The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his 3.00% permanent partial impairment rating and $4,500.00 monetary award have been correctly calculated. A file review was held on March 2, 2023 to consider the worker's appeal.

Issue

Whether or not the worker's 3.00% permanent partial impairment rating and $4,500.00 monetary award have been correctly calculated.

Decision

The worker's 3.00% permanent partial impairment rating and $4,500.00 monetary award have been correctly calculated.

Background

The worker has an accepted WCB claim for an injury to his right index finger that occurred at work on March 17, 2021, when he slipped on ice and fell, and the object he was carrying landed on his hand. The worker was taken to a local hospital immediately after the incident and x-rays were taken. The treating physician noted the worker had a "sever (sic) crush wound of right finger" and diagnosed the worker with a "compound fracture of second phalanx." The x-rays showed "…an oblique fracture through the mid shaft of the middle phalanx of the index finger with overriding of the bony fragments in the impaction. No other injury is seen."

The worker underwent surgery on March 22, 2021 to repair the fracture, and was referred for occupational therapy and a splint. The worker returned to modified duties by March 23, 2021, continued to attend occupational therapy and physiotherapy, and was cleared to return to his regular work duties on September 23, 2021.

On April 20, 2022, a WCB medical advisor reviewed the worker's file. The medical advisor opined that the worker was at maximum medical improvement and would be assessed for a possible permanent partial impairment based on a cosmetic rating and mobility deficits of the right index finger.

The worker attended a call-in examination with the WCB medical advisor on July 5, 2022. Digital images were taken of the scarring and change in form and symmetry of the worker's right index finger. It was noted that the numbness at the tip of the right index finger was included in the rating for disfigurement, which was assessed at 2.00% whole person impairment. Active guided left and right index finger mobility was measured and the index finger mobility impairment was determined to be 1.00%. The WCB medical advisor therefore recommended a total permanent partial impairment rating of 3.00% whole person impairment. On July 8, 2022, the WCB advised the worker that he was entitled to a permanent partial impairment rating of 3.00%, which amounted to a monetary award of $4,500.00.

On July 14, 2022, the worker requested that Review Office reconsider the permanent partial impairment rating and award. The worker noted the injury he sustained as a result of the March 17, 2021 workplace accident was permanent and would affect him for the rest of his life. The worker further noted difficulties with his index finger when working in cold temperatures, which was part of his job. In a further submission dated July 19, 2022, the worker noted that the end of his right index finger was basically dead, and it was hard to deal with long days as the power and mobility were no longer there. On August 25, 2022, the employer's representative provided a submission in support of the WCB's calculation of the degree of permanent partial impairment and associated monetary award.

On September 9, 2022, Review Office determined that the worker's permanent partial impairment rating of 3.00% and award of $4,500.00 were correct. Review Office accepted the measurements and calculations provided by the WCB medical advisor and found the permanent partial impairment examination was conducted in accordance with the WCB's policies and regulations. Review Office acknowledged the worker's concerns about the impact of the compensable injury on his activities and work, but noted there were no provisions in the WCB's Act or Board policies for those difficulties, as they were not measurable or included in the schedule for impairments. Review Office further determined that the amount of the monetary award was correctly calculated.

On November 8, 2022, 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 and policies of the WCB's Board of Directors. The applicable legislation is the Act as it existed at the date of accident of March 17, 2021.

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 dollar amount in that formula is adjusted on an annual basis pursuant to the Adjustment in Compensation Regulation (the "Regulation").

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, and provided a written submission in support of his appeal.

The worker's position was that the award of $4,500.00, being the equivalent of essentially one week's pay, was a very small amount to compensate him for a lifetime of having to live with his injury.

The worker submitted that while his injury was not debilitating to the point that he could not work, it affected his performance at work and his quality of life. The worker noted that he still does not have complete range of motion, even with the measurement findings, and submitted that other factors should be taken into consideration, such as mental anguish due to his deformity, loss of feeling in his whole fingertip, and loss of the proper use of his finger.

With respect to the effect his injury has had on his work and his performance at work, the worker noted that he still cannot feel the end of his finger, which affects things like using tools, typing, writing, and even such small things as reaching into his pocket. He cannot stay outside for long periods of time in cold weather without his finger freezing, and his finger freezes immediately when operating machinery without cabs, using steel tools, or preparing steel pipe or rigging properly. The WCB provided him with heated gloves to combat the cold, but the batteries overheated and severely burned his wrist. The worker said he is looking for other work because of these issues, but noted that this costs money and is not easy, and he does not think this is fair after so many years of education and experience, and the connections he has made in his chosen field.

