Decision #40/20 - 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 February 26, 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 employer filed an Employer's Accident Report with the WCB on August 5, 2016 indicating that the worker injured his left ring finger at work on August 3, 2016. The Report described the incident as bending his left ring finger sideways, after catching it on the edge of a barrel while stuffing cardboard into the barrel. The worker sought treatment at a local emergency room the next day. X-rays were taken and he was diagnosed with a boutonniere deformity of his left ring finger. WCB accepted the worker's claim on August 17, 2016 and payment of various benefits began.
The worker saw his treating plastic surgeon on September 19, 2016 who recommended surgery because "…his boutonniere deformity is not improved and in fact it has actually deteriorated." The WCB approved the surgery and on November 11, 2016, the worker underwent a boutonniere deformity repair procedure. Due to ongoing symptoms, the worker's treating plastic surgeon recommended a "Salve type of reconstruction and collateral ligament release" surgery. On October 30, 2017, the worker advised the WCB that he was declining the surgery as he had "…learned to live with his finger the way it was…."
On December 19, 2017, the worker attended a call-in examination to assess the degree of the permanent partial impairment (PPI). The WCB physiotherapy consultant examined the worker and recommended a PPI rating of 2.42% of total body impairment. The WCB advised the worker accordingly and on December 20, 2017 paid the worker a monetary award of $2,700, representing $1,350 for each full percentage of impairment.
On March 27, 2018, the worker contacted the WCB and advised that he did not have a workplace injury but that a pre-existing cut on his finger had become infected. The WCB requested and received a copy of the March 8, 2018 discharge report from the hospital, which indicated the worker was diagnosed with cellulitis and provided with intravenous antibiotics to treat the infection.
On April 30, 2018, the worker again contacted the WCB to advise that he had two further incidents of infection in his finger and as a result, he was advised it was too badly infected to heal and that it would need to be amputated above the knuckle. That surgery was performed on May 3, 2018.
A WCB medical advisor reviewed the worker's file on May 21, 2019 to determine an appropriate PPI rating for the amputation of the worker's left ring finger. The WCB medical advisor concluded that the PPI rating for a left ring finger amputation was 4% of whole body impairment.
The WCB advised the worker on May 21, 2019 that his PPI rating entitlement was 4%, an increase of 1.58% from the December 19, 2017 and he was provided with a monetary award of $1,350, representing $1,350 for one full percent of additional impairment.
On July 16, 2019, the worker requested reconsideration of his PPI rating and monetary award to Review Office. The worker noted in his appeal that he felt the PPI rating should be greater because it was taking him longer to recover from the amputation than the previous surgeries.
Review Office determined on September 12, 2019 that the worker's PPI rating of 4% was correctly determined by the WCB and represented the worker's true actual loss of function; however, the monetary award had not been correctly calculated. Review Office noted that when the worker's total PPI was increased to 4% on May 21, 2019, the worker's total PPI benefit was improperly calculated and the paid award was incorrect. Review Office concluded that the worker should have been paid an award based upon the amount for 4% total impairment (4 x $1,350) less the amount already paid to him by the WCB. The worker's file was returned to the WCB's Compensation Services for adjustment.
The worker filed an appeal with the Appeal Commission on November 6, 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. That compensation includes awards for permanent partial impairment, as set out in s 37 of the Act:
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.
Section 4(9) provides that the WCB may award compensation for an impairment that does not result in a loss of earning capacity, and s 38 of the Act allows the WCB to determine the permanent partial impairment rating as a percentage of total body impairment and to make an award based upon each full percentage of whole body impairment. Where a worker’s medical condition deteriorates after a PPI rating has been established, a worker is able to apply to the WCB to reconsider the degree of impairment, as set out in s 38(6):
Reconsideration of degree of impairment
38(6) A worker who is determined under this section to have an impairment and who suffers a significant deterioration of his or her medical condition, may apply to the board to reconsider the worker's degree of impairment and, where the reconsideration results in a change in the percentage of the impairment, the board shall treat the reconsideration as though it were an initial determination under this section.
