The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his permanent partial impairment award was correct. A file review was held on September 21, 2022 to consider the worker's appeal.

Issue

Whether or not the worker's permanent partial impairment rating has been correctly calculated.

Decision

The worker's permanent partial impairment rating has been correctly calculated.

Background

The worker has an accepted claim for a left hand laceration and open fracture to the left pinky finger as the result of a June 15, 2017 accident at work, when a saw blade caught the glove he was wearing and pulled his hand into the blade.

On June 28, 2017, the worker underwent surgery, which included an open reduction and internal fixation of fractures at the ring and small finger proximal phalanges and metacarpophalangeal (MCP) joints, repair of the extensor tendons of the ring and small fingers, and repair of collateral ligaments to the MCP joints of the ring and small fingers. Following the surgery, the worker began occupational therapy and physiotherapy treatment, with an initial assessment on July 4, 2017, and returned to work on light duties on July 17, 2017.

At a follow-up appointment on September 15, 2017, the treating plastic surgeon noted the worker had poor active range of motion in his ring and pinky fingers and requested approval for tenolysis and arthrolysis to improve the worker's range of motion and recovery. The WCB approved the surgery, which took place on October 28, 2017. A further tenolysis of the worker's left ring and small fingers took place on March 21, 2018.

Further surgeries were requested by the treating plastic surgeon. On June 20, 2018, the surgeon noted the worker had "…an excessively long extensor tendon of his small finger due to tendon stretching" and recommended surgery to allow it to function better, along with further release of scar tissue. On September 5, 2018, the surgeon recommended the worker undergo "…release of the volar plate of the PIP (proximal interphalangeal) joint of the ring finger and possible arthrotomy of the small finger."

At the request of the WCB, the worker attended a call-in examination with a WCB plastic surgery consultant on September 20, 2018. After examining the worker, the consultant recommended against the proposed arthrotomy of the worker's left small finger joint and a third volar plate release and/or tenolysis of the ring finger, but noted that the proposed left small finger extensor tendon exploration/tightening would be accepted.

On March 13, 2019, due to ongoing difficulties with his left hand, the worker attended an appointment with an orthopedic surgeon who specializes in hand surgery. The surgeon noted issues with the worker's ring and small fingers, and suggested options for treatment, one of which was a series of possibly three surgeries. On March 19, 2019, the worker advised he wished to proceed with the surgeries the orthopedic surgeon had recommended. On May 1, 2019, the WCB approved surgery for a de-rotational osteotomy of the left ring finger proximal phalanx, which was performed June 13, 2019. The worker underwent two additional surgeries to the ring finger on November 20, 2019 and August 6, 2020, respectively, attending physiotherapy and occupational therapy after each surgery.

On May 28, 2021, at the request of the WCB, the worker attended a Functional Ability Evaluation. A WCB physiotherapy advisor reviewed the results of that evaluation on June 8, 2021, and opined that the worker:

…is able to work within a light physical job demand: 1-20 lbs occasionally and 1-10 lbs frequently. 

He is physically able to lift/push/pull more weight but it is symptomatic. 

Pain was localized to the left hand. 

He demonstrated decreased range of motion of the 4th and 5th digits of the left hand. 

He demonstrated decreased grip strength of the left hand which is likely limiting his lifting abilities. 

These restrictions are likely permanent.

On June 9, 2021, the WCB noted that the worker had been permanently laid off from his pre-accident employment, and referred him for vocational rehabilitation services.

On September 29, 2021, the worker's file was reviewed by a WCB physiotherapy advisor, who opined that the worker was likely at maximum medical improvement and that he should be evaluated for a permanent partial impairment rating based on active guided left vs right ring and little finger mobility, and cosmetic impairment.

On April 19, 2022, the worker attended a permanent partial impairment examination with the WCB physiotherapy advisor. Following his examination of the worker, the advisor recommended that the worker had a left little finger mobility impairment rating of 0.57%, cosmetic impairment rating of 1.00%, dexterity impairment rating of 1.00%, and left ring finger impairment rating of 1.87%, for a total permanent partial impairment rating of 4.44%.