The worker noted the effect his injury has had not only on his work duties, but also on his personal life. He said he is an avid outdoorsman, who has enjoyed hunting and ice fishing since a young age, and his injury has severely impacted his ability to be in the field and to pursue his favourite pastimes.

The worker also stated that he is heavily pre-occupied with the appearance of his finger, which he described as being "gross and disfigured." The worker said it weighs on his mind how it looks to other people, and noted he is constantly looking at it and rubbing it to try and get more feeling back.

Employer's Position

The employer was represented by a disability management consultant, who provided a written submission on behalf of the employer.

The employer's position was that while they were sympathetic to the worker, they agreed with the WCB's decision, which was made in strict accordance with the Act and WCB policy.

The employer's representative submitted that there is no evidence the WCB failed to correctly apply the provisions of the Act and WCB policy in measuring the permanent partial impairment rating and assigning a monetary award based on that rating.

The representative noted the worker attended a call-in assessment and examination with the WCB medical advisor. The medical advisor measured mobility using a goniometer, as is standard practice, and calculated the loss of mobility in the index finger at 1.00%. The representative noted that pictures were taken of the right index finger and compared to the WCB's folio of images, and submitted that the cosmetic impairment rating of 2.00% whole person impairment was in keeping with previous cases on file. The combined rating therefore totaled 3.00% as it related to the whole body. It was submitted that the monetary award of $4,500.00 was provided in accordance with subsection 38(2) of the Act and the Regulation.

The employer's representative acknowledged the worker's position that the impairment award was too small, and that the injury had caused him mental anguish and interfered with his personal activities. The representative submitted, however, that there are no provisions in the Act or policy for an impairment award due to changes in quality of life, pain or suffering.

In conclusion, the representative submitted that there is no evidence the PPI assessment was not done properly, appropriate measurements were not made, or the provisions of the Act and WCB policy were not followed, and the worker's appeal should be dismissed.

Analysis

The issue before the panel is whether or not the worker's 3.00% permanent partial impairment rating and $4,500.00 monetary award have been correctly calculated. For the worker's appeal to be successful, the panel must find that the WCB did not correctly apply the provisions of the Act, regulations and WCB policy in calculating the worker's degree of permanent partial impairment and associated monetary award in this case. The panel is unable to make that finding, for the reasons that follow.

The worker has an accepted claim for an injury to his right index finger. 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 medical advisor who performed the permanent partial impairment assessment. The notes show that the medical advisor measured and calculated the total degree of impairment in respect of range of motion for the worker's right index finger as compared to the worker's left index finger. The panel is satisfied that the advisor 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 the calculation of a total right index finger loss of mobility rating of 1.00% is correct.

With respect to the cosmetic or disfigurement assessment, the WCB medical advisor's notes show that he examined the worker and documented there was "Well healed scarring with loss of tissue bulk of the area of the distal phalanx of the right index finger," a "fixed flexion contracture of the right index finger DIP (distal interphalangeal) joint" and "Numbness…of the right index finger fingertip." Digital pictures were taken of the scarring and change in form and symmetry of the right index finger and placed on file. The medical advisor expressly noted that the numbness at the tip of the right index finger was included in the rating for disfigurement. Based on his assessment and in the exercise of his judgment, the WCB medical advisor concluded that the disfigurement impairment related to the compensable injury was 2.00% whole person impairment.

Combining the loss of mobility rating of 1.00% with the cosmetic rating of 2.00%, the WCB medical advisor arrived at a total recommended permanent partial impairment rating of 3.00%, which was subsequently approved by the WCB's Compensation Services. The panel is satisfied that the WCB medical advisor's assessment was conducted in accordance with the process that is set out in the Policy and accepts the medical advisor's conclusion in this regard.

The panel has also reviewed the calculation of the monetary amount of the permanent partial impairment award and finds that it has been correctly calculated at $4,500.00 ($1,500.00 for each full 1.00% of impairment), in accordance with the formula in subsection 38(2) of the Act, as adjusted pursuant to the Regulation.

In arriving at our decision, the panel acknowledges the worker's submission with respect to the impact the injury to his finger has had on his life, including mental anguish due to his deformity and ongoing difficulties in his work and daily life, particularly when he is exposed to the cold. The panel notes, however, that an impairment award is not related to, or intended to compensate a worker for, changes in quality of life, or mental anguish, pain or suffering resulting from an injury.

Based on the foregoing, the panel finds that the WCB correctly applied the provisions of the Act, regulations and WCB policy in calculating the worker's degree of permanent partial impairment and associated monetary award in this case. The panel therefore finds that the worker's 3.00% permanent partial impairment rating and $4,500.00 monetary award have 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 1st day of May, 2023