Decision #116/21 - Type: Workers Compensation
Preamble
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that their permanent partial impairment award of 2% has been correctly determined. A file review was held on September 21, 2021 to consider the worker's appeal.
Issue
Whether or not the worker’s permanent partial impairment award of 2% has been correctly determined.
Decision
The worker’s permanent partial impairment award of 2% has been correctly determined.
Background
The worker has an accepted claim for an injury to their groin that occurred on July 13, 1998 when a board became jammed on a table saw, kicked back and struck the worker in the leg and groin area. The worker sought treatment at a local emergency department on the same date, with an ultrasound indicating a small hematoma in the soft tissues lateral to the left testis but no evidence of a testicular rupture.
The worker’s claim was accepted by the WCB and on August 24, 1998, the worker’s treating specialist provided the worker could return to their regular duties on a gradual basis commencing August 17, 1998. On December 2, 1998, it was noted by the worker’s treating specialist that “The testicle has now become atrophic.” The specialist continued in a report to the WCB on January 6, 1999, an atrophic testicle occurs in a certain percentage of injuries similar to the worker’s and noted it was not reversible. Conservative management was recommended.
On January 7, 2000, the worker attended at the WCB for a call-in examination with a WCB medical advisor for the purpose of a permanent partial impairment (PPI) rating. After the examination, the WCB medical advisor noted they had advised the worker their treating specialist had been contacted and provided the opinion that “…if only one testicle were involved in the injury, then it would be unlikely that fertility would be affected.” However, for a complete record, a sperm analysis was requested. On January 18, 2000, the WCB medical advisor discussed the results of the sperm analysis with the worker’s treating specialist and after the discussion, it was decided the worker’s PPI rating would be 2%. On February 3, 2000, the worker was advised of the WCB’s determination of the 2% rating and monetary award.
The worker requested reconsideration of the WCB’s decision to Review Office on February 23, 2000. In their submission, the worker noted their concern regarding missing time from work due to the injury, possible subsequent surgery and possibly losing their employment due to the missing time and their ongoing difficulties with pain. Review Office determined the worker’s permanent impairment rating of 2% was correctly calculated. Review Office noted the workplace accident did not result in the worker becoming sterile, as confirmed by the sperm analysis, and as such, a disfigurement rating of 2% was correctly assessed.
The worker filed an appeal with the Appeal Commission on June 8, 2021. A file review was arranged for September 21, 2021.
Reasons
Applicable Legislation and Policy
The Appeal Commission is bound to follow The Workers Compensation Act (the “Act”) and the policies established by the WCB’s Board of Directors. In this case, the worker is appealing the WCB’s calculation of his permanent impairment award.
Section 4(1) of the Act provides that the board may award compensation for an impairment that does not result in a loss of earning capacity. The method for calculating compensation for impairment is set out in section 38 of the Act.
Section 38(1) of the Act deals with determination of impairment and states that the board shall determine the degree of a worker’s impairment expressed as a percentage of total impairment.
WCB Policy 44.90.10.03, Permanent Impairment Rating Schedule (the “Policy”) is effective for accidents occurring between October 1, 1996 and March 31, 2000. As the workplace incident occurred in 1998 and the worker's permanent impairment was only ever assessed in 2000, this policy is applicable. The Policy describes how permanent impairment ratings are calculated as a percentage of impairment as it relates to the whole body. The schedule to the Policy sets out how impairment ratings are determined. The schedule sets out that permanent impairment is measured by the following factors: loss of a part of the body; loss of mobility in the joints; loss of function of any organs of the body identified in the schedule; and cosmetic deformity of the body.
The schedule provides that the degree of impairment will be established by the Healthcare Services Department of the WCB in accordance with the schedule and that whenever possible and reasonable, impairment ratings will be established strictly in accordance with the schedule. In order to maintain consistency in ratings for disfigurement, and to make the ratings as objective as possible, WCB’s Healthcare Services Department will make reference to a folio of disfigurement ratings established in previous cases.
Impairment awards are calculated by determining a rating that represents the percentage of impairment as it relates to the whole body. The award is not related to loss of earning capacity, and it is not intended to compensate a worker for any pain or suffering flowing from an injury. The rating calculation does assess loss of functional ability by measuring loss of range of motion.
The value of Permanent Partial Impairment awards is calculated under the terms of section 38(2) of the Act, as adjusted by the Adjustment in Compensation Regulation.
Worker’s Position
The worker submitted their position on the Appeal of Claims Decision forms dated May 25, 2021 and September 22, 2020.
The worker submitted that the 2% impairment rating is not correct and should be reviewed. The worker submitted that the injury continues to affect their physical and mental health and that the trauma they have suffered and continue to suffer has been overlooked.
The worker incident report indicated that on July 13, 1998, they were operating a table saw when a piece of lumber material kicked back and struck them on the groin and leg area.
The incident resulted in an atrophic testicle as reported by the worker’s doctor in January of 2000. This information was provided to the WCB Impairment Rewards Medical Advisor.
Employer’s Position
The employer did not participate.
Analysis
The issue before the panel is whether or not the worker’s permanent partial impairment award of 2% has been correctly determined. For the worker’s appeal to be successful, the panel must find, on a balance of probabilities, that the 2% rating was inaccurate or that there is a significant deterioration of the worker’s medical condition. The panel was unable to make that finding for the reasons that follow.
The panel notes that the schedule to the Policy includes a rating for loss of gonads and states "Gonad refers to testis or ovary. Loss of a gonad is considered as a disfigurement and rated at 2%." As a result, the panel accepts the determination that the PPI award of 2% is appropriate and consistent with the Policy and schedule.
The panel was unable to find medical information that supports a deteriorating medical condition related to the workplace injury. The panel acknowledges the worker’s report of discomfort; however, PPI awards are not intended to provide compensation for pain and suffering.
The worker’s appeal is denied.
Panel Members
B. Hartley, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
B. Hartley - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 19th day of October, 2021