The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he was only entitled to a 4.0% Permanent Partial Impairment Rating in relation to his compensable right knee condition. A file review was held on November 17, 2014 to consider the matter.

Issue

Whether or not the worker's Permanent Partial Impairment Rating has been correctly calculated.

Decision

That the worker's Permanent Partial Impairment Rating has been correctly calculated.

Decision: Unanimous

Background

On March 15, 2011, the worker was carrying a window through a doorway when he slipped and fell on some slush. He said the lower part of his leg went out sideways. The worker stated: "When I slipped and fell in the doorway it wedged me in the doorway. I got up and put the window in the truck."

A right knee x-ray taken on March 16, 2011, showed degenerative changes within the patellofemoral joint compartment and some chondrocalcinosis in both medial and lateral meniscii. There was no evidence of fracture or dislocation.

The claim for compensation was accepted based on the diagnosis of a right medial meniscus tear. On June 22, 2011, the worker underwent an arthroscopy with partial medial meniscectomy, partial lateral meniscectomy, chondroplasty of the patella and the medial femoral condyle.

File records showed that the worker returned to work in August 2011 but reinjured his right knee on October 26, 2011. On March 12, 2012, the worker underwent a right knee arthroscopy, partial medial meniscectomy and chondroplasty patella.

In July 2012, the worker injured his right knee at home. An MRI dated August 14, 2012 revealed an anterior horn horizontal cleavage tear of the lateral meniscus and fraying and attrition of the posterior portion of the medial meniscus, partial thickness cartilage loss femoral trochlea and marginal spurring both femoral condyles.

Due to ongoing persistent knee pain, the worker underwent the following surgical procedures on February 14, 2013: right knee arthroscopy, partial medial meniscectomy, medial femoral chondroplasty, patella chondroplasty and lateral tibial chondroplasty and lateral tibial chondroplasty, partial synovectomy.

On March 7, 2014, a WCB medical advisor indicated that the worker had reached maximum medical improvement with respect to his right knee condition and that the worker could be assessed for a possible permanent partial impairment ("PPI") award. The medical advisor further stated:

There is a major pre-existing condition related to the PPI. Arthroscopies completed prior to the CI [compensable injury] demonstrated degenerative changes within the right knee. There is evidence of chondrocalcinosis which likely played a role in degenerative changes of the menisci. The ongoing pain and dysfunction knee is likely a combination of the CI and the degenerative changes.

On March 25, 2014, the worker underwent a WCB examination for a PPI award. The examination consisted of passive range of motion ("ROM") measurements of the right and left knees. The WCB medical advisor outlined impairment calculations and it was concluded that the impairment award was 7.1% The total impairment including a cosmetic rating of 1.00% that was added, for a total PPI rating of 8%. The medical advisor also stated:

Based on the medical memo on file there would be considered a major pre-existing condition in relation to the PPI. This would result in a prorating of the calculated PPI by 50% (8.0% x 0.5 = 4.0%). The total recommended PPI would therefore be 4.0% whole person impairment.

By letter dated March 27, 2014, the WCB advised the worker that he was entitled to a PPI rating of 4.00%. The letter also provided the worker with an explanation as to how the WCB calculates a PPI award.

On April 21, 2014, the worker requested Review Office to reconsider the decision of March 27, 2014. The worker noted that he had three days off work prior to his WCB assessment which meant that his knee was at its best at that time. The worker indicated that to assess his knee fairly for a PPI award, the PPI assessment should have taken place after a full day of work.

In a decision dated June 20, 2014, Review Office determined that the worker's PPI rating had been correctly calculated. Review Office acknowledged the worker's concerns that he was evaluated on a good day after he had several days of rest. The worker felt it would be fairer to evaluate him after a full day's work. Review Office stated that it found no provisions within the "Act" or Board policy to grant the worker a further evaluation and found the assessment carried out on March 25, 2014 was a reasonable reflection of the worker's functional impairment at that time. On July 27, 2014, 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.

