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 an increase in the permanent partial impairment rating and that responsibility should not be accepted for the worker's psychological condition as being a consequence of the September 8, 1999 accident. A hearing was held on October 10, 2018 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to an increase in the permanent partial impairment rating; and

Whether or not responsibility should be accepted for the worker's psychological condition as being a consequence of the September 8, 1999 accident.

Decision

The worker is not entitled to an increase in the permanent partial impairment rating;

The panel finds that the issue of the worker's psychological condition requires further investigation and accordingly declines to deal with the issue. The panel refers this issue back to the WCB to further investigate and adjudicate.

Background

The worker's left leg, left shoulder and right arm were injured on September 8, 1999 when he was crushed between equipment and a rock wall. He further developed an infection in his left upper thigh that progressed into recurrent cellulitis. The WCB accepted his claim and the payment of benefits started. On October 4, 2001, the worker was provided with a permanent partial impairment (PPI) rating of 10%.

The worker's claim for psychological injuries was not accepted. The worker's claim for

psychological difficulties in 2003 was reviewed by a WCB medical advisor at the time who noted there was no evidence in any of the medical reports to indicate or suspect post-traumatic stress disorder (PTSD). The worker's claim was further reviewed by a WCB medical advisor in 2007 who opined that any psychological issues were unrelated to the workplace injury.

In a meeting with the WCB on January 8, 2018, the worker requested that his PPI rating be reviewed as he felt the infections were getting worse. He also requested that PTSD be accepted as part of his claim.

The WCB advised the worker on February 5, 2018 that his PPI rating had been reviewed by a WCB medical advisor on January 25, 2018 who confirmed that the worker's PPI rating on October 4, 2001 was 10% whole body impairment, consisting of 9% for the lymphatic system and 1% for cosmetic. As well, the WCB advised the worker that there was no change to their decision of June 11, 2007 with respect to his claim for psychological difficulties.

On February 12, 2018, the worker requested reconsideration of the WCB's decisions to Review Office. The worker felt that as he had been hospitalized regularly and the infections were damaging his body more each time, his medical condition should be reviewed in greater depth than the process set out in the AMA Guides.

Review Office advised the worker on April 5, 2018 that there was no entitlement to an increase in his PPI rating and no entitlement to benefits related to a psychological condition. Review Office relied on the January 23, 2018 opinion of the WCB medical advisor who is responsible for PPI assessments that there was no change in the worker's PPI rating comparing the AMA Guides, Fourth Edition to the AMA Guides, Sixth Edition.

Review Office also found that the worker's PPI rating has been set appropriately. Review Office noted that the worker originally reported to the WCB that he felt he developed PTSD in 2003 as a result of his workplace accident. A WCB medical advisor provided an opinion on December 10, 2003 that there was no medical evidence to support that the worker had developed PTSD. A February 15, 2007 report from the worker's psychologist noted that the worker was experiencing psychological disturbance "due to a number or (sic) personal stressors." Review Office determined that there was no evidence on the file that the worker had a psychological condition (PTSD or otherwise) as a result of his workplace injury and accordingly, there was no entitlement to benefits related to a psychological condition.

The worker filed an appeal with the Appeal Commission on April 23, 2018. 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 Board of Directors.

Under subsection 4(1) of the Act, 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.

Payment of compensation for an impairment is provided for under section 38 of the Act which reads as follows:

Determination of impairment

38(1) The board shall determine the degree of a worker’s impairment expressed as a percentage of total impairment.

Calculation of impairment award

38(2) Where the board determines that a worker has suffered an impairment, the board shall pay to the worker as a lump sum an impairment award in the following amount, for an impairment that is determined by the board to be (a) 1% or greater but less than 30%: $1,030. for each full 1% of impairment…

Pursuant to subsection 44(1) of the Act, the specific dollar amount of $1,030 is to be indexed annually, and the adjusted amount for 2008 is $1,090.

In accordance with the Act, the WCB Board of Directors established WCB Policy 44.90.10. Permanent Impairment Rating (the “PPI Policy”) which provides guidelines on how impairment awards are to be calculated. The PPI Policy states:

2. Whenever possible, and reasonable, impairment ratings will be established strictly in accordance with the schedule attached as appendix A.

Worker's Position

The worker attended the hearing with his spouse.

Issue 1: Whether or not the worker is entitled to an increase in the permanent partial impairment rating.

The worker explained that at the time of the accident he was only 26 years old. He said that he was led to believe his injury would heal and go away. He noted that originally, he received a 1% impairment rating:

based on some scars which are scars, they don’t, neither here nor there, they don’t really change life much.

He said he was then given a rating for damage to his lymphatic system, which is not objectively seen on x-ray or in any type of scope. He stated

I have, for 19 years, dealt with my legs being different sizes now and different, the edema is in my leg 24/7, 365 days a year. I have no feeling in my leg and I’ve been hospitalized at least a dozen times in the last 12 years, accounting to literally months of my life being spent in hospital rooms for something that was supposed to heal.

So in my mind, what was taken from me that day was more than 10 percent as seen in a guideline. There was no guidelines for it, there’s records in my files that state that my injuries had, there was nothing in the guidelines that pertained to my injury, and it was something that was put together after the fact.

The worker acknowledged that he is able to wear compression stockings and that the stockings do control the edema to a point. He added that even with compression socks on, he still has marked edema.

