The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing decisions made by the Workers Compensation Board ("WCB") that his permanent partial impairment ratings and monetary awards relating to incidents that occurred on April 25, 1996 and November 28, 2017 have been correctly calculated. A hearing was held on November 19, 2019 to consider the worker's appeals.

Issue

1. Date of Accident - April 251996: Whether or not the worker's permanent partial impairment rating and monetary award have been correctly calculated;

2. Date of Accident - November 28, 2017: Whether or not the worker's permanent partial impairment rating and monetary award have been correctly calculated.

Decision

1. Date of Accident - April 25, 1996: That the worker's permanent partial impairment rating and monetary award have been correctly calculated.

2. Date of Accident - November 28, 2017: That the worker's permanent partial impairment rating and monetary award have been correctly calculated.

Background

Date of Accident - April 25, 1996

The worker has an accepted claim for a psychological injury arising out of a workplace incident on April 25, 1996. The worker was initially diagnosed with "situational anxiety, work related stress." He was off work for a few days after the incident, then returned to the worksite, but felt unable to continue working there. He requested and was granted a transfer to a different position later that year.

The worker continued working full-time to January 2014, when he requested part-time work only at 50% of his full duties to help him deal with ongoing psychological symptoms and to "take care of myself." The WCB case manager requested the worker be examined by a WCB psychological consultant to determine whether his request to work part-time only was related to his compensable injury.

On May 21, 2014, the worker attended a call-in examination with a WCB psychological consultant, who noted that the worker had developed post-traumatic stress disorder ("PTSD") after the workplace incident and after being directed to return to work at the site where the incident had occurred. The WCB psychological consultant opined that while the worker had a diagnosis of PTSD with residual symptoms which waxed and waned with situational stressors, his symptoms were being controlled by medication and he had been able to work his full regular duties since 1996. The consultant opined that the worker's not working full-time was predominantly related to labour relational issues, and only indirectly and to a lesser degree to his PTSD.

On June 20, 2014, the WCB's Compensation Services advised the worker that they accepted responsibility for his PTSD in relation to his 1996 claim, but did not accept responsibility for his partial wage loss benefits beginning in January 2014 as being related to his PTSD. The worker appealed that decision to Review Office, and on May 10, 2016, Review Office dismissed his appeal and confirmed there was no entitlement to partial wage loss benefits beginning January 2014.

On April 29, 2019, the worker contacted the WCB to inquire about getting a permanent partial impairment ("PPI") assessment for his compensable injury. In a discussion with his WCB case manager on May 1, 2019, the worker advised that he had retired the previous summer because of his PTSD. He said he continued to experience symptoms of his psychological injury, but felt he was better able to function since his retirement. On May 14, 2019, the worker's file was reviewed by the WCB psychological consultant who determined that the worker was at maximum medical improvement ("MMI") and a further call-in examination was arranged.

The worker attended the call-in examination with the WCB psychological consultant on June 12, 2019. Based on his assessment of the worker, the psychological consultant opined that given his ongoing symptoms, which would be permanent, the worker would be eligible for a PPI rating in the psychological domain. The consultant noted that there was no evidence the worker had a pre-existing history of mental health disorders or pre-existing functional psychological impairment. Using the WCB's Mental Health Rating Schedule, with the impairment rating being made in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment, the psychological consultant concluded that the worker's PPI rating would be 10%. The consultant noted that this rating was determined on the basis that the worker was well-functioning, but still had meaningful ongoing symptoms of PTSD.

On July 5, 2019, Compensation Services advised the worker that he was entitled to a PPI rating of 10% which resulted in a monetary award in the amount of $856.00. Compensation Services advised that the monetary award was calculated to be in the amount of $1,070.00, being the set amount for ratings between 5% and 10%, less a 20% age reduction of $214.00, being 2% for each year of the worker's age over 45.

On July 8, 2019, the worker contacted the WCB and discussed his monetary award with the Manager of Sector Services. The worker said he had been told he was to get $10,000.00 but the cheque he received was for $856.00. The Manager advised the worker that the PPI rating and amount were based on the legislation in effect at the date of his workplace accident, and the amount he was paid had been correctly calculated. By letter dated July 9, 2019, the Sector Services Manager apologized to the worker for the incorrect information previously provided regarding his PPI award and confirmed her advice that the award had been correctly calculated.

