The Appeal CommissionThe Workers Compensation Act of Manitoba

Applicable Legislation

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

Section 4(9) of the Act provides that the board may award compensation in respect of an impairment that does not result in a loss of earning capacity. The method for calculating compensation for impairment is set out in section 38 of the Act:

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

The WCB Board of Directors established Policy 44.90.10 (the “Policy”) to determine the impairment ratings. The Permanent Impairment Rating Schedule (the “Schedule”) is attached as Appendix A to the Policy and is designed to measure the degree of permanent impairment of a body function following an injury. The Schedule stipulates that permanent impairment is measured by the following factors: loss of a part of the body; loss of mobility in the joints; loss of function of any organs of the body identified in the schedule; and cosmetic deformity of the body.

The Policy provides that the degree of impairment will be established by the Healthcare Management Services Department of the WCB in accordance with the Policy. It also provides that whenever possible, and reasonable, impairment ratings will be established strictly in accordance with the 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, and it is not intended to compensate a worker for any pain or suffering flowing from an injury.

Worker's Position

The worker filed a notice of appeal and set out the following as his basis for appeal from the decision of the Review Office:

1. Decision failed to take into consideration that the injury was to the worker’s dominant (left) hand.

2. The measurements relied upon in the assessment were not based upon x-ray images.

3. The worker has experienced loss of strength in the affected hand, limiting his abilities.

The worker, in his notice of appeal, also referred to the grounds for appeal set out in his request for review to Review Office, which include the loss of strength in his left hand, the fact that the injury occurred to his dominant hand and that there was no consideration of the impact of his injury on his remaining fingers, which included limited movement, constant pain and extreme sensitivity to cold weather.

Employer's Position

The employer did not participate in the appeal.

Analysis

The sole issue for determination by this panel is whether the PPI award, calculated at 10.54% has been properly established. For the worker's appeal to succeed, the panel must find on a balance of probabilities that the terms of the Policy were not properly applied.

In considering the worker’s appeal in this case, we are bound by the Act and policies of the WCB, including Policy 44.90.10 and Appendix A (the Permanent Impairment Rating Schedule).

Finger amputations are rated in accordance with the detailed hand charts set out in the Schedule, and partial amputations of any phalanx are rated on a judgment basis having regard to the whole value of the phalanx and the percentage of the phalanx affected by the amputation. Impairment ratings for digit injuries take into consideration loss of joint movement as well as amputation. Where there is a partial loss of movement, the impairment rating will be proportional to the degree of movement lost.

The worker’s compensable diagnosis is an amputation of the left middle finger and a partial amputation of the left index finger. The PPI examination conducted by the WCB Physiotherapy Consultant on April 7, 2011 yielded the following results:

The occupational health physician report provided by the worker, dated September 9, 2011, provides bone measurements of only the middle phalanx of the worker’s left and right index fingers, based upon x-rays taken August 16, 2011. This method of measurement revealed the middle phalanx of the left index finger to be 0.7 cm long as compared to the middle phalanx of the right index finger at 2.2 cm.

We note that the measurements of the middle phalanx of each index finger obtained by the WCB consultant and the worker’s occupational health physician are different. We also note that the different results of measurement were obtained by different means. In coming to our decision, we prefer to rely upon and find no reason to depart from the standard means of measurement as used by the WCB physiotherapy consultant.

In applying the provisions of the Schedule to the worker, the WCB relied upon the multiple finger charts for two fingers and found that the worker’s injury was rated as follows:

We have reviewed these calculations having reference to the results of the PPI examination conducted by the WCB Physiotherapy Consultant on April 7, 2011.

We agree with the results obtained with respect to the degree of impairment of the worker’s middle finger, but we find that an error was made in the calculation of the degree of impairment of the worker’s index finger, specifically as relates to the impairment rating assigned to the index middle phalanx which is partially amputated.

