2002 ONWSIAT 1323
WORKPLACE SAFETY AND INSURANCE
APPEALS TRIBUNAL
DECISION NO. 177/02
[1] This appeal was heard in St. Catharines on February 5, 2002, by a Tribunal Panel consisting of:
S.J. Sutherland: Vice-Chair;
W.D. Jago : Member representative of employers,
D.C. Timms : Member representative of workers.
THE APPEAL PROCEEDINGS
[2] The worker appealed from the decisions of the Appeals Resolution Officer, R. Sheridan,
dated March 25, 1999, and May 7, 1999. In those decisions, the Appeals Resolution Officer
dealt with the following issues:
an increase in the 5% permanent partial disability pension the worker was receiving for
erectile dysfunction;
an increase in the 5% permanent partial disability pension the worker was receiving for
urethral stricture;
entitlement to a permanent partial disability award for incontinence;
entitlement to a permanent partial disability award for loss of the workers right testicle;
entitlement to a pension for hepatitis C and cirrhosis of the liver;
entitlement to benefits for injuries to the workers neck and back;
the workers earnings basis; and
reassessment of the permanent partial disability award the worker previously received for
burns to both legs, thighs, lower abdomen, back, and pelvis.
[3] The Appeals Resolution Officer confirmed the 5% pensions for erectile dysfunction and
urethral stricture, allowed the workers appeals with respect to his entitlement to pensions for
hepatitis C and cirrhosis of the liver, incontinence, and the loss of his right testicle, allowed the
workers request for a reassessment of the pension he received for burns to his lower body,
ordered that the workers earnings basis be established on his wages as a student, and denied the
worker initial entitlement to benefits for injuries to his neck and back.
[4] The worker appeared at the hearing and was represented by his wife. Given that the nature
of the issues suggested that the workers wife would also likely be in a position to act as a
witness, the workers wife was sworn in as a witness, as noted below.
[5] The employer is no longer in business.
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THE RECORD
[6] The Panel had before it, and considered the following documents:
Exhibit #1: the Case Record;
Exhibit #2: Addendum No. 1;
Exhibit #3: Addendum No. 2;
Exhibit #4: a letter dated November 15, 2001, from the Office of the Vice-Chair Registrar
to the workers wife.
[7] Both the worker and his wife were sworn in at the beginning of the hearing and all their
statements were made under both. The workers wife provided the Panel members with written
copies of her submissions.
THE ISSUES
[8] The issues before the Panel were:
the quantum of the 5% permanent partial disability award for urethral stricture, retroactive
to July 1967;
the quantum of the 5% permanent partial disability award for erectile dysfunction,
retroactive to Oct. 8, 1997;
the quantum of the 2% permanent partial disability award for the effect of hepatitis C,
including cirrhosis of the liver, effective April 15,1998;
the quantum of the 2% permanent partial disability award for loss of the right testicle,
effective March 4, 1998;
the quantum of the 5% permanent partial disability award for incontinence;
the workers initial entitlement to benefits for his neck and back; and
the calculation of the workers earnings basis.
[9] The worker has a 25% pension for disability to his legs. The quantum of that pension is not
under appeal.
THE REASONS
(i) Background
[10] The worker was 53 years old at the time of the hearing. He began working for the
employer, a road construction company, as a summer student about six weeks before the
happening of the accident from which this appeal arises.
[11] On June 30, 1967, the worker was driving a road roller. He lost control of it as he was
driving it down a grade. It slid into a deep ditch and overturned, pinning the worker under it.
There was no cap on the gas tank and the gas spilled out and caught fire. His co-workers did not
have a foam extinguisher and tried to put the fire out with water, which made it worse. His
co-workers attached a chain to a dump truck and tried to lift the road roller off the worker. The
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chain broke and the roller fell onto the worker again. He was finally extracted by firemen who
used to their fire hoses to erode the soil beneath him.
[12] The worker suffered third degree burns to his legs, thighs, abdomen, left arm, and back, a
fractured pelvis, and a ruptured urethra. The burns to the workers legs were so bad that
amputation was considered on several occasions. He was in intensive care for many months and
was hospitalized until December 1967. He had about 30 operations, including skin grafts, during
the first year after the accident. He received hundreds of units of blood. When he was released
from the hospital he had extensive scarring from the burns over both legs and his left arm and
extensive donor site scars. His left wrist was stiff.