On April 21, 2022, the WCB advised the worker that he was entitled to a permanent partial impairment rating of 4.44%, which resulted in a monetary award in the amount of $5,480.00.

On May 2, 2022, the worker requested that Review Office reconsider the WCB's decision. The worker noted he had no movement and little to no feeling in the two fingers that were injured, as well as no strength in those fingers, which he required to grip onto everything. The worker noted he experienced constant pain in those fingers, and there were things he could no longer do which he felt had been overlooked. On June 9, 2022, the employer's representative advised the Review Office that they supported the worker's request for reconsideration, noting the worker's young age at the time of the accident and the seriousness of the injury to his hand.

On June 20, 2022, Review Office upheld the WCB's decision and determined the worker's permanent partial impairment award was correct. Review Office found the assessment and calculations were completed correctly, and adequately reflected the worker's current loss. Review Office also noted that the worker might have a further change in function in the future, and that this could be assessed again after a minimum of two years from the date of assessment, where additional medical evidence is provided supporting further loss of function of the left hand and finger.

On July 12, 2022, the worker appealed the Review Office decision to the Appeal Commission, and a file review was arranged for September 21, 2022.

Following the review, the appeal panel requested additional information prior to discussing the case further. The requested information was later received and was forwarded to the worker for comment. On November 16, 2022, the appeal panel met to discuss the case further and render its final decision on the issue under appeal.

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. As the date of injury is identified as June 15, 2017, the applicable legislation is the Act as it existed at that time.

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 that 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.

Section 3 of Schedule A deals with upper extremity impairments, and 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).

Section 9 of Schedule A also allows for a cosmetic rating for disfigurement, which is described as an "altered or abnormal appearance." Section 9 provides that the rating for disfigurement is done by a WCB Healthcare Advisor and the degree of disfigurement is determined on a judgmental basis. Section 9 also provides that in order to maintain consistency in ratings for disfigurement and to make the ratings as objective as possible, the WCB's Healthcare Services Department will make reference to a folio of disfigurement ratings established in previous cases.

Section 16 of Schedule A further provides for impairment ratings in relation to the nervous system, and Table 16-3 in that Section deals with ratings for an impairment of the nervous system with respect to upper extremities.

Worker's Position

The worker was self-represented. The worker stated that he strongly believes the permanent partial impairment rating he has been assessed is incorrect, and that important factors have been overlooked.

The worker submitted that his injuries and the resulting six surgeries he has gone through have caused him a lot of physical and mental stress, anxiety and depression.

The worker advised that he has little or no movement or feeling in the two fingers that were injured. He said he has constant pain and throbbing in those fingers because of his injuries and surgeries, which often prevents him sleeping. He noted that the surgeries have helped, but he has not seen much improvement in his hand, only that he has more scars.

The worker said that the lack of grip strength in his two injured fingers affects the strength of his whole hand. He has to overcompensate with his wrist and cannot do a lot of things with his left hand. He noted, for example, that he cannot carry heavy objects or play sports he used to love playing, and cannot be outside in cold temperatures for more than five minutes without his fingers starting to ache. He also noted that his two injured fingers are stuck at an angle, and get caught on things very easily, and he has to be very cautious when doing such things as opening or closing doors so his fingers do not get caught in the handles.

In conclusion, the worker submitted that because of everything he has experienced and continues to live with, the percentage he has been assessed with respect to his left hand is too low, and his appeal should be granted.

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 has been correctly calculated. 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 permanent partial impairment rating. The panel is unable to make that finding.

The worker suffered a compensable injury to his left hand, and has undergone six surgical procedures as a result of his injuries. On September 29, 2021, a WCB physiotherapy advisor opined that the worker was likely at maximum medical improvement and recommended his eligibility for a permanent partial impairment rating be evaluated. The worker was subsequently examined by the WCB physiotherapy advisor, who opined that he had a total permanent partial impairment rating of 4.44%. The worker disagrees with that rating.

