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WORKPLACE SAFETY AND INSURANCE BOARD
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## APPEALS RESOLUTION OFFICER DECISION
**decision number:** 20170000
**OBJECTING PARTY:** Worker
**RESPONDENT:** Employer – Non-participant
**HEARING:** Hearing in Writing
**HEARD by:** K. Hille, Appeals Resolution Officer
____________________________________________________________________________
## ISSUE
The worker objects to:
1. The non-economic loss (NEL) quantum. Decision – July 20, 2016.
## BACKGROUND
Entitlement in this claim was accepted for a left hand injury of June 20, 2015.
The worker suffered a permanent impairment (PI) as a result of the work injury and was referred for a NEL evaluation. The worker was rated 4% NEL. The decision was outlined in correspondence dated July 20, 2016.
An Objection Form was received by the Workplace Safety and Insurance Board (WSIB) indicating the worker objected to the above decision and the file was referred to the Appeals Services Division for further review and consideration.
## AUTHORITY
Operational Policy Documents
Workplace Safety and Insurance Act (WSI Act)
Section 47
[Ontario Regulation 175 / 98 Section 18 (1)](https://www.canlii.org/en/on/laws/regu/o-reg-175-98/latest/o-reg-175-98.html#sec18subsec1_smooth), [(2)](https://www.canlii.org/en/on/laws/regu/o-reg-175-98/latest/o-reg-175-98.html#sec18subsec2_smooth)
Operational Policy Documents
18-05-03 Determining the Degree of Permanent Impairment
18-05-04 Calculating NEL Benefits
## ANALYSIS
I have reviewed and considered all documentation before me and find the evidence did not support the worker’s appeal. I will explain my rationale below.
The WSI Act directs the WSIB to use the prescribed rating schedule to evaluate the permanent impairment. WSIB policy and Ontario Regulation stipulates the use of the American Medical Association Guides to the Evaluation of Permanent Impairment, Third Edition (AMA Guides), for this purpose. It is an administrative responsibility of the WSIB to determine the appropriate sections and tables to be used for determining permanent impairments for specific areas of the body.
In order to determine the NEL award the medical information in the claim file is reviewed as part of the evaluation. That information is then compared with the findings in the AMA Guides to calculate the percentage of permanent impairment which is expressed as a percentage of total impairment of the whole person.
The worker submitted the quantum of the NEL should be greater given the permanent problems she was experiencing with her whole hand and arm.
The worker sought medical treatment on the date of accident and was diagnosed with a left phalanx fracture. When assessed by a plastic surgeon on July 22, 2015, the injury was described as a small avulsion fracture from the ulnar base of the middle phalanx of her left small finger (D5). X-rays of the left hand and wrist confirmed the left D5 avulsion fracture. She was subsequently assessed at a regional evaluation centre (REC) who also confirmed the diagnosis.
The worker underwent surgery on January 27, 2016; left D5 proximal interphalangeal (PIP) joint capsulectomy and excision of osteochondral fragment ulnar side. Following the removal of stitches on February 3, 2016, the worker commenced therapy on her hand.
The worker achieved maximum medical recovery (MMR) on April 27, 2016, the date she was discharged from therapy. The report from the speciality clinic detailed the worker’s complaints and objective findings.
I have reviewed the NEL evaluation as well as the medical reports leading up to the NEL evaluation.
The AMA Guides direct the use of range of motion (ROM) measurements as one of the evaluation criterion to determine a PI for musculoskeletal injuries. In this case, I find the NEL clinical specialist appropriately used the medical evidence available to them as noted in the Impairment Detail of the NEL Evaluation worksheet. The worker was also compensated for sensory loss. The findings used by the NEL clinical specialist were in keeping with the medical documentation provided by the worker’s treating practitioners.
The worker submitted she should be compensated for her whole hand as well as her arm. The accepted area of entitlement in this claim was to the left small finger. While the finger is part of the hand, the rating is specific to the accepted area of injury. The NEL rating is reflective of the percentage of the impairment to the whole person.
It is acknowledged the worker continues to experience findings such as profuse sweating, pain, cramps and discolouration however; the NEL award is based on a measurable medical impairment using the application of the AMA Guides and does not compensate for pain, suffering or loss of quality of life.
I have carefully reviewed the NEL calculation memo, and I find the calculations were done correctly, based on the information that was included in the evaluation. I find the 4% rating was appropriately established in the case based on the available information, and based on the factors that were appropriately taken into consideration.
## CONCLUSION
1. The 4% NEL quantum was appropriately determined.
The objection is denied.
K. Hille
Appeals Resolution Officer
Appeals Services Division
minicounsel