Decision #144/12 - Type: Workers Compensation
Preamble
The worker is appealing the decision made by Review Office of the Workers Compensation Board ("WCB") which determined that he was not entitled to additional benefits with respect to his permanent partial disability rating. A file review was held on November 15, 2012 to consider the matter.Issue
Whether the worker is entitled to further benefits in relation to his permanent partial disability award.Decision
The worker is not entitled to further benefits in relation to his permanent partial disability award.Decision: Unanimous
Background
On September 13, 1979, the worker was lifting hay bales onto the back of a pick-up truck when he experienced chest pain. On the same day, the worker was taken to a local hospital and was diagnosed with an acute myocardial infarct. His claim for compensation was accepted by the WCB as being related to his work. A Permanent Partial Disability ("PPD") award of 50% was provided on July 22, 1982.
On December 1, 1994, the worker accepted a lump sum settlement ("LLS") of his monthly PPD pension in the amount of $82,220.22. On November 8, 1994, the worker signed a letter advising the WCB that he understood that the acceptance of this amount was a settlement of his claim for the impairment from the September 13, 1979 compensable injury and was considered equivalent to the monthly pension he would have otherwise been entitled.
On December 1, 2011, the worker's sister called the WCB to inquire whether or not the worker would be entitled to further PPD benefits, as the worker lived past the age used to calculate his LSS for his PPD pension.
In a decision dated December 8, 2011, the worker was advised that there was no entitlement to further PPD benefits. The adjudicator referred to WCB Policy No. 44.100.10, Lump Sum Communications, in her decision. She noted that the worker was aware that the LSS, prior to him agreeing to accept it, was based on the average life span of a male from his generation at the time that the LSS was calculated. It was determined that there was no further entitlement to PPD benefits.
On December 19, 2011, the worker appealed the decision which was referred to Rehabilitation and Compensation Services. The worker had requested reconsideration of the case manager’s decision but he also asked for a reassessment of his PPD rating as he felt that there was deterioration in his condition related to his compensable injury. This was further investigated and reviewed.
On January 9, 2012, a WCB review officer spoke with the worker by telephone. The worker noted that his medical condition had deteriorated since his compensable injury and he was taking heart medication and blood thinners. As well, the worker advised that he had heart surgery in 1995 which was never reported to the WCB. The review officer informed the worker that his case would be referred back to the adjudicator to follow-up on his heart health history from 1995 onwards.
The WCB obtained up-dated medical information from the worker's family physician along with hospital records pertaining to the worker's heart health history. On April 11, 2012, a WCB medical advisor reviewed the new information and noted:
[…] [the worker] sustained a second myocardial infarction in 1992, ultimately underwent coronary angiography which revealed quadruple vessel disease and he underwent quadruple bypass surgery in December 1992.
The operative report described the angiography findings as complete occlusion of the right coronary artery with distal stenosis at the crux, 90% stenosis of the obtuse marginal branch of the circumflex, at least 60% stenosis of the proximal left anterior descending in 3 different locations and at least 60-70% stenosis the second diagonal branch.
It is likely that the complete occlusion of the right coronary artery was the culprit vessel for the original myocardial infarction in 1979 and the remaining findings are a result of the underlying pre-existing atherosclerotic coronary artery disease.
On balance, [the worker] sustained an inferior posterior myocardial infarction, likely secondary to occlusion of the mid right coronary artery in 1979 with good recovery as evidenced by his stress test in 1980.
[The worker's] subsequent cardiac problems and infarctions are as a result of his pre-existing coronary artery disease and not related compensable injury.
There is, therefore, no need to reassess his PPI.
On May 28, 2012, a second WCB medical advisor reviewed the medical reports on the worker's file post the September 13, 1979 myocardial infarction. The medical advisor stated that:
[…] the initial MI [myocardial infarction] in September 1979 likely involved the RCA [right coronary artery] and good recovery from that event had been previously reported. His subsequent coronary artery difficulties are secondary to multivessel coronary artery disease and are not related to the compensable injury of September 1979.
On May 29, 2012, the worker was advised by way of letter that his claim had been reviewed and that there was no basis for a reassessment of his impairment award related to the 1979 compensable injury. The adjudicator noted that the initial myocardial infarction he suffered on September 13, 1979 involved the right coronary artery and good recovery from that event had been previously reported by 1980. It was felt that his subsequent coronary artery difficulties were secondary to multivessel coronary artery disease and was not related to the compensable injury of September 1979. The adjudicator also advised the worker that the WCB was unable to change the decision made on December 8, 2011 that there was no further entitlement to PPD benefits.
