The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that their permanent partial impairment rating of 3.60% and the monetary award of $4,380.00 have been correctly calculated. A file review was held on February 14, 2023 to consider the worker's appeal.

Issue

Whether or not the worker’s permanent partial impairment rating of 3.60% and the monetary award of $4,380.00 have been correctly calculated.

Decision

The worker’s permanent partial impairment rating of 3.60% and the monetary award of $4,380.00 have been correctly calculated.

Background

The WCB accepted the worker’s claim for injury arising from a workplace accident on August 12, 2020. The worker described that when coming down from a ladder, they slipped and fell in an awkward position, causing a left femur fracture with left knee dislocation. Initially, the worker was taken to a local emergency department for treatment, and then transported to a larger hospital where they underwent orthopedic surgery on August 13, 2020.

The worker began physiotherapy on September 17, 2020 and on receiving clearance from their treating healthcare providers, returned to work on a graduated schedule with modified duties on March 24, 2021. By July 7, 2021, the WCB advised the employer the worker was capable of sedentary duties for 8-hour shifts; however, the worker advised the WCB on April 9, 2021 they were off work due to a non-compensable issue. The worker’s last day worked was August 3, 2021.

At the request of the WCB, a WCB physiotherapy consultant reviewed the worker’s file on September 30, 2021 to determine if the worker was eligible for a permanent partial impairment rating and award. The physiotherapy consultant concluded the worker was likely at maximum medical improvement and arranged for a call-in examination to assess the worker’s active guided left versus right hip and knee mobility and cosmetic impairment from the surgery.

On June 14, 2022, the worker attended a call-in examination with the WCB physiotherapy consultant. Digital photographs were taken of the worker’s scarring on their left knee and after comparing the images with a folio of images at the WCB, the physiotherapy consultant determined the cosmetic rating related to the left knee scarring was 1%. The consultant also measured the worker’s active guided left and right hip and knee mobility and found a 15-degree difference in range of motion between their right and left knees. The consultant determined that this was equivalent to 2.6% of whole body impairment. The WCB physiotherapy consultant determined a total impairment rating of 3.6%, based upon 2.6% for range of motion impairment plus 1% for cosmetic impairment.

On July 4, 2022, the WCB advised the worker of the 3.6% permanent partial impairment rating and provided the worker an impairment award of $4,380.00, representing $1,460.00 paid for each full 1% of impairment.

The worker requested reconsideration of their impairment rating and award to Review Office on July 12, 2022. In the request for reconsideration, the worker noted that as a result of the workplace accident, they have limited mobility and instability issues and now require use of a cane and walker at all times. On September 16, 2022, Review Office determined the worker’s permanent partial impairment rating of 3.60% and monetary award of $4,380.00 were correctly calculated, noting the WCB’s policies and legislation did not provide for a permanent partial impairment rating or monetary award “…with respect to changes in quality of life, difficulties in performing day to day tasks, pain or suffering.” Review Office accepted the examination and calculations completed by the WCB physiotherapy consultant and found the rating calculation and subsequent monetary award were correctly calculated.

The worker filed an appeal with the Appeal Commission on October 17, 2022 and a file review was arranged.

Reasons

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by the provisions of The Workers Compensation Act, regulations under the Act and the policies established by the WCB's Board of Directors. The provisions of the Act in effect as of the date of the worker’s accident are applicable.

A worker is entitled to benefits under s 4(1) of the Act when it is established that a worker has been injured as a result of an accident at work. When the WCB determines that a worker has sustained a loss of earning capacity, an impairment or requires medical aid because of an accident, compensation is payable under s 37 of the Act.

Section 4(9) provides that the WCB may award compensation for an impairment that does not result in a loss of earning capacity, and s 38 of allows the WCB to determine the permanent partial impairment rating as a percentage of total body impairment and to make an award based upon each full percentage of whole-body impairment. Manitoba Regulation 132/2020, Adjustment in Compensation Regulation, made pursuant to the provisions of the Act, provides in Schedule A to that Regulation, that a permanent partial impairment award made in respect of an injury sustained in 2020 shall be $1,460 per full percentage point of impairment rating.

