victim.

  • the victim had not returned to his pre-assault state. The WCB’s Healthcare Department acknowledged constant sniffing.

Following consultation with the ear, nose and throat consultant, the Compensation for Victims of Crime program wrote to the advocate on March 29, 2001, advising him of the following:

  • many people sustain nasal fractures and they do not go to hospitals for treatment.

  • the seven year lapse between the ’74 assault and ’81 surgery would not cause any deterioration in the nasal condition.

  • nasal sniffing was not a symptom of an old fracture of the nose. It was usually a symptom of a nasal allergy.

  • nasal sniffing was not a compensable condition.

On December 29, 2001, the victim’s advocate submitted a report for consideration by a professor and head of otolaryngology dated September 26, 2001. Following consultation with an ear, nose and throat consultant, the Compensation for Victims of Crime program advised the advocate that there would be no increase in the victim’s impairment award of 1%.

On February 11, 2002, the Compensation for Victims of Crime program wrote to the advocate indicating that the case had been reviewed by an impairment awards medical advisor to determine whether the victim would be eligible for a non-scheduled impairment rating relating to his difficulty in breathing, eating with open mouth and nasal dripping. The impairment awards medical advisor agreed with the ear, nose and throat specialist’s assessment and was not agreeable to an increase in the victim’s impairment rating. On March 4, 2002, the victim’s advocate appealed the decision to Review Office.

In an April 26, 2002, decision, Review Office determined that the victim was not entitled to an increase in his permanent partial impairment award. Review Office was satisfied that the 1% permanent partial impairment rating for scarring was reasonable and consistent with other impairment ratings provided for cosmetic deformity. With respect to the victim’s breathing difficulties, nasal discharge and the necessity for the victim to eat with his mouth open, it was the opinion of Review Office that these difficulties had not been shown to be related to the 1974 assault and would not warrant any increase in the victim’s permanent partial impairment rating. On May 2, 2002, the victim’s advocate appealed the decision by Review Office and a non-oral file review was arranged.

Reasons

As the background notes indicate, the victim’s advocate brings forward this application requesting an increase in the victim’s 1% permanent partial disability rating. He contends that the above award is inadequate given the external nose scarring as well as the victim’s inability to breathe through his nose, year round nasal discharge and his having to eat with his mouth open.

The victim’s right to claim compensation is initially established by virtue of section 23(3) of the Criminal Injuries Compensation Act (the Act), which prescribes as follows: “…where a victim or his dependants are entitled to benefits under this Act, the benefits shall be determined in an amount equivalent to the benefits that would have payable had the victim been a workman within the meaning of The Workmen’s Compensation Act as amended heretofore or hereafter, who had been injured in the course of his employment, except that no payment shall be made with respect to medical and hospital benefits that are payable by any public or private scheme.”

In accordance with The Workmen’s Compensation Act that was in force at the time of the victim’s injury, the WCB had the discretion to award compensation in respect of the permanent disability suffered by a victim (workman) but without temporary total disability. More specifically, section 32(2) of the foregoing Act provided:

“Where a workman is permanently disfigured as a result of the injury, the board may determine that the disfigurement is permanent partial disability for which compensation may be allowed under this section notwithstanding that the amount which the workman was able to earn before the accident has not been substantially diminished by reason of the disfigurement.”

In arriving at our decision, we attached considerable weight to the following body of medical evidence:

  • October 29th, 1974 Hospital Medical report – Diagnosis: Laceration nose. Investigation: X-ray Nasal & Facial Bones: There is a fracture of the tip of the nasal bone with minimal depression.
  • April 27th, 1981 Hospital History – This young fellow has suffered several traumatic incidents to his nose with resulting fractures and resulting difficulty in breathing. Examination revealed a markedly deviated septum to the right causing a marked degree of obstruction. He has an irregular nasal bone with a twist to the left with a prominent hump and a droopy tip. In view of the extensiveness of the deviation of his septum, a septoplasty is being planned as a preliminary procedure.
  • April 8th, 2000 X-ray report re: nasal bones – There is some deviation of the nasal septum to the right. There is evidence of remote injury to the nasal bone. There is a small bony density seen just anterior to the tip of the nasal bone.
  • January 18th, 2001 WCB medical advisor’s memorandum to file – Claimant had the Nasal injury in 1974. He was seen by Dr. [name] (Plastic Surgeon) at the time. In Dr. [name’s] report he talks about skin lacerations which were sutured, but no mention of Nasal deformity or Deviation of the Nasal Septum. X-ray in 1974 of Nasal & Facial bones show fracture of the tip of the Nasal bones with Minimal depression. No mention of Deviated Nasal Septum.The claimant saw Dr. [name] in 1981. This is 7 years after. Dr. [name] describes markedly Deviated Septum to the Right, irregular Nasal bone with a twist to the Left, prominent hump & droopy tip. Also Dr. [name] says that clmt. has Suffered Several traumatic incidents to his nose. According to the above information it seems that the deviated Nasal Septum & the Nasal deformity occurred after the incident of 1974.

We find based on the overwhelming weight of evidence that the victim’s only rateable physical permanent partial disability would be his nasal scarring.

Section 51(2) of The Workers Compensation Act, in force at the relevant time, extends exclusive jurisdiction to the Workers Compensation Board (WCB) to determine the existence and degree of disability by reason of any injury as well as the permanence of disability by reason of any injury.

An injured worker’s permanent partial disability 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 permanent partial disability do not allow for exact measurement, it becomes necessary for the medical advisor to make a subjective judgement as to the degree of disability.

It is also important to note that because pain is not measurable, it does not become a component in the determination of whether a worker qualifies for a permanent partial disability award. For instance, a worker who has complete and full range of motion of a shoulder following an injury to that shoulder would not be eligible for a permanent partial disability 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 partial disability award based on pain alone.

In the particular case at hand, a WCB Impairment Awards medical advisor examined the victim on May 10th, 2000. She recorded in her examination notes the following assessment:

“Based on the criteria in the PPI schedule, the only rateable physical impairment would be the cosmetic appearance. Arrangements have been made for Mr. [the victim] to obtain colour photographs from the Health Sciences Centre. Final PPI rating must await the receipt and evaluation of colour photographs from the Health Sciences Centre.”

The victim was sent for photographs for cosmetic purposes of the scarring of his nose before a final rating was awarded.

WCB medical advisors employ certain criteria when making a determination of cosmetic impairment. Some of the factors considered when reviewing scarring include location of scar, form, multiple sites, texture, colour etc. Photographs are taken of the scarring and they are then reviewed independently by three medical advisors. A portfolio of photographs is also maintained at the WCB for purposes of comparing similarity and ensuring consistency.

The evidence on file confirms that three medical advisors reviewed photographs of the victim’s scarring. It was a consensus opinion that a 1% rating be given for scarring. While we did not have the benefit of being able to compare the victim’s photographs with folio photographs on file at the WCB, we find no reason to disturb the ultimate consensus opinion reached by the three medical advisors.

We have reviewed the victim’s permanent partial disability rating and find same to have been done correctly in accordance with the legislation in force at the time of the injury. Therefore we find that the victim’s permanent partial disability rating has been correctly rated at 1%.

Accordingly, the victim’s appeal is hereby dismissed.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

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

Signed at Winnipeg this 4th day of July, 2002

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