APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20240008
OBJECTING PARTY: worker
REPRESENTED by: WORKER REPRESENTATIVE
RESPONDENT: employer
HEARING: HEARING IN WRITING
HEARD by: c. goegan, appeals resolution officer
ISSUE
The worker is objecting to the October 25, 2019 decision of the Non-Economic Loss (NEL) Clinical Specialist that determined there was no change in the quantum of a 4% NEL benefit for a left hand injury after a reconsideration to include a fourth finger impairment in the NEL rating.
BACKGROUND
On May 30, 2014, this then 55-year old cabinet-maker sustained severe injuries to the fourth and fifth fingers of his left hand while using a table saw. He required reconstructive and revascularization surgery on both fingers the next day. While the fourth finger surgery was successful, the worker experienced complications with the fifth finger. On July 4, 2015, he underwent further surgery to amputate part of the fifth finger.
The worker was determined to have reached maximum medical recovery by October 20, 2014 with a permanent impairment of the fourth and fifth fingers. In a July 13, 2015 NEL evaluation, the NEL Clinical Specialist determined the quantum of the NEL benefit for impairment of the whole person resulting from the left fifth finger injury was 4%. However, the NEL Clinical Specialist did not include the fourth finger injury when completing the NEL rating calculation.
The NEL Clinical Specialist ultimately reviewed quantum of the NEL rating on October 21, 2019 to account for the fourth finger injury and sensory loss. The second NEL determination did not result in an increase in the previously determined 4% whole person impairment rating. The NEL Clinical Specialist confirmed there was no calculable change in the NEL award in an October 25, 2019 decision. The NEL Clinical Specialist later reconsidered and upheld the 4% NEL rating on November 22, 2023.
The worker objected to the October 25, 2019 decision of the NEL Clinical Specialist and the matter was referred to the Appeals Services Division for consideration.
AUTHORITY
Operational Policy Manual
Published
18-05-03 – Determining the Degree of Permanent Impairment 18-05-04 – Calculating NEL Benefits
November 3, 2014 February 1, 2018
Rating Schedule:
To rate permanent impairments, the WSIB uses a prescribed rating schedule and all relevant medical reports on file. The prescribed rating schedule is the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 3rd.edition revised, (AMA Guides).
ANALYSIS
I carefully considered all of the available information, legislation and relevant operational policies in reaching this decision. For the reasons explained below, I find the worker is entitled to a 7% NEL award for the left hand injury.
The Worker’s Position
In the October 14, 2023 Appeal Readiness Form (ARF), the worker representative submitted the worker cannot work as well as he did before the injury. He submitted the worker experiences significant difficulty with cold sensitivity, gripping and lifting.
The Employer’s Position
The employer completed and returned the September 9, 2020 Participant Form, however, they did not make submissions in this appeal.
The NEL Quantum
I will begin by pointing out that the October 25, 2019 NEL decision was essentially a revision of the original NEL decision that only included the left fifth finger amputation. Therefore, I must account for the impairment of the left fifth finger, including the amputation in this decision.
According to Policy 18-05-03 (Determining the Degree of Permanent Impairment), the NEL benefit compensates workers for the effects of their permanent impairment other than those associated with a wage loss, health care costs, and rehabilitation costs.
The NEL benefit is payable to the worker regardless of whether the worker experiences any wage loss because of the injury. In this regard, it is worth noting that while the representative submitted the worker is unable to work as well as he did before the injury, the NEL benefit does address any wage loss, health care costs or rehabilitation costs in relation to the injury.
To rate permanent impairments, the WSIB uses a prescribed rating schedule and all relevant medical reports on file. The prescribed rating schedule is the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 3rd.edition revised, (AMA Guides).
Based on the AMA Guides, decision makers consider the following criteria when establishing NEL ratings for finger impairments:
Amputations
Abnormal motion at the finger joints
Impairments of the fingers following arthroplasty (joint surgery) to specific bones or joints described in Table 19 on p.50 of the AMA guides, and
Sensory loss
When a worker has impairment of two or more fingers, the AMA Guides require evaluation of each finger impairment separately. Once the impairment ratings for the fingers are determined, the assessor must then calculate the impairment rating for the hand, upper extremity and subsequently the impairment rating of the whole person to determine the total quantum of the NEL award.
On the ARF, the worker representative submitted the worker is unable to work as well as they did before the injury and experiences significant difficulty with cold sensitivity, gripping and lifting. While I acknowledge the worker experiences difficulty in the identified areas, the representative did not actually explain how the NEL Clinical Specialist calculated the NEL award incorrectly. Therefore, I completed my own assessment of the evidence.
Beginning with the left fifth finger, I find it appropriate to assign an 80% impairment rating for the amputation. A July 4, 2014 operative report from Dr. Graham, an orthopedic surgeon, confirmed he performed a surgical amputation of the left fifth finger to the level of the proximal interphalangeal (PIP) joint. According to Figure 17 (p. 25) of the AMA Guides, an amputation of the fifth finger at the level of the PIP joint represents an 80% amputation impairment rating for the fifth finger.
I also find it appropriate to assign an 11% impairment rating for abnormal motion of the finger at the level of the metacarpophalangeal (MP) joint. A June 20, 2019 WSIB Upper Extremity Specialty Clinic report indicated the worker had 80 degrees of flexion and 0 degrees of extension at the MP joint in the left fifth finger. According to Figure 23 (p. 28) of the AMA Guides, the range of motion measurements recorded by the Specialty Clinic for flexion and extension at the MP joint represent 6% and 5% impairment ratings for flexion and extension, which equates to a total of 11% for abnormal motion.
