Decision #22/05 - Type: Workers Compensation

Preamble

A non-oral file review was held on November 24, 2004, at the worker's request. The Panel discussed this appeal on November 24, 2004 and again on January 18, 2005.

Issue

Whether or not the permanent partial impairment rating of 5% is correct; and

Whether or not the monetary award of $1,104.00 is correct.

Decision

That the permanent partial impairment rating of 5% is correct; and

That the monetary award of $1,104.00 is correct.

Decision: Unanimous

Background

On November 18, 2002, the worker's right index finger was pinched between a wire sling and a dryer gear during the course of his employment as an industrial mechanic. As a result of the injury, the worker sustained a partial tip amputation which was repaired by plastic surgery. The claim for compensation was accepted by the Workers Compensation Board (WCB) and benefits were paid accordingly.

In October 2003, a WCB impairment awards medical advisor reviewed the file information and calculated the worker's permanent impairment at 5%, which included 2% for the index finger, 1% cosmetic, 1% dysesthesia and 1% for dexterity.

On January 16, 2004, the worker was advised that he was entitled to a 5% impairment rating and that the award resulted in a one time payment of $1104.00. On March 25, 2004, the worker disagreed with both decisions and the case was forwarded to Review Office for consideration.

On April 16, 2004, Review Office determined that the impairment rating of 5% was correct and that the monetary award of $1,104.00 was also correct. Review Office based its decisions on WCB policy 44.90.10 and subsection 38(3) of The Workers Compensation Act (the Act). On October 3, 2004, the worker appealed Review Office's decision to the Appeal Commission.

Following a non-oral file review which was held on November 24, 2004, the Appeal Panel asked the WCB's healthcare branch for clarification with respect to the impairment calculation of 1% that was given for "Dysesthesia and Dexterity" by the impairment awards medical advisor. A response was later received from the medical advisor dated December 14, 2004 and it was provided to the worker for comment. On January 18, 2005, the Panel met to render its final decision with respect to the issues under appeal.

Reasons

We were asked to consider two related issues. The first issue was whether the worker's impairment rating of 5% is correct. The second issue is whether the lump sum award of $1,104.00 is correct. For the worker's appeal to succeed we must find an error in the calculation of the impairment and/or the lump sum award. We did not find an error. We found that the 5% impairment and lump sum value are correct.

Worker's Position

The worker's position is outlined in correspondence on the claim file. He states that the injury has affected his life in numerous negative ways, both on and off the job. He notes that he is right-hand dominant and that the injury was to his right hand. He advised that he is having difficulty adjusting fully in the performance of his work duties. Although the injury has healed, it remains tender and he must be careful not to impact it. It is very painful when contact is made. Reacting to the pain can result in a loss of focus which can be dangerous.

The worker's concern is the low monetary value of the award. This value does not reflect the impact that the injury is having on his life. He asked for a more equitable settlement amount to compensate him for this injury.

Applicable Legislation and Policy

Subsection 4(9) and section 38 deal with impairment awards. Subsection 38(1) provides that the WCB "…shall determine the degree of a worker's impairment expressed as a percentage of total impairment." Subsection 38(2) provides a scale for the value of lump sum awards based on the degree of impairment. The dollar values used on this scale are adjusted annually and published in a regulation. Subsection 38(7) provides for a reduction in the value of the award where the worker is over 45 years.

The Board of Directors made Policy 44.90.10.02 , Permanent Impairment Rating Schedule. The schedule is designed to measure the degree of permanent impairment of a body function following an injury. Permanent impairment is measured by factors such as the loss of a part of the body or loss of mobility in a joint. With respect to finger amputations the schedule provides a chart with a range of values. Amputation of the index finger is rated between 2% and 4% depending on the extent of the amputation.

In considering the worker's appeal, the Appeal Commission is bound by the Act, regulations and policies of the Board, including Policy 44.90.10.02.

Analysis

The worker suffered an amputation of the tip of his right index finger. According to a report provided by the worker's plastic surgeon, the amputation was at the distal joint. The Permanent Impairment Rating Schedule provides that a distal amputation of the index finger is assigned a value of 2%. The worker was assigned 2% for the amputation which is the amount permitted under the policy.

The worker was also assigned 1% for cosmetic purposes, 1% for dysesthesia and 1% for dexterity. We asked for clarification regarding the latter two categories and received a response from the WCB's impairment awards medical advisor. We note his explanation as set out in a memo dated December 16, 2004:

"…In regard to dexterity, and observing the level of amputation, a rating of 1% was recommended. There is no scheduled rateable impairment of finger/hand function in the Permanent Impairment Rating Schedule and given the distal level of amputation, the 1.0% was applied as under Category I of Upper Extremities on Page 27 of the Impairment Rating Schedule.

With regard to dysesthesia, there is evidence on file of hypersensitivity at the tip of the amputation stump, cold sensitivity being a particular problem. Referring to Table 16-6 of Page 448 of the 5th edition of the AMA Guides to the Evaluation of Permanent Impairment, the area of the affected finger involved in dysesthesia is approximately 10% of the digit length. Transverse loss at this level involving both digital nerves equates to 5%. 5% impairment of the index finger (table 16.1, page 431 of the AMA Guide) translates to 1.5% for the hand. 2% impairment for the hand translates to 2% impairment for the upper extremity (table 16.2, page 439), and 2% for the upper extremity translates to 1% impairment of the whole person (table 16.3, page 439 of the AMA Guides)."

We accept this explanation and find that the worker's impairment has been correctly assessed as 5% in accordance with the Permanent Impairment Rating Schedule.

The second issue was whether the lump sum award of $1,104.00 was correct. Pursuant to subsection 38(2), accidents with 2002 awards that are 5% or greater and less than 10% are paid $1200.00. Subsection 38(3) provides that awards should be reduced by 2% for every year of age the worker is over 45 years at the time the award is established. Given that the worker was 49 years of age in 2002, the value of the award has been reduced by (4x 2%) 8% to $1,104.00.

We find that the lump sum value has been properly calculated.

The worker's impairment and lump sum award have been correctly calculated in accordance with the Act and policy. The worker's appeal is dismissed.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

A. Scramstad - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 15th day of February, 2005

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