The WCB’s Policy 44.90.10, Permanent Impairment Rating (the "PPI Policy”) describes how permanent impairment ratings are calculated as a percentage of impairment as it relates to the whole body. The Policy provides that the degree of impairment will be established by the WCB's Healthcare Services Department in accordance with the Policy, and that whenever possible and reasonable, impairment ratings will be established strictly in accordance with the PPI Schedule which is attached as Schedule A to the Policy. 

Schedule A to the Policy provides that permanent impairment from a workplace injury is evaluated for the following deficits: 

• loss of a part of the body; 

• loss of mobility of a joint(s); 

• loss of function of any organ(s) of the body identified in the Schedule; and 

• cosmetic disfigurement of the body. 

In respect of cosmetic disfigurement, Schedule A provides that when a worker is permanently disfigured due to an injury, the WCB may determine the disfigurement is a permanent impairment for which the worker is entitled to an impairment benefit. The rating calculation for disfigurement is done by a WCB Healthcare Advisor and determined based on their judgment. The maximum rating for disfigurement is 25% in extreme cases, but typical ratings are between 1 - 5%. For consistency in disfigurement ratings and to make the ratings as objective as possible, the WCB's Healthcare Advisor is required to reference a folio of disfigurement ratings established in previous cases in determining a rating.

The impairment rating for loss of range of motion resulting from direct injury or related surgical procedures will be determined by a WCB Healthcare Advisor, through clinical examination or assessment of the medical information on file, based on the loss of active guided movement of the affected joint(s). For the loss of movement to be ratable using the Schedule, the examining WCB Healthcare Advisor must be satisfied that the end-feel at end range of the best attainable active guided movement was valid.

For lower limb impairments, Schedule A sets out that the process for calculating the loss of range of motion is as follows:

1. Measure the "Expected ROM" of the symmetric non-injured side. Record in 5° increments. When the symmetric body part is rendered abnormal by pre or co-existing injury or disease, refer to section 4.5 to determine the "Expected ROM", then continue with the steps below. 

2. Determine the "Measured ROM" of the injured side. Record in 5° increments. 

3. Determine the difference between the Measured ROM and the Expected ROM. 

4. Multiply the difference by the Maximum Impairment Rating for the appropriate body part, as indicated in section 4.3. 

5. The result is the PPI rating for loss of ROM.

Worker’s Position

The worker represented themself in this appeal. The worker’s position is set out in their Appeal of Claims Decision form, signed October 7, 2022 and in their letter to the Review Office dated July 12, 2022.

The worker’s position is that the appeal should be granted because they require use of a cane or walker at all time, continue to experience instability and have a permanent limp. The worker pointed to their loss of knee mobility, weakness in their knee and leg and discomfort. The worker believes that these circumstances should entitle them to a greater award for their permanent partial impairment.

Employer’s Position

The employer was represented by an advocate, who provided a written submission to the appeal panel dated February 6, 2023.

The employer’s position, as outlined in their advocate’s submission, is that the WCB PPI Policy was correctly applied in this case, as demonstrated by the June 14, 2022 call-in examination notes, and that there is no evidence that this assessment was done improperly, that appropriate measurements were not made or that the provisions of the Act and WCB policies were not followed. Therefore, the appeal should be denied.

Analysis

The question on appeal relates to the calculation of the worker’s permanent partial impairment rating and associated award by the WCB. The panel must determine whether the worker’s PPI rating and monetary award have been correctly calculated. For the worker’s appeal to succeed, the panel would have to determine that the WCB did not correctly apply the provisions of the Act, regulations and applicable policy in calculating the worker’s degree of permanent partial impairment and associated monetary award. As outlined in the reasons that follow, the panel was not able to make such a determination and the worker’s appeal is therefore denied on this question.

The Act provides that a worker injured as a result of a workplace accident may be entitled to compensation for any impairment resulting from that accident even if the impairment does not result in any loss of earning capacity. The Act further provides that rating of permanent partial impairment is determined as a percentage of total body impairment and permits the WCB to make an award based upon each full percentage of whole-body impairment.

