The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on January 23, 2003, at the claimant's request. The hearing was later reconvened on June 17, 2003.

Issue

Whether or not the worker is entitled to a permanent partial disability award.

Decision

That the worker is not entitled to a permanent partial disability award.

Decision: Unanimous

Background

On March 14, 1991, the claimant filed a claim with the Workers Compensation Board (WCB) for a right shoulder injury that occurred when he was moving a bottle bin at work. The diagnosis rendered by the attending physician was an acute strain of the right shoulder and tendonitis of the right biceps.

The claim was accepted by the WCB and benefits were paid between March 14, 1991 and February 21, 1992 when it was confirmed by Review Office that the claimant had recovered from the effects of his compensable injuries. This conclusion was based on a physiatrist's report dated February 20, 1992. Review Office's decision was up-held by the Appeal Commission on August 18, 1992. For a complete background of the case up to this point, please refer to Appeal Panel Decision No. 258/92.

On August 12, 1993, a different Appeal Panel considered the issue of whether or not to convene a Medical Review Panel (MRP). The Appeal Panel determined that there was no basis for conducting an MRP as there did not appear to be a difference of medical opinion with respect to a medial matter as required under section 67(4) of The Workers Compensation Act (the Act). Please refer to Appeal Panel Decision No. 279/93 for complete details leading up to this decision.

On September 4, 2002, the claimant wrote to a WCB adjudicator indicating that his condition had deteriorated and that he wished to have the degree of his impairment reconsidered. In a response dated September 26, 2002, the adjudicator referred to the Appeal Panel's 1992 decision when it confirmed that the claimant had recovered from the effects of his compensable injury. Based on this decision, there was no basis to award the claimant a rateable permanent partial disability/impairment award.

On October 3, 2002, the claimant wrote to the Appeal Commission including a report from his attending physician dated August 28, 2002. The claimant felt that this information supported his position that his impairment was clearly the result of his 1991 work place accident. The claimant stated, in part, "According to the WCB Act, Section 38 which deals with an 'impairment', I am entitled for a ratable PPI." On October 4, 2002, the claimant was informed by the Appeal Commission's Registrar that this issue had to be addressed by the Review Office before it could be considered by the Appeal Commission.

On October 10, 2002, the claimant appealed the WCB's decision that he was not entitled to an impairment award. In his submission to Review Office, the claimant made reference to opinions expressed by his attending physician dated August 28, 2002 and by a WCB medical advisor dated May 23, 1991.

Prior to Review Office's rendering a decision with respect to the above appeal, primary adjudication wrote to the claimant on October 17, 2002. The claimant was advised of the WCB's position that he was not entitled to any permanent rateable impairment in regard to his right arm and shoulder injury as it had been determined that he had sufficiently recovered from the effects of his compensable accident.

On November 22, 2002, Review Office determined that the claimant did not have a rateable loss in range of shoulder movement resulting from his accident and he was therefore not entitled to a permanent partial disability award. Review Office in arriving at its decision considered all of the medical information on file including an opinion expressed by the WCB's healthcare department. In December 2002, the claimant appealed Review Office's decision and an oral hearing was arranged.

On January 23, 2003, an oral hearing took place at the Appeal Commission. At the request of the claimant's solicitor, the hearing was adjourned sine die so that he could obtain further medical information with respect to the claimant's alleged loss of range of motion in his right shoulder region. On April 15, 2003, the claimant contacted the Appeal Commission to advise that he wanted to set a date to continue the Appeal Panel hearing. The hearing was reconvened on June 17, 2003.

Reasons

Section 60(2) of the Act in force at the time of the claimant's compensable injury, provides exclusive jurisdiction to the WCB to determine the existence and degree of an impairment by reason of any injury arising out of and in the course of employment. According to Section 40(1) of the Act, the WCB shall allow compensation for the worker's physical loss occasioned by the disability. Also, Section 4(9) allows the awarding of compensation in respect of a permanent disability even though there has been no temporary disability.

An injured worker's permanent impairment is appraised by the Medical Services Department of the WCB when it conducts either a medical examination of the worker or by its reviewing the treating physician's medical reports. Certain factors are taken into consideration: loss of the particular part of the body; loss of mobility in the joints; loss of function of any body organs; and cosmetic deformity of the body. As some forms of impairment do not allow for exact measurement, it becomes necessary for the medical advisor to make a subjective judgement as to the degree of disability/impairment.

It is also important to note that because pain is immeasurable, it does not become a component in the determination of whether a claimant qualifies for a permanent partial disability/impairment award. For instance, a claimant who has complete and full range of motion of a shoulder following an injury to that shoulder would not be eligible for a permanent partial disability/impairment award because of his continued experience of pain. Without a loss of range of motion or function of body part, the WCB will not authorize a permanent partial disability/impairment award based on pain alone.

When determining a permanent partial disability/impairment award, the WCB relies upon a permanent impairment rating schedule adopted by the Board of Directors. The schedule provides in part:

"Permanent impairment is evaluated by conducting a medical examination of the worker or by reviewing the medical history documented on file as described in the policy statement. Evaluation of a permanent impairment is made when treatment has been completed or when, in the opinion of the Board's physician, the medical condition has stabilized and no further improvement is expected. The timing of the evaluation, therefore, varies according to the individual circumstances."

We carefully studied the medical evidence on file with respect to the claimant's right shoulder difficulties. In arriving at our decision, we attached considerable weight to the following body of evidence:

• May 23rd, 1991 - WCB medical advisor examines claimant and finds the claimant has a loss of normal rhythm of his right shoulder, which suggests an impingement syndrome probably, related to a rotator cuff injury.
• June 19th, 1991 - An orthopaedic specialist examines the claimant and suggests further investigation to rule out whether or not the claimant has a rotator cuff tear in his right shoulder.
• August 10th, 1991 - A neurologist examines the claimant and comments that the examination was difficult because the claimant inclined to give way on testing of power particularly below the elbow. The specialist found no significant loss of power as well as no evidence of any muscle wasting and that the claimant was not using his right arm, which in itself caused problems. There was no evidence of any ongoing neurological disease.
• September 30th, 1991 - CT arthrogram and arthrogram reveal normal right shoulder with no abnormalities detected.
• October 10th, 1991 - The treating orthopaedic specialist examines the claimant's right shoulder. The examination showed the claimant's right shoulder movements to be within normal limits and that there was no structural damage to the shoulder joint as well as to anywhere else in the upper limbs or lower back.
• November 14th, 1991 - The treating orthopaedic specialist comments that he is uncertain whether there is any organic basis for the claimant's continued symptomatology because of conscious or unconscious exaggeration of his condition.
• February 1992 - The treating physiatrist reports that the claimant had full range of right shoulder movement together with good strength and that the claimant was capable and fit to resume employment.
• January 11th, 2001 - MRI of right shoulder revealed no evidence of a rotator cuff tendon tear and no focal atrophy of the rotator cuff musculature.
• September 18th, 2002 - A WCB medical advisor reviewed the file and concluded that the claimant did not have a rateable permanent partial disability/impairment as a consequence of the compensable accident.

We find that the overwhelming evidence does not support the claimant's contention of his having sustained a permanent partial disability/impairment of the right shoulder. There is no apparent diagnosis in play at this time, which is either causally related to the claimant's compensable injury or to his current right shoulder difficulties. We further find that there is no basis to designate a permanent partial disability/impairment award to the claimant. Accordingly, the claimant's appeal is hereby dismissed.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

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

Signed at Winnipeg this 23rd day of July, 2003