The Appeal CommissionThe Workers Compensation Act of Manitoba

The issue before the panel was whether the worker’s PPI rating has been correctly determined and whether the worker’s lump sum impairment award of $3,480.00 has been correctly calculated.

Applicable Legislation and Policy

The relevant provisions of the legislative scheme which govern this appeal are set out below.

Subsection 60(2) of the Act provides exclusive jurisdiction to the WCB to determine the existence and degree of any disability by reason of any injury arising out of and in the course of employment.

Subsection 4(9) of the Act empowers the Board to award compensation in respect of an impairment that does not result in a loss of earning capacity.

Section 38 of the Act deals specifically with impairment awards. Subsection 38(1) provides that:

Determination of impairment

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

Subsection 38(2) provides a scale for the value of lump sum awards based on the degree of impairment. Section 38(4) states that the values that are to be used are those in effect on the day of the accident. In this case, the worker’s injury was suffered on November 10, 2010. The values that were then specified in the Act were as follows:

38(2) Calculation of Impairment Award

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 30%: $1,030 for each full 1% of impairment;

(b) 30% or greater: $30,900 plus $1,240 for each full 1% of impairment in excess of 30%.

These amounts were adjusted by the Adjustment in Compensation Regulation so that the sum of $1,030 referred to in (a) above was increased to $1,160 for each full 1% of impairment.

Determination of Impairment

The WCB Board of Directors established a Permanent Impairment Rating Schedule which is attached as Appendix A to WCB Policy 44.90.10.02. That schedule 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 attached as Appendix A to that policy.

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.

In considering the worker’s appeal in this case, the Appeal Commission is bound by the Act and policies of the WCB, including Policy 44.90.10.02 and Appendix A (the Permanent Impairment Rating Schedule).

Worker’s Position

In his appeal, the worker submitted that he believed that the decision of Review Office should be overturned because the payment was only based on the percentage of his body that was permanently lost and not based on the injury that is affecting his day to day life.

Employer’s Position

The employer did not provide a submission.

Analysis

For the worker's appeal to be successful we must find that the worker's PPI rating and the lump sum payment for his injury have not been correctly calculated. We were unable to make those findings.

On December 20, 2011, a WCB medical advisor reviewed the worker’s file. The medical advisor indicated that the PPI rating for an amputation as sustained by the worker, using the thumb and single finger chart was 3.2%, whole person impairment.

The panel notes that a WCB medical advisor assessed the worker on December 20, 2011 and determined that his injury resulted in a 3.2% PPI rating (which later equated to a monetary award in the amount of $3,480.00). The case manager later referenced WCB Policy 44.90.10.02 which outlined the criteria for assessing entitlement to a PPI rating and subsection 38(2) of the Act which stated that $1,160.00 would be paid for each full 1% of impairment (up to and including 30%).

Finger amputations such as the present one are rated in accordance with the detailed hand chart which forms part of the schedule. If a single finger is involved, the single finger and thumb chart is used. Partial amputations of a finger are rated on judgment basis having regard to the whole value of the finger and the percentage affected by amputation. In the present matter, the schedule and thumb and finger chart provide that the PPI rating for the worker’s crush injury and partial amputation is 3.2%.

While the worker has referenced other functional deficits such as loss of grip, pain from the cold, and the inability to use a computer or use tools, these types of deficits are not covered in the WCB policy as factors to be considered in the determination of a PPI award. As noted earlier, the panel is limited to the rating criteria set out in the WCB policy.

Based on the foregoing, the panel concludes that the PPI rating of 3.2% was correct.

Calculation of Award

As set forth in s. 38(2), and as modified by the Adjustment in Compensation Regulation, an impairment lump sum award in respect of an impairment of less than 30%, generates a lump sum payment, as at the date of the accident, of $3,480.00. This represents a calculation of $1,160 for each full 1% of impairment.

Based on the foregoing, the panel concludes that the lump sum impairment award has been correctly calculated.

The worker’s appeal is therefore dismissed.