Subsection 4(1) of the Act provides that 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

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 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 Vice-President or 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 lower extremities, Appendix A provides as follows:

Loss of Movement/Function:

The impairment rating for partial loss of movement or function resulting from direct injury or related surgical procedures (including patellectomy and hip prosthesis) 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.

Knee:

Flexion 150

Extension 0

Guidelines for applying range of motions provide:

1. Determine the expected range of motion (either the values shown or the range demonstrated by a completely normal extremity on the person being examined).
2. Determine the worker's range of motion through observation/examination.
3. Add the elements of the expected range.
4. Add the elements of the observed range.
5. Determine the differences (the loss of range of motion).
6. Calculate the impairment as a portion of the impairment for a fully immobilized joint.

Note: Range of motion will be calculated on the passive rather than the active range.

The Board of Directors has also enacted WCB Policy 44.10.20.10, Pre-existing Conditions. This policy deals, in part, with the impact of a pre-existing condition on the calculation of a PPI. It provides that a pre-existing condition which is deemed to be major will be assigned a rating equivalent to 50% of the total combined impairment.

Worker's Position

In his notice of appeal form dated June 20, 2014, the worker indicated that:

"I feel the calculation may be different as I had 3 days off work and resting my knee, (my assessment was Tuesday morning) as opposed to the end of the work day or the end of the work week. All I'm asking is for the assessment appointment at the end of a work day or towards the end of a work week (my work week is Monday to Friday) and to calculate the difference from the previous assessment, if there is any."

In a written submission dated November 4, 2014, the worker advised of the impact of his work injury on his life and identified his concern about the assessment. He described his appointment with the WCB medical advisor and said it lasted approximately five minutes. He said that after eight hours of work, my right knee is twice the size of my left knee, its pounding and pain is unbearable, as to which I take pain medication to relieve some of the pain. This is an occurring (sp) event unless I stay off my knee.

The worker also noted that his rating had been reduced from 8% to 4% and that he continues to live in pain on a daily basis.

Employer's Position

The employer provided a letter advising that the worker was unable to work on certain dates, "according to him, due to excessive swelling and pain in his knee and not being able to perform his job." The letter also advised that "During his work day, he is forced to sit for long periods and rest his knee before he can continue with his regular duties."

The panel notes that the employer has been supportive of the worker and has accommodated his restrictions.

Analysis

The issue before the panel is whether or not the worker's PPI 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 and that the calculation was not properly made. We are not able to make that finding.

The worker's primary concern appears to be that the impairment rating took place on a Tuesday morning after he had 3 days off, as opposed to the end of the work day or the end of a work week. He questioned whether the rating would be higher if it had been done later. He noted that after eight hours his right knee is twice the size of the left knee.

In reaching the conclusion that the PPI was correctly calculated, the panel considered that after the surgery, the worker's range of motion was measured by other medical professionals and the findings were slightly better than the findings at the assessment:

• March 19, 2013 report from treating physiotherapist noted "ROM near full."

• May 24, 2013 report from surgeon noted range is "up to about 5-115 now."

The panel also notes that range of motion is calculated on the passive rather than the active range. This involves the physician moving the joint or limb, not the worker moving the joint.

The panel also notes that range of motion is calculated on the passive rather than the active range. This involves the physician moving the joint or limb, not the worker moving the joint. This is considered a more reliable measure of the true range of motion. The panel is not aware of any information that suggests the passive range of motion would vary based on the time that the measurement is taken or the amount of activity immediately prior to the examination.

Finally, the panel notes that the WCB applied the Pre-existing Condition Policy in reducing the worker's award from 8% to 4%. The panel notes that the worker has a significant pre-existing condition, degenerative arthritis in his knee. The panel finds that the policy has been correctly applied in this case, resulting in the reduction of the worker's PPI to 4%. As well, the panel has checked the calculations leading to the 8% impairment and confirms that they were correctly done.

The worker's appeal is dismissed.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 21st day of November, 2014