Decision #96/24 - Type: Workers Compensation

Preamble

The worker appealed from the decision made by the Workers Compensation Board ("WCB") that: 

1. Their permanent partial impairment rating of 6% for urinary bladder function and cosmetic disfigurement have been correctly calculated; and 

2. The monetary award for the impairment rating has been correctly calculated.

A file review was held on October 3, 2024 to consider the worker's appeal.

Issue

1. Whether or not the worker’s permanent partial impairment rating of 6% for urinary bladder function and cosmetic disfigurement have been correctly calculated; and 

2. Whether or not the monetary award for the impairment rating has been correctly calculated.

Decision

1. The worker’s permanent partial impairment rating of 6% for urinary bladder function and cosmetic disfigurement have been correctly calculated; and 

2. The monetary award for the impairment rating has been correctly calculated.

Background

On December 14, 2021, the worker submitted a Worker Incident Report to the WCB outlining that they were diagnosed with prostate cancer which they attributed to their work duties. After the WCB obtained medical information, it accepted the worker’s claim on February 28, 2022 and provided various benefits to the worker.

The worker’s cancer treatment included a prostatectomy on May 13, 2022, following which, the worker received physiotherapy. On February 13, 2023, the worker contacted the WCB to inquire as to establishing their permanent partial impairment (“PPI”) and the WCB advised that process would begin in May 2023, one year after the worker’s surgery.

On May 17, 2023, the worker advised the WCB that the treating urologist requested further testing to be completed in August 2023. The urologist’s May 11, 2023 report noted an increase in certain levels on recent blood testing and recommended further investigation. On September 28, 2023, the worker advised the WCB of the details of the treatment they were receiving.

On January 16, 2024, a WCB medical advisor reviewed the worker’s file and concluded that as the worker likely reached maximum medical improvement, they could be assessed to establish a PPI rating. On February 12, 2024, a WCB medical advisor examined the worker to determine their eligibility for a PPI rating. After examining the worker and reviewing the treatment history, the medical advisor concluded the worker’s impairment of urinary bladder function pursuant was equivalent to 5%, noting “The nature of [the worker’s] urinary bladder function is not in keeping with the next category…the criteria of which includes no voluntary control of urinary function”, as the worker report some degree of urinary leakage with a bladder management program. With respect to cosmetic impairment, the medical advisor compared a digital photograph of the worker’s scar from the prostatectomy to a folio of images on file at the WCB and concluded the cosmetic impairment should be rated at 1%.

On March 4, 2024, the WCB provided a decision letter to the worker setting out the established PPI rating of 6% and the related monetary award of $9,000.00. On March 14, 2024, the worker requested Review Office reconsider the WCB’s decision, as they disagreed with the medical advisor’s opinion that they had good bladder reflex activity and control, indicating that they continued to experience urinary leakage and need to wear bladder control pads 24 hours a day, and as such, believed the rating for urinary bladder function should be higher than 5%. On April 23, 2024, the employer provided a submission to Review Office supporting the WCB’s decision, and the worker provided a response on April 28, 2024.

On June 18, 2024, Review Office determined the worker’s PPI rating of 6% and monetary award of $9,000.00 were correctly calculated. Review Office noted the worker’s position they had no voluntary control over their bladder, but found the evidence did not support this position. Review Office found the bladder function rating category of 5% was correct at 5%, and as the cosmetic rating of 1% was not in dispute, Review Office concluded the total PPI rating of 6% with related monetary award of $9,000.00 was correct.

The worker filed an appeal with the Appeal Commission on June 24, 2024 and a file review was arranged.

Reasons

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by the provisions of The Workers Compensation Act, regulations under the Act and the policies established by the WCB's Board of Directors. The provisions of the Act in effect as of the date of the worker’s accident are applicable.

A worker is entitled to benefits under s 4(1) of the Act when it is established that a worker has been injured because of an accident at work. When the WCB determines that a worker has sustained a loss of earning capacity, an impairment or requires medical aid because of an accident, compensation is payable under s 37 of the Act. Section 4(9) provides that the WCB may award compensation for an impairment that does not result in a loss of earning capacity, and s 38 of allows the WCB to determine the permanent partial impairment rating as a percentage of total body impairment and to make an award based upon each full percentage of whole-body impairment. Manitoba Regulation 132/2020, Adjustment in Compensation Regulation made pursuant to the provisions of the Act provides in Schedule A to that Regulation that a permanent partial impairment award made in respect of an injury sustained in 2021 shall be $1,500 per full percentage point of impairment rating.

The WCB’s Policy 44.90.10, Permanent Impairment Rating (the "PPI Policy”) describes how permanent impairment ratings are calculated as a 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 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.

For cosmetic disfigurement, Schedule A provides that when a worker is permanently disfigured due to an injury, the WCB may determine the disfigurement is a permanent impairment for which the worker is entitled to an impairment benefit. The rating calculation for disfigurement is done by a WCB Healthcare Advisor and determined based on their judgment. The maximum rating for disfigurement is 25% in extreme cases, but typical ratings are between 1 - 5%. For consistency in disfigurement ratings and to make the ratings as objective as possible, the WCB's Healthcare Advisor is required to reference a folio of disfigurement ratings established in previous cases in determining a rating.

