Decision #167/16 - Type: Workers Compensation
Preamble
The worker is appealing the decision made by the Workers Compensation Board ("WCB") regarding the percentage and the effective date of his Permanent Partial Disability rating. A file review was held on October 17, 2016 to consider the worker's appeal.
Issue
Whether or not the worker's permanent partial disability rating is correct.
Decision
That the worker's permanent partial disability rating is correct.
Background
The worker has an accepted claim with the WCB for a back injury that occurred on January 21, 1991 when he slipped and fell on ice. In January 1995, the worker lost further time from employment based on a recurrence. On June 9, 1995, it was determined by the WCB's Review Office that the worker was entitled to an impairment award of 10.6% based on "loss in range of movement to the worker's compensable accidents and also to some degree of a pre-existing osteophyte."
On August 26, 2014, the worker was examined by a WCB medical advisor to determine whether he was entitled to an increase in his Permanent Partial Disability ("PPD") award. Following the assessment, the medical advisor calculated the worker's PPD rating at 14.00%. The medical advisor also noted there was a major pre-existing condition in relation to the PPD which resulted in a prorating of the calculated PPD by 50% (14.0% x 0.5 = 7.0%). He also stated:
It is noted, however, that the PPD calculated in 1995 was not prorated although WCB policy allows for prorating for decisions after 1992. The final recommended PPD is, therefore, either 14% whole person or 7% whole person impairment depending on an adjudicative decision.
On October 29, 2014, the worker was advised by the WCB that he was entitled to a 3.4% increase in his PPD rating and that the effective date of the increase was August 26, 2014, the date of the WCB medical examination.
On April 30, 2015, the WCB medical advisor commented that the areas of concern regarding the worker's left foot had been accounted for by the 2014 PPD evaluation. The loss of bulk of the left lower leg, ankle and foot were accounted for within the cosmetic rating. The rating for station and gait also took into account the loss of function of the left foot. On May 4, 2015, the worker was advised that his PPD rating of 14% took into account the impairment of his left foot.
On May 29, 2015, the worker appealed the WCB decision dated October 29, 2014 to Review Office. The worker contended that his PPD increase should take effect in 2011 as opposed to 2014 and that the rating did not take into consideration the conditions in his left leg, ankle and foot.
On July 23, 2015, Review Office noted that the medical evidence on file did not provide information as to what measurements for loss of mobility would have been in 2011 or what the rating for station and gait would have been. Therefore the findings from the August 2014 examination must be used to calculate the PPD. Review Office determined the effective date for the increase in the worker's PPD rating was August 26, 2014 and that the impairments for the left leg, ankle and foot had been included in the total PPD rating of 14%.
On January 14, 2016, Review Office considered additional information provided by the worker and found sufficient evidence to support that the worker had a cosmetic deformity and loss of function of his left foot prior to August 26, 2014. It determined that the effective date of the PPD rating for cosmetic deformity (1%) and station and gait (10%) was February 19, 2013. As of this date, the worker's difficulties were consistent with the difficulties reported by him in the examination of August 26, 2014.
On January 22, 2016, the worker appealed Review Office's decision of January 14, 2016 to the Appeal Commission and a file review was held on October 17, 2016.
Reasons
Applicable Legislation and Policy
In dealing with this appeal, the appeal panel is bound by The Workers Compensation Act ("the WCA"), regulations and policies of the WCB's Board of Directors.
The worker is employed by a federal government agency or department and his claim is adjudicated under The Government Employees Compensation Act (“ the GECA”). Pursuant to subsection 4(2)(a) of the GECA, a federal government employee in Manitoba is to receive compensation at the same rate and under the same conditions as a worker covered under the WCA.
The worker’s injury claim arose from a 1991 workplace. Accordingly, his benefits are assessed under the WCA as it existed at the date of the accident. Payment of compensation for permanent disability under the Act in effect was provided for under subsections 4(9) and 40(1), which read as follows:
Permanent disability
4(9) The board may award compensation under this Part in respect of the permanent disability suffered by a worker but without temporary total disability….
Permanent partial disability
40(1) Where permanent partial disability results from the injury, the board shall allow compensation in periodical payments during the lifetime of the worker sufficient, in the opinion of the board, to compensate for the physical loss occasioned by the disability, but not exceeding 75% of his average earnings.
For the purpose of calculating a PPD, the WCB Board of Directors has established Policy 44.90.10 which incorporates a Permanent Impairment Rating Schedule as Appendix A. A version of this schedule was in effect at the time of the injury and the development of the permanent disability.
Worker's Position
The worker is appealing the rating given to his PPD award. In his appeal form, the worker indicated that his:
permanent partial disability for cosmetic deformity and station gait is not correct. The loss of mobility thoracolumbar spine PPI rating drops from 10.6 % to 2.5%.
He submitted that the "decision of the Review Office should be further evaluated from May 1, 1996 with no coverage for his station and gait." He also submitted that his loss of mobility for his thoracolumbar spine should not be changed from 10.6% to 2.5% as per medical reports submitted and MRI and neuromuscular electro-diagnostic tests.
Employer's Position
The employer did not participate in the hearing.
Analysis
The issue before the panel is whether the worker's PPD rating is correct. For the worker's appeal to be accepted, the panel must find that there is an error in the calculation of the worker's PPD rating. The panel was not able to make this finding. The panel finds that the worker's PPD rating is correct.
In making our decision, the panel has considered the medical reports on the worker's file including the August 26, 2014 PPD Examination conducted by the WCB medical consultant who specializes in PPD examinations and calculations of disability. The panel attaches significant weight to the examination report and subsequent information provided by the WCB medical consultant.
The panel has also considered the American Medical Association's Guides to the Evaluation of Permanent Impairment ("AMA Guides") used by the medical consultant in performing the examination and in making the calculations.
The panel has reviewed the calculations made by the WCB medical consultant pursuant to the AMA guides and WCB policy and finds that the calculations have been properly made.
Regarding the reduction in the PPD award related to the thoracolumbar spine, the panel notes the measurements confirm an improvement in the worker's thoracolumbar spine. The panel also notes that the worker acknowledges the improvement in his back.
Regarding the worker's station and gait, the panel notes that this was considered by the WCB medical consultant and an appropriate award was made.
The worker's appeal is dismissed.
Panel Members
A. Scramstad, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 17th day of November, 2016