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 and monetary award have been correctly calculated. A file review was held on June 11, 2020 to consider the worker's appeal.

Issue

Whether or not the worker's permanent partial impairment rating and monetary award have been correctly calculated.

Decision

That the worker's permanent partial impairment rating and monetary award have been correctly calculated.

Background

On February 2, 2017, the employer filed an Employer's Accident Report with the WCB, indicating the worker suffered an injury to his right foot on February 1, 2017 when he was changing the angle of the blade on a piece of heavy machinery and the arm of the machine fell and landed on his foot. The worker was taken to a local hospital emergency department, then transferred to another hospital, where he underwent revision amputation of the first and second toes of his right foot.

On February 8, 2017, a WCB medical advisor reviewed the worker's file and noted that the surgery report indicated the worker sustained open fractures to the distal phalanges of the first and second toes of his right foot and underwent revision amputations. The medical advisor opined that the diagnosis fit with the mechanism of injury and the surgery was appropriate and acceptable. The medical advisor further opined that "The revision amputations will heal over the next two to three months. He will always have the cosmetic deformity but the foot should regain full function…"

The worker's claim was accepted by the WCB and benefits were approved. The worker continued to attend for medical treatment and care, including provision of orthotics and toenail removal procedures. The worker returned to work on October 20, 2017.

On August 28, 2018, a WCB medical advisor determined the worker was at maximum medical improvement and would be assessed for a possible permanent partial impairment ("PPI") with respect to mobility deficits of the right large toe, an amputation rating for the right first and second toes, and a possible cosmetic rating.

The worker was seen by the WCB medical advisor for a PPI assessment on November 22, 2018. The medical advisor reported that "Obvious amputations were noted through the distal right first and second toes with discoloration and flattening of the amputation site particularly on the large toe." Based on his measurement of the active guided left and right large and second toe mobility, the medical advisor determined that the worker had a 0.14% impairment for the right large toe mobility compared to the left and no impairment rating for the second toe mobility. The medical advisor further determined that the cosmetic impairment rating related to the worker's compensable injury was 1%, and recommended a total PPI rating of 1.14%. On November 23, 2018, the WCB's Compensation Services advised the worker that he was entitled to a PPI rating of 1.14%, which resulted in an award in the amount of $1,370.00.

At the request of the worker's case manager, the PPI assessment was reviewed by the WCB's Chief Medical Officer on February 14, 2019. Following his review, the Chief Medical Officer recommended that the worker's PPI rating be elevated to 2% whole body impairment, based on a 1% rating for amputation of the distal half of the right distal phalanx of the worker's big toe, no ratable amputation of the second toe, and a 1% cosmetic rating in relation to the change in appearance/form and symmetry of the distal aspect of the second toe. On February 15, 2019, Compensation Services advised the worker that his PPI rating had been increased to 2%, which resulted in a further monetary award of $1,370.00.

On January 7, 2020, the worker requested that Review Office reconsider Compensation Services' decision. The worker submitted that he had suffered a lot and continued to experience pain, and that he should be entitled to a higher PPI rating and monetary award.

On January 27, 2020, Review Office determined that the worker's permanent partial impairment rating of 2% and total award of $2,740.00 were correct. Review Office accepted and agreed with the WCB's Chief Medical Officer's opinion and found no error in the impairment rating or the calculation of the monetary award. Review Office acknowledged the worker's report of continuing pain, but stated that no impairment rating could be provided for complaints of pain or loss of wages.

On March 9, 2020, the worker appealed the Review Office decision to the Appeal Commission and a file review was arranged for June 11, 2020.

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 worker for comment. On October 21, 2020, the appeal panel met further to discuss the case and render its final decision on the issue under appeal.

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 states 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's 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.

Sections 1 and 2 of the Policy provide 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 (other than impairment of hearing ratings) will be established strictly in accordance with the PPI Schedule attached as Schedule A to the Policy.

Section 6 of the Policy provides, in part, that:

In the event that the WCB Healthcare Services Department determines that:

a. strict adherence would create an injustice, or

b. an impairment exists that is not covered by the PPI Schedules…

then the WCB Healthcare Advisor may deem it just and fair to establish an impairment rating that is not specifically covered by the PPI Schedules.

Section 1 of 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.

Section 4 of Schedule A deals with "Lower Extremity: Range of Movement Impairment." Section 4.1 states, in part, that:

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 loss of range of motion is set out at pages 20 to 24 of Schedule A.

Section 9 of Schedule A also allows for a cosmetic rating for disfigurement, which is described as "an altered or abnormal appearance." Section 9 provides that the rating for disfigurement is done by a WCB Healthcare Advisor and the degree of disfigurement is determined on a judgmental basis. Section 9 further states that to maintain consistency in ratings for disfigurement and make the ratings as objective as possible, the WCB's Healthcare Services Department will make reference to a folio of disfigurement ratings established in previous cases.

Worker's Position

The worker was self-represented. The worker disagrees with the WCB's decision and feels that his permanent partial impairment rating and award should be higher.

