The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decisions made by the Workers Compensation Board ("WCB") regarding the percentage and monetary award of his permanent partial impairment rating. A file review was held on February 24, 2016 to consider the worker's appeal.

Issue

Whether or not the 5% permanent partial impairment rating has been correctly established; and Whether or not the worker is entitled to a monetary award in relation to the impairment rating.

Decision

That the 5% permanent partial impairment rating has been correctly established; and That the worker is not entitled to a monetary award in relation to the impairment rating.

Background

The worker has an accepted claim with the WCB for an injury to his right index finger that occurred at work on July 25, 2013. Medical reports showed that the worker underwent a revision amputation on the date of injury and in November 2013, a revision amputation at the level of the distal interphalangeal ("DIP") joint. In April 2014, the worker underwent an amputation at the level of the right index finger at the metacarpophalangeal ("MCP") joint. The worker has a prior claim with the WCB for an injury to his right index finger which occurred on March 28, 2001. The compensable diagnosis was an amputation at the distal third of the middle phalanx of the right index finger. The worker was given a permanent partial impairment ("PPI") rating of 5.7%. As awards are paid on a whole percentage basis, the worker was paid an award based upon a PPI rating of 5.0%. On June 30, 2015, the worker was seen by a WCB medical consultant for the purposes of establishing a PPI rating for the 2013 injury to his right index finger. The examination findings were as follows: A well-healed scar was noted at the site of the amputation of the MCP joint of the right index finger. The amputation rating at the level of the MCP joint of the index finger is 5% whole person impairment. The amputation rating includes the cosmetic rating for the loss of the index finger. The final recommended PPI is 5% whole person impairment. By letter dated August 11, 2015, the worker was advised that he was not entitled to a further impairment award entitlement based on the following rationale: As you are aware, on June 30, 2015 you were examined at the Workers Compensation Board (WCB) in relation to the loss of the index finger you sustained at work on July 25, 2013. Based on the assessment, it was noted that you would be entitled to a 5% impairment award. However, when I reviewed your 2001 claim file…I noted that for the same index finger you were awarded a 5.7% impairment award rating. The WCB Medical Advisor indicated that your 2001 impairment rating awarded 1% for dysesthesia as well as 2% for loss of dexterity and dysesthesia. Since your index finger is now fully amputated, the only rating you would be entitled to for the loss of your index finger would be that of 5%, as everything would be included in that rating. On August 17, 2015, the worker appealed the case manager's decision to Review Office. On October 5, 2015, Review Office determined that the PPI rating was 5% and there was no entitlement to an award on this claim. Review Office referred to the worker's 2001 claim and noted that he was awarded a PPI rating of 5.7% for his right index finger which resulted in a monetary award of $1,080.00. Then on June 20, 2015, a WCB medical advisor examined the worker and recommended an amputation rating at the level of the MCP joint of the index finger at 5% whole person impairment, including a cosmetic rating for the loss of the index finger. As the worker already received an award for his right index finger based on a PPI impairment of 5.7% on his 2001 claim, there was no measureable incremental increase in relation to his 2013 claim. Review Office went on to acknowledge that, under the current law, the 5.0% PPI award would be paid at a higher rate than the award the worker received in relation to his earlier claim, but noted that this was due to legislative changes that came into effect on January 1, 2006 that were not retroactive. On October 23, 2015, the worker appealed Review Office's decision to the Appeal Commission and a file review was held on February 24, 2016. Prior to rendering a decision on the worker's appeal, the appeal panel sought clarification from the WCB on the interpretation and application of certain provisions of WCB Policy 44.90.10, Permanent Impairment Rating. A response was received from the WCB dated September 19, 2016 and was provided to the worker for comment. On September 30, 2016, the panel met further to discuss the case and rendered its final decision on the issue under appeal.

