The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is presently appealing decisions that were made by Review Office of the Workers Compensation Board (“WCB”) regarding a number of issues related to five of his compensation claims. A hearing was held on September 17, 2009 to consider the issues. The worker appeared and provided evidence. He was represented by an advocate.

Issue

February 25, 1970 claim

Whether or not the effective date for the worker’s permanent partial disability award has been correctly established as being June 15, 2005.

October 3, 1985 claim

Whether or not the worker’s osteoarthritic condition is related to the October 3, 1985 compensable injury;

Whether or not the worker is entitled to temporary total disability and medical aid benefits in relation to the October 3, 1985 compensable injury; and

Whether or not the worker is entitled to a permanent partial disability award for cosmetic disfigurement of the left leg/knee.

November 21, 1985 claim

Whether or not the worker is entitled to a permanent partial disability award in relation to the November 21, 1985 right thumb injury.

September 6, 1989 claim

Whether or not the worker’s sexual dysfunction is related to the September 6, 1989 compensable injury;

Whether or not the worker is entitled to temporary total disability benefits for the period May 14, 1990 to November 12, 1995.

October 31, 1989 claim

Whether or not the worker’s sexual dysfunction is related to the October 31, 1989 compensable injury;

Whether or not the worker is entitled to temporary total disability benefits for the period May 14, 1990 to November 12, 1995;

Whether or not the worker’s cardiac permanent partial disability award should be reduced from 29% to 14.5% and

Whether or not 25% of the worker’s Canada Pension Plan disability benefits should be considered an injury related benefit.

Decision

February 25, 1970 claim

That the effective date for the worker’s permanent partial disability award had been correctly established as June 15, 2005.

October 3, 1985 claim

That the worker’s osteoarthritic condition is not related to the October 3, 1985 compensable injury;

That the worker is not entitled to temporary total disability and medical aid benefits in relation to the October 3, 1985 compensable injury; and

That the worker is not entitled to a permanent partial disability award for cosmetic disfigurement of the left leg/knee.

November 21, 1985 claim

That the worker is not entitled to a permanent partial disability award in relation to the November 21, 1985 right thumb injury.

September 6, 1989 claim

The issue as to whether or not the worker’s sexual dysfunction is related to the September 6, 1989 compensable injury was adjourned sine die at the advocate’s request;

That the worker is not entitled to temporary total disability benefits for the period May 14, 1990 to November 12, 1995.

October 31, 1989 claim

The issue as to whether or not the worker’s sexual dysfunction is related to the October 31, 1989 compensable injury was adjourned sine die at the advocate’s request;

That the worker is not entitled to temporary total disability benefits for the period May 14, 1990 to November 12, 1995;

That the worker’s cardiac permanent partial disability award should be reduced from 29% to 14.5% and

That 25% of the worker’s Canada Pension Plan disability benefits should be considered an injury related benefit.

Decision: Unanimous

Background

February 25, 1970 claim:

The worker suffered injuries to his right third and fourth fingers in a work related accident on February 25, 1970. The claim for compensation was accepted based on the diagnosis of an avulsion type injury to the third and fourth digits.

On April 17, 1970, the treating physician reported that the worker had thickening or swelling of the PIP joint of the ring finger with very little tenderness. Range of motion was considered to be full.

On June 15, 2005, a WCB impairment awards medical advisor examined the worker for the purposes of establishing a Permanent Partial Disability (“PPD”) award in relation to his ring and middle fingers. Following the assessment, the worker was advised by the WCB that he was entitled to a 0.5% PPD award effective June 15, 2005. The worker’s advocate argued that the PPD award should be effective the date of the worker’s injury and an appeal was filed with Review Office to consider the issue.

On March 27, 2008 Review Office confirmed that June 15, 2005 was the appropriate effective date to implement the worker’s PPD award. In reaching its decision, Review Office indicated the following:

· based on the worker’s date of injury, he was not eligible for consideration of scarring. The only disability that the worker’s PPD rating could be based on was loss of range of motion.

· April 17, 1970 was the last documented examination of the injured fingers prior to the June 15, 2005 exam. There was some thickening or swelling of the PIP joint of the ring finger with very little tenderness and range of motion was full. There was no evidence prior to June 15, 2005 that the worker had any loss of range of motion.

· after considering the June 15, 2005 examination results and the degenerative arthritic process in the worker’s hands and fingers, Review Office felt it was unlikely that the worker had a rateable impairment back to the date of his injury.

· the worker did not provide any evidence to support that his impairment was measured prior to the June 15, 2005 examination. Review Office therefore was unable to confirm the worker’s impairment until June 15, 2005.

