Decision #64/13 - Type: Workers Compensation
Preamble
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his left shoulder Permanent Partial Impairment rating of 4.4% was correctly calculated in accordance with the WCB's Permanent Impairment Rating Schedule. A hearing was held on March 21, 2013 to consider the matter.Issue
Whether or not the worker's Permanent Partial Impairment rating of 4.4% has been correctly calculated.Decision
That the worker's Permanent Partial Impairment rating of 4.4% has been correctly calculated.Decision: Unanimous
Background
The worker suffered multiple injuries from a slip and fall incident at work on November 12, 2008. His claim for compensation was accepted by the WCB and various types of benefits and services were provided to him.
On March 22, 2011, the worker's file was reviewed by a WCB physiotherapy consultant as the worker was requesting a Permanent Partial Impairment ("PPI") award for his left shoulder. The physiotherapy consultant noted that the compensable diagnosis related to the worker's left shoulder was a rotator cuff tear which was surgically repaired on March 1, 2010. He noted that the worker had limited range of motion ("ROM") in his left shoulder postoperatively and that he had minimal degenerative changes in his shoulder. MRI and arthroscopy findings both described a normal left shoulder joint. It was determined that the worker would be assessed for a possible PPI rating for loss of mobility in his left shoulder.
The PPI assessment took place on April 6, 2011 by a WCB medical advisor. Digital pictures of scarring were taken of the shoulder and were compared to the folio of images at the WCB. The medical advisor found no rateable cosmetic impairment related to the left shoulder.
With respect to ROM measurements, the medical advisor stated:
…attempts at measuring passive range of motion of the left shoulder were accompanied by complaints of pain and pain behavior. The attempts at passive range of motion in all planes of the left shoulder, were actively resisted by [the worker]. Active range of motion measurements were greater than passive range of motion. [The worker] noted increasing pain of the left trapezius and left thoracic spinal paraspinals with passive range of motion. The range of motion measurements on the left cannot be validated and are pain limited. There is, therefore, no rateable PPI at this time.
Following the April 6, 2011 assessment, the worker was advised that he was not entitled to a PPI for his left shoulder as the left shoulder ROM could not be validated due to pain limitation.
On June 21, 2012, the worker was seen for a second PPI assessment of his left shoulder. The worker reported that his left shoulder was pain-free but stiff and he found it difficult to use the left arm above shoulder level for repetitive tasks or lifting.
The PPI examination was reported as showing no tenderness on palpation of the left shoulder or shoulder girdle and passive range of motion measurements were not limited by pain. Passive left and right shoulder mobility was measured using a goniometer, as per the American Academy of Orthopaedic Surgeons "The Clinical Measurement of Joint Motion" handbook.
The worker's impairment calculations were recorded as follows:
Difference of Right vs Left ROM 90
% Deficit ROM 17.5%
Maximum rating for a fused shoulder 25
% Impairment 4.4%
The total recommended PPI was 4.4% whole person impairment.
On June 29, 2012, the worker was advised that he was entitled to a PPI award of 4.4% for his left shoulder which amounted to $4,360.00.
On August 24, 2012, the worker provided the WCB with the following passive ROM measurements by his treating physician dated July 25, 2012:
Right Left
Forward Flexion 180 90
Backward Elevation 30 20
Abduction 180 90
Internal Rotation 60 30
External Rotation 90 80
The worker contended that the ROM calculations of the WCB medical advisor dated June 21, 2012 did not correspond with the figures provided by his treating physician. On August 27, 2012, the WCB advised the worker that the information from his physician did not warrant a change in the PPI rating of his left shoulder.
On October 1, 2012, the worker appealed the 4.4% PPI rating to Review Office. In later correspondence to the WCB, the worker outlined his position that WCB Policy 44.60.10- Minimum Awards for Permanent Impairments should be applicable to the June 29, 2012 PPI determination.
On November 6, 2012, a WCB sector manager advised the worker that Policy 44.60.10 was only applicable to claims or injuries having occurred prior to January 1, 1992.
On November 30, 2012, Review Office determined that the PPI rating had been correctly calculated at 4.4%. Review Office outlined the position that Policy 44.60.10 was only applicable to accidents occurring before January 1, 1992 and it therefore concurred with the sector manager's position dated November 6, 2012.
Review Office advised the worker that any difficulties he was experiencing with activities of daily living would not be a component in determining his PPI rating as there was no provision for this in the Permanent Impairment Rating Schedule.
Review Office referred to WCB Policy 44.90.10. It concluded that the WCB medical advisor correctly established the 4.4% impairment rating in accordance with the WCB's Permanent Impairment Rating Schedule. It found that the financial amount of the award was also correctly calculated in accordance with subsection 38(2) of The Workers Compensation Act (the "Act"). Review Office noted that there was no rateable cosmetic impairment related to the left shoulder injury based on the April 6, 2011 examination.
Review Office also considered the measurements of the treating physician dated July 25, 2012. As the physician did not explain how he determined the passive ROM for the left and right shoulders, Review Office indicated that it did not place weight on the information.
On February 4, 2013, the worker appealed Review Office's decision to the Appeal Commission. The worker indicated that he had correspondence from two doctors (his treating physician and an occupational health physician) to show different calculations than those outlined by the WCB during the 2012 left shoulder PPI examination. A hearing was then arranged.
