Decision #07/99 - Type: Workers Compensation
Preamble
An Appeal Panel review was held on November 17, 1998, at the request of an advocate, representing the claimant.
Issue
Whether the permanent partial impairment has been correctly rated at 4.9%.
Decision
That the permanent partial impairment has been correctly rated at 4.9%.
Background
In September 1992, the claimant submitted an application for compensation benefits with respect to tendinitis of the right arm and elbow which she related to her employment activities in a meat packaging plant. The claim was accepted as a Workers Compensation Board (WCB) responsibility and benefits were paid accordingly.
On June 4, 1998, the claimant was examined by a WCB impairment awards medical advisor to assess the possibility of a Permanent Partial Impairment (PPI) rating for the right elbow, forearm and wrist. Following the examination, the impairment awards medical advisor assessed a 4.9% PPI rating. On July 2, 1998, three WCB medical advisors reviewed pictures taken of the surgical site and assessed a 0% rating for cosmetic impairment. On July 7, 1998, a WCB payment specialist advised the claimant that the 4.9% rating entitled her to a lump sum value of $500.00.With the assistance of an advocate, the claimant argued that her PPI award should be increased from 4.9% to 5.23%. The case was forwarded to the Review Office for consideration.
In a decision dated September 11, 1998, the Review Office remarked that the advocate believed the worker’s impairment award should be rounded upwards to over 5% thus ensuring an additional $500.00 in lump sum value to the worker. The Review Office confirmed however, that the 4.9% rating was correct as the Impairment Rating Schedule did not provide for the rounding of values either upwards or downwards. With regard to a cosmetic award which was rated at 0%, the Review Office did not believe that the worker was entitled to a rateable impairment for any cosmetic damage caused by the surgical procedure. In summary, the Review Office confirmed that the impairment rating of 4.9% as being accurate.
On September 21, 1998, the claimant’s advocate appealed the Review Office’s decision to the Appeal Commission and requested a non-oral file review.
On November 9, 1998, the Appeal Commission received a submission from the employer’s advocate requesting the Appeal Commission to uphold the Review Office decision that the impairment rating had been correctly determined at 4.9%. On November 17, 1998, an Appeal Panel review was conducted.
Reasons
Section 60(2) of The Workers Compensation Act of Manitoba (the Act), provides exclusive jurisdiction to the WCB to determine the existence and degree of an impairment by reason of any injury arising out of and in the course of employment. According to Section 38(1) of the Act, the WCB shall determine the degree of a workers impairment expressed as a percentage of total impairment. Also, Section 4(9) allows the awarding of compensation in respect of an impairment even though there has been no loss of earning capacity.
An injured worker’s permanent impairment is appraised by the Medical Services Department of the WCB when it conducts either a medical examination of the worker or by its reviewing the treating physician’s medical reports. Certain factors are taken into consideration: loss of the particular part of the body; loss of mobility in the joints; loss of function of any body organs; and cosmetic deformity of the body. As some forms of impairment do not allow for exact measurement, it becomes necessary for the medical advisor to make a subjective judgment as to the degree of impairment.
It is also important to note that because pain is immeasurable, it does not become a component in the determination whether a claimant qualifies for a permanent impairment award. For instance, a claimant who has complete and full range of motion of a shoulder following an injury to that shoulder would not be eligible for a permanent impairment award because of his continued experience of pain. Without a loss of range of motion or function of body part, the WCB will not authorize a permanent impairment award based on pain alone.
In the particular case at hand, the claimant was examined by a WCB Impairment Awards medical advisor on June 4, 1998. She recorded in her examination notes the following assessment and calculations of range of motion at the elbow, forearm and wrist:
At the elbow, the total range of motion is 130° on the right hand and 140° on the left. Therefore, there is a loss of range of motion of 140 - 130 =10°. The permanent impairment rating for an elbow fused in a position of function is 20%.
Therefore, the permanent impairment calculation 10/40x20=1.4%. At the forearm, a total range of motion on the right is 80° + 70° = 150° and on the left is 90° + 95° = 185°. The loss of range of motion is therefore 185° - 150° = 35°. The permanent impairment rating for a total loss of pronation and supination is 10%. Therefore, the permanent impairment calculation is 35/185x10%= 1.9%.
The range of motion at the wrist on the right side is 170° and on the left side is 195° - 170° = 25°. The permanent impairment rating for wrist ankylosed in a position of function is 12.5%. Therefore, the permanent impairment calculation is 25/95x2.5% = 1.6%. The claimant was sent for photographs for cosmetic purposes of the scarring at her elbow before a final rating was awarded.
WCB Impairment Award medical advisors employ certain criteria when making a determination of cosmetic impairment. Some of the factors considered when reviewing scarring include location of scar, form, multiple sites, texture, colour etc. Photographs are taken of the scarring and they are then reviewed independently by three medical advisors. A portfolio of photographs is also maintained at the WCB for purposes of comparing similarity and ensuring consistency.
The evidence on file confirms that three Impairment Award medical advisors reviewed photographs of the claimant’s scarring. It was a consensus opinion that a 0% rating be given for scarring. While we did not have the benefit of being able to compare the claimant’s photographs with folio photographs on file at the WCB, we find no reason to disturb the ultimate consensus opinion reached by the medical advisors.
We have reviewed the calculations of the claimant’s impairment rating and find same to have been done correctly in accordance with the legislation and the Permanent Impairment Rating Schedule approved by the Board of Directors. Therefore we find that the claimant’s permanent partial impairment rating has been correctly rated at 4.9%.
Accordingly, the claimant’s appeal is hereby dismissed.
Panel Members
R.W. MacNeil, Presiding Officer
A. Finkel, Commissioner
R. Frisken, Commissioner
Recording Secretary, B. MIller
R.W MacNeil - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 8th day of January, 1999