Decision #100/07 - Type: Workers Compensation
Preamble
This appeal deals with whether the worker’s 1% Permanent Partial Impairment (PPI) award and corresponding $640.00 lump sum settlement had been correctly calculated.
The worker sustained injuries to his head and neck during the course of his employment as a laborer on July 7, 2005. The claim for compensation was accepted by the Workers Compensation Board (WCB) on the basis of a head trauma, scalp laceration and cervical strain injury. It was later determined by primary adjudication and Review Office that the 1% PPI rating and lump sum amount was correct and was keeping with subsection 38(2) of The Workers Compensation Act (the Act). The worker disagreed and appealed to the Appeal Commission and a file review was held on June 27, 2007.
Issue
Whether or not the 1% Permanent Partial Impairment award and the corresponding $640.00 lump sum settlement have been correctly calculated.Decision
That the 1% Permanent Partial Impairment award and the corresponding $640.00 lump sum settlement have been correctly calculated.Decision: Unanimous
Background
As stated in the preamble, the worker sustained compensable injuries to his head and neck from a work related accident on July 7, 2005.
On November 22, 2006, the worker was examined by a WCB physiotherapy consultant for the purposes of determining a permanent partial impairment (PPI) award resulting from the July 7, 2005 accident. At the interview portion of the assessment, the worker indicated that he had sensitivity to sun over the scar region of his scalp. After reviewing digital photographs that were taken of the worker’s scalp, the physiotherapy consultant recommended a 1% cosmetic PPI award.
In a letter dated December 4, 2006, the WCB case manager informed the worker that based on the findings from his recent WCB physical examination, he was entitled to a PPI award based on an impairment rating of 1% which meant that he would receive a one time payment in the amount of $640.00. This was calculated in accordance with subsection 38(2) of the Act.
On March 1, 2007, the worker appealed the above decision to Review Office. He submitted that he was now left with a scar on the right side of his head for the rest of his life. He said he felt extreme pain and numbness in the cold winter days. On hot summer days, the heat numbs half of the right side of his head. He could not grow hair on the area which made it difficult to hide the scar. He was also taking pain killers to relieve the pain so he felt scarred for life on account of his compensable accident.
In a March 19, 2007 decision, Review Office determined that the worker’s impairment award of 1% had been correctly calculated based on the Act, policy and procedure in effect at the time of the award. Review Office pointed out that impairment and disability do not mean the same thing within the context of the Act. Impairment is rated according to the schedule whereas disability was considered to be an individual’s incapacity to meet personal, social or occupational demands by reason of impairment. It said the Act was silent on the issue of pain and suffering and such issues were not a part of the WCB PPI awards.
Reasons
Legislation and Policy
In considering the worker's appeal, the panel is bound by the Act, regulations and policies of the Board, including Policy 44.90.10.02, Permanent Impairment Rating Schedule.
Subsection 60(2) of the Act provides exclusive jurisdiction to the WCB to determine the existence and degree of impairment from a workplace injury. 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. This scale is adjusted annually and is published in a regulation.
When determining a PPI award, the WCB relies upon a permanent impairment rating schedule adopted by the WCB Board of Directors as 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. With respect to scarring the Permanent Impairment Rating Schedule provides:
“DISFIGUREMENT
When a worker is permanently disfigured as a result of an injury, the Board may determine that the disfigurement be considered a permanent impairment to which the claimant is entitled to an award.
Disfigurement is an altered or abnormal appearance. This may be an alteration of colour, shape, or structure, or a combination of these and can also include loss of function due to contractures as a result of scarring.
The rating for disfigurement is done by the Board’s Medical Department and the degree of disfigurement is determined on a judgemental basis. The maximum rating for disfigurement, in extreme cases, is 25%. Typical awards for disfigurement are between 1 and 5%. In order to maintain consistency in awards for disfigurement, and to make the awards as objective as possible, Medical staff will make reference to the folio of previous disfigurement awards established as policy by Board Order No. 67/89 and maintained by the Director of the Benefits Division as prescribed in Board Order 67/89.
Contractures resulting in loss of function should be considered as for any other cause, and are applied using the combined values chart.”
Worker’s Position
In an appeal form dated April 5, 2007, the worker indicated that he believed the Review Office decision should be overturned because “The amount of money offered is not proper compensation for the injuries received, as well as the pain and suffering caused by said injuries.” The worker also advised that he still suffers from headaches and sensitivity to weather.
Analysis
The issue before the panel is whether the worker’s PPI award and the corresponding lump sum payment have been correctly calculated.
The WCB in conjunction with the WCB medical department’s recommendation determined that the worker qualified for a 1% cosmetic award. The panel reviewed the calculation of the worker's permanent partial impairment rating and finds that it (i.e., 1%) has been correctly calculated in accordance with the Permanent Impairment Rating Schedule. The panel sees no evidentiary reason to disturb the 1% PPI rating. The panel also reviewed the calculation of the lump sum payment and finds that it has been correctly calculated at $640.00.
The panel notes that the worker indicated that the compensation offered was not proper compensation for the pain and suffering caused by the injuries. However, the panel notes that pain is not measurable and is not a component in the determination of a PPI award under WCB policy. The panel finds that this request cannot be considered under the current legislation.
The worker’s appeal is declined.
Panel Members
A. Scramstad, Presiding OfficerA. Finkel, Commissioner
G. Ogonowski, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
Signed at Winnipeg this 25th day of July, 2007