[13] Over the years, the scars on the workers legs thickened and cracked and he developed
keloids. These had to be removed several times and more skin grafts done. The skin grafts
frequently break down and the worker develops ulcers and/or spontaneous bleeding. His urethra
had to be reconstructed. The reconstruction surgery left the worker incontinent and with erectile
dysfunction.
[14] The worker was awarded a 10% pension ($26.00 per month) for his residual permanent
partial disability in January 1970. This pension was commuted in May 1974 and the worker
received a lump sum of $4,576.00.
[15] The worker began a three-year program in mechanical technology at Ryerson Institute of
Technology in May 1968. He paid his own expenses. At this time he received temporary partial
disability benefits of $39.91 per week. In April 1969, he requested financial assistance to
continue with his education. The Board denied this request. The worker found part-time
employment as a security guard and worked between July 4, and August 4, 1969. He then found
employment as a full-time forklift truck operator on August 18, 1969. The Board closed his file
under the heading rehabilitated-employed.
[16] There was no activity in the workers claim between May 1974, when his pension was
commuted, and May 1987, when the worker claimed further benefits for kidney, bladder, and
urinary tract problems that he attributed to his compensable injuries. The Board accepted this
claim and the worker received benefits for lost time due to urinary tract problems. At that time,
it was recommended that the level of the workers permanent partial disability be reassessed.
For reasons that are not clear from the file, this reassessment did not happen.
[17] Degenerative disc disease and arthritis of the workers cervical and lumbar spine were
diagnosed in August 1987.
[18] In October 1996, chronic active hepatitis and early cirrhosis of the liver were diagnosed
and it was realized that the hepatitis C was a result of the blood transfusions the worker received
after the accident. He had interferon injections three times a week for a year in an attempt to
treat the hepatitis. This treatment was not successful.
[19] The worker requested a reassessment of his residual permanent disability in
December 1996. At the same time, he asked for entitlement to benefits for his ongoing
genito-urinary problems, hepatitis C and cirrhosis, and his degenerative disc disease.
[20] The Claims Adjudicator denied the workers claim for benefits for degenerative disc
disease. She allowed the claim for hepatitis C, cirrhosis, and the workers ongoing
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genito-urinary problems. At the recommendation of the Regional Medical Advisor,
Dr. N. Preradovic, the worker was awarded a 5% pension for erectile dysfunction and a 5%
p
ension for urethral stricture with arrears to September 8, 1997.
[21] In February 1998, the worker developed diffuse necrosis of his right testicle and acute
severe inflammation of the epididymis. His right testicle was removed as a result of these
conditions on March 4, 1998. The Board accepted that the surgery was a sequela of his
compensable injuries.
[22] The worker stopped working in July 1998, because of the fatigue caused by his hepatitis C
and his inability to concentrate. He applied for, and received, Canada Pension Plan disability
benefits and long-term disability benefits from his employer.
[23] In September 1998, the worker realized that his pension was based on a minors earnings
of $80.00 per week. He requested that his earnings basis be revisited. The Claims Adjudicator
confirmed that $80.00 was correct, in September 1998.
[24] On October 30, 1998, Dr. T. Ho-Kim, a Board Occupational Medicine Consultant stated
that the worker had no permanent impairment from his hepatitis C or cirrhosis.
[25] The issues that were before the Appeals Resolution Officer and the Appeals Resolution
Officers decisions with respect to those matters have been set out above.
[26] After the Appeals Resolution Officers decisions, Dr. Ho-Kim recommended that the
worker be given a 2% pension for the fatigue caused by his hepatitis C infection and cirrhosis.
[27] The Claims Adjudicator allowed the worker a 2% pension for the loss of his right testicle.
[28] Dr. J. Dudley, the Associate Clinical Director, examined the worker on October 7, 1999.
He recommended that the pension for the workers legs be increased to 25% and that the worker
be given a 5% pension for incontinence. The effective dates were August 25, 1988, and
February 9, 1987, respectively.
(ii) The law and Board policy
[29] On January 1, 1998, the Workplace Safety and Insurance Act (WSIA) took effect. This
legislation amends portions of the Workers Compensation Act, which continues to apply to
injuries that occurred before January 1, 1998.
