Decision #49/19 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his permanent partial impairment award rating has been correctly calculated. A hearing was held on September 6, 2018 to consider the worker's appeal.
Whether or not the worker's permanent partial impairment rating has been correctly calculated.
The worker's permanent partial impairment rating has not been correctly calculated.
The worker sustained multiple injuries on September 15, 2015 while on a business trip. He underwent surgery for an L1 burst fracture on September 17, 2015. The worker's claim was accepted on September 22, 2015. Payment of wage loss and other benefits started.
On January 25, 2017, the worker was examined by a WCB medical consultant for the purpose of determining a permanent partial impairment (PPI) rating as a result of his workplace injury. The WCB medical consultant provided a calculated PPI rating of 24% whole person impairment based on the Combined Values Chart of the WCB Impairment Manual. The WCB medical consultant assessed the mobility deficits of the thoracolumbar spine, station and gait, urinary, anorecta and erectile functions of the worker in addition to scarring from the surgery undergone in September 2015.
The WCB advised the worker on February 9, 2017 that his PPI rating was 24% and based on that rating, he was entitled to a Permanent Partial Impairment award.
On January 9, 2018, the worker's representative requested reconsideration of the WCB's PPI rating to Review Office. The worker's representative disagreed with the value assigned by the WCB medical consultant regarding the worker's station and gait. The WCB medical consultant rated the worker's station and gait at 5%, in a range of 5% to 15%, noting that the worker was able to walk and stand but had difficulties with steps and distances. The worker's representative relied on the July 26, 2017 opinion of the worker's physical medicine and rehabilitation specialist who noted, in part:
[The worker] has significant difficulties with weakness and imbalance with walking and increased back pain with same as well. He is able to ambulate on level surfaces. He does have some difficulty, however, with uneven surfaces. He describes scenarios of when he comes to a curb, he has to stop, re-balance and negotiate the curb slowly. When negotiating stairs, he has difficulty with this. He states he needs a railing and is able to negotiate up to 10 steps, for example, but often needs to pause and rest part-way. If the flight of stairs is more than 10, he would need to take an elevator. He described being able to, at times, walk two city blocks but this results (sic) fatigue and he needs to rest.
The worker's physical medicine and rehabilitation specialist also provided the opinion that the worker's PPI rating for station and gait should be set at 15% as opposed to the 5% determined by the WCB medical consultant. The worker's representative also noted that the WCB medical consultant determined that the worker only experienced constipation, which did not result in a PPI rating. However, he further advised that the worker had a permanent anorectal dysfunction as a direct consequence of the workplace injury and that should be included in the PPI rating.
On March 12, 2018, Review Office advised the worker that his permanent partial impairment rating had been correctly calculated. Review Office found that the WCB medical consultant's notes taken during the PPI examination of the worker referred to Table 16.2 of the WCB's policy 44.90.10, Permanent Impairment Rating that dealt with Station and Gait. The PPI examination notes stated the worker's gait was "mildly antalgic," that he was able to rise up on his heels, was unable to rise up on his toes, his straight leg test was negative, his lower limb power was normal and equal bilaterally and there was diffuse decrease in light touch sensation noted over the entire left lower leg in a nondermatomal pattern. Based on these findings, the WCB medical advisor rated the worker at 5% in the "Ability to stand and walk, but has difficult with elevation, steps and distances" category.
With respect to the worker's anorectal function, Review Office found that for the worker's function to be rateable, it must be either in the "Reflex regulation but no voluntary control" or the "No reflex regulation or voluntary control" categories under the WCB policy. The WCB medical consultant's PPI examination notes stated the worker reported he had chronic constipation, rarely leaked stool and that he indicated he was using laxatives, had modified his diet and was having a bowel movement approximately twice a week. Review Office also found that the worker's anorectal function did not fall into either of the categories and as such, was not rateable. Accordingly, Review Office determined that the PPI rating of 24% was correct.
The worker's representative filed an appeal with the Appeal Commission on March 13, 2018. An oral hearing was arranged.
Following the hearing, the appeal panel requested additional medical information prior to discussing the case further. The requested information was later received and was forwarded to the interested parties for comment. On March 28, 2019, the appeal panel met further to discuss the case and render its final decision on the issues under appeal.
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.
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.
Subsection 38(1) states 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. Pursuant to subsection 38(2), an impairment award is not payable for an impairment assessed at less than 1%.
