The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker appealed the Workers Compensation Board ("WCB") decisions that their permanent partial impairment rating ("PPI") of 41% for the physical injuries and 40% for mental health injuries was correctly calculated, and that the PPI rating for the mental health injuries should be reduced by 50%. A videoconference hearing to consider the worker's appeal took place on April 14, 2025.

Issue

1. Whether the worker’s PPI rating of 41% for the physical injuries is correctly calculated. 

2. Whether the worker’s PPI rating of 40% for the mental health injuries is correctly calculated. 

3. Whether the worker’s PPI for the mental health injuries should be reduced by 50%.

Decision

1. The worker’s PPI rating of 41% for the physical injuries is correctly calculated. 

2. The worker’s PPI rating of 40% for the mental health injuries is correctly calculated. 

3. The worker’s PPI for the mental health injuries should be reduced by 50%.

Background

The WCB accepted the worker's claim arising out of an accident at work on January 31, 2018, which resulted in a laceration to their left forearm and partial laceration of the dorsal cutaneous sensory nerve. The WCB accepted the worker's claim on February 7, 2018, and provided various benefits to the worker. On April 6, 2018, the worker sustained an injury to their left thumb, which the WCB accepted as a compensable secondary injury. The worker received various medical treatment in relation to their left arm injuries including multiple surgeries.

The WCB received reports from the treating psychiatrist outlining the worker's pre-existing psychiatric history and course of treatment and noting that the workplace injury caused additional stress. In December 2018 a WCB psychological consultant stated it was possible that the worker's pre-existing condition was aggravated by the workplace injury and subsequent events, and the treating psychiatrist stated that the worker had experienced psychological consequences secondary to their left arm injury.

On January 2, 2019, the WCB advised the worker it did not accept responsibility for psychological treatment as it could not establish a relationship between the worker's ongoing mental health difficulties and the workplace accident. A WCB psychological consultant noted in March 2019 that there was no evidence indicating a resolution of the aggravation of the worker's psychological condition and recommended provision of ongoing psychiatric treatment to assist the worker in dealing with their injury-related condition.

On March 28, 2019, Review Office overturned the WCB's decision and found the worker was entitled to additional treatment as the evidence did not indicate that their psychological condition returned to a pre-injury status.

The worker had a further surgery in October 2020.

In March 2021, a WCB psychiatric consultant assessed the worker and concluded that their current mental health symptoms were related to both the worker's pre-existing psychological condition and to the poor outcomes and persistent pain following treatment of the upper limb injuries.

On April 20, 2023, a WCB physiotherapy advisor reviewed the worker's file and concluded the worker likely was at maximum medical improvement with respect to the left arm injury and recommended a call-in examination to determine if the worker was eligible for a PPI rating. On September 28, 2023, the worker attended a call-in examination with a WCB physiotherapy consultant and the WCB's Chief Medical Officer. After examining the worker, they determined the worker was entitled to a 2% rating for disfigurement combined with a 40% rating for impairment of their left upper extremity function, which equated to a total PPI rating of 41% for the physical injuries. The same day, a WCB psychiatric consultant also examined the worker and concluded the compensable mental health diagnosis was aggravation of the worker's pre-existing mental health conditions because of the workplace accident. Based on the findings from that examination, the psychiatric consultant concluded the worker was likely totally disabled due to their psychological difficulties and had a poor prognosis for recovery sufficient to engage in any kind of employment.

On December 11, 2023, the WCB advised the worker they were entitled to a PPI rating of 41% and related monetary award in relation to their physical injuries.

On February 12, 2024, the worker requested Review Office reconsider the WCB's decision as to the PPI rating and award. On June 14, 2024, Review Office decided that the PPI rating of 41% for the worker's physical injuries was correct.

On July 15, 2024, the worker attended a virtual call-in examination with a WCB psychiatric consultant who determined a 40% PPI rating for the worker's psychological injury. The psychiatric consultant found that for the purpose of determining the PPI rating, the worker’s pre-existing condition was major and therefore subject to reduction by 50% for a final PPI rating of 20% in relation to the psychological injury. In a memo to file, the WCB psychiatric consultant confirmed that the worker’s earlier diagnosis of an aggravation of their pre-existing psychological condition would have represented a temporary worsening of the condition, but the evidence confirmed that the worker’s pre-existing condition was permanently worsened and as such, the compensable psychological diagnosis should be updated to an enhancement of their pre-existing condition.

