Decision #46/16 - Type: Workers Compensation
Preamble
The worker is appealing the decision made by the Workers Compensation Board ("WCB") regarding the amount of his permanent partial impairment rating. A hearing was held on February 2, 2016 to consider the worker's appeal.
Issue
Whether or not the worker's permanent partial impairment rating of 2% has been correctly established.
Decision
That the worker's permanent partial impairment rating of 2% has been correctly established.
Decision: Unanimous
Background
The worker has an accepted claim with the WCB for injuries he sustained in a work-related traffic accident on July 25, 2013. The compensable diagnoses were cervical radiculopathy, whiplash, laceration to the forehead, bilateral wrist pain/strain, and neck and back strain.
On November 25, 2014, the worker was seen at the WCB offices for the purpose of establishing a permanent partial impairment ("PPI") rating. The WCB medical advisor who conducted the examination noted that there was a well-healed, slightly jagged 6 cm long scar over the lower forehead. Digital pictures of scarring of the forehead were taken and compared to archived photos at the WCB. The medical advisor determined that the cosmetic impairment related to the compensable injury was 2% whole person impairment. A full passive range of motion of the cervical spine was noted. The total recommended PPI rating was 2% whole person impairment.
By letter dated November 27, 2014, the worker was advised that based on the findings from his November 25, 2014 examination, he was entitled to a 2% PPI rating which resulted in an award in the amount of $2,500.00.
In an email dated January 6, 2015, the worker noted that while he had been paid for the 6 cm scar, the patch of skin surrounding the scar was also discoloured and noticeable and did not seem to have been taken into account. The worker asked that he be allowed to come back in to have this assessed by the medical advisor.
On March 12, 2015, the WCB medical advisor advised the case manager that the cosmetic PPI rating took into account the discolouration of the worker's forehead.
By letter dated March 16, 2015, Compensation Services advised the worker that the previous rating of 2% adequately reflected the present degree of impairment due to the injury. On April 1, 2015, the worker appealed the PPI rating to Review Office.
On June 18, 2015, Review Office determined that the PPI rating of 2% adequately reflected the degree of the worker's impairment. Review Office noted that the worker experienced no loss of range of motion in any of the accepted areas of injury from his compensable accident. He was left with permanent disfigurement (scarring and discolouration) on his forehead. This disfigurement was considered a permanent impairment for which the worker was entitled to an award.
Review Office stated that it had reviewed the digital photograph of the worker's scar and discolouration in accordance with the Permanent Impairment Rating Schedule, and compared that photograph with the WCB's folio of similar images/injuries. Review Office concluded that the impairment of 2% whole person was consistent with other similar scars/disfigurement and was thus an adequate rating for the worker's cosmetic impairment.
On September 21, 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 "WCA"), regulations and policies of the WCB's Board of Directors.
The worker was employed by a federal government agency or department and his claim is adjudicated under the Government Employees Compensation Act (the "GECA"). Pursuant to subsection 4(2) of the GECA, a federal government employee in Manitoba is to receive compensation at the same rate and under the same conditions as a worker covered under the WCA.
Under subsection 4(1) of the WCA, 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. Subsection 4(9) provides that the WCB may award compensation for an impairment that does not result in a loss of earning capacity.
Subsection 38(1) of the WCA provides that the WCB "shall determine the degree of a worker's impairment expressed as a percentage of total impairment."
The WCB Board of Directors has established Policy 44.90.10.01, Permanent Impairment Rating Schedule (the "Policy"). Pursuant to the Policy, impairment benefits are calculated by determining a rating which represents the percentage of impairment as it relates to the whole body.
The Policy provides that the degree of impairment will be established by the WCB's Healthcare 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 which is attached as Appendix "A" to the Policy.
Appendix "A" to the Policy allows for a cosmetic rating for disfigurement and states 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 judgemental 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 the Benefits Division as prescribed in Board Order 67/89.
Worker's Position
The worker's position was that the settlement he received did not fairly compensate him for the degree of actual disfigurement that he had.
The worker submitted that the WCB only paid him for a 6 cm jagged scar which he has on his forehead due to the work-related accident. He stated that while he may have been fairly compensated for that scar, he also has a disfigurement which is abnormal in appearance and very noticeable. It is a "patch" of skin which is noticeably discoloured and does not tan in the summer.
The worker noted that the WCB medical advisor's notes only said that he had a "well healed, slightly jagged 6 cm long scar … over the lower forehead." There was no reference to the discolouration. He said that all he had asked for from the WCB was to be re-measured and to have this patch of discoloured skin properly evaluated and compensated, since it was obviously not taken into consideration.
