The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that:

1. The permanent partial impairment rating of 6.32% has been correctly calculated; and 

2. The monetary award for the permanent partial impairment of $8,580.00 has been correctly calculated.

A file review was held on April 5, 2023 to consider the worker's appeal.

Issue

1. Whether or not the worker's permanent partial impairment rating of 6.32% has been correctly calculated; and 

2. Whether or not the monetary award for the permanent partial impairment of $8,580.00 has been correctly calculated.

Decision

1. The worker's permanent partial impairment rating of 6.32% has been correctly calculated; and 

2. The monetary award for the permanent partial impairment of $8,580.00 has been correctly calculated.

Background

The worker has an accepted WCB claim for an injury to their left hand that occurred on July 30, 2019 when they cut the fingers on their left hand while at work. The accepted diagnosis for the injury was post near-amputations of left index, long, ring and small fingers. As a result of the workplace accident, the worker underwent a surgery to reattach the left index, middle, ring and little fingers, repair of the flexor digitorum profundus and flexor digitorum superficialis tendons on all fingers and repair of the radial and ulnar digital nerves to all fingers on July 30, 2019. He also underwent a tenolysis of the profundus and superficialis tendons of the left index, middle, ring and little fingers in January, 2020 and a tenolysis of the left middle finger flexor tendon on December 14, 2020.

After each of the surgeries, the worker attended for physiotherapy and occupational therapy and by January 28, 2021, the worker's treating surgeon advised the worker could return to their full regular duties. The WCB advised the worker on February 23, 2021, their entitlement to further wage loss ended and their file would be reviewed for a permanent partial impairment rating in December 2021, being one year after their last surgery. The worker requested reconsideration of the WCB's decision to end entitlement to wage loss benefits with Review Office upholding that decision on March 23, 2021.

The worker attended for a call-in examination with the WCB physiotherapy advisor on October 4, 2022. After examining the worker, the advisor placed their opinion to the worker's file on the same date. Digital photographs of the scarring on the worker's fingers were taken and compared to the folio of images on file at the WCB, with the WCB physiotherapy advisor opining the cosmetic impairment rating compared to those images was 1.00%. Next, active guided left and right index, middle, ring and little finger mobility testing was conducted. Calculations were made with a total finger impairment of 5.32% reached. A total impairment rating of 6.32% for the worker's permanent partial impairment rating was recommended by the WCB physiotherapy advisor. On October 7, 2022, the worker was advised of the calculated permanent partial impairment rating of 6.32% and a monetary award of $8,580.00. The WCB noted in the letter to the worker pursuant to the WCB's policies and regulations, the monetary award of $1,430.00 was paid for each full 1% of impairment, in accordance with subsection 38(2) of The Workers Compensation Act.

On October 24, 2022, the worker requested reconsideration of the WCB's decision on their permanent partial impairment rating and monetary award. The worker noted in their submission their hand was "not working properly" and believed they were entitled to a higher rating and award.

Review Office determined on November 28, 2022, the worker's permanent partial impairment rating of 6.32% and impairment award of $8,580.00 were correct. Review Office, after reviewing the folio of images, agreed with the WCB physiotherapy advisor's opinion of the rating of 1% for cosmetic impairment for the worker's finger scarring. Review Office found the advisor conducted the range of motion testing in accordance with the WCB's policies and agreed with the measurements and 5.32% rating. As such, Review Office further found the total impairment rating of 6.32% and related monetary impairment award of $8,580.00 was correctly calculated. Review Office acknowledged the worker's comments regarding the effects of their injury on their activities of daily living but noted there is no provision in the WCB's policies or regulations for a permanent partial impairment rating for those types of difficulties.

The worker filed an appeal with the Appeal Commission on January 18, 2023 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 and policies of the WCB's Board of Directors. As the date of injury is identified as July 30, 2019, 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.

Manitoba Regulation 132/2020, Adjustment in Compensation Regulation, made pursuant to the provisions of the Act, provides in Schedule A to that Regulation, that a permanent partial impairment award made in respect of an injury sustained in 2019 shall be $1,430 per full percentage point of impairment rating.

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.

Worker's Position

The worker was self-represented. The worker stated that he disagreed with the WCB’s assessment of his hand impairment as his hand was not working properly. He further stated that his left hand is working less than the impairment amount attributed to it and thus he should be paid a higher permanent partial impairment award.

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 and monetary award. The panel is unable to make that finding.

The worker suffered a compensable injury to his left hand and has undergone three surgical procedures as a result of his injuries. On May 13, 2022, 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 a WCB physiotherapy advisor, who opined that he had a total permanent partial impairment rating of 6.32%. 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 October 4, 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 index, middle, 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 index, middle, ring and little finger. 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 left index finger impairment was 2.19%, the left middle finger impairment was 1.40%, the left ring finger impairment was 0.88% and the left little finger impairment was 0.85%.

The WCB physiotherapy advisor's notes show that he tested the sensation in the worker's fingers also using a "standard Semmes-Weinstein monofilament sensory testing kit," and determined that all distal fingers tested normal to the 2.83 monofilament to the volar aspect of the fingers. Accordingly, the advisor did not recommend a dexterity impairment rating for sensation changes.

Following our file review on April 5, 2023, the panel reviewed the WCB physiotherapy advisor’s calculations with respect to finger impairment. Although the worker did not dispute the specific measurements and calculations relied upon by WCB to determine the worker's permanent partial impairment award, the panel reviewed them to ensure their accuracy. The panel accepts that the calculations used and methodology applied are consistent with the Act and policies of the WCB. While the WCB physiotherapy advisor made reference to the application of the Combined Values Chart on page 60 of Schedule A to the Policy in his assessment report of October 4, 2022, the panel notes that the application of this schedule had no impact on the total calculation used to determine the worker's permanent partial impairment award. Accordingly, the panel accepts the WCB physiotherapy advisor's findings and opinion that the worker was entitled to a total finger impairment of 5.32%.

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 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%. The panel accepts the physiotherapy advisor's opinion in this regard and is satisfied that the cosmetic impairment of 1.00% related to the compensable injury was appropriately determined.

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 6.32% has been correctly calculated. The worker received an impairment award based on that rating in an amount of $8,580. This award is consistent with the provisions of the Act and Regulations that provide for an award of $1,430 for each full percentage of impairment for a permanent partial impairment arising out of an accident occurring in 2019.

The worker's appeal is dismissed.

Panel Members

N. Smith, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

- Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 1st day of May, 2023