Decision #14/13 - Type: Workers Compensation

Preamble

A file review was held on November 29, 2012 to consider the matter.

Issue

Whether or not the worker is entitled to an increase in his permanent partial disability award; and

Whether or not a Medical Review Panel should be convened.

Decision

That the worker is entitled to an increase in his permanent partial disability award to a combined total rating of 37% for bilateral hernia condition and impotency; and

That a Medical Review Panel should not be convened.

Decision: Unanimous

Background

The worker has an accepted claim with the WCB for bilateral hernia conditions that he sustained in a work-related accident on June 21, 1966 from carrying/lifting plywood forms while employed as a construction labourer. Medical information showed that the worker has undergone multiple hernia repair surgeries to both the right and left sides since his original accident.

On June 28, 1996, the worker was seen by a WCB impairment awards medical advisor at the request of the Appeal Commission (the worker was appealing the WCB's decision that he had not incurred a permanent impairment resulting from his injury) to determine whether there was any permanent impairment. Following his assessment of the worker, the medical advisor stated:

The objective presence of a right inguinal hernia would, in my opinion, indicate that the integrity of this claimant's abdominal wall is compromised and that the resultant weakness of its musculature adversely affects expulsive activities like micturition and defecation. If no further surgery is contemplated, such impairment would be permanent; and, while it does not fit into a specific award category contained in the WCB Permanent Impairment Rating Schedule, the latter may permit judgment rating. Such a discretionary assessment could be based on the criteria for Class 2 of Hernias of the Abdominal Wall used by the American Medical Association as defined by the fourth edition of its Guides to the Evaluation of Permanent Impairment on pages 247-248, photocopies of which are appended. An award of 15% may be appropriate.

Under Appeal Commission Decision No. 179/96 dated October 2, 1996, the appeal panel determined the worker was entitled to a 15% PPD as was recommended by the WCB impairment awards medical advisor.

Subsequent file records showed that a request for reconsideration of Appeal Commission Decision No. 179/96 was later made as it was felt the PPD rating of 15% was insufficient based on the nature of the hernia conditions. On April 23, 2007, the request for reconsideration was granted by the Chief Appeal Commissioner and a file review was held at the Appeal Commission on June 14, 2007 to determine whether the worker was entitled to an increase in his PPD award.

Under Appeal Commission Decision No. 103/07, it was determined the worker's PPD rating should be increased to 25%. The appeal panel based its decision on the following opinion expressed by a WCB senior medical advisor dated April 2, 2007:

It is evident that [the worker] has had a recurrent right inguinal hernia despite previous surgeries, with the right hernia now described as not reducible. Although [the worker] had a recurrent left inguinal hernia, there has been no recurrence subsequent to the last surgical repair of October 12, 1984.

With respect to the right sided hernia, [the worker] is determined to have a Class III hernia related impairment, as per page 247 of the AMA Guides, 4th Edition. The rateable impairment of same is between 20% - 30%.

Insofar as [the worker] has not experienced a recurrent inguinal hernia on both sides, it is concluded that he does not qualify for the maximum PPI [sic] of 30%. However given the combination of i) the recurrence of the right inguinal hernia despite multiple surgeries, ii) the presence now of a non-reducible right inguinal hernia, and iii) the effect of the right sided hernia on [the worker’s] functional capacity, as discussed with the WCB Case Manager, a PPI [sic] higher than the lowest Class III rating is recommended. After reviewing this matter with a WCB PPI medical consultant, who is also a General Surgeon…, a mid range Class III hernia related impairment of 25% is suggested.

An opinion has also been requested as to whether there is a cosmetic rating for scarring associated with the previous inguinal surgeries. In response, it is highlighted that the 25% rating cited above, representing an unscheduled rating in the WCB Impairment Manual, includes any associated cosmetic impairment.”

