The Appeal CommissionThe Workers Compensation Act of Manitoba

This matter came before the Appeal Commission by way of a file review. In 2002 the worker sustained a sprain/strain of his lower back which was superimposed on pre-existing degenerative pathology. In mid-2005, the WCB accepted responsibility for the full injurious result of that injury on the basis that a compensable accident had permanently enhanced the worker's pre-existing condition. Accordingly the WCB has been paying and continues to pay, compensation to the worker in the form of wage loss benefits.

In addition to wage loss benefits, the Board determined that the worker was entitled to a permanent partial impairment award of 3.8%.

Subsection 4(9) and section 38 of the WCB Act deal with impairment awards. Subsection 38(1) provides that the WCB:

… shall determine the degree of a worker's impairment expressed as a percentage of total impairment.

Subsection 38(2) provides a scale for the value of lump sum awards based on the degree of impairment.

The Board of Directors established Policy 44.90.10.02 ("the Policy") being the Permanent Impairment Rating Schedule. This Schedule is designed to measure the degree of permanent impairment of a body function following an injury. Permanent impairment is measured by factors such as, for example, the loss of a part of the body or loss of mobility in a joint or cosmetic deformity of a body part.

The issue before the Panel was whether or not the worker's permanent partial impairment rating in this case adequately reflected the degree of impairment for his compensable injury.

Subsection 60(2)(d) of the Act provides that the Board has exclusive jurisdiction to determine the existence and degree of an impairment. A worker's degree of impairment will be established by the Healthcare Management Services Department of the WCB in accordance with Policy 44.90.10.02.

A worker's permanent impairment is appraised by the Board's medical staff either by conducting a medical examination of the worker or by reviewing the worker's treating physician's medical reports. Certain factors are taken into consideration in assessing a permanent impairment award including loss of mobility in the joints and loss of function of any body organs. Because some forms of impairment do not allow for exact measurement, it may become necessary for a medical advisor to make a subjective judgment as to the degree of impairment. However, whenever possible and reasonable, impairment ratings will be established strictly in accordance with the Permanent Impairment Rating Schedule which forms part of WCB Policy 44.90.10.02.

It is important to note that because pain is not measurable, it does not become a component in the determination of whether and to what extent a worker qualifies for a permanent impairment award. For example, a worker who has complete and full range of motion of a shoulder following a compensable injury, would not be eligible for a permanent impairment award despite his continued experience of pain. Without a loss of range of motion or function of a body part, the WCB has determined that it will not authorize a permanent impairment award, based, for example, on pain alone.

The worker in this appeal was examined by a WCB medical advisor on January 20, 2006 to determine any impairment related to the 2002 compensable low back injury. The medical advisor assessed the worker's range of motion in accordance with the calculations required by the impairment rating Schedule A.

Based on his examination, the WCB medical advisor recommended a permanent partial impairment rating in the amount of 3.8%, having made reference to the criteria set out in the Permanent Impairment Rating Schedule. That Schedule provides that the criterion used for development of impairment ratings in regard to the spine (emphasis added) essentially involves measurement of restricted motion. This, therefore, was the criterion which formed the basis of the medical advisor's assessment and recommendation for a permanent impairment rating of 3.8%.

In this appeal, the worker stated that he felt that the impairment rating did not reflect the degree of impairment that he had sustained. He felt that his impairment was not properly covered by the rating schedule and that a judgment rating should be used to assess his degree of impairment instead. In support of his appeal he highlighted for the Appeal Commission certain sections of Schedule A to the Permanent Impairment Rating Schedule.

One of the sections he highlighted was under the heading Spinal Loss of Movement: Immobility of the Lumbar and Thoracic Spine, Complete – 30.0%.

Another of the sections highlighted was the section of the Schedule relating to the Nervous System and in particular: Station and Gate: 1. Ability to stand and walk, but has difficulty with elevation, steps and distances – 5 -15%.

The worker in his appeal also asked that numbness and lack of proper function in his right leg be taken into account in assessing his impairment award.

The Panel in reviewing this appeal is bound by the provisions of the Act and Policies. In this case, the Policy does not provide for any assessment criteria relating to the worker's compensable low back injury other than an assessment of range of motion. We note, as well, having reviewed the worker's file in its entirety that the medical evidence relating to the worker's compensable injury does not support neurologic damage. There is no basis, therefore, to apply that portion of the rating schedule which the worker drew to the Panel's attention dealing with permanent impairment ratings for the nervous system. Nor do we find any evidence to support the worker's argument that the impairment rating in this case cannot be made in accordance with the schedule and therefore requires a judgment rating.

We note the following provisions of the Policy which are significant to this appeal:

2. Whenever possible, and reasonable, impairment ratings will be established strictly in accordance with the schedule attached as Appendix A.

3. In the event that the Healthcare Management Services Department feels that strict adherence would create an injustice, or if it is felt that an impairment exists that is not covered by the schedule Healthcare Management Services may deem it just and fair to establish an impairment rating that is not specifically covered by the schedule. …

In considering the worker's appeal, we find that the worker's impairment is in fact covered by the Schedule and that strict adherence to the Schedule does not create an injustice, having reviewed the evidence in the file in its totality.

We also find that the permanent partial impairment rating adequately reflects the degree of impairment for the worker's compensable injury.

We acknowledge that this area of compensation may appear to the layman to be technical in its assessment and as such is subject to possible misunderstanding on the part of the recipient of benefits.

It is important to recognize that workers are covered for compensable injuries by the WCB through a number of means as prescribed by legislation including compensation for wage loss, rehabilitation and compensation by way of an award for permanent partial impairment.

Impairment awards, it should be noted, are not related to loss of earning capacity, nor are they a proxy for loss of earning capacity.

We point out as well that the Act provides that a worker with an impairment may apply for reconsideration of the degree of the impairment, where there has been a significant deterioration of the worker's medical condition, as set out in subsections 38(6) and (7) of the Act. The worker may wish, therefore, to consider applying for reconsideration of his impairment award, at the appropriate time.