Decision #09/02 - Type: Victims' Rights

Preamble

(DECISION ORIGINALLY PUBLISHED AS CRIMINAL INJURIES DECISION 3/02)

An Appeal Panel hearing was held on October 24, 2002, at the request of legal counsel, acting on behalf of the claimant. The Panel discussed this appeal on October 24, 2002.

Issue

Whether or not the component of the applicant’s permanent partial disability relating to her feet has been properly calculated;

Whether or not the effective date for all components of the applicant’s permanent partial disability award should be February 4, 1977; and

Whether or not the applicant is entitled to reimbursement for the costs associated with a jetted hot tub.

Decision

That the component of the applicant’s permanent partial disability relating to her feet has been properly calculated;

That the effective date for the applicant’s permanent partial disability award of 32% should not be June 11, 1992 but April 11, 1991;

That the applicant is entitled to reimbursement for the costs associated with a jetted hot tub.

Decision: Unanimous

Background

The claimant sustained frostbite injuries to her hands and feet along with bruises to her face and body as a result of a crime that took place on February 4, 1977. The Criminal Injuries Compensation Board (the board) accepted the claim for compensation and various benefits commenced.

During the initial stages of the claim, the claimant was assessed on a number of occasions with respect to a permanent partial disability (PPD) award. The following is a brief summary of those assessments:

  • On May 3, 1979, the examining Assistant Chief Medical Officer determined that there was no rateable PPD.

  • On August 11, 1989, the examining medical advisor determined that the claimant was entitled to a 25% impairment rating for her fingers and toes. The effective date of the impairment rating was later determined to be May 16, 1979.

  • The claimant was assessed by a Senior Disability Awards Medical Advisor at the Workers’ Compensation Board of British Columbia on June 11, 1992. Based on this assessment, a Manitoba WCB Impairment Awards Medical Advisor determined that the claimant was entitled to a 32% rating with regard to her left/right fingers, scarring on the anterior neck/chest, medial right thigh, right foot, and dorsum of the left middle/ring fingers and six hammer toes. The effective date of the award was June 11, 1992.

In October 1993, the attending physician reported that the claimant’s lower extremity pain was significantly responsive to and relieved by hot soaks, i.e. hydrotherapy, and that an in-home hot tub would be most practical and effective. The request for a jetted hot tub/Jacuzzi was later denied (decision letter dated April 20, 1994) as it was determined that a jetted hot tub was not normally covered by the board and was not recommended by a WCB medical advisor.

In a report dated March 7, 1996, the claimant’s attending physician stated, in part, “…a jetted hot tub was recommended and continued to be recommended for the use of this patient as a physical treatment for the neuralgia associated with her frostbite injuries to the feet. This modality has allowed us to dispense with narcotics completely and as such is considered a successful treatment.”

In June 2000, legal counsel for the claimant outlined a number of appeal issues that he wanted addressed in association with the claim. Some of these issues included the costs associated with a whirlpool that had been installed in the claimant’s residence in September 1994; a review of the claimant’s 32% impairment rating which he felt was too low and should have been made effective February 4, 1977; that the PPD increase to 32% should have been made retroactive to at least September 1990.

In a response to the solicitor’s appeal, an adjudicator with the Compensation for Victims of Crime program wrote to legal counsel on July 26, 2000 and the following decisions were rendered:

  • the program did not compensate victims for pain and suffering and therefore, chronic pain was not a rateable permanent impairment.

  • the recent 7% permanent impairment rating increase was effective June 11, 1992. If the claimant exhibited a decrease in range of motion or an increase in the severity of the cosmetic impairment, arrangements could be made for the claimant to be reassessed in Winnipeg in this regard.

  • it was the practice of the board to base the effective date of the permanent impairment award on the date of the medical examination which establishes the permanent impairment. The monthly benefit is then calculated based on the percentage of the award and the age of the victim at the time. The claimant did receive retroactive benefits in the amount of $17,991.50 for the period May 16, 1979 to September 20, 1989 for the 25% impairment rating. There was also a 7% increase in the PPI which was effective June 11, 1992 at which time the monthly benefit was adjusted.

  • based on a review of the case by a medical advisor, the costs of a jetted hot tub could not be justified as the comfort provided by the hot tub could be achieved through a much less expensive means like a hot foot bath.

