Decision #44/23 - Type: Workers Compensation
Preamble
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that there was no entitlement to a Permanent Partial Impairment Award. A teleconference hearing was held on February 28, 2023 to consider the worker's appeal.
Issue
Whether or not the worker is entitled to a Permanent Partial Impairment Award.
Decision
The worker is not entitled to a Permanent Partial Impairment Award.
Background
The worker has an accepted claim for an injury to his right middle finger that occurred at work on February 26, 2018 when he was unloading a heavy object that shifted, causing his finger to twist. The worker's initial diagnosis was a right middle finger strain. Following a functional capacity evaluation ("FCE") and a call-in examination with a WCB plastic surgery consultant on November 7, 2018, the diagnosis was updated to a right middle finger sprain with partial tearing of the volar plate, ulnar collateral ligament, and dorsal capsule at the metacarpophalangeal ("MCP") joint. The WCB plastic surgery consultant also noted on November 7, 2018 that a May 23, 2018 MRI showed degenerative findings consistent with arthritis at the 3rd MCP joint, with osteophytes and chondromalacia, and opined that those degenerative findings likely pre-existed the workplace injury.
Due to ongoing complaints, the worker was seen by an orthopedic surgeon, who recommended he undergo a right middle finger MCP joint contracture and extensor tenolysis, which surgery was performed on January 14, 2020. The Operative Note from that surgery indicated that the worker also underwent debridement of dorsal osteophytes on the metacarpal head of the 3rd finger at that time.
The worker participated in physiotherapy post-surgery, but continued to complain of pain, stiffness, and some instability around the right middle finger MCP joint, as well as difficulty gripping. On August 19, 2020, the worker's treating orthopedic surgeon offered to arrange a second consult with a hand specialist, which took place on November 2, 2020. The hand specialist reviewed the diagnostic imaging for the worker and opined that the worker had "…an arthritic third finger MCP joint" and recommended a "…pyrocarbon MCP joint arthroplasty."
On January 11, 2021, the worker's file was again reviewed by the WCB plastic surgery consultant, who opined that it was likely the accepted diagnosis aggravated the pre-existing osteoarthritis at the right middle finger MCP joint. The consultant noted that in discussion with the worker's WCB case manager, an aggravation of the right middle finger MCP joint arthritis would be accepted as part of the worker's claim, and the proposed MCP joint arthroplasty would be approved.
By letter dated January 12, 2021, the WCB approved the proposed surgery, and the MCP joint arthroplasty was performed on April 20, 2021. The worker attended post-surgery physiotherapy, and by November 8, 2021, the treating orthopedic surgeon was reporting that the worker had slightly improved range of motion and a stable MCP joint, with no complications noted on his x-rays.
The WCB referred the worker for a further FCE, which took place on December 2, 2021, and on February 7, 2022, permanent restrictions were identified, consisting of:
• Dexterity, fingering, right, left and bilateral, on a frequent basis;
• Dexterity, handling, left and bilateral on a frequent basis;
• Dexterity, handling, right, on an occasional basis;
• Dexterity, hand tool test, bilateral, on an occasional basis;
• Carrying, bilaterally, up to 20 lbs on a frequent basis;
• Carrying, right, up to 10 lbs on a constant basis;
• Carrying, left, up to 20 lbs on a constant basis;
• Lifting, waist to shoulder, up to 20 lbs on an occasional basis and up to 10 lbs on a frequent basis;
• Lifting, floor to waist, up to 20 lbs on an occasional basis and 10 lbs on a frequent basis;
• Lifting, floor to shoulder, up to 10 lbs on an occasional basis, and
• Lifting, shoulder to overhead, up to 10 lbs on a frequent basis.
It was noted that occasional was defined as 0-33% of the workday, frequent was defined as 34-66% of the workday, and constant was defined as more than 66% of the workday.
