Decision #156/08 - Type: Workers Compensation

Preamble

On May 28, 1971, the worker injured his right leg, knee and ankle in a work related accident. The claim for compensation was accepted by the Workers Compensation Board (WCB) and benefits were paid to the worker. In 2008, the worker was awarded a 1% Permanent Partial Disability (PPD) award with the effective date being May 2, 2002. The worker disagreed with both decisions and an appeal was filed with the Appeal Commission through the Worker Advisor Office. A file review was held on October 23, 2008 to consider the matter.

Issue

Whether or not the worker’s permanent partial disability rating has been correctly calculated; and

Whether or not the effective date of the worker’s permanent partial disability award has been correctly established.

Decision

That the worker’s permanent partial disability rating has been correctly calculated; and

That the effective date of the worker’s permanent partial disability award has been correctly established.

Decision: Unanimous

Background

On May 28, 1971 the worker suffered an injury to his left leg, knee and ankle in a work related incident. The claim for compensation was accepted based on the diagnosis of a dislocation of the left patella with hemarthrosis and abrasion and a contusion of the right ankle. The worker was paid WCB benefits to August 14, 1971 and was discharged from medical care on August 31, 1971.

As the worker experienced “popping” episodes with his knee in the years subsequent to his compensable injury, the worker had a left knee arthroscopy performed on May 2, 2002, with lateral retinacular release. In a follow up report dated October 17, 2002, the treating surgeon’s examination findings were outlined as follows:

“The patella is stable and there is negative lateral apprehension sign. Range of motion of the knee is full. X-rays show calcification on the medial border of the patella but the remainder of the knee examination is normal.”

On February 25, 2008, the worker was assessed by a WCB physiotherapy consultant for the purposes of establishing a PPD rating. Following the assessment, it was determined that the worker had a 1% impairment rating based on loss in range of motion of his left knee.

In a letter dated June 27, 2008, the WCB adjudicator advised the worker that the range of motion in his left knee was 120 degrees and the range of motion in his right knee was 125 degrees and there was no ratable cosmetic impairment. The difference was 5 degrees which equated to 1% of impairment. The adjudicator also advised the worker that in determining his PPD award, the WCB determined at which point there continues to be a loss of function of the joint after maximum medical improvement had been reached. It determined that May 2, 2002 would the effective date of his PPD award and that the 1% impairment gave him an impairment award of $6,841.80.

On July 4, 2008, the worker disagreed with the WCB’s decision to award him a 1% PPD award and its effective date. The worker advised that his knee had been unstable since the date of his compensable injury and that the effective date of his PPD award should be March 28, 1971.

On July 23, 2008, Review Office determined that the worker’s PPD rating had been correctly calculated and that the effective date of the PPD award should be May 2, 2002. Review Office determined that the WCB physiotherapy consultant’s methods of measurement were correct and the calculations were accurate. It noted that the worker’s 4% decrease in range of motion outlined by the WCB physiotherapy consultant equated to only 1% of the whole body. The Permanent Impairment Rating Schedule did not provide allowances for immeasurable, subjective losses, which are not quantifiable, such as pain. In this situation, all possible rateable factors were considered at the time that his degree of disability was calculated.

With respect to the effective date of the worker’s PPD award being May 2, 2002, Review Office placed weight to the following:

  • Prior to the surgery performed in May 2002, there was no recorded loss of range of motion and no evidence of a rateable disability. This was based on the doctor’s report dated August 9, 1971 which stated, in part, “…he still has some swelling, tenderness ans [sic] some heat over the medial aspect of the left knee, although flexion is now 125 degrees.”

On September 3, 2008, a worker advisor, acting on the worker’s behalf, appealed Review Office’s decision to the Appeal Commission and a file review was arranged.

Reasons

Applicable Legislation and Policy

The Appeal Commission and this panel are bound by The Workers Compensation Act (the Act) and policies of the WCB’s Board of Directors.

This claim arose in 1971 and is governed, primarily, by the legislation in effect on the date of accident. Subsection 32(1) of the Act provided that where permanent partial disability results from an injury, the WCB shall allow compensation to compensate for the physical loss occasioned by the disability.

For the purpose of calculating a PPD and subsequently a permanent impairment, the WCB adopted a Permanent Impairment Rating Schedule. This schedule provides the basis upon which a PPD is assessed.

Worker’s Position

The worker outlined his position in a letter dated August 7, 2008. He noted a series of incidents involving his left knee since his original injury in 1971. He wrote, “In talking with [my current physician] on my last visit to him he again discussed my knee and all the problems that have occurred since May 1971 my date of accident. The problems with my knee have always been related to the original injury. I have had to give up a lot of things in life since my original accident. Being that there was always a loss of movement and instability I am claiming my PPI back to my date of accident in 1971 as per my doctor. [My current physician] also advised me to have a specialist give me a degree of impairment not only the opinion of the WCB doctor.”

Analysis

The first issue before the panel is whether the worker’s partial disability rating has been correctly calculated. The worker disagrees with the 1% rating.

The panel has reviewed the file information including the measurements and calculation used in determining the worker’s partial disability rating. The panel finds that the worker’s PPD rating has been properly calculated in accordance with the Act and WCB policy. The measurement of range of motion was performed using appropriate equipment and the comparison between the left and right knee measurements was conducted appropriately. As required by the policy, the difference in range of motion between the knees was converted to a percentage of impairment as it relates to the whole body and was set at 1%.

The panel notes that the worker has expressed concern regarding the ongoing pain and ongoing dislocations of his knee since his accident in 1971. Unfortunately, these are not conditions or factors which are considered in the assessment of a permanent partial disability. The policy only deals with reductions in range of motion, in establishing PPD ratings for the knee.

The second issue before the panel is whether the effective date of the worker’s permanent partial disability award has been correctly established. The worker has asked that the award be made effective the date of the accident.

The panel has considered the information on file. The worker was seen in August 1971. At that time his flexion was noted to be good at 125 degrees. There is no medical information regarding further losses in range of motion in his knee until the surgery in 2002. The panel finds that the effective date of the worker’s PPD award has been correctly established as May 2, 2002, being the first date at which a permanent loss of range of motion can be established.

The worker’s 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 3rd day of December, 2008

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