The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he was not entitled to a permanent partial impairment award in relation to his compensable injury. A file review was held on September 6, 2016 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to a permanent partial impairment award.

Decision

That the worker is not entitled to a permanent partial impairment award.

Background

The worker has an accepted claim with the WCB for an injury he sustained to his right middle finger on July 15, 2011. Medical reports show that the worker was diagnosed with a right middle trigger finger and underwent three separate surgeries, which included initial trigger finger release, repeat trigger finger release and synovectomy, and tenodesis and synovectomy.

On February 25, 2016, the worker was seen by a WCB physiotherapy consultant to determine whether the worker was entitled to a permanent partial impairment ("PPI") award. The worker advised the consultant that he had ongoing pain and weakness in his right hand, and was unable to make a full fist. He reported using splints on his middle and ring fingers to maintain mobility. He said he had periodic swelling in his right index, middle and ring fingers.

The consultant reported that digital pictures of scarring of the right hand were taken, and the scars were compared to the folio of images at the WCB. The consultant concluded that there was no ratable cosmetic impairment related to the compensable injury.

Based on range of motion findings related to the right index, middle and ring fingers, the consultant calculated the total impairment to be 0.19%. In a decision dated March 1, 2016, the WCB advised the worker that he did not qualify for a ratable permanent impairment as his PPI rating had been established at 0.19%, which was less than 1%. On March 21, 2016, the worker appealed the decision to Review Office.

On April 20, 2016, Review Office determined that there was no entitlement to a PPI award.

Review Office accepted the opinion of the WCB physiotherapy consultant that there was no ratable cosmetic impairment related to the compensable injury. Review Office also reviewed the February 25, 2016 examination findings, accepted the WCB physiotherapy consultant's recommendations, and concluded that the 0.19% PPI rating was correct. Review Office noted that a PPI rating of less than 1% does not result in a monetary award based on WCB policy. On May 10, 2016, the worker appealed Review Office's decision to the Appeal Commission and a file review was arranged.

Reasons

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by The Workers Compensation Act (the "Act"), regulations and policies of the WCB's 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. Subsection 38(1) states that the WCB shall determine the degree of a worker's impairment expressed as a percentage of total impairment. Subsection 38(2) provides a formula to determine the monetary value of an impairment award. Pursuant to subsection 38(2), an impairment award is not payable for an impairment assessed at less than 1%.

WCB Policy 44.90.10, Permanent Impairment Rating (the "Policy"), provides that impairment benefits are calculated by determining a rating which represents the percentage of impairment as it relates to the whole body. The Policy, as it read at the date of the decisions by the WCB, stated in part as follows:

1. The degree of impairment will be established by the WCB's Healthcare Services Department in accordance with this policy…

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

Appendix A stated that permanent impairment from a workplace injury was to be evaluated for the following deficits:

* loss of a part of the body; * loss of mobility of a joint(s); * loss of function of any organ(s) of the body identified in the Schedule; and * cosmetic disfigurement of the body.

For injuries to upper extremities, Appendix A provided as follows:

Upper Extremity: Loss of Movement

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

The rating for loss of movement of a finger or fingers was to be determined in accordance with the process and detailed hand charts set out at pages 10 to 19 of Appendix A.

With respect to cosmetic disfigurement, Appendix A provided, in part, as follows:

When a worker is permanently disfigured as a result of an injury, the WCB may determine that the disfigurement be considered a permanent impairment to which the worker is entitled to an impairment benefit.

Disfigurement is an altered or abnormal appearance. This may be an alteration of color, shape, or structure, or a combination of these.

The rating for disfigurement is done by a WCB Healthcare Advisor and the degree of disfigurement is determined on a judgmental basis…

In order to maintain consistency in ratings for disfigurement, and to make the rating as objective as possible, WCB's Healthcare Services Department will make reference to a folio of disfigurement ratings established in previous cases…

Worker's Position

The basis of the worker's appeal is set out in the appeal form which he filed on May 10, 2016. The worker disagreed with the decision based on the pictures and measurements, and stated that he was:

…requesting a more [thorough] examination of my right hand.

An examination where the over all [function] of my hand gets tested (open, close, pull, push, lift). The test done by WCB where my permanent restrictions were made, was based on a much [more thorough] examination with better equipment and exercises.

Employer's Position

The employer did not participate in the appeal.

Analysis

The issue before the panel is whether or not the worker is entitled to a permanent partial impairment award. For the appeal to be successful, the panel must find that the Act and/or WCB policy were not correctly applied in this case. The panel is unable to make that finding.

The panel has reviewed the report of the WCB physiotherapy consultant who performed the PPI assessment. The report shows that the consultant measured and calculated the degree of impairment in respect of range of motion for the worker's right index, middle and ring fingers. The panel finds that the assessment was thorough, and the consultant appears to have examined the worker and made the appropriate measurements, correctly applying the criteria set out in the Policy. The panel has also reviewed the calculations themselves and finds that they are correct.

With respect to the assessment for cosmetic disfigurement, the consultant's report indicates that digital pictures were taken of the scarring of the worker's right hand and compared to the folio of images at the WCB. Based on his assessment, and in the exercise of his judgment, the WCB physiotherapy consultant concluded that there was no ratable cosmetic impairment related to the compensable injury. The panel is satisfied that the consultant's assessment was conducted in accordance with the process which is set out in the Policy, and accepts the consultant's conclusion of no ratable cosmetic impairment.

The panel considered the worker's submission to Review Office that he has several physical limitations which have made his personal and occupational life harder, including pain and swelling, and lack of mobility and limited function in his right hand. The panel notes that the impact of an injury on a worker's personal or occupational life is not part of the impairment assessment. The PPI award is not intended to compensate a worker for any pain or suffering or loss of earnings flowing from an injury. With respect to mobility, the panel notes that the rating calculation does assess loss of functional ability, by measuring loss of range of motion. As previously indicated, that calculation represents the percentage of permanent impairment of whole body function due to the compensable injury. As such, it includes any change in function or lack of mobility of the right hand.

The worker has also submitted that the PPI examination was inadequate, and requested a more thorough examination such as was done at a call-in examination on April 30, 2015 where a WCB medical advisor recommended that his workplace restrictions be made permanent. The panel notes that the purpose of the April 30 call-in examination was different. That examination involved an assessment of the worker's job abilities and workplace restrictions, matters which are not related to and do not form part of a PPI examination.

The panel acknowledges the worker's concerns and frustration, but as indicated above, we are satisfied that the PPI examination was conducted and the worker's impairment rating of 0.19% was established in accordance with the Policy.

In conclusion, the panel finds that the Act and Policy were correctly applied and the PPI rating of 0.19% was correctly established. As that rating does not meet the minimum or threshold criteria of a full 1% for a financial award under the Act, the panel finds that the worker is not entitled to a PPI award.

The worker's appeal is denied.

Panel Members

M. L. Harrison, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

M. L. Harrison - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 26th day of October, 2016