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.

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 such cases they may use information other than the schedule such as the American Medical Association Guides to the Evaluation of Permanent Impairment established for a similar purpose. In such cases the award will not be official until it is reviewed and approved by the Director of Healthcare Management Services. The Healthcare Management Services Department will document the case and explain the justification for the non-scheduled award in full. Awards in excess of 20% must be reviewed and approved by the Director of Healthcare Management Services.

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.

Worker's position:

The worker was self-represented at the hearing. His position is that the complete rupture of his right biceps at the distal end (nearest the elbow) has rendered his right arm to be completely useless as a consequence of the injury and that a measurement of the range of motion of his forearm, for example, does not reflect the real loss of function associated with the injury. His doctor says he is totally disabled with respect to the use of his right arm, and he cannot use it at all for the activities of daily living.

Employer's position:

The employer did not participate in the appeal.

Analysis:

For the worker to be successful in his appeal, the panel would have to find that the current calculation by the WCB of the worker's PPI of 2.7% was incorrect. On a balance of probabilities, the panel was able to make this finding, for the reasons that follow.

In our initial consideration of this matter, the panel noted that section 2 of the policy states that "Whenever possible, and reasonable, impairment ratings will be established strictly in accordance with the schedule attached as Appendix A." The WCB's finding of a 2.7% PPI rating was derived from its use of this schedule.

The question for the panel was whether this was a case where the discretionary provisions of the policy might also apply, and in particular Section 3, which states that "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."

The panel therefore referred this matter back to the Director of Healthcare Management Services for consideration of the potential application of this section. The following question was asked:

"In the opinion of healthcare services, does the nature of the impairment sustained by the worker, namely a rupture of the right distal bicep, warrant consideration outside of the WCB's Permanent Partial Impairment schedule, specifically, an unscheduled rating pursuant to Section A3 of the policy? Please provide a detailed rationale in support of the opinion."

A response was received by the Appeal Commission from the Director on July 14, 2011, with an appended detailed evaluation of this matter by a WCB senior medical advisor, dated July 12, 2011. Following his comprehensive review of the file and of the issue under consideration by the panel, the senior medical advisor concluded as follows: