Decision #142/15 - Type: Workers Compensation
Preamble
The worker is appealing the decision made by Review Officeof the Workers Compensation Board("WCB") with respect to the calculation of his permanent partial impairmentrating. A file review was held onSeptember 29, 2015 to consider the worker's appeal.
Issue
Whether or not the worker's permanent partial impairmentrating has been correctly calculated.
Decision
That the worker's permanent partial impairment rating hasnot been correctly calculated.
Decision: Unanimous
Background
On July 31, 2012, the worker sustained a work-related injury when his right hand was caught in a machine which he was repairing. The injury resulted in a traumatic partial amputation of the right middle, ring and little fingers, which was treated via a revision amputation of those three fingers.
File records indicate that the worker underwent the following additional surgical procedures:
- March 11, 2013 - revision amputation of the right ring finger;
- July 22, 2013 - release of A1 pulley on the right middle finger amputation stump; and
- December 2, 2013 - exploration and removal of a foreign body.
On February 10, 2015, the worker was examined by a WCB physiotherapy consultant for the purposes of determining his entitlement to a permanent partial impairment ("PPI") award. The physiotherapy consultant calculated the worker's impairments as follows:
Middle finger impairment 6.81%
Ring finger impairment 4.97%
Little finger impairment 3.41%
The total recommended PPI rating was 15.19%.
On February 24, 2015, the worker was advised that he was entitled to a PPI rating of 15.19%, which resulted in an award in the amount of $18,450.00.
On March 21, 2015, the worker appealed his PPI rating to Review Office.
In a decision dated April 30, 2015, Review Office stated that it had completed a review of the calculation performed during the worker's examination at the WCB and found no errors. Review Office went on to state that:
The Review Office acknowledges the worker's concerns with his PPI rating. The worker
references that he is not being compensated for loss of use of his right hand and right shoulder and that he is not able to perform his activities of daily living like he did prior to the workplace accident. The Review Office understands the worker's frustration with these issues but notes the WCB Permanent Impairment Rating Schedule does not provide a scheduled rating in relation to the issues he raised in his appeal, with the exception of the loss of use of his right hand and shoulder.
The Review Office finds no medical evidence to support the worker's position that he has lost 70 to 80% function of his right shoulder. This issue would also first need to be adjudicated by Compensation Services which has not been done to date. In regards to the loss of function of the worker's right hand this has been considered by the WCB as impairment ratings for digit injuries takes [sic] into consideration loss of joint movement as well as amputation. As such the Review Office finds no basis to grant the worker an increase to his PPI rating.
On May 25, 2015, the worker appealed Review Office's decision to the Appeal Commission and a file review was arranged for September 29, 2015.
Following the file review, the appeal panel asked WCB Healthcare Services to advise as to whether the Combined Values Chart of the Permanent Impairment Rating Schedule was taken into consideration when calculating the worker's PPI award, and if not, to provide a revised calculation taking that chart into consideration. The panel also asked Healthcare Services to advise as to whether loss of grip strength is considered ratable.
By memorandum dated October 6, 2015, the WCB physiotherapy consultant advised that the Combined Values Chart was not, but should have been, utilized, and that the total combined PPI rating would be 14.00%. The consultant further advised that the WCB Permanent Impairment Rating Schedule does not provide a scheduled impairment rating in relation to grip strength, and that the impairment rating in relation to mobility deficits includes the associated alteration in grip strength.
A copy of the October 6 memorandum was forwarded to the worker, for comment. The worker provided a response on October 29, 2015, and on November 2, 2015, the panel met further to discuss the case and render a decision on the worker's appeal.
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 WCB's Board of Directors.
Subsection 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. Subsection 38(1) provides that the board shall determine the degree of a worker's impairment expressed as a percentage of total impairment.
The WCB Board of Directors has established Policy 44.90.10, Permanent Impairment Rating (the "Policy"). It is noted at the beginning of the Policy that impairment benefits are calculated by determining a rating which represents the percentage of impairment as it relates to the whole body. Impairment benefits are not related to loss of earning capacity, and are not intended to compensate a worker for any pain or suffering flowing from an injury.
The Policy provides that the degree of impairment will be established by the WCB's Healthcare Management Services Department in accordance with the Policy, and that whenever possible and reasonable, impairment ratings will be established strictly in accordance with the Permanent Impairment Rating Schedule (the "Schedule") which is attached as Appendix "A" to the Policy.
The Schedule provides that permanent impairment is evaluated for the following factors: loss of a part of the body; loss of mobility of a joint or joints; loss of function of any organ(s) of the body identified in the Schedule; and cosmetic disfigurement of the body.
