Decision #86/12 - Type: Workers Compensation
Preamble
The worker is appealing a decision made by Review Office of the Workers Compensation Board ("WCB") which determined that he was not entitled to a permanent partial impairment award in relation to his compensable right elbow injury sustained on October 2, 2008. A hearing was held on June 12, 2012 to consider the matter.Issue
Whether or not the worker is entitled to a permanent partial impairment award.Decision
That the worker is not entitled to a permanent partial impairment award.Decision: Unanimous
Background
On October 2, 2008, the worker fell onto his right elbow during the course of his employment as a stacker. The claim for compensation was accepted by the WCB and benefits and services were paid to the worker. The compensable diagnosis was an undisplaced radial head fracture to the right elbow.
File records showed that the worker underwent physiotherapy treatment for his elbow condition and was seen by various specialists. On June 26, 2009 the worker underwent a Functional Capacity Evaluation ("FCE") at the WCB's offices. On August 20 and August 21, 2009, surveillance video was taken of the worker which showed him engaging in various activities, including riding a bicycle and playing tennis.
On August 31, 2009, a WCB case manager wrote the worker to advise that any ongoing difficulties he may have with his right arm/elbow would not be responsibility of the WCB effective August 31, 2009. The case manager's decision was based on her review of the surveillance information which she noted showed that the worker appeared to have no functional limitations with the use of his right arm/elbow during daily activities of cycling, playing tennis, checking vehicle tires and other activities. She also based her decision on medical information dated June 30, 2009.
On December 16, 2009, a WCB medical advisor reviewed the worker's claim to determine if he was entitled to a permanent partial impairment ("PPI") award. The medical advisor responded as follows:
…fell, at work, sustaining a nondisplaced radial head fracture. Recovery, in spite of extensive physiotherapy, was slow. An FCE completed at the WCB demonstrated a full range of motion of the elbow although other reports on file have described a variable range of motion. [The worker] has reached MMI. There is no major pre-existing condition related to the PPI. [The worker] sustained an undisplaced fracture of the radial head and a full range of motion of the elbow joint has been described. On this basis, there is no ratable PPI.
In a decision dated December 16, 2009, the worker was advised by the WCB that he was not entitled to a PPI as a result of his right elbow injury because he showed a full range of motion of the elbow during the FCE, as was noted in the WCB medical advisor's review.
On February 28, 2011, an advocate acting on the worker's behalf expressed disagreement with the WCB decision that the worker was not entitled to a PPI award. The advocate referred to a report from the worker's treating physician who commented that the worker retained a 2% total disability for his fractured arm.
In a decision dated July 4, 2011, Review Office determined that the file evidence did not produce the grounds to implement a rateable PPI award. Review Office noted that the worker was non-compliant with the medical recommendations to use his right arm as much as possible as was suggested by two orthopaedic specialists and a physiotherapist. The worker's credibility was also of concern as there were numerous inconsistencies in the worker's presentation noted by the evaluator during the FCE. Video surveillance showed the worker playing tennis and riding a bicycle yet at the FCE, he could not make enough right hand grip strength effort for the dynamometer to even register a reading.
Review Office noted that the worker's range of motion presentation was very inconsistent as between medical practitioners and thus no clear range of motion evaluation could be relied upon as an objective finding. Review Office noted that the worker's treating physician may have stated that the worker had a 2% disability but the comment would not enter into the determination of whether or not the worker had a rateable PPI. Review Office choose to use the medical evidence on file to arrive at its decision that the worker misrepresented his elbow condition to both the medical community and the WCB and therefore he was not entitled to a PPI award in regard to his October 2, 2008 compensable injury.
On January 26, 2012, the worker's advocate appealed Review Office's decision to the Appeal Commission and a hearing was arranged.
Reasons
Applicable Legislation
The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the Board of Directors. Under subsection 4(1) of the Act, where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid to the worker by the WCB.
Payment of compensation for an impairment is provided for under section 38 of the Act, which reads as follows:
Determination of impairment
38(1) The board shall determine the degree of a worker’s impairment expressed as a percentage of total impairment.
Calculation of impairment award
38(2) Where the board determines that a worker has suffered an impairment, the board shall pay to the worker as a lump sum an impairment award ….
