The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

This appeal deals with decisions made by the Workers Compensation Board ("WCB") in regards to the worker's entitlement to wage loss benefits and the calculation of his permanent partial impairment rating related to a compensable right ankle injury which occurred in 2000. A file review was held on August 11, 2011 to consider the matter.

Issue

Whether or not the worker is entitled to wage loss benefits for the period June 24, 2010 to December 21, 2010 inclusive; and

Whether or not the worker's permanent partial impairment award has been correctly calculated; and

Whether or not the financial value of the permanent partial impairment award is correct.

Decision

That the worker is entitled to wage loss benefits from October 28, 2010 to December 21, 2010; and

That the worker's permanent partial impairment award has been correctly calculated; and

That the financial value of the permanent partial impairment award is correct.

Decision: Unanimous

Background

The worker suffered a trimalleolar fracture of the right ankle and lateral dislocation to the talus of the foot in a work-related accident on May 30, 2000. He was approved for compensation benefits and services while receiving treatment for his injuries. He received wage loss benefits until July 31, 2002.

In May 2003, the worker had relocated outside of Manitoba and therefore an "Out-of-Province Independent Medical Examination" was carried out to determine whether the worker was entitled to a Permanent Partial Impairment (PPI) rating in relation to his right ankle condition. Following review of the examination findings by a WCB medical advisor on July 3, 2003, the worker was awarded a PPI rating of 11% for his right ankle which consisted of a 1.0% cosmetic rating and 9.7% (rounded to 10%) rating for loss of range of motion of the right ankle.

On February 27, 2004, Review Office considered an appeal from the worker in regard to his 11% PPI rating. Following a review of the WCB's Permanent Impairment Rating Schedule and discussion with a WCB senior medical advisor, Review Office determined that the worker's PPI award should be increased to 12% (10% for loss in range of motion and a 2% cosmetic rating). As a result, the worker received a total award of $3,480 for his 12% PPI.

On September 23, 2009, the worker wrote to the WCB concerning a number of issues related to his claim. In particular, the worker requested wage loss benefits commencing January 14, 2010 on the basis that he would not be able to do the type of work he previously performed because of his right ankle injury. The worker advised the WCB that he was currently institutionalized but he would be released in three and a half month's time. After his release, he would see a physician.

On September 29, 2009, the WCB responded to the worker's September 23, 2009 letter advising that prior to any decisions being made regarding the worker's entitlement to wage loss benefits, the WCB required a medical update on the status of his ankle. He was advised to see a physician upon his release so that the WCB could assess the current condition of his right ankle.

On April 9, 2010, a decision was sent to the worker which indicated that the WCB would not be covering wage loss for the period January 14 and March 10, 2010, as the worker failed to see a physician during this time.

On July 7, 2010, the worker advised the WCB that he was no longer institutionalized and was looking for wage loss benefits. The worker also asked whether he could resume his previous vocational rehabilitation plan as he had to discontinue classes in 2002 due to surgery performed on his ankle.

By letter dated August 17, 2010, the worker was advised "Unfortunately there is nothing the WCB can do until you are assessed by a physician at the WCB in Ottawa regarding your impairment award and the need for restrictions, if any. This is in the midst of being organized…Once we have this information, assuming you have restrictions that prevent a return to pre-accident duties, your file will be referred to our Vocational Rehabilitation Department to determine if you have any further entitlement to benefits and services."

A medical report received from the worker's treating physician dated August 23, 2010 stated the following:

He has right ankle old fracture with multiple surgeries done out of Ontario since 2000, post traumatic stiffness and post surgical stiffness and pain still there - chronic. Needs analgesic and special brace. Currently waiting for orthopaedic surgery consult.

On September 17, 2010, the worker appealed the WCB decision dated April 9, 2010. The worker submitted that he was entitled to wage loss benefits from June 24, 2010 onward as this was the date he was released and was also the date that he started to see a physician for his ankle injury.

On September 23, 2010, a WCB case manager advised the worker that arrangements were being made for him to be examined in October 2010 and following the examination, the WCB would decide on his entitlement to further wage loss benefits.

