Decision #08/08 - Type: Workers Compensation

Preamble

The worker has an accepted claim with the Workers Compensation Board (“WCB”) for a left knee injury that occurred in the workplace on March 5, 1997. He is presently appealing the decision that was made by Review Office in which it determined that he was not entitled to an increase in his cosmetic impairment rating. A file review was held on December 15, 2008 to consider the matter.

Issue

Whether or not the worker is entitled to an increase in the cosmetic impairment rating.

Decision

That the worker is not entitled to an increase in the cosmetic impairment rating.

Decision: Unanimous

Background

On March 5, 1997, the worker injured his left knee in a work related accident. The claim for compensation was accepted and the worker was paid various types of benefits.

On October 8, 2002, the worker underwent unicompartmental knee arthroplastic surgery on his left knee. He was subsequently assessed for a permanent partial impairment (“PPI”) award in respect of his left knee. At that time, it was noted that: “There was a well-healed scar on the anteromedial aspect of the left knee which measured 9 cm.” It was recommended that a cosmetic impairment for the surgical scar be rated at 1.0%, and when combined with a rating for instability of the left knee and loss of range of motion, a total PPI rating of 11.0% be assessed. This recommended PPI was instituted by the WCB.

On July 6, 2007, the worker underwent a total left knee replacement. Following his recovery from the total knee replacement surgery, the worker was again assessed for a PPI award.

A WCB physiotherapy consultant examined the worker’s left knee on October 22, 2008. In his examination notes, the consultant noted that digital pictures were taken of the worker’s left knee scarring. He stated, “Thickening of the left knee joint is noted and consistent with the knee arthroplasty which results in a change in form and symmetry of the left knee. Mild pitting pedal edema was noted in the left lower leg. The cosmetic impairment related to the compensable injury is 2.00% for the combined effect of the scarring and changes in form and symmetry.” The consultant therefore calculated the worker’s PPI rating to be 5.40% which included 2.00% for scarring and 3.40% for deficit passive left knee mobility.

On October 24, 2008, the worker was advised by the WCB that he was not entitled to an increase in his impairment rating. The case manager noted that the worker’s previous impairment rating of 11% adequately reflected his present degree of impairment due to his compensable injury. He noted that the worker’s left knee was functionally better since his surgery which accounted for a reduction in his impairment rating to 5.4%.

On October 27, 2008, the worker filed an appeal with Review Office outlining his position that he should be entitled to an increase in his cosmetic impairment rating given that he now had an additional scar of 10 inches in length as opposed to the original scar which was 3 inches in length.

In a decision dated November 6, 2008, Review Office determined that the worker was not entitled to an increase in his cosmetic impairment rating. As a rationale for its decision, Review Office noted that the worker had a 9 cm. surgical scar at the time of his initial impairment examination in 2004 and that he was assigned a 1% cosmetic impairment rating. The October 22, 2008 examination revealed that while the worker had a more extensive scar from the 2004 surgery, this was taken into consideration when assessed and assigned a rating of 2% which had increased by 1% from that rated in 2004. After its review of the whole of information which included the digital photographs and that provided by the worker with his written submission, Review Office determined that the 2% impairment rating assigned for cosmetic impairment was adequately rated. On November 18, 2008, the worker appealed Review Office’s decision to the Appeal Commission and a file review was arranged.

Reasons

Applicable Legislation

Payment of compensation for an impairment is provided for under section 38 of The Workers Compensation Act (the “Act”) in effect on the date of the accident 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) 1% or greater but less than 5%: $500;

(b) 5% or greater but less than 10%: $1000;

(c) 10% or greater: $1000 plus $1000 for each full 1% of impairment in excess of 10%.

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.

Worker’s Position

The worker was self represented and provided the panel with a written submission. He acknowledged that he was adequately compensated for loss of range of motion and scarring from his first surgery and was not disputing that assessment. He was also not disputing the range of motion assessment for loss of range of motion from the second surgery. His appeal concerned the assessment for the new additional scar resulting from the second surgery. He stated: “If this panel finds against me, please respond in writing, that scarring is no longer covered by WCB policy, for PIA.” The panel assumes that “PIA” is meant to refer to a “permanent impairment award.”

Analysis

The issue before the panel is whether the worker is entitled to an increase in the cosmetic impairment rating. The Appeal Commission and its panels are bound to follow the provisions of the Act, regulations and WCB policies. The Schedule attached to the Policy allows a cosmetic 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.

The WCB medical file contained photographs of the worker which illustrated the scar on his left leg associated with the total knee replacement surgery. The memo to file by the WCB physiotherapy consultant indicates that the worker’s cosmetic impairment rating was increased from the 1% given at the time of the June 2004 assessment to 2%, based on the increased surgical scar length. The panel finds that there is not sufficient evidence before us to warrant disturbing the recommendation of the WCB physiotherapy consultant. The physiotherapy consultant arrived at the rating based on his own visual examination of the worker’s left knee and he has broad experience in making such recommendations. An increase of 1% was given for the increased scar length and changes in form and symmetry, and we find that the rating of 2% was an appropriate cosmetic impairment rating for the worker’s left knee.

To be clear, scarring is an impairment which is covered by the Policy. The worker’s left knee scar is a disfigurement which was in fact given a cosmetic impairment rating of 2% pursuant to the terms of the Policy’s Schedule. The panel finds that the rating of 2% was appropriate for the disfigurement seen on the worker’s left leg.

For the foregoing reasons, 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 14th day of January, 2009

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