The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker filed an appeal with the Appeal Commission related to the effective dates of his permanent partial disability awards which were established by the Workers Compensation Board ("WCB"). A file review was held on September 12 and September 20, 2013 to consider the matter.

Issue

Whether or not the effective dates of the worker's permanent partial disability ratings have been correctly established.

Decision

That the effective dates of the worker's permanent partial disability ratings have not been correctly established.

Decision: Unanimous

Background

The worker has an accepted claim with the WCB for bilateral hernia conditions that resulted from a work-related accident on June 21, 1966. The worker has been provided with various WCB benefits which included Permanent Partial Disability ("PPD") awards for his bilateral hernia condition and impotence. The worker's PPD awards were also the subject of Appeal Commission decisions in 1996, 2007 and 2013. In its recent decision dated January 25, 2013, the Appeal Commission determined that the worker was entitled to an increase in his PPD award to a combined total rating of 37% for bilateral hernia condition and impotency.

On March 18, 2013, the worker's claim was the subject of a file reconsideration by the WCB's Review Office as the worker disagreed with the effective dates of the PPD ratings established by WCB staff. Review Office's determination was that the effective dates for the worker's PPD ratings were not correct.

In making its decision, Review Office made reference to The American Medical Association (AMA) Guides to the Evaluation of Permanent Impairment (the "Guides"). The following passages were cited:

The Guides Fourth Edition provides in part, the following:

Impairment is defined in the Guides as an alteration of an individual's health status. Impairment, according to the Guide, is assessed by medical means and is a medical issue. An impairment is a deviation from normal in a body part or organ system and its functioning. The Guides defines "permanent impairment" as one that has become static or stabilized during a period of time sufficient to allow optimal tissue repair, and one that is unlikely to change in spite of further medical or surgical repair. (emphasis added)

The Guides Fifth Edition states in part that:

An impairment is considered permanent when it has reached maximal medical improvement (MMI) meaning, it is well stabilized and unlikely to change substantially in the next year with or without medical treatment.

According to the Guides, determining whether an injury or illness results in a permanent impairment requires a medical assessment performed by a physician. (emphasis added)

Review Office outlined the opinion that a rateable impairment did not exist in 1967 as the worker's hernia condition had not stabilized. The worker required further hernia repairs and no medical examination had been carried out at that time for the purpose of conducting an impairment review. Review Office therefore concluded that the WCB's decision to implement a 4.5% PPD rating effective December 1, 1967 was not appropriate.

Review Office stated that it preferred to consider the cumulative effects of the worker's hernia repairs from 1966 to 1985. Review Office indicated that the medical information gathered by a Medical Review Panel on May 27, 1994 was similar to that gathered when the worker was seen by a WCB impairment awards medical advisor on June 28, 1996. Review Office concluded that the assignment of the 15% PPD rating would be applicable as of May 27, 1994. It did not find the medical information prior to the MRP was sufficient for permanent impairment rating purposes.

Review Office referred to the Appeal Commission's decision of July 26, 2007 that the worker's PPD rating should be increased to 25% based on a WCB medical opinion dated April 4, 2007.

Review Office determined that the 25% increase in the worker's PPD rating should become effective February 4, 2007, the date the worker sought emergency medical attention.

Review Office indicated that it accepted the examination findings dated April 22, 2009 by a WCB medical advisor wherein he opined that the worker's hernia condition warranted a 30% PPD rating. Review Office concluded that the effective date for the increase to 30% would be April 22, 2009.

Review Office indicated that it accepted the WCB medical opinions outlined on July 7, 2010 that the medical evidence did not support any impairment due to impotence between the worker's date of accident and 1978. The medical opinions, however, did acknowledge that the worker reported his impotence started around 1978. Review Office determined that a rateable PPD could not be based only on the worker's report of a condition which was not substantiated by a complete medical review. This was done when the worker was examined on June 28, 1996 by a WCB impairment awards medical advisor. Review Office therefore found that the 10% PPD rating for impotence would be effective June 28, 1996.

