Decision #49/17 - Type: Workers Compensation
Preamble
The worker is appealing decisions made by the Workers Compensation Board ("WCB") regarding her compensation claim. A hearing was held on February 27, 2017 to consider the worker's appeals.
Issue
Whether or not the worker's permanent partial impairment rating of 4.6% has been properly established; and
Whether or not there is a limited duration of wage loss benefits.
Decision
That the worker's permanent partial impairment rating of 4.6% has been properly established; and
That there is a limited duration of wage loss benefits.
Background
On March 20, 2014, the worker fell onto her right knee when she slipped on ice. The worker reported that she was taken to hospital, where pins and screws were placed into her right knee. Following review of medical and other information on file, the worker's claim for compensation was accepted and benefits and services were paid.
On August 16, 2016, the WCB wrote the employer to find out if they were able to provide the worker with a return to work program which met her permanent compensable work restrictions.
On August 24, 2016, the worker was seen by a WCB medical advisor to determine whether she was entitled to a permanent partial impairment ("PPI") award for her right knee. After the examination, the medical advisor recommended a total PPI rating of 4.6% whole person impairment.
On August 30, 2016, the employer advised the WCB that they were not able to permanently accommodate the worker's restrictions.
By letter dated September 7, 2016, the worker was advised that she was entitled to a PPI rating of 4.6% which resulted in a monetary award of $5,120.00. The worker was further advised that the employer was unable to provide her with alternate work that met her compensable restrictions, and that given her restrictions and the years left for eligible wage loss replacement, she would remain entitled to full wage loss benefits up to March 20, 2018.
On September 19, 2016, the WCB confirmed to the worker that based on their assessment of the employer's inability to accommodate her permanent restrictions, including a review of the labour market, the worker's transferable skills, education, restrictions and number of years to anticipated retirement, the WCB was not able to identify a viable occupational goal and earning capacity. The worker was advised that wage loss benefits would continue to March 20, 2018, unless her earning capacity changed. On September 19, 2016, the worker appealed the WCB decisions regarding her PPI rating and the limited duration of wage loss benefits to Review Office.
On November 8, 2016, Review Office determined that the PPI rating of 4.6% (cosmetic rating of 1% and loss of mobility rating of 3.6%) was appropriate. Review Office accepted the measurements recorded at the August 24, 2016 examination, and found they were conducted in accordance with the process outlined by WCB policy.
Review Office also determined that there was a limited duration of wage loss benefits. Review Office noted that the worker was 74 years old when the accident occurred on March 20, 2014. The worker was 77 years old at the time of the decision, and was receiving full wage loss benefits due to her loss of earning capacity. Review Office found that in accordance with the details of the claim and The Workers Compensation Act (the "Act"), no more than 48 months of benefits were to be paid following the date of the accident. On December 6, 2016, the worker appealed Review Office's decisions to the Appeal Commission and an oral hearing was arranged.
Reasons
Applicable Legislation and Policy
The Appeal Commission and its panels are bound by the Act, regulations and policies of the WCB's Board of Directors.
Subsection 4(1) of the Act provides that 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.
With respect to wage loss benefits, subsection 4(2) provides that a worker who is injured in an accident is entitled to wage loss benefits for the loss of earning capacity resulting from the accident, but no wage loss benefits are payable where the injury does not result in a loss of earning capacity during any period after the day on which the accident happens.
Subsection 39(2) of the Act provides that subject to subsection (3), wage loss benefits are payable until such time as the worker's loss of earning capacity ends or the worker attains the age of 65 years.
Subsection 39(3) provides that "where a worker is 61 years of age or older at the commencement of his or her loss of earning capacity, the board may pay the wage loss benefits for a period of not more than 48 months following the date of the accident."
With respect to compensation for impairment, subsection 4(9) of the Act provides that the WCB may award compensation for an impairment that does not result in a loss of earning capacity. "Impairment" is defined in subsection 1(1) of the Act as "a permanent physical or functional abnormality or loss, including disfigurement, that results from an accident."
Subsection 38(1) of the Act provides that the WCB "shall determine the degree of a worker's impairment expressed as a percentage of total impairment."
The WCB Board of Directors has established Policy 44.90.10, Permanent Impairment Rating (the "Policy"). Impairment benefits are calculated under the Policy by determining a rating which represents the percentage of impairment as it relates to the whole body.
The Policy provides that the degree of impairment will be established by the WCB's Healthcare Services Department in accordance with the Policy, and that whenever possible and reasonable, impairment ratings (with the exception of impairment of hearing ratings) will be established strictly in accordance with the PPI Schedule which is attached as Schedule A to the Policy.
Schedule A to the Policy provides that permanent impairment from a workplace injury is evaluated for the following deficits:
- loss of a part of the body;
- loss of mobility of a joint(s);
- loss of function of any organ(s) of the body identified in the Schedule; and
- cosmetic disfigurement of the body.
For injuries to lower extremities, Schedule A provides as follows:
The impairment rating for loss of range of motion resulting from direct injury or related surgical procedures will be determined by a WCB Healthcare Advisor, through clinical examination or assessment of the medical information on file, based on the loss of active guided movement of the affected joint(s).
The methodology for determining the impairment rating for loss of range of motion is set out at pages 20 to 24 of Schedule A.
Schedule A also allows for a cosmetic rating for disfigurement. Disfigurement is described as an altered or abnormal appearance. The rating for disfigurement is done by a WCB Healthcare Advisor and the degree of disfigurement is determined on a judgmental basis.
Worker's Position
The worker was self-represented. The worker made a presentation and responded to questions from the panel.
