The Appeal CommissionThe Workers Compensation Act of Manitoba

Applicable Legislation and Policy

While this appeal deals with two separate claims, the issue in each claim is whether the worker is entitled to a PPI award.

The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the 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 1(1) of the Act defines "impairment" as "a permanent physical or functional abnormality or loss, including disfigurement that results from an accident." Subsection 38(1) provides that the board shall determine the degree of a worker’s permanent impairment expressed as a percentage of total impairment. Subsection 60(2) of the Act provides that the WCB has exclusive jurisdiction to determine the existence and degree of impairment and whether it results from an accident.

In support of this authority, the Board of Directors has enacted policy 44.90.10.02, the Permanent Impairment Rating Schedule which sets out how permanent impairment awards are determined and calculated.

Worker's Position

The worker sent a written submission to the Appeal Commission which was received on October 26, 2010.

In the submission, the worker wrote "2. entitled benefits of disability pension and PPI because of injury/medical condition sustained in and out of course of employment" and lists the following "apparent diagnosis":

- Painful cervical spondylosis

- Frozen shoulder left

- Radioculopathy Cervical

- Disproportionate Cronic (sic) Pain (PMU)

The worker refers to evidence of disability for the cervical, thoracic and lumbar spine. The submission records the worker's current symptoms.

The worker notes that WCB has identified the worker's restrictions as "Permanent. Repetitive strenuous overhead activities of left upper limb." He notes that he never returned to his pre-injury job after the injury, and only worked light duties with reduced hours and with medical restrictions.

The worker submitted that given the total medical information, there is objective evidence supporting the existence of permanent impairment arising from the medical conditions which developed as a result of the industrial injury on May 1, 2006. He submitted that the consistent and persistent symptoms support the cause-effect relationship with the workplace. The worker further submitted that the effective date of the permanent impairment should be November 2007 at which time a WCB orthopaedic consultant commented that the worker appears to be at maximum medical improvement.

Analysis

2006 Claim

For the worker to be successful on the appeal for a permanent impairment arising from the 2006 injury, the panel must find, on a balance of probabilities, the worker has a permanent impairment as a result of the injury.

The panel was unable to find, on a balance of probabilities, that the worker suffered a permanent impairment as a result of this 2006 workplace injury.

In his submission the worker referred to a frozen left shoulder. The panel finds that the worker does not have a permanent impairment related to his left shoulder. The panel notes that a previous panel of the Appeal Commission found that the worker did not have a frozen left shoulder. This panel agrees with this finding and in doing so relies upon the November 26, 2008 report of the worker's orthopaedic specialist who concluded that there was no definite evidence of significant structural abnormality of the shoulder arising from the workplace injury. The panel notes this finding is consistent with the March 19, 2007 MRI which showed an "essentially normal shoulder" and no evidence of rotator cuff tendon tear.

The worker argued that the WCB's establishment of a permanent restriction is evidence of his permanent impairment. The panel notes that on December 9, 2008 a WCB orthopaedic consultant revised the worker's permanent restrictions to:

• Avoid repetitive strenuous overhead activities, left upper limb.
• Permanent

However, the panel notes the consultant found no definite evidence of significant structural abnormality of the shoulder arising out of the workplace injury. The consultant also referred to the findings of the worker's orthopaedic specialist which indicated good range of motion and no loss of internal or external rotation.

The worker also requested a permanent impairment related to his cervical spine. He specifically noted diagnoses of cervical spondylosis and radiculopathy. The panel notes that the diagnosis of cervical spondylosis has not been accepted as a compensable condition by the WCB.

With regards to radiculopathy, the panel notes the February 2, 2007 report of the neurosurgeon which stated "…clinical presentation is not necessarily suggestive of radiculopathy or in other words, most of the symptoms the patient is experiencing is most probably arthropathic." The panel also notes that at the examination by a WCB orthopaedic consultant on November 20, 2007, no significant loss of range of motion was found.

The worker also identified chronic pain as a diagnosis for a permanent impairment. The panel notes that the chronic pain is not a rateable impairment as defined in the Act.

The panel is unable to find, on a balance of probabilities, that the worker has a permanent impairment as a result of the 2006 workplace injury and accordingly is not entitled to a permanent partial impairment award in regards to this injury.

2008 Claim

For the worker to be successful on this appeal, the panel must find, on a balance of probabilities, that the worker suffered a permanent impairment as a result of the workplace injury.

The worker's 2008 claim is for a back injury suffered on April 9, 2008. The worker's incident report indicates that the worker was on a ladder getting a steel plate when he felt pain in his back. The steel plate was estimated to weigh 20 to 25 pounds. The doctor's first report indicates that the area of the injury was the low back, the objective findings were paraspinal tenderness, and the diagnosis was back strain.

File information indicates that the worker was off work for a short time, received physiotherapy and returned to work to alternate duties.

The panel reviewed the medical and other information on this injury and concludes that the worker does not have a permanent impairment as a result of the injury. Accordingly the worker is not entitled to a permanent impairment award.

In reaching this decision, the panel relies upon the following:

• Doctor's First Report notes diagnosis as "back strain"
• WCB medical advisor note indicates that recovery from a strain type injury is anticipated to occur in 2-4 weeks
• the treating physician's report of June 30, 2008 indicates "lumbar spine okay"
• a note of conversation with the treating physician, dated July 9, 2008, indicates the physician advised that the worker's current problems are not related to his back.