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

Worker’s Position

The worker was self-represented at the hearing and was accompanied by her spouse. The worker described the challenges she has faced with her WCB claim and noted that: "To this day I still have a lot of pain in my left shoulder, arm, elbow and hand whenever I try to do anything." With respect to the PPI rating, the worker observed that her rating was reduced on account of a pre-existing condition but then pointed out that prior to the injury, the pre-existing condition in no way kept her from working as a healthcare aide for over 25 years. She submitted that because of her ongoing pain, she was no longer able to do her job and she was forced to retire. She did not feel that the PPI award that she was granted made up for her ten or more years of lost pay.

Analysis

The issue before the panel is whether or not the worker's permanent partial impairment rating has been correctly calculated. In order for the worker's appeal to succeed, the panel must find that the Policy was not correctly applied in her case. We are not able to make that finding.

The panel has considered whether the worker is entitled to any change in her rating for loss of passive range of motion in her left shoulder. We could find no error in the calculations. The panel gave consideration as to whether the worker's right shoulder measurements were properly used as a guideline for her normal range of joint movement. While there was some indication on the file that the worker had suffered a previous right shoulder injury in 1992, it would appear that this injury had fully resolved without any continuing restriction. The worker confirmed this information at the hearing. As a result, it was appropriate for the WCB to compare her left shoulder range of motion with her right-sided measurements. We see no basis for changing the calculation for left range of motion deficit.

With respect to an impairment award for cosmetic deformity, an assessment was performed by the WCB medical advisor 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 medical advisor that there is no rateable cosmetic impairment related to the compensable injury. The medical advisor made the determination based on his own visual examination of the worker’s incision points and he has broad experience in making such recommendations.

With respect to the reduction on account of a major pre-existing condition, although the worker submits that the pre-existing condition never affected her prior to the accident, the medical evidence clearly indicates that degenerative changes were nevertheless occurring. The MRI of March 6, 2008 identified the presence of moderate AC joint arthrosis. This is a degenerative condition which develops over a long period of time, and would have pre-dated the compensable injury. The note of the WCB medical advisor dated July 24, 2009 confirms that: "There was moderate left AC joint osteoarthritis noted on MRI March 6, 2008. This pre-existing pathology likely contributed to the development of the workplace diagnosis and the prolonged duration of the claim." In view of the foregoing, the panel finds that it was appropriate for the WCB to prorate the worker's PPI on account of a major pre-existing condition.

The panel acknowledges the worker's submission that as a result of the compensable injury, she is not able to use her left arm to carry out the duties she used to perform. She lacks the strength she once had and also has had pain and discomfort since her surgery. The panel has sympathy for her situation but unfortunately, a permanent partial impairment rating for her shoulder is based on loss of range of motion only. The change in her functional ability is not a factor taken into consideration when calculating the permanent impairment award.

The panel therefore finds that the worker's permanent partial impairment rating has been correctly calculated. The worker's appeal is dismissed.