The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on October 28, 1999, at the request of the claimant’s union representative. The union representative was appealing a decision rendered by the Review Office of the Workers Compensation Board (WCB) which determined that April 25, 1997, was the effective date for the claimant’s Permanent Partial Impairment Award. The Panel discussed the appeal on October 28, 1999.

Issue

Whether or not the April 25, 1997 effective date for the claimant’s Permanent Partial Impairment Award is correct.

Decision

The April 25, 1997 effective date for the claimant’s Permanent Partial Impairment Award is correct.

Background

During the course of his employment as a refuse operator on November 17, 1988, the claimant lifted a refuse can and experienced pain in his lower back. The claimant was eventually diagnosed with a disc protrusion at L5-S1 and a laminectomy was carried out on March 21, 1989. Further file documentation noted that the claimant was assessed by a number of physicians and underwent various laboratory investigations for recurrent back difficulties. The claimant was also accommodated with alternate duties through his employer.

On April 25, 1997, the claimant was examined at the Workers Compensation Board (WCB) by an Impairment Awards Medical Advisor. At that time, it was reported that the claimant had 35° loss in total range of motion of his lumbar spine which equated to a 4% permanent partial impairment award. On July 11, 1997, the claimant was advised that the 4% impairment award would become effective on April 25, 1997.

In a letter to the WCB dated July 16, 1997, a union representative requested clarification with respect to the effective date of the PPI award. The union representative commented that the WCB was well aware that the claimant had a permanent partial impairment and had permanent restrictions to employment as noted by an orthopaedic specialist on December 5, 1990. The union representative pointed out that the claimant had never returned to his regular employment since the original accident date.

On October 3, 1997, a WCB adjudicator clarified that April 25, 1997 was the effective date of the PPI award as this was the first report on file which indicated objective findings pertaining to the claimant’s flexion, extension, lateral bend and rotation of his mid back. On May 13, 1999, the union representative disagreed with the decision stating that the rationale offered by the adjudicator was unsupportable and that the PPI award should become effective the date of accident. In support of his position, the union representative provided the following commentary with respect to particular medical reports noted on file:

• in December 1990, an orthopaedic specialist reported losses in range of motion in extension as well as flexion. In the same report, the specialist suggested restrictions should be permanent and are related to the 1988 workplace injury. Subsequent reports from the specialist noted ongoing difficulties with pain and paraesthesia in the left leg as well as difficulties with straight leg raising. In a report dated May 1, 1995, the specialist noted significant losses of range of movement.

• a December 30, 1993 CT scan noted progression of disc space narrowing at L5-S1 since March 1990 related to the compensable surgery.

• a 1994 CT scan noted disc space narrowing at L5-S1 and now noting posterior osteophytes at this level. According to the union representative, all these reports speak to a deteriorating condition in the claimant’s spine.

• comments made by a WCB medical advisor on September 28, 1994, whereby he advised to defer any PPI exam for now but further indicated that the claimant was entitled to a PPI.

• a medical report dated June 9, 1995, noted decreased range of motion followed by similar reporting from another physician dated July 13, 1995.

• comments made on August 23, 1996, by a WCB medical advisor, who, after saying in 1994 that the claimant was entitled to a PPI, now says there probably was no PPI because he had good range of motion following surgery in 1989. The union representative wondered how the medical advisor concluded this “in the face of a claimant with what he knows is a deteriorating back problem caused by a workplace injury.”

• a CT scan dated August 24, 1995 which reported severe disc space narrowing and for the first time bilateral apophyseal joint osteoarthritis as well as posterior displacement of the left S1 nerve root by an osteophyte.

On June 9, 1999, the WCB’s Review Office considered the union representative’s appeal submission. Review Office provided the following commentary which it felt was pertinent to the issue of whether or not the effective date of the permanent impairment award should be April 25, 1997:

• following the work related accident the orthopaedic surgeon reported good recovery from the injuries sustained and from the March 1989 back surgery.

• x-ray examination in March 1990 described minor disc space narrowing at the L5-S1 level which had become apparent since the earlier examination in 1988.

• medical examinations between May 1990 and January 1994 suggested functional back restrictions associated with mechanical back pain were preventive in nature. Range of motion was generally described as normal or mildly restricted except during periods of acute aggravation.

• a medical examination in January 1994, noted “spinal motion is reasonably full in all directions and not clearly productive of significant pain.”

