Decision #61/18 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his permanent partial impairment rating for cosmetic disfigurement has been correctly determined. A file review was held on March 14, 2018 to consider the worker's appeal.
Whether or not the worker's permanent partial impairment rating for cosmetic disfigurement has been correctly determined.
The worker's permanent partial impairment rating for cosmetic disfigurement has been correctly determined.
The Worker Incident Report, dated September 7, 2016, describes the worker's accident that occurred on September 6, 2016 as:
During taking out of aeration tube from bin (it fell down on cement floor) end of the tube bounced back and hit employee into his neck
The worker saw a doctor on September 6, 2016 who noted "a 1.5 cm laceration" and was treated with stitches to repair the wound. At a follow-up appointment on September 12, 2016, the doctor noted that the worker had "complete healing, no signs of infection."
On September 8, 2017, a WCB physiotherapy consultant reviewed the worker's claim file for the purpose of establishing a permanent partial impairment ("PPI") rating, and provided the following medical opinion in support of a PPI rating of 1% whole person impairment:
Likely At MMI. [Maximum medical improvement]
No major pre-existing condition related to the PPI.
The photos on file were reviewed and compared to the folio images at the WCB. A 1% cosmetic impairment rating of 1% is recommended.
Therefore the total recommended PPI is 1%.
The WCB advised the worker on September 8, 2017 that he was entitled to a 1% permanent partial impairment award, based on the WCB physiotherapy consultant's opinion.
On September 14, 2017, the worker requested reconsideration of the WCB's September 8, 2017 decision to the Review Office. The worker felt that as the scar from his workplace accident was located on his neck/cheek/face and is always visible, he should be awarded a higher permanent partial impairment award.
Review Office upheld the WCB's decision on November 3, 2017, determining that the worker's permanent partial impairment rating for cosmetic disfigurement was correct at 1%. Review Office found that the WCB physiotherapy consultant's review of the claim, including digital photographs provided by the worker, was conducted in accordance with the process set out in the WCB's Policy 44.90.10.01, Permanent Impairment Rating Schedule.
The worker filed an application with the Appeal Commission on November 26, 2017. A file review was held on March 14, 2018.
Applicable Legislation and Policy
The Appeal Commission and its panels are bound by I (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. Further, under section 38 of the Act, the payment of compensation for impairment is set out.
In accordance with the Act, the Board of Directors enacted WCB Policy 44.90.10.01 Permanent Impairment Rating Schedule (the “Policy”) which provides guidelines on how impairment awards are to be calculated.
The Policy provides that the degree of impairment will be established by the WCB's Healthcare Services Department in accordance with the Policy, and that whenever possible and reasonable, impairment ratings will be established strictly in accordance with the Permanent Impairment Rating Schedule which is attached as Appendix "A" to the Policy.
Appendix "A" to the Policy allows for a cosmetic rating for disfigurement and states as follows:
Disfigurement is an altered or abnormal appearance. This may be an alteration of color, shape, or structure, or a combination of these and can also include loss of function due to contractures as a result of scarring.
The rating for disfigurement is done by the Board's Medical Department and the degree of disfigurement is determined on a judgemental 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 and maintained by the Director of the Benefits Division as prescribed in Board Order 67/89.
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.
Once an impairment rating is established, the value of the PPI award is calculated under the terms of section 38(2) of the Act, as adjusted by the Adjustment in Compensation Regulation.
In the worker's Notice of Appeal form dated November 26, 2017, he stated that “The permanent partial impairment award for cosmetic disfigurement was determined at 1.00% which for me is incorrect and should be increased.”
The worker's position was that the Review Office decision should be overturned because the scar is permanent and remained visible on his cheek/face to everyone, even at a long distance. It could not be covered like if it had been on his hand, shoulder or leg. The worker was a certified teacher and he would receive questions and comments from his students about his scar. As well, the scar was very deep and very close to his carotid artery.
The employer did not participate in this appeal.
The worker disagrees with the WCB’s determination that he has a 1% permanent impairment and that his award is valued at $1,350. For the worker’s appeal to succeed, we must find that the permanent impairment rating was not correctly calculated and that the basis for the award was not made in a consistent and fair manner as outlined in the Policy. The panel finds that the worker's 1% impairment rating and $1,350 award were correctly calculated, for the following reasons.
The panel has reviewed the WCB physiotherapy consultant's September 7, 2017 report which includes his notes and opinion regarding a PPI award for the worker's cosmetic impairment. The panel notes that the WCB physiotherapy consultant compared digital photos of the worker's scar to the folio of images at the WCB, which are established for different impairment levels, and then determined that the cosmetic impairment related to the compensable injury was 1% whole person impairment. The panel finds that the consultant followed the process that is set out in the Policy and Appendix "A" and therefore accepts the determination of a 1% whole person impairment.
Regarding the specific payment associated with a 1% whole person impairment, the panel has also reviewed the calculation of the amount of the PPI award and finds that it has been correctly calculated at $1,350.00 in accordance with the Act and Regulations.
The panel acknowledges that the worker has provided additional factors for the panel to consider, in support of his position that the 1% impairment was inadequate. These factors include the location and visibility of the scar, the potential seriousness of the injury and quality of life issues. However, the panel is required to follow the specific measurement criteria for cosmetic impairments that are set out in the Policy, and cannot introduce or establish other impairment categories or criteria beyond those in the Policy, including those suggested by the worker.
The panel finds that the PPI calculations are all correct and in accordance with the Act and applicable Policy.
The worker’s appeal is declined.
B. Hartley, Presiding Officer
M. Kernaghan, Commissioner
A. Finkel, Commissioner
Recording Secretary, J. Lee
B. Hartley - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 11th day of May, 2018