On July 15, 2019, the worker requested that Review Office reconsider Compensation Services' decision. The worker submitted that he had been advised by his WCB case manager that he was to receive over $10,000.00, and that he believed he was entitled to that amount.

On September 5, 2019, Review Office determined that the worker's PPI rating and monetary award were correct. Review Office accepted the PPI rating of 10% as provided by the WCB's psychological consultant, and noted that pursuant to the legislation in place at the time of the workplace accident, the monetary award was calculated correctly.

On September 17, 2019, the worker appealed the Review Office decision to the Appeal Commission.

Date of Accident - November 28, 2017

On December 4, 2017, the worker reported to the WCB that he injured his left leg and left knee when he slipped on ice on his way into work on November 28, 2017. The worker's claim was accepted and payment of benefits, including physiotherapy, commenced.

Due to ongoing symptoms, an MRI study of the worker's knee was performed on January 28, 2018. The MRI showed a high-grade partial thickness tearing of the posterior cruciate ligament ("PCL"), a horizontal tear of the posterior horn and body of the medial meniscus and moderately severe chondromalacia within the patellofemoral compartment. The PCL tear was accepted by the WCB as being related to the workplace accident, but the meniscal tear and chondromalacia were considered to be pre-existing degenerative conditions. The worker returned to full duties at work and continued with physiotherapy treatment to April 2018.

On November 19, 2018, the worker contacted the WCB to request an assessment for a PPI rating. On November 29, 2018, a WCB physiotherapy consultant reviewed the worker's file and determined that the worker was at MMI. A call-in examination was arranged and took place on December 6, 2018, at which time the WCB physiotherapy consultant assessed the worker and determined he had a PPI rating of 2.10% for left knee mobility. The consultant further determined that the worker had a major pre-existing condition which affected his knee mobility, and his PPI rating for loss of mobility was therefore reduced by 50% to 1.05%. A 1% impairment rating was also recommended for knee instability, resulting in a total recommended PPI rating of 2.05%.

On December 11, 2018, Compensation Services advised the worker that he was entitled to a PPI rating of 2.05%, which resulted in a monetary award of $2,740.00, being $1,370.00 for each full 1% of impairment. On December 17, 2018, the worker advised his WCB case manager that he disagreed with the reduction of his PPI for a pre-existing condition.

On December 27, 2018, the worker requested that Review Office reconsider Compensation Services' decision. The worker submitted that the pre-existing condition in his knee was not related to the left knee injury he sustained at work on November 28, 2017.

On February 14, 2019, Review Office determined that the worker's PPI rating and the monetary value of the PPI award were correct. Review Office accepted and agreed with the WCB physiotherapy consultant's determination of a 2.05% rating based on the results of the call-in examination and found the PPI rating of 2.05% and monetary award of $2,740.00 were correctly calculated in accordance with the legislation.

On April 17, 2019, the worker appealed the Review Office decision to the Appeal Commission.

Both claims

On September 20, 2019, the Appeal Commission advised the parties that as both issues on appeal were similar, the appeals would be heard at one oral hearing, and an oral hearing was arranged for November 19, 2019.

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 February 27, 2020, the appeal panel met to discuss the case further and render its final decision on the issues under appeal.

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.

The worker has appealed decisions with respect to PPI awards on claims arising out of two incidents, which occurred in 1996 and 2017, respectively. The Act as it existed at the respective date of accident is the applicable legislation for each appeal.

At all relevant times, subsection 4(1) of the Act provided that where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid.

Subsection 4(9) provided that the WCB may award compensation for an impairment that does not result in a loss of earning capacity.

Subsection 38(1) of the Act provided that the WCB "shall determine the degree of a worker's impairment expressed as a percentage of total impairment." Subsection 38(2) provided a formula to determine the monetary value of an impairment award. The dollar amount in that formula is adjusted or indexed on an annual basis pursuant to regulation. Pursuant to subsection 38(4) of the Act, the amounts in subsection (2) in effect on the day of the accident were to be used in determining the amount of an impairment award.

In 1996, the formula as set out in subsection 38(2)(c) of the Act, and adjusted by regulation, provided that where the WCB determined that a worker had suffered an impairment, the WCB "shall…pay to the worker" an impairment award of $1,070.00 for an impairment that was determined by the WCB to be 10%. Subsection 38(3) further provided that "…a sum payable under subsection 38(2) shall be reduced by 2% for each year of age the worker is over 45 years at the time the WCB determines the worker has an impairment…"

In 2017, the formula as set out in subsection 38(2)(a), and adjusted by regulation, provided that where the WCB determined that a worker had suffered an impairment, the board "shall pay to the worker" an impairment award of $1,370.00 for each full 1% of impairment for an impairment that was determined by the WCB to be 1% or greater but less than 30%.

