The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his permanent partial impairment rating of 1% has been correctly calculated. A file review was held on July 21, 2020 to consider the worker's appeal.

Issue

Whether or not the worker's permanent partial impairment rating of 1% has been correctly calculated.

Decision

That the worker's permanent partial impairment rating of 1% has been correctly determined.

Background

The worker filed a Worker Incident Report on October 26, 2018 reporting an injury to his left hand that happened at work on October 25, 2018 when his hand was crushed between two pieces of machinery. The Employer's Accident Report, received by the WCB on October 25, 2018, described "They were putting an attachment on a tandem truck and his left hand was jammed. He was rushed to the hospital."

The report from the local emergency department dated October 25, 2018 indicated no fractures, but a large laceration on the palm and fifth finger of the worker's left hand which required sutures to close. The attending physician recommended limited use of the worker's left hand as a restriction, and that the worker remain off work until November 5, 2018. The worker confirmed the mechanism of injury in a discussion with the WCB on October 30, 2018. He advised that an x-ray indicated nothing was broken and he had 27 stitches to the palm of his hand. The worker's claim was accepted and benefits were approved.

On January 14, 2019, the worker had an initial assessment with a physiotherapist, who noted "Excessive scarring throughout palm of hand and in to (sic) digits." The physiotherapist diagnosed the worker with a crush injury with hypertrophic scarring and recommended restrictions of no repetitive gripping, no prolonged positioning, no use of vibratory tools or machinery and no typing or mouse use or writing.

In a discharge assessment on July 5, 2019, the treating physiotherapist noted that the worker continued to have pain in his hand at times, decreased strength and range of motion, and increased scar tissue at the injury site. The physiotherapist outlined restrictions of limited gripping activities and decreased use of vibratory tools, and that the worker modify his activities as needed, with multiple breaks possibly being required.

On September 23, 2019, the worker attended a call-in examination with a WCB plastic surgery consultant and a functional capacity evaluation ("FCE"). In her notes of the examination, the consultant reported that the worker "…demonstrated good range of motion at the left hand/fingers, grade 5/5 (i.e. normal) strength, and intact light touch/protective sensation." The consultant noted that the worker reported sensitivity to cold in his middle, ring and small fingers, and intermittent pain and sensitivity at the location of his palmar scar associated with heavy vibration. The consultant also noted that an August 13, 2019 report from the treating plastic surgeon indicated the worker's symptoms should improve over time. The consultant stated that restrictions as outlined at the FCE could be considered long-term/permanent, and recommended the use of anti-vibration gloves, as needed. On November 20, 2019, the WCB's Compensation Services advised the worker of the applicable restrictions, and that those restrictions were considered to be permanent.

On January 20, 2020, the worker's file was reviewed by a WCB physiotherapy consultant for the purpose of determining a permanent partial impairment ("PPI") rating and award. The physiotherapy consultant noted the worker had "Near full extension…" of his fingers and compared digital photographs provided by the worker to folio images on file at the WCB. The consultant recommended a 1% impairment rating in relation to the scarring that was visible on the photographs, and opined that the medical information did not support any other potential ratable impairments. On January 23, 2020, the WCB's Compensation Services advised the worker that he was entitled to a PPI rating of 1%, resulting in an award of $1,390.00.

On February 7, 2020, the worker requested that Review Office reconsider Compensation Services' determination of his PPI rating and award. The worker submitted that he was limited in what he could do with his left hand because of his workplace injury, continued to experience pain and swelling at the injury site, and had restrictions which were considered permanent.

On March 10, 2020, Review Office determined that the PPI rating of 1% was correct. Review Office agreed with the opinion of the WCB physiotherapy consultant in relation to the cosmetic rating for the worker's left hand scar. Review Office noted the worker requested that the PPI rating take into consideration his difficulties with pain in his hand after work, sensitivity to cold, and employment limitations. Review Office found, however, that there was no provision in the WCB's legislation or policy to provide an impairment rating for those difficulties.

On April 7, 2020, the worker appealed the Review Office decision to the Appeal Commission and a file review was arranged.

Reasons

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.

Subsection 4(1) of the Act provides that where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid. Subsection 4(9) provides that the WCB may award compensation in respect of an impairment that does not result in a loss of earning capacity.

Subsection 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." Subsection 38(2) provides a formula to determine the monetary value of an impairment award. The dollar amount in that formula is adjusted on an annual basis pursuant to the Adjustment in Compensation Regulation (the "Regulation").

The WCB Board of Directors 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.

For injuries to upper extremities, Schedule A provides as follows:

The impairment rating for loss of range of motion resulting from direct injury or related surgical procedures will be determined by a WCB Healthcare Advisor, through clinical examination or assessment of the medical information on file, based on the loss of active guided movement of the affected joint(s).