[30] As the worker was injured in 1967, the pre-1985 Act applies in this case. Section 3(1) of
the pre-1985 Workers Compensation Act provides that where personal injury by accident arising
out of and in the course of employment is caused to a worker, the worker is entitled to benefits in
the manner and to the extent provided by the Act. Tribunal cases generally have interpreted the
test for causation to be whether the work accident was a significant contributing factor to the
disability.
[31] A change that is relevant to this appeal is that the Appeals Tribunal is now required to
apply Board policy in accordance with sections 112 and 126 of the WSIA. Prior to this, the
Tribunal did consider and apply Board policy in deciding appeals, although the prior Act did not
contain this express provision.
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[32] As is required by section 126 of the WSIA, the Board advised the Tribunal of the policies that
are applicable in this appeal.
(iii) Conclusions
[33] Prior to 1990, the level of pension to which a worker may have been entitled was
determined by comparing the findings on physical examination with the Ontario Rating
Schedule, now found in the Boards Operational Policy Manual, Document #05-03-03. This
process was extensively reviewed and considered in Decision No. 9151. Having heard evidence
regarding assessment examinations and the basis on which they can be reviewed on appeal, that
Panel noted that when Board examiners assess a worker and assign a rating they are using unique
skills based on their specific training and experience, which are not duplicated outside the Board.
Decision No. 915 concluded that the actual levels of pensions as determined by the Board are not
susceptible to review by non-Board doctors. Pension appeals are decided without the assistance
of outside expert evidence on the correctness of Board pension levels. In this respect, the Panel
stated:
When the Tribunal comes to consider an appeal from a permanent partial disability
pension assessment, what is perplexingly different … is that on the issue of the workers
impairment of health status i.e., on the issue of the correctness of the impairment rating
on which the pension is based by definition, legitimate outside expert evidence does not
exist. …
The evidence provided by the Board in this case particularly the testimony of
Dr. Young fully confirms that fact. The Rating Schedule is used only as a guide and
except in very straightforward amputation cases cannot be applied in a mechanical
fashion to produce automatic results. The percentage selected in the vast majority of
cases depends in large measure and this is particularly true with respect to back
disabilities on the application of the trained and experienced judgement of the small
group of medical examiners in the impairment rating section headed by Dr. Young. The
judgements are arrived at using criteria and standards implicitly understood by the
members of that section and not reduced and not reduceable to writing. …
In short, it is apparent that only another member of the staff of medical examiners in the
Boards Impairment Rating Section is equipped to give an opinion as to the correctness of
a particular pension assessment. …
[34] Decision No. 915 concluded that Panels hearing pension appeals take on the role of expert
pension assessors. The standard of review of Board pension decisions is correctness, and the
question for Tribunal Panels is: on the balance of probabilities, what, relative to the Boards
Rating Schedule benchmarks, is the Panels best estimate of the usual impairment of earnings
capacity for this injury.
[35] The Decision No. 915 Panel went on to consider how the Tribunal might review the
assessment conducted by a Board examiner. The Panel noted that the Board assessors
description of the injury, the disability, the description of the clinical findings, and the history
can be compared to opinions of non-Board doctors. Where the Board assessor has based the
rating on medical facts which are incorrect or where the sufficiency of the examination is in
question for any reason, there may be a basis to question the correctness of the rating. In our
analysis of this case, we note and agree with the principles set out in Decision No. 915.
1 W.C.A.T.R. Volume 7, May 1989.
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[36] In the appeal here being considered, Board doctors have only examined the worker twice.
The first time was on January 6, 1970, when the Dr. R.H. Farr examined him to assess the level
of his permanent disability. The second time was on October 7, 1999, when Dr. Dudley
examined him following the Appeals Resolution Officers decision dated March 25, 1999. The
Panel, therefore, in applying the principles set out in Decision No. 915, finds that the
recommendations made with respect to the workers pensions for all conditions except the
residual impairment in his legs and incontinence were without proper foundation because they
were made without examining the worker.
