Workplace Health, Safety & Compensation Review Division
WHSCRD Case No: 14116-04
WHSCC Claim No: 853359
Decision Number: 15054
Lloyd Piercey
Review Commissioner
The Review Proceedings
1. The hearing of the review application was held at the Mount Peyton Hotel in Grand FallsWindsor, NL on February 18, 2015. The worker was present and was represented by Les
Mitchell, Mitchell’s Paralegal.
2. The Commission was represented by Kathy Fry, Hearings Officer, who participated via
teleconference.
3. The employer did not attend nor participate in the hearing process.
Introduction
4. On June 11, 2012, while carrying out maintenance work, the worker injured his left hand
when it was caught in a saw. The worker underwent treatment as directed by his health
care providers that included surgery and physiotherapy. The worker’s last surgical
intervention was in May 2013. He returned to alternate work.
5. On November 27, 2013 the worker was assessed for a Permanent Functional Impairment
award, relative to his left hand. At that time, the medical consultant recommended a 16%
rating award for the left hand and an additional 6% award for disfigurement and scarring.
6. On January 28, 2014 the case manager accepted the 16% award recommendation for a
functional impairment of the worker’s left hand. However, the 6% cosmetic impairment
recommendation was rejected by the case manager, who noted that the cosmetic
impairment was to be carried out by a cosmetic impairment committee and was not
within the mandate of the medical consultant who carried out the Permanent Functional
Impairment assessment on November 27, 2013.
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7. On October 10, 2014 the worker appealed the January 28, 2014 decision by the case
manager. On April 7, 2014 the internal review specialist rendered a decision that upheld
the case manager’s decision. It is the April 7, 2014 decision that is before the Review
Division.
Issue
8. The worker is requesting a review of the internal review specialist’s decision of the
Commission dated April 7, 2014 and is requesting that I find the Commission erred in
determining his permanent functional impairment rating to be 16% for his left hand. He
is seeking a higher rating that would include an award for pain.
Outcome
9. The decision is set aside and the matter is remitted to the Commission. While I cannot
find evidence which suggests another permanent functional impairment assessment must
be completed, I do find the file information supports that I direct the Commission to
consult with one of its medical consultants to re-visit and review the worker’s measurable
loss of function in his left hand, as demonstrated in the November 27, 2013 permanent
functional impairment assessment. The Commission is to ensure that the worker’s
permanent functional impairment entitlement is determined through the consideration of
the Permanent Functional Impairment Rating Schedule and the AMA Guides, and in a
manner that reflects the November 27, 2013 measured loss of function of the worker’s
left hand.
Legislation and Policy
10. The jurisdiction of a Review Commissioner is outlined in the Workplace Health, Safety
and Compensation Act (the Act), Sections 26(1) and (2), 26.1 and 28 which state, in part:
“… Review by review commissioner
26(1) Upon receiving an application under subsection 28(1) a review
commissioner may review a decision of the commission to determine if the
commission, in making that decision, acted in accordance with this Act,
the regulations and policy established by the commission under subsection
5(1) as they apply to
(a)
(a.1)
(b)
(c)
compensation benefits;
rehabilitation and return to work services and benefits;
an employer's assessment;
the assignment of an employer to a particular class or
group;
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(d)
(e)
an employer's merit or demerit rating; and
the obligations of an employer and a worker under Part VI.
(2) An order or decision of a review commissioner is final and conclusive and
is not open to question or review in a court of law and proceedings by or
before a review commissioner shall not be restrained by injunction,
prohibition or other process or proceedings in a court of law or be
removable by certiorari or otherwise in a court of law.
Review commissioner bound by policy
26.1
A review commissioner shall be bound by this Act, the regulations and
policy.
Application to a review commissioner
28.(1) A worker, dependent or an employer, either personally or through an
agent acting on their behalf with written consent, may apply to the chief
review commissioner for the review of a decision as referred to in
subsection 26(1), within 30 days of receiving the written decision of the
commission.
…
(2)
A review commissioner shall not review a decision under subsection (1)
except in accordance with subsection 26(1).
…
(4)
A review commissioner to which a matter has been referred for review
shall
(a)
notify the person seeking the review and the commission of
the time and place set for the review; and
(b)
review the decision of the commission and determine
whether it was in accordance with this Act, the regulations
and policy.
(4.1) Where a review commissioner determines that the decision of the
commission was in accordance with this Act, the regulations and policy,
he or she shall confirm the decision of the commission.