On April 7, 2008, the worker’s advocate appealed Review Office’s decision to the Appeal Commission and an oral hearing was requested.

October 3, 1985 claim:

The worker reported injuries to his left knee, leg and right side of his low back on October 3, 1985 when he slipped off a steel beam.

On October 10, 1985, the treating physician reported that the worker had a long scratch along the left tibia and a painful knee. There was a scrape along the front of the leg and under the patella. The knee was reported to have slight swelling. The worker also had some back pain as he twisted with the fall. The diagnosis rendered was housemaid’s knee with laceration. The treatment plan included “Motrin 400” and “will continue at work”. The worker did not experience any time loss due to the October 3, 1985 accident.

Subsequent file records showed that the worker filed separate claims with the WCB for a back injury that occurred in September 1989 and a right knee injury that occurred in October 1989. The WCB accepted responsibility for both claims (Note: the worker also claimed that he injured his left knee in the October 1989 accident but the Appeal Commission ruled in 1992 that no responsibility would be accepted for the worker’s left knee difficulties.

In March 2004, the worker’s advocate prepared a submission referencing the worker’s October 1985 claim as well as the other two claims filed by the worker in 1989. The advocate referred to various medical reports on all three files from the worker’s treating physician and orthopaedic specialists to support that the worker was entitled to temporary total disability benefits for the period May 12, 1990 to November 12, 1995, that the worker’s osteoarthritic knee condition was related to the October 3, 1985 compensable injury and that the worker was entitled to a Permanent Partial Disability (“PPD”) award for cosmetic disfigurement of his left leg/knee.

On May 26, 2005, a WCB case manager issued a decision to the worker stating that he was unable to establish a relationship between the worker’s arthritic left knee condition and the workplace injury of October 1985. The worker was advised that based on this decision, he was not entitled to wage loss benefits or medical aid treatment related to his left knee. The case manager’s decision was based on the following findings:

· the diagnosis of housemaid’s knee was not the result of a specific incident and it contradicted the worker’s contention that he had no left knee problems prior to the 1985 injury.

· the worker’s physician testified at the Appeal Panel hearing that the worker’s left knee problems were of recent origin (“cartilage tear was traumatic and new”). While he discussed degenerative problems, the discussion alone did not lead to the conclusion that the worker’s degenerative problems arose from the 1985 injury.

On June 15, 2005, the worker was seen by a WCB impairment awards medical advisor to determine whether he was entitled to a PPD award for scarring in relation to his left leg and knee due to the October 3, 1985 compensable injury. Following the assessment, the medical advisor indicated “…there is no scarring resulting from the abrasions sustained at the injury of October 3, 1985 and therefore there is no PPI for cosmetic loss related to that injury. The total recommended PPI would therefore be 0.0%.”

On April 17, 2008, the case was considered by Review Office based on an appeal submission by the worker’s advocate. Review Office determined that there was no evidence of an osteoarthritic condition having a relationship to the worker’s injury of October 3, 1985, that the claim did not qualify for the implementation of a cosmetic PPD award and that there was no wage loss benefits or coverage for medical treatment for the worker’s left knee condition. Review Office agreed with the WCB case manager that the file evidence did not establish a relationship between the worker’s osteoarthritis condition and the October 3, 1985 accident. The worker did not claim time loss at the time of his 1985 accident and on May 15, 2005, the worker indicated that he was not claiming any time loss in relation to this claim but was claiming a PPD cosmetic award for leg scarring which he felt was evident due to the accident. Review Office also found no evidence to refute the WCB medical advisor’s opinion of June 15, 2005 that there was no scarring of the leg resulting from the abrasions the worker sustained on October 3, 1985 and therefore he was not entitled to a cosmetic award. On June 7, 2008, the worker’s advocate appealed Review Office’s decision to the Appeal Commission and an oral hearing was requested.

November 21, 1985 claim:

On November 21, 1985, the worker injured his right thumb when he slipped while going down some stairs. He attended a hospital facility for treatment and a 1 cm laceration was diagnosed on the dorsal aspect of his left thumb.

On June 15, 2005, the worker was examined by a WCB impairment awards medical advisor to establish whether or not he was entitled to a PPD award in relation to his right thumb injury. The medical advisor’s examination notes were outlined as follows:

“The claimant was noted to have a faint scar, 1cm long, on the dorsal aspect of the right thumb, metacarpophalangeal area. This laceration is well healed and well blended and appears to be in a skin crease. When standing 1 meter away, this scar could not be seen. Photographs of the scar were taken. The claimant insisted that the photograph being taken 1 meter away from the scar and he was accommodated by carefully measuring 1 meter from his thumb to the camera and a photograph taken. A second photograph was taken as a close up.

