Public Decisions | The Appeal Commission

Decision #39/99 - Type: Workers Compensation

Preamble

An Appeal Panel review was held on January 15, 1999, at the request of an advocate, acting on behalf of the claimant.

Issue

Whether the total impairment rating of 2.6% is a reasonable representation of the claimant's loss of left hand function; and

Whether the 1.6% rating for loss in range of movement should be effective from the date of medical examination in August, 1998.

Decision

That the total impairment rating of 2.6% is a reasonable representation of the claimant’s loss of left hand function; and

That the 1.6% rating for loss in range of movement should be effective from the date of medical examination in August 1998.

Background

In late August 1985 the claimant sustained a compensable left wrist/hand injury during her employment activities at a meat packaging plant. On February 11, 1986, the claimant underwent surgical release of the left carpal tunnel. However, recovery was prolonged due to non-compensable events, i.e. the claimant fell on her extended left arm and was assaulted causing trauma to the left wrist. By November 7, 1986, the attending orthopaedic specialist reported that the claimant had recovered from her left wrist injury and that she had good range of motion. The specialist concluded the claimant should attempt a return to her former occupation.

On July 29, 1997, the claimant was assessed by an Occupational Health physician regarding her left wrist status. Physical examination revealed normal left wrist movements as well as a scar from the previous carpal tunnel syndrome surgery. The claimant demonstrated normal strength and a 2 point discrimination (a test of sensation). The physician could not identify any evidence of nerve impairment.

The claimant was later examined at the Workers Compensation Board (WCB) offices on December 10, 1997, regarding a Permanent Partial Impairment (PPI) award. The impairment awards medical advisor's examination findings revealed the following:

The muscles innervated by the ulnar and median nerves did not exhibit any weakness.

Following the assessment and review of photographs of the scar, it was the consensus opinion of three reviewers that the claimant had a 1% cosmetic impairment related to the compensable injury. The claimant was therefore granted a 1% PPI award effective February 11, 1986.

Subsequent file documentation disclosed that the claimant had undergone a Functional Capacity Evaluation (FCE) of her left wrist and hand on July 27, 1998. The purpose of the evaluation was to help determine a possible permanent functional impairment. The results of the evaluation were inconsistent and were not able to be interpreted. In a letter to the claimant's advocate, dated August 3, 1998, the WCB's Director of Healthcare Services recommended a non-schedule rating of 3% for impairment of manual dexterity, "assuming some degree of loss as a result of the compensable injury." Combined with the 1% cosmetic impairment rating, the Director of Healthcare Services unilaterally recommended a total PPI award of 4%. A subsequent memo to file, dated August 11, 1998, indicated that a repeat PPI exam was warranted as the FCE process was not the current WCB's practice of establishing a PPI evaluation.

On August 14, 1998, the claimant was again assessed by a WCB impairment awards medical advisor and the PPI for the left wrist was calculated as follows:

Following the above examination, the WCB awarded the claimant a permanent partial impairment award totaling 2.6% for loss of range of motion effective the date of examination, i.e. August 1998. This decision was then appealed to the Review Office by the claimant's advocate by way of letter, dated September 11, 1998. The advocate contended that the claimant's PPI should be established at 4.6% effective February 11, 1987, based on the examinations of the FCE results and the comments made by the WCB's Director of Healthcare Services together with the PPI examination of August 1998.

On October 16, 1998, the Review Office determined the following:

"That a total impairment rating of 2.6% is confirmed as a reasonable representation of the claimant's loss of left hand function, due to the effects of her work-related accident in September 1985; and

That the 1% rating for cosmetic impairment is confirmed as effective from the date of carpal tunnel surgery in February 1986; and

That the 1.6% rating for loss in ranges of movement is confirmed as effective from the date of medical examination in August 1998."

