The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he is not entitled to a permanent partial disability ("PPD") award for the injuries he suffered in a work-related accident on September 21, 1966. A file review was held on April 22, 2014 to consider the matter.

Issue

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

Decision

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

Decision: Unanimous

Background

On September 21, 1966, the worker suffered second and third degree burns to his right side and legs when a hose came off a pump and he was burned with oil. The claim for compensation was accepted and the worker was paid total temporary disability benefits up to November 9, 1966.

In 2012, the worker contacted the WCB to find out whether he was entitled to further compensation benefits with respect to the burns he sustained in the 1966 accident. For PPD purposes, the WCB took photographs of the burns and the worker's file and photographs were reviewed at the WCB's healthcare branch.

On December 18, 2012, a WCB physiotherapy consultant specializing in impairment awards stated:

PPI (permanent partial impairment) file review.

Diagnosis - September 21, 1966 burns to the right arm and both legs.

Likely at MMI (maximum medical improvement).

No major pre-existing condition related to the PPI.

Based on the WCB Act that was in place in 1966, cosmetic impairments are only provided for scarring about the head and face.

On review of the information on file there would be no ratable cosmetic impairment as there is no documentation regarding scarring about the head and face.

By letter dated December 18, 2012, the worker was advised that he did not have a rateable permanent impairment resulting from his right arm and leg injuries as The Workers Compensation Act (the "Act") in 1966 only allowed for cosmetic impairments about the head and face. The worker disagreed with the decision and an appeal was filed with Review Office.

On July 16, 2013, Review Office confirmed that the worker was not entitled to a PPD award based on subsections 32(1) and 32(2) of the Act. With respect to subsection 32(1), Review Office noted that based on file evidence, the worker did not have any loss of function or the like

as a result of his accident beginning November 9, 1996 and he had returned to work at his pre-accident rate of pay. Therefore, the worker was not entitled to an award under this subsection.

With respect to subsection 32(2), Review Office noted that this subsection allowed for a cosmetic disfigurement award of the head and face. It did not provide an award for cosmetic disfigurement elsewhere in the body. It followed that the worker did not have entitlement to an award under this subsection. On February 19, 2014, 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 Workers Compensation Act (the “Act”), regulations and policies of the Board of Directors.

As the worker was injured in 1966, his benefits, including his PPD, are assessed under the Act as it existed at that time. In 1966, compensation for permanent partial disability was provided for under section 28, which read as follows:

28(1) Where permanent partial disability results from the injury, the compensation shall be a periodical payment of seventy-five per centum of the difference between the average earnings of the

workman before the accident and the average amount which he is earning or is able to earn in some suitable employment or business after the accident, and the compensation shall be payable during the lifetime of the workman.

28(2) Notwithstanding subsection (1), where, in the circumstances, the amount which the workman was able to earn before the accident has not been substantially diminished the board may, in case the workman is seriously and permanently disfigured about the face or head, or otherwise permanently injured, recognize the injury as an impairment of earning capacity and fix an amount to be paid to the workman as full compensation therefore and pay him the amount either in one sum or in periodical installments as directed by the board, or, after estimate as to the probable cost to the accident fund for the disability, fix a monthly sum to be paid to the workman during the continuance of his disability, in full payment and discharge of all claim in respect of the disability.

The panel notes that while the WCB mistakenly made its determination based on the 1970 version of the Act where permanent partial disability was addressed under subsections 32(1) and 32(2), it is of no consequence as the wording of the 1966 and the 1970 versions is identical. Only the numbering had changed.

Worker’s Position

The worker’s written submission argued that he had permanent impairment to his face and whole right side of his body which he received in 1966. He noted that other people received compensation because of exposure to mineral oil and he worked with mineral oil for about six years, which was longer than the others. He stated, in part:

I am appealing my case because I don't think it's right that some persons got millions in compensation and I didn't qualify because my accident happened before 1970. I suffered terribly when the 4 inch hose broke and poured boiling hot mineral oil all over the right side of my body. My leg, stomach, arm, hand and head were all burned from this hot oil.

Analysis

The issue before the panel is whether or not the worker is entitled to a PPD award. In order for the worker's appeal to succeed, the panel must find that the worker qualifies under the provisions of subsection 28(2). Specifically, the panel must find that as a result of the 1966 accident, the worker is seriously and permanently disfigured about the face or head, or otherwise permanently injured. On a balance of probabilities, we are not able to make that finding.

It is important to note that in this appeal, the panel may only consider the consequences of the burn injury the worker suffered on September 21, 1966. The worker's submission addresses the issue of long term exposure to mineral oil; however, that is not part of this claim. We are looking only at the burn injury.

On October 15, 1966, the worker completed a WCB Claim for Compensation form. In it, the worker was asked to state the injury he sustained. The response was: "both legs and right arm (burns)." Similarly, the hospital records from September 1966 indicate the diagnosis as: "1st and 2nd degree burn R arm, both legs."

The panel has reviewed all of the documentation and there is no indication that the worker sustained any injury or disfigurement to his face or head. In 2012, photographs of scarring on the worker's leg were provided to the WCB but there were no pictures of scarring to the head or face.

Although the worker alleges that he suffered burns to his face/head, we are unable to indentify evidence that the worker's injury and subsequent disfigurement involved anything other than his right arm and both legs. As such, the panel has no authority under the Act to find that the worker is entitled to a PPD award. In the result, the worker's claim 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 9th day of June, 2014