[37] The Panel members note that most of the workers injuries were of a nature that was not
specifically addressed by the Ontario Rating Schedule. The Decision No. 915 Panel said, at page
75: The other Canadian Rating Schedules and the AMA Guides all produced not dissimilar
impairment ratings…
[38] Since the Ontario Rating Schedule is of no help in determining the quantum of some of the
pensions that ought to be awarded to the worker, the Panel has referred to the AMA Guidelines
for assistance. We have not used the combination tables in the AMA Guidelines for three
reasons. First, we are not, in fact, using the AMA Guidelines to determine the appropriate level
of the worker’s pensions but are simply referring to them for assistance. Second, the Panel
members are mindful that the intention of a permanent partial disability pension is to
reflect the
impact of the injury on the earnings capacity of the average unskilled worker, a concept not
necessarily embodied in the AMA Guidelines. Finally, the worker will have pensions granted
using the Ontario Rating Schedule (the residual disability in his legs), Board policy (impotence)
and with reference to the AMA Guidelines (the genito-urinary problems). It would be
inappropriate to use the combination tables when determining the workers total pension because
these three different sources were used to derive the total pension.
[39] In Decision No. 453/96 the Panel noted that the AMA Guidelines are a useful benchmark
for rating unlisted pension conditions, although care should be taken not to automatically apply
the Guides impairment ratings. Other decisions have taken a similar view (see, for example,
Decisions No. 879/98 and 453/96).
(a) The quantum of the 5% permanent partial disability award for urethral
stricture, retroactive to July 1967
[40] When the worker was admitted to hospital on June 30, 1967, among his injuries were a
fractured pelvis and ruptured urethra. The worker had an immediate suprapubic cystotomy and
the urethral rupture was splinted.
[41] The Board accepted that the workers urethral strictures were related to the compensable
accident and awarded him a 5% pension, retroactive to July 1967. The Panel accepts the
correctness of the retroactivity date and has only considered the sufficiency of the award.
[42] The worker consulted Dr. K.W. Reddy, a urologist, who did a cystoscopic examination on
April 9, 1997. Dr. Reddy found a fairly significant stricture in the proximal bulbus and
membranous urethra, which he thought would be difficult to deal with. He sent the wo rker to
Dr. R. Kodama, who is also a urologist, and who diagnosed urethral strictures caused by either
the trauma of the accident or by prolonged catheterization after the accident. On May 14, 1987,
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Dr. Kodama said that the worker had multiple strictures. On June 8, 1987, Dr. Kodama
confirmed that the worker had 2 strictures in the distal bulb, just distal to the sphincter.
[43] Dr. Kodama performed a cystoscopy and internal urethrotomy on June 16, 1987. He
commented in the operative notes that one stricture was of no clinical significance and was
easily passed. The second stricture was composed of scar tissue that was very dense.
[44] Dr. Kodama moved to the United States and Dr. R. Macmillan, a consultant urologist, took
his place. Dr. Macmillan reported on July 9, 1987, that the urethrotomy was initially successful
but the worker was again having difficulty urinating. Dr. Macmillan performed a cystoscopic
examination and found a stricture that was about 50% of the diameter of the workers urethra.
He incised this and another stricture. Dr. Macmillan noted that the worker had a urinary tract
infection for which he prescribed antibiotics.
[45] The worker continued to have bladder infections that required frequent medical care. On
October 20, 1996, he attended at the emergency department of a local hospital. The doctor on
duty tried to catheterize the worker but was not able to do so. The urologist who saw him,
Dr. J. De Maria, reported that the workers urethra was 99% occluded by a urethral stricture.
Dr. De Maria performed an emergency urethrotomy and referred the worker back to
Dr. Kodama, who had returned to Canada.
[46] Dr. Kodama reported, on December 4, 1996, that the strictures seem to be recurring at a
fairly significant rate. He arranged for further investigation.
[47] Dr. Kodama performed a urethroscopy and urethrotomy on December 9, 1996. After the
surgery, Dr. Kodama discussed the possibility of urethral reconstruction with the worker. The
worker agreed to have this surgery.
[48] Two strictures were identified in a cystourethrogram on December 12, 1996.
[49] The urethral reconstruction was scheduled for January 28, 1997. Just before the operation,
it was discovered that the worker had diabetes mellitus and his liver enzymes were elevated. The
physician treating the workers hepatitis C recommended interferon therapy. In the
circumstances, Dr Kodama decided not to do the reconstructive surgery but did a cystoscopic
examination and internal urethrotomy instead.
[50] The reconstructive surgery took place on March 25, 1997.
