Decision #33/08 - Type: Workers Compensation
Preamble
The worker sustained compensable burn injuries to his right arm and left wrist in a 1979 work related accident. In July 1980, the Workers Compensation Board (“WCB”) determined that the worker was entitled to a 2% Permanent Partial Disability (“PPD”) award for scarring of his right arm. In July 2007, the worker was awarded an additional 1% PPD award for his left wrist injury for a total of 3%. The worker disagreed with the 2% rating to his right arm and appealed to the Appeal Commission. A file review then took place on February 21, 2008.Issue
Whether or not the worker’s Permanent Partial Disability award has been correctly established at 3%.Decision
That the worker’s Permanent Partial Disability award has been correctly established at 3%.Decision: Unanimous
Background
On June 12, 1979, the worker sustained third degree burns to his right forearm and hand and second degree burns to his left wrist when he slipped while carrying two pails of hot tar. The WCB accepted the claim for compensation and benefits were paid to the worker while he underwent treatment for his injuries.
On July 7, 1980, the WCB’s assistant director of medical services noted that the worker had made a good functional recovery from his compensable injuries with no functional disability. He opined that the worker had a cosmetic PPD which amounted to 2%. The WCB offered the worker a lump sum settlement in recognition of his 2% cosmetic PPD award which he accepted.
In early October 2006, the worker advised the WCB that his condition was deteriorating and he wanted to have his PPD reassessed.
A report from his treating physician dated October 31, 2006 indicated that the worker was experiencing pain and stiffness in the forearm which started 3 to 4 months prior to the examination. There was tenderness and scarring over the dorsum of the right wrist and forearm and wrist flexion was limited.
After consulting with two members of the WCB’s healthcare branch, a WCB case manager advised the worker on February 9, 2007, that there was no direct cause and effect relationship between his recent pain and stiffness in his forearm and the burn to his right forearm in 1979. As a result, there would be no change to the existing PPD award of 2%.
In March 2007, the worker appealed the above decision to Review Office. He indicated that the tissue damage to his arm was very bad. His forearm was bumpy and itchy and was sensitive to sunlight. It would bleed very fast if he cut it by accident. He said he was constantly working with his hands as a painter and that the muscles were sore in the right forearm from sanding and polishing. He asked that his PPD award be reassessed.
On April 3, 2007, Review Office directed that the worker be examined by a WCB impairment awards medical advisor to determine eligibility for a PPD award for the left wrist as this was not considered in the 1980 examination. The examination was also to re-evaluate the residual scarring on the right wrist. Review Office further advised the worker that it could not relate his recent loss of range of motion (“ROM”) in his right wrist to the compensable injury given that he had full ROM in his right elbow, hand and wrist when examined in 1980, the pain in his right wrist began three months prior to his doctor’s examination on October 31, 2007 and because he stated that his current work activities caused his right forearm pain and stiffness.
A PPD examination was carried out by a WCB physiotherapy consultant on July 25, 2007. Digital pictures of scarring of the right arm and left wrist were taken and the cosmetic impairment related to the compensable injury was assessed at 3%.
On August 27, 2007, the worker was advised that he was entitled to an additional degree of impairment due to his injury which had been rated at 3%. The worker disagreed and said the amount did not reflect the years of pain and suffering he experienced due to mentally thinking about the burn and because of the tissue damage.
On October 11, 2007, Review Office advised the worker that it was referring his file back to his case manager to provide a more detailed explanation as to how the new 3% PPD rating was arrived at and whether or not it was related to one wrist or both wrists.
At the WCB case manager’s request, the WCB physiotherapy consultant reviewed the file on October 24, 2007 in order to clarify the comments he made on July 25, 2007. He stated the 2% scarring of the right arm was rated in the previous PPD examination. The 1% scarring pertained to the left wrist which was not previously reviewed for a cosmetic impairment.
A report from the worker’s plastic surgeon is on file dated October 31, 2007. He stated that the worker had a significant burn scar to his forearm that was mainly causing a cosmetic deformity. He noted some tightness in the upper third that could be released with a z-plasty.
On November 1, 2007, a WCB case manager advised the worker that the 3% PPD award included 2% for his right arm (no change from previous rating) and an additional 1% rating for his left wrist.
On December 6, 2007, the worker indicated to Review Office that he was not appealing the PPD award of 1% for his left wrist but was appealing the 2% PPD award for his right arm.
