Decision #70/05 - Type: Workers Compensation

Preamble

A non-oral file review was held on February 2, 2005, at the worker's request. The Panel discussed this appeal on February 2, 2005 and again on March 29, 2005.

Issue

Whether or not the monetary value of the worker's 10% permanent partial impairment award has been correctly calculated.

Decision

That the monetary value of the worker's 10% permanent partial impairment award has been correctly calculated.

Decision: Unanimous

Background

On December 23, 2002, the worker amputated the distal phalanx of his left thumb while performing his employment activities as a machine operator.

On October 6, 2004, an impairment awards medical advisor with the Workers Compensation Board (WCB) reviewed the file documentation and determined, based on the WCB's Permanent Impairment Rating Schedule on page six, that the worker's impairment rating was 10%. On October 14, 2004, the WCB advised the worker that he was entitled to an award of $1200.00 based on an impairment rating of 10%. On October 27, 2004, the worker appealed the monetary amount of his impairment rating to the Review Office.

In a decision letter to the worker dated November 15, 2004, Review Office stated that the issues of pain and suffering were not covered by The Workers Compensation Act (the Act) and did not have an impact on Permanent Partial Impairment Awards. Review Office commented that the WCB rating schedule provided a 10% rating for an amputation of the type incurred by the worker and that the 10% figure was not negotiable. Regarding the $1200.00 financial amount of the award, Review Office indicated that this amount was not negotiable as it was in accordance with subsection 38(2) of the Act. On November 25, 2004, the worker appealed Review Office's decision regarding the monetary amount of his award and a non-oral file review was arranged.

Following a non-oral file review held on February 2, 2005, the Appeal Panel referred the case back to the WCB's healthcare branch for the impairment awards medical advisor to provide a breakdown of what the 10% impairment rating consisted of. A response was later received from the medical advisor dictated on March 7, 2005 and was referred to the worker for comment. On March 29, 2005, the Panel met further to discuss the case and to render its final decision.

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 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 worker qualifies for a permanent impairment 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 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.

In the particular case at hand, the worker’s file was reviewed by a WCB impairment awards medical advisor on October 6, 2004. He recorded in his examination notes the following assessment and calculation of impairment:

“The claimant who was cutting laminate strips using a table saw and in pushing the strip close to the blade, he sustained an amputation of the distal phalanx of his left thumb. An x-ray showed a traumatic amputation through the base of the distal phalanx leaving only a small fragment. He was referred to Dr. [name], Orthopaedic Surgeon, and a revision amputation was carried out. The PPI rating is in accordance with the WCB Permanent Impairment Rating Schedule, page 6 and should be rated at 10%.”

We have reviewed the calculation of the worker’s impairment rating and corresponding monetary award and find same to have been done correctly in accordance with the legislation and the Permanent Impairment Rating Schedule approved by the Board of Directors. Therefore, we find that the worker’s permanent partial impairment rating has been correctly rated at 10% and the monetary award correctly calculated.

Accordingly, the worker’s appeal is hereby dismissed.

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 4th day of May, 2005

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