The worker's file was then referred to a WCB physiotherapy advisor to determine if the worker was eligible for a permanent partial impairment ("PPI") rating and award. On February 15, 2022, a WCB physiotherapy advisor reviewed the worker's file, and noted the worker would likely be at maximum medical improvement by the time a PPI examination could be booked, and his active guided left vs right middle finger mobility and cosmetic impairment should then be evaluated for a PPI rating. The WCB physiotherapy advisor further noted that there was considered to be a probable major pre-existing condition related to the PPI.
On July 28, 2022, the worker attended a call-in examination with the WCB physiotherapy advisor to determine the PPI rating resulting from the February 26, 2018 workplace accident. In his notes of that examination, the physiotherapy advisor indicated that digital pictures were taken of the scarring on the worker's right middle finger, then compared to the folio of images on file with the WCB, and it was determined there was no cosmetic impairment related to the workplace injury. Active guided left and right middle finger mobility measurements were taken, and the WCB physiotherapy advisor calculated a 0.70% total middle finger impairment based on those measurements. The WCB physiotherapy advisor went on to consider the worker's pre-existing degenerative condition and noted that this would be considered to be a major pre-existing condition and the rating would therefore be reduced by 50%, resulting in a total recommended PPI rating of 0.35%. On August 9, 2022, the WCB advised the worker that they had determined he was not entitled to a PPI award as he did not have a ratable permanent impairment.
On August 31, 2022, the worker requested that Review Office reconsider the WCB's decision. The worker submitted that the workplace injury was negatively impacting his life on a daily basis and he continued to experience pain and swelling. He noted he could not grab onto items or make a fist and had difficulty performing simple tasks such as cooking, cleaning and mowing the lawn.
On September 29, 2022, Review Office determined that there was no entitlement to a PPI award. Review Office found the calculations provided by the WCB physiotherapy advisor were correctly done in accordance with the process set out in the WCB's policies, and agreed with the WCB physiotherapy advisor's opinion that the worker did not have a ratable cosmetic impairment. Review Office further agreed that there was a major pre-existing condition in relation to the PPI which resulted in pro-rating the rating by 50%, and a total rating of 0.35%. Review Office noted that the legislation does not allow for a PPI award when the rating is less than 1%, and the worker was therefore not entitled to a PPI award.
On October 31, 2022, the worker appealed the Review Office decision to the Appeal Commission and an oral hearing was arranged.
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 February 26, 2018, 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.
The Policy further provides that if a worker has a pre-existing condition, the worker is eligible for an impairment rating based on the difference between the total rating and the rating assigned to the pre-existing condition. The Policy provides that the WCB Healthcare Advisor will assign a fair rating to the pre-existing condition based on the best information available, and states in part, in section 2.3.1 of Schedule A, that:
When it is reasonable to do so, the assigned rating for the pre-existing condition will be based on the Schedule. However, when this is not practical, the impairment rating assigned to the pre-existing condition will be determined as follows:
i. A pre-existing condition that is determined to be minor will be assigned a 0% impairment rating;
ii. A pre-existing condition that is determined to be major will be assigned an impairment rating equivalent to 50% of the impairment rating for that structure.
A pre-existing condition is considered to be major for the purpose of the PPI determination if:
i. The impairment was/is significantly affected by the pre-existing condition; or
ii. The diagnosis accepted by the WCB was adjudicated as an enhancement of a pre-existing condition…
Worker's Position
The worker appeared on his own behalf, and was assisted by a family member at the hearing. The worker made a submission at the hearing, and he and his family member responded to questions from the panel.
The worker's position was that he altogether disagrees with the WCB physiotherapy consultant's assessment. He said he believes he has a significant permanent impairment and significant disfigurement as a result of the workplace injury, and he should be entitled to a permanent partial impairment award.
The worker submitted that he has limited range of mobility in his right hand as a result of his injury. He is not able to make a complete fist and has difficulty gripping things. He is right-hand dominant, and even though he tries not to use his right hand, he has to use it to do daily tasks. He noted that his hand gets even more swollen when he uses it.
He stated that he has suffered from continual pain, swelling, stiffness, numbness, and sensitivity to cold in his right hand since his injury. He noted that he did not experience these symptoms prior to the accident, and does not experience them in his non-injured left hand. The worker said you can hear a constant clicking sound when he moves his right middle finger, which is quite aggravating.