On August 29, 2024, the WCB case manager placed a memo to file outlining their agreement with the consultant’s opinion and updating the compensable psychological diagnosis to be an enhancement of a pre-existing condition. On September 15, 2024, the WCB wrote to the worker setting out their entitlement to a monetary award for the PPI rating of 20% in relation to their psychological injury.

On January 15, 2025, the worker requested Review Office reconsider the WCB’s decision, and on February 13, 2025, Review Office determined that the PPI rating of 40% for the psychological condition was correct and that the rating was appropriately reduced by 50% to reflect the major pre-existing condition.

The worker appealed the June 2024 and February 2025 Review Office decisions to the Appeal Commission on February 21, 2025, and a hearing was arranged. After the hearing, the appeal panel sought additional information which was provided to the interested parties for comment before the panel met again on September 3, 2025, to render its decision on the issues under appeal.

Reasons

Applicable Legislation and Policy

The provisions of The Workers Compensation Act (the “Act”) in effect as of the date of the accident are applicable to the worker’s appeal. The Act provides in s 4(1) that compensation is payable when a worker sustains personal injury by accident arising out of and in the course of the employment. Section 37 of the Act outlines that such compensation includes an impairment award and s 38 provides that the WCB “…shall determine the degree of a worker's impairment expressed as a percentage of total impairment” and pay the worker a lump sum impairment award calculated as set out in s 38(2).

The WCB’s Policy 44.90.10, Permanent Impairment Rating (the "PPI Policy”) describes how permanent impairment ratings are calculated. The PPI Policy provides that the degree of impairment is established by the WCB's Healthcare Services Department according to the PPI Policy, and that whenever possible and reasonable, impairment ratings will be established strictly according to Schedule A of the PPI Policy. The PPI Policy notes that PPI awards are not related to loss of earning capacity and are not a proxy for loss of earning capacity but represent the percentage of impairment as relates to the whole body.

Schedule A 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” and notes that an impairment is considered permanent when, in the opinion of the WCB, the condition to be rated has reached maximum medical improvement (“MMI”). 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. 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 and outlines that an "unscheduled rating" may be used when:

i. strict adherence to the Schedule rating would create an injustice; 

ii. it is determined that an impairment exists that is not covered by the Schedule; or 

iii. the clinical examination or medical file assessment does not allow for the determination of a valid impairment rating by the WCB.

For unscheduled ratings, Schedule A sets out that information from other sources may be used, such as the American Medical Association's Guides to the Evaluation of Permanent Impairment ("AMA Guides"), but in such cases, the rating must be reviewed and approved by the responsible WCB Director or designate and the WCB must document and explain the justification for the non-scheduled rating.

For cosmetic disfigurement calculations, Schedule A sets out:

“Disfigurement is an altered or abnormal appearance. This may be an alteration of color, chape, 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.”

Psychological impairment ratings are determined through clinical examination or assessment of the medical information on file, following the specified scales outlined in the Schedule, when practical. The Schedule specifies that the following scales are used to calculate a psychological impairment rating: Brief Psychiatric Rating Scale (“BPRS”), Global Assessment of Functioning Scale (“GAF”) and Psychiatric Impairment Rating Scale (“PIRS”), with the calculation process outlined in the Schedule. The Schedule provides that: “The existence of a pre-existing mental health condition will not negate an injured worker’s entitlement to an impairment rating arising from a WCB accepted mental health diagnosis” and that “When evaluating impairment associated with a mental health condition, the examiner is obligated to consider what portion of the impairment is due to the WCB accepted mental health diagnosis versus the portion attributable to a pre-existing mental health condition.” Schedule A outlines that the WCB will assign a rating to the pre-existing mental health condition based on the best information available, following the Schedule when practical or if not possible, assigning a rating of 0% impairment to the pre-existing mental health condition if determined to be minor or 50% impairment if determined to be major.