The worker was seen for a medical assessment on October 28, 2010 at the Workplace Safety and Insurance Board ("WSIB") in Ontario. On December 13, 2010, a WCB physiotherapy consultant reviewed the October report and calculated the PPI rating at 12%. He further noted that as the worker was now living in Winnipeg, an examination at the Manitoba WCB was appropriate to clarify the current passive mobility of the right versus the left ankle.

A WCB sector services manager spoke with the worker on December 10, 2010 in regards to his compensation claim. The manager advised the worker that vocational rehabilitation ("VR") benefits and services were discretionary and he was concerned over the worker's suboptimal participation with WCB VR services in 2002 and his current criminal record. The manager indicated that he was willing to give the worker another chance if he demonstrated his cooperation by attending all VR appointments. He advised the worker that any VR-related wage loss benefits would not start until the worker's first meeting with the VR provider.

On December 22, 2010, the worker was advised by his WCB case manager that wage loss benefits were being reinstated as of that date and that he was not entitled to rehabilitation benefits and services between June 29, 2010 and December 21, 2010. On January 17, 2011, the worker appealed the decision to Review Office.

On February 3, 2011, the worker's ankles were assessed by the WCB physiotherapy consultant. The consultant noted that digital pictures of scarring of the right ankle and hip were taken. He stated that there was no indication to increase the worker's cosmetic PPI rating of 2%. The consultant measured the range of motion of the worker's right ankle compared to the left. He indicated that passive range of motion of the right ankle was 35 degrees and the left was 100 degrees. At the completion of the assessment, the consultant recommended a total PPI of 12%.

On February 9, 2011, the worker was advised by the WCB that there would be no change to his PPI rating of 12%. The worker disagreed with the decision and an appeal was filed with Review Office. The worker felt that his PPI rating should be increased because he wore a brace on his ankle and had more restrictions imposed on his work duties.

In a decision dated February 10, 2011, Review Office outlined the position that the worker was not entitled to wage loss benefits from June 24, 2010 to December 21, 2010 but was entitled to rehabilitation wage loss benefits starting December 22, 2010. Review Office indicated in the decision that it agreed with the reasons for concern outlined by the WCB sector services manager on December 10, 2010 regarding the potential of a successful rehabilitation program. Review Office also confirmed the decision that the worker should get one final chance at a VR plan starting December 22, 2010.

On April 18, 2011, Review Office determined that the PPI rating and the financial amount of the PPI award was correct. Review Office noted that the PPI rating was determined by measuring the passive right ankle mobility in accordance with the WCB impairment rating schedule. There were no provisions in the impairment schedule that would allow for an impairment rating for the wearing of a brace and as such, this would not be a component in determining the worker's PPI rating. Review Office indicated that it accepted the findings of the WCB physiotherapy consultant that the worker's PPI rating was 12%. It also determined that the financial amount of the PPI was correct.

The worker subsequently appealed Review Office's decision to the Appeal Commission and a file review was held on August 11, 2011.

Reasons

Applicable Legislation

The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the Board of Directors. Under subsection 4(1) of the Act, where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid to the worker by the WCB. Subsection 39(2) of the Act provides that the WCB will pay wage loss benefits until such a time as the worker’s loss of earning capacity resulting from the accident ends.

As the accident occurred in May, 2000, the claim is assessed under the Act as it existed at that time. Section 22 of the Act (as it was in 2000) provided as follows:

Practices delaying worker’s recovery
22 Where an injured worker persists in insanitary or injurious practices which tend to imperil or retard his or her recovery, or refuses to submit to such medical or surgical treatment as in the opinion of the board is reasonably essential to promote his or her recovery, or fails in the opinion of the board to mitigate the consequences of the accident, the board may, in its discretion, reduce the compensation of the worker to such sum, if any, as would in its opinion be payable were such practices not persisted in or if the worker had submitted to the treatment or had mitigated the consequences of the accident.

Payment of compensation for an impairment is provided for under subsection 38(1) of the Act, which reads as follows:

Determination of impairment
38(1) The board shall determine the degree of a worker’s impairment expressed as a percentage of total impairment.

