The Appeal CommissionThe Workers Compensation Act of Manitoba

Applicable Legislation

The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the Board of Directors. Under subsection 4(1) of the Act, where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid to the worker by the WCB.

Payment of compensation for an impairment is provided for under section 38 of the Act, which reads as follows:

Determination of impairment

38(1) The board shall determine the degree of a worker’s impairment expressed as a percentage of total impairment.

Calculation of impairment award

38(2) Where the board determines that a worker has suffered an impairment, the board shall pay to the worker as a lump sum an impairment award ….

In accordance with the Act, the Board of Directors enacted WCB Policy 44.90.10.02

Permanent Impairment Rating Schedule (the “Policy”) which provides guidelines on how impairment awards are to be calculated. The Policy states:

1. The degree of impairment will be established by the Healthcare Management Services Department of the Workers Compensation Board in accordance with this policy. The degree of impairment established by this Department can only be altered on review and approval by the Executive or Senior Director responsible subject to the normal appeal process.

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

For injuries to upper extremities, Appendix A provides as follows:

Loss of Movement/Functions

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.

When there is not a normal extremity with which to compare, the following will be considered as guidelines for normal ranges of movement for upper extremity joints:

Shoulder:

Forward flexion 150 degrees

Backward elevation 40 degrees

Abduction 150 degrees

Adduction 30 degrees

Internal rotation 40 degrees

External rotation 90 degrees

…

Muscular:

Rupture of the long head biceps brachii - 1%

Worker’s Position

The worker's request to Review Office for reconsideration stated: "There was a ligament removed from my arm, as such I can no longer do many of the jobs I used to do." Similarly, the worker's appeal form to the Appeal Commission submitted that he ought to be entitled to a PPI award for a ligament which was removed from his shoulder.

Analysis

The issue before the panel is whether the worker is entitled to a PPI award. In order for the worker's appeal to succeed, the panel must find that the worker qualifies under the terms of the Policy for a PPI award.

The panel has considered whether the worker is entitled to an impairment award for loss of movement/function and we find that he is not. We agree with the WCB's assessment that as there is no measurable loss of range of motion in the worker's left shoulder, there is no entitlement under the Policy for loss of mobility.

With respect to an impairment award for cosmetic deformity, an assessment was performed by the WCB physiotherapy consultant based on a judgment rating. The Policy provides for a rating for disfigurement and provides as follows:

Disfigurement is an altered or abnormal appearance. This may be an alteration of color, shape, or structure, or a combination of these and can also include loss of function due to contractures as a result of scarring.

The rating for disfigurement is done by the Board’s Medical Department and the degree of disfigurement is determined on a judgmental basis. The maximum rating for disfigurement, in extreme cases, is 25%. Typical awards for disfigurement are between 1 and 5%. In order to maintain consistency in awards for disfigurement, and to make the awards as objective as possible, Medical staff will make reference to the folio of previous disfigurement awards established as policy by Board Order No. 67/89 and maintained by the Director of Benefits Division as prescribed in Board Order 67/89.

We find that there is not sufficient evidence before the panel to warrant disturbing the recommendation of the WCB physiotherapy consultant that there is no rateable cosmetic impairment. The physiotherapy consultant made the determination based on her own visual examination of the worker’s incision points and she has broad experience in making such recommendations.

The final area of consideration concerns the worker's submission regarding the ligament which he says was removed from his shoulder. The panel assumes that the worker is referring to the biceps tenotomy which was performed during the worker's left shoulder surgery. Following our initial review of this appeal, the panel requested information from the WCB concerning the biceps tenotomy. By memorandum dated February 3, 2011, the WCB’s Director of Healthcare Services advised that he had consulted with the Senior Medical Advisor, Physiotherapy Consultant and Orthopaedic Advisor, and responded to the panel's query as follows:

1. Is the muscular impairment resulting from a biceps tenotomy (performed during surgery) considered to be equivalent to the muscular impairment resulting from a rupture of the long head biceps brachii?

Response: Biceps tenotomy has become a more common procedure carried out during arthroscopic repair of the rotator cuff if the surgeon believes the tendon to be a possible source of pain within the shoulder joint. A biceps tenotomy can generally be considered to be the equivalent of a complete rupture of the long head biceps brachii.

In view of the advice that a biceps tenotomy is generally the equivalent of a complete rupture of the long head biceps brachii, the panel is of the view that the worker qualifies under the Policy for a muscular impairment for a rupture of the long head biceps brachii. As outlined above, the impairment rating for this condition is 1.0%.