The worker disagreed with the impairment rating of 4.6%. Her position was that the amount of the PPI award was not enough, as she was never going to be able to go back to work. She stated that the impact of her injury has been severe. She has been told that she cannot return to work. There are things she will never be able to do again, such as kneeling. She has to be very careful in everything she does. She has had two surgeries and has been told that they will not be able to do surgery again if she falls.
The worker also disagreed with her wage loss benefits being terminated 4 years after her injury. She said that she had worked all her life and had no plans to retire, as she needed the income. Due to her accident and injury, she did not have enough money to cover her expenses. She could not go back to work and needed the monthly benefits.
The worker further submitted that the first surgery on her knee was not done properly. Through no fault of her own, she had to have surgery again over a year later, on April 23, 2015. In her view, she should continue to be paid wage loss benefits for at least 4 years from the date of her second surgery, instead of from the date of her accident and first surgery.
Employer's Position
The employer did not participate in the appeal.
Analysis
Issue 1: Whether or not the worker's permanent partial impairment rating of 4.6% has been properly established.
For the worker's appeal of this issue to be successful, the panel must find that the Policy has not been correctly applied. The panel is unable to make that finding, for the reasons that follow.
In her submission, the worker emphasized the impact her knee injury has had on her life, and in particular, the fact that she is no longer able to work and earn an income. A permanent impairment award, however, is not related to, or a substitute for, loss of earning capacity. It is not intended to compensate the worker for the fact that the worker cannot go to work. It is not intended to compensate a worker for pain or suffering resulting from an injury.
With respect to an injury to a lower extremity, including a knee, impairment is evaluated for the loss of mobility of a joint. The Policy provides that the impairment rating for loss of mobility or range of motion is to be determined through clinical examination or assessment of the medical information on file, based on the loss of active guided movement of the affected joint.
The worker was examined by a WCB medical advisor on August 24, 2016. In response to questions from the panel, the worker acknowledged that the medical advisor moved her knee back and forth and performed various measurements during that examination. The worker could not identify anything that was wrong with the process that was followed or the measurements that were done.
The panel has reviewed the WCB medical advisor's notes of the August 24, 2016 examination, and is satisfied that the advisor made the appropriate measurements in accordance with the process and criteria set out in the Policy. The panel notes that the medical advisor's measurements and findings were consistent with other medical information on file. The panel is further satisfied that the medical advisor's calculation of the impairment rating of 3.6% for loss of range of motion, as outlined in his notes, was correct.
The WCB medical advisor also considered a cosmetic impairment rating, based on his visual examination of the worker's right knee and review of digital pictures of scarring/asymmetry of the right knee which were then placed on file. Based on his assessment, and in the exercise of his judgment, the WCB medical advisor determined that the cosmetic impairment related to the compensable injury was 1% whole person impairment. The panel agrees with and accepts the medical advisor's conclusion in this regard.
Combining the loss of function or mobility deficit rating of 3.6% with the cosmetic rating of 1%, the WCB medical advisor arrived at a total recommended PPI rating of 4.6%, which was subsequently approved by Compensation Services.
Based on the foregoing, the panel finds that the Policy has been correctly applied and the permanent partial impairment rating of 4.6% has been properly established.
The worker's appeal of this issue is denied.
Issue 2: Whether or not there is a limited duration of wage loss benefits.
For the worker's appeal of this issue to be successful, the panel must find that the worker is entitled to wage loss benefits beyond March 20, 2018. The panel is unable to make that finding, for the reasons that follow.
The amount and duration of wage loss benefits which are payable to a worker are expressly set out in the Act. Under subsection 39(2), wage loss benefits are payable up until 65 years of age. An exception is provided in subsection 39(3) for workers who are 61 years of age or older when their loss of earning capacity begins. In those circumstances, the WCB is authorized to pay wage loss benefits "for a period of not more than 48 months following the date of the accident."
The worker was 74 years old at the time of the accident. The worker has argued that she should be entitled to wage loss benefits for more than 48 months after the date of her accident. In particular, she has submitted that because she had to undergo a second surgical procedure, the 48 months should run from the date of her second surgery, with the result that she would be entitled to wage loss benefits up until April 23, 2019.
The panel is unable to accept the worker's argument on this point. Subsection 39(3) specifically authorizes payment of up to a maximum of 48 months of wage loss benefits "following the date of the accident." In the panel's view, the wording of that provision is clear and unambiguous. It expressly refers to the date of "the accident," not the date of treatment or of any subsequent events. The panel is unable to identify anything in the Act or Policy which would allow wage loss benefits to be extended or continue beyond the 48 months which are stipulated in the Act.
The compensable accident occurred on March 20, 2014. The 48 month period would therefore end on March 20, 2018. The worker is seeking to have her wage loss benefits extended to at least April 23, 2019, which would amount to approximately 13 additional months beyond the date of the accident. In the panel's view, that is not permitted under the Act.
In the course of the hearing, the worker acknowledged that she had not returned to work since her accident on March 20, 2014, and that she had been receiving wage loss benefits from that date. The WCB has indicated that her wage loss benefits will continue to March 20, 2018 unless her earning capacity changes. The worker further acknowledged that by March 20, 2018 she will have been receiving wage loss benefits for 48 months. The panel is satisfied that that is the maximum length of time which is authorized under the Act for the payment of wage loss benefits in these circumstances, and that the worker is not entitled to wage loss benefits beyond March 20, 2018.
Based on the foregoing, the panel finds that there is a limited duration of wage loss benefits.
The worker's appeal of this issue is denied.
Panel Members
M. L. Harrison, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, B. Kosc
M. L. Harrison - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 25th day of April, 2017