Decision #37/20 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his permanent partial impairment rating and monetary award have been correctly calculated. A file review was held on January 30, 2020 to consider the worker's appeal.
Whether or not the worker's permanent partial impairment rating and monetary award have been correctly calculated.
The worker's permanent partial impairment rating and monetary award have been correctly calculated.
The worker filed a Worker Incident Report with the WCB on June 9, 2014 that indicated he injured his right wrist, elbow and shoulder in an incident at work on June 3, 2014. He described the incident as follows:
"I was filling the water tank up. I climbed up into the back of the truck, I was standing on the back of the deck, I lost my balance, I fell off the truck. I put my right hand out. I must have landed on my right wrist. I fell about 4-5 feet…."
The worker was taken to a local hospital and diagnosed with a severe "comminuted intraarticular fracture dislocation right distal radius with median nerve compression." Fixation surgery was performed on the worker's distal radius fracture with pinning. A fasciotomy and carpal tunnel release of the volar aspect of the worker's right forearm was also performed.
The WCB accepted the claim on June 13, 2014 and commenced payment of various benefits. Due to ongoing symptoms, the worker underwent two further surgeries on September 4, 2015 and July 22, 2016.
On August 8, 2017, a WCB medical advisor reviewed the worker's file and opined that the worker was at maximum medical improvement. A Permanent Partial Impairment (PPI) examination of the worker took place at the WCB on August 29, 2017. After the examination, the WCB medical advisor recommended a PPI rating of 15% whole person impairment, with 2.00% of the rating attributed to a cosmetic rating. The WCB advised the worker of the PPI rating and monetary award on September 1, 2017.
The worker contacted the WCB on February 27, 2018 and advised that his scar was "…red and increasing in size." The WCB recommended the worker seek treatment from his doctor and advised that his PPI could be re-evaluated two years after his prior PPI examination, which took place in August 2017.
On February 19, 2019, the worker provided his WCB case manager with a photograph of the scarring on his wrist and asked that it be reviewed as he felt it was getting worse. A WCB medical advisor reviewed the photograph and concluded that the scarring was consistent with the 2% cosmetic rating established in 2017 and that the scarring did not meet the criteria for a 3% cosmetic impairment rating. The WCB advised the worker on February 22, 2019 that there would be no increase to his PPI rating or monetary award.
The worker requested reconsideration of the WCB's decision to Review Office on March 5, 2019. On his Request for Review, the worker noted that a larger area of scarring had appeared on his wrist within the last six months to a year and continued to increase in size. He further noted that the scarring where the surgery was performed on his wrist "…has become more visible" and he reported decreased movement and increased pain.
On April 2, 2019, Review Office determined that the worker's permanent partial impairment rating and monetary award had been correctly calculated. Review Office accepted the PPI rating as calculated at the August 29, 2017 PPI examination and reviewed by the WCB medical advisor on February 19, 2019. Review Office noted that the worker reported an increase in size of his scarring since the PPI examination in 2017 and a decrease in the range of motion for his wrist since the last evaluation. Review Office further noted that the worker could request a re-evaluation of the 2017 examination two years after the last evaluation, being August 29, 2019. Review Office also accepted the monetary value was correctly calculated based on the PPI rating determined at the 2017 examination.
The worker filed an appeal with the Appeal Commission on November 8, 2019. A file review was arranged.
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.
Sections 37 and 38 of the Act govern the determination of the permanent partial impairment rating:
37 Where, as a result of an accident, a worker sustains a loss of earning capacity or an impairment, or requires medical aid, the following compensation is payable:
(a) medical aid, as provided in section 27;
(b) an impairment award, as provided in section 38; and
(c) wage loss benefits for any loss of earning capacity, calculated in accordance with section 39.
Determination of impairment
38(1) The board shall determine the degree of a worker's impairment expressed as a percentage of total impairment.
Calculation of impairment award
38(2) Where the board determines that a worker has suffered an impairment, the board shall pay to the worker as a lump sum an impairment award in the following amount, for an impairment that is determined by the board to be
(a) 1% or greater but less than 30%: $1,030. for each full 1% of impairment;
(b) 30% or greater: $30,900 plus $1,240 for each full 1% of impairment in excess of 30%.
The WCB has established Policy 44.90.10, Permanent Impairment Rating (the "Policy"). Impairment benefits are calculated under the Policy 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 (with the exception of impairment of hearing ratings) will be established strictly in accordance with the PPI Schedule which is attached as Schedule A to the Policy.
Schedule A to the Policy provides that permanent impairment from a workplace injury is 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.
To establish disfigurement ratings, the Policy provides 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 his application to appeal:
"WCB is saying that the permanent partial impairment rating is correct. And I don't feel that it is. From [where scarring] is I have gotten a big red ring on my wrist which is just increasing in size.
I believe what they [paid] me at that time was alright. But over time it has got significantly worse. I have a big red ring around my wrist caused from surgery and the scar. For this reason I feel that [their] decision should be overturned. And I should be compensated."
The worker's primary concern on appeal as outlined is with respect to the PPI rating for scarring on his right wrist.
The employer did not participate in the appeal.
The issue before the panel is whether the worker's permanent partial impairment rating and monetary award have been 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 first considered whether the WCB medical advisor's assessment was conducted in accordance with the process which is set out in the Policy.
In respect of the PPI rating for disfigurement, the WCB medical advisor, in a claim note dated February 19, 2019 confirmed that the photograph recently submitted by the worker was "…reviewed and compared to the folio of images at the WCB for cosmetic impairment ratings. The current photos are consistent with the 2% cosmetic impairment rating provided on this claim. The criteria for a 3% cosmetic impairment rating has not been met." This process reflects the requirements of the policy in determining a permanent impairment rating for disfigurement.
The panel noted that in the initial PPI examination on August 29, 2017, the WCB medical consultant both examined the worker and took digital photos of the scarring on the worker's right wrist and forearm. As outlined in the report, "Well-healed scars are noted over the volar and dorsal surfaces of the right wrist as well as over the radial aspect of the right wrist." Based upon those photos and the examination of the scarring, the WCB medical consultant determined that the worker's scarring was most consistent with a 2% impairment rating.
Although the worker did not specifically appeal the findings with respect to the loss of range of motion in his right wrist/forearm, right shoulder and right elbow, the finding of 15% of whole body impairment includes the rating of the loss of range of motion at these joints. In this regard, the panel noted that the WCB medical consultant gathered those measurements as required by the Policy. The August 29, 2017 report confirms that for each affected joint, the loss of the active guided range of motion was measured and "all active guided range of motion was accompanied by a hard end feel."
The panel also noted that the worker's last PPI examination took place on August 29, 2017. The worker is entitled to a further PPI examination and review each two years and he may wish to consider pursuing that option if he believes that there have been changes in his rateable impairment since the initial assessment.
The panel is satisfied, based on our review of the file, that the worker's 2017 PPI rating was determined in accordance with the provisions of the Policy. The panel therefore finds, on a balance of probabilities, that the worker's permanent partial impairment rating is correct.
Applying the Act and Regulation 1/2019, for accidents occurring in 2014, where the rating is 1% or greater but less than 30%, $1,280.00 is payable for each full % of impairment. The panel is satisfied that the monetary award of $19,200 (15 x $1,280) was calculated correctly.
The worker's appeal is therefore dismissed.
K. Dyck, Presiding Officer
P. Challoner, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
P. Challoner - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 19th day of March, 2020