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 wage loss benefits after April 23, 2017 and that his permanent partial impairment rating and monetary award have been correctly calculated. A hearing was held on June 5, 2018 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to wage loss benefits after April 23, 2017;

Whether or not the worker's permanent partial impairment rating and monetary award have been correctly calculated.

Decision

That the worker is not entitled to wage loss benefits after April 23, 2017;

That the worker's permanent partial impairment rating and monetary award have been correctly calculated.

Background

The worker has an accepted claim for an injury to his right ankle that occurred at work on June 18, 2015. The worker was diagnosed with a fracture-dislocation of the right ankle, and underwent two surgeries, the first on June 18, 2015 and the second on May 9, 2016.

Following the second surgery, temporary restrictions were identified and the worker began a graduated return to work program with the accident employer. By November 2016, the worker had returned to full-time duties with the accident employer, but had not returned to his concurrent employment.

On November 15, 2016, the treating orthopedic surgeon noted that the worker was working full time and recommended "activity as tolerated, no restrictions, suggest one full-time job (as opposed to pre-injury two) moving forward."

The worker attended a call-in examination with a WCB medical advisor on January 19, 2017. On January 31, 2017, Compensation Services advised the worker that based on the current medical information, the following permanent restrictions were required as a result of his right ankle/foot injury:

• No lifting or otherwise moving more than 25 pounds; 

• Avoid walking on uneven surfaces or on an incline; 

• Ability to weight bear as tolerated (he should be able to self-pace and take breaks as needed); 

• He would be unable to perform any work duties that required squatting, crawling, or climbing; 

• He should not be in a position of possibly being involved in a physical altercation; 

• There would be no restriction to the number of hours he works provided they are within the restrictions.

On February 8, 2017, the employer confirmed that they could accommodate the worker's permanent restrictions in his current role.

On April 19, 2017, a WCB medical advisor performed a permanent partial impairment ("PPI") file review and noted that the worker would be assessed for a possible PPI for a cosmetic rating and mobility deficits right ankle. The worker was seen by the WCB medical advisor for a PPI assessment on April 25, 2017. The final recommended PPI was 9.00% whole person impairment. On April 26, 2017, Compensation Services advised the worker that he was entitled to a PPI rating of 9.00% which amounted to an award in the amount of $11,700.00.

On April 26, 2017, the worker advised the WCB that his ankle was sore and he did not think he could continue doing his job much longer. The worker saw his family doctor on April 28, 2017 and was provided with a Sick Note indicating that he should be off work from April 26, 2017 to May 8, 2017.

On May 8, 2017, Compensation Services advised the worker that they were unable to accept responsibility for wage loss incurred as of April 24, 2017. Compensation Services found that there was no evidence of total disability or loss of earning capacity; that the employer continued to offer duties within his permanent restrictions, and no new medical information had been provided to support total disability from work at this stage of recovery. Compensation Services noted that wage loss compensation for time missed from work as of April 24, 2017 had not been authorized, with the exception of April 25 when he had a compensable medical appointment, and concluded that there was no loss of earning capacity in relation to the compensable injury during the period of April 26 to May 8, 2017.

At a follow-up appointment with his family doctor on May 27, 2017, the worker was provided with a Sick Note from May 29, 2017 to June 30, 2017. On June 13, 2017, Compensation Services advised the worker that they were unable to accept responsibility for time missed from work effective May 29, 2017, as there was no evidence of total disability and his employer continued to have full-time duties for him within his permanent restrictions.

On August 8, 2017, the worker requested that Review Office reconsider Compensation Services' decisions with respect to wage loss benefits after April 23, 2017 and his permanent partial impairment rating and monetary award.

On October 27, 2017, Review Office determined that there was no entitlement to wage loss benefits after April 23, 2017. Review Office found the evidence supported that the worker's absence from work was due to the employer/employee relationship and employment issues and not to his right ankle injury. As the compensable injury did not cause the loss of earning capacity, there was no coverage and the worker's request for full wage loss benefits after April 23, 2017 was not approved.

Review Office further determined that the worker's PPI rating of 9.00% and award of $11,700.00 were correct. They referred to WCB policy related to the calculation of PPI awards. Review Office accepted the measured outcomes regarding range of motion testing of the worker's right ankle as recorded in the WCB medical advisor's examination notes, as well as the WCB medical advisor's recommendation of a 1.00% cosmetic disfigurement rating.

On December 6, 2017, the worker's representative appealed the Review Office decision 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 Workers Compensation Act (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.

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.

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." Subsection 38(2) provides a formula to determine the monetary value of an impairment award. The dollar amount in that formula is adjusted on an annual basis pursuant to the Adjustment in Compensation Regulation (the "Regulation").

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. To maintain consistency in ratings for disfigurement and to make the ratings as objective as possible, the Healthcare Services Department makes reference to a folio of disfigurement ratings established in previous cases.