(4.2) Where a review commissioner determines that the
commission was not in accordance with this Act, the
policy, he or she shall identify how the decision of the
contrary to this Act, regulations and policy, specify
provision, set aside the decision of the commission and
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decision of the
regulations and
commission was
the contravened
(a)
make a decision which is in accordance with this Act,
regulations and policy; or
(b)
where it is appropriate to have a new decision from the
commission, refer the matter to the commission for a new
decision with or without direction on an appropriate
remedy.”
11. Other relevant sections considered are Sections 19(1), 60(1) and 73(1) of the Act, along
with Policy EN-01: Permanent Functional Impairment and Policy EN-20: Weighing
Evidence.
Relevant Submissions and Positions
12. Mr. Mitchell referenced the permanent functional impairment assessment completed on
the worker on November 27, 2013 and questioned why the worker’s pain was not
assessed separately.
13. Mr. Mitchell referenced Policy EN-07: Chronic Pain and submits that it should be
applied to the permanent functional impairment assessment, noting that this Policy allows
for the Commission to assess pain separately.
14. Mr. Mitchell referenced Review Division Decision No. 07156 rendered by Review
Commissioner Harrold who had ruled, at that time, that the Commission was to address
the worker’s pain separately.
15. Mr. Mitchell noted that the medical consultant, after completing the permanent functional
impairment assessment on November 27, 2013, had recommended a 16% impairment
award for the worker’s left hand. Mr. Mitchell questioned the authority of the internal
review specialist, who reduced the award to 8.5% in his decision dated April 7, 2014.
16. Mr. Mitchell noted that the medical consultant, on November 27, 2013, had
recommended a 6% award for cosmetic impairment, but he agreed with the case manager
that this award was to be carried out by a cosmetic impairment committee, and was not
within the mandate of the medical consultant who completed the November 27, 2013
permanent functional impairment assessment.
17. The worker testified that he has returned to work but finds it difficult carrying out his
duties of changing and sharpening the saw blades, particularly with the limitations of his
left hand.
18. Mr. Fry submitted that, contrary to Mr. Mitchell’s position, Policy EN-07: Chronic Pain
is not applicable in this case. She contended that the presence of chronic pain has not
been documented in the worker’s file and it is the loss of sensation and range of finger
movement that is predominant disability affecting this worker.
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19. Ms. Fry noted that Policy EN-01: Permanent Functional Impairment states that both the
permanent functional impairment rating schedule and the American Medical
Association’s “Guides to the Evaluation of Permanent Impairment” (AMA Guides) can
be used by the medical consultant when conducting a Permanent Functional Impairment
assessment. She submitted that there is no basis for Mr. Mitchell’s argument that both
should not be used.
20. Ms. Fry submitted a handout at the hearing that included a “hand form” that
demonstrated how the worker’s four fingers of his left hand were assessed for the
permanent functional impairment rating. She included two charts that indicated the
findings of the medical consultant in the November 27, 2013 permanent functional
impairment assessment, and the second chart included the interpretation of the November
27, 2013 results by another of the Commission’s medical consultants. Ms. Fry stated that
the most recent interpretation provides for a lower rating award than the 8.5% awarded,
but the Commission will defer to the 8.5% award calculated by the internal review
specialist in his decision dated April 7, 2014.
21. Ms. Fry indicated that the medical consultant had miscalculated and misinterpreted the
findings when he recommended a 16% rating award for the worker’s left hand
impairment. She noted that he had applied the rate for finger amputation. She submitted
that the internal review specialist had correctly identified the error and applied a .5 figure
to the calculation equation as is required by the rating schedule. This left the permanent
functional impairment award at half the recommended 16% award of November 27, 2013
and, rounded off, this equaled an 8.5% permanent functional impairment award for the
worker’s left hand.
22. Ms. Fry advised that the Commission did not set up an overpayment on the worker’s
account, but would endeavor to recover the overpayment from future permanent
functional impairment awards.
Analysis
23. It is the position of the worker that the extent of the workplace injury to his left hand has
resulted in a functional impairment that would warrant a greater rating award than the
medical consultant recommended after completing the permanent functional impairment
assessment on November 27, 2013. He is of the opinion that he should be assessed
separately for pain and this would add to his total impairment award.
