Decision #123/14 - Type: Workers Compensation
Preamble
The worker is appealing the decision made by the Workers Compensation Board ("WCB") regarding the Permanent Partial Impairment award he received for his compensable left arm injury. A file review was held on July 16, 2014 to consider the matter.Issue
Whether or not the worker's permanent partial impairment has been correctly calculated.Decision
That the worker's permanent partial impairment has been not been correctly calculated.Decision: Unanimous
Background
On June 24, 2011, the worker injured his left biceps when he lifted a lawn mower into the back of a truck. The worker was diagnosed with a left distal biceps tendon rupture. The claim for compensation was accepted and benefits and services were paid.
On November 24, 2011, a WCB medical advisor was asked to review the worker's file and respond to questions posed by the case manager. The medical advisor stated that the current diagnosis was rupture of the distal biceps tendon of the left arm and it was related to the initial workplace injury of June 2011. The medical advisor also stated:
There is some variability in outcomes. Non-operative management (which is how this claimant was managed) is associated with long term loss of strength of elbow flexion (30 to 40%) and supination (15-25%). There is as well an associated loss of endurance strength of up to 40%. In some persons, pain at the site of injury fails to completely resolve...It appears that the prognosis is not favorable; however there are references of good functional recovery. It is predicted that some form of permanent impairment is predicted.
On February 21, 2012, the worker was seen by an orthopaedic specialist for a second opinion regarding his left biceps. The surgeon noted that the worker had gone to physiotherapy and had regained function in his arm and was back to working out but felt that his arm was weaker than he would like. The surgeon stated:
On physical exam, [the worker] has a pronounced Popeye deformity of his left biceps tendon that has migrated quite proximally. He has full painless range of motion to flexion, extension, pronation and supination of his left elbow and is neurovascularly intact in his left hand. He has good strength to flexion and extension and supination and pronation of his hand but his supination and flexion is noticeably weaker on the right [sic] side.
Considering the amount of function that the worker had, the surgeon felt that reconstructive surgery would not be recommended. The surgeon noted that the worker “is back to working out and lifting weights and most activities, he is happy to continue as he is going and continue with his retraining in engineering.”
On April 19, 2012, the worker's claim file was again reviewed by a WCB medical advisor who stated:
The recent report from orthopaedic surgeon suggests full range of motion. As no measurable loss of passive range of motion is anticipated, it is unlikely that an impairment award would be appropriate. As well since surgery was not undertaken there is no cosmetic deformity anticipated.
On May 28, 2012, a WCB physiotherapy consultant reviewed the worker's file for the purposes of a PPI award. The consultant stated:
The WCB Permanent Impairment Rating Schedule does not provide a scheduled rating for rupture of the distal biceps tendon. That being said, with the residual "Popeye" deformity, the outcome would likely be similar to a rupture of the long head biceps brachii.
As per page 12 of the WCB Permanent Impairment Rating Schedule a 1% PPI rating is provided for rupture of the long head biceps brachii. This rating is under the muscular category for upper extremity ratings. Although the injury involves the distal tendon, a 1% impairment rating is suggested for same. This rating is inclusive of any associated cosmetic changes in relation to altered form and symmetry for the "Popeye" deformity. Therefore the total suggested PPI rating is 1%.
On June 1, 2012, the worker was awarded a PPI rating of 1% for cosmetic deformity which amounted to $1190.00. On April 7, 2014, the worker appealed the amount of his PPI award to Review Office.
On May 22, 2014, Review Office confirmed that the worker's PPI award was calculated correctly. Review Office concurred that there was no rating for a rupture of the distal biceps tendon based on its review of the WCB's Permanent Impairment Rating Schedule. It noted that PPIs were calculated based on cosmetic deformities and loss of range of motion and that it was medically documented that the worker did not have a loss of range of motion.
Review Office noted that the worker had been awarded a 1% rating based on the appearance of his left bicep. There was no provision for pain or suffering in relation to a workplace accident based on the WCB's Permanent Impairment Rating Schedule. On May 31, 2014, the worker appealed Review Office's May 22, 2014 decision to the Appeal Commission and a file review was arranged.
Following the file review held on July 16, 2014, the appeal panel requested that arrangements be made for the worker to be examined at the WCB's offices to determine the extent of his left arm impairment. The panel also asked WCB Healthcare Services to comment on whether the resultant "Popeye" deformity of the biceps muscle would warrant consideration outside of the WCB's Permanent Impairment Rating Schedule.