In a decision dated December 7, 2007, Review Office indicated that it reviewed the file information along with the photographs that were taken of both arms and was of the opinion that the right wrist 2% PPD award for scarring was an appropriate percentage. On January 7, 2008, the worker appealed the decision to the Appeal Commission and a file review was arranged.
Reasons
Applicable Legislation
As the worker was injured in 1979, his benefits, including his PPD, are assessed under The Workers Compensation Act (the “Act”) as it existed at that time. In 1979, compensation for permanent partial disability was provided for under subsection 32(1), which read as follows:
32(1) Where permanent partial disability results from the injury, the board shall allow compensation in periodical payments during the lifetime of the workman sufficient, in the opinion of the board, to compensate for the physical loss occasioned by the disability, but not exceeding seventy-five percent of his average earnings.
Compensation for disfigurement was specifically permitted under subsection 32(2), which provided:
32(2) Where a workman is permanently disfigured as a result of the injury, the board may determine that the disfigurement is permanent partial disability for which compensation may be allowed under this section notwithstanding that the amount which the workman was able to earn before the accident has not been substantially diminished by reason of the disfigurement.
In accordance with the Act, the Board of Directors enacted a Permanent Impairment Rating Schedule, which is attached as appendix A to WCB policy 44.90.10 (the “Policy”). With respect to disfigurement, the Policy states:
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 color, 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 judgmental 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
The worker’s written submission argues that the decision of the Review Office should be overturned because of the tissue damage that was sustained, the mental suffering he has had over the last 28 years, and because the 1979 decision was unfair. He submits that when the assessment was first done in 1979, he was young and he did not understand how serious the scarring would be. At the time, he was told that it was healing very well, but he does not feel that it has. Over the years he has had to keep his arm out of the sun as much as possible, and he must be careful as it bleeds easily. He states that the tissue damage was severe with 2nd and 3rd degree burns to the right arm which resulted in scars on his forearm. On the left side, he has scarring from splashes of hot tar and a wrist watch which was cut off. Overall, he is left with ugly scarring that he has had to look at every day and feels that he must hide so people do not see it. The worker’s position is that ¾ of his right arm has severe burn scars and that the PPD award of 2% for the right arm is not adequate.
Analysis
The issue before the panel is whether the PPD award of 3% has been correctly established. Specifically, the panel is to consider whether the 2% attributed to the scarring on the right arm is correct. We understand that the worker is not challenging the 1% assessed for the left wrist.
The panel gave consideration as to whether the worker may be entitled to an increase in percentage on account of: “loss of function in the right arm due to contractures as a result of scarring”, as per the Policy. On reviewing the material, the panel was unable to find any evidence that the worker was experiencing any loss of function which could be attributed to the burn injury. Although in mid 2006, he began experiencing pain and stiffness in the forearm, this would appear to have been related to his work duties at the time, as opposed to the scarring. The plastic surgeon’s report of October 31, 2007 confirms that the burn scar is: “mainly causing a cosmetic deformity.” Accordingly, we find that there should be no increase in percentage on account of loss of functionality.
This leaves the issue of whether the percentage ought to be increased due to the degree of disfigurement. The Policy provides that typical awards for disfigurement are between 1 and 5%. Digital photographs of the worker’s right arm show heavy scarring on the entire extensor surface extending from the wrist up to the elbow, with some slight scarring just above the elbow. The cosmetic deformity was assessed by a WCB medical officer in 1980, and again by a WCB physiotherapy consultant in 2007. Both assessments recommended 2% for scarring of the right arm. It is the opinion of the panel that the assessment of 2% is appropriate for the disfigurement to the worker’s right arm.
Finally, in his submission, the worker referred to the mental suffering he has endured since 1979 and the difficulty he has had in living with the scarring. We are unable to increase the percentage on these grounds as the Policy makes no provision for an award on account of pain and suffering.
It is therefore the panel’s decision that, on a balance of probabilities, the worker’s PPD award has been correctly established at 3%.
The worker’s appeal is denied.
Panel Members
L. Choy, Presiding OfficerA. Finkel, Commissioner
M. Day, Commissioner
Recording Secretary, B. Kosc
L. Choy - Presiding Officer
Signed at Winnipeg this 27th day of February, 2008