24. The Commission noted that, while the medical consultant recommended a 16% award for
impairment to the worker’s left hand, and an additional 6% for cosmetic impairment, the
case manager rejected the cosmetic impairment in his decision dated January 28, 2014,
stating that it was not the mandate for the medical consultant to address the cosmetic
impairment issue. He indicated that this particular assessment would be assigned to a
cosmetic impairment committee. The Commission also, through the decision by the
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internal review specialist, dated April 7, 2014, has concluded that the 16% permanent
functional impairment rating award for the worker’s left hand was arrived at in error and
should have been reduced by half, using the calculation method indicated in the
permanent functional impairment rating schedule.
25. The file information confirms that following, relative to the process applied to the
worker’s permanent functional impairment rating award for his workplace left hand
injury:
•
On November 27, 2013 the medical consultant completed a permanent functional
impairment assessment on the worker. He recommended a 16% impairment award
for the left hand, and 6% for the cosmetic impairment.
•
On January 28, 2014 the case manager accepted the 16% permanent functional
impairment award for the left hand, but rejected the 6% recommendation for cosmetic
assessment, noting that Policy EN-01: Permanent Functional Impairment directs that
cosmetic impairment should be rated by a cosmetic impairment committee.
•
Upon appeal by the worker, the internal review specialist rendered a decision on April
7, 2014 that concluded that the case manager was correct to defer the cosmetic
impairment assessment to the appropriate committee. However, he also determined
that the medical consultant had miscalculated that rating award in the November 27,
2013 permanent functional impairment assessment, and the correct award should
have been half of the recommended 16% award, or as he found, a rounded-off rating
of 8.5% for the worker’s physical left hand impairment.
26. I note that Ms. Fry submitted information at the hearing that indicated that a second
medical consultant had reviewed the findings of the permanent functional impairment
assessment of November 27, 2013 and found, after comparing the measured loss of range
of movement in the worker’s fingers with the data in the permanent functional
impairment rating schedule, that the actual permanent functional impairment award for
the worker’s left hand should be less than the 8.5% rating arrived at by the internal
review specialist in his decision of April 7, 2014.
27. Policy EN-01: Permanent Functional Impairment provides for a worker who suffers a
permanent impairment, as a result of a work injury, the opportunity to pursue entitlement
in the form of a lump sum payment.
28. A Permanent Functional Impairment award is intended to reflect the diminishment of the
physical or functional capacity of the body. There is a recognized process which
provides structure to that analysis. The Commission, in its authority under Section 5 of
the Act, has adopted Policy EN-01: Permanent Functional Impairment, which is also
permitted by Section 73, which states, in part:
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“73. (1) Where, as the result of an injury, a worker is disabled or impaired
either permanently or temporarily, totally or partially, the commission shall
pay in relation to the worker…
…
(b) a lump sum award for the permanent impairment as determined
by the commission after consideration of a rating schedule…
…
(2) The maximum and minimum lump sum awards payable under
paragraph (1)(b) shall be as prescribed by regulations.
(3) The board of directors may for the purpose of paragraph (1)(b)
approve a rating schedule which may be considered in calculating the
amount of an award for a permanent impairment arising out of an injury.”
29. The term “impairment” is also defined in the Act, as is the term “disability”. Subsection
2(1) states in part;
“(g.1) "disability" means the loss of earning capacity of a worker as a
result of an injury…
…
(l.1) "impairment" means a physical or functional abnormality or loss,
including a disfigurement, as a result of an injury…”
30. Under the Act, an injury may produce a disability or an impairment, and it may produce
both. Where the injury has a negative effect on earning capacity, a disability occurs.
Where the injury causes a physical or functional abnormality or loss, there is an
impairment. One may exist without the other. For example, an injury may produce an
‘impairment’ but not a ‘disability’ if the injury does not affect an individual’s pre-injury
employment because of the nature of his or her job.
31. Also, the concept of ‘impairment’ is recognized as a physical or functional abnormality
or loss. It is measuring a specific effect of a compensable injury, not every effect of a
compensable injury. It is intended to measure the degree to which the body’s functioning
is impaired. It is not measured by the degree to which an individual’s quality or
enjoyment of life is affected, or the loss of specific pre-injury activities. The two often
overlap, but the emphasis is on the degree to which the part, or parts, of the body are
diminished in function, and how this translates into a total body impairment. As the
name suggests, the award is a permanent functional impairment award.