The worker’s position is that the appeal should be granted because, as a continuing result of the workplace injury, they are required to rely upon a cane or walker, experience instability and discomfort, and walk with a limp.

The panel acknowledges the worker’s statements that they continue to experience effects related to their compensable workplace injury which include instability and discomfort, walking with a limp and use of a cane or walker at all times. However, as set out in the PPI Policy, which the panel is bound to apply, the purpose of a permanent partial impairment award is to compensate an injured worker for loss of a part of the body, loss of mobility of a joint, loss of function of any organ and cosmetic disfigurement. This policy defines an impairment as “a significant deviation, loss or loss of use of any body structure or body function in a person with a workplace injury or occupational disease.” The PPI Policy does not measure the degree of pain and suffering, discomfort or any other limitation other than as noted above. The process of determining a permanent impairment rating is set out in the PPI Policy, which sets out in detail how such impairments are to be assessed and the associated ratings calculated.

In the worker’s case, the file evidence indicates that a WCB physiotherapy advisor conducted a review of the worker’s claim file on September 30, 2021 and noted that the worker was likely at the point of maximum medical improvement and therefore eligible for assessment for a PPI rating. The physiotherapy advisor noted there to be a major pre-existing condition related to the worker’s left hip mobility deficits, as supported by a June 6, 2021 opinion of the WCB medical advisor. The physiotherapy advisor outlined that the worker should be evaluated for active guided left vs right hip and knee mobility and for cosmetic impairment ratings.

The panel noted that the WCB physiotherapy advisor examined the worker in person on June 14, 2022 and at that time, digital photos of the scarring of the worker’s left knee were taken. The PPI Examination Notes of June 14, 2022 indicated that these photos were compared to the folio of images at the WCB and on that basis, the physiotherapy advisor determined that there was a 1% cosmetic impairment related to the compensable injury.

The panel also noted that the WCB physiotherapy advisor stated in the June 14, 2022 Examination Notes that the worker’s active guided left and right hip mobility and knee mobility were measured using a goniometer. The following findings are recorded in relation to the worker’s hip mobility:

“Hip mobility overall had equal total ranges of motion bilaterally. When sitting, standing, and lying there appeared to be a 10 degree internal rotation position of the distal femur on the right compared to the left. This would account for the differences in range of motion from the left hip to the right hip. Both hips had equal and normal anatomic endfeels at the end of each range of motion.”

In other words, the measurements did not indicate any overall difference in range of motion of the worker’s left and right hip mobility.

The WCB physiotherapy advisor also measured the active guided range of motion of the worker’s knees and found a difference of 15 degrees in flexion with the right at 145 degrees and the left at 130 degrees. Based upon this difference, the physiotherapist determined there was a 10.3% deficit in left knee mobility, which was then multiplied by the Maximum Impairment Rating for a knee, which is indicated as 25% in Schedule A to the PPI Policy, section 4.3. This resulted in a finding of 2.6% of whole body impairment for the worker’s left knee.

The panel is satisfied that the file evidence confirms that the WCB appropriately applied the provisions of the PPI Policy in calculating the degree and extent of the worker’s left knee loss of mobility and cosmetic impairment arising out of the compensable workplace injury. The worker’s left knee active guided mobility was measured according to the provisions of the PPI Policy resulting in a finding of 2.6% impairment. Further, the photos taken of the worker’s resulting scarring were appropriately compared to the folio of images with a rating of 1% established. We find that the worker’s total body impairment rating of 3.6% is correct, and that the WCB appropriately provided the worker with an impairment award based on that rating in an amount of $4,380. This award is consistent with the provisions of the Act and Regulations that provide for an award of $1,460 for each full percentage of impairment for a permanent partial impairment arising out of an accident occurring in 2020.

Therefore, on the basis of the evidence before us and on the standard of a balance of probabilities, the panel is satisfied that the permanent partial impairment rating of 3.60% and the monetary award of $4,380 have been correctly calculated. The worker’s appeal is denied.

Panel Members

K. Dyck, Presiding Officer
R. Campbell, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

K. Dyck - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 24th day of March, 2023