The worker submitted that his hand is also clearly disfigured. His middle finger points down when his hand is extended, and he has a large hump over the knuckle which affects his life and makes him look disfigured. He cannot stretch his hand as he did before his injury, and his hand is crooked and deformed.
The worker states that he has had a really hard time since his injury. He noted that the orthopedic surgeon, who operated on his hand twice, and his treating physiotherapists, have all said there is not much more they can do to repair the damage he has suffered as a result of his injury. He noted that the injury has also affected him financially in many ways, and will continue to do so in the future.
The worker further stated that he did not believe he had a major pre-existing condition prior to the workplace injury. It was noted that even if he did have some arthritis previously, there was no issue with it, and the injury clearly made it a lot worse.
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 policies were not correctly applied in this case. The panel is unable to make that finding, for the reasons that follow.
With respect to an injury to an upper extremity, including the hand and 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 range of motion is to be determined through clinical examination or the medical information on file. The methodology for determining the impairment rating for loss of range of motion is set out at pages 5 to 19 of the Policy.
The panel has reviewed the notes of the WCB physiotherapy advisor who performed the PPI assessment. The notes show that the advisor measured and calculated the total degree of impairment in respect of range of motion for the worker's right middle finger. The panel finds that the advisor appears to have examined the worker and made the appropriate measurements, correctly applying the methodology and criteria set out in the Policy. The panel has also reviewed the calculations themselves and finds that they are correct.
With respect to the assessment for cosmetic disfigurement, the WCB physiotherapy advisor's notes indicate that digital pictures were taken of the scarring of the worker's right middle finger and compared to the folio of images at the WCB. Based on his assessment, and in the exercise of his judgment, the WCB physiotherapy advisor concluded that there was no ratable cosmetic impairment related to the compensable injury. The panel is satisfied that the advisor's assessment was conducted in accordance with the process which is set out in the Policy, and accepts the advisor's conclusion of no ratable cosmetic impairment.
In his appeal form and at the hearing, the worker referred to a number of other ongoing concerns, issues or limitations which have resulted from his right middle finger injury, including pain and swelling, loss of income, difficulty gripping or grasping things and making a fist, and limited mobility, function and use of his right hand. The panel acknowledges the worker's concerns, but is unable to find that such issues or limitations are identified in the Policy as elements that are to be assessed in determining a PPI rating and award.
In particular, the panel notes that the PPI award is not intended to compensate a worker for any pain or suffering, or loss of income flowing from an injury. With respect to mobility, the panel notes that the rating calculation under the Policy does assess functional ability, by measuring and calculating the loss of range of motion. That calculation represents the percentage of permanent impairment of whole body function due to the compensable injury. It therefore includes any change in function or loss of mobility or use of the right middle finger and hand.
The worker also disagreed with the reduction of his impairment rating by 50% due to the presence of a major degenerative condition. Based on our review and consideration of the medical information on file, the panel accepts and agrees with the WCB physiotherapy advisor's determination that the worker's pre-existing degenerative condition should be considered to be major for the purpose of the PPI determination. The panel is further satisfied that the worker's PPI rating for loss of range of motion was properly reduced by 50%, from 0.70% to 0.35%, based on the presence of that major pre-existing degenerative condition and in accordance with the Policy.
The panel notes that even if the degenerative condition was considered to be minor, such that there would be no reduction in the impairment rating, the worker's 0.70% rating was still less than the minimum or threshold requirement for a full 1.0% rating for a monetary award under subsection 38(2) of the Act.
In conclusion, the panel finds that the Act and Policy were correctly applied in this case and the permanent partial impairment rating of 0.35% was correctly established. As that rating does not meet the minimum or threshold of a full 1.0% rating under the Act, the panel finds that the worker is not entitled to a Permanent Partial Impairment Award.
The worker's appeal is therefore dismissed.
Panel Members
M. L. Harrison, Presiding Officer
D. Rhoda, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
M. L. Harrison - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 28th day of April, 2023