The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

A non-oral file review was held on January 16, 2004, at the request of the claimant. The Panel discussed this appeal on January 16, 2004 and again on May 10, 2004.

Issue

Whether or not the permanent partial impairment has been correctly rated.

Decision

That the permanent partial impairment has not been correctly rated.

Decision: Unanimous

Background

The claimant was operating a chop saw during the course of his employment as a labourer on March 28, 2001, when he accidentally cut his right index finger at the first knuckle. The claimant sustained an amputation at the distal phalanx of the right index finger as a result of the accident. The claim was accepted by the Workers Compensation Board (WCB) and benefits were paid. On January 18, 2002, the claimant underwent a revision amputation of his right index finger.

In a follow-up report dated December 16, 2002, the treating hand surgeon noted that the stump had healed well but the claimant developed severe cold sensitivity which was hoped to be a temporary phenomenon for the next couple of years.

On July 9, 2003, following consultation with the WCB's healthcare branch, the claimant was advised by his case manager that he was entitled to an award based on an impairment rating of less than 5%. This award had been calculated in accordance with Section 38(2) of The Workers Compensation Act (the Act).

On July 22, 2003, the claimant advised his case manager that he did not agree with his permanent impairment entitlement. The claimant felt that he had lost more than 5% of his finger and that he was very sensitive to any touch at the tip. The claimant said his pain was unbearable in the winter time and he had difficulties with performing ordinary tasks such as peeling potatoes, participating in sports, cutting firewood, etc.

In a response dated July 29, 2003, the claimant was advised by his case manager that no change would be made to the earlier WCB decision. The case manager was of the view that the impairment rating had been applied correctly as per WCB 44.90.10, Permanent Partial Impairment Rating Schedule. As the claimant continued to disagree with his impairment entitlement, the case was forwarded to Review Office for consideration.

On October 24, 2003, Review Office confirmed that the rating of less than 5% was correct. Reference was made to the WCB's rating schedule which called for a rating of 2% for an amputation at the distal phalanx for an index finger. Review Office stated, "The total rating for an index finger amputated at the PIP joint is 4%. When there is loss in range of movement, the rating cannot exceed the total value of the impairment rating for an amputation. Therefore the worker's rating would not exceed 4%." Review Office also stated, "…cold sensitivity and inability to perform certain tasks of daily living, are not meant to be measured in an impairment rating. The impairment rating is purely a clinical means of assigning a percentage rating to various injuries such as amputations." On November 10, 2003, the claimant appealed Review Office's decision and a non-oral review was held on January 16, 2004.

Following discussion of the case, the Appeal Panel decided to arrange for the claimant to be evaluated by a WCB Impairment Award Medical Advisor with respect to his right index finger amputation. This examination later took place on April 2, 2004 and the examination report was provided to the claimant for comment. On May 10, 2004, the Panel met further to render its final decision.

Reasons

Section 60(2) of the Act, provides exclusive jurisdiction to the Workers Compensation Board (WCB) to determine the existence and degree of impairment by reason of any injury arising out of and in the course of employment. According to Section 38(1) of the Act, the WCB shall determine the degree of a worker's impairment expressed as a percentage of total impairment. Also, Section 4(9) allows the awarding of compensation in respect of impairment even though there has been no loss of earning capacity.

An injured worker's permanent impairment is appraised by the Medical Services Department of the WCB when it conducts either a medical examination of the worker or by its reviewing the treating physician's medical reports. Certain factors are taken into consideration: loss of the particular part of the body; loss of mobility in the joints; loss of function of any body organs; and cosmetic deformity of the body. As some forms of impairment do not allow for exact measurement, it becomes necessary for the medical advisor to make a subjective judgement as to the degree of impairment.

It is also important to note that because pain is immeasurable, it does not become a component in the determination of whether a claimant qualifies for a permanent impairment award. For instance, a claimant who has complete and full range of motion of a shoulder following an injury to that shoulder would not be eligible for a permanent impairment award because of his continued experience of pain. Without a loss of range of motion or function of body part, the WCB will not authorize a permanent impairment award based on pain alone.

WCB Impairment Award medical advisors employ certain criteria when making a determination of the cosmetic component of the impairment. Some of the factors considered when reviewing scarring include location of scar, form, multiple sites, texture, colour etc. Photographs are taken of the scarring and they are then reviewed independently by three medical advisors. A portfolio of photographs is also maintained at the WCB for purposes of comparing similarity and ensuring consistency.

When determining a PPI award, the WCB relies upon a permanent impairment rating schedule adopted by the Board of Directors. It provides in part:

"Permanent impairment is evaluated by conducting a medical examination of the worker or by reviewing the medical history documented on file as described in the policy statement. Evaluation of a permanent impairment is made when treatment has been completed or when, in the opinion of the Board's physician, the medical condition has stabilized and no further improvement is expected. The timing of the evaluation, therefore, varies according to the individual circumstances."

As the file information confirms, the worker sustained a severe crush injury to the tip of his right index finger resulting in amputation of the distal phalanx. The treating surgeon advised the WCB that it was necessary for the worker to undergo "a revision amputation with visor flap coverage and split skin graft to the donor defect on the dorsum of the finger." This procedure was carried out on January 18, 2002. The claimant's file was subsequently reviewed by a medical advisor, who without examination recommended a permanent partial impairment rating of less than 5%.

The claimant appealed Review Office's confirmation of a 4% award. At our request, the claimant was formally examined for a permanent partial impairment on April 2, 2004. The impairment awards medical advisor recommended the following PPI:

Dysesthesia 1.0%

Loss of dexterity and dysesthesia 2.0%

Amputation at the level of the distal third of the middle phalanx 2.7%

Total 5.7%

We find that the claimant's initial permanent partial impairment award has not been correctly rated. We endorse the April 2, 2004 recommendation by the impairment awards medical advisor that the claimant's PPI should be 5.7%. Accordingly, the claimant's appeal is hereby allowed.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

R.W. MacNeil - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 14th day of June, 2004