Decision #55/10 - Type: Workers Compensation
Preamble
The worker is appealing a decision made by Review Office of the Workers Compensation Board (“WCB”) which confirmed the method used by the WCB to calculate his 5% permanent partial disability rating related to his left leg deep-vein thrombosis. The worker is of the view that the 5% PPD rating did not accurately reflect the WCB Impairment Rating Schedule nor was there a need to move to the American Medical Association guidelines. A file review was held on June 14, 2010 to consider the matter.Issue
Whether or not the worker’s permanent partial disability rating has been properly determined.Decision
That the worker’s permanent partial disability rating has been properly determined.Decision: Unanimous
Background
The worker sustained a work related injury to his left knee on June 4, 1987. His claim for compensation was accepted and benefits were paid to the worker. On September 26, 2006, the worker underwent surgery to repair a torn anterior cruciate ligament and left lateral meniscus.
On October 5, 2006, the worker was seen at a hospital emergency facility complaining of left calf pain since the date of his September surgery. The diagnosis rendered was left calf deep-vein thrombosis (“DVT”).
A WCB senior medical advisor reviewed the file information on October 29, 2008. He recommended that the worker be assessed to clarify whether there was a permanent sequelae to the left calf DVT. The senior medical advisor further stated, “The WCB Impairment Manual cites a 10% PPI for deep thrombosis involving the thigh and leg. In so far as [the worker’s] DVT was isolated to his left leg that is below the popliteal level, with no involvement of the thigh, the rateable impairment cited in the WCB Impairment Manual for DVT does not apply.”
The worker was assessed by a WCB medical advisor on November 14, 2007 for the purposes of establishing a permanent partial disability (“PPD”) in relation to his left calf DVT. The medical advisor noted that the worker’s thrombosis or clot was confined to his left leg below the knee. There was no DVT in his left thigh above the knee. The medical advisor concluded that the worker had a total PPD rating of 5% (4% for left leg DVT and 1% for cosmetic), based on the American Medical Association guidelines for the residual impairment of the left lower leg venous function associated with the calf DVT. On December 3, 2007, the WCB advised the worker that he was entitled to a 5% PPD rating.
In a submission to Review Office dated February 27, 2008, the worker provided rationale to support his view that his case met the criteria of WCB policy 44.90.10 as opposed to the “non-legislated American Medical Association Guidelines.”
Prior to considering the worker’s appeal, Review Office referred the file to the WCB senior medical advisor referencing the worker’s letter of February 27, 2008. In a memo to Review Office dated April 7, 2008, the senior medical advisor summarized that “…the current practice of WCB Healthcare is to apply the 10% PPI for DVT of the lower extremity only if the DVT involves both the thigh and leg; and that for a DVT involving either only the thigh or only the leg, an unscheduled PPI can be considered using the AMA Guides.”
On April 10, 2008, Review Office stated,
“…the worker states the determination and use of the word “and” in the statement in the policy, “deep-vein thrombosis of thigh and leg” has been grammatically and incorrectly applied. He is of the view having the deep-vein thrombosis in the lower leg meets the requirements of the policy; that the 10% rating under the WCB guidelines should be awarded; and that there is no basis on which to assess the award using the American Medical Association guidelines.
The Review Office differs from the worker’s view. While the policy is silent on the criteria used in arriving at the 10% rating, we are of the opinion the statement is clear and unequivocal. If the intent was to grant a 10% rating for either site, then the policy statement more appropriately would have read “deep-vein thrombosis of thigh OR leg”.
Review Office stated that it concurred with the methodology used by the WCB medical advisor and that the 5% rating accurately and fairly reflected the degree of residual permanent impairment suffered by the worker as a result of his injuries. On November 17, 2009, the worker appealed Review Office’s decision to the Appeal Commission and a file review was arranged.
Reasons
Applicable Legislation and Policy
As the worker’s claim was made in 1987, his benefits are assessed under The Workers Compensation Act (the “Act”) as it existed at that time. Payment of compensation for permanent disability was provided for under subsection 32(1) of the Act, which read as follows:
Compensation for permanent partial disability
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 per cent of his average earnings.
For the purpose of calculating a PPD and subsequently a permanent impairment, the WCB has made Policy 44.90.10.02 which incorporates a Permanent Impairment Rating Schedule as Appendix A. A version of this schedule was in effect at the time of the injury and the development of the permanent impairment. The wording of the portion of the schedule dealing with DVT has not changed.
Worker’s Position
The worker outlined his position in a letter dated November 11, 2009. He wrote that “I wish to appeal the statement that the criteria for deep vein thrombosis as determined by the current WCB Impairment Rating Schedule (VASCULAR IMPAIRMENTS, page 15) has not been met.”
The worker referred to his initial letter of appeal dated February 27, 2008 in support of his appeal. In this letter the worker stated, “I feel that the rating provided in the WCB Policy Manual, Permanent Impairment Rating Schedule is clear and that his determination and use of “and” in the statement in Policy “Deep vein thrombosis of thigh and leg” has been incorrectly applied.” The letter notes that the word “and” should be read as “in addition to,” “as well as,” “besides,” “also.”
Analysis
The issue before the panel is whether the worker’s permanent partial disability rating has been properly determined.
Page 15 of the Permanent Impairment Rating schedule provides:
“VASCULAR Impairments:
Deep thrombosis of thigh and leg……………………………………..10.0%”
The worker has interpreted the schedule as providing a 10% impairment rating for DVT of the thigh or leg. The WCB, on the other hand, has interpreted the schedule as requiring that the DVT involve both the thigh and the leg (calf).
The panel has reviewed the Schedule and notes that generally where “and” is used in the Schedule, both enumerated elements are required. For example ratings for amputation affecting the hand (page 7) “and” is used to indicate the amputations which are required for the specified rating. The panel notes that in statutory contexts, “and” is usually joint rather than joint and several.
In the case of the rating for vascular impairments the Schedule states deep thrombosis of thigh and leg. The panel finds that both conditions must be present to qualify for this rating. The panel finds that the Schedule does not apply to the worker’s condition as he has been diagnosed with DVT of the left calf only.
Given that DVT of the calf is not covered under the schedule, the panel finds that it was appropriate for the WCB to apply the AMA Guide. This is specifically authorized under Paragraph 3 of Policy 44.90.10.
“3. In the event that the Healthcare Management Services Department feels that strict adherence would create an injustice, or if it is felt that an impairment exists that is not covered by the schedule, Healthcare Management Services may deem it just and fair to establish an impairment rating that is not specifically covered by the schedule. In such cases they may use information other than the schedule such as the American Medical Association Guides to the Evaluation of Permanent Impairment established for a similar purpose…” (emphasis added).
The panel also finds that the WCB has properly applied the AMA Guide and that the worker’s permanent partial disability rating of 5% has been properly determined.
The appeal is dismissed.
Panel Members
A. Scramstad, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
Signed at Winnipeg this 24th day of June, 2010