The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker disagrees with the decision made by the Workers Compensation Board ("WCB") regardingthe calculation of his permanent partial disability award.  A hearing was held on September 16, 2015to consider the worker's appeal.

Issue

Whether or not the worker's permanent partial impairment hasbeen correctly calculated.

Decision

That the worker's permanent partial impairment has beencorrectly calculated.

Decision: Unanimous

Background

On August 14, 2009, the worker injured his third and fourth fingers of his left hand while moving concrete off a conveyor belt. His claim for compensation was accepted and benefits were paid to the worker while he underwent treatment for his left hand condition. The compensable diagnosis was a fracture to the distal phalanx of the left middle and ring fingers; and laceration to the left middle finger.

On September 23, 2010, a WCB case manager referred the worker's file to the WCB's healthcare branch requesting that the claim be reviewed for the purposes of establishing whether or not the worker was entitled to a permanent partial impairment ("PPI") award. The case manager noted that the worker claimed that he was unable to completely make a fist due to his injured fingers and that he had scarring and swelling in his finger joints.

On October 28, 2010, the worker was seen by a physiotherapy consultant at the WCB offices for a PPI examination. Digital pictures were taken of the left middle finger and were compared to a folio of images at the WCB. The physiotherapy consultant opined that based on the digital pictures, there was no rateable cosmetic impairment related to the compensable injury.

The physiotherapy consultant used a goniometer to measure the worker's passive left and right middle and right finger mobility based on the American Academy of Orthopedic Surgeon's "The Clinical Measurement of Joint Motion" handbook. Based on her findings, the worker was assessed a PPI award of 0.09%.

In a decision dated November 3, 2010, the worker was advised that he did not qualify for a cosmetic impairment award due to scarring as a result of his compensable injury and that the WCB did not issue impairment awards for any amount less than 1 full percent.

At the worker's request and based on a doctor's progress report from the treating physician dated May 20, 2011, the worker's file was again reviewed by the WCB physiotherapy consultant to determine whether there was entitlement to a PPI award. In a response dated May 31, 2011, the physiotherapy consultant stated that the May 20, 2011 medical progress report stated there was a thick PIP and DIP. She felt that this would not represent a rateable cosmetic impairment. The consultant stated that the treating physician provided examination findings of the middle finger mobility indicating a 10 degree extension lag at the left middle finger DIP joint and full finger flexion. This was not consistent with the passive mobility documented from the October 28, 2010 PPI examination notes, also showing a 10 degree discrepancy between the right and left DIP joints, involving the middle finger.

By letter dated June 3, 2011, the WCB advised the worker that he was not entitled to a PPI award based on the opinion expressed by the WCB physiotherapy consultant. On October 30, 2014, the worker appealed the decision to Review Office.

On January 13, 2015, Review Office confirmed that there was no entitlement to a PPI award. Based on its review of the medical information on file, Review Office found that the 0.09% PPI rating was appropriate and it agreed with the WCB physiotherapy consultant's opinion outlined on May 31, 2011. Review Office indicated that financial awards to a worker begin when the impairment percentage is rated at 1% or greater, therefore there was no entitlement to a PPI award. On February 17, 2015, the worker appealed Review Office's decision to the Appeal Commission and a hearing was arranged.

Reasons

Applicable Legislation and Policy:

The Appeal Commission and its panels are bound by The Workers Compensation Act ("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 $1030 is to be indexed annually, and as per Manitoba Regulation 265/2014, the adjusted amount for 2009 is $1140.

In accordance with the Act, the Board of Directors established 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 he was seeking to appeal the decision of the WCB Review Office dated January 13, 2015. He contended that his middle finger was scarred and that the bottom of the finger was bigger than the rest of his fingers.

Employer’s position:

The employer did not participate in the appeal.

Analysis:

The issue before the panel is whether or not the worker’s permanent partial impairment has been correctly calculated.

For the worker’s appeal to be successful, the panel must find that the evidence establishes that he is entitled to a PPI award due to the effects of the compensable injury, in accordance with the Act and the the Policy. Following a review of the evidence, we have been unable to make this finding. The Policy provides for PPI ratings and states in part:

The impairment rating for partial loss of movement or function from a direct injury…will be proportional to the amount of movement that is lost…

Rating for disfigurement is done by the Board's Medical Department and the degree of disfigurement is determined on a judgment basis…In order to maintain consistency in awards for disfigurement, and to make awards as objective as possible, Medical Staff will make reference to the folio of previous disfigurement awards established as policy by Board Order Number 67/89…

At the hearing, the worker demonstrated to the panel that he has a full range of motion in his left hand. Based on the initial examination by the WCB physiotherapy consultant on October 28, 2010, the PPI for loss of range of motion ("ROM") for both the middle and ring finger was established at 0.09%. The panel has reviewed the consultant’s calculations and determined that the total impairment for his middle and ring finger should have been calculated as 0.18%. This is less than the 1% threshold.

The worker sought to have the panel re-assess the cosmetic aspects of his impairment, in that he contended that the compensable injury left him with a swollen index finger that is larger than his other fingers on his left hand. He also demonstrated a visible but moderate flat “white” scar on his left hand that was approximately 1¼ inches in length. Based on the worker's evidence, the panel is satisfied, on a balance or probabilities, that the scarring is, if anything, less noticeable now than it would have been when it was assessed in 2010.

With regard to a cosmetic impairment, the WCB physiotherapy consultant had reviewed the pictures that were taken on October 28, 2010 and compared them to the folio of images maintained by the WCB. The consultant concluded that there was no rateable cosmetic impairment. The panel is satisfied that the consultant’s assessment was conducted in accordance with the Board’s accepted procedure.

A medical progress report of May 20, 2011 noted that while the worker’s function was good, his finger had a "thick PIP (proximal interphalangeal) and DIP (distal interphalangeal).” A further opinion was then sought from a WCB physiotherapy consultant who concluded that the thickening in question would not represent a ratable cosmetic impairment. As such, no rateable cosmetic impairment has been established.

Under the Act, ratings that result in financial amounts being distributed to a worker begin when the total percentage impairment is rated at 1% or greater. Given that the worker has not established that his impairment percentage is 1% or greater, there is no rateable impairment or entitlement to a PPI award.

During his evidence, the worker stated that a physician diagnosed him as having osteoarthritis in his left hand. He also advised the panel that he experiences difficulty with that hand during the winter months.

File notes reveal that on November 13, 2009, the worker advised the WCB that he had been told by his doctor that he was likely to develop arthritis in the affected fingers. In that same conversation, the worker was told that for the WCB to accept a diagnosis of arthritis, it would have to first receive diagnostic tests that confirmed the arthritis, followed by a health consultant’s report confirming that the arthritis is related to the compensable injury. The worker does not appear to have provided such a diagnosis, and therefore, osteoarthritis was not considered in assessing the worker’s 2010 PPI claim.