Decision #74/21 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that their 1% permanent partial impairment rating and monetary award have been correctly determined. A file review was held on April 21, 2021 to consider the worker's appeal.
Whether or not the worker’s 1% permanent partial impairment rating and monetary award have been correctly determined.
The worker’s 1% permanent partial impairment rating and monetary award have not been correctly determined.
The WCB accepted the worker’s claim for a burn to their left arm arising from an accident at work on July 6, 2015. The worker attended for medical treatment on the same date and was diagnosed with a second degree burn on their left arm. The worker received treatment and returned to work on their full regular duties on July 28, 2015.
On May 29, 2020, the worker contacted the WCB to inquire about a cosmetic impairment award. The worker provided further information regarding their injury and provided the WCB with photographs of the scarring from the workplace injury. A WCB physiotherapy consultant reviewed the information from the worker on June 10, 2020 and provided an opinion that the worker was at maximum medical improvement and did not have a major pre-existing condition related to the compensable injury. The WCB physiotherapy consultant requested the WCB collect further photographs from the worker as the worker could not be seen in-person due to the Covid-19 pandemic. The worker provided additional photographs on August 28, 2020 and these were reviewed by the WCB physiotherapy consultant on September 1, 2020. The consultant compared the photographs to the folio of images on file at the WCB and recommended a total body cosmetic impairment rating of 1%. On September 2, 2020, the WCB advised the worker it had determined they were entitled to a permanent partial impairment (“PPI”) rating of 1% and, accordingly, to a PPI award of $1,300.00.
On October 1, 2020, the worker requested Review Office reconsider the WCB’s decision noting they had scarring on both arms arising from their job duties, including the scarring on their left arm from the July 6, 2015 workplace accident. Further, the worker commented that they had to wear long sleeved clothing as they felt the scarring was unsightly and made them feel uncomfortable, affecting their self-esteem. The worker submitted that due to these issues, the PPI rating and award should be higher than the amount calculated by the WCB.
On October 29, 2020, Review Office determined the worker’s PPI rating of 1% and the monetary award were correctly determined. Review Office accepted the WCB physiotherapy consultant’s opinion that the worker’s cosmetic impairment rating was 1% related to the compensable injury and noted the WCB regulations set the award at $1,300.00 for each 1% of impairment. Accordingly, the monetary award was determined correctly. Review Office acknowledged the worker’s concern regarding the scarring, including the other scars the worker related to their job duties; however, Review Office noted the worker’s claim was for a compensable injury to their left arm that occurred on July 6, 2015 and did not deal with other burns the worker may have sustained at other times. Further, Review Office noted there were no provisions within the WCB regulations to allow for PPI ratings for the other difficulties noted by the worker.
The worker filed an appeal with the Appeal Commission on November 13, 2020. A file review was arranged for April 21, 2021.
Following the hearing, the appeal panel requested additional medical information prior to discussing the case further. The requested information was later received and was forwarded to the interested parties for comment. On June 7, 2021, the appeal panel met further to discuss the case and render its final decision on the issues under appeal.
Applicable Legislation and Policy
The panel is bound by and must apply the provisions of The Workers Compensation Act (the “Act”), regulations under the Act and the policies established by the WCB.
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 well as medical aid and wage loss benefits, as outlined in s 37 of the Act. 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 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.
Regulation 1/2020 under the Act provides for the compensation amounts for impairment awards and sets out that for an accident occurring in 2015, compensation awards for impairment will be $1,300 for each full 1% of impairment.
The WCB’s Policy 44.90.10, Permanent Impairment Rating (the "Policy”) describes how permanent impairment ratings are calculated as a 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.
In respect of cosmetic disfigurement, in particular, Schedule A provides that when a worker is permanently disfigured as a result of an injury, the WCB may determine that the disfigurement be considered a permanent impairment to which the worker is entitled to an impairment benefit. Disfigurement is an altered or abnormal appearance. This may be an alteration of color, shape, or structure, or a combination of these. Rating calculation for disfigurement is done by a WCB Healthcare Advisor and the degree of disfigurement is determined on the basis of judgment. The maximum rating for disfigurement, in extreme cases, is 25%. Typical ratings for disfigurement are between 1 and 5%. To maintain consistency in ratings for disfigurement, and to make the ratings as objective as possible, in determining a rating, the WCB's Healthcare Advisor is required to reference a folio of disfigurement ratings established in previous cases.
The worker represented themselves in the appeal and provided their position in the Appeal of Claims Decision form. The worker stated their position as follows:
The decision was only based on the single second degree burn injury on my left arm that occurred on July 9, 2015. The reviewer disregarded all the smaller scars on both arms and even on the legs covering almost the entire areas. Those small scars were also caused by the working conditions at my previous employment. Before the July 2015 accident, we do not have effective fire-proof cover on our arms and legs. In the review decision, it was stated that the PPI rating was for cosmetic disfigurement of the body which is defined as “an altered or abnormal appearance. This may be an alteration of color, shape, or structure, or a combination of these.” So, why would they disregard the small scars. My skin color is dark brown, those small scars are white and very prominent. Definitely abnormal.”
