The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

This appeal deals with a request by a worker’s estate for the recalculation of a Permanent Partial Disability award (“PPD”) which was initially awarded in 1984. It also addresses whether the worker was entitled to an additional PPD award for disfigurement. The Workers Compensation Board’s (“WCB”) primary adjudication and Review Office agreed that the 5% PPD rating would not be increased and a PPD award for scarring relative to the worker’s low back surgery should not be awarded. The estate’s advocate disagreed and filed an application to appeal with the Appeal Commission. A file review was then arranged and took place on June 20, 2008.

Issue

Whether or not the estate is entitled to an increase in the 5% permanent partial disability award; and

Whether or not there is entitlement to a cosmetic disfigurement award in respect to the July 13, 1979 low back injury.

Decision

That the estate is not entitled to an increase in the 5% permanent partial disability award; and

That there is no entitlement to a cosmetic disfigurement award in respect to the July 13, 1979 low back injury.

Decision: Unanimous

Background

On April 6, 1979, the worker slipped and fell backwards injuring his low back while in the process of pulling a two wheeler cart laden with four cases of milk weighing 180 pounds.

The worker attended his physician for medical treatment on April 9, 1979. The worker was diagnosed with an acute lumbosacral strain and was prescribed analgesics, heat and an elastic splint.

In a progress report dated April 25, 1979, an orthopaedic specialist noted that the worker had repeated episodes of left sciatica over the years. His examination revealed loss of lumbar curve and spinal movements that were markedly restricted. In a subsequent report dated June 4, 1979, the specialist noted that the worker’s back condition had not improved and there was paresthesia of the S1 nerve root distribution. A lumbar myelogram was suggested.

On June 15, 1979, the worker was assessed by a WCB chief medical officer who indicated that the worker had sciatic pain on the left that was probably as a result of long standing disc degeneration.

In a report to the WCB dated July 13, 1979, the orthopaedic specialist advised that an operation was performed and a bulging disc at the level of L4 on the left side was decompressed by excision of degenerative disc material. The nerve root which was found taut initially was left free.

On December 5, 1979, the orthopaedic specialist reported that the worker had no backache and no sciatica. He still had slight residual paraesthesia over the outer side of his left low leg and there was definite weakness of the extensors of the toes in the left foot and dorsiflexors of the left foot. It was suggested that the worker return to work during the first week of January 1980.

The file was reviewed on January 11, 1980 by a WCB medical officer and he stated there was no permanent partial disability. By March 31, 1980, the worker was deemed ready to return to work.

The worker filed another claim with the WCB for a low back injury that occurred on September 22, 1980, when he slipped and fell backwards while pulling four cases of milk with a hook. When seen by a physician for treatment on September 22, 1980, there was tenderness around the paraspinal muscles in the lumbosacral area. The diagnosis rendered was a low back strain.

On October 2, 1980, the worker returned to his orthopaedic specialist for treatment and was diagnosed with contused muscles on the left side of his low back and low chest posteriorly. Rest and heat application was the form of treatment rendered. The specialist further indicated that there would not likely be any permanent disability resultant from the injury.

On November 10, 1980, the orthopaedic specialist indicated that the worker was able to return to work by October 20, 1980. He further indicated that the worker was liable to have a recurrence if he was not careful with back discipline.

The worker was next seen by the orthopaedic specialist on October 20, 1981. He noted that the worker had a recurrence of left sided sciatica for the past two weeks.

On October 28, 1981, the orthopaedic specialist reported that the worker’s condition was improving although he still had painful straight leg raising on the left, 80 degrees, and Lasegue’s test was still positive. Neither ankle jerk could be obtained. A residual weakness of dorsiflexion of the left foot and toes of the left foot was still present. This would most likely be permanent. On November 18, 1981, the specialist noted that the worker’s spinal movements were good and sciatic stretch tests were now carried out without discomfort. The specialist indicated that the worker could return to work.

The next progress report from the orthopaedic specialist is dated April 13, 1982. He noted that the worker’s hours of work had increased and as a result he experienced severe pain in his low back and had to stop work on March 30 or 31, 1982 because of this. He stated, “On examination on April 8, 1982, he did not exhibit any evidence of any disability. There was no restriction of movement of his back and no pain on any of the movements of his back. Sciatic stretch tests were negative. There is no doubt that this worker would be able to carry on at a less demanding type of job and it is recommended that he be called in to the Rehabilitation Department to see what can be done to have him employed in a job in which he could carry on without any trouble.”

The next report is dated October 14, 1982. The orthopaedic specialist noted that the worker experienced a recurrence of low back pain two weeks ago while riding in a car for six hours. After 3 or 4 days this condition resolved itself. The specialist indicated that the worker had recovered from a recurring episode of low back pain as a result of the old disc lesion.

The next report is dated June 5, 1984. The orthopaedic specialist reported that there was little abnormality noted on physical examination as the worker was free of pain when seen on June 4, 1984. He noted that spinal movements were carried out without discomfort. The worker claimed that he was not able to do any heavy work and the state of disability which had prevented him from carrying on with his work for the past two years remained unchanged.

The worker was seen for a PPD assessment at the WCB on July 19, 1984. It was noted that at the time of the examination, the worker was 65 years of age and retired as of May 1, 1984. It was determined following the examination that the worker had a very good result from his 1979 disc surgery and was entitled to an impairment rating of 5% effective the date of termination from his rehabilitation benefits. On October 22, 1984, the worker was advised of his 5% PPD rating.