The WCB's 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.

The methodology for determining the impairment rating for injuries to lower extremities is set out at pages 20 to 24 of Schedule A to the Policy.

The methodology for determining the rating for mental health impairments is set out at pages 44 to 57 of Schedule A.

The Policy further provides that if a worker has a pre-existing condition, the worker is eligible for an impairment rating based on the difference between the total rating and the rating assigned to the pre-existing condition. The Policy provides that the WCB Healthcare Advisor will assign a fair rating to the pre-existing condition based on the best information available, and states in Schedule A that:

When it is reasonable to do so, the assigned rating for the pre-existing condition will be based on the Schedule. However, when this is not practical, the impairment rating assigned to the pre-existing condition will be determined as follows:

i. A pre-existing condition that is determined to be minor will be assigned a 0% impairment rating;

ii. A pre-existing condition that is determined to be major will be assigned an impairment rating equivalent to 50% of the impairment rating for that structure.

A pre-existing condition is considered to be major for the purpose of the PPI determination if:

i. the impairment was/is significantly affected by the pre-existing condition…

Worker's Position

The worker was self-represented on the appeal. The worker made an oral presentation at the hearing and responded to questions from the panel.

With respect to the 1996 claim, the worker's position was that the WCB had informed him he was entitled to a PPI award of over $10,000.00 based on $1,040.00 for each 1% of his 10% PPI rating, and that he was entitled to receive that amount.

The worker submitted that he has had PTSD since 1996 and his issues have never subsided. He said the PTSD has drastically affected his life over the years. He saw a psychiatrist, had all the treatment he could get, and retired the moment he was eligible to do so.

The worker said he had to relive the incident and his experiences when he went for his PPI call-in examination. He said the WCB psychological consultant did a fair evaluation, providing a rating of 10%. His case manager then told him he would be entitled to over $1,000.00 for every 1%, which would amount to over $10,000.00, and he said great. He said he felt that he was finally going to get some compensation for what he had gone through. Then three days later he received a cheque for $856.00. The worker said this was devastating to him; it was like a slap in the face and further triggered his PTSD.

The worker submitted that the case manager and WCB should be held accountable for what they said, that they cannot lie to someone like that, especially to someone with PTSD. The worker said he had always been taught that you treat a person as an individual, in a fair and impartial manner, taking into account the circumstances. He submitted that the WCB failed to do so in his case. They told him he would be getting a certain amount, and in his view, he was entitled to receive that amount in full.

With respect to the 2017 claim, the worker's position was that the WCB erred in reducing his PPI rating and monetary award due to an apparent degenerative condition, and he is entitled to the full PPI rating of 3.1% and a monetary award on that basis.

The worker submitted that he was not treated fairly and the WCB failed to look at the whole picture. The worker submitted that he suffered an almost complete tear of his PCL, and only a strand of it was left. He said he never knew there were any issues with respect to his knee prior to the workplace incident. In any event, any such issues were irrelevant because his injury occurred when he slipped and fell on black ice at the worksite. He did not slip or fall because of any pre-existing issues and any such issues would have had nothing to do with his workplace injury. He said that if he has a degenerative condition at this point, it is because of his workplace incident.

The worker challenged the WCB physiotherapy consultant's characterization of his pre-existing condition as a "major" pre-existing condition. The worker submitted that the radiologist described this as a "minor" condition, and the radiologist's finding should be preferred over that of the WCB physiotherapy consultant.

The worker submitted that he will continue to suffer the effects of this injury for the rest of his life. He struggles every day. His knee continues to hurt, he is shaky going up and down stairs and he has trouble getting out of chairs. In his view, it was unfair to "punish" him for some pre-existing condition that he was not aware of, and he should be entitled to the full 3.1% PPI rating in respect of his 2017 knee injury.

Employer's Position

The employer was represented by its Workers Compensation Specialist. The employer's position was that the worker's PPI ratings and monetary awards were correctly determined, and the worker's appeals should be dismissed.