Under the Schedule, finger amputations are rated in accordance with detailed hand charts. Multiple finger impairments are evaluated with the aid of the Combined Values Chart.
Worker's Position
The worker filed an appeal on May 25, 2015. In his appeal form, he states that his injury has affected him in several ways.
In terms of physical limitations, the worker submits that he has limited use of his dominant right hand and shoulder. He says that the muscles in his shoulder have had to compensate for the loss of function in his middle, ring and little fingers, and the motions of his right hand are limited in order to mitigate further injury to his shoulder. The remaining digits are strained to compensate for the three injured fingers, and the mobility of those remaining digits is not the same as it was. His hand grip is also weaker since the injury.
In terms of additional time being required, the worker submits that because of the limited use of his dominant hand, he requires more time to complete tasks. Additional time is also required to train his left hand to perform tasks that his right hand used to do.
For these reasons, the worker states that he would appreciate re-evaluation of the loss of function of hand and shoulder.
In his response to the October 6, 2015 memorandum, the worker refers to various ongoing issues which he says originated from the initial injury, namely, loss of grip, unnatural position, loss of feeling, hypersensitivity, and intolerance to cold, and asks that the panel take these issues into consideration when making its final evaluation on his claim.
Employer's Position
The employer did not participate in the appeal.
Analysis
The issue which is before the panel is whether the worker's PPI rating has been correctly calculated. The worker is seeking an increase in his PPI rating. The panel has determined that the PPI rating was not properly calculated. The panel is unable to find, however, that the corrected calculation would result in an increase to the worker's PPI rating.
The panel reviewed the individual calculations for the worker's right middle, ring, and little fingers, and is satisfied that they are correct. In the course of its review, the panel determined, however, that there was an error in the calculation of the total PPI rating, as indicated below.
With respect to the individual calculations, the panel notes that impairment ratings for finger injuries take into consideration loss of movement as well as amputation. The PPI examination notes dated February 10, 2015 show that the WCB physiotherapy consultant measured and calculated the degree of impairment for range of motion and amputation for each of the worker's right middle, ring and little fingers as contemplated under the Policy. The panel accepts these calculations.
The worker referred in his appeal to additional concerns or effects. The diagnosis which has been accepted as compensable in this case is partial amputation to the middle, ring and little fingers of the worker's right hand. The panel notes that the assigned PPI rating represents the percentage of permanent impairment of whole body function due to the compensable injury. As such, and on the facts of this case, the panel is satisfied and finds that the PPI rating is inclusive of such associated physical effects as the worker has identified as loss of use or limited use of his right hand, change in mobility of his other digits, strain to his other digits, and loss of hand grip strength. The panel is further satisfied that there is no scheduled rating for additional time which may be required to perform tasks as a result of the compensable injury, and finds that this also would be included in the worker's assessed PPI rating.
While the worker also refers to problems with his right shoulder, the panel notes that issues with respect to his shoulder or a shoulder injury have not been identified or accepted as a compensable injury or part of the compensable injury in this case. Medical evidence would have to be obtained and the issue would need to be adjudicated by the WCB before it could properly be considered by the Appeal Commission.
In addition, the panel notes that with the exception of the reference to loss of grip, ongoing issues which were referred to in the worker's comments submitted October 29 were new issues and not direct responses to the answers provided by the physiotherapy consultant to the questions which were posed by the appeal panel. Such issues raised by the worker in his appeal to the Appeal Commission were not previously addressed by the WCB. Accordingly, those issues were not properly before the panel, and were not addressed.
As indicated above, in the course of its deliberations, the panel did determine that there was an error in the calculation of the total PPI rating. The Policy provides that where there are multiple finger impairments, the percentage values for the impaired fingers are to be combined using the Combined Values Chart. In response to an inquiry from the panel, the WCB physiotherapy consultant confirmed that the impairment calculations were done utilizing addition, but should have been done utilizing the Combined Values Chart. The physiotherapy consultant further advised that the revised calculation, based on the combined rating, resulted in a 14.00% PPI rating. The panel accepts the physiotherapy consultant's revised total calculation, and finds that the total PPI rating should have been 14.00% as opposed to 15.19% as originally calculated.
The panel notes that to the extent that the corrected PPI rating would lead to a lower PPI award and thus an overpayment of benefits, it is the panel's understanding, as per WCB Policy 35.40.50, Overpayment of Benefits, that recovery of such an overpayment would generally not be pursued in these circumstances, as it would have resulted from an adjudicative reversal by the WCB and/or decision of the Appeal Commission. The issue of overpayment is not, however, before the panel.
The worker's appeal is therefore denied.
Panel Members
L. Harrison, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
L. Harrison - Presiding Officer
Signed at Winnipeg this 15th day of December, 2015