  • the claimant was on UIC sick benefits at the time of the assault. Earning calculations were based on the income she would have been earning at that time.

  • the request for a three wheel scooter, lift and automobile driving controls would be decided upon once the claimant was reassessed with regard to her PPI award and after undergoing a functional capacity evaluation.

On August 14, 2000, the solicitor agreed to have the claimant reassessed with regard to her PPI rating. The solicitor wanted it clarified that in addition to the possibility of the claimant having a decrease in range of motion or an increase in the severity of her cosmetic impairment, that the board take into account the impairment of her feet directly related to frostbite and resultant arthritis. The solicitor stated that in November 1996, the board rejected any possibility of a causal relationship between the criminal incident and the arthritic condition of the claimant’s feet. He stated that the rejection impacted directly on the claimant’s PPI rating.

On October 16, 2000, the claimant was reassessed by a WCB medical advisor which included a physical examination and psychological assessment. It was concluded that the claimant’s impairment award would be increased by 19% for a total of 51%. This included physical, cosmetic and psychological impairment. The effective date was October 16, 2000.

In a decision letter dated January 25, 2001, the claimant was informed that she was entitled to a 19% increase in her permanent impairment award from 32% to 51%. The increased award was effective October 16, 2000 and the claimant was issued a cheque for retroactive benefits.

On March 9, 2001, legal counsel asked that reconsideration be given to the decisions made on January 25, 2001 and one of the decisions rendered on July 26, 2000.

In a memo dated March 23, 2001, the Impairment Awards Medical Advisor noted that during the examination on October 16, 2000, the claimant described symptoms consistent with Raynaud’s Phenomenon of her feet. It was suggested that the claimant could undergo further evaluation for this problem. However, the medical advisor commented that there was not a PPI rating for Raynaud’s Phenomenon of the feet in the Permanent Impairment Rating Schedule.

On September 4, 2001, Review Office confirmed the following:

  • that impairment ratings were established for the claimant’s feet, hands, toes, cosmetic and psychological impairment.

  • any impairment resulting from psychological trauma related to the event was to be effective from the date of the crime, i.e. February 4, 1977.

  • the cosmetic award of 2% which was initially effective June 10, 1992, was to be made effective the date of the crime.

  • a WCB impairment awards medical advisor recalculated the total of the permanent impairment rating as follows:

  • the PPI as of February 4, 1977 for cosmetic and psychological impairment using the combined values chart was 14%.

  • the August 11, 1989 PPI examination took into account the claimant’s clinical and radiological evidence of arthritic changes to her hands and feet. Using the combined values chart, this was 35%. The claimant was therefore entitled to an increase in the impairment rating of 21%, from 14% to 35% of total. Review Office recommended that the implementation of this increased award be effective May 16, 1979.

  • when reassessed on June 11, 1992, (as the claimant’s arthritic condition to her hands and feet worsened), the PPI rating using the combined values chart was 39% in total. Review Office noted that the claimant was entitled to an increase in the impairment rating of 4% to 39%, effective June 11, 1992.

  • Review Office confirmed the impairment ratings as were established on October 16, 2000, i.e. PPI rating using the combined values chart was 51% of total. Therefore, the claimant was entitled to an increase in the impairment rating of 12% to 51% of total effective October 16, 2000.
  • Review Office empathized with the claimant’s painful exercises resulting from her injuries. Review Office, however, was of the view that a jetted hot tub provided only temporary relief and that it was outside the compensation envelope.

Based on the Review Office’s decision, a claims adjudicator wrote to the claimant on October 15, 2001. Enclosed with the letter was a cheque which represented the balance that was owing to the claimant after recalculation of her impairment ratings.

On April 4, 2002, legal counsel wrote to the Appeal Commission appealing the decisions rendered by Review Office on September 4, 2001 and the decision rendered on October 15, 2001. On April 19, 2002, the Registrar at the Appeal Commission advised legal counsel that the Appeal Commission could only speak to the issues that had been addressed by Review Office.

Subsequent file information showed that several discussions took place between the Appeal Commission’s Registrar and the claimant’s solicitor as to the framing of the issues under appeal. In addition, Review Office was asked to clarify the basis for its decision concerning the PPI award for the claimant’s hands and feet. Review Office clarified its position in a letter dated July 8, 2002.

