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 December 28, 2018 and his permanent partial impairment rating and monetary award have been correctly calculated. A hearing was held on September 16, 2019 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to wage loss benefits after December 28, 2018; and

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

Decision

The worker is not entitled to wage loss benefits after December 28, 2018; and

The worker's permanent partial impairment rating and monetary award have been correctly determined.

Background

On January 2, 2015, it was reported to the WCB that the worker suffered burn injuries at work on December 29, 2014. The worker was taken to a local emergency department and later transported to the burn unit at another hospital where he was treated for significant burns to his lower body.

The worker's claim was accepted by the WCB on January 9, 2015 and payment of various benefits including wage loss and medical aid commenced. The worker underwent skin grafting surgeries, including a debridement and split thickness skin graft to his right and left buttock on January 3, 2015 and a debridement and split thickness skin graft to his right buttock and left thigh on February 4, 2015. He participated in physiotherapy after his discharge from the burn unit. The worker was provided home care and supports for daily living to help with his rehabilitation.

The WCB advised the worker on October 12, 2018 that he was eligible for wage loss benefits until December 29, 2018 inclusive. The WCB would continue to be responsible for medical aid benefits.

On October 25, 2018, the worker requested reconsideration by Review Office of the WCB's October 12, 2018 decision. In his submission, the worker noted that he required the wage loss benefits to be extended as the workplace accident had caused him to incur extra expenses for various items he needed as a result of the accident. The worker's WCB case manager met with the worker on November 13, 2018 to discuss some of the items listed in his submission and advised that a review would be undertaken as the worker may be entitled to coverage for some items as medical aid. The worker was advised of Section 39(3) of The Workers Compensation Act (the "Act") which stated that if a worker is 61 years of age or older at the time of a workplace accident, the WCB may pay wage loss benefits for a period of not more than 48 months.

The worker attended at the WCB for a Permanent Partial Impairment (PPI) examination with a WCB physiotherapy consultant on November 20, 2018. Digital pictures were taken of the worker's scarring on his back and he was examined by the WCB physiotherapy consultant and two other WCB PPI advisors. It was determined that the worker's cosmetic impairment rating was 9.00%. The worker also reported stiffness in his left knee region and range of motion was measured. It was noted that there was no ratable impairment for the worker's knees. On November 23, 2018, the worker was advised that his PPI rating was 9.00% and on November 29, 2018, the worker requested that Review Office also consider the rating as he believed the impairment rating was too low.

Review Office determined on December 13, 2018 that the worker was not entitled to wage loss benefits after December 28, 2018 and that the permanent partial impairment rating and award were correct. Review Office found with respect to the issue of wage loss, that the workplace accident occurred on December 29, 2014. At the time of the accident, the worker was 71 years of age and as such, Section 39(3) of the Act applied. Based on the Act, the maximum duration of wage loss benefits payable for the worker would be 48 months. Therefore, the worker was entitled to benefits until December 28, 2018.

With respect to the worker's permanent partial impairment rating, Review Office was in agreement with the WCB physiotherapist's opinion that 9.00% represented the worker's cosmetic impairment as it related to his whole body. Further, Review Office also agreed with the opinion that there was no ratable impairment for knee mobility in relation to the workplace accident. Accordingly, Review Office found that the worker's permanent partial impairment rating and monetary award had been calculated correctly.

The worker filed an appeal with the Appeal Commission on February 8, 2019. 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.

Section 39 of the Act addresses the duration of wage loss benefits:

Duration of wage loss benefits

39(2) Subject to subsection (3), wage loss benefits are payable until

(a) the loss of earning capacity ends, as determined by the board; or 

(b) the worker attains the age of 65 years.

Exception re workers 61 years of age or older

39(3) 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.

Sections 37 and 38 of the Act govern the determination of the permanent partial impairment rating:

Compensation payable 

37 Where, as a result of an accident, a worker sustains a loss of earning capacity or an impairment, or requires medical aid, the following compensation is payable:

(a) medical aid, as provided in section 27; 

(b) an impairment award, as provided in section 38; and 

(c) wage loss benefits for any loss of earning capacity, calculated in accordance with section 39.