32. Policy EN-01: Permanent Functional Impairment provides a Rating Schedule and it also
allows reference to the American Medical Association Guidelines. That is the Rating
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Schedule which the Commission has adopted under Section 73. It is important to note
that pain, in and of itself, is not a separate rating criteria, but the expected effects of pain
associated with a type of injury are already contemplated by the Policy. Policy EN-01:
Permanent Functional Impairment states, in part:
“A worker who suffers a permanent impairment as a result of a work related
injury may be entitled to a lump sum payment for Permanent Functional
Impairment (P.F.I.). The P.F.I. benefit recognizes noneconomic loss, as
opposed to loss of earning capacity, and is based on measurable loss of
bodily function.
Entitlement is determined by the Commission through consideration of its
adopted rating schedule known as the Permanent Functional Impairment
Rating Schedule. Where the Permanent Functional Impairment Rating
Schedule does not address a certain type of impairment, or where it is not
precise enough to fully evaluate the extent of an impairment, the Commission
may use the American Medical Association (A.M.A.) Guides as a reference.
The impairment percentages given in the A.M.A. Guides include allowances
for the pain that may occur with the impairment. The existence of pain does
not enhance the impairment percentages recommended. No award is given
specifically for pain and suffering.”
(emphasis added)
33. It is also important to note that the Permanent Functional Impairment Rating Schedule is
a guide. Many cases will not fit into the Rating Schedule, and it is on these occasions
when the examining physician will be required to exercise judgment, relative to the
symptoms and signs of impairment demonstrated by the injured worker. A medical
finding is entitled to due weight as an expert opinion, and unless the opinion of the
physician is outbalanced by evidence of greater weight, or is proceeding on a wrong or
incomplete assumption, the Review Commissioner is not in a position to simply disagree
with a medical finding and substitute his or her own personal opinion. The Review
Commissioner is reviewing whether the Commission followed the Act, regulations, and
Policies, but cannot make purely medical findings of its own as part of this process.
34. I note, also, that the functional impairment is expressed as a percentage of impairment to
the body part affected and that the Commission’s Permanent Functional Impairment
Rating Schedule is generally used for the purpose of neck and back injuries. Where there
are multiple body parts affected, a Combined Values Chart is used to determine the total
body impairment, or overall Permanent Functional Impairment rating.
35. I have reviewed the findings of the medical consultant as reported in the November 27,
2013 permanent functional impairment assessment, relative to the worker’s left hand. He
presents the following results:
•
Left little finger: 50% loss of movement at the distal interphalangeal joint (DIP),
45% loss of movement at the proximal interphalangeal joint (PIP), 0% loss at the
metacarpo-phalangeal joint.
8
•
Ring finger: 60% loss at the distal interphalangeal joint, 90% loss at the proximal
interphalangeal joint, 20% loss at the metacarpo-phalangeal joint (MP).
•
Middle finger: 60% loss at the distal interphalangeal joint, 90% loss at the proximal
interphalangeal joint, 20% loss at the metacarpo-phalangeal joint.
•
Index finger: 0% loss at the distal interphalangeal joint, 10% loss at the proximal
interphalangeal joint, 10% loss at the metacarpo-phalangeal joint.
36. I note in my review of the November 27, 2013 Permanent Functional Impairment
assessment that the medical consultant, after measuring the loss of movement in the
fingers of the worker’s left hand, proceeded to Section D-2 of the Commission’s
Permanent Functional Impairment schedule to assign a Permanent Functional Impairment
rating for the loss of functional and movement of the worker’s left hand.
