Decision #152/15 - Type: Workers Compensation
Preamble
The worker is appealing the decision made by the Workers Compensation Board ("WCB") regarding his Permanent Partial Impairment rating and the financial amount of his award.
A hearing was held on November 17, 2015 to consider the worker's appeal.
Issue
Whether or not the worker's permanent partial impairmentrating of 6.20 % and the associated financial award have been correctlycalculated.
Decision
That the worker's permanent partial impairment rating of6.20 % and the associated financial award have been correctly calculated.
Decision: Unanimous
Background
The worker has an accepted claim with the WCB for a work-related motor vehicle accident that occurred on July 1, 2011.
On February 3, 2015, the worker's file was referred to the WCB's healthcare branch to determine whether the worker was entitled to a permanent partial impairment ("PPI") award as a result of his compensable injuries. In a response dated March 4, 2015, a WCB medical advisor stated:
"PPI Review
The accepted diagnoses related to the CI (compensable injury) are:
---Left shoulder dislocation with compression fracture greater tuberosity
---Degloving injury left foot with partial amputation fourth and fifth toes
[The worker] was involved in a rollover motor vehicle accident and sustained a shoulder dislocation which was reduced on the date of injury.
[The worker] sustained a crush injury of the left foot with multiple fractures, loss of skin over the dorsum of the foot and partial amputation.
[The worker] underwent a debridement of the left foot, debridement of bone fragments and skin grafting to the dorsum of the left foot with a partial thickness graft from the left thigh on July 4, 2011.
[The worker] continued to have difficulties with left foot mobilization and underwent extensive physiotherapy and rehabilitation.
[The worker] had a number of surgeries for removal of glass foreign bodies from the left foot.
[The worker] utilizes orthotics.
Pain and dysfunction of the left foot have been described on file.
In regards to the left shoulder, further investigations revealed no rotator cuff tear but evidence of a Hill Sachs deformity.
[The worker] continues to notice pain and dysfunction of the left shoulder and a diagnosis of left shoulder impingement has been made and accepted.
MMI (maximum medical improvement)
[The worker] is at MMI
Pre-existing
There are no major pre-existing conditions in relation to the PPI
Evaluation
[The worker] will be assessed for a possible PPI as follows:
---Loss of mobility shoulder
---Amputation rating left foot
---Cosmetic rating left foot and thigh"
On March 24, 2015, the worker was seen at the WCB offices for his PPI assessment. Following the examination, the WCB medical advisor assessed the worker with a PPI rating of 4.20% for loss of mobility in his left shoulder and 2.00% for a cosmetic rating. The total recommended PPI was 6.2% of whole person impairment.
By letter dated March 26, 2014, the worker was advised that based on his recent physical examination at the WCB, he was entitled to a PPI rating of 6.20% which resulted in a one-time payment of $7,140.00.
On April 9, 2015, the worker filed an appeal with Review Office as he disagreed with the PPI rating of only 6.20% and the financial amount of his PPI award.
On June 2, 2015, Review Office determined that the worker's PPI rating of 6.20% and associated award were calculated correctly for his physical compensable injury.
In reaching its decision, Review Office referred to the range of motion measurements outlined at the March 24, 2015 PPI examination between the worker's non-injured right shoulder and the loss of range of motion in his left shoulder. Review Office agreed that the 4.2% overall rating was calculated correctly. Review Office also stated that the worker was correctly provided a 2% cosmetic rating which addressed the scarring that was a result of the injury and subsequent surgery.
With respect to the financial amount of his PPI award, Review Office found that the worker's monetary payment in the amount of $7,140.00 had been correctly calculated: i.e., $1,190.00 x 6% = $7,140.00.
On February 7, 2015, the worker appealed Review Office's decision to the Appeal Commission and an oral 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 $1,030 is to be indexed annually, and as per regulation, the adjusted amount for accident dates in 2011 is $1,190.00 for each full 1% impairment.
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, in part:
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. His wife also attended and provided information to the panel. The worker outlined his reasons for appealing the decision. He also answered questions from the panel.
The worker advised that as a result of the accident, he has undergone six surgeries to remove glass from his left foot. The last surgery involved removal of a piece of glass that damaged a nerve. He described the operations for removal of the glass and the impact on his foot. He noted that initially the specialist did not believe there was still glass in his foot. He expressed his dissatisfaction with the specialist.
The worker stated that:
Every surgery caused a problem, because they can cut, but they did not find any glass. Move here, here, here, I don’t know what that's. Seven times is, one feet cutting, cutting, cutting, that’s too bad.
The worker said that no one checked his ankle properly except his podiatrist. He provided a letter dated October 12, 2015 from his treating podiatrist. The podiatrist's letter noted that the worker has "left chronic mid-foot pain secondary to a motor vehicle accident." He suggests that the worker undergo a possible EMG to help ascertain nerve function in combination with muscle function which might lead to a higher impairment award.
The worker indicated that both his left foot and left shoulder continue to be painful. He advised that there are aspects of his work which he is not able to perform because of his injuries. He advised that:
· he has increased pain in cold weather.
· he can only walk for 15 to 20 minutes
· he cannot stand too long
· his ankle swells
· he has increased pain in his shoulder and feet in the winter
· his work tolerance is lower than before the accident
· his left shoulder and left foot are not as strong as before the accident
· he needs special supports for his feet
· he cannot feel his toes
· he favours his right side which is causing right sided problems
· he has difficulty using the clutch and has pain when driving in urban centers
· he cannot tarp a load and has problems closing and opening doors
· he can no longer drive by himself and must work in a team.
The worker asked that the panel consider the impact that the impairments have had on his life and his ability to work.
Employer's Position
The employer did not participate in the appeal.
Analysis
The worker disagrees with the WCB's determination that he has a 6.20% permanent impairment and that his award is correctly calculated at $7,140.00. Accordingly, the issues to be determined by the panel are whether or not the worker's PPI rating of 6.20% and the associated financial award has been correctly calculated. For the worker's appeal to be approved the panel must find that the worker's permanent impairment rating was not correctly calculated and that the financial value was not properly calculated.
The panel has reviewed the report of the WCB medical advisor who performed the PPI assessment. The panel finds that the assessment was thorough, the physician appears to have examined the worker properly and made the appropriate measurements that correctly uses the criteria set out in the policy. The panel has also reviewed the calculations and finds that the calculations are correct.
The panel notes that the worker has permanent injuries to both upper and lower extremities. He identified several physical limitations which impact how he performs his job. These include pain, nerve denervation, swelling, loss of strength and work tolerance. The panel notes that these conditions may currently or in the future impact on the manner in which he performs his job duties. However, these physical limitations are not related to the loss of range of motion which is the primary element in assessment of a permanent partial impairment.
The panel acknowledges that the accident has had a significant impact upon the worker but given the issue before us and our finding that the worker's permanent impairment rating is correctly calculated and that the financial value was properly calculated, we must dismiss the worker's appeal.
Panel Members
A. Scramstad, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
Signed at Winnipeg this 29th day of December, 2015