The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

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

1. Their permanent partial rating of 1% has not been correctly established; and 

2. The monetary award for the impairment rating has not been correctly calculated.

A file review was held on December 4, 2023 to consider the worker's appeal.

Issue

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

2. Whether or not the monetary award for the impairment rating has been correctly calculated.

Decision

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

2. The monetary award for the impairment rating has been correctly calculated.

Background

The worker has an accepted WCB claim for injuries they sustained on April 29, 2022 to their forehead and right knee. On their Worker Incident Report dated May 4, 2022, the worker described leaving an area at work and walking into a cart, striking their forehead. The worker noted they were taken to an emergency department and received 6 stitches to close the wound on their forehead. A Doctor’s Progress Report provided to the WCB on June 8, 2022 indicated the worker had returned to their full regular duties on May 4, 2022.

In a telephone discussion with the worker on July 12, 2022, the WCB advised the worker their claim would be reviewed one year from the date of accident to determine if the worker was entitled to a permanent partial impairment rating. On March 14, 2023, the worker contacted the WCB to schedule their permanent partial impairment examination. The WCB advised the worker their claim would be transferred to a WCB case manager, who would contact them regarding the permanent partial impairment examination. The WCB case manager spoke with the worker on March 16, 2023 and confirmed that as the permanent partial impairment review would be for scarring only, an examination would not be necessary and advised they would contact the worker in one month to request digital photographs.

On April 24, 2023, the WCB case manager requested a WCB medical advisor review digital photographs being submitted by the worker to determine their eligibility for a permanent partial impairment rating and award. The digital photographs were submitted by the worker on May 4, 2023. A WCB physiotherapy consultant placed their opinion to the worker’s file on May 23, 2023. The consultant noted the worker’s diagnosis with respect to the April 29, 2022 workplace accident was a forehead laceration and quad contusion, treated with 6 stitches. The physiotherapy consultant opined the worker was likely at maximum medical improvement and did not have any major pre-existing conditions related to the permanent partial impairment. The digital photographs were compared to the folio of images on file at the WCB, with the WCB physiotherapy consultant recommending a 1% impairment rating for the worker’s cosmetic impairment. On May 26, 2023, the worker was advised the WCB had determined a permanent partial impairment rating for the worker of 1% and provided the worker with the related monetary award.

The worker requested reconsideration of the WCB’s decision on their permanent partial impairment rating and monetary award to Review Office on June 5, 2023. The worker noted they were unable to cover up the scarring as it was on their forehead and was visible to their staff and other people and as such, they requested consideration be given to a higher rating and monetary award. On July 18, 2023, the worker contacted Review Office to advise of an upcoming medical appointment and requested Review Office wait to make a decision on their request until the information from that appointment was received. On August 1, 2023, Review Office received a copy of a July 25, 2023 report from the worker’s treating physician noting the worker’s scar sustained as a result of the workplace accident measured 2mm x 20mm, was “…very apparent” and was not something that could be easily covered.

Review Office determined the worker’s permanent partial impairment rating of 1% and monetary award were correct on August 2, 2023. Review Office accepted and agreed with the rating calculated by the WCB’s physiotherapy consultant after comparison with the folio of images on file at the WCB and noted the consultant’s assessment was conducted in accordance with the WCB’s policies and regulations.

The worker filed an appeal with the Appeal Commission on August 15, 2023 and a file review was arranged. Following the hearing, the appeal panel requested additional medical information prior to discussing the case further. The requested information was later received and was forwarded to the interested parties for comment. On April 25, 2024, the appeal panel met further to discuss the case and render its final decision on the issues under appeal.

Reasons

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 or rating was not equitable because an individual with a scar that is not visible or a scar that can be covered with clothes would have received the same amount in compensation as an individual with a scar in a prominent position, such as the worker’s forehead.

The worker argues that due to their scar, they have been subjected to questioning from their staff or members of the public as to what caused the scar, and that they were subjected to ‘being used as humor by others’. These experiences, the worker argues, should be considered in assessing the worker’s permanent disfigurement rating.

Employer's Position

The employer did not participate.

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 April 29, 2022.

The relevant sections of the Act are as follows:

Compensation payable out of accident fund 

4(1) Where, in any industry within the scope of this Part, personal injury by accident arising out of and in the course of the employment is caused to a worker, compensation as provided by this Part shall be paid by the board out of the accident fund, subject to the following subsections.

Compensation for impairment 

4(9) The board may award compensation in respect of an impairment that does not result in a loss of earning capacity.

Determination of impairment 

38(1) The board shall determine the degree of a worker's impairment expressed as a percentage of total impairment.