The employer's representative noted that the panel is bound by the Act and policies of the WCB's Board of Directors. He submitted that the legislation in place at the relevant times was clear as to how the PPI awards were to be calculated, and the worker received the appropriate awards under the legislation in force at the relevant times.

With respect to the 1996 claim, the employer's representative observed that the 10% PPI rating did not appear to be in dispute. He submitted that while the corresponding monetary award of $856.00 was not to the worker's liking or what he expected, it was correctly determined based on the applicable legislation, being the legislation which was in effect at the time of the accident in 1996. The representative submitted that it was clear through the legislation and Policy how the PPI was to be calculated. He submitted that the calculations were done in accordance with the relevant provisions, and that the worker received all he was entitled to under the Act.

With respect to the 2017 claim, the employer's representative reviewed the provisions of the Act and Policy as they pertained to the calculation of the PPI rating and award. The representative submitted that the WCB's physiotherapy consultant examined the worker and calculated his PPI rating correctly, and there was no evidence of anything having been done inappropriately. It was submitted that the physiotherapy consultant appropriately determined that the worker had a major pre-existing degenerative condition, based on the medical findings, and reduced the loss of mobility rating by 50% in accordance with the Policy.

In conclusion, the employer's representative agreed that it was unfortunate the worker was given wrong information with respect to his 1996 claim, and understandable that he might feel disadvantaged. He submitted, however, there were no grey areas in terms of how the benefits were to be calculated, and at the end of the day, the employer was of the view that the worker's PPI ratings and awards were correctly calculated and the worker received what he was entitled to under the Act and Policy.

Analysis

The issues before the panel are whether or not the worker's permanent partial impairment ratings and monetary awards relating to incidents that occurred on April 25, 1996 and November 28, 2017 have been correctly calculated. For the worker's appeals to be successful, the panel must find that the worker's PPI ratings were not correctly assessed and/or the monetary values of the PPI awards were not correctly calculated in these claims. The panel is unable to make these findings.

Date of Accident - April 25, 1996

Based on our review of all of the information which is before us, on file and as presented at the hearing, the panel is satisfied that the worker's PPI rating and monetary award in this claim have been correctly calculated.

The panel notes that there is no dispute or disagreement with respect to the PPI rating of 10% in this claim as determined by the WCB's psychological consultant. The worker acknowledged at the hearing that he did not take issue with that rating and that he felt the psychological consultant had done a fair evaluation. The panel also reviewed the WCB psychological consultant's notes of the PPI call-in examination and is satisfied that the PPI rating was determined in accordance with the methods and criteria which are set out in the Policy.

The issue with respect to the 1996 PPI award therefore centers on the monetary value of that award. The worker has submitted that the case manager advised him that he was entitled to payment of a much larger amount than he received, and that he relied on that promise or representation. The worker stated that the case manager and the WCB should be held accountable, and that he is entitled to payment of the full amount they said he would be paid, or over $10,000.00. The panel is unable to arrive at that conclusion.

The panel notes that there does not appear to be any dispute that the worker was initially provided with incorrect information concerning the amount he would be entitled to receive based on his PPI rating of 10%. Information on file indicates, and the employer's representative confirmed at the hearing, that they did not disagree that the worker was provided with incorrect information in this regard. A letter was sent to the worker by the Sector Services Manager apologizing for the information which had previously been provided regarding his PPI award.

As indicated previously, however, the panel is bound by the Act and WCB policies. As the workplace incident and the worker's injury occurred in April 1996, the Act which was in effect at that time is applicable to this claim and appeal.

In the circumstances, the panel is satisfied that the relevant provisions of the Act as it then read were properly applied in calculating the monetary value of the worker's PPI award. The panel has also reviewed the calculations themselves and finds that the monetary value of the award has been correctly calculated at $856.00, being $1,070.00 in accordance with subsection 38(2)(c) (as adjusted by regulation), less $214.00 (or 2% of $1,070.00 for each year of the worker's age over 45) in accordance with subsection 38(3) of the Act.

The panel acknowledges the worker's comments as to the impact that the provision of incorrect information with respect to the amount of his PPI award has had on him, and accepts that it would have caused him considerable frustration and anxiety. The panel finds that it was particularly unfortunate that the worker was advised that he was to be paid a significant amount, then received a cheque for a much lower amount without any prior notice or explanation. The panel is unable to find, however, that the worker is entitled to a further payment on this basis.

