Decision #05/11 - Type: Workers Compensation
Preamble
The worker requested reconsideration of Appeal Panel Decision No. 112/07 which determined that he was entitled to a Permanent Partial Disability ("PPD") award of 5% in connection with his compensable condition diagnosed as vibration-induced white hands syndrome. His request for reconsideration was granted by the Chief Appeal Commissioner and a review was held on November 16, 2010 to consider the matter.Issue
Whether or not the worker's 5% Permanent Partial Disability award remains accurate.Decision
That the worker's 5% Permanent Partial Disability award is not accurate.Decision: Unanimous
Background
The worker suffered a compensable injury in 1987 that was eventually diagnosed as vibration-induced white hands syndrome. Under Decision No. 112/07 dated August 22, 2007, it was determined by the Appeal Commission that the worker's 1% PPD award should be increased to 5%. As a basis for its decision, the appeal panel relied on WCB Policy 44.90.10.02 as well as the findings of a November 3, 2005 MRI that showed clinical evidence of arterial occlusion. This finding satisfied the criteria for establishing a 5% PPD.
As to the possibility of raising the worker's PPD to the next category, the panel found that the criteria were not met. The panel stated, in part, "With respect to the presence of digital atrophic changes or gangrene, the panel does not find sufficient evidence, on a balance of probabilities, that the worker is currently suffering from any such changes. While the worker's treating physician has treated him for a dermatitis-like condition, there is no evidence that this condition is digital atrophic changes or gangrene or that it is related to the vibration-induced white hands syndrome".
The worker has since asked the Chief Appeal Commissioner to order reconsideration of Decision No. 112/07 based on new evidence dated May 3, 2009, May 8, 2008, May 22, 2008 and November 13, 2007. On May 19, 2010, the Chief Appeal Commissioner determined that the reports met the test set out in subsection 60.10 of The Workers Compensation Act (the Act) and directed that the Appeal Commission reconsider its previous decision. A file review was then arranged for November 16, 2010.
Prior to rendering a decision, the appeal panel requested additional information from a vascular specialist who had seen the worker in early November 2010. A report from the specialist dated November 30, 2010 was later received and was forwarded to the worker for comment.
On January 17, 2010, the panel met further to discuss the case and rendered its final decision on the issue under appeal.
Reasons
Applicable Legislation
This appeal deals with the worker's permanent impairment rating. In addressing the appeal the Appeal Commission and this panel are bound by the Act and policies of the WCB's Board of Directors. Subsections 4(10) and 32(1) of the Act deal with impairment ratings.
Pursuant to these subsections, the WCB Board of Directors established WCB Policy 44.90.10.02 which provides the parameters for a permanent impairment rating of vibration-induced white finger disease. It provides as follows:
"Vibration-Induced White Finger Disease |
The evaluation is performed by a Board Medical Officer and a judgement rating is assigned based on symptoms and objective findings as outlined by the examining specialist. The following is a simple classification system for percentage of impairment. The combined tables should be used to establish the total impairment when the condition is bilateral.
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Worker's Position
The worker wrote to the appeal panel on October 11, 2010. His letter addressed several issues. With respect to the permanent impairment issue, the worker advised the panel that he had an appointment to see the treating vascular specialist on November 1, 2010. The panel wrote to the vascular specialist and received an updated report dated November 30, 2010. This report was sent to the worker for comment. The worker's response was received on December 10, 2010.
In his response the worker noted that while he did not have ischemic lesions on his hands when seen by the vascular specialist, these lesions were present when he saw other physicians who have noted this in their reports.
The worker also advised that the vascular specialist had recommended the use of an arterial assist device and asked the WCB to purchase this device, as well as pay the cost of electricity for running the device. The panel notes that it has no jurisdiction to deal with this issue at this time and is limited to addressing the permanent impairment issue.
Analysis
The issue before us was whether the worker's 5% permanent partial disability award remains accurate.
In considering this issue, we reviewed the new evidence which was placed on file since the last hearing including the report from the vascular specialist dated November 30, 2010. We find that all of the evidence, including the evidence on file prior to decision 112/07 and the new evidence, supports a finding that the rating for the worker's left hand impairment should be 5%. If the issue before us was whether the rating of 5% for the worker's left hand is accurate, we would find in the affirmative.
However, upon review of decision no. 112/07, it does not appear that the panel expressly differentiated between the rating for the worker's left hand or a global rating for the bilateral worker's white finger disease condition.
We also reviewed Appeal Commission Decision Nos. 109/93 and 161/05, and the WCB decisions that led to this, and find that these decisions do not identify whether the 1% rating established by these decisions was for the worker's left hand, right hand or for both.
The panel is concerned that none of the prior decisions have considered the bilateral nature of the worker's white finger condition. The panel also notes there is no discussion in the worker's file of whether there should be an enhancement factor for a bilateral condition.
Accordingly, we find that the 5% rating is not accurate and refer the matter to the WCB for recalculation of the worker's impairment taking into account the worker's bilateral white finger disease. This will entail a review of the medical information for both hands and a determination of the impairment in each hand. In its calculations the WCB should also consider the application of the enhancement factor provided with respect to injuries which involve identical parts of bilateral structures as noted in the Permanent Impairment Rating Schedule.
The appeal is allowed.
Panel Members
A. Scramstad, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
Signed at Winnipeg this 24th day of January, 2011