Worker's Position

The worker was assisted by an advocate who made a presentation at the hearing. Written submissions consisting of several medical reports were provided and shared with the employer in advance of the hearing.

The worker's position was that he was seeking wage loss replacement for time lost from April 26 to May 8, 2017 and from May 29 to June 30, 2017.

The worker's advocate referred to the worker's permanent restrictions which applied at that time. She noted that his family physician placed him off work on these two occasions due to swelling, stiffness and pain. In her report dated May 2, 2017, the physician stated that the worker had limited range of motion and his right ankle was painful.

The worker's job was driving a truck that he could climb in and out of during the day, which enabled him to manage his pain. Being able to move his ankle more frequently would keep it from stiffening. It was noted that the employer was looking at changing the type of truck the worker would be driving, such that he would be sitting for long periods of time and unable to move his ankle around. The advocate acknowledged, however, that such a change had not yet occurred at that time.

It was submitted that the worker was not only suffering from continued swelling, stiffness and pain in his right ankle, but also from pain in his left ankle. This, plus the fact that the truck had a schedule which had to be met, meant that he did not have the opportunity to take breaks as needed or to self-pace. The worker's advocate noted that a June 22, 2017 MRI confirmed that the worker had a left ankle injury. It was submitted that the left ankle injury may have been overlooked at the time of the workplace accident, as the main concern at that time was the injury to the worker's right ankle.

With respect to his PPI award, the worker's position was that his PPI rating should be reassessed at a higher level than 9.00%.

The worker's advocate stated that they disagreed with the assessed loss of range of motion. She noted that the worker's daily functions at home and at work had decreased significantly as a result of the accident and surgery. It was submitted that the worker's range of motion was actually far less than what was observed at the April 25, 2017 call-in examination. The worker noted that there were times where his ankle hardly moved.

The worker's advocate indicated that they also disputed the assessed cosmetic impairment rating. The worker commented that the WCB did not allow enough for the appearance of his foot, which looks terrible. It was noted that the worker had photos which indicated that his right foot is wider than his left foot and is much more swollen and deformed than it appeared on the photos which were used for determining his cosmetic rating and are on the claim file.

It was further submitted that there were a number of other factors or impairments which ought to have been considered when determining the extent of the worker's permanent impairment, including that he has no feeling in the second toe on his right foot and the shape of his foot has changed. It was suggested that the injury to his left foot, and that his leg was shorter on the right side and curved due to his injury and surgery, as well as an altered gait and loss of balance, also ought to have been considered.

Employer's Position

The employer provided a written submission for the panel's consideration and did not attend the hearing.

The employer agreed with the WCB's decision to deny responsibility for wage loss benefits after April 23, 2017, as they believed the worker was no longer totally disabled and was capable of working in a suitable accommodation.

The employer acknowledged that the worker suffered a traumatic fracture and dislocation of his right ankle on June 18, 2015. The employer noted that in August 2016, following surgery and treatment, the worker returned to sedentary duties.

The employer submitted that the worker has been assessed with permanent restrictions, which they had accommodated. In April 2017, the worker felt that his ankle had deteriorated to the point of total disability and took two weeks of sick leave. A detailed Worksite and Job Analysis which was conducted in June 2017 confirmed that the full-time accommodation offered by the employer was suitable and within his permanent restrictions. Given that the accommodation offered was within the worker's physical restrictions and his reported work capabilities, the employer agreed with the WCB's conclusion that they were not responsible for the worker's time loss beyond April 24, 2017.

The employer's further position, with respect to the second issue, was that the WCB had correctly calculated the worker's PPI award.

Analysis

Issue 1. Whether or not the worker is entitled to wage loss benefits after April 23, 2017.

For the appeal on this issue to be accepted, the panel must find that the worker suffered a loss of earning capacity after April 23, 2017 as a result of his compensable injury. The panel is unable to make that finding.

The worker's advocate confirmed at the beginning of the hearing that the worker was seeking wage loss benefits for time lost from his accident employment from April 26 to May 8, 2017 and from May 29 to June 30, 2017.

Information on file indicates that the worker had been doing well at work and performing the same work duties for several months prior to April 26, 2017. The file information does not indicate that there was any change or increase in the worker's duties or symptoms at the time, such that he was unable to continue working.

It was submitted that the worker was taken off work by his doctor work due to swelling, stiffness and pain in his right ankle. The May 2, 2017 report from his family physician, in respect of an examination on April 28, 2017, lists complaints of "Pain & limitation of movement Rt [right] ankle" and findings of "Limited ROM [range of motion] + Painful." There are no clinical findings to support that the worker was totally disabled or unable to continue with his job duties at that point in time.