Calculation of impairment award 

38(2) Where the board determines that a worker has suffered an impairment, the board shall pay to the worker as a lump sum an impairment award in the following amount, for an impairment that is determined by the board to be

(a) 1% or greater but less than 30%: $1,030. for each full 1% of impairment;

(b) 30% or greater: $30,900. plus $1,240. for each full 1% of impairment in excess of 30%.

The dollar amounts in s 38(2) are adjusted on an annual basis pursuant to the Adjustment in Compensation Tables.

WCB Policy 44.90.10, Permanent Impairment Rating (the PPI Policy) provides a method for determining the entitlement rating arising out of an injury or disfigurement. The PPI Policy provides that the degree of impairment will be established by the WCB's Healthcare Services Department in accordance with the PPI Policy, and that whenever possible and reasonable, impairment ratings will be established strictly in accordance with the PPI Schedule which is attached as Schedule A to the Policy.

A PPI rating for disfigurement is assessed pursuant to section 9 of Schedule A to the policy, which provides as follows:

The rating for disfigurement is done by the WCB and the degree of disfigurement is determined on a judgmental basis. The maximum rating for disfigurement, in extreme cases, is 25%. Typical ratings for disfigurement are between 1 and 5%. [emphasis added]

Analysis

The issue before the panel is whether or not the worker's 1.00% permanent partial impairment rating and $1,560.00 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, and the PPI Policy in calculating the worker's degree of permanent partial impairment (“PPI”) and associated monetary award. The panel is unable to make that finding, for the reasons that follow.

The worker has an accepted claim for an injury to his forehead which required six stitches as a result of the worker walking into a linen cart. The disfigurement was assessed, and the worker provided digital photographs for a virtual review of the worker's scaring. The worker had no pre-existing conditions affecting the PPI rating.

The panel requested further information from the WCB’s Healthcare Services Department on the criteria and consideration they used in assessing the worker’s PPI ratings.

In response to the panel’s request for additional medical information the WCB Healthcare Advisor confirmed that the photos that the worker provided were used to assess the cosmetic impairment and that all photos on file were concordant with a 1.00% impairment rating, related to the WCB injury on this claim.

In particular, the WCB Healthcare advisor provided the following in their response:

“To achieve a minimum of a 1.00 % scar on the face, the scar would have to be visible on ordinary observation. For example, [the worker’s]'s scar meets the minimum threshold of a 1.00% cosmetic impairment, however it does not approach 2.00%. A similar scar, other than on the face would not be considered ratable on other areas of the body, therefore reflecting the increase in value of facial scarring. In other areas of the body, a scar from a knee replacement would equate a 1.00% impairment rating.

Based on the folio of images, a 2.00% scar would include changes in form and symmetry of the face or a scar that is longer and crosses more than one location of the face, for example a scar from the nose and along the length of the cheek. Similarly, at 2.00% scar on the neck would equate to a scar that goes from the ear down to the front of the neck.

Based on the folio of images, a 4.00% rating would involve both scarring and changes in form and symmetry to multiple anatomic areas of the face (forehead, nose, eye, mouth, and cheeks).

In this case, [the worker’s] scar meets the minimum threshold of a 1.00% cosmetic impairment, and does not approach 2.00% cosmetic impairment.” [emphasis added]

Based on their assessment, the WCB medical advisor concluded that the disfigurement impairment related to the compensable injury was a 1.00% cosmetic impairment for the new scar.

Pursuant to the PPI Policy, ratings for scarring range from 0% to a maximum of 25%. A maximum cosmetic impairment rating of 25% requires scarring to be found on all of the skin surfaces of the body. The apportionment of the rating is established based on the review of the scar and the portfolio of pictures and is at the determination of the medical advisor.

Although the WCB Healthcare Advisor’s application of the PPI under the PPI Policy is not binding upon the panel, the explanation provided gives the panel a reasonable explanation regarding how the PPI percentage was achieved. Accordingly, the panel is satisfied that the WCB medical advisor's assessment was conducted in accordance with the PPI Policy and accepts the medical advisor's conclusion in this regard.

In arriving at our decision, the panel acknowledges the worker's submission with respect to the negative treatment that he has received from his staff and members of the public, as a result of his scar.

However, the panel is limited to interpreting the Act and the applicable policies of the WCB. The complaints and side effects raised by the worker are not considered under the PPI Policy. The panel notes, 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.

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 $1,560.00 in accordance with the formula in subsection 38(2) of the Act and the Adjustment in Compensation Tables. Table 4 - Impairment Legislative Amounts for Accidents occurring after 2005 provides that for an accident occurring in 2022, the award is $1,560 for each full 1 % of impairment.

Based on the foregoing, the panel finds that the WCB correctly applied the provisions of the Act and 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 1.00% permanent partial impairment rating and $1,560.00 monetary award have been correctly calculated.

The worker's appeal is dismissed.

Panel Members

R. Mamucud, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

R. Mamucud - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 23rd day of May, 2024