On November 21, 2007, a WCB medical consultant conducted a file review at the request of primary adjudication to determine whether the worker's impotence would qualify for an impairment award. The medical consultant stated:

…as expressed in the November 13, 2007 response to the Health Service Request that on probability [the worker] had impotence secondary to the chronic pain in the right inguinal region as a result of right ilio-inguinal nerve entrapment and the resulting chronic pain disorder. The November 19, 2007, Health Service Request memo indicates Rehabilitation and Compensation Services accepts the recommendation. The impairment rating for impotence is therefore 10% as per the Benefits Administration Manual, page 17, under Reproductive and Urinary System "Direct Trauma or Neurological Damage Resulting in Impotence" (following Urologist report) up to 10%.

Using the Cumulative Values Tables, the medical advisor calculated the worker's combined total PPD rating at 33.00% (10% for impotence and 25% for bilateral recurrent inguinal hernias).

On December 4, 2007, the worker was advised that the WCB accepted responsibility for the diagnosis of impotency which resulted in a maximum impairment rating of 10%. This additional 10% when combined with his previous impairment rating of 25%, resulted in a combined rating of 33%.

On March 5, 2009 a WCB case manager noted to the file that the worker requested a re-assessment of his PPD award as he felt that his hernia condition had worsened.

On April 22, 2009, the worker was seen by a WCB medical consultant at the WCB's healthcare branch for a re-assessment of his PPD award. After noting changes in the worker's condition including persistent protrusion at the right hernia site, limitations in activities of daily living and report of several emergency room visits as a result of symptoms and findings related to his right inguinal hernia, the consultant concluded from the assessment that the worker's PPD rating for his bilateral inguinal hernias should be increased to 30%. The total recommended PPD award was calculated at 37% (10% for impotence and 30% for bilateral recurrent inguinal hernias) based on the Cumulative Values Table.

On May 8, 2009, a WCB senior medical advisor stated: "…I agreed with the final rating of 37%, this including an unscheduled maximum rating (as per the AMA Guides, 5th Edition) of 30% for the inguinal hernias. The latter rating includes any associated local pathoanatomic impairments as well as functional impairments stemming from the inguinal hernias."

In April 2012, the worker requested Review Office to reconsider the decisions made on his claim with respect to the effective dates of his PPD ratings.

On May 29, 2012, a sector services manager requested that Appeal Commission Decision No. 103/07, which earlier had determined that the worker's PPD rating be increased to 25%, be reconsidered in accordance with section 60.10 of The Workers Compensation Act (the "Act").

On June 20, 2012, the Chief Appeal Commissioner directed that the Appeal Commission reconsider Decision 103/07. He found that the WCB medical advisor's recommendation to increase the worker's hernia impairment rating to 30% was new, substantial and material evidence which constituted grounds for granting a reconsideration.

On September 2, 2012, the worker requested that a Medical Review Panel ("MRP") be convened to confirm the severity of his compensable hernia condition. On October 2, 2012, the WCB's Vice-President of Rehabilitation and Compensation Services advised the worker that there was no reason to convene a MRP as the WCB had already acknowledged the severity of his hernia condition. To support this position, the vice-president referred to the April 2009 Healthcare Branch report which determined that the worker's impairment should be rated at 37% PPI for his hernia and associated condition. On October 22, 2012, the worker appealed the decision to Review Office.

On October 25, 2012, Review Office determined that a MRP should not be convened. Review Office stated:

The Review Office considers that the worker has not identified an "opinion in respect of that matter (his permanent partial disability rating) of the physician selected by the worker, expressed in a certificate of the physician in writing" that differs from an "opinion of the medical officer of the board..." It is noted the medical opinion of the worker selected by the worker must be "a full statement of the facts and reasons supporting a medical conclusion."

Additionally, even if the conditions outlined in the previous paragraph were met, as detailed previously, the matter of the worker's permanent partial disability rating has already decided by the Appeal Commission. Given this, the convening of an MRP on this issue under 67(4) is statute barred.