[51] According to the AMA Guides to the Evaluation of Permanent Impairment (the AMA
Guidelines):
When evaluating permanent impairment of the urethra, one must also consider the status
of the upper urinary tract and bladder. The values for all parts of the urinary system
should be combined using the Combined Values Chart to determine the extent of
impairment of the whole person.
[52] With respect to the urethra, a person is in Class 2 when there are symptoms and signs of a
urethral disorder that cannot be effectively controlled by treatment. The disability rating for
Class 2 has a range of 10% to 20%.
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[53] With respect to the bladder, a person is in Class 1, which has a range of 0% to 10%, when
the patient has symptoms and signs of bladder disorder requiring intermittent treatment of
normal function between episodes of malfunction.
[54] The Panel has taken the following factors into account in arriving at the quantum of the
workers pension:
the workers urethra was ruptured in the original accident;
the worker has had numerous strictures, one of which occluded 50% of the urethra and
another that occluded 99% of his urethra;
the workers strictures appear to have occurred as multiples, i.e., he had two or three
strictures at the same time;
the worker has had urina ry retention as a result of the strictures;
the worker has had frequent urethrotomies;
the worker has had repeated urinary tract infections;
the worker has had reconstructive surgery; and
despite his operations, the worker has ongoing problems.
[55] In the circumstances, the Panel finds that the worker is entitled to a 10% pension for
urethral stricture from the date of the accident. The worker is also entitled to a 5% pension for
ongoing bladder infections, from the date of the accident.
(b) The quantum of the 5% permanent partial disability award for erectile
dysfunction, retroactive to October 8, 1997
[56] The AMA Guidelines give the following criteria for evaluating permanent impairment of
the penis:
When evaluating impairment of the penis, it is necessary to consider impairment of both
the sexual and the urinary functions. The degree of impairment of sexual function should
be determined in accordance with criteria that follow, and it should be combined with the
appropriate value for an impairment of urinary function that is present to determine
impairment of the whole person.
[57] The criteria for Class 1, which is assigned a 5% to 10% rating range, are:
A patient belongs in Class 1 when sexual function is possible, but there are varying
degrees of difficulty of erection, ejaculation, and/or sensation.
[58] Class 3 Impairment of the Whole Person, 20%, is described as follows: A patient
belongs in Class 3 when no sexual function is possible.
[59] According to the materials before the Panel, on October 8, 1997, the worker was able to
achieve a semi-rigid erection with which he is barely able to achieve penetration. With
assistance he is able to achieve normal ejaculation despite flaccidity. However, Dr. Dudley, on
October 7, 1999, said:
Since the surgery there has been a complete loss of erectile function. Prior to the surgery,
there was some erectile dysfunction but less severe. He does not have any spontaneous
erections and [is] unable to have any form of erection following sexual stimulation.
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[60] The materials also indicate that the Board is paying for the workers prescriptions for
Viagra.
[61] The Panel notes that the Board has a policy with resp
ect to impotence and sterility. The
policy is found in the Boards Operational Policy Manual, Document #03-03-10. According to
the policy, a worker may be awarded a 10% pension for direct trauma to the penis resulting in
impotence. The policy also allows entitlement to benefits for psychological disability
secondary to either impotence or sterility.
[62] Taking into account the testimony of the worker and his wife with respect to the
psychological problems caused by the workers impotence, the Panel finds that the worker is
entitled to a 10% pension for erectile dysfunction, retroactive to October 8, 1997. This pension
is to be increased to 20%, effective July 7, 1999, the additional 10% representing an award for
the psychological effects of his erectile dysfunction.
(c) The quantum of the 2% permanent partial disability award for loss of the
right testicle, effective March 4, 1998
[63] The AMA Guidelines give the following criteria for evaluating permanent impairment of
the testes, epididymides, and spermatic cords:
Class 1 Impairment of the Whole Person, 0%-5%:
A patient belongs in Class 1 when (a) symptoms and signs of testicular, epididymal,
and/or spermatic cord disease are present and there is anatomic alteration; and (b)
continuous treatment is not required; and (c) there are no abnormalities of seminal or
hormonal function; or (d) a solitary testis is present.
[64] The worker developed diffuse necrosis of the right testicle and severe acute inflammation
of the epididymis, as a result of which his right testicle was surgically removed.