In their prior Request for Review to Review Office, the worker also outlined that:
“These scars, while not considered a disability, have left ugly marks on my two arms that I tend to wear long sleeves even in hot weather because they are too unsightly and people keep on staring and asking about them as if I have some contagious disease. This leaves me uncomfortable and has affected my self esteem. Especially when applying for work, I have to cover them as they might think they are some form of skin disease.”
In support of their claim, the worker provided the WCB and the Appeal Commission with a series of photographs of their scarring on their left arm as well as other body parts.
In sum, the worker’s position is that the impact of their scarring, not only on their left arm arising out of the July 9, 2015 accident, but over all their body, results in cosmetic disfigurement that affects more than 1% of their total body; therefore, the PPI rating has not been correctly determined and the corresponding award is also incorrect.
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, the panel must find that the Act or the Policy was not correctly applied in determining the worker’s PPI rating and monetary award. As outlined in the reasons that follow, the panel was able to make such findings.
The panel first considered whether the WCB’s PPI assessment was conducted in accordance with the process set out in the Policy. The panel reviewed the medical reporting from July through August 2015, as well as the report from the WCB physiotherapy consultant who assessed the degree of the worker’s permanent partial impairment. The treating physician confirmed the worker sustained a second degree burn to their left arm, with dimensions of 15 x 10 cm. The WCB physiotherapy consultant reviewed the medical reporting and determined that the worker was likely at maximum medical improvement, without any major pre-existing condition related to the impairment. The physiotherapy consultant also reviewed the photos of the worker’s scarring, submitted by the worker, and compared these to the folio of images at the WCB, as is required under the provisions of the Policy. On this basis, they recommended a 1% cosmetic impairment rating.
In a further report provided to the panel in response to its questions, the WCB physiotherapy consultant confirmed to the panel the process by which the worker’s cosmetic impairment rating was established, explaining that in reviewing the folio of images and comparing these to the images of the worker’s scarring, the criteria considered are:
1. Whether the cosmetic abnormality is a manifestation of an accepted WCB claim;
2. Whether the cosmetic abnormality is conspicuous;
3. The degree to which the scarring is conspicuous; and
4. That the maximum disfigurement rating is 25% which would encompass conspicuous scarring over all regions of the body, as compared to the limited surface area of the skin of an upper extremity relative to the whole body.
The WCB physiotherapy consultant, in the memorandum dated May 13, 2021 confirmed that the photos submitted by the worker “...reveal a relatively large surface area conspicuous scar involving primarily the lateral aspect of [their] upper left arm associated with the accepted diagnosis.” The physiotherapy consultant also noted that the photos do not indicate any associated change in form and symmetry of the worker’s left upper arm separate from the scarring. The physiotherapy consultant concluded that the worker’s scarring is comparable to folio images reviewed of scarring in the “upper end of a 1% impairment rating”. This opinion was reviewed with a WCB medical advisor who agreed that the scarring is consistent with the physiotherapy consultant’s conclusions but also advised that:
“...in relation to the combination of i) the relatively large surface area of the scar, including that the scar involves the anterolateral, rather than strictly the lateral aspect of the left upper arm and ii) the conspicuousness of the scar due to its keloid nature, the rating would also be consistent with the lower end of a 2% rating, even though there is no alteration in form of symmetry of the left arm separate from the scar itself.”
With respect to the worker’s submission that not only the scarring on their left arm should be considered in assessing their permanent disfigurement, but also other scarring on their limbs which they assert arose from their employment, the panel acknowledges that the images provided by the worker indicate additional sites of scarring, but finds that only the scarring of the left upper arm is relevant to and resulting from this claim, as the only documented injury arising out of the compensable accident of July 9, 2015 was a second degree burn to the worker’s left arm. The PPI assessment therefore correctly focused only determining a PPI rating with regard to the worker’s left upper arm scarring.
The panel noted that the process of assessing the proportion of total body impairment resulting from the worker’s scarring ultimately is based upon a subjective assessment by the WCB medical advisor reviewing the file, but the Policy provides a measure of objectivity by requiring that such an assessment be made with reference to the WCB’s folio of images from prior assessments so as to increase consistency of such assessments. In this case, the panel finds that the assessment process was properly undertaken as outlined in and required by the Policy. Nonetheless, the May 13, 2021 memorandum from the WCB physiotherapy consultant illustrates a challenge in this process, in that the WCB medical advisor came to a different conclusion than that reached by the WCB physiotherapy consultant advisor despite reviewing the same information and images.
In this case, the panel prefers and agrees with the conclusion reached by the WCB medical advisor that the worker’s compensable cosmetic abnormality, or scarring, is particularly conspicuous in terms of its location, visible from the front and side of the worker’s upper left arm, extending both above and below the typical short-sleeve end point, and somewhat raised and uneven in appearance. We therefore find, on a balance of probabilities, that the worker’s cosmetic abnormality should be rated at 2% of total body impairment.
On this basis and applying the provisions of Regulation 1/2020 under the Act, the applicable compensation for the worker’s 2% permanent partial impairment rating is $2,600.
The worker’s appeal is granted.
K. Dyck, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
K. Dyck - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 10th day of June, 2021