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 6% and the associated monetary award of $638.00 have been correctly calculated. A file review was held on December 5, 2024 to consider the worker's appeal.

Issue

Whether or not the worker's permanent partial impairment rating of 6% and the associated monetary award of $638.00 have been correctly calculated.

Decision

The worker's permanent partial impairment rating of 6% and the associated monetary award of $638.00 have been correctly calculated.

Background

The worker filed a Worker Incident Report with the WCB on September 11, 1994, reporting an injury to their right elbow that occurred at work on December 28, 1993. The worker described job duties involving pushing objects along a conveyor line 8 hours per day, 5 days per week. In May 1993, the worker began to experience discomfort in their right forearm and sought medical treatment from their family physician. They were provided with anti-inflammatory medication which helped with the discomfort. In mid-December 1993, the worker was assigned different duties in another area and began to experience discomfort in their arm again and spoke to their foreman regarding the issue. It was recommended the worker attend for medical at a local hospital, which they did on December 22, 1993. At that time, the treating physician diagnosed the worker with right ulnar nerve entrapment and recommended they be seen by the family physician. The worker was seen by their family physician on December 23, 1993, who prescribed further anti-inflammatory medication. The worker continued to work their regular duties until December 28, 1993, when their progressing right arm difficulties worsened to the point their right hand was changing colour and after reporting to their foreman, they were sent home from work. The following day, the worker spoke to the nurse at the employer's nursing station, who recommended the worker attend the local hospital. The worker was seen at the hospital, was again diagnosed with a right ulnar nerve entrapment and was scheduled to be seen by a specialist. The specialist recommended surgery, and the worker underwent surgery for right cubital tunnel syndrome on January 14, 1994. The WCB accepted the worker's claim and various benefits were paid. The worker returned to the full regular duties by September 7, 1994.

On October 4, 2023, the worker contacted the WCB to request a copy of their claim file be sent to their representative. In a discussion with the worker's representative on October 10, 2023, it was determined the worker had not been assessed for a permanent partial impairment award with respect to their compensable injury and the WCB advised the representative the worker's file would be sent to their healthcare department for review. On November 22, 2023, the WCB physiotherapy advisor determined the worker should be evaluated for a cosmetic impairment and right ulnar nerve function.

The worker attended a call-in examination with a WCB physiotherapy advisor on December 7, 2023. The advisor noted the worker's reporting of reduced grip strength in their right hand, waking up at night with numbness in their right arm, inability to cross their fingers or lean on their right elbow due to sensitivity and sharp pain with pressure in the area where they had surgery and inability to hold a guitar pick in their right hand. With respect to scarring, the physiotherapy advisor compared images of the worker's scaring to a folio of images on file at the WCB and determined the worker's permanent partial impairment rating with respect to a cosmetic impairment was 1%. Ulnar nerve function testing was completed, including sensation testing and active guided left and right elbow and forearm testing. The advisor noted the WCB's Permanent Impairment Rating Schedule provided for a maximum rating of 10% for complete denervation of the ulnar nerve at the elbow and found their examination of the worker did not indicate a complete denervation. Based on the examination, the WCB physiotherapy advisor recommended a 5% impairment rating in relation to a partial denervation of the right ulnar nerve. A total permanent partial impairment rating of 6% was recommended. On December 12, 2023, the worker was advised of the rating and the associated monetary award of $638.00. The WCB noted the permanent partial impairment rating was calculated using the WCB's policies and regulations in effect at the time of the worker's workplace accident, being 1993, and noted the rating of 6% equaled a monetary award of $1,030.00. In addition, the legislation in place in 1993, also included a reduction of 2% for each year the worker was over the age of 45, so a 38% reduction was calculated, bringing the total monetary award to $638.00.

The worker's representative requested reconsideration of the worker's permanent partial impairment rating and monetary award to the Review Office on January 18, 2024. In their submission, the representative noted the worker was right hand dominant and due to the compensable injury, had to re-learn certain activities of daily living to use their left hand and could not do the same activities they did prior to the December 28, 1993 workplace accident. As such, the representative indicated their belief the rating and award should be higher.