[65] The worker is entitled to a 5% pension for the loss of his right testicle.
(d) The quantum of the 5% permanent partial disability award for
incontinence
[66] The Board awarded the worker a 5% pension for incontinence, effective January 9, 1987.
[67] The workers wife stated that the incontinence became worse after the reconstructive
surgery. The only medical report in which the worker’s incontinence was mentioned after the
reconstructive surgery that the Panel members could find was the report dated October 7, 1999,
prepared by Dr. Dudley. In that report, Dr. Dudley said:
With regard to his bladder function he notes that after extensive urethral construction
surgery two years ago he had improved bladder function but still is bothered by dribbling.
He has a constant sensation that his bladder never fully empties. He must wear panty
liners on his underwear to prevent difficulties from the dribbling.
[68] In his recommendation, Dr. Dudley said:
With regard to the incontinence issue, this is a constant nuisance for [the worker]. He
requires to wear panty liners for this condition… I would suggest a PD rating of 5% for
the incontinence.
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[69] This excerpt suggests to the Panel members that Dr. Dudley recommended a 5% award
because the incontinence was a constant nuisance.
[70] The AMA Guidelines for evaluating permanent impairment of the bladder give the
following criteria:
Class 1 Impairment of the Whole Person, 0%-10%:
A patient belongs in Class 1 when the patient has symptoms and signs of bladder disorder
requiring intermittent treatment with normal function between episodes of malfunction.
[71] The evidence before the Panel indicates that the workers main complaints are of dribbling
and the feeling that he cannot void completely.
[72] The Panel finds that the workers impairment is similar to that described in the high end of
Class 1. The worker is entitled to a 10% pension for incontinence, retroactive to
January 9, 1987.
(f) The quantum of the 2% permanent partial disability award for
hepatitis C and cirrhosis of the liver, effective April 15, 1998
[73] The Board has accepted that the worker suffers from hepatitis C and that this was
transmitted to him in the blood transfusions after the accident. The Board also accepted that the
workers cirrhosis of the liver was caused by the hepatitis C. He has received no direct
compensation for these conditions. Rather, he was given a 2% pension for the fatigue caused by
the hepatitis C.
[74] The materials indicate that the Board had two reasons for not giving the worker an award
of more than 2% for the effects of his hepatitis C: first, it was not covered in the Ontario Rating
Schedule, and second, the workers serum ALT levels approached normal.
[75] There were a number of documents before the Panel that indicated that serum ALT levels
are not a good indicator of the progress of this disease. For example, the National Institute of
Health Consensus Development Conference Panel Statement: Management of Hepatitis C said:
Testing for serum ALT levels is the most inexpensive and non-invasive means of
assessing disease activity. However, a single determination of ALT levels is not always
accurate in reflecting the severity of the underlying liver disease. In most studies, there is
only a weak association between ALT levels and severity of the histopathological
findings on liver biopsy. Serial determination of ALT levels over time may provide a
better means of assessing liver injury, but the accuracy of this approach has not really
been shown.
Approximately one-third of patients have persistently normal serum ALT levels…
Chronic hepatitis C is typically an insidious process, progressing, if at all, at a slow rate
without symptoms or physical signs in the majority of patients during the first two
decades after infection…
The relationship is inconsistent between ALT levels and disease severity as judged
histologically…
[76] A booklet titled Hepatitis C, which was also before the Panel, said the following:
… high ALT levels in the blood indicate some sort of liver problems. However, the
opposite is not true – a low ALT does not mean the liver is healthy. It is now known that
many people with HCV have normal ALT blood levels. Also, the ALT level in the blood
Page: 11 Decision No. 177/02
can dramatically shift from one time to the next, even from abnormal to normal levels.
Therefore ALT is one indication of liver problems but other testing needs to be done to
confirm the problem and the extent of liver damage.
Liver biopsy is still considered the best way to assess liver damage and determine
appropriate treatment.
[77] The Panel accepts that people with hepatitis C can have normal ALT levels and other
indicators must be taken into account to determine the progress of this disease.
[78] On October 23, 1996, the worker had a liver biopsy, which showed: mild chronic active
hepatitis with increased reticulin condensation and early micronodular cirrhosis liver (needle
biopsies). He had interferon injections three times a week for a year but these were not
successful. The worker has chronic active hepatitis C, which continues to damage the workers
liver. The cirrhosis of the liver cannot be either reversed or cured.