Reasons
Applicable Legislation and Policy
The Appeal Commission and its panels are bound by 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: Shoulder: Forward flexion 150 degrees Backward elevation 40 degrees Abduction 150 degrees Adduction 30 degrees Internal rotation 40 degrees External rotation 90 degrees NOTE ON APPLYING RANGE OF MOTIONS: NOTE: Range of motion will be calculated on the passive rather than the active range. Worker’s Position The worker was self-represented at the hearing and was accompanied by his family physician and an occupational health physician. The worker disagreed with the method the WCB medical advisor used to measure his left shoulder. The worker stated that he was examined by the WCB medical advisor on two occasions. On the first occasion, the WCB medical advisor said he was in too much pain. On the second occasion, he was still in pain but he did not want to show it as much as he knew his PPI would then not be calculated properly. When measuring his range of motion, the WCB medical advisor made the worker do different things with his shoulder, but he helped it by pushing up with his own hand. The worker did not agree with this method as it caused him more pain. Further, the worker stated that he could not go around walking using his right arm to lift his left arm all the time, so he did not feel this was an accurate measurement. The family physician and the occupational health physician agreed with the worker's position. The family physician stated that in his view, using passive range of motion to evaluate a permanent partial impairment or disability was not useful. As an example, he said that he could go to any hospital morgue, find a dead person and move the arm in any direction. Passive range of motion does not really mean anything. The family physician stated that the worker injured his left arm a number of times at work, finally tearing the rotator cuff. Following the surgical repair, the worker had some function in his arm, but the measurements taken by the family physician in July 2012 showed a lower range of motion than the measurements taken by the WCB medical advisor. The occupational health physician performed another evaluation of the worker's left shoulder on September 4, 2012. The occupational health physician's evidence was that the WCB's PPI process with regard to the shoulder was very problematic. He did not agree with the use of passive range of motion to measure the impairment that was consequent to a workplace injury. He noted that the numbers used by the WCB assume that the shoulder is one joint. In fact it is not. The shoulder is a complex joint which involves the shoulder girdle, scapula thoracic movement and the glenohumeral joint. To reduce this complicated movement into a simple number was problematic. In this worker's case, he had a tear in his rotator cuff which was repaired some years later. The arm was impaired for many reasons besides the surgical repair and the tendon itself. The worker also had issues with his back and leg. The occupational health physician fundamentally disagreed with the concept that you could lift the arm passively, get it into a place of pain, measure it and then say that this was a proper measurement of a person's impairment. There were other medical factors involved and it was submitted that passive range of motion of the shoulder was not an adequate expression of loss of function. If a person was paralyzed in the shoulder and did not have the strength in the arm to lift the weight of the arm, passively the arm could go straight up, but actively, there would be 90 degrees of range which the person would never functionally be able to use. It amounted to giving credit for function which the person really did not have. With respect to his physical examination of the worker, the occupational health physician noted that the WCB had addressed the worker as though his only problem was a torn rotator cuff which was repaired by surgery. During his examination, the occupational health physician found the left levator scapular attachment was very tender and there was a lot of muscle pain, tenderness and hypertonis in the extensors, the rhomboids and left pectoralis major. This created a lot of residual limitations over and above the surgical repair. Overall, the occupational health physician felt that the PPI award was supposed to bridge the difference between the permanent impairments that the worker was left with because of his injuries and his loss of economic capacity. With the way the WCB valued the worker's permanent impairment, it was felt that there was a huge gap between the two concepts in this worker's case. Analysis The issue before the panel is whether or not the worker's PPI rating of 4.4% has been correctly calculated. In order for the worker's appeal to succeed, the panel must find that the Policy was not correctly applied in his case. We are not able to make that finding. The panel acknowledges the submissions regarding the wisdom of using passive range of motion to establish a PPI rating and how this method does not effectively reflect the loss of function caused by a compensable injury. It is not, however, within our jurisdiction to make changes to the policies established by the WCB. Subsection 60.8(6) of the Act specifically states: "The appeal commission is bound by the policies of the Board of Directors." As such, this panel is limited to applying the terms of the Policy as written. Appendix A to the Policy specifically states that range of motion will be calculated on the passive rather than the active range. This represents a deliberate choice on the part of the Board of Directors to grant PPI awards based only on passive range of motion, regardless of the change in actual functional ability. We are bound by this Policy. At the hearing, both the family physician and the occupational health physician confirmed that the measurements taken by them of the worker's left shoulder range of motion were based on active rather than passive range of motion. As such, these measurements cannot be used to calculate the worker's PPI rating. While the method used by the WCB medical advisor was challenged by the worker, the worker gave no evidence to suggest that the WCB medical advisor did not accurately measure his passive range of motion. We therefore find that there is no basis for changing the assessment of a 4.4% PPI rating. With respect to the amount of the PPI award, we find that the amount of $4,360 was correctly calculated. The WCB used the values set out in Manitoba Regulation 146/12, Adjustment in Compensation Regulation ("Man. Reg. 146/12"). The worker's accident occurred in 2008. According to Table 2 of Man. Reg. 146/12, for the year 2008, impairment lump sum payments for less than 30% as provided for in clause 38(2)(a) of the Act are to be calculated by awarding $1,090 for each full 1% of impairment. If the worker's PPI rating is 4.4%, this represents 4 full percentages of impairment. When you multiply $1,090 by 4, you arrive at the amount of $4,360. This was the amount of the PPI award which was paid to the worker. At the hearing, the worker argued that his PPI award should be calculated using WCB Policy 44.60.10, Minimum Awards for Permanent Impairments. The panel notes that the effective date for Policy 44.60.10 is stated to be: "March 15, 1989, for accidents occurring before January 1, 1992." As the worker's accident occurred on November 12, 2008, it did not occur before January 1, 1992 and this policy has no application to his case. We therefore find that the worker's PPI rating of 4.4% has been correctly calculated. The worker's appeal is dismissed.
Panel Members
L. Choy, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
L. Choy - Presiding Officer
Signed at Winnipeg this 1st day of May, 2013