Decision #123/23 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that their permanent partial impairment rating of 6.88% and the monetary award of $7,380.00 as established in May 2014 have been correctly calculated. A file review was held on November 2, 2023 to consider the worker's appeal.
Whether or not the worker's permanent partial impairment rating of 6.88% and the monetary award of $7,380.00 as established in May 2014 have been correctly calculated.
The worker's permanent partial impairment rating of 6.88% and the monetary award of $7,380.00 as established in May 2014 have been correctly calculated.
This claim has been the subject of a previous appeal. Please see Appeal Commission Decision No. 23/19, dated February 15, 2019. The background will therefore not be repeated in its entirety.
The worker reported to the WCB that on December 5, 2012, they slipped on ice at their job site and fell on their right wrist, breaking it. The worker was taken to the local emergency room where a diagnosis of a distal radial fracture was made and a cast was placed on the right wrist. The worker attended a clinic on December 7, 2012, where they were diagnosed with a distal radius fracture and ulnar collateral ligament sprain. The cast was changed and it was recommended they remain off work until December 14, 2012.
On February 6, 2013, the worker returned to see the sports medicine physician and noted increased symptoms. A second treating sports medicine physician referred the worker for an MRI study of their right wrist and thumb, which MRI indicated "High-grade partial thickness tearing of the ulnar collateral ligament of the first metacarpophalangeal joint. Mild sprain of the radial collateral ligament." The worker was referred to a plastic surgeon who specialized in hands on June 26, 2013 who recommended a trial of physiotherapy, after which they would reassess the worker. On August 21, 2013, the worker attended for a reassessment with the plastic surgeon who discussed various options for treatment with the worker, including surgery. At that time, the worker was reluctant to proceed with surgery.
At the request of the worker, the worker's file was reviewed by a WCB medical advisor to determine if the worker was at maximum medical improvement on April 30, 2014. It was noted by the WCB medical advisor the August 21, 2013 treating plastic surgeon's report provided two treatment options for the worker: conservative treating involving continued observation and surgery. The worker opted not to pursue surgery and therefore, the WCB medical advisor opined the worker was likely at maximum medical improvement and recommended a further examination to determine the worker's eligibility for a permanent partial impairment rating.
The worker attended for a permanent partial impairment call-in examination with a WCB medical consultant on May 20, 2014. The consultant began the examination noting "Deformity of the right thumb MP (metacarpophalangeal) joint as compared to the left was noted." Digital photographs of the worker's right thumb were taken and the WCB medical consultant provided the cosmetic impairment rating related to the compensable injury was 1.0%. Next, passive left and right wrist and thumb mobility testing was conducted with the consultant providing impairment ratings of 2.8% for the worker's right wrist and 3.08% for the worker's right thumb. A total combined rating of 6.88% was calculated. On May 22, 2014, the worker was advised of their permanent partial impairment rating of 6.0%, with the WCB noting impairment ratings are paid for each full 1% of impairment, and monetary award of $7,380.00.
The worker requested reconsideration of their permanent partial impairment rating and monetary award to Review Office on June 2, 2014, noting in their request, their belief the cosmetic deformity or scarring portion of the impairment was not awarded. Review Office returned the worker's file to the WCB's Compensation Services on June 3, 2014 to request they write to the worker to provide detailed clarification of the permanent partial impairment rating. On June 5, 2014, the WCB provided the worker with a letter setting out each of the ratings used to calculate their permanent partial impairment rating. On June 16, 2014, the worker resubmitted their request for reconsideration to Review Office further noting their belief they were entitled to a higher permanent impairment rating due to the visible deformity of their hand.
On August 11, 2014, Review Office determined the worker's permanent partial impairment rating of 6.88% and monetary award of $7,380.00 was calculated correctly. Review Office accepted and agreed with the WCB medical consultant's opinion and calculations for loss of passive range of motion in the worker's right thumb and found the rating and award to be correct.
The worker filed an appeal with the Appeal Commission on May 8, 2023 and a file review was arranged.
Applicable Legislation and Policy
The Appeal Commission is bound to follow The Workers Compensation Act (the “Act”) and the policies established by the WCB’s Board of Directors. The Act in effect on the date of the worker's claim of accident is applicable. In this case, the worker is appealing the WCB’s calculation of their permanent partial impairment award.
Section 4(1) of the Act provides that the board may award compensation for an impairment that does not result in a loss of earning capacity. 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.