The panel notes that pursuant to the Policy, impairment with respect to an injury to an upper extremity, including a hand and fingers, is evaluated for the loss of mobility of a joint or joints. The Policy provides that the rating for loss of mobility or range of 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 reviewed the notes of the WCB physiotherapy advisor who examined the worker on April 19, 2022. The advisor's notes show that as part of his examination, the advisor measured the active guided range of motion of the worker's left and right ring and little 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 range of motion between each of the joints of the worker's left and right ring and little fingers. The panel is satisfied that the WCB physiotherapy advisor made the appropriate measurements, properly applying the criteria set out in the Policy.

The panel also reviewed the WCB physiotherapy advisor's impairment calculations based on his measurements and was unable to find any error in those calculations. The panel is therefore satisfied that the advisor's assessment with respect to loss of mobility was conducted in accordance with the process and criteria as set out in the Policy, and accepts his findings and recommendation that the total left ring finger impairment was 1.87% and the total left little finger impairment was 0.57%.

The Policy also allows for a determination of impairment to a worker's nervous system based on clinical findings indicative of peripheral nervous system injuries. Table 16-3 of Schedule A to the Policy lists various categories of upper extremity impairments, the first of which is "Can use extremity for self care, grasping and holding; but has difficulty with finger dexterity," with a range of possible impairment ratings of 0 to 5%.

The WCB physiotherapy advisor's notes show that he tested the sensation in the worker's left ring and little fingers using a "standard Semmes-Weinstein monofilament sensory testing kit," and determined that the measured sensation deficits were sufficient to affect hand dexterity. The advisor went on to recommend a dexterity impairment rating of 1.00% for the combined effect of the sensation changes noted at the examination.

Following our file review on September 21, 2022, the panel requested clarification as to how the advisor arrived at a 1.00% rating, given the stated range of impairment was listed as being from 0 to 5%. In an October 14, 2022 memorandum written in response to that request, the WCB physiotherapy advisor provided a more detailed explanation of his findings and recommendation. Based on his findings, the physiotherapy advisor opined that the "decreased sensation to touch of the left ring and little fingers may impact function (dexterity) of the left hand beyond the loss of range of motion" and that an impairment rating at the lower range available should be recommended. In the circumstances, the panel is satisfied that appropriate measurements were taken in accordance with the Policy, and accepts the WCB physiotherapy advisor's findings and opinion that the worker was entitled to a dexterity impairment rating of 1.00%.

The panel has also considered the WCB physiotherapy advisor's assessment of a cosmetic impairment rating. The advisor's notes indicate that digital pictures were taken of scarring of the worker's left forearm and hand, and the scars were compared to the folio of images at the WCB. Based on his review, and in the exercise of his judgment, the physiotherapy advisor determined that the cosmetic impairment rating related to the scarring and the compensable injury was 1.00%.

Following our September 21, 2022 file review, the panel also requested clarification as to whether factors other than scarring, such as the reported positioning or bent form of the worker's ring and little fingers, was included in the cosmetic impairment rating. In his October 14, 2022 memorandum, the physiotherapy advisor noted that Section 9 of the Policy states that contractures resulting in loss of range of motion should be rated in accordance with the section on upper extremity impairments (Section 3), and stated that the changes in shape of the worker's fingers were accounted for in relation to the mobility impairments and related impairment rating, concordant with that provision. The WCB physiotherapy advisor went on to note that "The photos on file were reviewed and compared to the folio of images on file, and even if the position of the fingers were included as part of the cosmetic rating specific to changes in form and symmetry, the cosmetic rating would remain at 1%." The panel accepts the physiotherapy advisor's clarification and opinion in this regard, and is satisfied that the cosmetic impairment of 1.00% related to the compensable injury was appropriately determined.

Finally, the panel acknowledges the worker's submission with respect to the impact his hand injury and surgeries have had on his life, including the stress and anxiety he has experienced and the pain he has suffered and continues to suffer. The panel notes, however, that a permanent partial impairment award is specific in what it is intended to cover, and is not intended to compensate a worker for pain or suffering resulting from an injury.

In conclusion, the panel finds that the Act and WCB policy were properly applied in establishing the worker's permanent partial impairment rating. The panel therefore finds that the worker's permanent partial impairment rating of 4.44% has been correctly calculated.

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 3rd day of January, 2023