Decision #154/08 - Type: Workers Compensation

Preamble

On August 18, 2006, the worker sustained a compensable injury to his left hand in a work related accident. The Workers Compensation Board (“WCB”) accepted the claim and benefits were paid to the worker which included a Permanent Partial Impairment (“PPI”) award. It was later determined by primary adjudication and confirmed by Review Office that the worker’s PPI award had been correctly calculated. The worker disagreed and filed an appeal with the Appeal Commission. A file review was held on September 11, 2008 to consider the matter. The panel requested additional information and after receipt of same, reconvened on November 5, 2008 to render a final decision.

Issue

Whether or not the worker’s permanent partial impairment award has been correctly calculated.

Decision

That the worker’s permanent partial impairment award has been correctly calculated.

Decision: Unanimous

Background

During the course of his employment as a production operator on August 18, 2006, the worker was walking by a press machine and a layer of coil that was loose struck his left hand. The worker immediately sought medical treatment and underwent surgical repair of the extensor tendons of his middle and ring fingers. The claim for compensation was accepted based on the diagnosis of a laceration of the left arm and benefits were paid to the worker. In early September 2006, the worker returned to light duty work while attending occupational therapy and physiotherapy treatments.

In a follow-up report dated September 5, 2007, the treating surgeon reported that the wounds had healed satisfactorily with the exception of permanent numbness in the watershed distal to the cut. The worker’s hand functioned normally with the exception of a tenodesis of the long and index fingers on individual flexion. This however was not a functional embarrassment for the worker.

On March 13, 2008, arrangements were made for the worker to be assessed by a WCB physiotherapy consultant for the purposes of establishing a PPI award for the worker. Following the examination, the WCB physiotherapy consultant calculated a 1.45% PPI award. This included 0.45% for deficit in the left middle and ring finger mobility and a 1.0% cosmetic impairment.

In a letter dated March 31, 2008, the worker was advised that based on the recent physical examination and the WCB’s impairment rating schedule, he was entitled to a PPI rating of 1% and that this entitled him to a one time payment of $1,030.00. On April 29, 2008, the worker appealed the decision to Review Office.

On May 14, 2008, Review Office commented that the worker disagreed with the 1% PPI rating that was given to him by the WCB case manager. In the worker’s opinion, “I don’t believe (photos) is an accurate way of viewing the deformities by the adjudicator…I have therefore enclosed additional photos I have taken with this letter of appeal.” The worker also disagreed with comparing his loss of range of motion with “regular range of motion”.

In its decision of May 14, 2008, Review Office determined that the worker’s PPI rating had been correctly calculated at 1.45% and that the worker’s entitlement to a lump sum impairment award of $1030.00 was also correct. Review Office indicated that it found no error in the method of calculations used in assessing the worker’s PPI award. It noted that the worker described the pain he experienced as a result of his compensable injury. However, there was no provision in the Act or WCB policy that provides compensation for pain.

Review Office noted that while the worker’s impairment rating was correctly calculated at 1.45%, the case manager informed the worker of only its full percentage point and not the actual total value. This oversight did not result in a change to the monetary value of the impairment award, i.e. $1,030.00. Review Office noted that the worker’s PPI rating had been calculated at 1.45% which was in accordance with subsection 38(2) of the Act and would equate to a lump sum award of $1,030.00. Review Office indicated that it was bound by WCB policy and legislation and was unable to alter decisions with respect to the financial value of a PPI award.

Review Office indicated that the photographs taken of the worker’s left hand during the March 13, 2008 examination were taken for file documentation purposes. The assigned cosmetic rating was determined based on the recommendation of the WCB physiotherapy consultant who visually assessed the worker’s hand.

Regarding the worker’s point that his range of motion assessment was based on “regular range of movement and not on (my) movement range prior to (my) injury”, measurements taken of the right and left hand were compared to determine the loss of range of motion. Review Office indicated that since it is not feasible to measure a worker’s range of motion prior to an injury, comparisons were made between the right and left hand as both should be fairly equal.