37. The file information confirms that the medical consultant, after doing a comparative
analysis of the measurements of the loss of function and movements of the worker’s left
hand with the Permanent Functional Impairment Rating Schedule, particularly the fourfinger schedule, recommended the following:
•
•
•
•
Little Finger Impairment – 1.7%
Ring Finger – 4.1%
Middle Finger – 7.4%
Index Finger – 2.77%
The medical consultant wrote “…For the four injured fingers the PFI rating by adding
1.7+4.1+7.4+2.77 equals a 16% PFI rating…”
38. While there is no way for me to verify the findings of measured loss of function and
movement as presented by the medical consultant, and it is not my role to do so, I have
taken the opportunity to review the actual calculations and I find them to be inaccurate. I
particularly reference the following from the Permanent Functional Impairment
assessment report dated November 27, 2013. The medical consultant wrote the
following:
“…In order to rate [the worker’s] injury I utilized the Workplace Health,
Safety and Compensation Commission Permanent Functional Impairment
Schedule to assign a PFI rating for the loss of function and movement of
the left hand. I specifically utilized Section D-2 on Page 39 and used the
Four-Finger Schedule to assign a PFI rating using the range of motion
method. For the little finger impairment at the distal interphalangeal joint
20 divided by 50 x 2 equals 2.8; PIP joint 45 divided 100 x 2 equals 0.9;
MCP joint 0 divided by 70 x 3 equals 0. Adding all of these together
equals 1.7 for the little finger. For the ring finger at the distal
interphalangeal joint is 60 divided by 70 x 3 equals 2.6; 40 divided by 100
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x 3 equals 1.2. For the metacarpophalangeal joint 20 divided by 90 x 1.5
equals 0.33. Adding the figures for DIP + PIPJ + MCP which is 2.6 +
1.2 + 0.33, equals 4.1. For the middle finger, the DIP joint is 60 divided
by 70 x 4 equals 3.4; 90 divided by 100 x 4 equals 3.6; 20 divided by 90 x
2 equals 2.44. Adding these three numbers together equals 7.4 for the
middle finger. Regarding the index finger, the DIP is 0 divided by 70 x 5
equals 0; for the PIP joint 10 divided by 100 x 5 equals 2.5: for the MCP
joint 10 divided by 90 x 2.5 equals 0.27. Adding these numbers together, 0
+ 2.5 + 0.27 equals 2.77. For the four injured fingers the PFI rating by
adding 1.7 + 4.1 + 7.4 + 2.77 equals a 16% PFI rating…”
39. In my review of the measurements and calculations, I find the medical consultant has
inputted inaccurate information and, as a result, has miscalculated the percentages he has
assigned to the worker’s left hand. I have carried out a review of his numbers and find
the following to be evident:
•
In the left little finger measurements of function and movement, the medical
consultant notes on page 135 of the case description that the worker has demonstrated
a 50% loss in the movement of the distal interphalangeal joint. When I look at the
calculations used by the medical consultant on page 136 of the case description, it
would appear that he is using a 20˚ loss of movement (DIP). Notwithstanding this
error, I note that the medical consultant indicates that the total percentage assigned for
the little finger was 1.7%. Even acknowledging the incorrect loss of DIP movement,
this total for the little finger would equal 3.7 percent, and not 1.7% as concluded by
the medical consultant.
•
Relative to the ring finger calculations, I note that the medical consultant, on page
135 of the case description, indicates that the worker demonstrated a 90º loss of
movement at the PIP joint. However, a review of his actual calculations for this
particular finger would confirm that the medical consultant has inputted a 40˚ loss
into the calculation equation.
•
Relative to the middle finger rating, I find, in my review of the calculations that the
medical consultant has once again erred in the mathematical computations. I
particularly note the MP loss of joint movement is given a 2.44% rating award. My
calculations suggest this should be 4.44%. I note, also, that even with the 2.44%
inputted, the medical consultant has arrived at a 7.4% rating for the middle finger,
which does not reflect the figures he has used for this finger. Notwithstanding, I find
the loss of movement for the middle finger should read a 11.44% rating award, based
on the measurement of loss movement the medical consultant indicates in his
permanent functional impairment assessment (page 135 of the case description).
40. It is important to point out that there are two issues in the calculation. First, in the
summary of the Permanent Functional Impairment assessment, dated November 27,
2013, there are errors in the accuracy of information inputted and the calculations
performed by the medical consultant in arriving at a total Permanent Functional
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Impairment rating for the worker’s left hand. Also, I find the medical consultant has
applied the formula to calculate amputation as opposed to loss of sensation and
movement.
41. I note that the internal review specialist wrote in his decision dated April 7, 2014:
“…The consultant did not complete the calculation correctly in that he
used the full amputation rating at each joint. It is clear the PFI rating
schedule notes that with respect to partial loss of movement of fingers, the
calculation is completed by multiplying by one half the amputation rating.
For example, the DIP of the little finger has a normal range of 70. Your
loss is 50. The amputation rating for the joint is 2…Half the amputation
rating is considered hence multiplying the equation by .5…”
I have reviewed the relevant information in the Permanent Functional Impairment Rating
Schedule and find the internal review specialist to be correct on this point.