He said that:

There is a large difference between the size of my legs, and the fact that even with the stockings, if lean into something or whatever, that leaves a half-inch to one-inch indent in the front of my leg that stays there…

The worker advised that if he has to climb stairs a lot his knee or leg does get weak. He indicated that he is able to perform his full job duties with this injury.

In regards to the AMA Guidelines and the difference between marked edema and persistent edema, the worker commented that his edema is excessive and stated:

In my mind, of course, it is. It’s there all the time, it’s definitely a noted hindrance if I’m doing things beyond what, you know, what I would do in a regular workday, but it is subjective between persistent and marked.

The worker said that he considers his condition to be partially controlled because it doesn’t change, it doesn’t reduce the size of his leg to normal, or to what it was before the accident.

The panel reviewed the AMA guideline with the worker.

The worker advised that he reviewed other decisions of the Appeal Commission. He noted a case with nearly identical physical findings to his case but the worker in the other case received a substantial settlement. He acknowledged that the other case was under a different version of the Act.

Issue 2: Whether or not responsibility should be accepted for the worker's psychological condition as being a consequence of the September 8, 1999 accident.

The worker explained that:

since my accident, I’ve always been somewhat anxious and had, like, changes in attitude, and changes in behaviour since that point.

He said that in December 2016:

…I had a severe episode, or a breakdown, that, and that is the only way I can describe it, so sorry, it scared the hell out of me. And I had my wife and my brother-in-law take me to the crisis centre, and I was able to, through a number of appointments with a psychologist and the initial meeting, to understand what PTSD is, and better understand it, and become comfortable with the point of medication to help control that.

He said there is nothing in his life that has affected him as much as that accident, and that’s the only thing that he attributed to the change and to things over the years. He said that he inquired about a psychological condition in 2003. He saw a psychologist in 2006 regarding a personal matter. The psychologist advised the worker that he had a psychological condition arising from his workplace injury. The psychologist reported this to the WCB in February 2007.

In reply to a question, the worker advised that he did not see any physician or other provider about a psychological problem between 2007 and 2015.

Employer's Position

The employer is no longer in business and did not participate in the hearing.

Analysis

Issue 1: Whether or not the worker is entitled to an increase in the permanent partial impairment award

The worker disagrees with the WCB's calculation of his permanent impairment related to his 1999 workplace injury. He also disagrees with the amount of the payment he received. The issue to be determined by the panel is whether the worker is entitled to an increase in his permanent impairment award. For the worker's PPI to be increased, the panel must find there was an error in the calculation of the worker's impairment or that his impairment has worsened. The panel was not able to make such findings.

In reaching this decision, the panel reviewed the extent of the worker's injury and the calculation of the resulting impairment. The worker's impairment was calculated pursuant to 38(1) of the Act which provides that the WCB shall determine the degree of a worker's impairment expressed as a percentage of total impairment.

In the worker's case, the WCB Medical Advisor responsible for PPI ratings determined, pursuant to Subsection 6 of the PPI Policy, that the policy did not address the worker's condition. As provided in the PPI Policy, the WCB Medical Advisor applied the American Medical Association's Guides to the Evaluation of Permanent Impairment (AMA Guidelines).

With respect to the worker's condition, the WCB Medial Advisor found that Subsection 4.6.5, Vascular Injuries, was the appropriate guideline to rate the worker's impairment. The WCB Medical Advisor determined that the worker's condition fell within Class 1 for Lower Extremity Peripheral Vascular Disease. This resulted in a rating of 9 % for the lymphatic system and 1% for cosmetic disfigurement.

The panel reviewed the AMA Guidelines and the criteria with the worker at the hearing and, considered the worker's condition and the various classes provided under Subsection 4.6.5 of the AMA Guidelines. The panel finds that Class 1 is the appropriate classification for the worker's condition, as was the placement of the worker at the top end of that class.

The worker also identified several physical limitations which impact his mobility. These include limitations on walking and standing. The panel notes that these physical limitations are not related to the loss of range of motion and scarring which are the primary elements identified in the Policy and are to be used in assessment of a permanent partial impairment. The panel does not have the capacity to expand the assessment for these other limitations.

The panel finds, on a balance of probabilities that the worker's permanent partial impairment award has been properly calculated and that the worker is not entitled to an increase in the award. The panel further finds that the payment provided to the worker for his impairment was calculated correctly, in accordance with the Act and Regulations. The worker's appeal of this issue is dismissed.

2. Whether or not responsibility should be accepted for the worker's psychological condition as being a consequence of the September 8, 1999 accident

The worker referred to the impact of the injury on his mental condition. The worker disagreed with the WCB's determination that responsibility should not be accepted for the psychological conditions as being a consequence of the 1999 workplace injury. He stated that he suffered from PTSD as a result of the 1999 accident and provided information on counselling that he has received for his psychological condition. The panel notes that the worker described significant psychological issues in 2016 that he related to his workplace accident.

The panel finds that this issue requires further investigation and decisions by the WCB, given the passage of time, the new evidence provided by the worker and accordingly declines to deal with the issue. The panel refers this issue back to the WCB to further investigate and adjudicate.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
M. Payette, Commissioner

Recording Secretary, J. Lee

A. Scramstad - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 7th day of November, 2018