Decision #118/17 - Type: Workers Compensation
Preamble
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his permanent partial impairment award regarding his right arm was only 7.9%. A hearing was held on July 13, 2017 to consider the worker's appeal.
Issue
Whether or not the worker's permanent partial impairment has been correctly calculated.
Decision
That the worker's permanent partial impairment has been correctly calculated.
Background
The worker has an accepted claim with the WCB for an injury to his right arm that occurred in the workplace on March 5, 2006.
On October 16, 2007, the worker was seen at the WCB's offices for an assessment by a WCB medical advisor to determine whether or not he was entitled to a permanent partial impairment ("PPI") award in relation to his right arm. Following the assessment, the worker was provided with a PPI award of 9.00% which resulted in a monetary award of $9,270.00.
In September 2014, the worker advised the WCB that his right arm condition was getting worse. This led to a second assessment at the WCB's office on April 8, 2015. Following the examination, it was determined that the worker's PPI award was 7.9%. In May 2015, the worker appealed the decision to Review Office.
On June 25, 2015, Review Office determined that the worker's PPI rating was correct at 7.9%. Review Office stated, in part:
…based on the result of the assessment on April 18, 2015 it demonstrates the worker's right arm mobility improved (for the purpose of the PPI rating) since he was last assessed in October 2007. We agree with the PPI rating for loss of mobility is 4.9%. With regards to cosmetic deformity, we also agree that the rating of 3.00% is reasonable and that there has been no change in cosmetic rating since 2007. The Review Office finds the 7.9% PPI rating has been calculated correctly…There is no provision in the Act or Board policy for a PPI rating or award in respect of loss of quality of life, difficulties in performing day to day tasks, pain and the like.
On October 1, 2016, the worker appealed Review Office's decision to the Appeal Commission and an oral hearing was arranged.
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. In this case the worker is appealing the WCB's calculation of his permanent impairment award.
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 method for calculating compensation for impairment is set out in section 38 of the Act:
Determination of impairment 38(1)
The board shall determine the degree of a worker’s impairment expressed as a percentage of total impairment.
The WCB Board of Directors established Policy 44.90.10, Permanent Impairment Rating Schedule (the “Schedule”) to determine impairment ratings. Appendix A to the Schedule sets out how impairment ratings are determined. The Schedule sets out that permanent impairment is measured by the following factors: loss of a part of the body; loss of mobility in the joints; loss of function of any organs of the body identified in the schedule; and cosmetic deformity of the body.
The Schedule provides that the degree of impairment will be established by the Healthcare Management Services Department of the WCB in accordance with the Schedule and that 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. The rating calculation does assess loss of functional ability by measuring loss of range of motion.
The monetary value of PPI awards is calculated under section 38(2) of the Act, as adjusted by the Adjustment in Compensation Regulation.
Worker Position
The worker was self-represented.
The worker described his workplace accidents and explained how they resulted in a permanent impairment. He said that he tore his bicep in September 2006. In 2009, he re-aggravated this arm, when he slipped and fell on steel stairs.
The worker advised that he has been left with weakness, pain and no flexibility. He is not able to use his right arm for many of the tasks of his trade. He said that he is an industrial mechanic, millwright, welder, and pipe fitter.
He commented that:
I may be able to lift it, I may be able to move it out sideways, but there's no strength to it, so there's the flexibility that he's talking about doesn't mean a thing. It's not a useful flexibility…
He said that the loss of strength "makes that arm basically useless." He demonstrated restrictions on the use of his arm.
The worker submitted that his arm movement was not measured properly. He said it should be assessed on working flexibility.
In answer to a question, the worker acknowledged that the WCB medical advisor who conducted the examination moved his arm in six different ways, as well as his elbow and forearm. In reference to his examination, the worker said that:
when he does measure it, he was measuring arm size and everything. And there is a marked difference in the shoulder, because when you stand in front of the mirror, this shoulder actually drops, and he was looking at it and he went, oh, it's not the quite the same as the other one.
The worker said that he is now running a business where he repairs chainsaws, lawn mowers, whipper snippers and small engines. He said that he turns down work on big equipment because he can't physically do it.
The worker advised the panel that he would like:
another assessment both with the compensation, or a private person to -- not to have them grab onto my arm and pull it where they want it to go, but just to let me move it on my own and they can see what it doesn't do.
Employer's Position
The employer provided a written submission dated January 19, 2017. The employer advised that it agreed with the Review Office decision of June 25, 2015 and asked that the panel uphold the decision.
Analysis
The worker disagrees with the WCB's determination that he has a 7.9% permanent partial impairment. The worker’s position is that he has lost functional ability and strength as a result of this injury and suffered a significant disfigurement. He feels he has not been properly compensated for his loss. He is appealing the manner in which his impairment has been calculated.
For the worker's appeal to succeed, we must find that the worker's PPI rating was not correctly calculated. The panel was not able to make this finding.
The panel reviewed the process followed by the WCB medical advisor who examined the worker and calculated the worker's impairment. The panel finds that the WCB medical advisor correctly followed the Policy in determining the worker's permanent partial impairment.
The panel notes that the WCB medical advisor measured the Active Guided Range of Motion of the shoulders, the Active Guided Range of Motion of the elbows and the Active Guided Range of Motion of the forearm. This is the measurement technique set out in the Policy at the time of the 2015 PPI examination. The panel reviewed the calculations and concludes that the WCB medical advisor correctly calculated the percentage of impairment at 7.9 % whole person impairment.
The panel finds that the WCB medical advisor measured the worker's range of motion as required by the Policy, recorded the movements as set-out and made the correct calculations of the worker's loss of range of motion, as well as the cosmetic rating.
Given the panel's finding, the worker's appeal is dismissed.
Panel Members
A. Scramstad, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 3rd day of August, 2017