The Appeal CommissionThe Workers Compensation Act of Manitoba

Applicable Legislation and Policy

The Appeal Commission is bound to follow 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 for 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 Permanent Impairment Rating Schedule (the “Schedule”) to determine the impairment ratings. Appendix A to the Schedule sets out how impairment ratings are determined. The Schedule sets out 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 Schedule provides that the degree of impairment will be established by the Healthcare Management Services Department of the WCB in accordance with the Schedule and that whenever possible and reasonable, impairment ratings will be established strictly in accordance with the Schedule.

Impairment awards are calculated by determining a rating that 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.

The value of Permanent Partial Impairment awards is calculated under the terms of section 38(2) of the Act, as adjusted by the Adjustment in Compensation Regulation (12/2012). Pursuant to this Regulation, the award for a PPI based upon an injury that took place in 2008 is $1090 for each full 1% of impairment up to 30%.

Worker's Position

The worker filed a notice of appeal, setting out his basis for appeal from the decision of the Review Office. The worker stated that as a result of his injury he has lost grip and cannot hold hot items. He stated that he continues to experience “unbelievable” pain and that he has difficulty in holding a job as a result. The worker stated that in the winter his hand bleeds, and in the summer it peels.

Employer's Position

The employer did not participate in the appeal.

Analysis

The issues for this panel to decide are:

1. Has the permanent partial impairment rating of 11% been correctly established?

2. Was the financial value of the worker's permanent partial impairment award of $11,990 correctly calculated?

For the worker's appeal to succeed, we must find that the Permanent Impairment Rating Schedule was not properly applied to the facts of this case in establishing the PPI rating, and that if the PPI rating was correctly established, the Act and Regulations were not properly applied to calculate the value of the PPI award. We were unable to make these findings.

The worker’s position is that is that he has lost functional ability as a result of this injury and that the ongoing pain and discomfort make it difficult for him to hold a job.

The Schedule sets out how impairment awards are calculated. The rating represents the percentage of the worker’s impairment as it relates to the worker’s whole body. The rating calculation does assess loss of functional ability by measuring loss of range of motion.

The impairment rating is not related to loss of earning capacity and is not intended to compensate a worker for any pain or suffering flowing from an injury.

The evidence reviewed includes the February 10, 2011 report of the WCB physiotherapy consultant who conducted the PPI exam. At this exam, the consultant took passive range of motion measurements of both hands and all fingers/thumbs. The consultant noted the worker reported pain in both hands, especially in cold temperatures and that he had difficulty with sleeping through the night due to the pain.

The impairment rating for partial loss of movement of fingers is calculated by determining the amount of movement that is lost by comparing the movement in the joint being examined with the movement in the normal joint on the opposite hand. When there is not a normal joint to use for comparison, the range of motion charts in the Schedule will be used for comparison.

Here, the WCB consultant used the standard procedure to measure the worker’s mobility in both hands with a goniometer. Where the worker’s mobility in a joint was less than the expected mobility values, ratings were compared to the normal range of movement as set out in the Schedule. Where the worker’s mobility was more than the expected mobility values, ratings were compared to the worker’s own best mobility values.

The February 10, 2011 report confirms that the WCB consultant measured the mobility of all the joints in the worker’s right and left hands, including his thumbs and then, based on those measurements, applied the appropriate formula to determine an impairment rating as set out in the Schedule.

Regarding the partial loss of function of both of the worker’s thumbs, the Schedule sets out that where there are injuries to “mirror” or identical parts of the worker’s body, “…the impairment rating may be enhanced in order to reflect the cumulative functional effect... In these instances, an enhancement factor of up to 50% of the lesser impairment is awarded.” The February 10, 2011 report of the WCB consultant confirms that an enhancement factor of 50% of the lesser impairment of the thumbs was added to reflect the cumulative functional effect of an injury to both thumbs.

In addition, where there is scarring as a result of an injury, the Schedule permits the Board to determine that the disfigurement is a permanent impairment and make an award. Disfigurement is an altered or abnormal appearance, including an alteration of colour, 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 based on judgment. 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, reference is made to the folio of photographs of previous disfigurement awards established as policy.

The evidence reviewed includes both black and white and colour copies of pictures showing scarring of both hands. The WCB consultant noted that the worker also described an area of scarring to his left lateral leg from the grafting that was approximately 3 inches by 2 inches, and that the worker described decreased sensation along the ulnar border of the little finger. The consultant concluded that the reduced sensation was a result of skin grafting and the burns involving the little finger.

The WCB consultant reviewed and considered the scarring on the worker’s two hands as well as the scarring on his leg and determined that the combined effect for disfigurement was 2%. The evidence does not suggest this was an inappropriate rating. We are satisfied with the exercise of judgment of the WCB consultant as to the disfigurement rating.