Review Office summarized that the effective dates for the worker's PPD ratings should be:

May 27, 1994 15% (bilateral hernia condition)

June 28, 1996 10% (impotence) and 15% (bilateral hernia condition) for a total of 24%

February 4, 2007 10% (impotence) and 25% (bilateral hernia condition) for a total of 33%

April 22, 2009 10% (impotence) and 30% (bilateral hernia condition) for a total of 37%

On April 5, 2013, the worker was advised by a sector services manager that Review Office's decision of March 18, 2013 provided no entitlement to any PPD for the period 1967 to 1994. The worker was advised that his PPD entitlement had now been recalculated and an overpayment had been confirmed. The worker was advised that the collection of the overpayment would not be pursued in accordance with WCB Policy 35.40.50, Overpayment of Benefits.

On May 17, 2013, legal counsel representing the worker appealed Review Office's decision to the Appeal Commission and a file review was arranged.

Reasons

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the Board of Directors.

WCB Policy 44.90.10.02, Permanent Impairment Rating Schedule (the "Policy") gives direction regarding impairment awards determined under the Act. The Policy applies to all new decisions on accidents occurring on or before March 31, 2000. With respect to establishing the effective date of an impairment rating, the Policy provides:

6. The appropriate time to assess an injured worker for a permanent impairment award will be the subject of guidelines established by the Healthcare Services Department.

Attached as Appendix A to the Policy is the Permanent Impairment Rating Schedule (the "Schedule") which sets out guidelines for permanent impairment evaluation. The introduction to the Schedule provides as follows:

Permanent impairment is evaluated by conducting a medical examination of the worker or by reviewing the medical history documented on file as described in the policy statement.

Evaluation of permanent impairment is made when treatment has been completed, or when, in the opinion of the Board’s physicians, the medical condition has stabilized and no further improvement is expected. The timing of the evaluation, therefore, varies according to the individual’s circumstances.

Worker’s Position

The worker was represented by legal counsel who provided a written submission. It was submitted that the issue to be determined was whether the WCB should have requested an opinion from the worker's doctors to determine when the worker became permanently partially disabled. In the alternative, it was submitted that the WCB should have convened a medical review panel to make the determination.

Analysis

The issue before the panel is whether the effective dates of the worker's permanent partial disability ratings have been correctly established. In order to determine the appeal, the panel must apply the test set out in the Schedule to the Policy, i.e. the panel must consider the medical history documented on file and ascertain at what points in time the worker's treatment was completed and/or his medical condition stabilized with no further improvement expected.

The panel does not accept legal counsel's submission that the worker's doctors must be consulted or a medical review panel be convened, as we find that it is entirely within the Appeal Commission's jurisdiction and ability to review the existing medical record and determine the effective dates, with reference to the guidelines set out in the Policy and Schedule. The determination of when treatment was completed or when a medical condition had stabilized is not solely a medical matter and is a finding of fact which can be made by an appeal panel with reference to the medical history documented on file.

We also note that by Appeal Commission Decision No. 14/13, the question of whether or not a Medical Review Panel should be convened has already been considered and decided. There is no appeal from that decision and the right of reconsideration has not been sought nor granted by the Chief Appeal Commissioner.

After reviewing the record as a whole, the panel determines that the effective dates for the worker's PPD ratings should be as follows:

December 1, 1967 4.5% (bilateral hernia condition)

May 3, 1979 9.0% (bilateral hernia condition) and 10% (impotence)

August 20, 1986 15% (bilateral hernia condition) and 10% (impotence)

February 4, 2007 25% (bilateral hernia condition) and 10% (impotence)

April 22, 2009 30% (bilateral hernia condition) and 10% (impotence)

With respect to the general approach taken towards determining the effective date for the PPD ratings, the panel does not agree with the WCB's approach of considering the cumulative effects of the worker's hernia repairs from 1966 to 1985. This is a period of almost two decades and although the worker's condition did change throughout this period, he also experienced extended periods of time where his condition remained relatively stable. More importantly, however, the panel notes that while the worker's condition was changing throughout this period, it was always a worsening or deterioration of his hernia condition. Due to the nature of his specific medical condition (i.e. bilateral hernia repairs), his permanent physical impairment was residual susceptibility in the inguinal area to herniation, which was a sequelae of scar and weakness secondary to the previous hernia operations. The integrity of the abdominal wall was compromised with resultant weakness of the musculature. The panel makes this observation based on the reports from the May 1994 Medical Review Panel and the June 28, 1996 PPD examination by the WCB medical advisor. After the usual period of post-operative recovery, the worker's medical condition would be stabilized in the sense that no further improvement would be expected. This is to be differentiated from other medical conditions where a general improvement (for example, a potential increase in range of motion) may still be possible. The panel notes that as per the WCB senior medical advisor's memo of March 1, 2011, one year post-procedure would represent the earliest point that maximal medical improvement would be achieved after surgery. We therefore adopt one year as the appropriate guideline for stabilization post surgery.