WCB Policy 44.90.10, Permanent Impairment Rating (the "Policy"), provides that impairment benefits are calculated by determining a rating which represents the percentage of impairment as it relates to the whole body. The Policy, as it read at the date of the decisions by the WCB, stated in part as follows:
1. The degree of impairment will be established by the WCB's Healthcare Services Department in accordance with this policy…
2. Whenever possible, and reasonable, impairment ratings will be established strictly in accordance with the schedule attached as Appendix A.
Appendix A stated that permanent impairment from a workplace injury was to be 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.
The worker was represented by a union representative. The worker answered questions from his representative and the panel.
The worker's representative stated that the worker is entitled to a greater PPI award for station and gait and for neurogenic bowel.
Regarding the worker's station and gait, he asserts that the WCB has underestimated the degree of his permanent impairment. He noted that the Policy allows for ratings between 5 and 15 percent for impairment of a worker's station and gait.
The worker's representative stated that the evidence on file supports that the worker meets the first level of the criteria in the policy, in that he has the ability to stand and walk, but has difficulty with elevation, steps and distances. He submitted that the evidence establishes that the degree of his impairment warrants a greater rating than the minimal allowable under policy. He stated that the worker's PPI award should be increased from 5% to 15% impairment for his station and gait.
In support of this position, the worker's representative referenced the opinion of the worker's treating physiatrist which indicates that the worker's station and gait impairment should be at the top of the range, 15% rather than at 5%. Regarding the opinion from his physiatrist, the worker advised that he provided her with the WCB impairment rating material so that she could make an appropriate assessment.
In reply to questions, the worker advised that he had been very active before the accident. He had served in the military, played competitive soccer and had no physical issues. The worker provided details of his workplace accident and subsequent treatments. He advised that his condition has worsened not improved. He stated:
So like I said, things have not getting better, they actually getting worse if anything, so my movement is very much restricted. I used to, you know, try to work out once or twice a week, I cannot do that right now, because I don't have good, the strength, and the ability to maintain my balance and do the things the way it used to.
When I walk sometimes actually lose the strength my leg and feel like falling. And sometimes I've actually, you know, I fell because I lose the strength in my legs you know. That happens quite often.
The worker advised that he uses both a cane and walking stick.
The worker confirmed that the biggest change has been in the level of pain and his strength.
The worker's representative also submitted that the worker should be entitled to a PPI rating for his neurogenic bowel. He submitted that the evidence confirms that he suffers from a neurogenic bowel, which has resulted in the loss of control of his bowels. The worker's representative submitted that the worker manages this problem with routine and diet, along with the use of adult incontinence products. He suggested that the fact that management is required, demonstrates there is a loss of function and control, which warrants a PPI award. He submitted that in the assessment, impact of the worker's neurogenic bowel was either under-appreciated or misunderstood. He asked that a 10 percent impairment rating be provided for the worker's neurogenic bowel.
The worker explained that he suffers from constipation which can result in an accident (uncontrollable discharge). He uses incontinence products but has been reluctant to use certain products. He has not found anything to control his bowel. The worker's representative stated:
We submit the evidence establishes that [worker's] bowel issues were perhaps not overlooked, but the impact of his neurogenic bowel was either under-appreciated or simply misunderstood.
As noted in the background, the panel requested that a further assessment be conducted on the extent of impairment with respect to the worker's station and gait. A copy of the assessment was provided to the worker and his representative.
In reply to the information subsequently received from the WCB Medical Department, the worker's representative advised, in part, that:
We submit this clinical evaluation supports our previously-advanced position that the PPI assessment undertaken on January 25, 2017 underappreciated the extent of [worker's] functional impairments, and that a higher rating is justified for the impairment of his station and gait. As such, we submit [worker] is entitled to an increased PPI award.
The employer was represented by its compensation coordinator. The employer's representative noted the Act provides that the WCB can award compensation for impairment ratings that don't result in a loss of earning capacity. He also noted that the Policy provides a permanent rating schedule to determine impairment ratings.
The employer representative noted that the impairment is to be established by the WCB's Healthcare Services Department in accordance with this policy and that, wherever possible, impairment ratings are established in strict accordance with the PPI schedules attached as schedule A. He acknowledged that in some circumstances WCB's Healthcare Services Department has discretion to use another measure for determining impairment.
The employer representative acknowledged that certain parts of the worker's rating are not in dispute but that there is disagreement between the worker's physiatrist and the WCB medical advisor with respect to the rating for station and gait and for neurogenic bowel.
Regarding station and gait, the employer's representative said that the worker's position appears to be predicated on the worker's pain being what's limiting him at this point, not necessarily anything else. He submitted that PPI assessments are not intended to compensate a worker for pain or suffering resulting from an injury.
The employer representative noted that the WCB medical advisor had the worker's physiatrist's reports at the time of review. He said the physiatrist's later report did not provide any new information that wasn't already on the file about the worker's station and gait, that the WCB medical advisor would have needed to make an assessment.
Regarding the assessment of the worker's bowel dysfunction, the employer's representative disputed that the reports from the physiatrist provide greater detail about the worker's bowel issues than the WCB medical advisor determined in his examination.
He noted the worker's representative disagreed with the Review Office position that the worker's anorectal function has to fall within the criteria noted under the Policy to be eligible for a PPI rating. The employer representative submitted that the function has to fall within that criteria, to be rated for a PPI.
The employer representative submitted that:
The worker has already received an award that fairly represents his physical loss of function relating to his compensable accident, and as such, we submit that the conclusion that the panel should reach from this hearing is that the worker's permanent impairment award is correctly calculated. As noted in the background, the panel requested that a further assessment be conducted on the extent of impairment with respect to the worker's station and gait. A copy of the assessment was provided to the employer.
In reply to the information subsequently received from the WCB Medical Department regarding the further assessment of the worker's permanent partial disability award, the employer representative advised that:
We have had the opportunity to review the recent PPI examination notes dated March 4, 2019. We are prepared to accept the results of the recent examination for station and gait and will not be providing any further written comments on the matter.
The issue before the panel is whether or not the worker's permanent partial impairment rating has been correctly calculated. For the worker's appeal to succeed, the panel must find that the permanent partial impairment rating has not been correctly calculated. The panel is able to make this finding in relation to the assessment of the worker's station and gait which in turn impacts the calculation of the worker's total permanent partial impairment rating.
There are a number of elements to the worker's impairment rating. The worker and employer agreed with respect some of the elements of the WCB PPI Medical Advisor's recommendation:
• Cosmetic rating 1.0%
• mobility deficits thoracolumbar spine 5.00%
• urinary bladder dysfunction is 5.0%
• erectile dysfunction 10.0%
This appeal dealt with the worker's disagreement on the assessment provided for his station and gait impairment and with the assessment provided for his neurogenic bowel impairment. The panel findings on these issues are as follows:
Station and Gait
Subsequent to the hearing the panel asked that the worker be re-assessed for a PPI rating on station and gait.
On February 4, 2019, the worker was reassessed by the WCB PPI Medical Advisor and the Chief Medical Advisor. The PPI examination report, including impressions, was received by the panel on March 5, 2019. The re-assessed value recommended for the worker's station and gait was increased from 5.0% to 15.0%
The panel accepts that this rating better represents the extent of the worker's injury to his station and gait. Accordingly the panel finds that the worker's rating for station and gait should be increased to 15%.
The worker's appeal is approved on this issue.
The panel considered the worker's presentation with respect to neurogenic bowel and the finding of the WCB advisor who performed the PPI examination and calculated the rating.
Table 16-5 of Schedule A of the WCB's Impairment Rating Schedule deals with impairment of the nervous system - anorectal function. It provides for an impairment rating of 5 to 10% where there is "Reflex regulation but not voluntary control." In this case the evidence, as noted at the PPI assessment, did not meet this requirement. The evidence indicated that the worker complained of chronic constipation with the rare leakage of stool. It was also noted that the worker uses laxatives as well as dietary modification and has bowel movements twice a week.
The panel finds, at the date of the assessment, the worker's condition did not qualify for a PPI award for anorectal dysfunction.
The panel notes that at the hearing the worker advised that he suffers from constipation which can result in an accident (uncontrollable discharge) and that he uses incontinence products but has been reluctant to use certain products. The panel notes that the evidence provided at the hearing suggests that the worker's condition is changing from that on the date of the assessment.
The panel accepts the evidence provided at the date of the assessment and finds that, as of that date, the worker did not have an assessable impairment with respect to his bowel as set out in Table 16-5 of Schedule A.
The panel notes that the worker may seek a re-assessment in relation to changes in his impairment, pursuant to subsections 38(6) and 38(8) of the Act.
The worker's appeal on this issue is dismissed.
A. Scramstad, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
A. Scramstad - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 18th day of April, 2019