42. I note, also, that the internal review specialist, in his decision dated April 7, 2014,
proceeded to do his own calculations and, in applying the .5 factor, arrived at an 8.5%
rating award for the worker’s left hand. While the internal review specialist’s
calculations may be mathematically correct, they may not be in accordance with the Act
and Policy. If the internal review specialist is proceeding on the basis that the 16% figure
is correct, and then performing his division on that figure, the inaccuracies in the
calculation of the 16% figure also become embedded in the internal review specialist’s
calculation As I have already pointed out, the permanent functional impairment
assessment and recommendations from the medical consultant contain errors and this
would affect the recalculation performed at internal review. I note the following facts
that are significant in deciding the issue before me:
•
The permanent functional impairment assessment fails to accurately translate the
findings into the equations, and there are errors in the performance of certain of the
calculations. This affects the validity of rating award initially recommended by the
medical consultant.
•
The case manager accepted the 16% recommendation without verifying and
reviewing the accuracy of the information provided to him.
•
The internal review specialist, while recognizing one error in the methodology of the
calculations, proceeded to arrive at a new rating award which still incorporates
erroneous calculations and this necessarily affects his figure..
•
Further complicating matters, there was an additional reason to doubt the validity of
the calculations. For illustration purposes, so as to demonstrate why the worker’s
award could not exceed 16%, Ms. Fry presented the hearing with another calculation,
from a second medical consultant, who believes that both the medical consultant who
completed the November 27, 2013 permanent functional impairment assessment, and
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the internal review specialist, are wrong in the rating award percentage each had
recommended for the worker’s left hand impairment. This leaves me with three sets
of figures arising from the same examination.
43. As part of Ms. Fry’s presentation, she submitted a set of figures and charts from another
of the Commissioner’s medical consultants who had reviewed the file information and
concluded that both the medical consultant in the November 27, 2013 permanent
functional impairment assessment, and the internal review specialist, in his decision dated
April 7, 2014, were in error in their calculations. While I acknowledge that this document
presented by Ms. Fry at the hearing on February 18, 2015 is evidence that does not
appear in the file, and was made available subsequent to the final April 7, 2014 decision
by the internal review specialist, I accepted it for the purposes of understanding the
presentation. The worker did not object to this, and I found that neither the Commission
nor the worker was prejudiced by its inclusion. I am reviewing the Commission’s
reasoning in its internal review decision of April 2014, which did not include the
subsequent opinion. In any case, I cannot rely on the subsequent opinion to substitute my
own outcome because the Commission itself has yet to make a formal decision on the
new opinion. However, the admission of the opinion further illustrated that there were
issues in the methodology used by the Commission in the decision it did make. I find it
to be relevant since it confirms my finding that the medical consultant, in the November
27, 2013 permanent functional impairment assessment, had miscalculated the
recommended impairment award and this error was embedded throughout the process by
the case manager and the internal review specialist.
44. I note that Mr. Mitchell argued at the hearing that the worker should be assessed
separately for pain and his Permanent Functional Impairment award increased
accordingly. I note that the medical consultant wrote in the November 27, 2013
Permanent Functional Impairment assessment, “I must mention here that pain has been
incorporated into the assessment and will not be rated separately.” I find the
Commission is supported by the relevant policy in not considering an award, separately,
for pain. I note that Policy EN-01: Permanent Functional Impairment states that
impairment ratings “…are based on demonstrable loss of function…” and further adds
“no award is given, specifically, for pain and suffering.”
45. At the hearing, Mr. Mitchell referenced Decision No. 07156, rendered by Review
Commissioner Harrold on August 10, 2007, stating that the Commission was to address
chronic pain separately. I have reviewed that decision and find it to be irrelevant to the
issue before me. While I am addressing a permanent functional impairment award, and
as I have already stated Policy EN-01: Permanent Functional Impairment directs the
Commission not to rate pain separately, I find Review Commissioner Harrold’s decision
in that claim addressed whether or not the Commission has provided significant followup relative to the worker’s status in attending a pain management clinic, and the benefit
of four injections that worker received for his chronic pain. There also appears to have
been an accepted chronic pain diagnosis in that claim. Therefore, and contrary to what
Mr. Mitchell suggests, I do not find Decision No. 07156 to be similar enough to the file
before me to adopt it as significantly affecting the analysis to be performed.
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46. It was already noted that Mr. Mitchell acknowledged that the cosmetic impairment
assessment would be done, as per policy, by a cosmetic impairment committee, and this
was not part of the worker’s appeal today. For the record, the worker advised at the
hearing that he had already had his cosmetic impairment assessment completed. That
would have been done by way of a separate decision and is not in issue before me
presently.