In response to questions from the panel as to what was different at that time, the worker referred to the "rocking" movement of his foot on the brake, and indicated that the more he did, the more this irritated his foot. The worker indicated that "Certain times of the year are busier, and springtime can be a really busy time, same as winter, but it's just the more I use it and the more I do, the more driving, the worse it gets…plain and simple."

The panel finds that the worker's evidence with respect to an apparent increase in work, and corresponding irritation of the worker's foot was vague and inaccurate and was not supported by the information on file. The panel notes that the medical evidence during that period of time does not indicate that there was any increase in the worker's duties or work. Based on the information on file and at the hearing, the panel is unable to accept that the worker's duties or operation of the truck in or around April 2017 required more exertion on his foot or led to an increase in his symptomatology.

The panel further notes that subsequent medical information on file supports that the position which the worker occupied prior to April 26, 2017 was what was best for his injury. In a July 27, 2017 report, the treating physiotherapist noted that the worker's "current job restrictions/duties (driving truck) seems to be the best option for him." In his August 30, 2017 report, the worker's treating psychologist similarly noted that the worker was "back in his original position operating trucks" and that "This position continues to allow him to practice effective pain management, and allows him to manage the pain so that he is able to engage in some health and enjoyable activities outside of work." The panel notes that the worker went back to the same position and the same duties in July 2017 and continued doing them for a period of approximately nine months after that.

While reference was also made to the worker's use of pain medication while he was off work, and it was noted that he could not drive a truck while he was taking that medication, the worker's advocate confirmed that they were not suggesting that this was the reason the worker was unable to work during the relevant time periods.

Based on the foregoing, the panel finds, on balance of probabilities, that the worker did not suffer a loss of earning capacity after April 23, 2017 as a result of his compensable injury. The worker is therefore not entitled to wage loss benefits after April 23, 2017.

The worker's appeal on this issue is dismissed.

Issue 2. Whether or not the worker's permanent partial impairment rating and monetary award have been correctly calculated.

For the appeal on this issue to be accepted, the panel must find that the worker's PPI rating and award were not correctly calculated. The panel is not able to make that finding.

The worker has a compensable diagnosis of a fracture dislocation of his right ankle. With respect to an injury to a lower extremity, including an ankle, 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 April 25, 2017. The panel has reviewed the WCB medical advisor's notes of that 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 WCB medical advisor's measurements and findings were consistent with other medical information on file. While the worker has argued that his range of motion is actually far less than what was observed at the April 25, 2017 examination, he was unable to point to any medical information on file which supported that assertion. The panel notes that contrary to the worker's position, findings by the treating physiotherapist in his July 27, 2017 report indicated that the worker's range of motion in his right ankle were greater than those which were recorded by the WCB medical advisor.

The panel therefore finds that the medical advisor's calculation of the impairment rating of 7.90% for loss of range of motion was correct.

The WCB medical advisor also considered a cosmetic impairment rating, based on his visual examination of the worker's right ankle and review of digital pictures of that ankle which were then placed on file. Reference was made in his notes to well-healed scars and swelling of the right ankle as compared to the left. 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 1.00% 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 7.90% with the cosmetic rating of 1.00%, the WCB medical advisor arrived at a total recommended PPI rating of 9.00%, which was subsequently approved by Compensation Services.

While it was submitted at the hearing that a number of other factors ought to have been considered in the April 25, 2017 assessment of the worker's permanent partial impairment award, the panel is unable to find, based on the information which is before us, that these factors applied or should have been considered at that time. The panel notes, among other things, that while a secondary diagnosis of left anterior tibialis tendinopathy had been made, the medical reports indicated that this was expected to be temporary. In response to questions from the panel, the worker's advocate also indicated that other considerations, including that of the worker's leg being "slightly short and in recurvatum," were raised subsequently, in a May 14, 2018 report from a consulting orthopedic surgeon. The worker's advocate noted that the orthopedic surgeon had also indicated in that report that further treatment may be required once a new CT scan is done and assessed, and that they were requesting that a new PPI assessment be done at that time.

The panel notes that a PPI assessment is based on the compensable injuries or conditions which have been recognized at the time of the assessment. To the extent that further or subsequent injuries or conditions may have been identified since the April 25, 2017 PPI assessment or may be identified at some future time, the panel is unable to find that they ought to have formed part of this assessment or to comment on whether they should be the subject of any further assessment.

The panel therefore finds that the PPI rating of 9.00% was properly established.

The panel has also reviewed the calculation of the monetary amount of the PPI award and finds that it has been correctly calculated at $11,700.00 ($1,300.00 for each full 1.00% of impairment) in accordance with the formula in subsection 38(2) of the Act, as adjusted by the Regulation.

Based on the foregoing, the panel finds that the worker's permanent partial impairment rating and monetary award have been correctly calculated.

The worker's appeal on this issue is dismissed.

Panel Members

M. L. Harrison, Presiding Officer
R. Hambley, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

M. L. Harrison - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 3rd day of August, 2018