For a partial amputation, the Schedule states that the rating is to be calculated “…having regard to the whole value of the phalanx and the percentage affected by amputation.” The WCB consultant determined that the percentage affected by amputation was 50%. We calculate the percentage of the index middle phalanx affected by amputation at 57.14% as follows:

Intact Index Middle Phalanx length (based on 3.5 cm

Right Index Middle Phalanx measurement)

Less -

Actual Left Index Middle Phalanx Length 1.5 cm

Equals Affected Left Index Middle Phalanx 2.0 cm

Measurement

Percentage of Left Middle Phalanx = 2.0 cm = 57.14%

Affected by Amputation 3.5 cm

Based on this result, we calculate the impairment rating for amputation of the left index middle phalanx at 1.71% by multiplying the percentage affected (57.14%) by the maximum rating for this phalanx (3.0). This is an increase of .21% from the original WCB calculation of 1.5%.

Adding this result to the amputation rating calculation for the distal phalanx of the worker’s left index finger, we calculate the total impairment rating for the left index finger at 4.75% (rather than the 4.54% originally calculated), and the total impairment rating for both affected fingers at 10.75% (rather than the 10.54% originally calculated).

The worker, in his Notice of Appeal, raised a number of additional concerns which he submitted ought to be taken into consideration in determining the permanent impairment rating.

The worker noted that he experiences cold sensitivity in his left hand. The panel posed a question to the WCB`s Healthcare Department on this point and was advised that the longstanding and consistent approach of the Department to the rating of amputations is that the scheduled rating is inclusive of the usual impairments associated with amputations, including cold sensitivity. Further, this approach is consistent with the American Medical Association Guides to the Evaluation of Permanent Impairment, which notes that in general, the impairment rating for a given anatomical level of amputation includes vascular changes such as cold intolerance. We are therefore satisfied that cold sensitivity has been considered in the calculations under the Schedule.

The worker also noted that he experiences decreased mobility in other joints of the left hand. The WCB’s Healthcare Department noted, in response to our query on this point, that it would not be anticipated that amputations of the second and third digits would be associated with deficits of passive mobility of the other fingers. There is no medical evidence before us as to injuries to the other joints of the left hand or as to mobility of those joints. The panel therefore finds that there is no basis to consider mobility of other joints for PPI purposes at this point in time.

The worker also noted that the injury occurred in his dominant hand, and that he continues to experience a loss of strength in that hand. We note that the worker reported these same concerns in his April 7, 2011 PPI examination with the WCB physiotherapy consultant. The Schedule calculates permanent impairment ratings under the Policy by measuring: loss of a part of the body; loss of mobility in the joints; loss of function of any organs of the body identified in the schedule; and cosmetic deformity of the body. Where there are multiple injuries, the impairment ratings may be enhanced in order to reflect the cumulative functional effect of those injuries, and the Schedule notes that this enhancement factor is included as part of the injury rating schedule for multiple finger injuries to the same hand. The whole hand function is therefore already considered in the rating according to the Schedule. The panel notes as well that the PPI specifically refers to loss of mobility as being the basis for PPI calculations, and does not indicate measurement of a loss in strength. The panel is bound by the PPI schedule and its choice of PPI measurement tools.

In addition to the issues raised by the worker, this panel also considered whether the worker is entitled to a cosmetic impairment award related to his left middle finger amputation and/ or the partial amputation of his left index finger. The evidence of the physiotherapist consultant before the panel was that he determined, based upon a review of the worker`s scarring as compared to the folio of images on file at WCB, that the worker did not exhibit any rateable scarring. The answer provided by the WCB`s Healthcare Department to the panel’s query on this point is that the longstanding and consistent approach of the Department to the rating of amputations is that the scheduled rating is inclusive of the usual impairments associated with amputations, including with respect to cosmetic changes. The Healthcare Department also noted that this approach is consistent with the American Medical Association Guides to the Evaluation of Permanent Impairment, which also notes that in general, the impairment rating for a given anatomical level of amputation includes abnormal soft tissue contours of the stump. Based upon the information before us, we are satisfied that the worker is not entitled to any additional award for cosmetic impairment relating to the amputation of his left middle finger nor to the partial amputation of the left index finger.

Conclusion: