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. Subsection 39(2) of the Act provides that the WCB will pay wage loss benefits until such a time as the worker’s loss of earning capacity resulting from the accident ends.

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 ….

Reconsideration of Degree of Impairment

38(6) Subject to subsection (7), a worker who is determined under this section to have an impairment and who suffers a significant deterioration of his or her medical condition, may apply to the board to reconsider the worker's degree of impairment and, where the reconsideration results in a change in the percentage of the impairment, the board shall treat the reconsideration as though it were an initial determination under this section.

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

Analysis:

There are seven issues before the panel. We will address each issue in order.

1. Whether or not the worker's neck complaints are related to his August 26, 1996 compensable injury

The worker submits that when he was assaulted, he fell and struck his head. He was rendered unconscious. There was a laceration on the back of his head and a tooth was dislodged in his mouth. The worker felt that the extent of the impact would suggest that the assault was the cause of the neck problems he is now experiencing. MRI results showed there was a herniation which may be compromising the left C7 nerve root, and it was submitted that this was where his symptoms of cramping and arm numbness were coming from.

In order for the worker’s appeal on the first issue to be successful, the panel must find that the difficulties the worker experiences with his neck are related to the injuries he sustained in the workplace accident of August 26, 1996. While there is no doubt that the worker was the victim of a very serious physical attack, the panel is unable to conclude that his current neck problems are attributable to the assault.

In coming to our decision, the panel relies on the following evidence:

• A review of the WCB file reveals no significant complaints about neck symptoms until the October 31, 1997 call-in examination by the WCB medical advisor. This was over one year after the workplace assault. If an injury to the worker's neck had occurred during the assault, we would have expected to see symptoms of neck pain or evidence of radiculopathy in the period immediately following the injury.
• A CT scan of the cervical spine taken on August 12, 1998 identified no abnormalities present in the worker's cervical spine. While the panel acknowledges the worker's submission that an MRI scan provides more detailed imaging, the absence of findings in the CT scan are still probative and cannot be ignored.
• On October 18, 1999, the worker underwent a nerve conduction study. The results showed no evidence of a lesion at the C5, C6, C7, C8 or T1 levels of the worker's spine.
• At the hearing, the worker identified the October 15, 2000 MRI as evidence of an injury to his neck. The MRI found a herniation at C6-7 and reported that a left C7 nerve root compression could not be excluded. While the panel acknowledges that as of the date of the MRI, a herniation was identified in the worker's neck, it is difficult to tie this condition back to the workplace accident which occurred over four years earlier, particularly given the gaps in report of symptoms.
• The panel notes the February 27, 2002 analysis performed by a WCB medical advisor to determine whether the worker's left upper extremity symptoms were attributable to an injury at C7. After extensive review, the medical advisor concluded that the medical information did not establish the presence of a C7 radiculopathy to account for a component of the worker's left upper extremity symptoms. The panel accepts and relies on this medical opinion.

In view of the foregoing, the panel was not satisfied on a balance of probabilities that the worker’s neck complaints are related to his August 26, 1996 compensable injury. The worker’s appeal on the first issue is dismissed.

2. Whether or not the worker's permanent restrictions should include no periodic climbing of short ladders

The second issue before the panel concerns the types of duties the worker is capable of performing. In order for the worker's appeal to succeed, the panel must find that the worker's compensable injuries render him incapable of climbing a short ladder. We are not able to make that finding.

The worker's position at the hearing was that any ladder climbing would be outside of his physical restrictions. His restrictions required him to avoid repetitive work with his shoulders and limit lifting to 25 pounds. The worker weighed 220 pounds and he felt that his shoulders would not be able to handle the strain of climbing a ladder, even once or twice throughout a day.

The panel asked the worker questions about the type of ladder which was involved when he had discussions with the WCB regarding this restriction. The worker described a ladder with 5 to 7 rungs, 11 inches apart, positioned on the back of a truck approximately 1 ½ to 2 feet off the ground.

In the panel's opinion, the activity of climbing a ladder does not place as much demand on the shoulders as the worker alleges. A ladder can be climbed using the leg muscles as the primary means of propelling the body upwards. We do not feel that a very occasional requirement of climbing a ladder 2 or 3 times per day would exceed the worker's physical restrictions on his shoulders.

The panel also notes the worker's evidence at the hearing that when performing his current work duties of getting in and out of a semi tractor, he steps: "on the first step, and the second step and then I grab the steering wheel and I pull myself in." He is in and out of the semi every hour throughout his work day to check on the load. In view of the worker's demonstrated ability to perform this activity, the panel finds that periodic climbing of short ladders would not be beyond his abilities. The worker's appeal on this issue is dismissed.

3. Whether or not the vocational rehabilitation goal of pin to pin long haul truck driver is appropriate

The third issue before the panel deals with whether the occupation of pin to pin long haul truck driver was appropriate for the worker. In order for the worker's appeal to succeed, the panel must find that the demands of a pin to pin long haul driver exceed the worker's physical restrictions. We are not able to make that finding.

The worker's position was that he was pressured into this occupation by the WCB and was told that he either had to take the truck driving training or have his benefits reduced by 30 percent. The worker stated that he was never offered a pin to pin driving position which was suitable for his restrictions and he was pushed into finding his own job. At the time of the hearing, the worker was employed as a long haul truck driver, which was a job he found on his own. He described difficulties with cramping in his left extremities and constant headaches from his neck injury. Despite this pain which he experienced on a daily basis, he has had to continue to work as a driver in order to pay his bills.

The Individualized Written Rehabilitation Plan ("IWRP") signed by the worker on June 17, 2002 sets out the occupational goal of Truck Driving NOC 7411. It was clear that the worker possessed the aptitudes required for this occupation and in fact had previously been employed as a truck driver, so he had demonstrated abilities in this area. The worker's physical capacity was considered, and it was determined that the position, if limited to pin-to-pin driving, would be within his capabilities.

The panel notes that the worker's left shoulder permanent restrictions are:

• No over the head use of the left upper extremity;
• Avoidance of repetitive and/or frequent resisted use of the left upper extremity above the level of the shoulder; and
• Occasional lifting of up to 40 pounds from floor to waist and 25 pounds from waist to chest.

The panel sees nothing in these physical restrictions which would prevent the worker from being employed full-time as a pin-to-pin long haul driver.

The worker's right shoulder restrictions are:

• No lifting, carrying, pushing or pulling more than 10 pounds;
• No working activities of the right upper limb at or above shoulder level.

As with the left shoulder, the panel sees no duties as a pin-to-pin long haul truck driver which would be inconsistent with these restrictions.

Overall, the panel does not see any physical demands which would make the occupation of pin-to-pin long haul truck driver inappropriate for the worker. We therefore find that the vocational rehabilitation goal was appropriate. The worker's appeal on this issue is dismissed.

4. Whether or not the worker's permanent partial impairment rating of 2.3% for his left shoulder is accurate; and
5. Whether or not the worker is entitled to an additional financial award in relation to his left shoulder permanent partial impairment

The fourth and fifth issues deal with calculation of the worker's PPI award. In order for the worker's appeal to succeed, the panel must find that the Policy was not correctly applied in his case. We are not able to make that finding.

The worker's position was that with his left shoulder reconstructive surgery and the resultant scarring, the WCB did not take into consideration nerve damage from the surgery, cramping, or the arthritis he now has in his left shoulder. Through the years, his condition has worsened and his sleeping patterns, work patterns and everyday abilities (such as ability to play with children) have been impacted. The worker felt that these effects had not been considered in respect to his PPI award.

The panel has considered whether the worker is entitled to any change in his rating for loss of passive range of motion in his left shoulder. We could find no error in the measurements relied on by the WCB to establish the worker's PPI rating. The worker's passive range of motion was measured on three occasions (November 10, 2010, February 16, 2011 and November 9, 2011) with no evidence of deterioration of passive range of motion identified. The measurements actually reflected an increase (improvement) in the worker's range of motion over time. At the hearing, the worker acknowledged that the measurements taken in British Columbia in November 2011were accurate, but added that he was baffled as to how the WCB came up with its percentages. The panel has reviewed the measurements recorded on November 9, 2011 and the calculation process and we see no errors in the manner in which the WCB applied the range of motion measurements to the Policy.