• a 1994 CT scan described minimal post-surgical changes and a further scan in August 1995 noted that degenerative disc space narrowing at L5-S1 was more severe.

• in April 1995, orthopaedic examination noted increased levels of low back discomfort that the doctor described as “symptoms which are greater than I would except from the objective findings.” In February 1996, the same orthopaedic consultant expressed disagreement with the WCB’s impairment rating practices which predominantly relied on range of movement studies. The consultant stated that the subsequent development of degenerative changes at the site of a disc injury and associated mechanical pain, ought to be considered a permanent impairment regardless of the ranges of movement.

The Review Office stated that the claimant’s work related accident of November 1988 had not resulted in any findings which could possibly be viewed as a ratable permanent impairment prior to the development of degenerative changes at the injury site. This was first documented at a minimal level by CT scan in April 1994. Review Office said the degenerative changes had progressed in severity by the time a further scan was done in August 1995 but did not apparently result in any significant loss of lower back movements. The policies and past practices of the WCB, generally relied on reduced ranges of movement to determine whether or nor a worker had acquired a ratable permanent impairment of the spine. The initial objective evidence of reduced ranges of movement in the lower back, which were likely to be permanent and were not associated with a period of acute aggravation, was likely documented by the medical examination on April 25, 1997. Review Office concluded that the decision to award the permanent impairment effective from April 25, 1997, was generally supported by the weight of current evidence, and was consistent with the policies and practices of the WCB.

The union representative subsequently appealed the Review Office’s decision and an oral hearing was arranged.

Reasons

Chairperson Dunlop and Commissioner Finkel:

The majority Appeal Panel is of the opinion that the determination of April 25, 1997 as being the effective and appropriate date for the claimant’s Permanent Partial Impairment (PPI) is correct. This conclusion has been arrived at after hearing the able submissions of the claimant’s and employer’s representatives, reviewing the evidence on the claimant’s file, reviewing the medical reports associated with this issue and reviewing Workers Compensation Board policy as it relates to PPI awards.

The WCB has adopted fairly exhaustive guidelines for permanent impairment evaluation. The Appeal Commission, like the rest of the WCB, is bound by what is clearly required when evaluating permanent impairment, namely, a review of the medical evidence as it relates to the claimant to determine when, in the opinion of the Board’s physicians, the medical condition has stabilized to the point where no further improvement is expected.

The policy further sets forth the tests by which permanent impairment can be measured. These are limited areas and the one which relates to the claimant’s case is a measurement of “loss of mobility in the joints.”

The issue then becomes one of when to do the appropriate evaluation of this loss of range of movement. The timing of such an evaluation will obviously vary according to the individual’s circumstances. Suffice it to say, an evaluation will be quite fruitless if the claimant is either exhibiting no symptoms of loss of range of movement or if his or her symptoms are fluctuating over a consistent period of time without any obvious plateauing.

The evidence on the claimant’s file supports the conclusion that he either had no symptoms proving a loss of range of movement for a significant period of time after his surgery on March 21, 1989 or that the symptoms that he was exhibiting were unstable to the extent that there was no consistency to them until the finding of the permanent impairment by the WCB medical doctors of April 25, 1997. This does not in any way take away from the claimant’s argument that there certainly was subjective evidence of increased pain for a significant period of time prior to April 25, 1997. The majority panel is also aware of the findings of increased degenerative changes to the claimant’s spine. However, as identified, the WCB measures permanent impairment in a case such as this is limited to measuring loss of range of movement which is generally done by objectively measuring the physical limitation of the claimant as shown by some externally manifested ramifications. As a Panel we cannot create other mechanisms for assessing permanent impairment beyond those set by the WCB in their articulated policy.

A review of the claimant’s file and medical evidence generally supports the conclusion that the PPI examination and subsequent finding of permanent impairment on April 25, 1997 reasonably established permanent loss in the ranges of lower back movement. Medical evidence prior to this date is lacking in consistent objective findings that would establish a permanent loss of range of low back movement at an earlier date.

The claimant underwent a laminectomy on March 21, 1989. By September 29, 1989 the Orthopaedic Surgeon felt that the claimant was functioning well at his job and was only experiencing a “little discomfort” in his leg and foot and did not have any “significant back pain.” He had a “good range of motion of his lumbar spine which [was] painless.”

