The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he is entitled to a permanent partial impairment award of only 1.00% which resulted in a one time award of $1230.00. A file review was held on March 27, 2014 to consider the matter.

Issue

Whether or not the worker's permanent partial impairment rating for cosmetic impairment has been correctly established at 1%; and

Whether or not the financial value of the permanent partial impairment award has been correctly calculated.

Decision

That the worker's permanent partial impairment rating for cosmetic impairment has been correctly established at 1%; and

That the financial value of the permanent partial impairment award has been correctly calculated.

Decision: Unanimous

Background

On September 21, 2012, the worker suffered a laceration to his forehead when he was struck by a branch while woodchipping. His claim for compensation was accepted based on the diagnosis of a head laceration and a slight concussion.

On November 14, 2013, a WCB physiotherapy consultant reviewed the worker's file as well as digital photographs and suggested that the worker was entitled to a 1% cosmetic impairment rating related to his head laceration.

By letter dated November 19, 2013, the WCB advised the worker that he was entitled to a permanent partial impairment ("PPI") award of 1.00% which resulted in a one time award of $1,230.00.

On November 25, 2013, the worker wrote his case manager stating that his PPI award should be higher than 1.00% as the PPI scar was highly visible in the center of his forehead. The worker indicated that the scarring on his forehead impeded his career ambitions by undermining his physical attributes. The worker asked for a rating of 10%. The worker's appeal was forwarded to Review Office for consideration.

On January 2, 2014, Review Office determined that the worker's PPI rating for cosmetic impairment was adequate at 1.00% and that the financial value of the impairment award was correct. Review Office noted that the worker sustained a personal injury (3 mm laceration) arising out of and in the course of his employment. It noted that the WCB impairments awards physiotherapy consultant reviewed the submitted digital photographs on November 14, 2013 and judged the degree of disfigurement as 1.00% in comparison with photographs kept at the WCB of similar scars. Having reviewed the digital photographs of the worker's scar in accordance with the Permanent Impairment Rating Schedule, and taking into consideration the opinion of the consultant, Review Office confirmed the impairment rating of 1.00%.

Review Office also stated that it was bound by The Workers Compensation Act (the "Act"). It stated that the monetary amount of the award valued at $1230.00 was not negotiable. On January 17, 2014, the worker appealed Review Office's decision to the Appeal Commission and a file review was arranged.

Reasons

Applicable Legislation and Policy:

The Appeal Commission and its panels are bound by the Act, regulations and policies of the Board of Directors.

Under subsection 4(1) of the Act, where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid to the worker by the WCB.

Payment of compensation for an impairment is provided for under section 38 of the Act which reads as follows:

Determination of impairment

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

Calculation of impairment award

38(2) 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; ….

Pursuant to subsection 44(1) of the Act, the specific dollar amount of $1,030 is to be indexed annually, and as per Manitoba Regulation 6/2014, the adjusted amount for 2012 is $1,230.

In accordance with the Act, the Board of Directors enacted WCB Policy 44.90.10. Permanent Impairment Rating Schedule (the “Policy”) which provides guidelines on how impairment awards are to be calculated. The Policy states:

2. Whenever possible, and reasonable, impairment ratings will be established strictly in accordance with the schedule attached as appendix A.

Worker's position:

The worker was self represented in his appeal. In his Appeal of Claims Decision form, the worker submitted that his PPI rating should be higher than 1%. He noted that the scar was highly visible in the centre of his forehead and his concurrent employment involved a significant amount of public relations and media work. The worker felt that his permanent cosmetic deformity and scarring on his forehead impeded his career ambitions by undermining his physical attributes. The panel therefore was asked to consider raising the worker's percentage rating.

Employer's position:

The employer did not participate in the appeal.

Analysis:

The issues before the panel are whether or not the worker's PPI rating for cosmetic impairment has been correctly established at 1% and whether or not the financial value of the PPI award has been correctly calculated.

The WCB accepted responsibility for a laceration to the forehead and as a result of the laceration, the worker is left with a 1/2 inch scar in the centre of his upper forehead, a little below his hairline. The scar is well healed and lighter than the surrounding skin. It is clearly visible in the digital photographs.

The assessment of a 1% rating for the cosmetic impairment was performed by the WCB physiotherapy consultant based on a judgment rating. The Policy provides for a rating for disfigurement and provides as follows:

Disfigurement is an altered or abnormal appearance. This may be an alteration of color, 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 done by the Board’s Medical Department and the degree of disfigurement is determined on a judgmental basis. 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, Medical staff will make reference to the folio of previous disfigurement awards established as policy by Board Order No. 67/89 and maintained by the Director of Benefits Division as prescribed in Board Order 67/89.

We find that there is not sufficient evidence before the panel to warrant disturbing the recommendation of the WCB physiotherapy consultant that the ratable cosmetic impairment is 1%. The physiotherapy consultant made the determination based on his own visual examination of the worker’s scar and he has broad experience in making such recommendations. It is the panel's understanding that the WCB Healthcare Advisors involved in PPI assessments meet and discuss these matters in order to ensure consistency. We also understand that as a general rule, small, flat scars of about 1 cm in length (such as those resulting from arthroscopic procedures) generally are not considered to meet the threshold of 1%. Conversely, an example of a 1% scar rating found in the WCB folio involving a knee would have characteristics of being 8-10 centimeters long, 1/2 centimeter wide with the scar being raised and dark red in colour. While a scar of this nature would be significantly more prominent than the worker's scar, the fact that the worker's scar is on his face may account for the physiotherapy consultant's opinion that the scar met the 1% threshold.

We therefore find that the worker's PPI rating for cosmetic impairment has been correctly established at 1%.

With respect to the monetary amount of the award, the panel finds that the amount of $1,230 for a 1% rating is entirely consistent with the Act, WCB regulations and policy. We therefore find that the financial value of the 1% PPD award has been correctly calculated.

The worker's appeal is dismissed.

Panel Members

L. Choy, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 12th day of May, 2014