The WCB has also established Policy 44.10.20.10, Pre-existing Conditions (the "Pre-existing Policy"). The Pre-existing Policy provides that a pre-existing condition is major for the purpose of impairment rating if:

• The impairment was/is significantly affected by the pre-existing condition; or 

• The WCB has determined that the workplace injury enhanced the pre-existing condition; or 

• The WCB has determined that the pre-existing condition contributed to the workplace injury.

Worker’s Position

The worker appeared in the hearing on their own behalf and provided an oral submission in support of their appeal. The worker also provided a further written submission in response to the further information requested by the appeal panel following the hearing.

The worker's position in respect of the PPI rating of 41% for their physical injuries is that establishing a 40% loss of whole-body function, which is the maximum degree of disability in relation to an upper limb, does not allow for any increase in disability in the future, should that occur. The worker outlined their added concern that because their actual loss of mobility was not and could not be assessed to establish the degree of their loss of function, it will not be possible to reassess and compare loss of function in the future. The worker confirmed that they have no concern in respect of the 2% rating established for disfigurement, but also questioned how the WCB came to the total impairment rating of 41% when combining the upper limb rating of 40% with the disfigurement rating of 2%.

In respect of the PPI rating of 40% for their psychological injury and the related reduction of that rating by 50% due to a major pre-existing condition, the worker noted the significant impact of this accident on their mental health and that prior to the accident they were capable of maintaining employment despite having a mental health condition, but afterwards, they were not capable. The worker outlined their concerns in respect of how the WCB managed and adjudicated their claim and submitted they could have been less disabled but for the way the claim was managed. The worker confirmed that their mental health condition was controlled before the accident but is much worse now. The worker also challenged the assessment process of calculating the mental health rating and noted that the WCB psychiatric consultant did not talk to the treating psychiatrist or ask enough questions in their assessment. The worker submitted that the 50% reduction of the PPI rating of 40% is unfair and feels like a punishment.

Employer's Position

The employer did not participate in the appeal.

Analysis

The issues the panel must determine in addressing this appeal arise from the WCB decisions as to the degree to which the worker is permanently impaired, both physically and psychologically, as a result of the injuries sustained arising out of the workplace accident of January 31, 2018. For the worker's appeal to succeed on any of the questions before the panel, we would have to determine that the WCB failed to correctly apply the provisions of the Act and applicable PPI Policy when determining the extent of the worker's impairments or in determining the impact of the worker's pre-existing condition on their psychological impairment. As detailed in the reasons that follow, the panel was not able to make such findings and therefore the worker's appeal is denied.

Is the PPI rating of 41% for the physical injuries correctly calculated?

The WCB determined that the worker's physical injuries resulted in a 41% whole body impairment, following an in-person PPI examination of the worker on September 28, 2023, conducted by the WCB Chief Medical Officer and a WCB physiotherapy consultant as documented in a report of the same date. This took place after the WCB physiotherapy advisor determined on April 20, 2023, that the worker had reached the point of maximum medical improvement in relation to their left upper limb injury, as is required in by the PPI Policy. Schedule A of that policy defines maximum medical improvement as “…the point of recovery, as determined by the WCB, when a medical condition is well stabilized and unlikely to change substantially in the following year with or without treatment.”

In reviewing the WCB’s calculation of the degree of the worker’s left upper limb impairment, the panel considered whether the PPI Policy provisions were correctly applied. In this case, the range of motion measurements could not be taken, as detailed in the PPI Examination Notes of September 28, 2023. We noted that the worker maintained they could not move their left wrist from a resting position due to pain and that, as result, the consulting professionals determined that it was not feasible to attempt any formal range of motion measurement related to the worker's left upper limb nor to assess "end-feel" of any joint in the worker's left upper extremity. Based on the 2022 diagnosis by a treating pain management physician of complex regional pain syndrome ("CRPS") the WCB consultants also assessed the worker for that condition, referencing the diagnostic criteria and assessment methodology as set out in the AMA Guides. The panel finds that this is consistent with the provisions of the PPI Policy in relation to unscheduled ratings as set out above. Using this approach, the assessing professionals determined that the appropriate rating for Class 1 impairment due to CRPS is 13% of upper extremity impairment which equates to 8% whole body impairment.