With respect to sensory loss in the remaining portion of the fifth finger, I find it appropriate to assign impairment ratings of 2% for partial longitudinal sensory loss in the ulnar digital nerve and 1% in the radial digital nerve over the remaining 20% length of the finger. Noting that the June 10, 2019 WSIB Upper Extremity Specialty Clinic Report described the worker complaining of severe cold intolerance and pain, I found it appropriate to interpret that as a partial sensory loss. According to Table 4 (p. 20) of the AMA Guides, a total longitudinal sensory loss in the remaining 20% of the left fifth finger results in a 3% rating for the ulnar digital nerve and a 2% impairment rating for the radial digital nerve for a total sensory impairment rating of 5%.
I combined (not added) the 80% impairment rating for the amputation with the 11% impairment rating for abnormal motion of the MP joint using the Combined Values Chart (pp. 254-256) in the AMA Guides and result is a 82% impairment rating. I then combined the 82% impairment rating with the 5% impairment for longitudinal sensory loss using the Combined Values Chart (pp. 254-256) in the AMA Guides and the result is an 83% impairment of the left fifth finger.
Turning to the left fourth finger, I find it appropriate to assign an impairment rating of 31% for abnormal motion of the distal interphalangeal (DIP) joint. The range of motion values in the June 10, 2019 Specialty Clinic report for the DIP joint were 5 degrees of flexion and 0 degrees of extension. According to Figure 19 (p. 26) of the AMA Guides, the reported range of motion values for flexion and extension of the DIP joint represent a 31% impairment for abnormal motion of the joint.
In regards to the proximal interphalangeal (PIP) joint, I find an impairment rating of 6% for abnormal motion is appropriate. The Specialty Clinic report had range of motion measurement for the PIP joint of the fourth finger of 85 degrees of flexion and 0 degrees of extension, which according to Figure 21 (p. 27) of the AMA Guides represents a 6% impairment for abnormal motion of the PIP joint.
Finally, I assigned an impairment rating of 5% for abnormal motion of the MP joint based on the range of motion values for the MCP joint in the Specialty Clinic report. The Specialty Clinic report had range of motion measurements of 85 degrees of flexion and 0 degrees of extension. Those measurements correspond to a 0% rating for abnormal flexion and a 5% rating for abnormal extension of the MP joint according to Figure 23 (p. 28) of the AMA Guides.
I combined (not added) the 31% impairment rating for the abnormal motion of the DIP joint with the 6% impairment rating for abnormal motion of the PIP joint using the Combined Values Chart (pp. 254-256) in the AMA Guides and the result is a 35% impairment rating. I then combined the 35% rating with the 5% impairment rating for abnormal motion of the MP joint and the result is a 38% impairment rating. As, such, I find the total impairment rating for abnormal motion of the left fourth finger is 38%.
With respect to the sensory loss for the left fourth finger, I find it appropriate to assign impairment ratings of 2% for partial longitudinal sensory loss in the ulnar digital nerve and 3% in the radial digital nerve over a digit length of 20% of the fourth finger. In the Specialty Clinic report, Dr. Graham described clear tenderness to palpation over the mid-portion of the digit close to the DIP joint that corresponded to the level where he surgically divided the nerves. Accordingly, I find it appropriate to rate the sensory loss over a 20% length of the left fourth finger. Since the Specialty Clinic report describes the worker as experiencing significant cold sensitivity in the finger while retaining some sensation, I rated the impairment as partial sensory loss. According to Table 8 (p. 25) in the AMA Guides, a partial longitudinal sensory loss of the ulnar digital nerve and the radial digital nerve encompassing approximately 20% of the digit length results in impairment ratings of 2% and 3%. Therefore, I conclude the impairment rating for sensory loss in the left fourth finger is 5%.
I combined (not added) the 38% impairment rating for the abnormal motion of the left fourth finger with the 5% impairment rating for sensory loss using the Combined Values Chart (pp. 254-256) in the AMA Guides and the result is a 41% impairment of the left fourth finger.
Section 3.1d (p. 28) of the AMA Guides confirms that where there is impairment of more than one finger on the hand, an assessor must first calculate the impairment rating that each finger is contributing to the total impairment of the hand using Table 1 (p. 15 of the AMA Guides). According to Table 1, an 83% impairment of the left fifth finger equates to an 8% impairment of the hand while a 41% impairment of the left fourth finger equates to a 4% impairment of the hand.
Once the impairment rating for each finger relative to impairment of the hand is determined, the impairment values are added together to determine the total hand impairment. I added the 8% impairment rating with the 4% impairment rating and the result is a 12% impairment rating of the hand.
Table 2 of the AMA Guides (p. 16) concerns the relationship of impairment of the hand to impairment of the upper extremity. Table 2 confirms that a 12% impairment of the hand equates to an 11% impairment of the upper extremity. Finally, Table 3 (p. 16) of the AMA Guides contains impairment values concerning the relationship of upper extremity impairment to impairment of the whole person. According to Table 3 in the AMA Guides, the 11% left upper extremity impairment results in a 7% whole person impairment.
CONCLUSION
I conclude the quantum of the NEL award for the left hand impairment is 7%.
The worker’s objection is allowed.
DATED January 29, 2024
C. Goegan Appeals Resolution Officer Appeals Services Division