The method for determining the amount of the impairment award is set out in subsection 38(2). The version of subsection 38(2) in effect at the time of the worker's accident provides as follows:

Calculation of impairment award
38(2) Where the board determines that a worker has suffered an impairment, the board shall, subject to subsection (3), pay to the worker as a lump sum an impairment award in the following amount, for an impairment that is determined by the board to be

(a) 1% or greater but less than 5%: $580.00;
(b) 5% or greater but less than 10%: $1,160.00;
(c) 10% or greater: $1,160.00 plus $1,160.00 for each full 1% of impairment in excess of 10%.

Subsection 38(4) provides that in determining the amount of an impairment award, the amounts in subsection 38(2) in effect on the day of the accident are to be used.

In accordance with the Act, the Board of Directors enacted WCB Policy 44.90.10.02 Permanent Impairment Rating Schedule (the “Policy”) which provides guidelines on how impairment awards are to be calculated. The Policy states

1. The degree of impairment will be established by the Healthcare Management Services Department of the Workers Compensation Board in accordance with this policy. The degree of impairment established by this Department can only be altered on review and approval by the Executive or Senior Director responsible subject to the normal appeal process.

2. Whenever possible, and reasonable, impairment ratings will be established strictly in accordance with the schedule attached as Appendix A.

For injuries to lower extremities, Appendix A provides as follows:

Loss of Movement/Functions

The impairment rating for partial loss of movement or function resulting from direct injury or related surgical procedures (including patellectomy and his prosthesis) will be proportional to the amount of movement or function that is lost, based on clinical findings, as a percentage of the assigned ratings for complete joint immobility.

Worker’s Position

The worker was self-represented and made a written submission on the appealed issues. In his materials, the worker requested that he be granted wage loss benefits from June 24 to December 21, 2010. He submitted that he was told by the WCB that once his doctor sent a letter saying that he could not go back to work, the worker would get his wage loss benefits back. The worker saw his doctor in early July but wage loss was not reinstated. He was then told that he would be put back on wage loss benefits after he saw a WSIB doctor in Ontario. On October 28, 2010, the WSIB doctor certified that he could not go back to work but it was not until two months later upon his return to Winnipeg on December 22, 2010 that he was put back on wage loss. The worker's submission states: "I would like my wage loss from June 24 but would be satisfied with getting it from Oct 28/10 - Dec 21/10 when I went to see your Dr. in Toronto."

With respect to his PPI award, the worker submitted that his rating and financial award should be higher because the only restriction in place when his PPI of 12% was established was to avoid lifting more than 30 pounds. After he was examined by a WCB physician on February 4, 2011, all of his restrictions were raised to include carrying no more than 10 pounds, no walking on uneven surfaces, avoid use of stairs, no climbing ladders, no walking any distances and no standing for long periods. His restrictions were raised, yet his PPI rating remained the same. The worker felt that he should be awarded more than the amount he was given for his 12% rating.

Analysis

Wage loss benefits

The first issue before the panel is whether or not the worker is entitled to wage loss benefits for the period June 24, 2010 to December 21, 2010, inclusive. The facts of this case are unique in that the injury occurred over ten years ago and the worker was absent from the work force for non-compensable reasons for the last six of those years. Although the evidence would indicate that the worker's ankle injury did not cause him to suffer a loss of earning capacity at the time he left the work force in 2004, by the time he was able to return to employment on June 24, 2010, it is very possible that his condition would have changed. According to the worker, his right ankle condition had become worse over the years and he was no longer able to perform his pre-accident duties as a mover.

On October 28, 2010, the worker was medically assessed at the WSIB in Ontario. At this comprehensive examination, the physician noted a painful right ankle with swelling and reduced range of motion but with no evidence of instability. The worker reported complaints of pain and swelling of the right ankle, which was aggravated by weight bearing. His walking tolerance was reported as a distance of three blocks, at which point the ankle became progressively more painful forcing him to stop. Standing tolerance was given as 10 minutes. Stairs were typically negotiated one at a time and rough terrain was generally avoided. The worker wore an ankle brace on a regular basis to facilitate walking.

The panel is of the view that the October 2010 examination reasonably reflects the worker's general physical status as of June 24, 2010, and in particular, the condition of the worker's right ankle. Based on this examination, the panel accepts that as of June 24, 2010, the worker's compensable right ankle injury prevented him from performing his pre-accident duties as a furniture mover.

