The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

This appeal deals with whether the worker’s permanent partial disability (PPD) award of 2% for left knee instability effective August 17, 2005 should be made retroactive to 1981. Both primary adjudication and Review Office determined that it should not. A worker advisor, acting on behalf of the worker, appealed the decision to the Appeal Commission and a file review was held on November 27, 2007.

Issue

Whether or not the effective date of August 17, 2005 for the 2% permanent partial disability award for left knee instability is correct.

Decision

That the effective date of August 17, 2005 for the 2% permanent partial disability award for left knee instability was correct.

Decision: Unanimous

Background

On September 14, 1979, the worker injured his left knee, wrist and right hand in a work related accident. The claim was accepted by the Workers Compensation Board (WCB) and benefits were paid accordingly.

On August 17, 2005, the worker was examined by a WCB impairment awards medical advisor for the purposes of establishing a permanent partial disability (PPD) award in relation to his left knee and wrist injury. Following this assessment, it was determined that the worker was entitled to a 13% PPD award which consisted of 2% for instability and 7% for loss of range of motion in his left knee and 4% for loss of range of motion in his left wrist. The effective date of the PPD award was the date of the assessment, August 17, 2005.

On August 3, 2007, a worker advisor indicated that the worker has had instability in his left knee ever since his compensable injury. He therefore contended that the effective date of the worker’s 2% PPD award for left knee instability should be made retroactive to 1981. In support of this position, the worker advisor referred to a memorandum dated October 30, 1981 in the medical section of the worker’s claim file.

In a decision dated September 12, 2007, Review Office confirmed that the effective date of the PPD award should not be earlier than August 17, 2005. Review Office referred to the October 30, 1981 memorandum and was of the view that the medical opinion expressed in the memorandum was not confirmation that the worker had instability in his knee as of that date. It felt that the medical information from the attending physician and the WCB before and after the memo indicated the worker had full range of motion and there was no indication of knee instability. Therefore there was no evidence that the PPD award for instability should be made retroactive. On September 20, 2007, the worker advisor appealed the decision to the Appeal Commission and a file review was arranged.

Reasons

Applicable Legislation and Policy

As the worker was injured in 1979, his benefits including his PPD are assessed under The Workers Compensation Act (the Act) as it existed at that time. Subsection 32(1) of the Act provides for the payment of a PPD award. This provision provides for periodic lifetime payments to a worker to compensate for the physical loss occasioned by a disability.

In accordance with the Act, the Board of Directors enacted the Permanent Impairment Rating Schedule. Pursuant to this schedule, impairment is assessed when treatment is completed, or when the medical condition has stabilized and no further improvement is expected. In the case of an injury to the knee, the schedule provides for permanent impairment for loss of mobility with respect to instability of the knee; the award may vary from 1 to 5%.

Worker’s Position

The worker provided a written submission dated October 31, 2007. He submitted that the effective date for his PPD award should be September 14, 1979, the date of the workplace accident. In support of this request the worker refers to the following medical reports: 

• report of orthopedic surgeon dated March 1980. The worker indicates that the surgical findings after arthroscopic probe include internal injury and damage to the left knee, to both ligaments as well as cartilage.
• report of physician from sport injury clinic dated April 1987. The worker indicates that the physician found 35-40% deficit in his range of motion, which indicates a definite loss of movement in the left knee.
• report of WCB medical advisor dated August 2005. The worker indicates that the physician found definite difficulties in areas of the left knee especially when kneeling, squatting and sitting.

A submission on behalf of the worker was also received from a worker advisor.  The worker advisor referred to a WCB memo on the claim file dated October 30, 1981.  He submitted that the 2% PPD for instability should have been made retroactive to October 1981 as there was evidence of residual disability.

The worker advisor also referred to WCB policy 43.10.30 and asked that a functional award be granted.  The representative noted that the WCB has the flexibility to review and grant an award to injured workers where there is no loss of range of motion.

Analysis

The issue before the panel was whether the effective date of August 17, 2005 for the 2% PPD award for left knee instability is correct.  For the appeal to be successful, the panel must find there is evidence of instability at an earlier date sufficient to warrant a PPD award effective on the earlier date.  

The panel finds, on a balance of probabilities, that the effective date of August 17, 2005 for the 2% PPD award for the left knee instability is correct. In reaching this decision, the panel reviewed the evidence on file, including medical reports, and has considered the submissions made on behalf of the worker.

As the issue before the panel deals with the portion of the award provided for instability of the left knee, the panel looked for evidence of instability in the file.  The panel finds that the first significant evidence of instability is noted in the report of the WCB medical advisor dated August 17, 2005.  Accordingly this is the appropriate effective date for the award.

The panel notes there is significant evidence on the file indicating that the worker’s left knee was stable during the period prior to August 2005.  This evidence included:

• July 27, 1983 report of WCB medical advisor which noted “From this examination and at this present time there is no permanent impairment to his left knee.”
• May 21, 1987 report from orthopedic surgeon which noted “The left knee is stable.”
• May 25, 1992 memo from WCB medical advisor which noted the worker has equal ROM of both knees.
• August 27, 2001 report from orthopedic surgeon which noted range of movement is full extension, but lacks a few degrees flexion. “The knee is stable.”

The panel has considered the reports noted by the worker and the worker advisor and finds that these reports do not provide sufficient support for the selection of an earlier effective date.  In particular the October 30, 1981 report does not confirm instability in the knee at that point.

The appeal is denied.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
G. Ogonowski, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 21st day of January, 2008