The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board (“WCB”) regarding the percentage and the monetary amount of his Permanent Partial Impairment (“PPI”). A hearing was held on February 2, 2016 to consider the worker’s appeal.

Issue

Whether or not the worker's PPI rating of 4.9 % has been correctly calculated; and,

Whether or not the monetary amount of the worker's PPI award of $5,000 has been correctly calculated.

Decision

That the worker’s PPI of 4.9% and the monetary award have been correctly determined.

Decision: Unanimous

Background

On June 19, 2013, the worker suffered a severe crush injury to his left hand and fractured his finger in a work-related accident. His claim for compensation was accepted on June 20, 2013. The worker subsequently underwent open reduction internal fixation of P1, D2 left hand and repair of the extensor tendon.

By March 2, 2015, it was determined by the WCB that the worker reached MMI (maximum medical improvement).

On June 17, 2015, the worker was seen at the WCB offices for the purpose of determining if he had a rateable PPI rating. The WCB medical consultant noted that the worker had a cosmetic impairment (scarring/asymmetry) involving the left hand/index finder. Further, the WCB medical consultant found that there was the presence of a well healed scar over the dorsum of the hand between the index and middle finger. Digital pictures related to scarring/asymmetry of the left hand and index finger were taken. Loss of light touch was noted over the radial surface of the left proximal phalanx of the index finger.

The cosmetic impairment related to the compensable injury was established at 1% whole person impairment.

The WCB medical consultant then measured the active guided left and right index/long finger mobility. This was conducted with a goniometer in accordance with the American Academy of Orthopedic Surgeons “The Clinical Measurement of Joint Motion” handbook.

Based on the WCB medical consultant’s measurements, the worker’s PPI rating was calculated as follows:

Cosmetic rating: 1.00%

Loss of mobility left index/middle fingers: 3.90%

TOTAL PPI RATING 4.90%

By letter dated July 3, 2015, the worker was advised that he was entitled to a PPI rating of 4.90% which resulted in a monetary award of $5,000.00.

On July 7, 2015, the worker appealed the rating and the amount of the award to Review Office.

On August 6, 2015, Review Office determined that the PPI rating of 4.90% and the award of $5,000.00 were appropriate.

Review Office was in agreement with the WCB medical consultant’s opinion that the rating of 1% represented the compensable cosmetic changes. This percent considered the cosmetic impairment which occurred as it related to the whole body person. Review Office indicated that it accepted the measurements recorded during the examination of the worker and found that they were conducted in accordance with the process outlined by WCB policy. Review Office noted that the worker had some symptoms attributable to nerve damage (numbness) but the evidence did not show that this caused a deficit in the use of his hand (i.e. difficulty with finger dexterity).

On August 27, 2015, the worker appealed Review Office’s decision to the Appeal Commission and an oral hearing was arranged.

Reasons

The issues for this panel to decide are:

1. Whether or not the worker's PPI rating of 4.9 % has been correctly established; and,

2. Whether or not the amount of the worker's PPI award of $5,000 has been correctly calculated.

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. Further, under section 38 of the Act the payment of compensation for impairment is set out.

In accordance with the Act, the Board of Directors enacted WCB Policy 44.90.10.01 Permanent Impairment Rating Schedule (the “Policy”) which provides guidelines on how impairment awards are to be calculated:

1. The degree of impairment will be established by the Healthcare Management Services Department of the Workers Compensation Board in accordance with this policy. The degree of impairment established by this Department can only be altered on review and approval by the Executive or Senior Director responsible subject to the normal appeal process.

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

Appendix A provides as follows at pages 2 and 10:

2.2 DETERMINING A RANGE OF MOTION IMPAIRMENT

The impairment rating for loss of range motion resulting from direct injury or related surgical procedures will be determined by a WCB Healthcare Advisor, through clinical examination of assessment of the medical information in file, based in the loss of active guided movement of the affected joint(s).

[…]

For the purpose of this Schedule, the term “finger” is restricted to the index, middle, ring and little fingers. The thumb is considered separately and is not a “finger” in this document. The term “digit” includes both fingers and thumb.

The rating for amputation(s) or loss of movement of a finger, thumb or had follows a four stage process:

1. determine which hand chart to use (see Section 3.7.1);

2. assign the appropriate percentage to each impaired joint (from lateral (thumb); to medial (little finger);

3. add the percentages together along each digit (from proximal to distal);

4. Combine the valued for each impaired digit suing the Combined Values Chart (see Appendix “A”).

[…]

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’s position is that the PPI and the consequent award are insufficient, and therefore incorrect, for a condition which he must deal with for the remainder of life.

Employer's Position

The employer did not participate in the appeal.

Analysis:

In order for the worker's appeal to succeed, the panel must find that the Act, regulations and/or the WCB Policies were not correctly applied in his case. We are not able to make that finding.

Based on the evidence as a whole, the panel finds that the calculation of the cosmetic rating and that the measurements of loss of range of motion were done in a manner consistent with WCB policy. As well, the panel was unable to establish other impairment categories that might lead to additional impairment ratings. The panel therefore finds that the worker's current PPI rating has been correctly established at 4.9%.

The panel finds that the PPI calculations are all correct and in accordance with the Act and applicable Policy. Indeed, in accordance with the applicable regulations associated with the Act, for accidents occurring in 2013, the amount of $1,250.00 is payable for each full impairment up to and including 30%. In addition, also in accordance with the Act and applicable regulations a PPI of 4.9% becomes 4% ($1,250 x 4 = $5,000.00).

Panel Members

C. Monnin, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, B. Kosc

C. Monnin - Presiding Officer

Signed at Winnipeg this 30th day of March, 2016