Accordingly, the approach taken by the panel in determining the effective dates is to consider the points in time where the worker either underwent surgery or experienced a significant acute or identifiable worsening in his hernia condition, such that there was a change in his physical impairment which would warrant an additional PPD rating.

Our rationale for each of the effective dates is outlined below.

December 1, 1967

The worker underwent bilateral hernia repairs in July 1966, and then again in November 1966. Following that, the worker's hernia condition remained stable. Indeed, in Appeal Commission Decision No. 38/12, the panel found that the worker's compensable hernia conditions did not cause him to suffer any loss of earning capacity during the period August 1966 to May 2, 1978 for which he was entitled to TTD benefits.

In his memo of March 1, 2011, the WCB senior medical advisor opined that an unscheduled PPI for the worker's inguinal area symptoms between November 1967 and May 3, 1978 would be in the mid range rating of a Class 1 impairment, or 4.5%. The panel sees no reason to vary from this assessment and we set the effective date at December 1, 1967, representing one year after the November 1966 surgeries. Unfortunately, despite numerous inquiries, no medical records from these surgeries could be located. The panel therefore finds that December 1, 1967 represents a reasonable date for establishing when the worker's condition stabilized post-surgery.

May 3, 1979

As noted earlier, the worker's condition remained stable for the next ten years until May 1978 when he experienced a recurrence and underwent a "McVay" hernia repair operation. The panel accepts that as a result of this 1978 surgery, the worker suffered a further weakening of the structural integrity of his inguinal area. The panel finds that the worker is entitled to have his PPD rating increased from 4.5% to 9% to reflect the increased impairment resulting from this further surgery. The panel notes that 9% reflects the top end of a Class 1 Hernia-related Impairment, which we feel is appropriate given that the worker was still able to return to work post-surgery, which suggests that he was still within the Class 1 range. The effective date for this increased PPD would be May 3, 1979, representing one year post surgery.

The panel also finds that the worker's PPD rating for impotence should be effective May 3, 1979. The WCB medical advisor's memo of November 13, 2007 identifies that the first report to a physician of issues concerning impotence was in 1978. Although there is some evidence on file to suggest that a ratable impotence may not have been fully present until 1980, there is evidence to support an earlier date and the panel is therefore prepared to establish the PPD for impotence at one year following the 1978 surgery.

August 20, 1986

The next significant change in the worker's condition occurred in 1984. Although the worker had experienced some recurrences in the early 1980s, he did not undergo further surgery until February 10, 1984. Unfortunately, the repair was not successful and the worker underwent a series of operations in June 1984, October 1984 and August 1985. The last procedure took place on August 20, 1985. According to the WCB medical advisor's PPD examination of June 28, 1996, a rating of 15% was appropriate following the series of operations in the mid 1980s. We see no reason to vary from this assessment. This would be in addition to the 10% impairment for impotence. The effective date for this PPD rating is August 20, 1986, representing one year following the last surgery date.

February 4, 2007

On February 4, 2007, the worker suffered an incarcerated right inguinal hernia, for which he obtained surgical opinions. According to the WCB senior medical advisor's memo dated April 2, 2007, the worker's ratable impairment for his bilateral inguinal hernias at that time was 25%. This rating was confirmed by Appeal Commission Decision No. 103/07. The panel finds that the effective date for this PPD rating is February 4, 2007. Although the worker did not undergo further surgery, there was nevertheless a significant acute change in his hernia condition, from which he did not experience improvement. The worker continued to be entitled to a 10% impairment rating for impotence.

April 22, 2009

The final effective date for a PPD rating is April 22, 2009. This date represents the date the worker was examined by a WCB medical advisor and the findings from this examination formed the basis for the recommendation to an increase in the worker's PPD rating for his bilateral hernia condition to 30%. Appeal Commission Decision No. 14/13 confirmed the increase to 30% resulting in a combined rating of 37% for the both hernia and impotence impairments.

The foregoing outlines the effective dates for the worker's changing PPD impairment ratings. We refer the matter back to the WCB to establish the combined values and associated PPD award for each specific time period.

The worker's appeal is allowed.

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 October, 2013