The WCB’s Policy 44.90.10, Permanent Impairment Rating (the "Policy") sets out that 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 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
The worker’s position is set out in the Appeal of Claims Decision form and his attached letter, submitted November 6, 2019.
The worker’s position is that the award of $2,700 received after the amputation of his left ring finger is not sufficient for an amputation, given that he also received an award of $2,700 for the initial assessment of the PPI when he had the boutonniere deformity. In other words, the worker is of the view that the PPI award for the amputation should be greater than the initial PPI award amount.
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 set out in the Policy. The panel reviewed the operative report from May 3, 2018 as well as the report from the WCB medical advisor who assessed the degree of the worker’s permanent partial impairment.
The WCB medical advisor reviewed the previous PPI assessment report and examination notes, as well as photographs from December 19, 2017 for the file history, as well as the more recent medical report. No pre-existing condition was noted and the WCB medical advisor determined that the worker was at the stage of maximum medical improvement. The WCB medical advisor concluded:
[The worker] has an amputation through the level of the MP joint of the left ring finger… [T]he cosmetic rating would be included in the amputation rating.
The amputation rating at the left ring finger, as per the thumb and single finger chart, is 4% whole person impairment which is an increase of 1.58% whole person impairment from the previous calculated PPI.
The Policy requires use of the Schedule A rating charts in assessment of PPI ratings where possible. For amputations of fingers, paragraph 3.7 of Schedule A sets out the process in four stages:
1. Determine which hand chart to use. If a single finger is involved, the single finger chart is used.
2. Assign the appropriate percentage to each impaired joint;
3. Add the percentages together from proximal to distal; and
4. Combine the values for each impaired digit.
Further, the Schedule explicitly states that an impairment rating for amputation includes any disfigurement and loss of symmetry associated with the injury.
Here, the report on file confirms that the single finger chart was used. The Schedule sets out that for a total finger amputation of the ring finger, the following percentages apply:
Up to the Metacarpal phalange (MCP) joint 1%
Up to the Proximal interphalangeal (PIP) joint 0.6%
Up to the Distal interphalangeal (DIP) 1.2%
Above the DIP joint 1.2%
The total of these percentages is 4.0%, consistent with the determination of the WCB medical advisor on May 21, 2019.
The panel is satisfied, based on our review of the file, that the worker's 2019 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.
The panel notes the worker’s position that an amputation of a whole finger should result in a greater PPI rating and award than for the loss of range of motion resulting from the boutonniere deformity in the same finger. This is correct and consistent with the provisions of the Policy and consistent with the determinations of the WCB in this case. The worker’s PPI rating for the boutonniere deformity of his left ring finger was found to be 2.42% and the PPI rating for amputation of the whole left ring finger was found to be 4.0%.
This does not mean, however, that the worker can be compensated twice for permanent partial impairment of the same finger. The worker’s PPI award is based upon the total body impairment of 4%, which includes the 2.42% PPI already determined as it relates to the same body part.
Applying the Act and Regulation 1/2019, for accidents occurring in 2016, where the rating is 1% or greater but less than 30%, $1,350.00 is payable for each full % of impairment. The panel is satisfied that the total monetary award of $5,400 was calculated correctly. The panel notes that the WCB paid the award to the worker in three payments, initially paying $2,700 at the time of the original assessment in 2017, a further $1,350 at the time of the decision by Compensation Services after the 2019 assessment and the remainder of $1,350 after the decision of the Review Office. The panel therefore finds that the worker has been paid the correct award by the WCB.
The worker's appeal is therefore dismissed.
K. Dyck, Presiding Officer
P. Challoner, Commissioner
S. Briscoe, Commissioner
Recording Secretary, J. Lee
K. Dyck - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 2nd day of April, 2020