The Review Office upheld the WCB's decision on April 2, 2024 and found the worker's permanent partial impairment rating of 6% and associated monetary award of $638.00 was correctly calculated. The Review Office accepted and agreed with the calculations provided by the WCB physiotherapy advisor after the call-in examination on December 7, 2023. Further, the Review Office found the calculations regarding the amount of the permanent partial impairment award prior to the age reduction of $1,030.00 was correct, as well as the 38% age reduction, to bring the total permanent partial impairment award to $638.00.

The worker's representative filed an appeal with the Appeal Commission on July 31, 2024, and a file review was held.

Reasons

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by the provisions of The Workers Compensation Act (“Act”), regulations under the Act and the policies established by the WCB's Board of Directors. The provisions of the Act in effect on the date of the compensable accident (December 28, 1993) are applicable to the worker’s appeal.

Subsection 4(9) of the Act in effect as of December 28, 1993 provided that the board may award compensation for an impairment that does not result in a loss of earning capacity. Section 37 of the Act outlined that compensation under the Act includes an impairment award, as provided in Section 38. 

Subsection 38(1) of the Act provided that the WCB "shall determine the degree of a worker's impairment expressed as a percentage of total impairment." Further, the calculation of the impairment award was set out in Subsection 38(2), which provided that when the board determined that a worker had suffered an impairment the board would pay the worker an impairment award in a lump sum 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%: $1,000; 

(c) 10% or greater: $1,000 plus $1,000 for each full 1% of impairment in excess of 10%. 

The Act also provided under Subsection 38(3) that aforementioned sums shall be reduced by 2% for each year of age the worker is over 45 years at the time the board determines the worker has an impairment. The reduction, however, shall not exceed 40%.

The WCB established WCB Policy 44.90.10, Permanent Impairment Rating (the PPI Policy) to provide a method for determining the entitlement rating arising out of an injury or disfigurement. The PPI Policy describes how permanent impairment ratings are calculated as a percentage of impairment as it relates to the whole body. The PPI Policy provides that the degree of impairment will be established by the WCB's Healthcare Services Department in accordance with the PPI 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 sets out that permanent impairment is measured by the following factors: loss of a part of the body; loss of mobility in the joint(s); loss of function of any organ(s) of the body identified in the schedule; and cosmetic deformity of the body. Section 3.6.2 of Schedule A of the PPI Policy provides ratings for upper extremity denervation.

In order to maintain consistency in ratings for disfigurement, and to make the ratings as objective as possible, the WCB will make reference to a folio of disfigurement ratings established in previous cases.

Worker’s Position

The worker submitted their position on the Request for Review form completed on December 31, 2023 and through written submission provided to the Appeal Commission in advance of this hearing.

The worker has requested a reconsideration of the PPI rating and stated that the impairment rating was inaccurate, and the associated monetary award was not appropriately determined.

The evidence on file is that the worker suffered an injury to their right elbow in December 1993. The worker was diagnosed with a right ulnar nerve entrapment and was scheduled to be seen by a specialist. The worker underwent surgery for right cubital tunnel syndrome in January 1994.

The worker’s position, with respect to the PPI award, is that the WCB ought to have called in the worker for an examination to assess their impairment one year post surgery (i.e. in 1995). Instead, the worker was only assessed by the WCB in relation to a PPI award in December 2023.

The worker’s evidence from their Request for Review form was that the worker was right hand dominant and had to learn to use their left hand, and that the worker gave up all activities requiring use of their right hand.

The worker states that since the PPI assessment should have happened one year after the injury, there should be no reduction based on the worker’s current age (over 45). In effect, the worker’s position is that Section 38 of the Act ought to be interpreted broadly. Specifically, the worker submits that the wording “at the time the board determines the worker has an impairment” in this instance should not only refer to the time of the completion of a PPI assessment.