Based on my observation today, there does not appear to be a rateable scar for cosmetic purposes as it relates to the incident of November 21, 1985. The scar could not be seen when standing 1 meter away from the patient.

The recommended PPI for cosmetic loss for this injury is therefore 0.0%.”

On July 6, 2005, the worker was advised that he was not entitled to a cosmetic PPD award for his right thumb as the scar was not visible from a distance of one meter.

On July 14, 2006, a WCB physiotherapy consultant and a WCB senior medical advisor reviewed photographs of the worker’s right thumb that were taken one meter away and one from closer up on June 15, 2005. Both were of the view that there was no medical indication for reconsideration of the medical advisor’s June 15, 2005 opinion that there was no cosmetic disfigurement.

The case was considered by Review Office on April 17, 2008 based on an appeal submission by the worker’s advocate. Review Office confirmed that the worker was not entitled to a PPD award for cosmetic impairment (scarring). In reaching its decision, Review Office gave weight to the June 2005 examination results and the opinion of three WCB healthcare professionals who opined that there was no rateable scarring of the thumb. It therefore concluded that the worker did not have a rateable impairment and was not entitled to a PPD award. On June 7, 2008, the worker’s advocate appealed Review Office’s decision to the Appeal Commission and an oral hearing was requested.

September 6, 1989 claim:

The worker injured his mid back region on September 6, 1989 when he slipped on loose gravel. When seen for medical treatment on September 15, 1989 the diagnosis rendered by the treating physician was a muscle strain and pre-existing arthritis. The claim for compensation was accepted and the worker received time loss benefits related to the September 15, 1989 medical appointment. On September 25, 1989, the treating physician reported that the worker’s back pain was controlled by medication and that he continued to work.

The next medical report from the treating physician is dated November 13, 1996. He reported that the worker awoke at 3 a.m. with severe pain in his back, radiating into his right leg. The same physician submitted reports to the WCB between August 1997 and April 4, 2004 pertaining to the worker’s knees. In a report dated March 23, 1998, the physician indicated that the worker’s back pain was aggravated by his knee conditions.

On February 14, 2007, a WCB director confirmed to the worker that the WCB was unable to relate the worker’s osteoarthritis or sexual dysfunction to either his 1989 right knee claim or the 1989 back claim which was soft tissue in nature. The worker was informed that no change would be made to earlier decisions that he was not entitled to wage loss benefits for the period May 14, 1990 to November 12, 1995. On January 11, 2008 and March 10, 2008, the worker’s advocate appealed these decisions to Review Office.

On April 3, 2008, Review Office confirmed that the worker was not entitled to wage loss benefits for the period May 14, 1990 to November 12, 1995 inclusive. Review Office noted that the medical evidence on September 6, 1989 suggested the diagnosis was a muscular strain. The diagnosis was supported by the fact that the worker continued working and did not seek medical treatment until nine days after the at-work accident. After considering the evidence referenced by the worker’s advocate, Review Office found no reasonable connection between the worker’s osteoarthritis and the back strain that he incurred on September 6, 1989.

In a further decision dated April 30, 2008, Review Office determined that there was no medical evidence on file to support a contention that the worker’s sexual dysfunction was related to his September 6, 1989 low back muscle strain. Upon reviewing the medical evidence on file, Review Office indicated that the three medical reports from 1989 do not provide any evidence to suggest that the worker incurred anything other than a strained muscle from the September 6, 1989 work accident. Review Office found no medical evidence to support the advocate’s contention that a causal relationship existed between the sexual dysfunction and the lumbar spine claim. On June 17, 2008, the worker’s advocate appealed Review Office’s decisions of April 3, 2008 and April 30, 2008 to the Appeal Commission and an oral hearing was requested.

On December 5, 2008, the worker’s advocate provided Review Office with additional information (i.e. Manitoba Health information from 1984 to 2007, sworn statements, various medical reports, etc.) to support the position that the worker was entitled to wage loss benefits for the period May 14, 1990 to November 12, 1995 in relation to the September 6, 1989 back injury and that the worker’s osteoarthritis was directly related to his compensable injuries.

On January 5, 2009, Review Office stated that it found insufficient evidence to support the worker’s position that he was entitled to time loss from work for the period May 14, 1990 to November 12, 1995 inclusive. After referencing all information provided by the worker’s advocate, Review Office indicated that there was no reasonable connection between the worker’s osteoarthritic condition and his back strain. The worker’s advocate disagreed with Review Office’s decision and an oral hearing was requested to consider the matter.

