Decision #120/19 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his permanent partial impairment rating of 2% has been correctly determined. A file review was held on July 4, 2019 to consider the worker's appeal.
Whether or not the worker's permanent partial impairment rating of 2% has been correctly determined.
The worker's permanent partial impairment rating of 2% has been correctly determined.
The employer reported to the WCB on September 19, 2017, the worker was injured on his forehead about his right eye in an incident described as:
The worker was cutting steel pipe when the quickie saw jammed and kicked back hitting the worker in the face.
The worker was taken to a local emergency room where a "V shaped laceration 3x3cm to forehead between eyebrows" and a "V shaped laceration at base of right nare into nasal mucosa" were noted and stitches were applied. The worker's stitches were removed on September 25, 2017.
The worker's claim was accepted by the WCB on September 22, 2017.
On September 19, 2018, the worker contacted the WCB regarding his eligibility for a permanent partial impairment (PPI) assessment. A WCB medical advisor reviewed the worker's file on October 10, 2018 and requested that the WCB case manager ask the worker for photographs of the scarring on his face and nose for assessment of a cosmetic PPI. On October 12, 2018, the WCB received the photographs from the worker.
The WCB medical advisor reviewed and compared the photographs submitted by the worker with the folio images at the WCB and on November 6, 2018, determined that the recommended cosmetic PPI for the worker was "…2% whole person impairment." On November 7, 2018, the worker was advised that his PPI rating was 2% and he was provided with the applicable PPI award based upon that rating.
The worker requested reconsideration of the PPI rating to Review Office on November 21, 2018. In his request, the worker noted that he believed he should be entitled to a higher PPI rating as the scars from the workplace injury are in a visible location as they are on his face. He further stated that it was difficult for him to find employment due to the scars as he felt people assumed he looked "mad" or "mean".
On January 3, 2019, Review Office determined that the worker's permanent partial impairment rating of 2% was correct. Review Office accepted the WCB medical advisor's opinion and the folio of previous disfigurement ratings and found that the worker's PPI rating of 2% with respect to his facial scarring was correct. Review Office noted that there was no provision in either the Act or WCB's policies to allow for cosmetic ratings to be reviewed or increased based on the area on the body they occur.
The worker filed an appeal with the Appeal Commission on January 29, 2019. A file review was arranged.
Following the review, the appeal panel requested additional medical information prior to discussing the case further. The requested information was later received and was forwarded to the interested parties for comment. On September 23, 2019, the appeal panel met further to discuss the case and render its final decision on the issues under appeal.
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 s 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. Section 4(9) provides that the WCB may award compensation for an impairment that does not result in a loss of earning capacity.
Section 38(1) of the Act provides that the WCB "shall determine the degree of a worker's impairment expressed as a percentage of total impairment."
The WCB Board of Directors has established Policy 44.90.10, Permanent Impairment Rating Schedule (the "Policy"). Pursuant to the Policy, impairment benefits are calculated by determining a rating which represents the percentage of impairment as it relates to the whole body.
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. The Policy provides, in respect of disfigurement ratings, that:
In order to maintain consistency in ratings for disfigurement, and to make the ratings as objective as possible, medical staff will make reference to the folio of previous disfigurement ratings established as policy by WCB Order No. 67/89 and maintained by the WCB's Healthcare Services Department as prescribed in WCB Order No. 67/89.
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%.
The worker's position is set out in a letter submitted with his appeal of the Review Office decision, received on January 29, 2019. The worker indicates that he believes the Permanent Partial Impairment rating is not sufficient given the visibility of the scar on his forehead, located as it is between his eyebrows. He notes that the scar gives him an angry appearance and feels that this impacts his ability to obtain employment. The worker also states that the area of scarring hurts when it is cold outside. He states that the rating should be higher because it is for disfigurement on his face, clearly visible to all and notes that he almost died because of the accident.
The employer did not participate in the appeal.
The issue before the panel is whether the worker's permanent partial impairment rating of 2% is correctly determined. For the worker's appeal to succeed on this question, the panel must find that the Act or the Policy was not correctly applied. The panel is not able to make that finding.
The panel considered whether the WCB medical advisor's assessment was conducted in accordance with the process which is set out in the Policy.
The WCB medical advisor in his report dated July 31, 2019 confirmed that he initially arrived at the recommended PPI rating based upon viewing the digital photographs submitted by the worker in October 2018. The medical advisor's report indicates that he compared the digital pictures of the scarring of the worker's forehead and base of his right nostril with the WCB's folio of disfigurement ratings. Based on his assessment, and exercise of his judgment, the WCB medical advisor determined that the worker's facial scarring is most consistent with a 2% impairment rating. A PPI rating of 2% was therefore recommended.
The panel noted the medical advisor's comments that the WCB folio of disfigurement ratings specifically involving the face includes examples of scarring ratable at 1% through 6%. The panel noted as well that the digital pictures the worker provided which are on the medical file are clear images and in colour. The scarring on the worker's forehead, between his eyebrows and below his nostril is clearly visible in the digital pictures. The panel accepts the medical advisor's advice that the recommended cosmetic rating of 2% took into account the location of the scarring on the worker's face.
The panel noted as well that the worker expressed concern about the impact of cold on the areas of scarring. The PPI rating for disfigurement, however, is based only altered or abnormal appearance, whether in terms of colour, shape or structure, and no other criteria can be considered under the provisions of the Policy.
The panel is satisfied, based on our review of the file, that the worker's PPI rating of 2% was established in accordance with the provisions of the Policy. The panel therefore finds, on a balance of probabilities, that the PPI rating of 2% was correctly established.
The worker's appeal is therefore dismissed.
K. Dyck, Presiding Officer
P. Challoner, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
K. Dyck - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 25th day of September, 2019