On June 13, 2012, the worker appealed the May 29, 2012 decision to Review Office. The worker noted that when he received his LSS, there was no one to explain or guide him. The worker was of the view that he was entitled to further benefits as he lived longer than the life span used to calculate his lump sum settlement for his PPD.
On June 28, 2012, the employer's representative submitted to Review Office that the adjudicative decision made on May 29, 2012 should be upheld based on the opinions expressed by the WCB medical advisors dated May 24, 2012 and May 28, 2012.
Review Office Decision
In a decision dated August 21, 2012, Review Office confirmed that there was no further entitlement to benefits in relation to the worker's PPD. Review Office noted that a LSS was calculated in October 1994 based on the established interest discount rate and the mortality assumptions at that time. The file information showed that the worker signed a Release Form - Lump sum Settlement dated November 8, 1994 which stated, in part:
I understand that the acceptance of this amount is in settlement of my claim for present impairment resulting from the aforementioned accident and is the equivalent of the monthly pension to which I would otherwise be entitled.
Review Office stated that it did not find any provision in the Act or any Board Policies that allow for the recalculation or the payment of additional PPD benefits in relation to the worker's argument of living beyond the "normal life span" used in calculating his LSS. Review Office also stated that it did not find that a reassessment of the worker's PPD rating was warranted based on the opinions expressed by the two WCB medical advisors.
On August 30, 2012, the worker appealed Review Office's decision to the Appeal Commission and a hearing was arranged.
Reasons
In order for the worker’s appeal to be successful, this panel must accept on a balance of probabilities that the worker is entitled to an increase in benefits in relation to his PPD. For the foregoing reasons, this panel is unable to make this finding.
The following subsections of The Workers Compensation Act (the “Act”) (as they apply to accidents occurring prior to 1992) are relevant:
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.
Lump sum settlement
32(3) Where the impairment of the earning capacity of a workman does not exceed ten percent of his earning capacity, instead of the weekly payment the board shall, upon request of the workman, direct that a lump sum calculated to be the equivalent of the weekly payment shall be paid to the workman in settlement of his claim; but the settlement is final only in respect of the condition of the workman attributable to the accident as that condition was known at the time payment is made.
In addition, pursuant to subsection 60.8(6) of the Act, this panel is bound by the policies of the Board of Directors of the WCB. Board Policy 44.100 Interest Rates provides that the WCB establishes assumptions regarding future interest rates and mortality in order to calculate the present value of future payments to a worker for the purpose of a lump sum settlement under the Act.
Further, Board Policy 44.100.10 Lump Sum Commutations outlines the circumstances under which the WCB will grant a worker’s request to commute a periodic payment coming from a permanent impairment to a lump sum payment. The commuted value of a pension approximates equal value to the payments that an individual would receive is they live a “normal” life span as forecasted by the Board based on mortality rates.
Analysis
The worker opted for a LSS, which was calculated in October 1994 based on the established interest discount rate and the mortality assumptions at that time. In addition, the worker signed a Release Form dated November 8, 1994 which states in part:
I understand that the acceptance of this amount is in settlement of my claim for present impairment resulting from the aforementioned accident and is the equivalent of the monthly pension to which I would otherwise be entitled.
Regardless of the fact that the worker requested and received a LSS on his impairment award in November 1994 (and signed a Release Form in that regard), this would not prevent reassessment if his compensable condition had actually worsened since he received his LSS.
All of the worker’s relevant medical information from 1992 to the present was obtained by the WCB and reviewed by two separate WCB medical advisors. The opinions of the medical advisors, conclude that the worker’s subsequent cardiac problems and infarctions are as a result of his pre-existing artery disease and not related to the worker’s compensable injury. As well, the worker’s subsequent coronary artery difficulties are secondary to multivessel coronary artery disease and are not related to the compensable injury that occurred on September 13, 1979.
In conclusion, this panel accepts the opinions of the two WCB medical advisors and finds that, based on the evidence, the worker is not entitled to further benefits in relations to his PPD. As well, this panel is unable to identify any provision of the Act or Board Policies that would enable it to recalculate or provide for additional PPD benefits in relation to the worker’s position that he has lived beyond the “normal life span” used in calculating the lump sum settlement.
The worker’s appeal is therefore denied.
Panel Members
C. Monnin, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
C. Monnin - Presiding Officer
Signed at Winnipeg this 27th day of December, 2012