An x-ray examination of the claimant on March 12, 1990 was generally unremarkable with the exception of “minor disc space narrowing at the L5-S1 level…”.

Throughout the period 1991 to 1994 the claimant’s orthopaedic surgeon continued to note only a “mild restriction in motion” of the claimant’s back and found that the claimant’s ongoing complaints were related to mechanical back pain which would flare up from time to time. Other doctors during this period confirmed this. In reports dated April 27, 1993 and May 3, 1993, the claimant was found to have “reasonable range of movement”.

Again on January 25, 1994 and April 22, 1994 a specialist in rehabilitation medicine found the claimant’s spinal motion to be “reasonably full in all directions and not clearly productive of significant pain.” He had “good range of motion.”

A CT scan on April 10, 1994 showed only minimal post-surgical changes and “no other significant abnormalities [were] demonstrated.”

In April of 1995, the orthopaedic specialist noted increased levels of low back pain with symptoms which the doctor described as “greater than I would expect from the objective findings.” It was after this point that the claimant began treatment for chronic pain behavior. However, on June 9, 1995 a doctor at the Pain Clinic found the claimant to have a decreased range of motion. On February 20, 1996 the orthopaedic surgeon found that the claimant did have some permanent impairment and he disagreed with the policy of the WCB to measure permanent impairment on the basis of range of motion only.

However, after that point in time the claimant was examined several more times by his family doctor and found to have normal range of motion in his back. On March 14, 1996 there was “no change in range of spinal movements.” On December 10, 1996 there was “no significant tenderness …[he] can touch toes.”

The claimant was finally rated for a PPI award on April 25, 1997. This appears to have been the first time that the claimant was examined during a period of time when he was not experiencing a period of acute aggravation of mechanical back pain. Prior to this date and certainly up to 1994 there was little if any evidence of loss of range of movement. After 1994, the evidence of loss of range of movement including that related to degenerative disc disease as argued by the claimant’s orthopaedic surgeon is inconsistent suggesting that the claimant’s condition had not yet plateaued as reported in the various medical reports on file.

It is therefore reasonable based upon a balance of probabilities and based upon an interpretation of the policies and past practices of the WCB to find that the granting of the PPI award as of April 25, 1997 is more than supportable on the evidence and is therefore appropriate.

Panel Members

K. Dunlop, Q.C., Presiding Officer
A. Finkel, Commissioner
C. Monk, Commissioner

Recording Secretary, B. Miller

K. Dunlop, Q.C. - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 22nd day of December, 1999

Commissioner's Dissent

He further states, “ I note that you state the WCB normally measures impairment based on loss of range of motion. However, it is my opinion that loss of range of motion is only one consideration. When measuring range of motion of a joint such as an elbow one can get an objective assessment of the actual range of flexion and extension of the elbow. One can also obtain a good objective assessment of pronation and supination of the forearm. Hence, with an injury to a joint such as an elbow one can attain an accurate, purely objective assessment of the range of motion. However, when one is dealing with a back range of motion as performed by the patient, it is not a purely objective assessment, but has a very high subjective component. Hence if the WCB is using range of motion of the back as the major criteria for assessment of impairment then all objectivity is lost”. He finally goes on to say, “It is my opinion that this patient does have a permanent impairment based on the fact that the patient does have mechanical low back pain. The patient has mechanical low back pain as the result of the degenerative changes at the level which was injured in the accident of 1988.”

In a memorandum dated February 28, 1996 to the WCB medical advisor the question was asked, “Do you agree with Dr. [orthopaedic surgeon’s] opinion”. The answer was YES.

It is the minority opinion that at this time the claimant should have been called in and assessed for a PPI.

It is evident to the minority that there is sufficient medical evidence that this claimant had a permanent impairment much earlier on, and that he had plateaued at least by February 20, 1996.

In the Guidelines for Permanent Impairment Evaluation it states “Evaluation of permanent impairment is made when treatment has been completed, or when, in the opinion of the board’s Physicians, the medical condition has stabilized and no further improvement is expected.” Both the treating orthopaedic surgeon and the WCB medical advisor agreed that the claimant had a permanent impairment in February of 1996.

Therefore, it is the minority’s position that this claimant has had a rather tough time and suffered considerably from the date of his injury and the very least from the medical evidence on the file should have his PPI back dated to February 20, 1996.

C. Monk, Appeal Commissioner