The Appeal CommissionThe Workers Compensation Act of Manitoba

Section 60(2) of The Workers Compensation Act of Manitoba ( the Act ) in force at the time of the compensable injury provides exclusive jurisdiction to the Workers Compensation Board (WCB) to determine the existence and degree of a disability (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 determine the degree of a worker’s disability (impairment) expressed as a percentage of total disability (impairment). Also, Section 4(9) allows the awarding of compensation in respect of the permanent disability even though there has been no temporary total disability.

An injured worker’s permanent disability (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 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 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 disability (impairment) award based on pain alone.

When determining a PPD award, the WCB relies upon a permanent impairment rating schedule adopted by the Board of Directors. It 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.”

As the background notes indicate, the claimant sustained a right shoulder injury as a result of a workplace incident on July 14^th, 1987. The initial diagnosis was a right shoulder dislocation and first degree acromioclavicular joint sprain. The claimant later underwent a right shoulder Bristow repair for a diagnosis of recurrent glenohumeral dislocations on November 3^rd, 1987.

A little over two years later, he was examined by a WCB medical advisor on November 14^th, 1989 for the purpose of establishing a potential permanent partial disability (PPD) rating as a consequence of his compensable injury. At the time of this examination, the claimant had been unable to return to work because of pain on movements of his right shoulder. Following his examination of the claimant, the medical advisor concluded that “Since there is only slight limitation of external rotation there is no rateable PPD.”

On January 16^th, 1998, an orthopaedic consultant to the WCB examined the claimant at which time the consultant recorded reduced abduction and external rotation of the claimant’s right shoulder. In addition, the consultant recommended that the proposed surgery of subacromial decompression by acromioplasty be accepted as a responsibility of the WCB.

The claimant underwent a right shoulder arthroscopy on May 14^th, 1998. The treating surgeon reported some degenerative change at the glenohumeral joint consisting of a crater in the center of the glenoid measuring approximately 2 cm by 2 cm, and about 50% thickness. He also detected significant fraying of the labrum superiorly as well as anteriorly. According to the operative report, arthroscopic treatment included shaving of the degenerative superior labrum, excision of the outer portion of the distal clavicle where there found to be a degenerative acromioclavicular joint and an anterior acromioplasty.

The WCB determined that the effective date of the claimant’s permanent partial disability (PPD) award was initially April 25^th, 2000 being the date that the claimant was next examined by a WCB impairment award medical advisor. However, this date was subsequently changed by virtue of a Review Office decision to May 14^th, 1998 being the time of the claimant’s second shoulder surgery.

We agree with Review Office that the effective date of the claimant’s PPD could not be any earlier than the May 14^th, 1998 surgery because according to the evidence the claimant’s condition had not yet plateaued or stabilized as is required by the permanent impairment rating schedule. There has been no evidence presented to the WCB or to this Panel establishing an earlier date for the permanent partial disability (impairment). Therefore, we find that the effective date of the claimant’s right shoulder permanent partial disability (PPD) award should be May 14^th, 1998. Accordingly, the claimant’s appeal is hereby dismissed.