The Appeal CommissionThe Workers Compensation Act of Manitoba

Applicable Legislation and Policy

The Appeal Commission is bound by the Act and the policies of the WCB’s Board of Directors.

Subsection 4(9) provides that the board may award compensation in respect of an impairment that does not result in a loss of earning. Subsection 38(1) provides that the board shall determine the degree of a worker’s permanent impairment expressed as a percentage of total impairment. Pursuant to subsection 38(2), an impairment award is not payable for an impairment assessed at less than 1%.

The Board of Directors has enacted policy 44.90.10.02, the Permanent Impairment Rating Schedule. In accordance with this schedule, loss of movement or function of an upper extremity such as the shoulder is calculated as follows:

The impairment rating for partial loss of movement or function resulting from direct injury or related surgical procedures will be proportional to the amount of movement or function that is lost based on clinical findings, as a percentage of the assigned ratings for complete joint immobility. As there are great variations from person to person in ranges of movement, when there is a completely normal extremity to compare with, loss of movement can be determined by comparing the movement in the joint being examined with the movement of the normal joint on the opposite extremity.

The schedule provides that where there is not a normal extremity with which to compare, a table of expected normal ranges of movement will be used.

Worker’s Position

The worker provided a written submission dated October 22, 2007. In this submission he noted that the test performed by the WCB physiotherapist when he was assessed for his PPI was not an indication of his two shoulder injuries. He noted that he was not asked to lift any weights which would demonstrate the problem he had performing his employment. He also noted that he previously advised of difficulties in day to day living caused by his injuries. He stated that a disability which results in termination of employment followed by a .5% impairment rating reflects the unfairness of the WCB.

In a subsequent letter dated November 30, 2007, the worker asked that a functional capacity evaluation be performed to obtain an accurate measure of his disability.

Analysis

The issue before the panel is whether the worker’s PPI rating of .5% was correct.

The worker has expressed concern that the measurement of passive range of motion does not accurately measure the impairment of his shoulders. He has asked that a functional capacity evaluation be performed to measure the impairment of his shoulders. The panel notes that the Policy does not authorize the use of a functional capacity evaluation for the purposes of an impairment rating. Under the Policy, an impairment award for a shoulder is based only on the loss of range of motion. The panel is unable to grant this request.

The worker has also expressed concern that the rating of .5% is not adequate for an impairment that has resulted in the loss of employment. The panel notes that the Policy provides that an impairment award is not related to loss of earning capacity and is not a proxy for loss of earning capacity. Wage loss benefits are payable in the case of loss of earning capacity. The impact of the impairment upon the lifestyle or employment of a worker is not part of the impairment rating.

The panel has reviewed the examination notes of the WCB physiotherapy consultant. The consultant noted that as both the worker’s shoulders were injured, the worker’s passive shoulder mobility was compared to expected values. The consultant used a goniometer, as per the American Academy of Orthopedic Surgeons “The Clinical Measurement of Joint Motion” handbook.