In his Appeal of Claims Decision form dated March 9, 2020, the worker wrote that he was seeking "reconsideration of the amount of compensation (PPI) award." The worker indicated that he could have earned "more than the settlement I received" if he had not been injured and that "I was not at fault for my injury"; that his injury was the result of a "work safety hazard."

In his earlier submission to Review Office dated January 7, 2020, the worker further stated that:

I've suffered a lot these past years. I had a lot of pain when the [machine] arm fell on my foot, that day. I still have constantly throbbing pain while operating or in the cold weather.

Employer's Position

The employer did not participate in the appeal.

Analysis

The issue before the panel is whether or not the worker's permanent partial impairment rating and monetary award have 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 and/or monetary award in this case. The panel is unable to make that finding, for the reasons that follow.

The worker has a compensable injury to his right foot. The worker was assessed by a WCB medical advisor on November 22, 2018, at which time it was determined that he had an impairment rating of 0.14% for his right large toe mobility and no rating for his second toe mobility. The panel has reviewed the WCB medical advisor's notes of that examination and is satisfied that in arriving at that decision, the medical advisor took the appropriate measurements for a lower extremity injury in accordance with the specific methodology and criteria set out in Schedule A to the Policy.

The WCB medical advisor also considered a cosmetic impairment rating, based on his visual examination of the worker's right foot and his review of digital pictures of that foot which were placed on file, and recommended a cosmetic rating of 1%. The medical advisor therefore recommended a total PPI rating of 1.14%.

In response to a request from the worker's case manager, the WCB's Chief Medical Officer reviewed the worker's file on February 14, 2019 and recommended an alternative assessment approach based on a rating of the percentage of the right big toe distal phalanx that was amputated. The Chief Medical Officer stated that:

By this approach, the degree of amputation of the right big toe distal phalanx is up to 50% of the length of the distal phalanx, which equates to 50% of a 1% rating for amputation of a great toe phalanx or 0.5%.

In light of the contribution of the distal aspect of the big toe to foot function, it is recommended that amputation of approximately 50% of the distal phalanx of [the worker's] right big toe be elevated from a 0.5% rating to a 1% rating. This rating includes any disfigurement/cosmetic change at the great toe associated with the amputation.

Following our file review on June 11, 2020, the panel requested clarification of the policy or procedure which the WCB's Chief Medical Officer relied on in applying the alternative approach to determining the worker's PPI. In an August 26, 2020 memorandum written in response to that request, the Chief Medical Officer pointed to Section 6 of the Policy (as previously quoted), as well as page 2 of Schedule A to the Policy, which similarly states, in part, that "Unscheduled ratings" may be used by a WCB Healthcare Advisor when "strict adherence to the Schedule rating would create an injustice" or "it is determined that an impairment exists that is not covered by the Schedule."

In his August 26, 2020 memorandum, the Chief Medical Officer further explained that it was his opinion that the impairment rating of 1.14% determined from the deficit of the big toe joint mobility was not representative of the actual degree of functional impairment stemming from the amputation of half of the distal phalanx. He therefore relied on an alternative or unscheduled rating in assessing the big toe impairment. The panel accepts the Chief Medical Officer's explanation, and is satisfied that the application of an alternative or unscheduled rating in this case, and increase in the worker's right big toe impairment rating to 1%, was fair and appropriate.

With reference to the digital pictures of the worker's right foot, on file, and the folio of disfigurement ratings established in previous cases, and in the exercise of his judgment, the Chief Medical Officer also recommended a 1% cosmetic rating for disfigurement of the right second toe. The panel accepts the Chief Medical Officer's conclusion in this regard. Combining the loss of function deficit rating of 1% with the cosmetic rating of 1%, the WCB's Chief Medical Officer arrived at a total recommended PPI rating of 2%.

The panel has also reviewed the calculation of the monetary amount of the PPI award and finds that it has been correctly calculated at $2,740.00 ($1,370.00 for each full 1% of impairment), in accordance with the formula in subsection 38(2) of the Act, as adjusted by the Regulation.

The panel is therefore satisfied, based on our review of the information which is before us, that the worker's PPI rating of 2% and monetary award of $2,740.00 were properly established. The panel is further unable to find that the worker was entitled to a higher rating or award.

In arriving at our decision, the panel acknowledges the worker's submission with respect to the impact his foot injury has had on his life, including the loss of income he has suffered as a result of his injury and the pain he continues to experience, particularly when he is operating machinery or exposed to the cold. The panel notes, however, that an impairment award is not related to, or a substitute for, loss of earning capacity, nor is it intended to compensate a worker for pain or suffering resulting from an injury.

In conclusion, the panel finds that the Act and WCB policy were properly applied in establishing the worker's PPI rating and monetary award. The panel therefore finds that the worker's permanent partial impairment rating and monetary award have been correctly calculated.

The worker's appeal is dismissed.

Panel Members

M. L. Harrison, Presiding Officer
R. Campbell, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 17th day of November, 2020