The worker submitted that if the PPI cosmetic rating was determined by comparing a photo of his injury with images of other injuries, he did not agree with that process. In his view, his whole disfigurement should have been measured and not just eyeballed from a picture. He noted that he did not get to see any of the images which may have been compared with his photo, and had no clue what they might relate to or show. The worker also pointed out that the WCB medical advisor indicated in his notes that his recommendation would be only one of the factors considered by Compensation Services when determining the final PPI award. In his view, however, it was clearly the only factor which was considered.
The worker stated that he wanted his impairment to be properly measured and a fair process followed. He did not believe that the 2% cosmetic rating was fair or that his rating had been fairly assessed. He submitted that the degree of discolouration can be properly measured. He said that he has seen a dermatologist about getting his scar fixed and the dermatologist was able to measure the discolouration because he is going to try to fix it. He submitted that what would be fair would be to re-do the PPI assessment and fairly measure his impairment and/or to take the dermatologist's assessment.
Employer's Position
The employer did not participate in the appeal.
Analysis
The issue before the panel is whether the worker's permanent partial impairment rating of 2% has been correctly established. In order for the worker's appeal to succeed, the panel must find that the WCA and/or WCB Policy were not correctly applied in this case. The panel is unable to make that finding.
The panel is satisfied, on a balance of probabilities, that the WCB medical advisor's assessment was conducted in accordance with the process which is set out in the Policy. The WCB medical advisor's notes indicate that he arrived at the recommended PPI rating based on his own visual examination of the worker's forehead. The notes also indicate that he compared digital pictures of the scarring of the worker's forehead with archived photos at the WCB. Based on his assessment, and in the exercise of his judgment, the WCB medical advisor recommended a 2% impairment rating. The panel notes that the medical advisor has broad experience in conducting PPI examinations and assessments and making such recommendations.
After being advised of the rating and requesting a copy of the file, the worker raised a concern that he had only been rated for the scar and not the discolouration of his forehead. That concern was referred to the case manager, who made inquiries of the medical advisor on this point. In his response to the case manager dated March 12, 2015, the WCB medical advisor stated that the "cosmetic PPI rating takes into account the discolouration of the forehead." Compensation Services then advised the worker that: "Based on all the information available to us, including the results of your examination by our Medical Advisor on November 25, 2014, it is our opinion that the previous rating of 2% adequately reflects that present degree of impairment due to the injury."
The panel accepts the medical advisor's advice that the recommended cosmetic rating of 2% took into account the discolouration of the worker's forehead. The fact that the medical advisor's notes only refer to scarring is not determinative. The panel notes that the digital pictures which were taken of the worker's forehead at the PPI examination and are on the medical file are in colour. The discolouration surrounding the scar on the worker's forehead is clearly visible in the digital pictures, and in at least some cases, even more visible that the scar itself. The worker also agreed at the hearing that not everything that was said at the time of the examination was mentioned in the notes.
The worker expressed frustration with the lack of explanation or clarification with respect to the determination of his PPI rating. The panel acknowledges the worker's frustration, but as indicated above, we are satisfied, based on our review of the file, that the worker's PPI rating of 2% was established in accordance with the Policy.
With respect to the worker's reference to an assessment by a dermatologist, the panel notes that a PPI award is not related to the cost of treating an injury or medical-aid benefits. The impact of the injury on the lifestyle of a worker is not part of the impairment rating. An estimate from the dermatologist of the cost of treatment or the process used by the dermatologist to measure discolouration is an entirely different matter from the assessment of a PPI award under the WCA and WCB Policy.
The panel also notes that the worker was asked, in the course of the hearing, whether he had any issue with the calculation of the amount of the PPI award. His response was that if the calculation was based on the 2% rating, it was absolutely wrong because he disagreed with the 2% rating. Otherwise, he had no idea whether $2,500.00 was the right number for a 2% rating or not. In the circumstances, the panel has also reviewed the calculation of the amount of the PPI award and finds that it has been correctly calculated at $2,500.00 in accordance with the WCA and regulations.
In conclusion, the panel finds, on a balance of probabilities, that the WCA and WCB Policy were correctly applied and the PPI rating of 2% was correctly established.
The worker's appeal is therefore dismissed.
Panel Members
M. L. Harrison, Presiding OfficerA. Finkel, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, B. Kosc
M. L. Harrison - Presiding Officer
Signed at Winnipeg this 30th day of March, 2016