The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he was not entitled to a permanent partial impairment award. A file review was held on November 25, 2021 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to a permanent partial impairment award.

Decision

That the worker is not entitled to a permanent partial impairment award.

Background

The worker has an accepted WCB claim for an injury to his right index and middle fingers as the result of a workplace accident that occurred on December 20, 2018 when freight elevator doors slammed shut on those fingers, crushing them. The worker sought medical attention at a local hospital emergency department on December 21, 2018, where a hematoma to the index finger was noted and a laceration to the middle finger which required stitches. The suggestion of a non-displaced intra-articular fracture at the radial base of the second middle phalanx was also subsequently noted.

The worker's claim was accepted by the WCB on January 4, 2019 and payment of wage loss and medical aid benefits commenced. On April 10, 2019, the worker returned to work on modified duties. On May 2, 2019, the employer advised the WCB that the worker had resigned his position on April 30, 2019.

On November 16, 2020, a WCB physiotherapy consultant reviewed the worker's file to determine if he was eligible for a permanent partial impairment ("PPI") award. The consultant opined that the worker was likely at maximum medical improvement and there was no major pre-existing condition. Range of motion measurements taken by the worker's treating sports medicine physician on March 20, 2019 and measurements documented by the treating physiotherapist in a May 3, 2019 report were noted. The consultant advised that a PPI rating could likely be completed based on a review of photographs of the injured areas and provided details of the photographs that would be required. By letter dated November 17, 2020, the WCB requested that the worker provide photographs of his injury to be reviewed in lieu of an in-person physical examination. On December 15, 2020, the worker advised the WCB that he would prefer an in-person examination.

On April 19, 2021, the worker attended a call-in examination with the WCB physiotherapy consultant. Following that examination, the physiotherapy consultant noted that digital pictures were taken of scarring on the worker's right middle finger and compared to the folio of images at the WCB. Based on that comparison, the consultant opined that there was no rateable cosmetic impairment for scarring. Active guided left and right index and middle finger mobility were then measured, and the consultant calculated impairment ratings of 0.25% for the worker's right index finger and 0.33% for the worker's right middle finger, for a total finger impairment and recommended rating of 0.58%. By letter dated April 19, 2021, the WCB's Compensation Services advised the worker that he did not qualify for a rateable PPI award, as his combined rating was less than 1% and no PPI payments are issued for ratings less than 1%.

On April 29, 2021, the worker requested that Review Office reconsider Compensation Services' decision. The worker noted he had lost the use of a good part of his middle finger, and had trouble doing simple things like carrying items. He noted the finger was "bubbled and hard and scarred", and caused difficulties with such simple things as turning on a faucet, opening a jar, holding a knife, and trying to grab something using his finger The worker noted he cooked for a living, and submitted that the injury had "minimized" his skills.

On June 9, 2021, Review Office determined that the PPI rating of 0.58% was correctly calculated and the worker was not entitled to a PPI award. Review Office noted that the worker was examined to assess for cosmetic impairment and loss of mobility. Comparison of pictures taken of the worker's fingers and the WCB folio of images showed no rateable cosmetic impairment. Loss of range of motion was measured in the worker's right index and middle fingers and calculated to be 0.58%. Review Office acknowledged the worker continued to have difficulties with his fingers but noted that the impairment did not meet the minimum threshold for a monetary award.

On August 24, 2021, 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 under the Act and policies established by 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 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 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.

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 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).

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

Schedule A also allows for a cosmetic rating for disfigurement, which is described as an "altered or abnormal appearance." The Schedule provides that 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 WCB's Healthcare Services Department will refer to a folio of disfigurement ratings established in previous cases.

Worker's Position

The worker was self-represented. The worker's position was that the work accident caused permanent damage to his right hand and he is entitled to a permanent partial impairment award.

The grounds for the worker's appeal are set out in his Appeal of Claims Decision form dated August 23, 2021. The worker submitted that his right index and middle fingers are permanently disfigured and damaged as a result of his December 20, 2018 workplace accident. The worker stated he has limited movement or range of motion in those fingers, which was not the case prior to the accident.

The worker noted that the scarring and loss of mobility are especially bad with respect to his middle finger. He stated it is very difficult to do simple things now, such as using a can opener, turning a door knob, and grabbing objects. He submitted that the accident has also resulted in muscle loss and his fingers are not as strong as they were before the accident.

Employer's Position

The employer did not participate in the appeal.

Analysis

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 that the Act and/or WCB policy were not properly applied in establishing the worker's PPI rating. The panel is unable to make that finding, for the reasons that follow.

The worker suffered a compensable crush and laceration injury to the index and middle fingers of his right hand. The accepted diagnosis is a non-displaced fracture of the right middle phalanx of the index finger and contusion of the right third digit.

With respect to an injury to an upper extremity, including a finger or 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 motion is to be determined through clinical examination or assessment of medical information on file, based on the loss of active guided movement of the affected joint or joints.

The panel has reviewed the notes of the WCB physiotherapy consultant who performed the PPI examination on April 19, 2021. With respect to loss of movement, the notes show that as part of his assessment, the physiotherapy consultant measured the active guided left and right index and middle finger mobility using a goniometer "as per the American Academy of Orthopedic Surgeons 'The Clinical Measurement of Joint Motion' handbook" and determined the difference in the active guided range of motion between each of the joints of the right and left index and middle fingers. The panel is satisfied that the WCB physiotherapy consultant made the appropriate measurements, correctly applying the criteria as set out in the Policy.

The panel notes that the measurements by the WCB physiotherapy consultant were also, in our view, consistent with medical documentation on the file, including the active range of motion measurements documented by the worker's treating sports medicine physician on March 20, 2019.

The panel also reviewed the WCB physiotherapy consultant's impairment calculations based on his measurements, and was unable to find any error in those calculations. The panel is satisfied that the consultant's assessment was conducted in accordance with the process and criteria which are set out in the Policy, and accepts his finding and recommendation that the total finger impairment rating was 0.58%.

The panel notes that the worker has referred in his submission to the impact the injury has had, and will have, on his life and his ability to perform simple tasks at work and in his daily life in general. The panel acknowledges the worker's position and concern that his fingers and hand are not the same as they were before the accident. The panel notes, however, that an impairment award is not related to loss of earning capacity or a proxy for loss of earning capacity, nor is it intended to evaluate pain and suffering, including a reduced ability to perform activities of daily living.

With respect to a cosmetic impairment rating, the WCB physiotherapy consultant's notes indicate that digital pictures of scarring of the worker's right middle finger were taken at the call-in examination and placed on file. The digital pictures were then compared to the folio of images at the WCB, as provided under the Policy. Based on that comparison, and in the exercise of his judgment, the physiotherapy consultant concluded and recommended that there was no ratable cosmetic impairment related to the compensable injury. The panel agrees with and accepts the WCB physiotherapy consultant's conclusion in this regard.

Based on the foregoing, the panel finds that the Act and WCB policy were properly applied in establishing the worker's total finger impairment at 0.58%. As that impairment does not meet the threshold requirement of a 1% rating under subsection 38(2) of the Act, the worker is not eligible for a PPI award. The panel therefore finds that the worker is not entitled to a permanent partial impairment award.

The worker's appeal is dismissed.

Panel Members

M. L. Harrison, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 25th day of January, 2022