Decision #97/25 - Type: Workers Compensation
Preamble
The worker appealed the Workers Compensation Board ("WCB") decision that their permanent partial disability rating of 12% remains appropriate. A hearing took place on October 27, 2025 to consider the worker's appeal.
Issue
Does the worker's permanent partial disability rating of 12% remain appropriate?
Decision
The worker's permanent partial disability rating of 12% remains appropriate.
Background
The WCB accepted the worker's claim of injury to their right knee that occurred at work on February 23, 1981. The accident caused the worker to sustain a torn right medial meniscus which was surgically repaired in 1982 and in 1984. The worker returned to regular duties in 1984 but made ongoing complaints of right knee difficulties to the treating physician thereafter. Diagnostic imaging in February 1986 indicated early degenerative changes in the worker’s right knee joint.
On December 3, 2015, the worker attended a call-in examination with a WCB medical advisor to determine their eligibility for a permanent partial disability ("PPD") rating and award. On examining the worker and determining the extent of the worker’s active guided right knee range of motion, the medical advisor determined the worker had a PPD rating equivalent to 12.5% of whole-body impairment.
On February 10, 2016, the WCB advised the worker of the rating and related monetary award and provided a monthly pension. After further discussions with the WCB, the worker chose instead to receive a lump sum payment for their PPD, which the WCB paid to the worker in April 2016.
The treating physician reported to the WCB on November 27, 2020 that the worker indicated their right knee was bothering them more and that they referred the worker to an orthopedic surgeon. In an April 6, 2021 report, the orthopedic surgeon confirmed the worker was a candidate for total right knee replacement surgery, which took place on June 1, 2022. After the surgery, the worker received physiotherapy, with an initial assessment occurring on July 18, 2022 when the physiotherapist found the incision was healing well, the worker had moderate knee swelling and decreased calf muscle bulk on the right, limited ability to squat, stiff gait and their knee was warm to the touch. The physiotherapist recorded right knee active range of motion of 85 degrees flexion with pain and 5 degrees extension with pain. By March 3, 2023, the treating physiotherapist noted the worker reported improving right knee pain, with active range of motion of 95 degrees flexion, and decreased end range extension. The physiotherapist indicated the worker could work regular duties and hours, although the worker noted they were self-employed.
On July 5, 2023, the worker contacted the WCB regarding a permanent partial impairment rating in relation to right knee scarring. The manager requested a review of the worker's file by a WCB physiotherapy consultant. On October 5, 2023, the WCB physiotherapy consultant provided their opinion that the worker was likely at maximum medical improvement following the surgery, but concluded there would be no increase in the overall impairment rating for the worker. The WCB consultant noted the maximum cosmetic rating for the knee replacement surgery based on the folio of images at the WCB is 1% and the worker’s current right knee mobility as documented in recent medical reports was greater than when they were first assessed in December 2015. The WCB physiotherapy consultant reviewed the best recorded range of motion post-surgery, as set out in the February 2, 2023 report from the attending orthopedic surgeon and the lowest post-surgery range of motion as recorded in the March 3, 2023 physiotherapy report. Considering these findings and adding a maximum 1% rating for cosmetic impairment, the consultant calculated the worker’s current PPD rating would be in the range of 7.00 - 9.00%. As this is less than 12.5% PPD rating as calculated in 2015, the physiotherapy consultant determined the worker was not entitled to reassessment of their PPD rating. The WCB advised the worker of this decision by letter dated October 6, 2023.
On December 18, 2024, the worker requested Review Office reconsider the WCB's decision, noting they continued to experience right knee difficulties and the WCB did not reassess their knee to determine the loss of mobility. On January 13, 2025, Review Office found the worker’s permanent partial disability rating of 12.5% was appropriate. The worker appealed to the Appeal Commission and a hearing was arranged.
Reasons
Applicable Legislation and Policy
The panel is bound by the provisions of The Workers Compensation Act (the “Act”) and the applicable policies established by the WCB. The provisions of the Act in effect on the date of accident apply.