Review Office noted that the WCB’s Permanent Impairment Rating Schedule did not provide a scheduled rating for sensation deficits over the radial nerve. On reviewing the guidelines to the Evaluation of Permanent Impairment, the worker’s impairment would not equate to a rateable impairment of sensation.

On July 21, 2008, the worker filed an application to appeal with the Appeal Commission in regard to Review Office’s decision. Attached to the form was a letter by the worker’s physician dated June 10, 2008. The physician stated, “…I reviewed the PPI examination report from March 13, 2008. [the worker] still has difficulty with extension of the left 3rd finger past neutral. He can’t extend past this. There is some tightness on flexion of the hand as well, although his range of motion is good there. There is still decreased sensation around the left 3rd and 4th web space which is permanent. [the worker] finds this quite uncomfortable still, and it interferes with his daily function.”

On September 11, 2008 a file review was conducted at the Appeal Commission at which time the panel considered all file information along with a submission by the worker’s union representative dated August 25, 2008.

Following the file review, the appeal panel asked a WCB senior medical advisor to respond to the following questions:

“The worker contends that he has a loss of range of motion in his third and fourth finger related to extension which is supported by findings of his physician and that it should also be taken into consideration when calculating his PPI award. Is this a rateable impairment pursuant to:

a) WCB Policy 44.90.10.02, Permanent Impairment Rating Schedule;

b) the American Medical Association guidelines; or

c) judgement rating.

If loss of finger extension is not covered, please advise as to the reasons why it is not considered to be rateable.”

A response from the WCB senior medical advisor dated October 7, 2008 was received and was provided to the interested parties for comment. The worker’s union representative provided a further written submission and an additional medical report from the worker’s physician dated October 29, 2008. In follow up to his earlier letter of June 10, 2008, the report stated, “I neglected to indicate that he also has trouble with extension of the 4th finger as well as the 3rd finger with the same degree of lack of extension.” On November 5, 2008, the panel met to further discuss the case and rendered its final decision.

Reasons

Applicable Legislation

The worker is employed by a federal government agency or department and his claim is therefore adjudicated under the Government Employees Compensation Act (“GECA”). Under the GECA, an employee who suffers a personal injury by an accident arising out of and in the course of employment is entitled to compensation. The GECA defines accident as including “a willful and intentional act, not being the act of the employee, and a fortuitous event occasioned by a physical or nature cause.”

Pursuant to subsection 4(2)(a) of the GECA, a federal government employee in Manitoba is to receive compensation at the same rate and under the same conditions as a worker covered under The Workers Compensation Act (the “Act”).

Payment of compensation for an impairment is provided for under section 38 of the Act, which reads as follows:

Determination of impairment

38(1) The board shall determine the degree of a worker’s impairment expressed as a percentage of total impairment.

Calculation of impairment award

38(2) Where the board determines that a worker has suffered an impairment, the board shall pay to the worker as a lump sum an impairment award in the following amount, for an impairment that is determined by the board to be

(a) 15 or greater but less than 30%: $1,030. for each full 1% of impairment; ….


In accordance with the Act, the Board of Directors enacted WCB Policy 44.90.10.02

Permanent Impairment Rating Schedule (the “Policy”) which provides guidelines on how impairment awards are to be calculated. The Policy states

2. Whenever possible, and reasonable, impairment ratings will be established strictly in accordance with the schedule attached as appendix A.

3. In the event that the Healthcare Management Services Department feels that strict adherence would create an injustice, or if it is felt that an impairment exists that is not covered by the schedule, Healthcare Management Services may deem it just and fair to establish an impairment rating that is not specifically covered by the schedule. In such cases they may use information other than the schedule such as the American Medical Association Guides to the Evaluation of Permanent Impairment established for a similar purpose.

