The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on September 27, 2005, at the request of legal counsel, acting on behalf of the worker. The Panel discussed this appeal on the same day.

Issue

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

Decision

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

Decision: Unanimous

Background

The worker filed a claim with the Workers Compensation Board (WCB) for right elbow and shoulder pain that occurred during the course of his employment as a spray painter on July 6, 1999. The worker was diagnosed by his treating physician as having right shoulder tendonitis and right lateral epicondylitis. The worker was also noted to have a pre-existing condition that limited his shoulder movement. The claim for compensation was accepted by the WCB and benefits were paid accordingly. The worker has permanent restrictions related to his right hand and arm and is presently in receipt of WCB vocational rehabilitation benefits.

On February 26, 2003, a WCB medical advisor stated that the medical reports on file did not document a loss in range of motion of the worker's elbows or other findings which would warrant a PPI (Permanent Partial Impairment) rating. Based on these findings, a WCB adjudicator informed the worker on March 11, 2003 that he did not have a permanent rateable impairment as a result of his right elbow and shoulder injuries.

On March 24, 2003, the WCB's Review Office received an appeal submission from the worker with regard to the WCB's decision of March 11, 2003. The worker stated "I cannot lift much weight or even grasp items as I used to. I cannot throw footballs or baseballs as I used to. When I do, it feels like my arm wants to dislocate. I cannot lift my arm as I used to. There is no scars, but just like love, you cannot see it but you can feel it. Love is a good feeling but sometimes, love hurts. Dr. [name] will send his report A.S.A.P.".

In a decision dated March 28, 2003, Review Office noted that the worker's elbow and shoulder problems were unchanged according to his treating physician. Review Office made reference to the WCB's Permanent Impairment Rating Schedule along with the comments made by a WCB impairment awards medical advisor wherein he stated that the worker had no loss in range of motion according to the medical reports on file. Given these factors, Review Office found that the ruling to deny a PPI award was correct. On June 20, 2005, the worker's legal counsel appealed Review Office's decision and a standard oral hearing was arranged.

Reasons

Subsection 60(2) of the Workers Compensation Act of Manitoba (the Act) provides exclusive jurisdiction to the WCB to determine the existence and degree of impairment by reason of any injury arising out of and in the course of employment. According to subsection 38(1) of the Act, the WCB shall determine the degree of a worker's impairment expressed as a percentage of total impairment. Also, subsection 4(9) allows the discretionary awarding of compensation in respect of an impairment that does not result in a loss of earning capacity.

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 impairment.

It is also important to note that because pain is immeasurable, it does not become a component in the determination of whether a worker qualifies for a PPI award. For instance, a worker who has complete and full range of motion of a shoulder following an injury to that shoulder would not be eligible for a PPI 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 PPI award based on pain alone.

In appropriate cases, WCB impairment award medical advisors, for purposes of determining a cosmetic impairment rating, will review photographs of an injured worker's operative scars. Certain criteria are employed when deciding on a cosmetic impairment. Some of the factors considered when reviewing scarring include location of scar, form, multiple sites, texture, colour etc. Photographs are taken of the scarring and they are then reviewed independently by three medical advisors. A portfolio of photographs is also maintained at the WCB for purposes of comparing similarity and ensuring consistency.

When determining a PPI 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."

As the background notes indicate, the worker developed pain in his right elbow and shoulder while spray painting in the course of his employment on July 6, 1999. The worker's condition was diagnosed by his treating physician as right shoulder tendonitis and right lateral epicondylitis. We note that the worker has a pre-existing condition that limits his shoulder movement.

The worker was examined by a WCB medical advisor on or about August 20, 2001. According to the medical advisor's examination notes, the worker was found to have full extension, flexion, pronation and supination of both elbows and that his shoulder condition had returned to pre-accident status. Range of motion in the worker's right shoulder was found to be identical to that in his left shoulder.

There was no new medical evidence referred to or presented at the hearing to suggest or to support the contention that there had been a loss of range of motion of the elbows and/or the shoulders which would warrant a PPI rating. Therefore, we find that the worker is not entitled to a PPI award. Accordingly, the worker'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 2nd day of November, 2005