Subsequent file records show that the worker passed away on June 24, 2002.

In late April 2007, an advocate asked the WCB to consider a cosmetic scarring award in relation to the worker’s low back surgery that was carried out in 1979. On May 23, 2007, a WCB case manager outlined the position that an increase in the worker’s impairment award for scarring would not be provided based on the following rationale:

· No formal authorization for surgery was provided by the WCB at the time of the surgery in 1979 and there was evidence of degenerative findings noted in medical reports, as being related to the symptoms noted at that time;

· Specific details regarding what was done in the 1979 surgery is not provided;

· A WCB Medical Officer reviewed claim [number] January 11, 1980 and noted there would be no entitlement to an impairment award;

· Following examination with a WCB Medical Officer July 19, 1984, a 5% Impairment award was provided. It would appear this was provided in relation to both the 1979 and 1980 claims based on the notations on file;

· Regarding a scar, the Medical Officer notes in his July 19, 1984, exam notes, “Examination of his spine shows a well healed scar over the lumbar area with some loss of lumbar lordosis.”

The case manager further indicated that the 5% rating was assessed according to standard procedure at the time and based on information gathered through medical assessment. Therefore, no change would be warranted at this time to the 5% disability rating.

In a memo to file dated May 28, 2007, a case management director made note that she double checked the records in healthcare regarding the process used in 1984 when the worker’s PPD was addressed. She noted that the reference to the worker’s laminectomy scar and general findings by the medical officer were very sketchy and led one to think that there were minimal objective findings with respect to range of motion, etc. The worker’s 1979 and 1980 files were not reviewed by the medical officer at the time and the comment was simply made that if the claims were compensable an award of 5% would be in order. She noted that no photographs were taken of the worker and no measurements were obtained. In 1984, scarring was often not referenced/rated separately especially for back surgery. Based on this information, the director was satisfied and agreed with the case manager that no adjustments were warranted or possible for the worker at this time.

In a submission to Review Office dated May 31, 2007, the advocate argued that the 5% PPD award for the worker’s spinal injury was too low as it was not comparable to current awards for such a condition and that the worker was entitled to and never received a PPD award for cosmetic scarring/disfigurement related to his lumbar surgery.

On June 19, 2007, Review Office determined that the worker’s estate was not entitled to an increase in the 5% award which was granted in October 1984 and there was no entitlement to a cosmetic disfigurement award regarding scarring from the July 13, 1979 low back surgery.

Review Office indicated there was no evidence to overturn the PPD rating of 5%. It felt that the medical reports leading up to the examination by the WCB medical officer was not suggestive of any significant disabling factor being evident. The medical officer felt that the worker’s low back surgery had been successful and that the worker had good range of motion upon examination. Review Office also stated that current legislation, policy and practice would not come into play in this situation.

With regard to the issue of whether or not a cosmetic disfigurement award should be implemented, Review Office stated that in the time frame involved in this situation, the WCB was not granting cosmetic disfigurement awards for surgical scars on a worker’s back. Review Office was therefore satisfied that the decisions made on this claim by the case manager, manager and director were consistent with past WCB practice in effect in the aforementioned time frame. On July 17, 2007, the advocate appealed Review Office’s decision to the Appeal Commission and a file review was arranged.

Reasons

The panel finds that the worker is not entitled to an increase in his permanent partial disability award. The panel notes that the only medical information in support of the rating is from 1984. There is no information subsequent to 1984 to show that the rating was incorrect or that the impairment had increased. The panel reviewed the July 19, 1984, report of the WCB medical officer and notes the observations regarding decreases in range of motion. The panel also notes the medical officer’s observation that the worker has had a good result from the surgery. The panel finds that these observations support a finding that the impairment is appropriately rated in the lower end of the scale for such claims.

The advocate argued that the 5% rating is low compared to more recent ratings. The panel notes that the Act requires that cases must be dealt with on their individual merits. It does not find this argument provides a justification for an increase in the rating in the absence of medical information demonstrating an increase.

Issue 2:

The second issue was whether there is entitlement to a cosmetic disfigurement award in respect to the July 13, 1979 low back surgery. For this appeal of this issue to be successful, the panel must find that the worker is entitled to such award, above and beyond the 5% impairment assessed by the WCB medical officer. The panel was not able to make this finding.

There is discussion on the file regarding whether the medical officer’s assessment included consideration of the surgical scar on the worker’s back. The panel finds that it is more likely that the rating includes all aspect of impairment than just loss of range of motion. The panel notes that in examining the worker for the impairment award, the WCB medical officer observed a “well healed scar over the lumbar area”. He also observed some restrictions in range of motion. The WCB medical officer did not appear to photograph or measure the surgical scar and recorded minimal measurements of range of motion. The panel also notes that the medical officer’s conclusion that “I would assess his impairment rating at 5%...” The panel notes the medical officer’s report refers to impairment which by policy and practice included loss of range of motion and disfigurement. The panel finds that the evidence supports a finding that the impairment rating is related both to the loss of range of motion and disfigurement.

The panel finds that the worker is not entitled to a cosmetic disfigurement award. The appeal is denied.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 31st day of July, 2008