The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he was not entitled to a permanent partial impairment award in relation to his April 24, 2009 compensable injury. A file review was held on May 29, 2013 to consider the matter.

Issue

Whether or not the worker is entitled to a permanent partial impairment award.

Decision

That the worker is not entitled to a permanent partial impairment award.

Decision: Unanimous

Background

The worker has a compensable claim with the WCB for a low back injury that he suffered in the course of his employment as a maintenance worker on April 24, 2009. The worker never fully recovered from the low back injury and on August 29, 2011, permanent restrictions were put in place.

Because of the permanent restrictions, the worker was provided with vocational rehabilitation services to retrain him in another occupation.

On July 27, 2012, a WCB medical advisor reviewed the worker's file and stated:

It is apparent that [the worker] had pre-existing discopathy including a shallow posterior disc prominence at L4-L5 and a left lateralized disc extrusion at L5-S1 prior to the April 24, 2009 compensable injury. This is stated based on the January 25, 2011 and the July 6, 2005 LS spine CT scan reports.

The post-compensable injury spine MRI dated June 2, 2009 documents an annular tear at L4-L5 and a broad based disc bulge at L5-S1 displacing the right SI nerve root. The improvement in the left sided disc extrusion at L5-S1 is considered normal disc regression with time. The shift in lateralization of the L5-S1 disc protrusion from left to right (barring other sources of non-compensable injury related low back injury) likely represents the April 24, 2009 mechanism of injury related aggravation of the degenerative L5-S1 disc.

…on August 29, 2011 at 40 months post compensable injury when [the worker] had been deemed at maximum medical improvement, it is likely that the aggravation of his L5-S1 disc in relation to the April 24, 2009 compensable injury have been deemed an enhancement of his pre-existing L5-S1 discopathy.

On September 13, 2012, the worker was seen by a WCB physiotherapy consultant for the purposes of establishing a Permanent Partial Impairment ("PPI") rating related to the April 24, 2009 workplace injury. The examination report outlined range of motion measurements related to the worker's lumbar and thoracic regions. The impairment calculation was recorded as being 1.0%. As the medical information confirmed that there was a major pre-existing condition in relation to the PPI, the PPI rating was prorated by 50%. The total recommended PPI rating therefore was 0.50%.

In a letter dated November 19, 2012, the WCB advised the worker that his rateable impairment was calculated at 1% and that this rating was prorated by 50% given that there was a major pre-existing condition (prior disc herniation). This meant that he was not entitled to a PPI award as the WCB did not provide awards for impairments that were less than 1%. The worker disagreed with the decision and an appeal was filed with Review Office.

On January 23, 2013 Review Office confirmed that the worker was not entitled to a PPI award. Review Office indicated that it accepted the July 27, 2012 opinion of the WCB medical advisor that there was a major pre-existing condition. It concurred with the WCB physiotherapy consultant's PPI calculations as being correct (1.00 x 0.5 = 0.50%). Review Office referred to subsection 38(2) of The Workers Compensation Act (the "Act") to support that the WCB only provided PPI awards if the impairment was 1% or greater. On March 3, 2013, the worker appealed Review Office's decision to the Appeal Commission and a file review was arranged.

Reasons

Applicable legislation:

The Appeal Commission and its panels are bound by 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.

Payment of compensation for an impairment is provided for under section 38 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.

Calculation of impairment award

38(2) Where the board determines that a worker has suffered an impairment, the board shall pay to the worker as a lump sum an impairment award ….

In accordance with the Act, the Board of Directors enacted WCB Policy 44.90.10.02

Permanent Impairment Rating Schedule (the “PPI Policy”) which provides guidelines on how impairment awards are to be calculated. The PPI 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 the spine, Appendix A provides as follows:

The criteria used for development of impairment ratings in regard to the spine, whether resultant from direct injury or related surgical procedures, essentially involves measurement of restricted motion. For this purpose, the spine is divided into the cervical and the lumbar/thoracic region.

The impairment rating for partial loss of movement will be proportional to the amount of movement that is lost on clinical findings, as a percentage of the assigned ratings for complete immobility; taking into account flexion, extension, lateral flexion, and rotation.

WCB Policy 44.10.20.10, Pre-Existing Conditions (the "Pre-Existing Policy") describes how a pre-existing condition may affect entitlement to benefits. With respect to a PPI, the Pre-Existing Policy provides as follows:

3. IMPAIRMENT AWARD ELIGIBILITY

If a worker is injured as a result of a compensable accident and the injury results in a rateable impairment, the existence of a pre-existing condition will not negate the worker's entitlement to an impairment award. However, if the worker's impairment (whether caused by the compensable accident or a surgical intervention made necessary by the compensable accident ) is an enhancement of a pre-existing but non-compensable impairment, the worker is eligible for an impairment award based on the difference between the new combined rating and the rating assigned to the pre-existing condition.