In accordance with the Act, the Board of Directors enacted WCB Policy 44.90.10.02
Permanent Impairment Rating Schedule (the “Policy”) which provides guidelines on how impairment awards are to be calculated. The Policy states
1. The degree of impairment will be established by the Healthcare Management Services Department of the Workers Compensation Board in accordance with this policy. The degree of impairment established by this Department can only be altered on review and approval by the Executive or Senior Director responsible subject to the normal appeal process. 2. Whenever possible, and reasonable, impairment ratings will be established strictly in accordance with the schedule attached as Appendix A. For injuries to upper extremities, Appendix A provides as follows: Loss of Movement/Functions The impairment rating for partial loss of movement or function resulting from direct injury or related surgical procedures will be proportional to the amount of movement or function that is lost based on clinical findings, as a percentage of the assigned ratings for complete joint immobility. As there are great variations from person to person in ranges of movement, when there is a completely normal extremity to compare with, loss of movement can be determined by comparing the movement in the joint being examined with the movement of the normal joint on the opposite extremity. When there is not a normal extremity with which to compare, the following will be considered as guidelines for normal ranges of movement for upper extremity joints: Elbow: Flexion 150 degrees Extension 0 degrees Pronation 90 degrees Supination 90 degrees Worker’s Position The worker was accompanied by an advocate at the hearing and was provided with the services of an interpreter. In the Appeal of Claim form, the advocate raised three points, stated as follows: At the outset of the hearing, it was clarified that the sole issue before the panel concerned the worker's entitlement to a PPI award. The second point raised by the advocate was not an issue for which the panel could grant the worker relief, and it essentially just constituted an argument as to why the appeal ought to be allowed. The language barrier raised in the third point was addressed by the provision of interpretation services at the hearing. The worker's position was that he continued to have a problem with his right arm. Before the accident, he did not have any handicap or problems with his arm. Since the accident, he had a deformity in his arm and he was not able to do any heavy type of work. The worker stated he was not able to straighten his arm out and felt pain when he tried to perform heavy work, especially when the weather was cold. His right arm was no longer one hundred percent. He was willing to work hard, but because of the injury to his right arm, he was restricted and was not able to make as much income as he could have if he had not lost the ability in his arm. Employer's Position The employer was represented by a human resources manager. The employer's position was that the worker was not entitled to a PPI award. It was submitted there was no medical evidence from a physician to prove any limitations or limited capacity or functionality. The surveillance footage depicted the worker moving freely and fully, and showed he had the ability to extend his elbow and arm fully, and to exert force with his arm while playing tennis. The employer therefore was in agreement with the previous decision made by the WCB. Analysis The issue before the panel is whether or not the worker is entitled to a permanent partial impairment award. In order for the worker's appeal to succeed, the panel must find that as a result of the compensable injury, the worker has a loss of range of movement in his elbow which qualifies under the Act and Policy for an impairment award. We are not able to make that finding. The panel has reviewed the measurements used by the WCB to determine whether or not the worker was entitled to a PPI award. The measurements were taken on June 26, 2009 by a physiotherapy consultant and were recorded as follows: Passive Range of Motion - Elbow (degrees) Right Left Flexion 140 140 Extension -5 0 Passive Range of Motion - Forearm (degrees) Right Left Pronation 90 90 Supination 90 90 The June 26, 2009 report indicates that the worker's advocate was present at the appointment and acted as an interpreter for the worker. The panel is therefore satisfied that the language barrier did not affect the accuracy of the measurements. When compared to the range of motion measured for the left arm, it would appear that there was no loss of range of motion in the right elbow. Indeed, there was even a hyperextension of 5 degrees measured on the right side, thus indicating a superior range of motion. We are also of the view that the left elbow measurements were properly used as a guideline for the worker's normal range of joint movement. There was no indication on file that the left elbow was anything other than completely normal. Further, the worker confirmed at the hearing that his left arm was "a hundred percent." The left arm measurements were therefore properly used as a comparison for the loss of movement. At the hearing, the worker's evidence was that as a result of the compensable injury, he is not able to use his right arm the way that he used to and that he experiences pain when he tries to lift something heavy. The panel acknowledges the worker's comments but unfortunately, according to the criteria in the Policy, a PPI award is based on loss of range of movement only. The change in a worker's ability to use his arm is not a factor taken into consideration when calculating the impairment award. In the absence of any measured loss of range of movement, the worker is not entitled under the provisions of either the Act or Policy to a PPI award. The worker's appeal is therefore dismissed.
Panel Members
L. Choy, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
L. Choy - Presiding Officer
Signed at Winnipeg this 25th day of July, 2012