However, the panel further noted that the WCB medical consultants also did not rely on this approach as they found it did not "reflect the degree of impairment involving [the worker's] left upper extremity, which appears to be one of no material use of [the] left upper extremity." Instead, the WCB medical consultants referenced Table 16-3 of Schedule A in relation to impairment of upper extremity nervous system function, as the worker's injury involved "lesions of sensory nerves" in their left upper extremity. Based on the worker's report and the assessment, the WCB medical consultants found the worker is unable to use their left upper extremity "in a material manner" and concluded that the appropriate rating, according to Table 16-3, was in the range of 30-40% of whole-body impairment, with the maximum rating applicable at 40%.

The panel finds no flaw in the approach taken by the WCB medical consultants in arriving at the PPI rating in relation to the worker's left upper extremity impairment. Given the evidence of the nature of the worker's injury and its ongoing disabling effect upon the worker, and the medical reporting that indicates significant nerve-related injury and ongoing symptoms, we find that the WCB medical consultants appropriately considered and rejected both the scheduled approach based on range of motion and the unscheduled approach based on the diagnosis of CRPS, as not reflective of the overall degree of impairment of the worker's left upper extremity. We agree with the application of the Schedule provisions in relation to nervous system function based on the worker's reported and demonstrated inability to use their left upper extremity and accept the judgment applied that the worker's impairment should be rated at the top of that scale, at 40% of whole-body impairment. While this is not the typical determination of a PPI rating in relation to an upper limb injury, the panel is satisfied that the rating process was undertaken in accordance with the provisions of the PPI Policy and that the resultant rating is just and fair, and that the process has been appropriately documented and justified.

The WCB also determined that the appropriate rating for the worker's scarring arising out of the compensable injury and treatment for that injury is 2% based upon pictures taken of the scarring at the worker's left forearm and wrist on September 28, 2023. We note that the PPI Assessment Report of that date outlines that these images were compared to the folio of images maintained by the WCB for purposes of determining the appropriate PPI rating for disfigurement. The worker does not dispute this rating. The panel is satisfied that the rating of the worker's disfigurement was calculated in accordance with the requirements of the PPI Policy and is therefore correct.

The panel also considered whether the combined rating for loss of use of the worker's left upper extremity and for disfigurement was correctly calculated at 41% according to the provisions of the PPI Policy. Schedule A provides that where, as here, a worker has more than one impairment, the final PPI rating is determined using the Combined Values Chart in Appendix A to the Schedule, provided that the total rating for loss of function of an extremity cannot exceed the applicable rating for amputation of that extremity. In this case, reference to the Combined Values Chart indicates that the final PPI rating of 41% is correct.

Based on the evidence before the panel and applying the standard of a balance of probabilities, we find that the PPI rating of 41% for the worker's physical injuries is correctly calculated.

Is the PPI rating of 40% for the mental health injuries correctly calculated?

The panel reviewed the WCB claim file in relation to the worker’s psychological injury and considered the worker's submissions. We noted that the WCB determined on August 22, 2024, that the worker had reached the point of maximum medical improvement in relation to their psychological condition, and that the accident-related aggravation of the worker's pre-existing mental health status was permanent.

The panel also considered the findings from the WCB psychiatric consultant's July 15, 2024 virtual examination of the worker, including the detailed scoring under the three psychological measurement scales outlined in Schedule A to the PPI Policy and the process by which the WCB consultant determined the worker’s specific PPI rating. In considering the evidence, the panel finds no fault in the process by which the WCB psychiatric consultant assessed the worker’s PPI rating in relation to their compensable psychological condition. Based on those findings, the panel is satisfied that the WCB used the appropriate measures and processes in its assessment of the degree of the worker’s impairment as required under the PPI Policy. We note the WCB psychiatric consultant assessed the worker’s BPRS, GAF and PIRS scores as required by Schedule A. The examination report indicates a BPRS score of 115, which corresponds to an impairment rating of 50% per Table 20-2, a GAF score of 21-30, which corresponds to 30% per Table 20-3, and the sum of PIRS middle scores of 8, which corresponds to 40% impairment per Table 20-10. Based on these scores, the WCB psychiatric consultant determined, as required, and set out in Table 20-11, that the median score, and the worker’s PPI rating was 40%.

