The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker appealed the Workers Compensation Board ("WCB") decision that the permanent partial impairment rating of 3% and monetary award of $4,680.00 were correctly calculated. A videoconference hearing took place on March 11, 2025 to consider the worker's appeal.

Issue

Whether or not the worker’s permanent partial impairment rating of 3% and the monetary award of $4,680.00 have been correctly calculated.

Decision

The worker’s permanent partial impairment rating of 3% and the monetary award of $4,680.00 are correctly calculated.

Background

The WCB accepted the worker’s claim in relation to a left shoulder labral tear that occurred at work on August 18, 2022 while lifting heavy items. On recommendation of an orthopedic surgeon for an arthroscopic labral repair, the WCB approved the worker’s surgery, which took place on June 2, 2023.

A WCB physiotherapy consultant reviewed the worker’s claim file on September 4, 2024 and concluded the worker had likely reached maximum medical improvement and recommended that the worker attend a call-in examination to determine their eligibility for a permanent partial impairment (“PPI”) rating. On October 15, 2024, the worker attended a call-in examination with a WCB physiotherapy consultant. The physiotherapy consultant recorded the worker’s report of ongoing constant pain, which increased when performing tasks such as washing dishes and noted the worker’s report of being unable to sleep on their left shoulder due to pain. The worker described radiating pain into their bicep to the back of their left hand, pain in the posterior lateral shoulder and occasional numbness to their thumb, index, and middle fingers, which was being investigated further by the treating healthcare providers. The worker also reported a noticeable restriction in strength, especially overhead or outside of the body envelope, and described their shoulder mobility as functional but pain limited. The physiotherapy consultant took digital photographs of the worker’s left shoulder scarring and compared those photos to a folio of images on file at the WCB, noting there was no rateable cosmetic impairment. The consultant also performed active guided left and right shoulder mobility testing using a goniometer, and determined there was a 65 degree difference in total mobility between the worker’s left and right shoulders. Based on the measurements taken, the WCB physiotherapy consultant calculated the worker’s PPI rating at 3% of total body impairment.

On October 25, 2024, the WCB advised the worker of this PPI rating and of their entitlement to an associated monetary award of $4,680.00. On October 29, 2024, the worker requested that Review Office reconsider the WCB’s decision, noting they had lost basic movement in their shoulder joint and experienced a loss in strength and capabilities, with permanent workplace restrictions limiting their ability to lift. The worker also submitted physiotherapy chart notes from an assessment undertaken on October 25, 2024, and noted their belief that the second examination was more thorough and indicated loss of use of their left shoulder at 26.85%. On October 31, 2024, Review Office returned the worker’s file to the WCB’s Compensation Services for further investigation regarding the new medical information submitted.

A WCB physiotherapy consultant reviewed the new physiotherapy report as well as the findings from a November 5, 2024 nerve conduction study. The consultant noted the left shoulder active range of motion findings from October 25, 2024 and noted the November 5, 2024 nerve conduction study indicated a normal study with “…no electrophysiological findings to support cervical or peripheral neuropathy in the left arm.” The consultant indicated the October 25, 2024 report documented test findings that the WCB does not consider in calculating a PPI rating. Further, the consultant noted that subjective reports of pain and functioning are also not used in calculating such a rating. The consultant concluded the results of the October 15, 2024 assessment were valid with “…appropriate end-feels at end range of the best attainable active guided movement” and recommended no change to the PPI rating established. On November 19, 2024, the WCB advised the worker there would be no change to the decision they were entitled to a 3% PPI rating and associated $4,680.00 monetary award.

The worker again requested Review Office reconsider the WCB's decision, noting their disagreement with the results of the call-in examination and the calculation of a 3% PPI rating. On November 29, 2024, Review Office determined the PPI rating of 3% and associated monetary award of $4,680.00 were correct, relying upon the calculations performed by the WCB physiotherapy consultant based on the October 15, 2024 call-in examination.

The worker filed an appeal with the Appeal Commission on December 2, 2024 and a hearing 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. 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 an impairment 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 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. The WCB Adjustment in Compensation Tables provide that a PPI award made in respect of an injury sustained in 2022 shall be $1,560 per each 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 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 method by which the loss of range of motion is to be calculated. For cosmetic disfigurement calculations, Schedule A sets out:

“Disfigurement is an altered or abnormal appearance. This may be an alteration of color, shape, or structure, or a combination of these. The rating for disfigurement…is determined on a judgmental basis…. 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 appeared in the hearing on their own behalf and made an oral submission to the panel outlining their position in the appeal. The worker’s position is that the PPI rating of 3% is not correct in that it does not sufficiently account for the effect of the worker’s ongoing pain and suffering and their limited occupational prospects due to their permanent restrictions. Further, the rating does not appropriately consider the worker’s reduced functional abilities, in completing activities of daily living. As well, the worker submitted the rating is incorrect as it does not reflect the actual extent of their impairment, as evidenced by the physiotherapy assessment findings of October 25, 2024 which indicate that the worker is more impaired than the WCB determined.

The worker also noted that they have some asymmetry in terms of their shoulder muscle appearance, and that they have two small scars related to the shoulder surgery undertaken as a result of this accident.

The worker noted that this injury has been life-changing and that it continues to impact them.

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 October 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 65 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 October 25, 2024 physiotherapy report differ from those of October 15, 2024; however, the findings from the treating physiotherapist do not reference the WCB Policy requirements and in particular do not indicate measurement using a goniometer, 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 the measurements provided are valid.

While the worker raised concerns about their prospects for future employment, continuing pain and suffering, and ongoing functional limitations given their permanent right shoulder impairment and workplace restrictions, the Policy is explicit in providing 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. This rating does not and is not intended to compensate a worker for pain and suffering, functional limitations other than impaired join mobility, or the limitations resulting from permanent workplace restrictions.

With respect to the worker’s submission as to the degree of their disfigurement, the panel noted the treating physician outlined in their March 7, 2024 report that there is only minimal asymmetry between the worker’s shoulders and no evidence of muscle wasting. The panel also noted the worker acknowledged that the arthroscopic repair surgery resulted in two very minimal scars which are barely noticeable. The WCB physiotherapy advisor indicated in the October 15, 2024 examination notes that the digital pictures of the scarring of the worker’s left shoulder were compared to the folio of images at the WCB and that there is “no rateable cosmetic impairment related to the compensable injury.” As such, the panel is satisfied that the WCB correctly determined there is no additional PPI rating applicable in relation to disfigurement arising out of the workplace injury.

The panel finds and is satisfied that the worker’s total body impairment rating of 3% is correct based on the evidence before us. We further find that the WCB appropriately provided an impairment award based on that rating in an amount of $4,680, consistent with the provisions of the Act and Regulations that provide for an award of $1560 for each full percentage of impairment based on a PPI arising out of an accident occurring in 2022.

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 $4,680 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 14th day of March, 2025