47. In my review of the file evidence, and in considering the relevant sections of the Act and
Policy, I find the Commission has erred in arriving at its decision. While I am not in a
position to challenge the indicated medical findings of the medical consultant, relative to
the worker’s demonstrated loss of function and sensation in his left hand, I am able to
review the calculation methodology and I find it contains inaccuracies. There appears to
have been errors in translating findings into the calculation, and also errors in the
calculations themselves. While, from the narrow point of view of the issue stated before
me, I cannot conclude that the worker is to receive a separate rating based solely on pain,
I am also left in the position where I cannot conclude that the existing rating was
calculated accurately. There has to first be a decision which identifies the correct rating
for the worker’s injury, providing intelligible and transparent reasoning. I find the
Commission’s existing decision does not provide a reasoned analysis that demonstrates
that the Act and Policies were accurately applied or that all the relevant facts were
considered. Because of this, I find the Commission has not met the requirements set
forth in the weighing of evidence and has not afforded the worker a compliant
adjudication of his claim. on the real merits and justice of the case, as per Section 19(4)
of the Act. Furthermore, I find the presence of the noted inaccuracies would not satisfy
the requirements of Section 60(1) of the Act that ensures the worker that his issue,
relative to entitlement, has been carefully decided on the balance of probabilities that
weighs each side of the issue.
48. It is important to note that Policy EN-01: Permanent Functional Impairment requires
that “the P.F.I. shall be rated by a medical officer appointed by the Commission”. While
the Commission has met this procedural requirement, the resulting analysis does not
confirm that the rating in the final decision is in compliance with the values in the
Commission’s own Policies. I find it has not satisfied the worker’s reasonable
expectation that the medical consultant will provide the analysis that would indicate due
diligence has been afforded the permanent functional impairment assessment and,
subsequently, the rating award recommendation, particularly, since the evidence confirms
that the medical consultant has erred in his calculation of the permanent functional
impairment findings and in his consideration of the Permanent Functional Impairment
Rating Schedule. I find the Commission has not met the criteria set forth in Policy EN01: Permanent Functional Impairment in arriving at an impairment rating award for the
worker’s left hand.
49. As I have already stated, it is the April 7, 2014 decision by the Commission that is under
review. In that decision, I note that the internal review specialist acknowledges that the
medical consultant had erred in his calculations and the subsequent impairment rating
recommended for the worker’s left hand. The internal review specialist proceeded to
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provide his own analysis of the November 27, 2013 permanent functional impairment
assessment findings of the worker’s demonstrated functional impairment and arrived at
his own permanent functional impairment rating award, but this calculation further
embedded existing errors contained in the recommendation. I do not accept his 8.5%
impairment rating to be valid, particularly since Ms. Fry advised at the hearing on
February 18, 2015 that the Commission had another of its medical consultants review the
permanent functional impairment assessment results and concluded that both the medical
consultant who conducted the permanent functional impairment assessment on November
27, 2013, and the internal review specialist in his decision on April 7, 2014, had erred in
their analysis and recommendations. It seems to me that the only recourse at this point is
to have the Commission completely revisit the calculation, providing compliant
reasoning and analysis that demonstrates how the findings are wedded to the applicable
provisions of the Policy. I cannot tell whether the result will be greater or less than the
16% awarded, but it is my inability to decipher the approach used by the Commission
which is part of the reason that the decision is non-compliant.
50. I cannot see how this decision could be provided without analysis and advice from an
individual with training and expertise in this area, so the Commission is directed to
consult with one of its medical consultants to review the data contained in the permanent
functional impairment assessment dated November 27, 2013 and recommend a rating
award that is based on accurate calculations and the criteria set out in Policy EN-01:
Permanent Functional Impairment.
Decision
51. The decision dated April 7, 2014 is set aside. While I cannot find evidence which
suggests another permanent functional impairment assessment must be completed, I do
find the file information supports that I direct the Commission to consult with one of its
medical consultants to re-visit and review the worker’s measurable loss of function in his
left hand, as demonstrated in the November 27, 2013 permanent functional impairment
assessment. The Commission is to ensure that the worker’s permanent functional
impairment entitlement is determined through the consideration of the Permanent
Functional Impairment Rating Schedule and the AMA Guides, and in a manner that
reflects the November 27, 2013 measured loss of function of the worker’s left hand.
Referred to WHSCC
March 25, 2015
Date
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