The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by Review Office of the Workers Compensation Board ("WCB") which determined that his Permanent Partial Impairment award of 6.0% was correctly calculated in relation to his compensable left leg injury. A hearing was held on October 23, 2012 to consider the matter.

Issue

Whether or not the worker's permanent partial impairment rating has been correctly calculated.

Decision

That the worker's permanent partial impairment rating has not been correctly calculated.

Decision: Unanimous

Background

On June 10, 2004, the worker suffered a laceration to his left leg in a work-related accident. His claim for compensation was accepted by the WCB and benefits and services were paid to the worker. In October 2004, the worker developed an infection in his left leg and was diagnosed with deep vein thrombosis ("DVT").

On July 13, 2010, a WCB medical advisor reviewed the worker's file at the request of primary adjudication as the worker was enquiring about a Permanent Partial Impairment ("PPI") award. On July 29, 2010, the WCB medical advisor noted that a rating for DVT was not provided by the Manitoba WCB Permanent Impairment Rating Schedule or the AMA Guides to the Evaluation of Permanent Impairment, 6th edition. He noted that although the worker had chronic swelling, this was not an impairment unless it altered the shape or form of the lower leg. He noted that a cosmetic rating for the scarring/deformity may be warranted.

On September 22, 2012, the worker was assessed by the WCB medical advisor for the purposes of establishing a PPI award. The worker reported that he continued to have edema in his left leg which worsened after exercise or prolonged standing. The edema was associated with a dull aching pain which increased as the edema increased. The worker advised that this limited his ability to partake in sports. The worker noted prominence of the veins of his left foot and diffuse mottling of the low leg and foot which also worsened with exercises.

The WCB medical advisor's examination findings were as follows:

Well-healed scarring was noted over the mid anterior tibia; this was tender to palpation.

With [the worker's] permission, digital pictures of scarring of the left lower leg were taken and compared to archived photos at the WCB.

There is no rateable cosmetic impairment.

Diffuse mottling of the left lower leg and foot was noted as well as prominent veins over the lateral aspect of the left foot as compared to the right. Mild pitting edema was noted in the left lower limb to the level of the knee. The left measured as its widest point was 43 cm on the left and 40 cm on the right. The left ankle at the level of the malleoli was 28 cm on the left and 27 cm on the right.

The WCB Permanent Impairment Rating Schedule provides a rating of 10% whole person impairment for a DVT which involves the thigh and leg [below the level of the knee]. Imaging studies demonstrate a DVT of the popliteal vein and superficial femoral but no involvement of the calf veins and therefore, no scheduled rating would be provided for [the worker's] DVT.

The AMA Guides to the Evaluation of Permanent Impairment, 6th edition was consulted in order to provide an unscheduled rating.

The rating is provided under Section 4.8, pages 68 to 70 of the Guides. Table 4-12 on page 69 describes the methodology for determining a rating for lower extremity peripheral vascular disease.

[The worker] would be a Class I secondary to the history of persistent edema. The default rating for class 1 is 6.0% whole person impairment. No modifying factors are present to alter the default rating.

The total recommended PPI would therefore be 6.0% whole person impairment.

The above will be only one of the factors considered by Rehabilitation and Compensation Services when determining the final PPI award.

On October 7, 2010, the WCB advised the worker that he was entitled to a PPI rating of 6.0% based on the examination findings from the September 22, 2012 examination which resulted in an award of $1,240.00. In late November 2010, the worker appealed the decision to Review Office.

On December 21, 2010, Review Office confirmed that the PPI rating of 6% was correctly calculated. Review Office stated that it accepted the expressed opinion of the WCB medical advisor that the worker was a Class I secondary to the history of persistent edema. It concluded that the PPI rating of 6% adequately compensated the worker for the chronic swelling of his left leg. In September 2012, the worker appealed Review Office's decision to the Appeal Commission and a hearing was held on October 23, 2012.

Following the hearing, the appeal panel met to discuss the worker's appeal and decided to obtain clarification from the WCB's healthcare services branch in relation to the calculation of the PPI rating. In a November 8, 2012 response to questions posed by the appeal panel, the WCB Director of Healthcare Services provided information regarding the anatomic location of the worker's DVT, then advised as follows:

[The worker's] initial deep vein thrombosis involved the mid femoral vein (in the thigh) extending (down) into the popliteal vein. The WCB Impairment Manual, page 15, provides a 10% rating for a deep vein thrombosis of the thigh and leg. Insofar as the lower aspect of the popliteal vein includes the most upper aspect of the lower leg, the PPI for deep vein thrombosis should have been 10%. This represents a correction from the originally determined PPI of 6% (emphasis added).

No further investigations are required to clarify the updated PPI of 10% for the deep vein thrombosis.

The 10% rating for the deep vein thrombosis affecting the popliteal and femoral veins would be inclusive of all symptoms attributable to same, including swelling of the left leg.

At the September 22, 2010, PPI, it was determined that there was no rateable cosmetic impairment. In the event of a change in the appearance of the left leg stemming from the deep vein thrombosis, as suggested in the October 23, 2012, Appeal Commission transcript, an updated assessment for consideration of a cosmetic rating would be recommended. This will be arranged if [the worker] is agreeable.

A copy of the November 8, 2012 response was forwarded to the worker for comment.

On November 30, 2012, the panel met further to discuss the case and requested that the worker be seen at the WCB for a cosmetic impairment award re-assessment related to his left leg. The re-assessment later took place on January 16, 2013 and the final report along with color photographs were forwarded to the worker for comment. On February 11, 2013, the panel met further to discuss the case and rendered a decision on the issue under appeal.

Reasons

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 April, 2013