The method for calculating compensation for impairment is set out in section 38 of the Act. Subsection 38(1) of the Act states that the board shall determine the degree of a worker’s impairment expressed as a percentage of total impairment and subsection (2) further sets out the amount that shall be paid to the worker as an impairment award based on percentage of total impairment. The dollar amount in that formula is adjusted on an annual basis pursuant to the Adjustment in Compensation Regulation (the "Regulation").
WCB Policy 44.90.10, Permanent Impairment Rating (the “Policy”) applies to all impairment ratings or re-ratings, except for impairment to hearing, conducted on or after January 1, 2023. Permanent Impairment is evaluated by the WCB through medical examination of the worker or by review of the medical information documented on the claim file. The Policy describes how permanent impairment ratings are calculated as a percentage of impairment as it relates to the whole body. The schedule to the Policy sets out how impairment ratings are determined. The schedule sets out that permanent impairment is measured by the following factors: loss of a part of the body; loss of mobility in the joints; loss of function of any organs of the body identified in the schedule; and cosmetic deformity of the body.
The policy sets out that whenever possible and reasonable, impairment ratings will be established strictly in accordance with the schedule. In order to maintain consistency in ratings for disfigurement, and to make the ratings as objective as possible, the WCB will make reference to a folio of disfigurement ratings established in previous cases.
Impairment awards are calculated by determining a rating that represents the percentage of impairment as it relates to the whole body. The award is not related to loss of earning capacity, and it is not intended to compensate a worker for any pain or suffering flowing from an injury. The rating calculation does assess loss of functional ability by measuring loss of range of motion.
The Act further provides the following at section 38(6):
A worker who is determined under this section to have an impairment and who suffers a significant deterioration of his or her medical condition, may apply to the board to reconsider the worker's degree of impairment and, where the reconsideration results in a change in the percentage of the impairment, the board shall treat the reconsideration as though it were an initial determination under this section.
A worker may apply for reconsideration of their degree of impairment 24 months after a decision by the WCB or the Appeal Commission.
The worker submitted their position on the Appeal of Claims Decision form May 3, 2023 and through written submissions by way of letters dated April 3, 2023, April 20, 2023 and October 17, 2023.
The worker has requested a reconsideration of the permanent partial impairment rating and stated that he is seeking a more current examination and just compensation. The worker submitted that the deformity from the injury affected him physically and psychologically. The worker submitted that the deformity has gotten visibly worse overtime.
The worker indicated that he suffered a wrist and thumb injury and that his right thumb became visibly deformed following the injury. The worker incident report states that the worker slipped on ice at his work unit and fell on his right wrist, breaking it.
The employer did not participate.
The issue before the panel is whether or not the worker’s permanent partial impairment (“PPI”) rating of 6.88% and monetary award of $7,380.00 as established in May 2014 have been correctly calculated. For the worker’s appeal to be successful, the panel must find, on a balance of probabilities, that the 6.88% rating and monetary award of $7,380.00 was inaccurate. The panel was unable to make that finding for the reasons that follow.
The panel notes that the schedule to the Policy sets out that the impairment rating for loss of range of motion resulting from direct injury or related surgical procedures will be determined by the WCB based on loss of active guided movement of the affected joint(s). The schedule to the Policy includes the specific stages for rating the loss of movement of a finger, thumb or hand. The schedule provides that there is a four-stage process for rating loss of movement of a finger, thumb or hand. While the worker submitted they should be entitled to a higher permanent impairment rating they did not provide any specific information that the measurements and calculations relied on by the WCB to determine the impairment rating were incorrect. The panel accepts the range of motion findings set out in the PPI examination conducted by the WCB Medical Consultant. As a result, the panel accepts the determination that the PPI award of 6.88% is appropriate and consistent with the Policy and schedule.
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 $7,380.00 ($1,230.00 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.
The panel notes that the worker has reported that their medical condition has deteriorated. The panel acknowledges the worker reports that the deformity has caused the worker to experience physical and psychological pain; however, PPI awards are not intended to provide compensation for pain and suffering. The worker has the ability under section 38(6) to re-apply and provide any necessary information to support a significant deterioration should that be the case. In order for the issue of whether significant deterioration has occurred to be considered that issue must first be raised with the WCB. That issue is not properly before this panel.
The worker’s appeal is denied.
R. Lemieux Howard, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
R. Lemieux Howard - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 17th day of November, 2023