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 impairment award with respect to his compensable left knee injury. A file review was held on October 4, 2018 to consider the worker's appeal.

Issue

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

Decision

That the worker is not entitled to a permanent partial impairment award

Background

On May 16, 2016, the worker stumbled while carrying a sheet of plywood, and twisted his left knee and fell. The worker's claim for compensation was accepted by the WCB and wage loss and other benefits were paid. The compensable diagnosis was a left knee medial meniscus tear.

On November 2, 2017, a WCB medical advisor reviewed the worker's file for the purposes of a permanent partial impairment ("PPI") review, and noted, in part:

[The worker] noted pain, swelling and dysfunction of the left knee after he tripped and fell at work twisting the knee.

Investigations revealed degenerative changes in the left femoral tibial compartment as well as a complex tear of the medial meniscus.

[The worker] underwent arthroscopy, debridement of grade 3 chondromalacia (sic) the left medial femoral condyle and a partial medial meniscectomy of what was described as a degenerative medial meniscus on October 24, 2016.

The physiotherapy discharge report describes a full range of motion of the knee with pain.

[The worker] noted that the knee is sore and does not move the same as before surgery.

The WCB medical advisor went on to state that the worker was at maximum medical improvement and would be assessed for a possible PPI for a cosmetic rating and "Query mobility deficits left knee."

On November 23, 2017, the worker was seen at the WCB's office for an examination by the WCB medical advisor to help determine a PPI rating. The WCB medical advisor reported that digital pictures of scars around the left knee were taken, and the scarring was compared to the folio of images at the WCB. The medical advisor determined that there was no ratable cosmetic impairment related to the compensable injury.

The WCB medical advisor further stated that on examination, the worker demonstrated a normal gait, that he was able to heel and toe walk without difficulty and performed a partial squat. No complaints were elicited with palpation of the left knee or with active guided range of motion measurements, and no instability of the knees was noted bilaterally. Right and left knee mobility was measured, and the active guided range of motion measurements for both knees were the same. The WCB medical advisor concluded there was no ratable impairment in regard to the worker's compensable injury.

On November 24, 2017, the WCB advised the worker that he did not have a ratable PPI as a result of his left knee injury. On January 11, 2018, the worker requested that Review Office reconsider the WCB's decision.

On March 12, 2018, Review Office determined that there was no entitlement to a PPI award. Review Office noted that the deficits to be considered for rating in the worker's case were cosmetic disfigurement and loss of mobility of a joint. Review Office accepted that the worker's well-healed portal scars did not equate to a ratable cosmetic impairment. Review Office also accepted the range of motion of the worker's left knee as measured by the WCB medical advisor. As the range of motion of the worker's left knee was the same as that of his right knee, Review Office found that there was no measurable loss of range of motion and no ratable impairment.

On March 19, 2018, the worker appealed the Review Office decision to the Appeal Commission and a file review 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.

The method for calculating compensation for an impairment is set out in section 38 of the Act. Subsection 38(1) provides that "[t]he board 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"). The Policy states that impairment benefits are calculated by determining a rating which represents the percentage of impairment as it relates to the whole body. It is expressly noted that the benefit is not related to loss of earning capacity nor is it a proxy for loss of earning capacity.

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 will be established strictly in accordance with the PPI Schedules attached as Schedules A and B.

Schedule A states 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 to the Policy provides:

4.1 Lower Extremity: Loss of Movement

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).

For a cosmetic rating, Schedule A states, in part, as follows:

9. Disfigurement

…Disfigurement is 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…

In order to maintain consistency in ratings for disfigurement, and to make the ratings as objective as possible, WCB's Healthcare Services Department will make reference to a folio of disfigurement ratings established in previous cases.

Worker's Position

The worker does not agree with the WCB's decision that he is not entitled to a permanent partial impairment award.

In his appeal form dated March 19, 2018, the worker states that:

First of all doctor did not send my doctor any statement. I did not do any heel walking - 4 steps of toe walking, one squat. I believe I am being descriminated (sic) against.

The panel notes that in his appeal form to Review Office dated January 11, 2018, the worker also indicated that in his view, the examination by the WCB medical advisor was too brief or inadequate. He noted that the examination lasted 15 minutes; that the medical advisor had him walk on his tip toes 4 steps, do a half squat, moved his leg back and forth and measured both legs, and that was it. He said he told the WCB medical advisor that he had some pain and difficulty with stairs and stepping up and down, as well as climbing. The worker noted that his job involved not only climbing stairs and scaffolding, but carrying material that weighed 50 to 100 lbs. The worker noted at that time that he had only worked from March 6, 2017 to May 16, 2017. He said that he could always move his leg.

Employer's Position

The employer did not participate in the appeal.

Analysis

The issue before the panel is whether or not the worker is entitled to a permanent partial impairment award. For the worker's appeal to be successful, the panel must find that the Act and/or Policy were not correctly applied in this case. The panel is unable to make that finding, for the reasons that follow.

The panel has reviewed the notes of the WCB medical advisor who performed the PPI examination on November 23, 2017. With respect to loss of movement in the worker's left knee, the notes show that as part of his assessment, the medical advisor measured the worker's left and right knee mobility using a goniometer, "as per the American Academy of Orthopedic Surgeons 'The Clinical Measurement of Joint Motion' handbook," and determined that the active guided range of motion for the left and right knees was the same. The panel is satisfied that the medical advisor made the appropriate measurements, correctly applying the criteria set out in the Policy.

Although the worker has argued that the examination by the WCB medical advisor was too brief or inadequate, the panel could find no evidence of an error in the assessment or in the determination by the medical advisor that the worker had no ratable range of motion impairment. The panel is satisfied that the medical advisor's assessment was conducted in accordance with the process which is set out in the Policy, and accepts his conclusion of no ratable range of motion or mobility impairment.

The worker has also argued that he experienced pain and had difficulty climbing stairs, that he had or would have difficulty performing his job duties, and that he had only worked a limited period of time, between March and May 2017. The panel notes, however, that the impact of an injury on a worker's occupational or personal life is not part of the impairment assessment, and a change in the worker's functional ability is not a factor to be taken into consideration when calculating a PPI award. As previously indicated, an impairment benefit is not related to loss of earning capacity nor is it a proxy for loss of earning capacity. An impairment benefit is also not intended to compensate a worker for any pain or suffering flowing from an injury.

With respect to the assessment for cosmetic disfigurement, the WCB medical advisor observed at the examination that there were well-healed portal scars around the worker's left knee. Digital pictures were taken of the worker's left knee scars, and the scarring was compared to the folio of images at the WCB. Based on his assessment, and in the exercise of his judgment, the WCB medical advisor concluded that there was no ratable cosmetic impairment related to the compensable injury. The panel is satisfied that the medical advisor's assessment in this regard was conducted in accordance with the process which is set out in the Policy, and accepts his conclusion of no ratable cosmetic impairment.

The panel acknowledges the worker's concerns and frustration, but as indicated above, the panel is satisfied that the PPI assessment was conducted, and the determination of no ratable impairment in regard to the compensable injury was established, in accordance with the Act and Policy.

Based on the foregoing, the panel finds that the Act and Policy were correctly applied, and that the worker does not have a ratable impairment in regard to his compensable left knee injury. The worker is therefore not entitled to a permanent partial impairment award.

The worker's appeal is dismissed.

Panel Members

M. L. Harrison, Presiding Officer
A. Finkel, Commissioner
D. Neal, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 28th day of November, 2018