On October 30, 2012, Review Office wrote the worker to advise him to ignore the penultimate paragraph of the "Reasons" section of its decision dated October 25, 2012. Review Office stated:

Subsection 67(4) of The Workers Compensation Act was amended effective 1992 to include the wording, "before a decision by the appeal commission under subsection 60.8(5)…" It is considered that this excerpt has no application with respect to your claim as it occurred prior to 1992.

It follows that the above quoted paragraph reached an erroneous conclusion and should be ignored in its entirety. This in no way changes the Review Office's decision itself. It remains of the opinion that a medical review panel should not be convened for all the other reasons provided.

On October 31, 2012, the worker appealed Review Office's decision dated October 25, 2012 to the Appeal Commission. On November 29, 2012, a file review was held to consider the MRP issue and the issue relating to the worker's PPD rating.

Reasons

Analysis

There are two issues before the panel. We will address each one separately.

1. Whether or not the worker is entitled to an increase in his permanent partial disability award.

This issue comes before the panel on a reconsideration granted by the Chief Appeal Commissioner on June 20, 2012. In the previous Appeal Commission Decision No. 103/07, the panel determined that the worker was entitled to a PPD award based on a rating of 25% for his right and left hernia conditions. Since the time of that decision, there is new evidence that the worker’s bilateral hernia condition has worsened. Specifically, the WCB medical consultant’s memo of April 22, 2009 noted the following factors:

  • The worker had a persistent protrusion at the right hernia site;
  • The worker reported limitation in activities of daily living;
  • Documentation and report of several emergency room visits as the result of symptoms and findings related to his right inguinal hernia;
  • A February 25, 2009 emergency report indicating that it was necessary to administer intravenous morphine to assist in the reduction of this hernia;
  • Surgical scarring in relation to the bilateral hernia procedures.

Based on these factors, the WCB medical consultant advised that the impairment rating for the worker’s bilateral recurrent inguinal hernias be increased to the maximum of 30%.

This recommendation was reviewed by the WCB senior medical advisor who confirmed his agreement with the increase to the unscheduled maximum rating of 30% for the inguinal hernias, which would include any associated local pathanatomic impairments as well as functional impairments stemming from the inguinal hernias.

Given the complexity of the worker’s medical condition, the panel accepts the opinions of the WCB medical advisors that the worker is entitled to the maximum allowable rating under the AMA Guides. We do so despite the fact that the worker’s recurrences have only occurred on the right side. It is therefore the panel’s decision that the worker’s impairment rating for his bilateral inguinal hernia condition should be increased to the maximum rating of 30%. When combined with the recommended rating of 10% for impotence, the worker’s total combined rating utilizing the cumulative values tables equals 37%. In making this determination, the panel notes that the worker is now at the maximum allowable rating for his bilateral hernia condition and although it is possible that he may experience further worsening of his bilateral hernia related impairment in the future, there is no provision in the Policy for a further increase in his PPD rating in respect of same.

2. Whether or not a Medical Review Panel should be convened.

The worker has requested that the WCB convene an MRP for the purposes of having his impairment award correctly calculated. The only provision in the Act which requires an MRP to be convened at the request of a worker is subsection 67(4) which provides as follows:

Reference to panel on request of worker

67(4) Where in any claim or application by a worker for compensation the opinion of the medical officer of the board in respect of a medical matter affecting entitlement to compensation differs from the opinion in respect of that matter of the physician selected by the worker, expressed in a certificate of the physician in writing, if the worker requests the board, in writing before a decision by the appeal commission under subsection 60.8(5), to refer the matter to a panel, the board shall refer the matter to a panel for its opinion in respect of the matter.

After reviewing the provisions of subsection 67(4), we find that the worker’s request for an MRP does not satisfy the requirements for the convening of an MRP. The worker has not identified, nor do we see in the file materials, a difference in medical opinion between a WCB medical officer and a physician selected by the worker which would support the worker’s request for an MRP. In the absence of such difference of opinion, we are not able to grant the worker’s request.

The worker’s appeal on this issue is denied.

Panel Members

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

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 25th day of January, 2013

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