Decision #147/16 - Type: Workers Compensation
Preamble
The worker is appealing decisions made by the Workers Compensation Board ("WCB") regarding the calculation of his permanent partial impairment award. A file review was held on September 28, 2016 to consider the worker's appeal.
Issue
Whether or not the worker's permanent partial impairment award of 13% and the monetary award of $14,170.00 has been correctly calculated.
Decision
That the worker's permanent partial impairment award of 13% and the monetary award of $14,170.00 has been correctly calculated.
Background
On July 26, 2008, the worker suffered a crush injury to his right leg in a work-related accident. His claim for compensation was accepted and various benefits were paid to the worker while he underwent treatment for his injury.
In October 2014, a WCB physiotherapy consultant examined the worker's right lower leg for the purposes of establishing a Permanent Partial Disability ("PPD") award. The worker reported that he had residual stiffness in his right ankle and edema in his right leg. He felt periodic grinding in his right knee. The worker was concerned about the long term outcome of his right knee due to the surgeries he had undergone.
The worker gave permission to have digital pictures taken of scarring in his right lower leg. The consultant stated "The cosmetic impairment related to the compensable injury is 5.00%."
The consultant used a goniometer and inclinometer to measure the worker's left and right ankle mobility as per the American Academy of Orthopedic Surgeons "The Clinical Measurement of Joint Motion" handbook. Passive right and left knee mobility was measured for documentation purposes and was 0-115 degrees bilaterally.
At the completion of the assessment, the physiotherapy consultant recommended a total PPI rating of 13.00%.
The worker was then advised by letter that based on WCB policy, he was entitled to a PPI award of 13% and the monetary amount of the award was calculated at $14,170.00. On January 18, 2015, the disagreed with the decision and an appeal was filed with Review Office.
On March 5, 2015, Review Office determined that the permanent impairment rating of 13% and award of $14,170.00 was correct.
Review Office referred to WCB policy related to the calculation of permanent partial impairment awards. Review Office accepted the WCB medical consultant's opinion that the worker's right ankle represented a 5% rating as a result of cosmetic changes and it also agreed with the demonstrated loss of passive range of motion of the worker's right ankle as recorded in the examination notes. After reviewing the criteria in which a PPI was measured, Review Office found there was no additional rating.
Review Office also found that the monetary award of $14,170.00 was appropriate ($1090.00 x 13). The value of $1,090.00 was payable for each full 1% of impairment.
On February 15, 2016, the worker appealed Review Office's decision to the Appeal Commission and a file review was arranged.
Reasons
Applicable Legislation
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 the adjusted amount for 2008 is $1,090.
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:
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's Appeal of Claims Decision form was received by the Appeal Commission on March 2, 2016. The worker submitted, in part, that "I feel the payment was unfair to the injury I live with."
In a submission received at the Appeal Commission on January 19, 2016, the worker indicated:
Because of my injury I am at a high risk for falling downstairs or uneven surfaces, and skin cancer from the scaring (sic). The weather plays a big factor in my mobility issues. Also having a deformed leg from the ankle up makes foot ware (sic) hard to find and very pricy (sic).
My mental health has been affected as I am and will continue to suffer from Post Traumatic Stress, resulting in low self-esteem, intimacy issues, no self confidence, social anxiety, and my quality of life has diminished.
In his request for reconsideration to Review Office, dated January 18, 2015, the worker submitted, in part, that:
I think the 14% (sic) for my loss of movement and scaring (sic) is unfair.
The person that examined my leg was done in 10 mins. No questions were (sic) about how I move from day to day, he also never saw my leg when it was swollen and when I could hardly move it.
I cannot stand long & walk far. I have balance problems (on even & uneven surfaces) I cannot do a lot of the things that I lived to do in the past.
Employer Positon
The employer did not participate in the appeal.
Analysis
The worker disagrees with the WCB's determination that he has a 13% permanent impairment and that his award is correctly calculated at $14,170.00. Accordingly, the issues to be determined by the panel are whether the worker's permanent partial impairment award of 13% and whether the monetary award of $14,170.00 has been correctly calculated.
The panel notes that the worker has a permanent injury to his right lower leg and ankle. This included loss of range of motion of the ankle and significant scarring of the lower leg.
Regarding the worker's loss of range of motion, the panel has reviewed the report of the WCB Physiotherapy Advisor who performed the PPI assessment. The panel finds that the assessment was thorough; the physiotherapist appears to have examined the worker properly and made the appropriate measurements regarding the range of motion of the ankle in accordance with the testing criteria set out in the policy. The panel has also reviewed the calculations and finds that the calculation of the impairment at 7.9% is correct.
Regarding the scarring on the worker's right leg, the panel notes that the rating of disfigurement is determined on a judgmental 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.
The panel has considered the recommendation of the WCB physiotherapy advisor that the rateable cosmetic impairment is 5%. The physiotherapy advisor made the determination based on his own visual examination of the worker’s scar and compared it to the folio of prior awards. He also consulted with a WCB medical advisor regarding the appropriate award. The panel finds that the worker's PPI rating for cosmetic impairment has been correctly established at 5%.
The panel also finds that the worker's total permanent impairment is properly calculated as 13 % and that the value of the permanent impairment award is properly calculated at $14,170.00
The worker also identified several physical limitations which impact his mobility. These include swelling, and limitations on walking and standing. The panel notes that these physical limitations are not related to the loss of range of motion and scarring which are the primary elements identified in the Policy that are to be used in assessment of a permanent partial impairment. The panel does not have the capacity to expand the assessment for these other limitations.
The panel notes that the worker referred to the impact of the injury on his mental condition. The panel notes that this permanent impairment assessment addressed only the worker's physical and not any psychological injuries.
The panel acknowledges that the accident has had a significant impact upon the worker but finds that the worker's permanent impairment rating is correctly assessed in accordance with the Policy and that the financial award was properly calculated.
The worker's appeal is dismissed.
Panel Members
A. Scramstad, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 12th day of October, 2016