In conclusion, the panel finds that the Act, regulations and Policy were properly applied in establishing the PPI rating and in calculating the amount of the PPI award in this claim. The panel therefore finds that the worker's permanent partial impairment rating and monetary value have been correctly calculated.

The worker's appeal in this claim is dismissed.

Date of Accident - November 28, 2017

The worker has also appealed the calculation of his PPI award in respect of his 2017 compensable left knee injury. Based on our review of the information which is before us, including information obtained subsequent to the hearing at the panel's request, the panel is satisfied that the worker's PPI rating and monetary award in this claim have also been correctly calculated.

The panel notes that the accepted diagnosis as arising out of the November 28, 2017 workplace incident was a high-grade partial tear of the PCL, as documented on the January 28, 2018 MRI of the worker's left knee.

The January 28, 2018 MRI also documented a horizontal tear of the medial meniscus and chondromalacia. Based on our review of the available information, the panel is satisfied that the medial meniscus tear and chondromalacia were degenerative conditions which pre-existed and were not related to the compensable injury. The panel notes that this is supported by a February 13, 2018 opinion by a WCB sports medicine consultant, who opined that the MRI documented "horizontal meniscus tear and chondromalacia…are degenerative findings that pre-existed the November 28, 2017 workplace injury…", as well as by the January 29, 2020 memorandum from the WCB's Chief Medical Officer which was provided in response to a request from the panel following the hearing and is on file.

The worker was assessed by a WCB physiotherapy consultant at the PPI call-in examination on November 29, 2018 to help determine his PPI eligibility and entitlement. The panel has reviewed the physiotherapy consultant's notes of that examination and is satisfied that the consultant made the appropriate measurements based on loss of range of motion in the worker's left knee and instability in accordance with the process and criteria set out in the Policy. The consultant arrived at a rating of 2.1% for loss of range of motion and 1.0% for knee instability, for a total rating of 3.1%. The panel notes that the worker did not take any issue with those measurements or ratings.

The worker did not agree, however, with the subsequent reduction of his PPI rating by 1.05% (50% of the 2.1% rating for loss of range of motion) based on the presence of a major degenerative condition. The worker submitted that he was entitled to the full PPI rating of 3.1% and associated monetary award based on the full 3.1% rating. The panel is unable to arrive at that conclusion.

The panel acknowledges the worker's comments that he had no trouble with his knee prior to the incident. However, the panel accepts and agrees with the opinion of the WCB physiotherapy consultant who assessed the worker and determined that "any loss of knee mobility would be a result of the combined effect of the pre-existing knee pathology and the compensable injury."

The panel further accepts and agrees with the WCB physiotherapy consultant's determination that the worker's pre-existing degenerative condition should be considered to be major for the purpose of the PPI determination and assigned a rating equivalent to 50% of the impairment rating. The panel notes that in his submission, the worker relied on a January 15, 2018 x-ray of the worker's left knee and hip, where the radiologist had reported that there was only minor joint space loss and mild osteoarthritis, and submitted that this report should be preferred. The panel further notes, however, that the January 28, 2018 MRI of the worker's left knee documented a horizontal tear of the posterior horn and body of the medical meniscus and "moderately severe chondromalacia involving the median ridge of the patella" and "moderately severe chondromalacia involving the lateral aspect of the central trochlea…" The panel places more weight on the MRI, which we understand to be a more accurate diagnostic tool.

The panel is therefore satisfied that the worker's PPI rating for loss of range of motion was properly reduced by 50% to 1.05% based on the presence of a major pre-existing degenerative condition which would have significantly his impairment. The panel notes that there was no reduction to the laxity or knee stability rating, which the panel understands would not have been affected by the pre-existing degenerative conditions. As a result, the panel finds that the worker's PPI rating was properly reduced by 1.05%, resulting in a total PPI rating of 2.05%.

The panel would add that while the worker commented in his submission on the pain and suffering he has experienced over the years and will continue to experience as a result of his workplace injuries, a PPI award is not intended to compensate a worker for pain or suffering resulting from an injury.

In conclusion, the panel finds that the Act, regulations and Policy were properly applied in establishing the PPI rating and in calculating the amount of the PPI award in this claim. The panel therefore finds that the worker's permanent partial impairment rating and monetary value have been correctly calculated.

The worker's appeal in this claim is dismissed.

Panel Members

M. L. Harrison, Presiding Officer
P. Challoner, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 22nd day of April, 2020