The worker also submitted that the WCB did not consider the scarring aspect when calculating the PPI. He stated that the surgeries left him with a four inch scar on his left shoulder and that the photographs did not do justice to the extent of the scarring. He also had three incision points which were purple in colour.

The panel understands that the WCB gives PPI ratings for disfigurement on a judgment basis and in order to maintain consistency, the WCB makes reference to a folio of previous disfigurement awards. The specific terms of the Policy read 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 left shoulder. The medical advisor made the determination based on both the description of the scars given by the British Columbia examiner and the photographs of the worker's left shoulder. The WCB medical advisor has broad experience in making such recommendations and the worker's submission that the photographs do not do the scars justice does not convince the panel that the medical advisor's assessment is incorrect.

With respect to the worker's complaints of cramping, arthritis and loss of functional ability, the panel notes that a PPI award is based on loss of range of motion only. The change in functional ability is not a factor taken into consideration when calculating the permanent impairment award. The Policy does not allow a PPI award to be increased on account of the factors listed by the worker.

The panel therefore finds that the worker's PPI rating of 2.3% for his left shoulder is accurate and that he is not entitled to an additional financial award in relation to his left shoulder. The worker's appeals on issues 4 and 5 are dismissed.

6. Whether or not the worker's entitlement to further wage loss benefits should be based on his actual post accident earnings or a deemed post-accident earning capacity of $718.70 per week.

The sixth issue before the panel deals with calculation of the worker's partial wage loss benefits. In order for the worker's appeal to succeed, the panel must find that the worker's wage loss entitlement was not properly calculated in accordance with the Act and WCB policies. We are not able to make that finding.

At the hearing, the worker stated his general dissatisfaction with his wage loss benefits and he did not feel that the calculations were proper. Some discussion was had at the hearing regarding the worker's deemed earning capacity and the effect of the deem on his wage loss benefits. It was noted that the deemed post-accident earning capacity of $718.70 per week represented approximately $1,400 bi-weekly and that the worker's indexed pre-accident income was approximately $2,000 bi-weekly. The partial wage loss benefits being paid to the worker represent the $600 gap between what the worker is currently considered capable of earning as a pin-to-pin truck driver ($1,400) and his pre-accident wages, indexed for inflation (approximately $2,000). If the worker's actual bi-weekly earnings are higher than $1,400, the $600 partial wage loss benefits would be reduced proportionately. If the worker's actual earnings are greater than his pre-accident wages (approximately $2,000), then he would have no loss of earning capacity and he would not receive any wage loss benefits from the WCB for that pay period.

The use of the average wage of a Winnipeg-based truck driver was discussed. The worker noted that in British Columbia, a long haul driver could make anywhere from $200 to $350 per day and seemed to want to raise, rather than lower, his deemed earning capacity. It was discussed that assuming this translated to $3,000 bi-weekly, a higher deemed earning capacity of $3,000 would be to the worker's disadvantage, since it would leave no gap or deficit between what he was considered capable of earning ($3,000) and his pre-accident wages ($2,000). With no gap or loss of earning capacity, the worker would not be entitled to any further partial wage loss benefits.

The panel has reviewed the methodology used by the WCB in establishing the worker's partial wage loss benefits and we cannot identify any errors in the calculation or in the decision to base the worker's pre-accident earning capacity on a Winnipeg rate (where he resided at the time of his accident). Indeed, the worker was not able to identify any specific problem with the calculation of his entitlement, other than a general dissatisfaction with the amount. In the circumstances, the panel finds that the worker's entitlement to further wage loss benefits is properly calculated. The worker's appeal on this issue is dismissed. 

7. Whether or not the worker's permanent partial impairment rating of 3.6% and the $3480 award for his right shoulder injury has been correctly calculated.