The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker appealed the Workers Compensation Board ("WCB") decision that their Permanent Partial Impairment rating and associated monetary award were correctly calculated. An appeal panel conducted a file review on February 5, 2025 to consider the worker's appeal.

Issue

Whether or not the worker’s Permanent Partial Impairment rating and associated monetary award have been correctly calculated.

Decision

The worker’s Permanent Partial Impairment rating and associated monetary award were correctly calculated.

Background

The WCB accepted the worker’s claim for injury to their right arm that occurred at work on August 16, 2021. The WCB found that the compensable injury, initially diagnosed as a right shoulder strain, was a right shoulder rotator cuff tear and provided benefits to the worker.

On January 11, 2024, a WCB physiotherapy advisor reviewed the claim and determined that the worker likely had reached maximum medical improvement. The worker attended the WCB on February 15, 2024 for a call-in examination with the WCB physiotherapy advisor to determine the extent of their permanent partial impairment (“PPI”). The physiotherapy advisor noted the worker reported only using their right shoulder minimally at work and keeping their right arm below their shoulder level for most activities. Further, the worker reported waking occasionally at night due to right shoulder pain and described a slip and fall in the previous week that caused increased right shoulder pain but had since mostly resolved. The physiotherapy advisor performed testing of the worker’s active guided left and right shoulder range of motion and calculated a PPI rating of 3%. Based on that rating, the WCB advised the worker on February 16, 2024 of their entitlement to a monetary award of $4,500.00, representing $1,500.00 per each full percentage of impairment.

On March 4, 2024, the WCB received a report from a physiotherapist indicating the worker attended two assessments and setting out their active range of motion testing results for the worker’s shoulders. The WCB physiotherapy advisor reviewed the physiotherapist’s report and the worker’s file on March 19, 2024. The physiotherapy advisor noted that the testing conducted on February 15, 2024 was “…based on the best available active guided range of motion with assessment of the endfeel at the end of range of motion” and noted the March 4, 2024 testing was reported “…to be active with no documentation of the endfeel at end range of motion or the reason for limitation of the range of motion (pain, stiff joint, mechanical block, etc.).” The WCB physiotherapy advisor noted that an individual’s active range of motion can vary from day to day and further noted the variety in the range of motion test findings done by various treatment providers over the course of the worker’s claim. The WCB physiotherapy advisor concluded there would be no change to the established PPI rating.

On March 20, 2024, the WCB advised the worker that there was no change to the PPI rating calculated based on the February 15, 2024 call-in examination. On May 6, 2024, the worker requested Review Office reconsider the WCB’s decision, noting the findings from the independent assessment were different from the WCB call-in examination. The worker also submitted the monetary award from the PPI rating was insufficient, and that due to their injury, they would not be able to secure other employment.

On August 21, 2024, Review Office determined that both the PPI rating and associated monetary award were correctly calculated. The worker filed an appeal with the Appeal Commission on October 15, 2024 and a file review took place.

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 because 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 2021 shall be $1,500 per full percentage point of impairment rating.

The WCB’s Policy 44.90.10, Permanent Impairment Rating (the "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.

An impairment rating for the loss of range of motion 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. Schedule A defines "expected range of motion (ROM)" as the “…the measured active guided ROM of the non-injured symmetric joint. This value is compared to the measured active guided ROM of the affected side. The difference is the loss of ROM of the injured joint.” For assessment of upper extremity range of motion, Schedule A sets out the following methodology:

Step 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 3.5 to determine the "Expected ROM", then continue with the steps below. 

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

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

Step 4 Multiply the difference by the Maximum Impairment Rating for the appropriate body part, as indicated in section 3.3. 

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

Worker’s Position

The worker outlined their position in their Appeal of Claims Decision form, signed October 8, 2024 and in their appeal to Review Office of May 6, 2024. The worker’s position is that the findings from the independent physiotherapist’s assessment in March 2024 are not consistent with those from the WCB physiotherapist’s assessment of February 15, 2024 and therefore the WCB’s decision is not correct. Furthermore, the worker submitted that the compensation for the permanent injury was not sufficient, noting that they will not be able to find other employment with this ongoing impairment.

Employer’s Position

The employer did not participate in the appeal.

Analysis

The question on appeal is whether the worker’s PPI rating and associated monetary award were 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 Policy and Regulation in determining the worker’s PPI rating and associated monetary award. As outlined in the reasons that follow, the panel was unable to make such findings and therefore the worker’s appeal is denied.

In reviewing the WCB’s calculation of the degree of the worker’s shoulder impairment, the panel is satisfied that the Policy provisions were correctly applied. The shoulder range of motion measurements taken, as detailed in the PPI Examination Notes of February 15, 2024 were conducted in accordance with the Policy requirements for active guided left and right shoulder mobility as set out in Schedule A to the Policy. The assessment of the worker’s active guided range of motion in their injured right shoulder as compared to their left shoulder revealed a deficit of 60 degrees of range of motion in total, or 11.9%. This percentage deficit range of motion was then multiplied by the maximum rating for a fused shoulder of 25% as per the Policy provisions to result in a 3% whole body impairment rating.

The panel acknowledges that the clinical range of motion findings outlined in the March 4, 2024 physiotherapy report differ from those of February 15, 2024; however, as noted by the WCB physiotherapy advisor, such findings can vary from day to day, as is evident in the medical reporting on file. The panel also noted that the treating physiotherapist did not reference the WCB Policy requirements and in particular did not indicate that they measured to the point of “end-feel at end range of the best attainable active guided movement” as required. The panel therefore prefers and gives greater weight to the measurements provided by the WCB physiotherapy advisor who confirmed that they measured as required by the Policy and that those measurements are valid.

While the worker raised concerns about their prospects for future employment given their permanent right shoulder impairment, the Policy explicitly sets out that the PPI benefit “…is not related to loss of earning capacity nor is it a proxy for loss of earning capacity.” In other words, this benefit does not provide any compensation for lost earnings past, present or future; rather, it is intended to provide compensation for the worker’s loss of shoulder joint mobility.

The panel finds that the worker’s total body impairment rating of 3% is correct. We further find that the WCB appropriately provided the worker with an impairment award based on that rating in an amount of $4,500, which is consistent with the provisions of the Act and Regulations that provide for an award of $1,500 for each full percentage of impairment for a PPI arising out of an accident occurring in 2021. Based on the evidence before us and on the standard of a balance of probabilities, the panel is satisfied that the PPI rating of 3% and the monetary award of $4,500 were correctly calculated. The worker’s appeal is denied.

Panel Members

K. Dyck, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 10th day of February, 2025