[79] The AMA Guidelines set out the following criteria for Class 2 (15-25% impairment of the
whole person) in Table 5 Classes of Liver and Biliary Tract Impairment:
There is objective evidence of chronic liver disease even though no symptoms of liver
disease are present and no history of ascites, jaundice, or bleeding esophageal varices
within three years and nutrition and strength are good and biochemical studies indicate
more severe liver damage than Class 1.
[80] In this case, the liver biopsy constitutes objective evidence of chronic liver disease. The
fatigue that accompanies the workers hepatitis C was sufficiently severe that he had to stop
working.
[81] The Panel members note that the Board allowed the workers pension effective
April 15, 1998. The evidence indicates that the worker had bouts of inexplicable illness and
extreme fatigue for many years. For example, he was hospitalized in Nova Scotia in 1979 with
fatigue and fever. No explanation for these conditions was found. He had abnormal bilirubin
levels in 1984.
[82] The worker and his wife were unable to secure documentation showing abnormal liver
function prior to 1984.
[83] It is clear that the hepatitis C resulted from the blood transfusions the worker received in
1967. However, the first evidence that he was symptomatic was in 1979. In the circumstances,
the worker is entitled to a 10% pension from 1979 until April 1984 (three months prior to the
first letter recorded in Saskatoon in July 1984). It was evident from the blood work that the
workers liver was affected by April 1984. His pension is to the increased to 25% at that date.
(g) The workers initial entitlement to benefits for his neck and back
[84] The worker and his wife have asked the Panel to award the worker a 30% pension for
cervical injuries and 30% for lumbar injuries. The workers wife argued that using logic and
common sense alone, one would anticipate a person having extreme trauma to the neck and back
after having a 14 ton piece of machinery fall on you and pin you down.
[85] The contemporaneously produced medical evidence does not indicate any musculoskeletal
injury to the workers neck or back. The first mention of problems with the workers neck and
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back is found in x-ray reports dated August 31, and September 14, 1987. These showed
degenerative disc disease and arthritis at L4-5 and L5-S1, and at C5-6 and C6-7.
[86] It is true that intuitively one would expect trauma such as the worker experienced in his
compensable accident to have caused musculoskeletal problems. It is also true that the extent of
degenerative disc disease demonstrated in the workers x-rays was somewhat unusual for an
Oriental man who was only 38 years old at the time. However, the lack of any objective report
for 20 years after the accident means that there is no basis on which the Panel can award benefits
for the workers cervical and lumbar conditions.
(h) The calculation of the workers earnings basis
[87] The workers benefits were originally based on the maximum pay rate set by the Board for
1967 because the workers actual earnings were $532.12 in the month between May 29, and
June 30, 1967, which exceeded the insurable maximum. When his permanent partial disability
pension was awarded, he was classed as a seasonal worker and his benefits were paid on that
basis. At a point that is not clear from the file, the workers benefits were determined using a
minors rate of $80.00 per week. The Appeals Resolution Officer, in his decision dated
May 7, 1999 said:
According to Policy, if the worker was under the age of 21 at the time of accident, a
special minors rate applies, if the weekly average earnings are less than the minors basis
of $80.00. As the weekly temporary total rate was less than the minor’s wage, the wage
of $80.00 was correctly applied.
The calculations used to determine permanent disability award payments must be based
on the same formula. Subsequently, I cannot authorize a change to the earnings basis
used for the permanent disability awards.
[88] In an amendment to that decision, which was dated June 28, 1999, the Appeals Resolution
Officer said:
I have had an opportunity to review the circumstances and agree with your2 position. I
have directed the Operations area to re-calculate your rate of pay as a student rather than
a seasonal worker.
[89] The Appeals Resolution Officer, therefore, agreed the workers earnings basis should be
the approach applicable to a student, rather than the minimum rate paid to a minor.
[90] As a result of the Appeals Resolution Officers decision, the earnings basis for the workers
permanent partial disability pension was adjusted to $133.88 per week.
[91] The Board then made what in our view is a further and distinct error in recalculating the
workers earnings basis. In an instruction to the Operations area dated April 6, 2000, the
Appeals Resolution Officer made two calculations, both based on 39 weeks of work per year.
