The Appeal CommissionThe Workers Compensation Act of Manitoba

Applicable Legislation

As the worker was injured in 1982, his benefits, including his PPD, are assessed under The Workers Compensation Act (the “Act”) as it existed at that time. In 1982, compensation for permanent partial disability was provided for under subsection 32(1), which read as follows:

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 percent of his average earnings.

In accordance with the Act, the Board of Directors enacted a Permanent Impairment Rating Schedule, which is attached as Appendix A to WCB policy 44.90.10.02. The introduction to the schedule provides that:

Evaluation of permanent impairment is made when treatment has been completed, or when, in the opinion of the Board’s physicians, the medical condition has stabilized and no further improvement is expected. The timing of the evaluation, therefore, varies according to the individual’s circumstances.

Worker’s Position

The worker’s representative provided a written submission which primarily argues that the medical evidence on the worker’s file supports that the first effective date of a PPD award should be prior to March 27, 2007. It is submitted that the worker’s entitlement to a PPD award be assessed as of 1984. The worker advisor refers to the November 14, 1984 report of the WCB chiropractic consultant and the December 11, 1984 report of the WCB orthopedic medical advisor and submits that there is sufficient evidence in these reports for a fair assessment of a loss of range of motion on which to establish a PPD award.

Employer’s Position

The employer provided a written submission which takes the position that the medical reports of November 14, 1984 and December 11, 1984 were prepared for the purposes of assessing the need for ongoing chiropractic treatment and not for the purposes of assessing permanent impairment, and therefore should not be relied upon. It also submits that the ranges reported by the chiropractor differ from those reported by the orthopedic surgeon within a very narrow time frame, thus reflecting fluctuating findings which suggest that the worker’s condition could not at that time be considered permanent in nature.

Analysis

The issue before the panel is whether the effective date of March 27, 2007 for the worker’s PPD award is correct. For the appeal to be successful, the panel must find evidence of a permanent partial disability at a date prior to March 2007. The evidence must demonstrate that there was a permanent loss of range of motion of the neck at that earlier date. We are unable to make this finding.

The worker relies on the medical reports of November 14, 1984 and December 11, 1984. The only report which provides specific measurements which could be used to calculate a PPD award is the November 14, 1984 report of the WCB chiropractic consultant. The WCB orthopedic consultant’s report which was prepared about one month later provides only approximate measurements. After a review of these reports, the panel is not prepared to rely on the measurements contained in the November 14, 1984 report. The reason is because the range of motion reported in the later December 11, 1984 report differs from that recorded in the November 14, 1984 report and in some measurements actually shows improvement. This would suggest that the worker’s neck condition was not yet stable and therefore it would be premature to assess the PPD award at that time. The panel also noted that there is a medical report dated June 24, 1985 prepared by a consulting neurologist. In this report, the neurologist reports that: “Neck range of movement is minimally restricted at extremes of movement. The one possible exception is restriction of his forward bending to within three fingers of his manubrium.” This report relates a range of motion which differs from that recorded by the chiropractor and orthopedic surgeon in 1984. The panel notes that the one area noted here - forward flexion - actually showed full range of motion in 2007. Again this would reflect that the condition of the worker’s neck had not stabilized.

In the panel’s opinion, given the differences in range of motion described in the medical reports of 1984 and 1985, the evidence does not demonstrate that at that time, the worker had a permanent limitation in any of the range of motion dimensions identified in the schedule, namely flexion, extension, lateral flexion or rotation.

The next medical information on file is not until July, 2005. At that time, while pain and stiffness with decreased range of motion is reported by the worker’s attending physician, no measurements are provided. In January 2006, the WCB approved massage therapy, the goal of which was to stretch and lengthen the contracted muscles plus activate the weaker muscles. The plan was to have the worker undergo an initial course of massage therapy treatment, following which the worker would be assessed for PPD eligibility. Ultimately, the PPD evaluation was conducted on March 27, 2007.

The panel finds that the March 27, 2007 examination provided the first measurable medical evidence sufficient to determine a PPD award for the worker’s cervical spine limitations. Although the file contains medical evidence from earlier dates, the earlier medical evidence does not establish that the worker had a permanent loss of range of motion such as to permit an evaluation of the permanent partial disability.

It is therefore the panel’s decision that, on a balance of probabilities, the effective date of March 27, 2007 for the worker’s PPD award is correct.