October 31, 1989 claim:

On October 31, 1989, the worker suffered a compensable injury to his right knee from a work related accident. He was later diagnosed with a right knee medial meniscus tear and surgery to repair the tear was performed. On May 14, 1990, the attending physician reported that the worker could return to work on May 14, 1990.

In October 1990, an orthopaedic specialist reported that the worker sustained a medial meniscus tear of his left knee which could have occurred at the time of the October 1989 accident. He noted that x-rays showed narrowing of the medial joint compartment with osteoarthritic changes. In November 1990, the worker had surgery to his left knee. On January 31, 1991, the WCB denied responsibility for the worker’s left knee difficulties as being related to the October 1989 claim. This decision to deny responsibility for the worker’s left knee difficulties was subsequently upheld by Review Office and the Appeal Commission.

In October, 1991, the worker was involved in a motor vehicle accident from which he suffered a whiplash injury. In a report dated October 16, 1991, an orthopedic surgeon reported that the worker had multiple problems with degenerative arthritis of the cervical spine and lumbar spine which may or may not be related to the motor vehicle accident. He also noted that the worker had degenerative changes in both knees with medial meniscal tears, but that both knees were functioning reasonably well.

During the period September 1992 to November 1995, there was minimal contact between the WCB and the worker. By letter dated November 13, 1995, the worker wrote to the WCB and requested that his claim file be re-opened “due to further problems with injury to right knee.” The worker’s complaints of right knee problems were investigated by the WCB, and ultimately wage loss benefits were re-instated retroactively to November 13, 1995.

In a decision dated September 12, 2003, the WCB advised the worker and his advocate that consideration was given to whether there should be an extension of wage loss benefits between May 14, 1990 and November 12, 1995, but that the extension would be denied as there was no basis upon which to pay such benefits. The evidence did not indicate that the worker was unable to work as a result of his compensable right knee injury.

On May 7, 2004, Review Office reconsidered the September 12, 2003 decision that there was no entitlement to wage loss benefits from May 14, 1990 to November 12, 1995. Review Office concluded that the wage loss the worker incurred during the period in question was not a result of the right knee injury of October 31, 1989.

The decision that the worker was not entitled to WCB benefits from May 14, 1990 to November 12, 1995 on account of his compensable injury of October 31, 1989 was reconsidered by Review Office on October 11, 2007 and again on February 7, 2008. In both cases, Review Office was unable to identify any new and material evidence to change the decision that the worker was not entitled to further benefits for the period.

In February 2007, the worker was admitted to a local hospital facility and was diagnosed with a gastrointestinal bleed resulting in a heart attack. All relevant medical information was reviewed in this regard and a WCB medical advisor determined that there was a cause and effect relationship between the medications taken by the worker for his right knee injury and his subsequent heart attack. The worker was later awarded a PPD award for his compensable cardiac condition which was rated at 29%. As the worker had a major pre-existing condition, the 29% rating was reduced by 50%, to 14.5%. The worker’s advocate disagreed with the December 2, 2008 decision by primary adjudication and an appeal was filed with Review Office. The advocate contended that the PPD rating should not be reduced as the worker’s pre-existing heart condition was never an issue and the worker was asymptomatic prior to the February 12, 2007 myocardial infarction (MI). He felt that the drugs taken by the worker in relation to his compensable injuries since 1985 caused the worker to suffer 3 heart attacks and the subsequent need to implant a pacemaker.

On January 8, 2009, Review Office (Order No. 020/2009) confirmed that the worker’s cardiac PPD should be reduced from 29% to 14.5%. Review Office noted that the medical information on file was reviewed by the WCB internal medicine consultant who suggested that the PPD rating for the worker’s heart condition was 29% and that this was confirmed by a WCB senior medical advisor who had reviewed the file information. Review Office referred to the following evidence in its decision to support that the worker had a major pre-existing condition:

“The worker had a diagnosis of diverticular disease of the colon, which may become symptomatic with the occurrence of spontaneous bleeding. This condition is a non-compensable pre-existing condition that may possibly have been the cause of the initial onset of GI bleed. However, in about 75% of cases, the bleeding caused by this condition stops by itself. The worker’s persistent bleeding was determined to be caused by the anti-platelet effect of aspirin in the medication 282MEP that was considered related to the worker’s right knee injury of October 3, 1989. The heavy blood loss resulted in a drop in the worker’s blood pressure causing a thrombus resulting in the blockage leading to infarction.