The first calculation included vacation pay and the second excluded both vacation pay and days
of vacation. The Appeals Resolution Officer recommended that the workers earnings basis be
calculated according to the first method. The Operations area did this, which reduced the
workers earnings basis to $100.13 per week. What is significant, however, is that in so doing
the Board treated the worker as a seasonal worker rather than as a student.
2 The workers.
Page: 13 Decision No. 177/02
[92] The definition of a student is found in the Claims Adjudication Branch Procedures
Manual, Document #33-19-07, which says:
Student given as the workers occupation means:
(c) a summer or other part-time, short-term or temporary worker, attending school
full-time at other times of the year.
[93] The Panel has no doubt that the worker was a student employed at a summer job when the
accident happened.
[94] Document #33-19-07 also says: The permanent disability basis for students is set in the
usual manner….
[95] The relevant section of the pre-1985 Workers Compensation Act said:
43(1) Where permanent disability results from the injury, the impairment of earning
capacity of the worker shall be estimated from the nature and degree of the injury, and
the compensation shall be a weekly or other periodical payment during the lifetime of the
worker, or such other period as the Board may fix, of a sum proportionate to such
impairment not exceeding in any case the like proportion of 75 per cent of his average
weekly earnings during the twelve months immediately preceding the accident or such
lesser period as he has been employed.
[96] Since the accident happened when the worker had been employed for only six weeks, the
Claims Adjudication Branch Procedures Manual, Document #33-0 8-07 is also relevant. That
document said:
Period of Employment: Less than Three Months
Consider the earnings of three employees in the same grade employed at the same work
by the same employer for one year or less. The weekly average of each employee is
calculated separately and the permanent disability basis is the average of the three
amounts.
[97] The document went on to consider how the earnings basis was calculated when the work
was seasonal in nature.
[98] There was nothing in either the Act or the policy to suggest that the earnings basis for a
student ought to be calculated in the same manner as that of a seasonal worker.
[99] The employer is no longer in business so it is not possible to obtain the earnings of three
employees in the same grade.
[100] The Panel is of the view that the workers pre-accident earnings calculated on a yearly
basis is the most equitable earnings basis in this case.
[101] The workers earnings for the year would have been about $6,380.00 ($532.12 per month
times 12 months per year). The insurable maximum in 1967 was $6,000.00.
[102] The Board is directed to use the figure of $6,000.00 per year, escalated as appropriate, in
calculating all the workers benefits.
Page: 14 Decision No. 177/02
THE DECISION
[103] The appeal is allowed in part.
[104] The Board is directed to use the figure of $6,000.00 per year, escalated as appropriate, in
calculating all the workers benefits.
[105] The worker is entitled to a 10% pension for urethral strictures and a 5% pension for
ongoing bladder infections, from the date of the accident.
[106] The worker is entitled to a 10% pension for erectile dysfunction, retroactive to
October 8, 1997. This pension is to be increased to 20%, effective July 7, 1999, the additional
10% being for the psychological effects of the workers impotence.
[107] The worker is entitled to a 5% pension for the loss of his right testicle.
[108] The worker is entitled to a 10% pension for incontinence, retroactive to January 9, 1987.
[109] The worker is entitled to a 10% pension from April 1979 until April 1984, at which point
it is to be incre
ased to 25%, for his hepatitis C and cirrhosis of the liver.
[110] The worker is not entitled to benefits for his cervical and lumbar conditions.
[111] The Panel members have awarded the worker 75% in pensions for those injuries that are
before us. This, combined with the 25% pension the worker is receiving for the residual
disability in his legs, means that the worker will receive a 100% pension. We are aware that it is
only in such catastrophic cases as blindness that a 100% permanent partial disability pension is
awarded. Having said that, the Panel members are of the view that the injuries of the worker in
this appeal have had the same or more of a catastrophic effect than would blindness. In
particular, the workers life has likely been shortened by his hepatitis C and the hepatitis C poses
a risk to the other members of his family. In addition, the worker has suffered severe
disfigurement and has ongoing problems with his burns and skin grafts, he will likely need a
liver transplant some time in the future and he is at increased risk of developing liver cancer.
DATED: June 6, 2002
SIGNED: S.J. Sutherland, W.D. Jago, D.C. Timms
