The Appeal CommissionThe Workers Compensation Act of Manitoba

The issue before the panel was whether the worker’s permanent partial impairment (PPI) award of $1024.00, based on an impairment rating of 5.30%, was correctly determined.

Applicable Legislation and Policy

The relevant provisions of the legislative scheme which govern this appeal are set out below. Subsection 60(2) of the Act provides exclusive jurisdiction to the WCB to determine the existence and degree of any disability by reason of any injury arising out of and in the course of employment.

Subsection 4(9) of the Act empowers the Board to award compensation in respect of an impairment that does not result in a loss of earning capacity.

Section 38 of the Act deals specifically with impairment awards. Subsection 38(1) provides that:

Determination of impairment

38(1) The board 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. Section 38(4) states that the values that are to be used are those in effect on the day of the accident. In this case, the worker’s injury was suffered on March 24, 2005. The values that were then specified in the Act were as follows:

38(2) Calculation of Impairment Award

Where the Board determines that a worker has suffered an impairment, the Board shall, subject to subsection (3), pay to the worker as a lump sum an impairment award in the following amount, for an impairment that is determined by the board to be

(a) 1% or greater but less than 5%: $500.;

(b) 5% or greater but less than 10%: $1000.;

(c) 10% or greater: $1000. plus $1000. for each full 1% of impairment in excess of 10%.

These amounts were subsequently retroactively increased by Manitoba Regulation 186/2005, so that the sum of $1000. referred to in (b) above was increased to $1280 effective January 1, 2005.

Section 38(3), which was then in effect, provided for the lump sum to be reduced where the worker was over 45 years at the time the board determined that the worker had an impairment:

38(3) Reduction for worker over 45

A sum payable under subsection (2) shall be reduced by 2% for each year of age the worker is over 45 years at the time that the board determines the worker has an impairment, but the reduction shall not exceed 40%.

Determination of Impairment

The WCB Board of Directors established a Permanent Impairment Rating Schedule which is attached as Appendix A to WCB Policy 44.90.10. That schedule is designed to measure the degree of permanent impairment of a body function following an injury. The schedule stipulates that permanent impairment is measured by the following factors: loss of a part of the body; loss of mobility in the joints; loss of function of any organs of the body identified in the schedule; and cosmetic deformity of the body.

The policy provides that the degree of impairment will be established by the Healthcare Management Services Department of the WCB in accordance with the policy. It also provides that whenever possible, and reasonable, impairment ratings will be established strictly in accordance with the schedule attached as Appendix A to that policy.

Impairment awards are calculated by determining a rating which represents the percentage of impairment as it relates to the whole body. The award is not related to loss of earning capacity, and it is not intended to compensate a worker for any pain or suffering flowing from an injury.

In considering the worker’s appeal in this case, the Appeal Commission is bound by the Act and policies of the WCB, including Policy 44.90.10 and Appendix A (the Permanent Impairment Rating Schedule).

Worker's position

In his appeal, the worker submitted that he suffered permanent nerve damage in his right foot and left arm. He stated that he experienced restriction when walking and lifting and that he experienced constant pain in both those areas.

Employer's position

The employer did not provide a submission.

Analysis

In this case, the injury that was accepted as compensable was related to the worker’s right leg and left elbow. Responsibility has not been accepted for the worker's right wrist condition and it is not a part of our decision.

The worker’s impairment rating of 5.30% was comprised of a cosmetic rating (related to scarring) of 1.0% and a rating of 4.3% attributable to a deficit in the worker’s passive right ankle mobility. The worker did not contest the cosmetic portion of the rating. For the worker's appeal to be successful we must find that the deficit in the worker's passive right ankle mobility has not been correctly calculated. We were unable to make that finding.

A PPI assessment of the worker was conducted by a WCB physiotherapy consultant on February 15, 2008. The consultant determined that the test results which were conducted for nerve sensation did not result in a ratable impairment of sensation. The gross mobility of both wrists was determined to be normal. Passive left and right elbow, forearm and ankle mobility was measured in accordance with “The Clinical Measurement of Joint Motion Handbook” of the American Academy of Orthopedic Surgeons. No impairment was found to exist with respect to the worker’s elbows or forearms.

The consultant assessed the degree of the loss of motion in the worker’s right ankle, when compared to his left ankle, as amounting to 28.6%.

The schedule provides that the rating for partial loss of joint movement or function resulting from an injury or related surgical procedures is proportional to the amount of movement or function that is lost as a percentage of the assigned ratings for complete joint immobility. The schedule establishes the maximum rating attributable for total immobility of an ankle to be 15% of the rating for the entire body. Applying the 28.6% of loss in right ankle mobility to the 15% maximum for loss of total ankle mobility generates a permanent partial impairment rating of (28.6% x 15%) 4.30% in respect of the loss of motion in the worker’s right ankle. Put slightly differently, the 4.30% assessment arising from the right ankle represents the percentage of impairment of the whole person.