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; 

(b) 30% or greater: $30,900 plus $1,240 for each full 1% of impairment in excess of 30%.

The WCB 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.

Section 2.1 a. of Schedule A provides that scheduled ratings are measured as follows:

i. Measured PPI ratings are determined by a WCB Healthcare Advisor using a specific measurement method according to the Schedule and its appendices.

Worker's Position

The worker discussed the reasons for his appeal and answered the questions of the panel. He was assisted at the hearing by family members.

The worker first addressed the question of entitlement to wage loss benefits past December 28, 2018. He stated that he finds it hard to sit idle and would still be working, despite his age, if he had not suffered this accident. The worker was seeking what he described as "fair" in this situation, which he felt should take into account his record as a hard worker and, in particular, the stress and the decline in quality of life caused by his accident.

The worker was 71 years of age at the time of the accident. He acknowledged the limitation on wage loss benefits of four years for workers aged 61 years or older, as set out in the Act, but sought an extension of at least one year which would take into account his particular circumstances.

With respect to the permanent partial impairment rating (PPI), the worker was concerned that he had received a PPI rating of 9% but that the area of his burns had been estimated at up to 17% of his body. The worker questioned whether or not the skin graft area was taken into consideration in the assessment.

The worker described on-going pain, as well as the limitations he endures as a result of the accident. The worker also mentioned that more health issues have arisen since the PPI assessment was undertaken, which he attributes to the accident, therefore the worker was seeking a revised PPI rating. Again, he mentioned wanting a result which is “fair” in light of what he suffered. 

Employer's Position

The worker's employer was supportive of the worker's appeal. The employer's representative confirmed that the worker had been hard-working and was never one to take advantage and was certainly not a malingerer. He also expressed the employer's desire to see a fair result for the worker.

Analysis

As noted, there were two issues before the panel.

With respect to the denial of benefits beyond December 28, 2018, Section 39(3) of the Act applies. The worker was 71 years of age at the time of his accident. Wage loss benefits began on December 30, 2014 and may continue for a maximum of 48 months, regardless of whether the worker’s loss of earning capacity resulting from the accident continues. Accordingly, entitlement to wage loss benefits ceased as of December 28, 2018. The panel is bound by the limits set by the Act and is unable to extend or alter the entitlement of the worker to benefits. The panel has no discretionary authority to come to a different conclusion.

With respect to the worker's PPI rating, the rating considered the cosmetic impairment related to the compensable injury. It was determined by the consensus of three independent professionals, based on the applicable Permanent Impairment Rating Schedule. The assessment took into account all parts of the worker’s body affected by the burn, including the skin graft area. The PPI rating does not address the impact or disability suffered as a result of the accident. The percentage of the worker’s body which was burned in the accident is not determinative of the PPI rating.

Consideration was also given to the loss of mobility in the worker's left knee, however both knees were assessed as having "symmetrical range of motion with a normal end feel at the end of range of motion", thus no ratable impairment of knee mobility was found.

The panel saw no reason to alter the 9% rating which was within the expected range.

Applying the Act and Regulation 1/2019, where the rating is 1% or greater but less than 30%, $1,250.00 is payable for each full % of impairment. The monetary award of $11,520.00 (9 x $1,280.00) was calculated correctly.

The worker's concerns with respect to other health issues which have more recently arisen, which he feels are a result of the accident, can not be considered by this panel on appeal. The worker may wish to initiate a further claim, which would be adjudicated in the normal course. As well, the worker may request a PPI review two years after the initial PPI assessment.

Based on the foregoing, the panel finds that there is no entitlement to additional wage loss benefits and there are no grounds for altering the PPI rating. Accordingly, the appeal is dismissed.

Panel Members

K. Gilson, Presiding Officer
P. Challoner, Commissioner
S. Briscoe, Commissioner

Recording Secretary, J. Lee

K. Gilson - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 25th day of September, 2019