The Appeal CommissionThe Workers Compensation Act of Manitoba

Background

In June 1966 the claimant sustained compensable left and right sided hernias. Since that time, he has undergone numerous surgical procedures to repair both hernia conditions.

On June 28, 1996, the worker was assessed by an impairment awards medical advisor at the request of the Appeal Commission. The medical advisor’s impression after his examination of the worker was as follows:

“The objective presence of a right inguinal hernia would, in my opinion, indicate that the integrity of this claimant’s abdominal wall is compromised and that the resultant weakness of its musculature adversely affects expulsive activities like micturition and defecation. If no further surgery is contemplated, such impairment would be permanent; and, while it does not fit into a specific award category contained in the WCB Permanent Impairment Rating Schedule, the latter may permit judgment rating. Such a discretionary assessment could be based on the criteria for Class 2 of Hernias of the Abdominal Wall used by the American Medical Association as defined by the fourth edition of its Guides to the Evaluation of Permanent Impairment on pages 247-248, photocopies of which are appended. An award of 15% may be appropriate.”

Based on this opinion, the Appeal Commission determined in Decision No. 179/96 that the worker was entitled to a 15% PPD award.

On February 4, 2007, the worker attended a hospital emergency facility regarding a lump over his right inguinal region. He was diagnosed with a right inguinal hernia which was reduced. He then attended a surgeon for treatment on March 16, 2007 and the surgeon’s diagnosis was a right incarcerated inguinal hernia. The left groin area was thought to be firm.

In a memo to file dated April 2, 2007, a senior WCB medical advisor noted that he reviewed the file information based on the worker’s request to reconsider the previously provided impairment rating for his inguinal hernias. He stated, in part:

“It is evident that [the worker] has had a recurrent right inguinal hernia despite previous surgeries, with the right hernia now described as not reducible. Although [the worker] had a recurrent left inguinal hernia, there has been no recurrence subsequent to the last surgical repair of October 12, 1984.

With respect to the right sided hernia, [the worker] is determined to have a Class III hernia related impairment, as per page 247 of the AMA Guides, 4^th Edition. The rateable impairment of same is between 20% - 30%.

Insofar as [the worker] has not experienced a recurrent inguinal hernia on both sides, it is concluded that he does not qualify for the maximum PPI [sic] of 30%. However given the combination of i) the recurrence of the right inguinal hernia despite multiple surgeries, ii) the presence now of a non-reducible right inguinal hernia, and iii) the effect of the right sided hernia on [the worker’s] functional capacity, as discussed with the WCB Case Manager, a PPI [sic] higher than the lowest Class III rating is recommended. After reviewing this matter with a WCB PPI medical consultant, who is also a General Surgeon…, a mid range Class III hernia related impairment of 25% is suggested.

An opinion has also been requested as to whether there is a cosmetic rating for scarring associated with the previous inguinal surgeries. In response, it is highlighted that the 25% rating cited above, representing an unscheduled rating in the WCB Impairment Manual, includes any associated cosmetic impairment.”

Analysis

To accept the appeal before us we must find on a balance of probabilities that the worker is entitled to an increase in his PPD. We are able to make that finding.

Section 28 of The Workers Compensation Act, R.S.M. 1954, c. 297 provides that workers who have been permanently injured and have suffered an impairment of earning capacity are entitled to a permanent partial disability award. WCB Policy 44.90.10.02, Permanent Impairment Rating Schedule provides that impairment ratings for the determination of PPD awards are, in principle, to be established in accordance with the schedule to that Policy. Where however “the Healthcare Management Services Department feels that strict adherence to the schedule 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. In such cases the award will not be official until it is reviewed and approved by the Director of Healthcare Management Services. The Healthcare Management Services Department will document the case and explain the justification for the non-scheduled award in full. Awards in excess of 20% must be reviewed and approved by the Director of Healthcare Management Services”.

In the case before us, and as referred to in the June 28, 1996 assessment, the schedule to Policy 44.90.10.02 does not contain a specific award category for hernias. Reference to the American Medical Association (“AMA”) Guides to the Evaluation of Permanent Impairment is therefore appropriate.

The AMA Guides to the Evaluation of Permanent Impairment indicates that where there is a palpable defect in the supporting structures of the abdominal wall and persistent, irreducible or irreparable protrusion at the site of defect and limitation in activities of daily living, the worker may be entitled to impairment rating between 20% and 30%.

Given the above and the senior medical advisor’s rationale in his April 4, 2007 memorandum in support of his recommendation of a 25% PPD award, the appeal panel finds that an increased PPD award of 25% is justified.