The methodology for determining the impairment rating for loss of range of motion is set out at pages 5 to 19 of Schedule A.

Schedule A also allows for a cosmetic rating for disfigurement. Disfigurement is described as an altered or abnormal appearance. The rating for disfigurement is done by a WCB Healthcare Advisor and the degree of disfigurement is determined on a judgmental basis. To maintain consistency in ratings for disfigurement, and to make the ratings as objective as possible, the Healthcare Services Department makes reference to a folio of disfigurement ratings established in previous cases.

Worker's Position

The worker was self-represented. The worker's position was that he disagreed with the permanent partial impairment rating of 1%.

In his Appeal of Claims Decision form dated April 7, 2020, the worker noted that his hand was crushed by a piece of heavy machinery on October 25, 2018, not "stuck" as was stated in the Review Office decision. The worker referred to the photographs of his hand which he had provided to the WCB and noted that there was a big difference between how his hand looked when he first injured it and how it looked in those photographs. The worker submitted that "although my hand looks ok…it is by no means even close to what it was bfore (sic) the accident."

The worker stated that he is very limited in what he can lift with his left hand, and can no longer do the jobs at work which he used to find easy. He said he has a very hard time grasping anything. He finds it very difficult to turn the doorknob in his own house when he leaves home in the morning. He cannot operate vibrating tools as he no longer has the strength in his hand to hold the tools.

Employer's Position

The employer was represented by its WCB Coordinator, who provided a written submission in response to the worker's appeal.

The employer's position was that while the worker may disagree with his PPI rating, that rating was determined in accordance with the Act, the regulations and WCB policies, and the worker's appeal should be dismissed.

Analysis

The issue before the panel is whether or not the worker's permanent partial impairment rating of 1% has been correctly calculated. For the worker's appeal to be successful, the panel must find that the Act and/or WCB policy were not properly applied in establishing the worker's PPI rating. The panel is not able to make that finding.

The worker suffered a compensable crush and laceration injury to his left hand. With respect to an injury to an upper extremity, including the hand and fingers, impairment is evaluated for the loss of mobility of a joint or joints. The Policy provides that the impairment rating for loss of mobility or range of motion is to be determined through clinical examination or the medical information on file.

The WCB physiotherapy consultant indicated in his January 20, 2020 report that he reviewed the worker's file. With reference to the notes of the September 23, 2019 call-in examination with the WCB plastic surgery consultant in particular, the physiotherapy consultant determined that the mobility deficits of the left middle, ring and small fingers were insufficient to equate to a ratable impairment reaching 1%. The physiotherapy consultant indicated that he also reviewed photographs which were obtained from the worker, and observed near full extension of the fingers in those photographs.

The panel accepts the physiotherapy consultant's assessment and opinion regarding the range of motion deficits in the worker's left hand. The panel notes that the physiotherapy consultant's assessment is consistent with our review and understanding of the medical and other information on file, and is satisfied that the Policy was properly applied in arriving at that opinion.

The worker referred in his appeal to a number of other ongoing concerns or issues resulting from his left hand injury, including limitations with respect to lifting, difficulty grasping things with his left hand, and loss of strength. The panel notes that the worker also indicated in his submission to the Review Office that his hand would swell up and get very sore and was affected by the weather. The panel acknowledges the above concerns or complaints, but notes that such difficulties or limitations are not related to the loss of range of motion and scarring which are identified in the Policy as the elements that are to be used in assessing a permanent partial impairment rating and award. The panel is not able to expand the PPI assessment for these other concerns or limitations that have been raised by the worker.

In his January 20, 2020 report, the WCB physiotherapy consultant also considered a cosmetic impairment rating, based on his review of photographs of the worker's left hand which were provided by the worker in response to the medical advisor's specific request and placed on file. The physiotherapy consultant's notes indicate that he reviewed and compared those photographs to the folio of images at the WCB. Based on his review, and in the exercise of his judgment, the physiotherapy consultant determined that the cosmetic impairment rating related to the visible scarring on the photographs and the compensable injury was 1%. The panel accepts the physiotherapy consultant's opinion in this regard, and notes that it was not disputed by the worker.

Finally, the panel has reviewed the calculation of the monetary amount of the PPI award and finds that it has been correctly calculated at $1,390.00 in accordance with the formula in subsection 38(2) of the Act, as adjusted by the Regulation.

Based on the foregoing, the panel finds that the Act and WCB policy were properly applied in establishing the worker's PPI rating. The panel therefore finds that the worker's permanent partial impairment rating of 1% has been correctly calculated.

The worker's appeal is dismissed.

Panel Members

M. L. Harrison, Presiding Officer
P. Challoner, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

M. L. Harrison - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 18th day of September, 2020