Decision #142/21 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that they are not entitled to a permanent partial impairment award. A file review was held on November 9, 2021 to consider the worker's appeal.
Whether or not the worker is entitled to a permanent partial impairment award.
The worker is not entitled to a permanent partial impairment award.
This claim has been the subject of two previous appeals. Please see Appeal Commission Decision Nos. 78/19, dated June 25, 2019, and 100/21, dated August 13, 2021. The background will therefore not be repeated in its entirety.
The worker has an accepted WCB claim for a soft tissue injury to their right little finger which occurred at work on September 26, 2018 when the worker tripped and landed on their right hand. The worker's treating plastic surgeon diagnosed the worker with a boutonniere deformity and capsulorrhaphy surgery to the worker's right small finger was approved by the WCB on April 21, 2020. On July 24, 2020, the worker contacted the WCB to advise they had a follow-up appointment with the plastic surgeon on July 22, 2020 and the proposed surgery would not be proceeding. The worker confirmed the advice of the plastic surgeon that the surgery would not provide increased functioning in their right little finger.
On February 16, 2021, the worker's WCB case manager asked the WCB's Healthcare department to determine the worker's eligibility for a permanent partial impairment rating and award and a call-in appointment was arranged for May 7, 2021. The worker was seen by a WCB physiotherapy advisor and reported ongoing pain and stiffness in their right little finger, and that the injury limited their ability to write with a pen or pencil. Upon examining the worker, the physiotherapy advisor noted "Some thickening of the right little finger PIP (proximal interphalangeal) joint was observed. A boutonniere deformity was not apparent on observation. There is no rateable cosmetic impairment related to the compensable injury." Active guided range of motion measurements were taken for the worker's right and left little fingers and when compared, a permanent partial impairment rating of 0.40% was calculated. On May 11, 2021, the worker was advised they were not entitled to a permanent partial impairment award as the examination findings did not support the results of the examination met the criteria for an award.
The worker requested reconsideration of the WCB's decision to Review Office on June 22, 2021 stating their belief the examination was not fair. On July 13, 2021, the employer provided a submission in support of the WCB's decision, a copy of which was shared with the worker on July 14, 2021.
Review Office determined the worker was not entitled to a permanent partial impairment award on July 29, 2021. Review Office agreed the calculation of a 0.40% permanent partial impairment rating recorded by the WCB's physiotherapy advisor from the May 7, 2021 examination was correct and accepted the advisor's recommendations. Review Office found the examination was conducted within the WCB's policy guidelines and was a fair assessment. Review Office went on to note a permanent partial impairment rating of less than 1.00% did not result in a monetary award and as such, determined the worker was not entitled to a permanent partial impairment award.
The worker filed an appeal with the Appeal Commission on August 16, 2021. A file review was arranged for November 9, 2021.
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 their 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.
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. Section 38(2) of the Act states, in part:
38(2) Where the board determines that a worker has suffered an impairment, the board shall pay to the worker as a lump sum an impairment award in the following amount, for an impairment that is determined by the board to be
(a) 1% or greater but less than 30%, $1,030. for each full 1% of impairment;
WCB Policy 44.90.10, Permanent Impairment Rating Schedule (the “PPI 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 worker submitted their position on the Appeal of Claims Decision form dated April 9, 2021. In addition, the worker provided a submission dated November 1, 2021.
The worker’s submission stated the Review Office decision was not fair and that a statement that “the worker chose not to proceed with the procedure, and it was noted that the finger, over the course of time, had fused in position of 20 degrees flexion” is misleading.
The worker requested a second opinion from an independent medical surgeon to determine whether a new PPI evaluation would meet the threshold for a PPI award. The worker indicated they were having ongoing difficulties with their right small finger.
The employer did not participate.
The issue before the panel is whether or not the worker is entitled to a permanent partial impairment award. For the worker’s appeal to be successful, the panel must find, on a balance of probabilities, that the impairment calculations provided by the WCB Healthcare advisor were inaccurate and that the impairment was 1% or greater as required by the policy. The panel was unable to make that finding for the reasons that follow.
The panel was unable to determine that the decision to deny a PPI award was handled unfairly or inaccurately. The range of motion measurements and impairment calculations for the little finger were detailed by the WCB Healthcare advisor. The panel finds that the advisor examined the worker properly and made appropriate measurements as required under the PPI policy and that the calculated rating fell below the threshold of 1% required for a PPI award.
The panel acknowledges the worker’s request to have a third-party opinion. However, the panel was unable to find medical evidence that would support that the results provided by the WCB Healthcare advisor were inaccurate. Further, no new information was received that would provide an alternate conclusion.
The worker’s appeal is denied.
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 8th day of December, 2021