Decision #93/11 - Type: Workers Compensation

Preamble

The worker is appealing the decisions made by Review Office of the Workers Compensation Board ("WCB") which determined that the Permanent Partial Impairment awards for both his 2006 and 2010 claims had been correctly calculated. The worker disagreed with the decision and an appeal was filed with the Appeal Commission. A file review was held on May 30, 2011 to consider the matter.

Issue

Whether or not the worker's permanent partial impairments awards have been properly calculated.

Decision

That the worker's permanent partial impairments awards have been properly calculated.

Decision: Unanimous

Background

On February 10, 2006, the worker suffered an injury to his right thumb in a work related accident. The accepted diagnosis was a partial amputation of the right distal thumb.

On March 1, 2011, the worker was assessed by a WCB medical advisor for the purposes of establishing a Permanent Partial Impairment ("PPI") award with regard to his right thumb. Following the assessment, a 1.7% PPI impairment was recommended. On March 4, 2011, the worker was advised that he was entitled to a PPI rating of 1.7% which resulted in an award in the amount of $1,030.

On October 28, 2010, the worker injured his left ring finger in a work related accident. The accepted diagnosis was a partial amputation of the left ring finger.

On March 1, 2011, the worker was assessed by a WCB medical advisor for the purposes of establishing a PPI award in regard to his left ring finger. The examining medical advisor recommended a PPI of 2.3%. On March 4, 2011, the worker was advised that he was entitled to a PPI rating of 2.3% which resulted in the amount of $2,320.

In a letter to Review Office dated March 9, 2011, the worker appealed the amount of his PPI awards with respect to both accidents. The worker noted "After reading the criteria for assessment entitlement to a PPI, I feel that the percentage of impairment for these 2 claims was not measured fairly. As the PPI% measures cosmetic deformity or scarring I feel that both above claims should have been rated at 4.2% each."

On March 24, 2011, a WCB Review Officer noted to the file that he discussed the worker's PPI ratings with the examining WCB medical advisor. The medical advisor indicated that he stood by the PPI ratings that he assigned to the worker's files.

In a letter dated March 28, 2011, Review Office advised the worker that it was satisfied that his PPI rating assigned to his claims had been correctly calculated and was consistent with the manner in which the WCB handled complex PPI scenarios. Review Office stated in part that cosmetic ratings were not given out per finger as the worker's appeal letter implied. On April 7, 2011, the worker appealed Review Office's decision to the Appeal Commission and a file review was arranged.

Reasons

Applicable Legislation

The Appeal Commission is bound by The Workers Compensation Act (the "Act") and the policies of the WCB’s Board of Directors.

Subsection 4(9) provides that the board may award compensation in respect of an impairment that does not result in a loss of earning. Subsection 38(1) provides that the board shall determine the degree of a worker’s permanent impairment expressed as a percentage of total impairment. Subsection 38(2), provides a formula to determine the monetary value of an impairment award.

The Board of Directors has established policy 44.90.10.02, the Permanent Impairment Rating Schedule. In accordance with this schedule, impairment awards are calculated by determining a rating which represents the percentage of impairment as it relates to the whole body. The award is not related to loss of earning capacity.

Under the Permanent Impairment Rating Schedule, finger amputations are rated in accordance with the detailed hand chart. Impairment ratings for digit injuries take into consideration loss of joint movement as well as amputation. Multiple injuries due to a single accident resulting in more than one impairment are evaluated with the aid of a combined values chart. In the event of multiple injuries, the impairment rating may be enhanced to reflect the cumulative functional loss in respect to injuries that involve mirror parts of bilateral structures e.g. both wrists, both knees.

Worker's Position

The worker filed a notice of appeal. He stated the reason for appeal was: "I do not agree with the decision. The PPI ratings assigned were not correctly calculated for my bilateral hand injuries. I feel that these ratings should have been rated at 4.2% each. I am appealing this decision."

In a letter to the Review office the worker stated "After reading the criteria for assessing entitlement to a PPI, I feel that the percentage of impairment for these 2 claims was not measured fairly. As the PPI% measures cosmetic deformity or scarring I feel that the above claims should have been rated at 4.2% each."

Employer's Position

The employer did not participate in the appeal.

Analysis

The worker has sustained several injuries to his hands:

  1. On April 12, 2006 the worker injured both index fingers. The worker was assessed for a permanent partial impairment of 4.0%. The worker is not appealing the award.
  1. On February 10, 2006 the worker injured his right thumb. The worker was assessed for a permanent partial impairment of 1.7% and is appealing the calculation of the award.
  1. On October 28, 2010 the worker injured his left ring finger. The worker was assessed for a permanent partial impairment of 2.3% and is appealing the calculation of the award.

The total rating for all claims was noted to be 8%.

We have reviewed the individual calculations and find that the calculations are correct.

With respect to the enhancement factor, a 50% enhancement factor (50% of the lesser impairment) is applied in cases of injury from the same accident which involve identical parts of bilateral structures. For the April 12, 2006, injury, the factor was applied as the index fingers on each hand were injured in the accident. The panel finds the enhancement factor is not applicable to the other claims in this appeal as these accidents did not result in injuries involving mirror parts of bilateral structures.

With respect to the cosmetic rating, we note that a 1.0% cosmetic rating was applied. This is awarded due to scarring as a global rating for all the scarring resulting from the worker's three claims and was not awarded on each case. The panel finds this to be a fair evaluation as individually, each scarring award would have been rated at less than 1%. This would have been below the minimum award which would have resulted in injustices for the worker.

The worker's appeal is denied.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 6th day of July, 2011

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