Reasons

Applicable Legislation and Policy The Appeal Commission is bound to follow The Workers Compensation Act (the "Act") and the policies of the WCB’s Board of Directors. Section 4(9) of the Act provides that the board may award compensation for an impairment that does not result in a loss of earning capacity. The degree of impairment is calculated, as set out in section 38 of the Act, as a percentage of total body impairment. The WCB Board of Directors established Policy 44.90.10, Permanent Impairment Rating, (the “Policy”) to determine impairment ratings. The Policy provides that the degree of impairment will be established by the Healthcare Management Services Department of the WCB in accordance with the Rating Schedule attached as Appendix A to the Policy. Whenever possible and reasonable, impairment ratings will be established strictly in accordance with the Schedule. Impairment awards are calculated by determining a rating that represents the percentage of impairment as it relates to the whole body. The award is not related to loss of earning capacity, and it is not intended to compensate a worker for any pain or suffering flowing from an injury. Worker's Position The worker’s position is that the PPI rating has not been correctly established and that the amputation of his right index finger should result in an impairment rating that is greater than the rating established for the earlier partial amputation of that same finger. He points to the fact that he is no longer able to do work that he could do with the partial amputation, and states that this loss of function as well as his pain and suffering should be recognized through a PPI rating of greater than 5%. The worker also states that he should be compensated through a PPI award for the loss of a complete finger. Employer’s Position The employer did not participate in this review and took no position. Analysis There are two questions for the panel to determine in this appeal: 1. Whether or not the 5% permanent partial impairment rating has been correctly established; and 2. Whether or not the worker is entitled to a monetary award in relation to the impairment rating. The panel considered each of these issues in turn as outlined in the reasons below. Is the 5% PPI Rating correctly established? In considering this question, the panel must determine whether the Policy has been correctly applied to the facts in this circumstance. In other words, is 5% the correct rating for an amputation at the level of the right index finger at the metacarpophalangeal ("MCP") joint? The Policy sets out that permanent impairment from a workplace injury is evaluated for the loss of a body part, loss of mobility of a joint, loss of function of any organ identified in the Schedule and cosmetic disfigurement. Whenever possible and reasonable the impairment rating will be established by the applicable Rating Schedule. The rating for amputation of a finger follows a specified four stage process according to the Rating Schedule: 1. determine which hand chart to use 2. assign the appropriate percentage to each impaired joint 3. add the percentages together along each digit (from proximal to distal phalanx) 4. combine the values for each impaired digit using the Combined Values Chart. Where, as is the case here, only a single digit is impacted by the injury, the 4th stage is not relevant to the calculation process. As set out above, the worker has a prior injury to the same finger arising from a 2001 workplace accident that resulted in amputation at the distal third of the middle phalanx of his right index finger. The Permanent Impairment Rating for that injury was established at 5.7% of total body impairment. Here, the panel applied the relevant provisions of the Schedule, with reference to the single finger chart. The panel notes that the WCB medical consultant assigned percentages to each impaired joint of the worker’s index finger, amputated to the M.C.P. joint, as follows: D.I.P. 2% P.I.P. 2% M.C.P. 1% When added together to determine the total value of the amputated index finger as a percentage of whole body impairment, the total equals 5%. The panel finds that the process undertaken by the medical consultant followed the criteria of the Policy in measuring the impairment of the worker's index finger, and agrees with the assessment's PPD rating calculations that was done. On the basis of our review of the file documents and application of the provisions of the Policy and Rating Schedule to the evidence before us, we are satisfied that the PPI rating of 5.0% has been correctly calculated. Is the worker entitled to a monetary award? The PPI rating calculation is converted into a financial impairment benefit commonly referred to as the PPI award. The Act clearly sets out in s. 38(4) that the amount of an award is to be determined using the impairment award values in effect on the day of the accident. In considering whether the worker is now entitled to a monetary award based upon the current finding of a 5% PPI rating, we must first consider the impact of the prior PPI rating and award for this same finger on his 2001 claim. The Policy sets out that the total PPI rating for loss of function of an extremity cannot exceed the PPI rating for amputation of that extremity. This restriction is relevant in the present case where the worker had a prior PPI rating for a partial amputation of the same digit determined at 5.7% of total body impairment. Further, the worker has already received a PPI award for 5% of total body impairment for that finger. The Policy clearly establishes that the maximum rating for loss of an index finger by amputation at the MCP joint is 5%. The worker has therefore already been compensated for loss of function of that extremity to the maximum PPI rating for that injury. In order for us to find that the worker is entitled to a further monetary award, we would have to determine that the worker’s total body impairment rating now exceeds the rating for which he has already been compensated in respect of that extremity. For the reasons set out above, we are not able to make that finding. The worker is therefore not entitled to a further monetary award.

Panel Members

K. Dyck, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, B. Kosc

K. Dyck - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 20th day of October, 2016