The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that her permanent partial impairment rating of 1.71% has been correctly determined. A file review was held on November 4, 2020 to consider the worker's appeal.

Issue

Whether or not the worker's permanent partial impairment rating of 1.71% has been correctly determined.

Decision

That the worker's permanent partial impairment rating of 1.71% has been correctly determined.

Background

The worker has an accepted WCB claim for an injury to the little finger on her left hand which occurred at work on October 7, 2016. The worker reported that she was working with drink glasses, when one of the glasses fell and broke, cutting her little finger. The worker underwent a total of four surgeries to repair lacerated flexor tendons.

The worker attended occupational therapy and physiotherapy throughout her claim. In a March 21, 2019 discharge report, the treating occupational therapist noted ongoing strength and range of motion issues in the worker's little finger. The therapist noted that pain in the worker's finger fluctuated with use and the weather, and the worker had a splint which she used while sleeping.

On January 2, 2020, the worker's file was reviewed by a WCB physiotherapy consultant, who determined that the worker was likely at maximum medical improvement, and a call-in examination was arranged for the purpose of determining a permanent partial impairment (PPI) rating.

The worker attended the call-in examination with the WCB physiotherapy consultant on January 23, 2020. The consultant noted that the worker reported residual stiffness in her left ring and little fingers, and limited function of her left hand with her fingers getting in the way, and that her right hand was normal. The consultant reported that active guided range of motion of left and right little fingers was measured using a goniometer and range of motion in the worker's right fingers was normal. The consultant determined that when compared to the little finger of her right hand, the worker's left little finger had a total joint impairment of 0.71%, consisting of 0.29% at the DIP (distal interphalangeal) joint, 0.4% at the PIP (proximal interphalangeal) joint and 0.02% at the MP (metacarpal phalange) joint.

The WCB physiotherapy consultant also reported that digital pictures were taken of the scarring of the worker's little finger. The consultant reported that after comparing those digital pictures to folio images on file at the WCB, he determined that the worker had a cosmetic impairment rating of 1.0%, resulting in a recommended total permanent partial impairment rating of 1.71%. On January 27, 2020, the WCB's Compensation Services advised the worker that she was entitled to a PPI rating of 1.71%, resulting in an award of $1,350.00.

On February 16, 2020, the worker requested that Review Office reconsider Compensation Services' determination of her PPI rating and award. The worker submitted that she did not have any active movement in the DIP or PIP joints of her little finger, that this made her little finger totally unfunctional, and that her grip was weak and unsteady.

On March 10, 2020, Review Office determined that the worker's PPI rating of 1.71% was correct. Review Office advised that they had reviewed the file, the PPI examination notes and the photographs of the worker's injury. Review Office accepted the range of motion measurements and calculations, and confirmed that the percentage of whole body impairment was 0.71%. Review Office further agreed with the consultant's 1% rating, noting that this was consistent with past ratings and practice.

On July 13, 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(9) of the Act 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 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).

Schedule A also allows for a cosmetic rating for disfigurement, which 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 basis of the worker's appeal is outlined in her Appeal of Claims Decision form, as follows:

I wish to get my finger reassessed, because as I stated before I have absolutely no movement in my DIP joint. I believe a mistake was made when it was measured as I have double checked with a specialist and he also can not see any movement. My PIP is also not moving at all (as its been stated in my file) however I strongly wish you would reconsider calling it functional as it is constantly sticking out whenever I try to hold anything, do dishes or even as simple as changing my babies diaper. At this point its become a decorative piece rather that a functional digit.

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 of 1.71 % has been correctly determined. 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 workplace injury to her left little finger, the accepted diagnosis for which was laceration left little finger with laceration of FDP (flexor digitorum superficialis) and FDP (flexor digitorum profundus) tendons.

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

The notes of the WCB physiotherapy consultant's January 23, 2020 call-in examination of the worker indicate that the physiotherapy consultant determined that the total mobility deficits of worker's left little finger equated to a ratable impairment of 0.71%. The physiotherapy consultant further determined that the worker had a cosmetic impairment related to the compensable injury of 1.00%.

The panel accepts the physiotherapy consultant's assessment and opinion regarding the range of motion deficits in the worker's left hand. The panel carefully reviewed the physiotherapy consultant's assessment, the percentages which were applied and calculations done, and is satisfied that the Policy and the methodology set out in the Policy were properly applied in arriving at that opinion.

The worker indicated that she agreed with the calculation of the PIP in her left little finger at 100% impairment. The worker did not agree, however, with "calling it functional", noting that it was "constantly sticking out" whenever she tried to hold anything, to do dishes or even do something as simple as changing a diaper, and that it had become more "a decorative piece rather that a functional digit."

The panel notes that the Policy provides that if a joint is anklosed in a non-functional position, the rating for loss of active guided finger range of motion may be equal to the rating for amputation at that finger joint, but if the joint is in a functional position, the rating for the loss of mobility is, at maximum, one-half of the amputation rating at that level.

The panel acknowledges the worker's expressed limitations and difficulties with respect to her PIP joint, being the middle joint on the little finger, but is not satisfied that the PIP joint or the little finger is not functional (or in a non-functional position) or that she is entitled to a higher rating in respect of that joint or that finger on this basis. The panel notes that the rating which the physiotherapy consultant assessed and recommended for the PIP joint was 0.4%, or the maximum rating at that level for a joint which is in functional position.

The worker also disputed the calculation of the movement in her DIP joint at 71.43%, indicating it should have been 100% as she has absolutely no movement in her DIP joint. The worker indicated she had double checked with a specialist who also could not see any movement. The panel is unable to find that the calculation of 71.43 %, as provided by the WCB physiotherapy consultant, was in error.

The panel notes that the impairment rating is determined under the Act and Policy based on the loss of active guided movement of the affected joint. Active guided range of motion is defined in the Policy, and involves the injured person moving the region to be examined on their own, with guidance of the movement by the examiner.

The panel prefers the information and measurements provided by the WCB physiotherapy consultant. The consultant noted that based on his measurements at the call-in examination, the range of motion in the DIP joints of the right and left fingers was 70° and 20°, respectively, resulting in a 71.43° deficit in the left DIP joint, which translated to a 0.29% impairment for range of motion of that joint under the Policy. The panel is unable to accept that the physiotherapy consultant would have arrived at those measurements if the DIP joint was actually locked in place at that time.

The panel has also considered the WCB physiotherapy consultant's assessment of a cosmetic impairment rating. The physiotherapy consultant's notes indicate that he reviewed and compared digital pictures of the worker's left little finger 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 $1,350.00 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 1.71% has been correctly determined.

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 22nd day of December, 2020