Public Decisions | The Appeal Commission

Decision #13/14 - Type: Workers Compensation

Preamble

The worker disagrees with the permanent partial impairment rating that was established by the Workers Compensation Board ("WCB") following an examination on August 23, 2012 with respect to his back condition. A file review was held on January 8, 2014 to consider the worker's appeal.

Issue

Whether or not the worker's permanent partial impairment rating has been correctly calculated at 6%.

Decision

That the worker's permanent partial impairment rating has been correctly calculated at 6%.

Decision: Unanimous

Background

On September 19, 1992, the worker injured his back in a work-related accident. Medical reports showed that the worker underwent a right L4-5 discectomy in 1993 and right L4-5 decompressive laminectomy and right L4-5 discectomy in 1994. The worker also has pre-existing congenital spinal stenosis. The worker was awarded a Permanent Partial Impairment ("PPI") award of 4.4% in 1995 for his back condition.

On August 23, 2012, the worker was seen by a WCB medical consultant for re-assessment of his PPI award. Measurements were taken of the worker's range of motion ("ROM") related to his lumbar and thoracic spine regions and impairment calculations were made as follows:

IMPAIRMENT CALCULATIONS
Difference of Observed vs Expected ROM	40
% Deficit ROM	16.7%
Maximum rating for lumbar thoracic region	30%
% Impairment	5.0%

TOTAL PPI RATING
Impairment	Rating	Combined Rating
Cosmetic Rating	1.00
Loss of mobility thoracolumbar spine	5.00	6.00

Calculated PPI Rating (%)		6.00

In a decision dated September 21, 2012, the worker was advised that he was entitled to a 1.6% increase to his previous PPI rating for a total of 6.00% (4.40% + 1.6% = 6.00%). This resulted in a one-time payment of $360.00 which was issued on September 24, 2012.

On August 20, 2013 the worker filed an appeal with Review Office as he disagreed with the PPI award outlined on September 21, 2012. The worker indicated that his work-related injury and subsequent back surgeries had left him with a high level of reduced mobility. The worker believed that he could have worked another five years if he had retained his mobility.

When speaking with a WCB review officer on August 21, 2013, the worker indicated that he disagreed with the 6% whole body impairment rating. He felt the WCB medical consultant's measurements were inaccurate and that the medical consultant strained him too far which caused him pain.

On September 23, 2013, Review Office determined that the worker's PPI rating of 6% was accurately calculated. Review Office indicated there was no contradictory medical information to rebut the measurements obtained in the August 23, 2012 PPI examination and nothing to suggest that they were obtained with anything but passive range of motion movements or that they misrepresented the level of impairment the worker had in his low back. On October 27, 2013, the worker appealed Review Office's decision to the Appeal Commission and a file review was arranged.

Reasons

Applicable legislation and policy:

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, at the time of the worker's accident in September 1992, read 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, subject to subsection (3), pay to the worker as a lump sum an impairment award in the following amount, for an impairment that is determined by the board to be

(a) 1% or greater but less than 5%: $500.;

(b) 5% or greater but less than 10%: $1,000.;

Reduction for worker over 45

38(3) A sum payable under subsection (2) shall be reduced by 2% for each year of age the worker is over 45 years at the time the board determines the worker has an impairment, but the reduction shall not exceed 40%.

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 the spine, Appendix A provides as follows:

The criteria used for development of impairment ratings in regard to the spine, whether resultant from direct injury or related surgical procedures, essentially involves measurement of restricted motion. For this purpose, the spine is divided into the cervical and the lumbar/thoracic region.

The impairment rating for partial loss of movement will be proportional to the amount of movement that is lost on clinical findings, as a percentage of the assigned ratings for complete immobility; taking into account flexion, extension, lateral flexion, and rotation.

Worker’s position:

The worker's Appeal of Claims Decision form states that he disagreed strongly with the results of his PPI assessment. The worker told the medical advisor that he did not have much rotation or flexibility in his back, but was told by him to bend as far as possible. Due to his profession, the worker was accustomed to working with pain and felt that he bent too far during the PPI assessment and as a result, experienced severe pain. The worker also took issue with the status of the legislation at the time of his injury, as he was informed that had he been injured a few years earlier or a few years later, his award for his impairment would have been much greater. The worker felt that this was unfair as he had been a dedicated employee and a very hard worker for over 30 years. The injury had changed his life and his family's life forever and the worker felt that he should be compensated with a larger permanent impairment assessment and a greater monetary award.

Employer’s position:

The employer provided a written submission. The employer's position was that it was unaware of any medical evidence that would contradict the impairment rating determined by the WCB medical advisor in August 2012 and it therefore called upon the appeal panel to confirm the Review Office decision dated September 23, 2013.

Analysis:

The issue before the panel is whether or not the worker's permanent partial impairment rating has been correctly calculated at 6%. In order for the worker's appeal to succeed, the panel must find that the Act and/or the WCB Policies were not correctly applied in his case. We are not able to make that finding.

At the outset, the panel wishes to address the worker's submission regarding the unfairness of the application of the Act to his situation. The general rule is that a worker's entitlement to benefits will be governed by the version of the legislation in place at the time the compensable injury was sustained. The worker's accident was on September 19, 1992 and accordingly, this is the date which must be used in determining his benefits. The panel has no discretion or ability to change the relevant legislation and we are bound to apply the versions of the Act and WCB Policy as set out above.

The panel has considered whether there was any error in the measurement of restricted motion in the lumbar and thoracic spine. The worker's complaint was that he was measured based on a level of mobility which caused him severe pain.

Appendix A to the Policy specifically states that range of motion will be calculated on the passive rather than the active range. Passive range of motion refers to the moving of a joint through its range of motion without exertion by the subject usually done by an examiner who moves the person's body part manually. The panel is bound to follow this Policy.

The panel understands the worker's main concern to be that although he may have demonstrated the degree of mobility measured by the medical advisor, it was at a point further than he would normally be able to bend on account of pain. Unfortunately, the PPI rating for the worker's back injury is based on loss of range of motion only. The change in the worker's functional ability is not a factor taken into consideration when calculating the PPI award, despite the fact that he may experience severe pain when performing certain movements. While the reduced rotation and flexibility in his back may cause pain and have a significant impact on his life, this is not a factor used to determine the PPI rating.

The panel therefore finds that the worker's permanent partial impairment rating has been correctly calculated at 6.0%. The worker's appeal is dismissed.

Panel Members

L. Choy, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 4th day of February, 2014

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