On July 9, 2002, the Appeal Commission’s Registrar wrote to the claimant’s solicitor outlining three issues that the Appeal Panel would be in a position to address. On October 24, 2002, an Appeal Panel hearing took place at the Appeal Commission in this regard.

Reasons

As the background notes indicate, the applicant was the victim of a violent crime on February 4th, 1977 when she was cruelly assaulted. Following the attack the applicant was thrown into a snowbank and left there to die, but miraculously she somehow managed to crawl to a nearby farmhouse for help. The applicant sustained multiple injuries, which included frostbite to both of her hands and feet as well numerous bruises to her face and body.

Sometime following the occurrence of the foregoing events, the applicant applied to the Criminal Injuries Compensation Board for compensation for her injuries pursuant to the provisions of The Criminal Injuries Compensation Act, which was in force at that time. This former Act has since been replaced by The Victims’ Bill of Rights. However, The Criminal Injuries Compensation Act (the CICA) still continues to be applied to any claims that have been filed on or before January 3rd, 1999.

According to section 23(3) of the CICA, where a victim is entitled to benefits under this Act then such benefits “shall be determined in an amount equivalent to the benefits that would have been 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”. On August 11th, 1989, the claimant underwent a permanent partial disability examination and assessment by a Workers Compensation Board’s Impairment Awards Medical Advisor. A disability award of 25% was subsequently established effective May 16th, 1979. This disability award was later increased to 32% effective June 11th, 1992.

The Medical Services Department of the Workers Compensation Board (the WCB) appraises an injured person’s permanent disability when it conducts either a medical examination of the person 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 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 person qualifies for a permanent partial disability award. For instance, a person 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.

To assist in the evaluation of the degree of permanent physical disability, the WCB relies upon a permanent impairment rating schedule that has been adopted by its Board of Directors. The schedule 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.”

WCB policy 44.90.10 deals with the Permanent Impairment Rating Schedule and states in part as follows:

1. The degree of impairment will be established by the Healthcare Management Services Department of the Workers Compensation Board in accordance with this 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. In such cases they may use information other than the schedule such as the American Medical Association Guides to the Evaluation of Permanent Impairment established for a similar purpose.

WCB Impairment Awards Medical Advisors make essentially two types of evaluations for permanent impairment (disability), which are ‘schedule ratings’ and ‘judgement ratings’. Schedule ratings attribute the percentage values as outlined in the permanent impairment schedule for specific injuries. In cases such as amputations, blindness, etc., which are relatively straightforward, the injury or impairment is assessed at the prescribed value. On the other hand, some kinds of impairment of function of the body do not lend themselves to exact measurement and as such these cases require judgement on the part of the medical examiner. Judgement ratings determine a percentage of impairment in those instances where the impairment does not correspond to a specific category as set out in the existing rating schedule.

With respect to the first issue, the applicant “seeks to have taken into account that she suffers from constant chronic pain as a result of the frostbite and related, mostly arthritic, conditions. Taking chronic pain into account would predictably increase the PPI award both currently and retroactively.” The evidence suggests, however, that the applicant’s pain is not permanent, but rather, it is intermittent and becomes prevalent after extended use of her hands and feet. We note that the applicant has managed to cope with her pain over the years and in so doing was able to raise three children as well as maintain a household together with occasional periods of work. Her evidence was that her pain was variable.

Variable pain can and does result in measurement difficulty. We also note that all of the WCB Impairment Awards Medical Advisors have been aware of the applicant’s pain complaints and have chosen the traditional methods of establishing her disability rating (i.e. range of motion, loss of function etc.,) and have not chosen to introduce any discretionary criteria in establishing the PPD rating.

After having considered all of the evidence, we find that the components of the applicant’s permanent partial disability relating to her feet and/or to chronic pain have been properly calculated by the WCB Impairment Awards Medical Advisors and done in accordance with the impairment rating schedule.

As to the second issue, counsel for the applicant confirmed that he was specifically seeking the following determinations by the Panel:

  • That the 25% PPI (which was implemented in 1989 and in place from 1979 to 1992) be made retroactive to 1977.
  • That the 32% PPI (implemented as of June 11th, 1992) be made retroactive to February 1977, or at least to June 1990.
  • That “pain” (if implemented) be made retroactive to some prior date.