The worker was seen for a PPI assessment at the WCB on September 2, 2014. On September 5, 2014, the worker was provided with a copy of the PPI report and was asked to provide comment. On September 22, 2014, the panel met further to discuss the case and to render a decision on the worker's appeal.
Reasons
Applicable Legislation and Policy
The Appeal Commission is bound to follow The Workers Compensation Act (the "Act") and the policies of the WCB’s Board of Directors. In this case the worker is appealing the WCB's calculation of his permanent impairment award.
Section 4(9) of the Act provides that the board may award compensation for an impairment that does not result in a loss of earning capacity. The method for calculating compensation for impairment is set out in section 38 of the Act:
Determination of impairment 38(1) The board shall determine the degree of a worker’s impairment expressed as a percentage of total impairment.
The WCB Board of Directors established Policy 44.90.10, the Permanent Impairment Rating Schedule (the “Schedule”) to determine the impairment ratings. Appendix A to the Schedule sets out how impairment ratings are determined. The Schedule sets out that permanent impairment is measured by the following factors: loss of a part of the body; loss of mobility in the joints; loss of function of any organs of the body identified in the schedule; and cosmetic deformity of the body.
The Schedule provides that the degree of impairment will be established by the Healthcare Management Services Department of the WCB in accordance with the Schedule and that whenever possible and reasonable, impairment ratings will be established strictly in accordance with the Schedule.
Impairment awards are calculated by determining a rating that represents the percentage of impairment as it relates to the whole body. The award is not related to loss of earning capacity, and it is not intended to compensate a worker for any pain or suffering flowing from an injury. The rating calculation does assess loss of functional ability by measuring loss of range of motion.
The value of Permanent Partial Impairment awards is calculated under the terms of section 38(2) of the Act, as adjusted by the Adjustment in Compensation Regulation.
Worker's Position
The worker filed an appeal on May 22, 2014. In his appeal form, he advised:
"I work out which make my disfigurement worse then (sic) that of an average person. Also I do not have the strength I used to have in this arm. The pain I went through and what I am left with is does not seem to correspond with the amount I was given."
In a letter enclosed with the appeal the worker advised that:
"...On top of the pain of tearing a bicep I lost most of what I spent years of training for at the gym...I'm left with a permanent disfigurement which I cannot do anything about. Every time I workout or look in the mirror it is apparent...Even though my arm has full mobility and is pain free it is still not as strong as before the injury. I know this from the amount of weight I used to lift. If I put a percentage I would say it is 75% of what it used to be. So on top of the permanent disfigurement I have a permanent loss of strength."
Employer's Position
The employer did not participate in this appeal.
Analysis
The worker disagrees with the WCB's determination that he has a 1% permanent impairment and that his award is valued at $1200.00. The worker’s position is that he has lost functional ability and strength as a result of this injury and suffered a significant disfigurement.
For the worker's appeal to succeed, we must find that the worker's permanent impairment rating was not correctly calculated. The panel was able to make this finding.
The panel noted that the worker had not been examined by the WCB at the time his permanent partial impairment had been calculated. The panel referred the file back to the WCB with the request that the worker be examined by a medical advisor to determine the extent of his left arm impairment.
The panel notes that the worker was examined by a WCB medical advisor on September 2, 2014. The medical advisor impression was that:
"Today's examination findings indicate that the residual impairment at the left elbow stemming from the ruptured distal biceps tendon, specifically
i) a 10º deficit of passive left elbow flexion vs. right and
ii) a change in form and symmetry of the left biceps can be appropriately rated utilizing the WCB Permanent Impairment Rating Schedule, as follows:
1. The change in form and symmetry of the left biceps equates to a ratable impairment of 1%; and
2. The 10º deficit of passive left elbow flexion passive equates to 1.4% impairment rating."
The WCB medical advisor found that the total recommended PPI would therefore be 2.4% whole person impairment.
The panel accepts the recommendation of the WCB medical advisor and finds that the correct calculation of the worker's permanent partial impairment is 2.4%.
The worker's appeal is accepted and an impairment of 2.4 % whole person is granted.
Panel Members
A. Scramstad, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
Signed at Winnipeg this 23rd day of September, 2014