The Review Office's findings in support of the above decisions were as follows:

the reduced ranges of left hand/wrist movements rated at 2.6% was in compliance with the approved schedule of ratings and the past practices of the WCB.
the reduced ranges of left hand/wrist movement were not confirmed by medical examination until August 1998 and did not apparently exist as a ratable impairment prior to this date.
the effective date of August 1998, for the 1.6% PPI award was reasonably connected to the first available medical evidence supporting this impairment;
the recommended 3% impairment rating for an "assumed" decrease in manual dexterity could not be justified as a reasonable cost of this claim because it was not consistent with either the approved rating schedule for impairment, or the rating practices of the AMA guides. It was not compatible with past practices of the WCB and consequently did not create an injustice if it was not approved for payment. The Review Office further stated that the 3% rating did not reflect an actual loss of function that was supported by either the weight of medical evidence and/or clinical findings; and the recommendation for an impairment rating to address the loss of left hand manual dexterity failed to consider the impact of the non-compensable accidents that the claimant suffered while in the process of an uncomplicated recovery from "work-related" surgery.

On October 22, 1998, the advocate appealed the Review Office's decision and requested a non-oral file review. A non-oral file review was then arranged for January 15, 1999, and the Panel took into consideration a submission from the employer's representative dated January 8, 1999.

Reasons

The claimant was examined by a WCB medical advisor specializing in impairment awards on August 14th, 1998. Following his examination, the medical advisor carried out a permanent partial impairment calculation with respect to the claimant's left wrist. He recommended the resulting permanent impairment award:

Left Wrist

"There has been a loss of total range of movement of 240 - 210 = 30.

The PPI = 30/240 (sic) 12.5 = 1.6%.

A cosmetic PPI of 1% was rated on January 9, 1998.

Total PPI would be 1 + 1.6 = 2.6%."

The 2.6% impairment award was later confirmed by the Review Office in a decision, dated October 16th, 1998. The Review Office determined that the claimant's left wrist impairment had been correctly calculated in accordance with the WCB's permanent impairment rating schedule.

An advocate, acting on behalf of the worker, appealed the Review Office's decision on October 22nd, 1998, to the Appeal Commission. The advocate suggested that the Review Office decision should be overturned for the following reasons: "Breach of policy and practice of the WCB." A non-oral file review was requested.

The Appeal Administrator of the Appeal Commission forwarded a letter, dated October 30th, 1998, to the advocate outlining the various issues to be considered by the Appeal Commission. The advocate was also requested to advise if the issues, as outlined, accurately reflected what he wished the Panel to address. The advocate confirmed by telephone to the Appeal Administrator that the issues, as stated, were acceptable.

The Scheduling Co-ordinator of the Appeal Commission telephoned the advocate on November 25th, 1998, and advised that arrangements had been made for a non-oral file review to take place on January 15th, 1999. A certified letter, with Acknowledgment of Receipt (A&R) card attached, was sent on November 30th, 1998, to the advocate at his address. The letter confirmed that a non-oral file review had been scheduled for January 15th, 1999. The letter also requested that any additional written information for the Panel's consideration must be submitted to the Appeal Commission no later than January 8th, 1999. The A&R card, which was returned to the Appeal Commission by the Post Office, verified that the advocate had received the certified letter on December 7th, 1998.

The employer submitted its written argument to the Appeal Commission on January 8th, 1999, via facsimile. However, nothing was ever received from the claimant's advocate prior to the Panel's reviewing of the case on January 15th, 1999. In addition, at no time was there ever any request by the advocate for an extension of time or for a postponement to allow him an opportunity to make a submission.

We are at a complete loss as to why the advocate failed to submit any written argument to support his contention that there has been a "Breach of policy and practice of the WCB" in this case. We consider this to be a most unfortunate and regrettable occurrence given that the Appeal Commission is the claimant's final level of appeal. Under the circumstances, we find the advocate's appeal to be frivolous.

Nevertheless, after having read the file materials and after having taken into consideration the relevant WCB policies and practices, we see no reason to disturb the medical advisor's recommendation of a 2.6% permanent impairment award. Accordingly, the claimant's appeal is hereby dismissed.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
R. Frisken, Commissioner

Recording Secretary, B. Miller

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

Signed at Winnipeg this 26th day of February, 1999

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