An evaluation of a permanent partial disability is normally conducted when treatment has been completed, or when the person’s medical condition has stabilized or plateaued in the opinion of the WCB’s medical advisors and no further improvement is expected. Therefore the timing of the evaluation varies according to the circumstances of each individual case. The evidence confirms that the applicant’s condition continued to improve throughout the period of 1977 to 1979. On May 3rd, 1979, the WCB Medical Department examined the applicant for a permanent partial disability assessment. The Assistant Chief Medical Officer recorded the following comments in his memorandum to file:

“Recommendation: May very well have early fatigueability (sic) of hand grip, may very well have pain on long standing, but no objective evidence at time of examination of sufficient disability to warrant PPD assessment. With all the sympathy and empathy for this girl one feels, there is simply insufficient objective evidence of disability to warrant consideration of a PPD. No rateable PPD.”

The preponderance of evidence clearly establishes that the applicant’s condition continued to improve throughout the period from 1977 to 1979. Accordingly, we find there is no basis on which to alter the 1979 implementation date of the applicant’s PPD and move it back to 1977.

As to the timing of the implementation of the 32% PPI, we note in a memorandum dated July 13th, 1993, that a WCB Impairment Awards Medical Advisor recorded the following observation: “Last PPI of 32% assessed in Sept/92, might have led to a PPD of 32%, with the increase being retroactive for one to two years, as her condition is gradually progressive.” (Emphasis ours)

We also note that there is a letter on file dated March 24th, 1992 to the board from the applicant’s treating physician. We found certain of his comments to be highly relevant especially with respect to counsel’s contention that the 32% PPI should be adjusted retroactively.

“At her check up dated April 16, 1991, Mrs.[the applicant] was doing fairly well although her feet were bothering her more than her hands, but she has been much more relaxed.

X-rays of the feet showed slight degenerative changes present in the right first metatarsal phalangeal joint, the left side is spared. There was coarsening of the trabecular pattern within the proximal phalanx of the first metatarsal. X-rays of both hands showed severe degenerative changes in the interphalangeal joints, particularly the P.I.P. joints. This showed some progression since the earlier examination of 1989. The M.C.P. joints were spared and also the carpal bones. There was very aggressive erosive osteoarthritic changes.”

We therefore find based on the weight of evidence that the applicant’s PPD award of 32% should be made effective as of April 16th, 1991. Finally, as previously discussed, we do not find that there should be an implementation of a PPD rating for pain and accordingly there can be no finding with respect to an implementation date.

Lastly, the applicant seeks compensation for the cost of a jetted hot tub together with associated maintenance and hydro costs. WCB policy 44.120.10 dealing with medical aid provides, “The provision of medical aid attempts to minimize the impact of the worker’s injury and to enhance an injured worker’s recovery to the greatest extent possible. To minimize the impact of workers’ injuries and to encourage recovery and return to work, the WCB approves the use of many prescribed and recommended treatments and devices, including prescription drugs, over-the-counter medical supplies, braces, prosthetic devices, wheelchairs, dentures, hearing aids, eye glasses, contact lens and other devices”.

According to the applicant’s evidence, she purchased and installed a therapeutic whirlpool bath in her residence in September of 1994 and that she has benefited greatly from its usage. There is extensive evidence on file submitted by various treating health care physicians that the use of a hot tub can be of benefit in terms of reduced symptoms of pain. Specifically, we note the comments made by a treating physician in his letter of March 7th, 1996 in which he wrote:

“This is to confirm that a jetted hot tub was recommended and continues to be recommended for the use of this patient as a physical treatment for the neuralgia associated with her frostbite injuries to her feet. This modality has allowed us to dispense with narcotics completely and as such is considered a successful treatment.”

We find that based on the weight of evidence that the applicant’s use of a hot tub has helped her and that it has replaced medication costs that the board would in all probability have had to pay. Accordingly, the applicant should be reimbursed for the initial cost of her jetted hot tub. However, we do not consider that ongoing maintenance and hydro costs are the responsibility of the Criminal Injuries Compensation Board.

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 18th day of November, 2002

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