The Appeal CommissionThe Workers Compensation Act of Manitoba

Worker’s Position

The worker completed an Appeal of Claims Decision form, dated June 27, 2006, on which she appealed the amount of the PPI award. She also asked that she be compensated for being improperly diagnosed and treated for her condition. She noted that she lives and works with pain every day.

She also provided a letter to the panel in support of her appeal. Her letter, dated August 9, 2006, provided, in part; as follows:

“I feel at this time my arm has deteriorated and that I should be awarded 25% for my impairment, 2 1/2 % for scarring and only reduced by 10% for age over 45 years. My accident was in 1996 at which time I was 50 years old.”

The worker enclosed a copy of a report from her family physician dated August 23, 2006. The report notes that the worker began attending the physician on January 31, 2006. The physician stated that at the most recent visit to his office, July 28, 2006, the worker exhibited significant stiffness and restriction of motion with respect to her right shoulder joint in that she was able to abduct and flex her right shoulder only to a level of 75% actively and passively. He also noted that internal and external rotation were also very restricted. The physician provided the opinion that the worker has a significant permanent impairment with respect to her right shoulder joint as a result of osteoarthritis occurring in this region which is related to her remote injury and subsequent surgical repair.

Applicable Legislation and Policy

Subsection 60(2) of the Act provides exclusive jurisdiction to the WCB to determine the existence and degree of impairment from a workplace injury. 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. This scale is adjusted annually and is published in a regulation.

When determining a PPI award, the WCB relies upon a permanent impairment rating schedule adopted by the WCB Board of Directors as Policy 44.90.10.02, Permanent Impairment Rating Schedule.

The 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 the loss of mobility in a joint. With respect to the upper arm/shoulder, the criteria involves measurement of restricted motion. The impairment rating for partial loss of movement is proportional to the amount of movement that is lost on clinical findings, as a percentage of the assigned ratings for complete joint immobility. When there is a normal arm/shoulder to compare with, the loss of movement can be determined by comparing the movement in the injured joint to the movement of the normal joint. In this case, the worker’s injured right shoulder was compared to her left shoulder.

With respect to when an impairment is evaluated, the schedule provides in part:

“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.”

It is also important to note that pain is not measurable and does not become a component in the determination of a PPI award. In this appeal, the worker has requested that the PPI award include compensation for pain. The panel finds that this request cannot be considered under the current legislation.

In considering the worker's appeal, the panel is bound by the Act, regulations and policies of the Board, including Policy 44.90.10.02, Permanent Impairment Rating Schedule.

Analysis

The issue before the panel is whether the worker’s PPI award is correctly rated at 12%. The panel considered all the evidence, reviewed the impairment calculation and the monetary value calculation, and finds that the worker’s PPI award is correctly rated at 12 %.

The panel notes that the worker was injured in 1996. She was 50 years old at the time of the injury. The worker had surgery in 2002.

The rating assigned to the worker’s injury included 10.10 % for loss of movement and 2% for incision scar and an arthroscope scar. The total was rounded down to 12%. The panel notes that the examiner measured the range of motion of the right and left shoulders including forward flexion, backward flexion, abduction, internal rotation and external rotation. The panel finds that the examination was conducted in accordance with the Permanent Impairment Rating Schedule.

The monetary value of the award was calculated as follows:

First 10% $1070.00

Next 2 % $1070.00 x 2 $2140.00

Sub total $3210.00

Less age reduction (50-45=5 x 2%=10%) -321.00

Award $2889.00

The panel finds that the age reduction was made and calculated in accordance with subsection 38(3) of the Act.

The panel notes that the worker sought compensation for a misdiagnosis of her condition. This issue is not before the panel and is not a consideration in calculating the PPI award. The worker also asked for compensation for pain. As already noted in this decision, pain is not considered to be measurable and is not part of the calculation of the worker’s PPI award.