Decision #173/16 - Type: Workers Compensation
Preamble
The worker is appealing the decision made by the Workers Compensation Board ("WCB") regarding the calculation of his Permanent Partial Disability rating. A file review was held on October 24, 2016 to consider the worker's appeal.
Issue
Whether or not the worker's Permanent Partial Disability rating of 3.30% has been correctly calculated.
Decision
That the worker's Permanent Partial Disability rating of 3.30% has been correctly calculated.
Background
The worker has an accepted claim with the WCB for chronic right lateral epicondylitis. For further details regarding claim history, please refer to Appeal Commission Decisions Nos. 76/13, 18/14 and 100/15.
On June 29, 1994, the worker was examined by a WCB impairment awards medical advisor to establish whether or not he was entitled to a permanent partial disability ("PPD") award with respect to his right elbow condition. Based on the examination findings and range of motion measurements of the elbow, the worker's PPD rating was calculated at 3.30%.
On June 2, 2010, a WCB physiotherapy advisor reviewed the file as the worker requested a reassessment of his PPD award. The advisor noted that a cosmetic impairment was not considered in the past PPD rating and a second PPD examination was arranged for June 18, 2010. The June 18, 2010 PPD examination was cancelled at the worker's request as he was working out of town.
In a report to the WCB dated January 8, 2014, the family physician reported that the worker continued to complain of pain in his right elbow. There was epicondylar tenderness and a 10 degree extension lag as before. There was also tenderness of the extensor muscle group of his right forearm.
On February 27, 2014, the WCB physiotherapy consultant noted to the file that a PPD call-in examination would be arranged to evaluate passive left versus right elbow mobility and a cosmetic impairment.
The worker was seen at the WCB's office on March 18, 2014 for the PPD re-assessment. The physiotherapy advisor noted that digital pictures of scarring of the right elbow were taken and the scars were compared to the folio of images at the WCB. He said there was no ratable cosmetic impairment related to the compensable injury. The consultant also indicated that mobility of the right arm was limited by reported symptoms to the right lateral epicondyle region and that considering the symptom limited mobility there would be no change to the previous impairment rating.
By letter dated March 21, 2014, the worker was advised that based on the file information as well as the March 18, 2014 PPD examination, the previous rating of 3.30% adequately reflected the present degree of his impairment due to his compensable injury. On April 4, 2014, the worker's advocate appealed the decision to Review Office.
On June 6, 2014, Review Office determined that the worker's PPD rating was 3.30%. Review Office accepted the physiotherapy advisor's opinion as outlined in his examination findings of March 18, 2014. On August 12, 2015, the worker appealed Review Office's decision to the Appeal Commission and a file review was arranged.
Reasons
Applicable Legislation and Policy
In dealing with this appeal, the appeal panel is bound by The Workers Compensation Act (the “Act”), regulations and policies of the WCB Board of Directors.
The worker’s injury claim arose from a 1986 workplace accident. Accordingly, his benefits are assessed under the Act as it existed at the date of the accident. Payment of compensation for permanent disability 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.
Subsection 51(2) of the Act provides the WCB with the exclusive jurisdiction to determine the existence and degree of disability.
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 disagrees with the amount of his PPD award. With assistance from an advocate, he has asked the Appeal Commission to review his claim and increase his PPD award. The worker noted that he has difficulty living on his other pension income.
Employer's Position
The employer did not participate in this appeal.
Analysis
The issue before the panel is whether the worker's PPD rating of 3.30% has been correctly calculated. For the worker's appeal to be accepted, the panel must find 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 of 3.30% is correct.
The panel notes that the worker was assessed a PPD award of 3.30% in 1994 and reassessed in 2014. The reassessment was performed by a WCB physiotherapy advisor.
At the 2014 reassessment, the worker was accompanied by his advocate. The physiotherapy advisor considered whether the worker was entitled to a cosmetic award for scarring. He assessed the worker's scars and compared the scars to a folio of images retained by the WCB. The physiotherapy advisor concluded that the worker's scarring was not sufficient to be assigned a cosmetic award. He concluded that there is no ratable cosmetic impairment related to the compensable injury.
The physiotherapy advisor attempted to assess the mobility of the worker's right arm, using an instrument known as a goniometer, as required by the American Academy of Orthopedic Surgeons handbook. He noted:
Mobility of the right arm was limited by reported symptoms to the right lateral epicondyle region. Motion of the right elbow was limited by non-capsular resistance and assessment of motion beyond the symptoms limited range was not attempted. Assessment of passive elbow mobility could not be completed.
The physiotherapy advisor concluded that, considering the worker's symptom limited mobility, there would be no change in the previous impairment rating.
The panel accepts that the physiotherapy advisor has the requisite training and knowledge of the PPD assessment process. The panel accepts the physiotherapy advisor's recommendations regarding the worker's impairment as measured in 2014 and makes no changes to the award.
The panel finds that the worker's permanent partial disability award has been correctly calculated at 3.30%. 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 23rd day of November, 2016