There remains, however, the question of whether the worker's entitlement to wage loss benefits as of June 24, 2010 is affected by his co-operation (or lack thereof) with the WCB in administering his benefits. Section 22 of the Act (as it was in 2000) imposes an obligation on workers to mitigate. To the extent that a worker is not fully participating and mitigating the effects of the accident, wage loss benefits may be reduced.

In this case, prior to his removal from the workforce, the worker's cooperation with the WCB, and particularly the VR services, was documented as marginal, if not there at all at times. A note to file states that they were constantly chasing him to maintain regular contact with the WCB and to attend his appointments and school classes.

In September 2009, the worker wrote to the WCB advising that he would be released in January 2010 and asked that wage loss benefits be payable. The WCB responded to the worker's request and clearly indicated that it was the worker's responsibility to make an appointment with a physician so that the WCB could assess the worker's current condition. When released, the worker was told to contact the WCB of Alberta to schedule an appointment to be medically assessed. A contact name and number at the Alberta WCB was provided.

The worker was released January 14, 2010, but was detained again on March 10, 2010. During that 55 day period, he advised he was unable to find a family doctor. He did not contact the Alberta WCB.

On June 24, 2010, the worker was released and transferred to Ontario. On July 7, 2010, the worker spoke with the WCB and advised that he had an appointment with a physician on July 12, 2010. The worker was told to give the physician his claim number so that a report could be obtained. The worker was also advised that he needed to arrange an appointment with the Ontario WSIB for an examination. By letter dated August 17, 2010, the worker was advised that there was nothing the WCB could do until he was assessed by a physician at the WSIB in Ottawa regarding his impairment award and the need for restrictions, if any.

Ultimately, the worker did not attend for a medical examination at the WSIB until October 28, 2010. There is some indication on file that he had been detained again (and therefore removed from the work force) for part of August, 2010.

The panel agrees with the WCB's determination that the worker should have been afforded a final chance at a VR plan after his release. The WCB therefore reinstated the worker's wage loss benefits as of December 22, 2010, which was the date the worker first met with his VR provider. The WCB felt that this was this date represented a demonstration by the worker that he was willing to co-operate with the WCB. The panel does not agree with this date and we find that the worker ought to be entitled to reinstatement of wage loss benefits as of October 28, 2010, which was the date when he finally attended for a medical examination by the WSIB. As early as September, 2009, the worker was advised by the WCB that he would be required to attend for an examination, but this did not occur until October 28, 2010. Following the October 28, 2010 examination, there was some delay in the delivery of a report by the WSIB physician to the WCB (and in turn delayed the scheduling of the first WCB meeting), but we find that as the worker had no control over this delay, he should receive wage loss benefits during this period of time.

We therefore find that the worker is entitled to wage loss benefits for the period October 28, 2010 to December 21, 2010. The worker's appeal on this issue is allowed in part.

Impairment award

The remaining issues before the panel concern whether the worker's PPI award was properly calculated. In order for the worker's appeal to succeed, the panel must find that the terms of the Policy for a PPI award were not properly applied to the worker's particular set of circumstances.

The panel has considered the worker's entitlement to an impairment award for loss of movement/function. Based on the measurements of his ankle range of motion taken February 3, 2011, we are satisfied that the worker's PPI was correctly calculated in accordance with the Act and Policy. We agree with the WCB that 12% is the proper rating for the worker's right ankle impairment. Although functionally, the worker may have more restrictions in 2011 than he did in 2004, the PPI rating is based on measured loss of range of motion, as set out in the Policy. It is not based on functional ability.

The panel has also considered whether the total award of $3,480 correctly reflects the worker's financial entitlement to a PPI award pursuant to subsection 38(2). We find that it does. Subsection 38(2) (as it was in May 2000) outlines a set formula for calculation of impairment awards 1% or greater but less than 30%. We are satisfied that applying the formula to the worker's PPI award of 12% results in an award of $3,480:

10% - $1,160.00
1% - $1,160.00
1% - $1,160.00
12% - $3,480.00

The panel therefore finds that the worker's permanent partial impairment award has been correctly calculated and that the financial value of the permanent impairment award is correct. The worker's appeals on these issues are therefore dismissed.

Panel Members

L. Choy, Presiding Officer
A. Finkel, Commissioner
C. Anderson, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 7th day of October, 2011