The worker was shown to have a pre-existing coronary artery disease confirmed by angiogram, with occlusion (closure) of the right coronary artery and 90% stenosis (narrowing) in the mid-left anterior descending branch of the left coronary artery. There was also minor narrowing in the mid-left main and diffuse lesion through the left anterior descending branch of the left coronary artery. These conditions, although asymptomatic, existed prior to the worker’s MI, and were therefore, not related to the worker’s compensable claim. This narrowing of the passageways in the arteries contributed to the blockage resulting from the compensable thrombus.”

Review Office, after considering all the evidence, confirmed that the pre-existing conditions contributed to a major degree in the MI and resulting cardiac PPD and will be assigned a rating equivalent to 50% of the total combined impairment rating. The cardiac PPD should have been reduced from 29% to 14.5%. On January 17, 2009, the worker’s advocate appealed this decision to the Appeal Commission and an oral hearing was requested.

File information revealed that the worker was receiving WCB wage loss benefits for his right knee injury and also receiving Canada Pension Plan (“CPP”) disability benefits which are in part due to his right knee condition.

On December 18, 2007, the worker was advised of the following information by a WCB sector manager:

“The initial CPP application, and the CPP decision to accept benefits, places significant weight on your back condition and left knee condition. As these are not related to your workplace injury, I have determined 100% of the monthly CPP disability benefits should not have been used as a collateral benefit.

The medical evidence submitted by the [orthopaedic specialist] and [orthopaedic specialist] as well as the CPP conclusion to accept benefits, also includes the compensable right knee condition. As the right knee condition was one factor in awarding CPP Disability benefits, I have determined 25% of the monthly CPP Disability benefit should be deducted as it relates to the entire body (e.g. lower half of the body = 50% of body, 2 legs each equal 25%).

CPP Disability benefits and the WCB Impairment awards are two separate and independent entitlements and are not linked to one another nor are they evaluated and/or decisions made using the same parameters. Therefore, I am unable to use the logic suggested in applying the same percentage as awarded for your Permanent Partial Disability award (16% as of 2006) to the portion of the monthly CPP Disability benefit used as collateral benefits.”

On December 18, 2008, the worker’s advocate argued that:

“The claimant receives CPP Total Disability. The WCB has chose to retain 25% of the pension toward the compensable right knee which is permanent disabled. However, the PPI rating applied by WCB Healthcare for the period 2000 onward ranges between 7.5% to 11%. Therefore, the WCB should reimburse the claimant the difference between 25% and 11%.”

In a decision dated January 8, 2009 (Order No. 014/2009), Review Office determined that 25% of the worker’s Canada Pension Plan Disability benefits should be considered an injury related benefit. Review Office stated that the worker’s advocate requested that the percentage of the CPP disability benefits taken into account mirror the worker’s PPD rating for his right knee (currently 16%). Review Office “does not consider doing so to be a valid approach. Such ratings are “not related to loss of earning capacity nor [are they] … a proxy for loss of earning capacity” (Board Policy 44.90.10 Permanent Impairment Rating Schedule). CPP disability benefits are directly related to an individual’s ability to earn. Review Office can see no reason for changing the 25% figure chosen by the sector manager. It follows that the worker’s request for reconsideration is denied.” The worker’s advocate disagreed with the decision made by Review Office and an oral hearing was arranged.

Reasons

We are not able to accept the arguments put forward on behalf of the worker. In our opinion, the permanent impairment rating schedule used by the WCB to calculate PPI awards cannot be used interchangeably to calculate a CPP deduction from wage loss benefits. Although both calculations use percentages, the PPI rating is designed to measure the degree of permanent physical impairment of body function following an injury. The CPP deduction percentage, however, is meant to reflect the degree to which the compensable injury contributes to the worker’s total disability.

The WCB does not have a policy to deal with how a CPP deduction percentage should be determined. The adjudicator reasoned that the cause of the worker’s total disability was 50% attributable to his back condition, and 50% attributable to his knees. As only the right knee was accepted as compensable, only half of the 50% attributable to the knees should be deducted (ie. 25%). While the panel agrees that this was determined by the WCB on an “ad hoc” basis, we nevertheless feel that it is logical and it reasonably reflects the proportion of the worker’s total disability which should be related to the worker’s compensable right knee injury.

The panel therefore finds that 25% of the worker’s Canada Pension Plan disability benefit should be considered an injury related benefit.

The worker’s appeal is dismissed.

Panel Members

L. Choy, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 10th day of November, 2009