For urinary bladder function, Schedule A provides that the impairment rating is based on clinical findings with ratings to be established according to Table 16-4 as follows:

• Impaired urgency 0 to 5% 

• Good reflex activity and no voluntary control 10 to 15% 

• No reflex or voluntary control 20 to 30%

Worker’s Position

The worker represented themself in this appeal and provided a written submission for consideration by the panel, dated July 4, 2024. The worker’s position is that the WCB incorrectly determined that the worker had impaired urinary bladder urgency, but the evidence indicates that the worker has no voluntary control of their bladder. The worker noted they are required to always wear urinary pads, due to urinary leakage which occurs ongoing, and especially when the worker’s bladder is full, and the worker is being active. The worker noted they mitigate the amount of leakage by frequency of bladder emptying and limiting water intake.

In the result, the worker’s position is that the PPI rating for urinary bladder function is too low and should be in the range of 10 to 15% under the provisions of Schedule A to the PPI Policy. The worker does not dispute the cosmetic disfigurement rating established. With the appropriate increased total rating, the worker’s position is that the related award provided should also be adjusted.

Employer’s Position

The employer is represented in this appeal by its Workers Compensation coordinator who provided a submission outlining the employer’s position, dated September 23, 2024. The employer’s position is that the WCB correctly determined the worker’s PPI rating of 6% and provided the correct monetary award for that degree of impairment rating.

The employer’s representative relied upon the report of the WCB medical advisor of February 12, 2024 as supporting the WCB’s determination, noting that the medical advisor found the nature of the worker’s urinary bladder function was not in keeping with the criteria for the next category in Table 16-4 which includes no voluntary control of urinary function. The representative further noted that the worker’s treating urologist reported on June 3, 2024 that the worker requires only one to two urinary pads per day and submitted that this evidence also supports a rating in the category of impaired urgency.

Analysis

The question on appeal relates to the calculation of the worker’s PPI rating and associated award by the WCB. The panel must determine whether the worker’s PPI rating and monetary award have been correctly calculated. For the worker’s appeal to succeed, the panel would have to determine that the WCB did not correctly apply the provisions of the Act, regulations and applicable policy in calculating the worker’s degree of permanent partial impairment and associated monetary award. As outlined in the reasons that follow, the panel was not able to make such a determination and the worker’s appeal is therefore denied.

The Act outlines that a worker injured because of a workplace accident, including an occupational disease, may be entitled to compensation for any impairment resulting from that accident even if the impairment does not result in any loss of earning capacity. The Act further provides that rating of a PPI is determined as a percentage of total body impairment and permits the WCB to make an award based upon each full percentage of whole-body impairment.

The panel noted the worker is not appealing the rating in respect of cosmetic disfigurement and therefore we rely upon the WCB’s determination of that question, noting that the file evidence indicates the appropriate process was followed in coming to that decision.

The issue before the panel relates exclusively to the determination of the rating for urinary bladder function. The panel considered the opinion of the WCB medical advisor who assessed the worker’s rating based on the information available to February 12, 2024. The medical advisor outlined the worker’s description of the degree and extent of their bladder function issues, noting that the worker’s bladder function “is most closely expressed by the category of Impaired Urgency” and is not in keeping with the next category which requires “[g]ood reflex activity and no voluntary control” of urinary function. The medical advisor clearly understood that the worker experiences urinary leakage, even with a bladder management approach, and as such recommended the maximum rating of 5% under the first category.

The panel also considered the medical report of the treating urologist, which indicates that in the period leading up to the WCB medical advisor’s examination of the worker, the worker’s degree of bladder leakage was stable and there has been no change since that time. We further noted that the treating oncologist, in their report of July 25, 2024 indicated the worker “does not have any significant urinary…symptoms.”

The panel finds that the medical reporting and the worker’s own evidence support the WCB’s determination that the worker cannot be described as having “no voluntary control” of their bladder function, and agree that the worker’s experience of ongoing, but variable bladder leakage merits a rating at the maximum range permitted under the category of Impaired Urgency. As such, the panel is satisfied that the WCB has correctly assessed and determined the degree of the worker’s urinary bladder impairment as required under the provisions of the PPI Policy.

The panel finds that the worker’s total body impairment rating of 6% is correct as a combined rating of the 5% rating for impaired urinary function and 1% rating for cosmetic disfigurement. We further find that the WCB appropriately provided the worker with an impairment award based on that rating in an amount of $9,000. This award is consistent with the provisions of the Act and Regulations that provide for an award of $1,500 for each full percentage of impairment for a PPI arising out of an accident occurring in 2021.

Therefore, based on the evidence before us and on the standard of a balance of probabilities, the panel is satisfied that the PPI rating of 6% and the monetary award of $9,000 were correctly calculated. The worker’s appeal is denied.

Panel Members

K. Dyck, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 28th day of October, 2024

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