The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

A non-oral file review was held on July 26, 2005, at the worker's request.

Issue

Whether or not the impairment rating of 8.7% and monetary award of $1,130.00 are correct.

Decision

That the impairment rating of 8.7% and monetary award of $1,130.00 are correct.

Decision: Unanimous

Background

On September 3, 1999, the worker sustained injuries to his left wrist, arm and knees when he lost his balance while on a scaffold and fell to a cement floor. The Workers Compensation Board (WCB) accepted the claim and benefits were paid accordingly.

On February 19, 2004, a WCB impairment awards medical advisor assessed the worker for the purposes of establishing a Permanent Partial Impairment Rating (PPI). At the conclusion of this examination, it was determined that the worker was entitled to a PPI award of 8.7%.

In a letter dated March 10, 2004, a WCB case manager informed the worker that he was entitled to an 8.7% impairment rating which entitled him to a one-time payment of $1,130.00. On March 21, 2005, the worker disagreed with these decisions and the case was forwarded to Review Office for consideration.

In a decision dated May 6, 2005, Review Office confirmed that the award of $1,130.00 based on an impairment rating of 8.7%, was correct. In reaching its decision, Review Office relied on subsections 38(2) and 38(1) of The Workers Compensation Act (the Act). It stated that the 8.7% award took into consideration the impairment of range of motion, loss of strength, as well as the cosmetic award. Review Office noted that the Act was silent on the issue of pain and suffering and that these issues were not part of the WCB's PPI awards. On May 30, 2005, the worker appealed Review Office's decision and a non-oral file review was arranged.

Reasons

Subsection 60(2) of the Act provides exclusive jurisdiction to the 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 subsection 38(1) of the Act, the WCB shall determine the degree of a worker's impairment expressed as a percentage of total impairment. Also, subsection 4(9) allows the discretionary awarding of compensation in respect of an impairment that does not result in a loss of earning capacity.

An injured worker's permanent impairment is appraised by the healthcare 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 worker qualifies for a PPI award. For instance, a worker who has complete and full range of motion of a shoulder following an injury to that shoulder would not be eligible for a PPI 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 PPI award based on pain alone.

In appropriate cases, WCB Impairment Award medical advisors, for purposes of determining a cosmetic impairment rating, will review photographs of an injured worker's operative scars. Certain criteria are employed when deciding on a cosmetic 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. The schedule 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 background notes indicate, the worker suffered a fracture of his left wrist, after falling from a scaffold onto a concrete floor on September 3, 1999. The resulting injury necessitated the following surgical procedure, which was performed on September 11, 1999: "Open reduction and internal fixation of distal left radius and bone graft from the left iliac crest to the left distal radius."

A WCB Impairment Awards medical advisor assessed the worker's permanent partial impairment on February 19, 2004. In accordance with the PPI rating schedule, the medical advisor determined that the worker would be entitled to 0.8% for the loss of range of motion of the left forearm, 2.0% for the loss of dexterity, 3.9% for the loss of range of motion of the left wrist and an additional 2% for the cosmetic disfigurement/scarring as a consequence of the surgery for a total rating of 8.7%.

Subsection 38(2) of the Act prescribes that where an impairment is determined to be 5% or greater but less than 10% then a lump sum award of $1,130.00 is payable. We have reviewed the calculation of the worker's PPI rating and find that it (i.e., 8.7%) has been correctly calculated in accordance with the PPI rating schedule. We further find that the impairment award of $1,130.00 provided to the worker with respect to his left wrist injury is correct. Accordingly, the worker's appeal is hereby dismissed.

As an aside, we would like to point out to the worker that should he suffer a significant deterioration of his medical condition then he may apply to the WCB to reconsider his degree of impairment. However, no application may be made within 24 months of a decision by the WCB or the Appeal Commission.

Panel Members

R. W. MacNeil, Presiding Officer
J. MacKay, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

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

Signed at Winnipeg this 8th day of September, 2005