4. ASSIGNED RATING FOR PRE-EXISTING CONDITIONS

When it is reasonable to do so, the assigned rating for the pre-existing condition will be based on the impairment rating schedule adopted by the WCB. However, when this is not practical, the assigned rating will be determined as follows:

(a) A pre-existing condition which is deemed to be minor will be assigned a 0% rating.

(b) A pre-existing condition which is deemed to be major will be assigned a rating equivalent to 50% of the total combined impairment rating.

Worker’s position:

The worker's Appeal of Claims Decision form states that he was appealing the WCB's decision regarding his PPI award because: "The loss of my mobility and living in pain and discomfort and limited abilities present many difficulties now and in the future."

The letter attached to his appeal explained that he had problems with his back since he suffered an injury while working for a construction company in October 1987. Since that time, he had ongoing pain and discomfort. Despite undergoing both physiotherapy and chiropractic treatment, he had lost an extreme amount of mobility. He was limited in what he could do physically and had to take multiple kinds of medication. The injury had also taken a toll on him financially and had put him into financial difficulty.

The worker questioned how the WCB physiotherapist could have met with him for only five minutes yet be able to determine how his injury had affected not only his work life but his personal life also. He submitted that he used to be able to put his hands flat on the ground while bending over but now was barely able to reach past his kneecaps. The worker also noted that given his lifting restrictions, he was limited to 30 pounds with no twisting or bending. This would mean that he could only pick up 14% of what the average man can lift. He questioned how this could not be considered a form of disability.

Overall, the worker submitted that he was physically limited by the pain in his back and was unable to work like he did before the accident. This was why he was on WCB benefits and why the WCB was sending him to school. He questioned how the WCB could have decided that he was not entitled to a PPI award.

Employer’s position:

The employer provided a written submission in which it indicated that it agreed with the WCB's decision. It was submitted that the physical assessment completed by the WCB physiotherapy consultant had findings which were quantitative and objective. The range of motion measurements showed 1% impairment. Due to pre-existing conditions, this measurement was rated at 50%; therefore the worker had a 0.5% impairment. The Act clearly states that PPI awards are only considered for impairments rated 1% or greater. The employer therefore supported the WCB's decision that the worker was not entitled to a PPI award.

Analysis:

The issue before the panel is whether or not the worker is entitled to a PPI award. In order for the worker's appeal to succeed, the panel must find that the Act and/or the WCB Policies were not correctly applied in his case. We are not able to make that finding.

The panel has considered whether there was any error in the measurement of restricted motion in his lumbar and thoracic spine. While the worker argued that the examination by the physiotherapy consultant was brief, we could find no evidence of an error in the measurements. The panel also notes that the spine measurements are compared against expected norms of mobility and not to the worker's previous level of flexibility.

With respect to the reduction of 50% on account of a major pre-existing condition, the imaging studies (MRI and CT scans) indicate that degenerative changes were present in the worker's lumbar spine prior to the compensable injury. The panel acknowledges and adopts the WCB physiotherapy consultant's September 13, 2012 analysis of the medical evidence and conclusion that there was considered to be a major pre-existing condition that warranted the 50% prorating. As a result, the panel finds that the worker's permanent partial impairment award of 1.0% was properly reduced by 50%.

The panel understands the worker's main concern to be that despite the fact that his workplace injury has left him with physical limitations in his back for which the WCB has imposed permanent restrictions, the WCB has nevertheless determined that he is not entitled to a PPI award for this same injury. The panel acknowledges this may seem to be inconsistent and we have sympathy for his situation but unfortunately, the PPI rating for his back injury is based on loss of range of motion only. The change in the worker's functional ability is not a factor taken into consideration when calculating the PPI award. Based strictly on the measured range of motion, the worker's restriction in movement is not sufficient to entitle him to a PPI award at this time, despite the fact that he may experience pain when performing certain movements. While the residual effect of his compensable injury may have a huge impact on his life, this is not a factor used to determine his PPI rating.

The panel therefore finds that the worker's permanent partial impairment rating has been correctly calculated at 0.5% and as it is less than 1.0%, he is not entitled to a PPI award at this time. The worker's appeal is dismissed.

Panel Members

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

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 23rd day of July, 2013