The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the WorkersCompensation Board (“WCB”) that his permanent partial impairment (“PPI”) ratingof 8% was calculated correctly with respect to his compensable left shoulderinjury.  

Issue

Whether or not the worker’s PPI rating of 8% has beencorrectly calculated.

Decision

That the worker’s PPI rating of 8% has been correctlycalculated.

Background

On September 9, 2012, the worker injured his left shoulder in a work-related accident. His claim for compensation was accepted and benefits were paid to the worker. The compensable diagnosis was a left shoulder rotator cuff tear and on February 26, 2013, the worker underwent a left shoulder arthroscopic partial rotator cuff tear repair, subacromial decompression and biceps tenotomy.

On May 1, 2014, the WCB wrote to a physiotherapy clinic requesting that the worker be examined for the purpose of determining a PPI rating for his left shoulder. The WCB requested passive range of motion measures of the right versus left shoulder in flexion, extension, abduction, adduction, internal rotation and external rotation. The WCB also requested that photographs be taken of the left shoulder or alternatively, a description of scarring or any alteration in the form and symmetry of the left biceps.

On May 7, 2014, the physiotherapy clinic provided the WCB with the range of motion results pertaining to the worker’s right and left shoulders.

On May 12, 2014, a WCB physiotherapy consultant reviewed the May 7, 2014 results and determined that the worker’s total PPI rating was 16%. As the worker had a major related pre-existing condition, the PPI rating was pro-rated by 50% which resulted in an 8% PPI for the worker. The physiotherapy consultant stated:

The [May 7, 2014] report documents equivalent to a “Popeye” deformity of the left bicep consistent with the biceps tenotomy performed at the time of surgery. This is considered equivalent to a rupture of the long head biceps brachii. Therefore, a 1% rating is suggested as per page 12 of the WCB Permanent Impairment Rating Schedule for rupture of the long head biceps brachii. The described arthroscopic portal scars do not represent a ratable cosmetic impairment.

On June 17, 2014, the worker appealed the 8% PPI rating to Review Office on the following basis:

I feel that I deserve the full 16% of the PPI award due to the fact that I had no previous problems in my left shoulder. The doctors are saying it is LIKELY that I had a underlying rotator cuff tear. I know this is inaccurate as I never had any previous pain or injury to my left shoulder . . .

In a decision dated August 25, 2014, Review Office denied the worker’s appeal and confirmed that the PPI rating of 8% had been correctly calculated. Review Office accepted the May 7, 2014 medical report related to the worker’s passive range of motion/movements for both the right and left shoulders and the PPI rating of 16% as outlined by the WCB physiotherapy consultant on May 12, 2014. Review Office also indicated that it found the evidence to support that the worker had a major pre-existing condition to warrant a reduction in his 16% PPI rating by 50% as set out in the WCB’s Permanent Impairment Rating Schedule policy. It was therefore confirmed that the worker’s PPI rating was 8% (16% x .05 = 8%).

On September 15, 2014, the worker disagreed with Review Office and an appeal was filed with the Appeal Commission.

On December 4, 2014, a file review was held at the Appeal Commission to consider the worker’s appeal. Prior to rendering its decision, the Appeal Commission requested clarification on certain issues contained in the WCB physiotherapist’s memorandum dated May 12, 2014. The following points for clarification were sought: 

1. Is the 1% rating intended to apply to both the biceps tenotomy performed during surgery and the “Popeye” deformity?

2. Is each condition entitled to a 1% rating?

3. In the event that the responses result in a variation from the current 1% rating, please provide a revised total PPI calculation.

On December 11, 2014, the following answers to the above noted questions were as follows:

Regarding Question No. 1

In the musculoskeletal sections of the WCB Permanent Impairment Rating Schedule, there are limited scheduled “diagnosed (sic) based” impairment ratings. There are confined to amputations and a standalone rating for rupture of the long head biceps brachii.

“Diagnosis based” impairment ratings include the cosmetic component.

As an example, amputation ratings of the digits include the typical scarring and alteration in form and symmetry associated with amputation(s).

The 1% bicep rating on page 12 of the WCB Permanent Impairment Rating Schedule is for rupture of the long head biceps brachii. As per the above, this rating is inclusive of the typical “Popeye” deformity associated with the ratable impairment.

The 1% rating provided on the May 12, 2014 PPI rating is in relation to the biceps tenotomy performed at the time of the February 26, 2013 surgery, which is considered equivalent to a rupture of the long head biceps brachii.

Regarding Question No. 2

No, each condition is not entitled to a 1% rating, for the reasons described above.

Regarding Question No. 3

Not applicable.

This response was forwarded to the worker for comment. The worker provided no comments.

On February 28, 2015, the panel met again to discuss the matter and to render a decision.

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 the 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 […].

Subsection 60(2) of the Act provides the WCB with the exclusive jurisdiction to determine the existence and degree of impairment and whether it is the result of an accident.

WCB Policy 44.90.10.02, Permanent Impairment Rating Schedule (the Policy) was in effect on the date the worker was injured. The policy provides:

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.

[…]

4. If a worker had a pre-existing condition, the worker is eligible for an impairment award based on the difference between the new combined rating and the rating assigned to the pre-existing condition. The Healthcare Services Department will assign a fair rating to the pre-existing condition based on the best information available.

The policy also outlines that permanent impairment is measured by the loss of a part of the body, loss of mobility of the joints, loss of function of any organs of the body identified in the schedule, and cosmetic deformity of the body. Further, Board policy 44.10.20.10 Pre-Existing Conditions outlines the impact of pre-existing conditions on PPI ratings.

Worker’s position

The worker sent a written submission to the panel. He noted that prior to working for the accident employer he had worked on a dairy farm. He had no previous injury and would not have been able to do the farm work with an existing tear. He outlined the mechanism of injury that a heavy box had fallen and knocked his arm back causing the tear. When he met with the orthopedic surgeon, he was scheduled for immediate surgery due to three months of deterioration. He felt his x-rays were not considered in the WCB decisions.

Employer’s position