The panel also noted that the WCB psychiatric consultant's May 12, 2025 memo confirms that the PPI scale results placed to the worker's file on February 4, 2025 were those completed by the consultant as part of the July 15, 2024 PPI examination.

While the worker expressed concerns that this scoring process was incomplete in that it did not require the WCB psychiatric consultant to communicate with the treating psychiatrist or ask more questions in the assessment, the panel is satisfied that the assessment process required as outlined in the PPI Policy and specifically, Schedule A to that Policy, was undertaken appropriately and therefore we find no fault with the scoring process.

Based on the evidence before the panel and applying the standard of a balance of probabilities, we find that the PPI rating of 40% for the worker's psychological impairment is correctly calculated.

Should the PPI rating for the mental health injuries be reduced by 50%?

This question requires that the panel consider whether the WCB correctly reduced the PPI rating of 40% calculated in relation to the worker’s compensable psychological condition by 50% on the basis that the worker had a major pre-existing condition. The PPI Policy outlines that the fact a worker has a pre-existing condition does not disentitle them to compensation for their workplace injury and further, that if a worker with a pre-existing condition is eligible for an impairment rating, the WCB must assign a fair rating to the pre-existing condition based on the best information available and the worker's impairment rating is to be determine in accordance with Schedule A and B of the PPI Policy and the Pre-existing Conditions Policy. These policies provide that when practical, the WCB will assign a rating for the pre-existing condition based on the Schedules to the PPI Policy but that if this is not possible, the WCB will determine the impairment rating as either minor, and assign a 0% rating, or as major, and assign a 50% rating.

The panel therefore considered whether it was "practical" for the WCB to assign a rating to the worker's pre-existing psychological condition using the approach set out in the Schedule to the PPI Policy. As outlined above, that approach requires assessment of the condition based on specific scoring tools and would require that such scoring reflect the degree of the worker's psychological impairment prior to the compensable accident in 2018. Given that the worker's PPI assessment did not take place until July 2024, the panel noted that the WCB psychiatric consultant concluded that "In the absence of pre-existing information sufficient to complete the scheduled impairment rating scales (BPRS, GAF and PIRS), rating of the pre-existing condition utilizing Schedule A was not feasible"; however, the consultant also noted "I was able to review reports from medical providers that, in my expert opinion, adequately documented [the worker's] pre-existing mental health." We accept the WCB psychiatric consultant's conclusion that in these circumstances, it was not "practical" nor feasible to assign a rating to the worker's pre-existing psychological condition based on the scoring method proscribed in the Schedule to the PPI Policy.

The panel therefore considered whether the WCB appropriately determined the impairment rating for the worker's pre-existing psychological condition as being major and therefore equivalent to 50% of the psychological injury impairment rating. The panel noted that criterion ii applies in this case, being that the WCB determined the workplace injury enhanced the pre-existing condition. This is established and set out in the PPI examination notes of July 15, 2024 and elaborated upon in the WCB psychiatric consultant's memo of August 22, 2024 wherein they stated that "In consideration of i) lack of indication of resolution of the determined aggravation of [the worker's] pre-accident mental health status and ii) the determination that [the worker's] mental health recovery has reached MMI, it is my opinion that the January 31, 2018 related aggravation of [the worker's] pre-accident mental health status is now permanent." The panel is satisfied based on the evidence before us, including the reports from the treating professionals as well as those of the WCB psychiatric consultant, and the worker's own evidence, that the accident resulted in a permanent aggravation of the worker's pre-existing mental health condition which meets the definition of enhancement under the provisions of the Pre-existing Conditions Policy.

As such, the panel agrees that the evidence supports a finding that the worker's pre-existing condition should be considered major and therefore is subject to a rating of 50%. Applying the provisions of the PPI Policy, we find that the worker's PPI rating for the psychological injury of 40% is therefore appropriately reduced by 50%.

Based on the evidence before the panel, and on the standard of a balance of probabilities, we are satisfied that the PPI rating for the mental health injuries should be reduced by 50% to reflect the impact of the worker's major pre-existing condition.

The worker's appeal on all questions 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 8th day of September, 2025