The Act provides in s 4(1) that the WCB shall pay compensation to a worker who has sustained personal injury by an accident arising out of and in the course of employment, and s 32(1) provides that such compensation may include compensation for a permanent partial disability resulting from the injury. Section 32 also outlines the method for calculating the amount of compensation for a permanent partial disability.
While the Act in effect in 1981 did not provide a process for reassessment of a PPD rating after it was established, s 60(2)(d) of the current legislation provides authority to consider and determine the degree of an impairment and under s 60(3) to reconsider any decision made under that Part of the Act. Further, s 38 of the current Act permits a worker to request reassessment of their permanent impairment rating if more than 2 years have passed since the last assessment and there has been significant deterioration in their health condition. Any decision under s 38 is considered an initial adjudication of the WCB that can be reconsidered by Review Office and the Appeal Commission.
The WCB established Policy 44.90.10.02, Permanent Impairment Rating Schedule (the “Policy”) to outline how permanent impairment ratings are assessed and established 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 is considered permanent when the WCB determines the condition has reached the point of maximum medical improvement as defined in the Policy. Permanent impairment is evaluated based on medical examination or by review of the medical information documented in a worker's claim file, based on the loss of active guided movement of the affected joint which is converted into a PPI benefit.
Worker's Position
The worker appeared in the hearing and made submissions on their own behalf. The worker's position is that they continue to experience a deficit in their right knee mobility, with occasional giving way of the knee. The worker submits they have experienced a deterioration in the function and mobility of their right knee since the surgery and should be entitled to a reassessment of the degree of their right knee impairment, or disability, under the provisions of the Act.
Employer's Position
The employer is a finalled firm and as such, was not a participant in the appeal.
Analysis
The question in this appeal relates to the worker's eligibility for a reassessment of the degree of their permanent partial disability rating. For the worker's appeal to succeed, the panel would have to determine that there is evidence to support the worker's position that their right knee function has deteriorated from the time of the previous rating in 2016. As detailed in the reasons that follow, the panel was not able to make such a finding based on the evidence before us, and therefore the worker's appeal is denied.
The panel considered that s 38 of the current Act allows a worker to apply for reassessment of their degree of impairment as determined by the WCB if their condition has significantly deteriorated and it is within the specified time limits. The panel notes that the WCB applied this provision in determining that the worker was not eligible for a reassessment. The WCB found the evidence did not support a significant deterioration in the worker's condition since assessed in 2016. On the same basis, Review Office also determined that the worker is not eligible for reassessment of their permanent disability rating.
The panel therefore reviewed and considered the medical reporting and the clinical findings detailing the extent of the worker's right knee range of motion in 2023 as compared to their right knee range of motion as assessed in December 2015 to calculate the initial PPD rating. Those findings are summarized as follows:
Active Guided Range of Motion Expected December 3, 2015 February 2, 2023 March 3, 2023
Right knee flexion 140 degrees 85 degrees 107 degrees 95 degrees
Right knee extension 0 degrees -15 degrees 0 degrees 0 degrees
Considering only this data, the panel noted that in December 2015, the worker had less right knee flexion and extension when the WCB examined them to determine their PPD rating than was found by the treating orthopedic surgeon and treating physiotherapist in 2023. This evidence does not support the worker's position that their current right knee mobility is worse than when it was when last assessed. While the worker's evidence is that they experienced a decline in their right knee mobility and function by 2020, resulting in the recommended surgery in 2022, there is no evidence before the panel of any range of motion findings from that period. Further, the evidence confirms that when the worker requested further assessment, their right knee mobility was improved from the time of the previous assessment and would not have resulted in any increase in the worker's degree of disability, as calculated by the WCB under the Policy.
The panel also noted that in reaching the conclusion that the worker's degree of impairment had not deteriorated, the WCB physiotherapy advisor also included and considered an estimate as to the maximum additional impact of scarring arising out of the 2022 right knee surgery, being a further 1.0 % impairment. This was appropriate to consider and include given the worker's initial request for reassessment was based in part on the issue of scarring.
Based on the evidence before the panel, and applying the standard of a balance of probabilities, we find that the worker is not eligible for reassessment of their PPD rating based on a deterioration of the compensable impairment, and therefore, the PPD rating of 12% remains appropriate. 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 31st day of October, 2025