The worker is seeking that the panel find that 1% PPI rating for cosmetic disfigurement ought not to have been subject to the age reduction. The worker relies on the fact that the Review Office found that a review for cosmetic impairment should have been completed and that the 1% cosmetic impairment would be applicable one year post surgery (1995). Therefore, the worker states that the 1% portion of the impairment rating ought to result in a payment of $520.

Employer's Position

The employer did not participate.

Analysis

The issue before the panel is whether or not the worker’s PPI rating of 6% and the associated monetary award of $638.60 have been correctly calculated. For the worker’s appeal to be successful, the panel must find, on a balance of probabilities, that the 6% rating and monetary award of $638.60 was inaccurate. The panel was unable to make that finding for the reasons that follow.

The process of determining a permanent impairment rating is set out in the PPI Policy is an assessment of impairment in respect of 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. The PPI Policy sets out in detail how such impairments are to be assessed, and the associated ratings calculated.

In the worker’s case, the worker underwent surgery in January 1994 and the medical evidence on file supports that the worker was fit to return to their regular work duties by September 7, 1994 and a letter from the treating surgeon dated November 24, 1994 which confirms that by September 7, 1994 the worker had “made a successful recovery from his surgery with full return of sensation to his hand…” In October 2023 the worker contacted the WCB and a representative for the worker contacted the WCB to request consideration of a PPI award.

The panel is satisfied that the WCB appropriately applied the provisions of the PPI Policy in calculating the degree and extent of the worker’s right elbow injury and cosmetic impairment arising out of the compensable workplace injury.

The worker’s ulnar nerve function was tested by the WCB physiotherapist during the PPI examination. There has been no argument advanced by the worker that the testing or evidence from the examination was flawed. The panel is satisfied that the WCB Physiotherapist conducted appropriate testing of the worker’s ulnar nerve function.

Schedule A to the PPI Policy sets out a table (Table 3-8) which lists PPI ratings in cases of denervation of upper extremities. In this case, the worker had issues with their right ulnar nerve and surgery affecting the upper extremity, therefore the WCB physiotherapist utilized the upper extremity denervation table to determine the worker’s PPI rating. The PPI examination notes state that the maximum impairment rating for complete denervation of the ulnar nerve at the elbow was 10%. The findings at the call-in examination did not support a complete denervation of the ulnar nerve at the elbow. As the testing done by the WCB physiotherapist did not support complete denervation, the WCB assessed the worker with a 5% impairment rating in relation to the partial denervation of the right ulnar nerve. The panel agrees with this assessment.

Further, the PPI examination notes reflect that the WCB physiotherapist compared photos taken of the worker’s scarring to the folio of images at the WCB, which is in keeping with the PPI Policy respecting cosmetic ratings. The panel is satisfied that the PPI cosmetic rating was properly assessed.

The combined value of the impairment ratings for partial denervation of the right ulnar nerve and for cosmetic disfigurement is 6%. Based on the legislation at the time (subsection 38(2)(3)), if the PPI rating was 5% or greater but less than 10%, the amount of the award was $1,000.

The panel has also considered the calculation of the amount of the PPI award and finds that it has been correctly calculated at $638.60 in accordance with the Act and Regulation.

The legislation in effect at the time of the injury, which is binding on the panel, provides that the impairment sum must be reduced by 2% for each year of age the worker is over 45 years at the time the WCB determines the worker has an impairment. In this instance, despite the injury occurring many years prior (when the worker was not yet 45 years old), the panel finds that the WCB did not determine the worker had an impairment until 2023 when the worker was more advanced in age. Therefore, the age reduction would apply given the worker was over the age of 45 years. Based on the applicable legislation and policy, the panel finds that this was the correct calculation. While the panel acknowledges the argument put forth by the worker that the Review Office determined that the 1% cosmetic impairment would be applicable one year post surgery, the panel is of the view that the cosmetic impairment was in actuality not determined until the assessment was complete in 2023.

The panel therefore finds, on a balance of probabilities, that the Act and PPI Policy were properly applied in establishing the worker's PPI rating and PPI award, and that the said rating and award have been correctly determined.

The worker’s appeal is denied.

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 31st day of January, 2025