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 and monetary award have been correctly calculated. A hearing was held on April 23, 2024 to consider the worker's appeal.

Issue

Whether or not the worker’s permanent partial impairment rating and monetary award have been correctly calculated.

Decision

The worker’s permanent partial impairment rating and monetary award have been correctly calculated.

Background

The worker has an accepted WCB claim for a left shoulder rotator cuff tear and humeral head fracture that occurred at work on June 10, 2022, when the worker fell and hit their shoulder on the fender of the vehicle they were driving. Various benefits were paid to the worker, including physiotherapy. The worker was seen by an orthopedic surgeon on September 20, 2022 who recommended conservative treatment for the worker. It was noted the worker had a previous left rotator cuff surgery in 2009. The worker was discharged from physiotherapy on November 16, 2022.

At the request of the WCB, the worker attended for a call-in examination with a WCB physiotherapy advisor on December 20, 2023 to determine the worker's eligibility for a permanent partial impairment rating. After examining the worker and measuring the worker's active guided range of motion, the physiotherapy advisor recommended a permanent partial impairment rating for the worker of 1.7%. It was noted a permanent partial impairment rating examination took place in 2016 for the worker's previous claim involving their left shoulder where an enhancement rating of 0.80% had been calculated and noted that rating to be the same for this examination. Further, it was noted in 2016, the worker's left shoulder mobility deficit was found to be 3.3%, with that deficit now being 5.0%, indicating a 1.70% increase in left shoulder deficit, and being the recommended rating for the worker. On December 27, 2023, the worker was advised of their calculated permanent partial impairment rating of 1.70% and the related monetary award.

On January 17, 2024, the worker requested reconsideration of the WCB's decision on their permanent partial impairment rating and monetary award noting their disagreement with how the active guided range of motion was measured by the WCB physiotherapy advisor. Review Office determined on January 24, 2024, the permanent partial impairment rating and monetary award had been correctly calculated. Review Office noted the worker's concerns regarding how the left shoulder range of motion measurements were done however, found the measurements were conducted in accordance with the WCB's regulations and policies. Further, Review Office found the WCB physiotherapy advisor had correctly calculated the worker's impairment rating, taking into account the previous impairment rating calculated in 2016.

The worker filed an appeal with the Appeal Commission on February 20, 2024 and a hearing was arranged.

Reasons

Applicable Legislation and Policy

The Appeal Commission must follow The Workers Compensation Act (the “Act”) and the policies established by the WCB’s Board of Directors.

Section 4(1) of the Act provides that the board may award compensation for an impairment that does not result in a loss of earning capacity. Subsection 4(9) of the Act provides that the WCB may award compensation in respect of an impairment that does not result in a loss of earning capacity.

The method for calculating compensation for impairment is set out in section 38 of the Act. Subsection 38(1) of the Act states that the board shall determine the degree of a worker’s impairment expressed as a percentage of total impairment and subsection (2) further sets out the amount to be paid to the worker as an impairment award based on percentage of total impairment. The dollar amount in that formula is adjusted on an annual basis pursuant to the Adjustment in Compensation Regulation (the "Regulation").

WCB Policy 44.90.10, Permanent Impairment Rating (the “PPI Policy”) applies to all impairment ratings or re-ratings, except for impairment to hearing, conducted on or after January 1, 2023. Permanent impairment is evaluated by the WCB through medical examination of the worker or by review of the medical information documented on the claim file. The PPI Policy explains that permanent impairment ratings are calculated as a percentage of impairment as it relates to the whole body. The schedule to the PPI Policy sets out how impairment ratings are determined. The schedule sets out 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 PPI Policy sets out that whenever possible and reasonable, impairment ratings will be established strictly in accordance with the schedule.

Impairment awards are calculated by determining a rating that 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. The rating calculation does assess loss of functional ability by measuring loss of range of motion.

The WCB has established a policy respecting pre-existing conditions. Policy 44.10.20.10, Pre-Existing Conditions (the "Pre-X Policy"), describes what a pre-existing condition is and states that the fact that a worker has a pre-existing condition does not disentitled them to compensation for their workplace injury. The Pre-X Policy provides that if a worker has a pre-existing condition and the WCB determines they have suffered an impairment, the worker is eligible for an impairment rating based on the difference between the total rating and the rating assigned to the pre-existing condition.

The Act further provides the following at section 38(6):

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.

A worker may apply for reconsideration of their degree of impairment 24 months after a decision by the WCB or the Appeal Commission.

Worker's Position

The worker was self-represented at the hearing. The worker's position is that the permanent partial impairment ("PPI") rating and monetary award have been incorrectly calculated.

The worker states that the PPI examination was not fair and says that during the examination the WCB physiotherapist pushed the worker's left arm up farther than the worker can raise it on their own and then took the necessary range of motion measurements. The worker submits that this was not the same method to test range of motion used in their previous examinations.

The worker is seeking a proper assessment and fair compensation.

Employer's Position

The employer did not participate in the appeal.

Analysis

The issue before the panel is whether or not the worker’s PPI rating of 1.70% and monetary award of $1,560.00 have been correctly calculated. For the worker’s appeal to be successful, the panel must find, on a balance of probabilities, that the 1.70% rating and monetary award of $1,560.00 was inaccurate. The panel was unable to make that finding for the reasons that follow.

The worker suffered a compensable injury to their left shoulder when they fell at work. In order to determine impairment with respect to an injury to an upper extremity, the WCB must evaluate the loss of mobility of a joint or joints. The PPI Policy provides that the impairment rating for loss of mobility or range of motion is to be determined through clinical examination or the medical information on file. During the clinical examination, the examiner will look at the loss of active guided movement of the affected joint. Active guided range of motion is defined in the PPI Policy, and involves the injured person moving the region to be examined on their own, with guidance of the movement by the examiner.

In this case, the examiner was a physiotherapist. A review of the PPI examination notes, confirms that the examiner measured the active guided left and right shoulder range of motion and correctly took into account the major pre-existing condition and 3.30% PPI rating previously determined in relation to the worker's compensable injury in 2014.

The panel understands from the questions posed to the worker during the hearing that the worker was not aware that the test of active guided range of motion involves that examiner guiding the movement. The panel notes that this may be different then the range of motion testing done by the worker's physiotherapist when getting physiotherapy treatment. The worker also had a previous 2009 right shoulder claim with a PPI rating, and it is unknown what the method of testing range of motion was at that time.

The panel accepts the worker's evidence that they continue to experience difficulties from their injury and cannot lift their left arm as high as their shoulder which is affecting their employment. The panel notes, however, that a PPI award is not intended to compensate a worker for pain and suffering resulting from an injury. The impact of any injury on the lifestyle of a worker is similarly not part of an impairment rating.

Based on the foregoing, the panel finds that the Act and WCB policy were properly applied in establishing the worker's PPI rating. Therefore, the panel finds that the worker's permanent partial impairment rating of 1.70% has been correctly determined. The panel has reviewed the calculation of the monetary amount of the PPI award and finds that it has been correctly calculated at $1,560.00 in accordance with the formula in subsection 38(2) of the Act, as adjusted by the Regulation.

The panel denies the worker's appeal.

Panel Members

R. Lemieux Howard, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

R. Lemieux Howard - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 20th day of June, 2024