Worker’s Position

The worker was assisted by a union representative in his appeal. The Appeal of Claim application and the written submission make the following arguments:

  • The 1% cosmetic deformity rating was given due to scarring but does not give consideration to three deformities – bumps at the ends and bottom of the “U” shaped scar close to the knuckles – which resulted from the injury and subsequent surgery;
  • The range of motion (“ROM”) measurements used by the WCB measured the distance the worker’s fingers could move individually when closing into a fist like position; however, his ROM was not measured when his hand is laid flat, palm down on a level surface and the ring and middle fingers are raised; and
  • The nerve damage (sensation deficits over the radial nerve) on his hand were not considered.

The worker relies on a medical report dated June 10, 2008 from his family practitioner which states that the worker has difficulty with extension of the left 3rd finger past neutral and that there is permanently decreased sensation around the left 3rd and 4th web space. It is argued that a PPI award of 1% effectively means that since one percent has been allocated to the cosmetic impact of the injury, nothing has been allowed for either the loss of ROM nor for the sensory damage. This is inconsistent with the overall purpose of determining awards under the Act.

Analysis

The issue before the panel is whether the worker is entitled to an increase in his PPI award. The Appeal Commission and its panels are bound to follow the provisions of the Act, regulations and WCB policies. As subsection 38(2) of the Act clearly states that a lump sum PPI award may only be paid on each full 1% of impairment, in order for the worker’s appeal to result in any additional payment to him, we must find that the worker’s impairment rating is at least 2% or greater. We are not able to make that finding.

With respect to the worker’s arguments about the impairment award for cosmetic deformity, this assessment was performed by the WCB based on a judgment rating. The Policy provides for a rating for disfigurement and provides as follows:

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 Benefits Division as prescribed in Board Order 67/89.

We find that there is not sufficient evidence before the panel to warrant disturbing the recommendation of the WCB physiotherapy consultant who made the recommendation. The physiotherapy consultant determined the rating based on his own visual examination of the worker’s hand and he has broad experience in making such recommendations.

With respect to the arguments concerning loss of hyperextension range of motion of the hand and loss of dorsal sensation, the WCB permanent impairment rating schedule currently does not provide a rating for these impairments. As noted earlier, however, the Policy does allow for the establishment of an impairment rating that is not specifically covered by the schedule, in circumstances where it is deemed fair and just to do so.

Following our initial review of this appeal, the panel requested information from the WCB concerning whether finger extension is covered by the schedule, and if it is not, the reasons why it is not considered by the WCB to be rateable. By memorandum dated October 7, 2008, the WCB’s senior medical advisor advised:

  • When assessing joint mobility for the purpose of determining a rateable impairment, the schedule provides that range of motion will be calculated on passive rather than the active range;
  • With respect to the concept of an unscheduled PPI for deficits of active hyperextension, deficits of active MCP joint hyperextension are generally not considered rateable insofar as they are not associated with functional compromise of the hand

The panel accepts the rationale provided by the senior medical advisor for not including hyperextension as a measure of rateable impairment when establishing a PPI award. Normal use of the hand does not usually involve hyperextension of the fingers. The existing schedule provides only for deficits in flexion of the fingers, and the panel is of the view that these are the appropriate measurements and that no further rating should be ascribed for loss of hyperextension. Loss of hyperextension is only an incidental deficit. The primary impairment deficit in a worker’s fingers would be associated with flexion.

Similarly, with respect to the worker’s argument concerning loss of sensation on the dorsal aspect of his hand, the panel finds that this is only an incidental deficit which does not warrant a permanent impairment rating as it does not affect the manner in which a hand is generally used.

In the panel’s opinion, no unfairness or injustice results from the absence of impairment ratings for loss of hyperextension range of motion and loss of dorsal sensation in the hand. As a result, no changes to the worker’s permanent partial impairment award are warranted. The worker’s appeal is dismissed.

Panel Members

L. Choy, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 1st day of December, 2008

Back