Public Decisions | The Appeal Commission

Decision #130/15 - Type: Workers Compensation

Preamble

The worker disagrees with the decision made by the Workers Compensation Board ("WCB")that his permanent partial disability award had been correctly calculated at6.0%. A hearing was held on June24, 2015 to consider the worker's appeal and the hearing reconvened on November2, 2015.

Issue

Whether or not the worker's permanent partial disability hasbeen correctly calculated.

Decision

That the worker's permanent partial disability has beencorrectly calculated.

Decision: Unanimous

Background

On September 1, 1975, the worker suffered a compensable fracture dislocation at C6 when the semi-trailer tractor unit he was driving left the road and flipped. Subsequent file records showed that the worker was seen at the WCB offices in 1977, 2002 and 2007 for the purposes of establishing a Permanent Partial Disability ("PPD") award related to his neck condition. As of 2007, the worker's PPD award was calculated at 14.6%.

In 2013, the worker asked the WCB to re-evaluate his PPD award as he described increasing difficulty to move his head and neck and his vertebrae was now fused. The worker reported constant pain in his head, neck and upper to low back and was having headaches and reduced mobility in his shoulders.

On October 29, 2013, the worker was seen at the WCB's office for a PPD assessment. The examining medical consultant outlined his examination findings as follows:

[The worker] noted that he would not allow attempts of passive mobility of the cervical spine during range of motion measurements.

[The worker] was encouraged to put in his best effort with active range of motion.

Range of motion measurements were stopped as a result of complaints of pain in all directions, but no pain behavior was noted during the testing.

No wasting of the upper or lower limbs was noted and normal muscle bulk was present around the shoulder girdles.

Muscle strength of the upper limbs was normal.

Light touch was normal in the upper limbs including the left index finger.

An almost complete range of motion of the lumbosacral spine was noted.

Active cervical spine mobility, measured using a goniometer/inclinometer, as per the American Academy of Orthopedic Surgeons “The Clinical Measurement of Joint Motion” handbook, was pain limited in all directions, in a manner that prevented a valid PPI determination. Within this limitation, the results were similar to those cited at a February 7, 2007, PPI assessment.

When unable to determine a valid PPI utilizing the methodology of the WCB Impairment

Schedule, the protocol in WCB Healthcare is to utilize the current edition of the AMA Guides to Evaluation of Permanent Impairment, which in this case is the 6th Edition. In this regard, reference is made to the Cervical Spine Regional Grid on Page 566.

Notwithstanding that [the worker] sustained a cervical subluxation rather than dislocation, his PPI will be rated under the section of Dislocations/fracture dislocation. Further to the aforementioned, in the absence of evidence of spinal cord injury and upper extremity radiculopathic findings, [the worker] will be rated as a Class 1 impairment, as defined on Page 566, with a default rating of 4% whole person impairment.

The adjustment grids and grade modifiers for non-key factors were then reviewed.

The adjustment grids are defined for functional history, Table 17-6 on Page 575, physical

examination, Table17-7 on Page 576 and clinical studies, Table 17-9 on Page 581.

In regards to functional history, [the worker] has a grade modifier 4 as described in Table 17-6.

In regards to physical history, [the worker] has a grade modifier 0 as described in Table 17-7

In regards to clinical studies, [the worker] has a grade modifier of 0 as described in Table 17-9

The methodology for determining the net adjustment formula is described (sic) on Pages 581 to 583.

For functional adjustment the grade assignment is +3, for physical findings the grade adjustment is -1 and for clinical studies the grade assignment is -1. The net adjustment is, therefore, +1.

The recommended PPI rating is 6.0% whole person impairment.

The above will be only one of the factors considered by Compensation Services when

determining the final PPI award."

In a file memorandum dated November 18, 2013, a WCB senior medical advisor indicated that he agreed with an unscheduled rating of 6.0%, as per the October 29, 2013 examination notes.

By letter dated December 11, 2013, the worker was advised that based on all the information which included the October 29, 2013 examination results, his PPI rating had been calculated at 6.0%. As his rating in 2007 was calculated at 14.6%, there would be no increase in the rating. This decision was confirmed to the worker in March, May and June, 2014. On September 10, 2014, the worker appealed the decision to Review Office.

On December 12, 2014, Review Office confirmed that the worker's PPD award was correctly calculated. Review Office noted that the worker did not allow passive range of motion testing to take place and rather than give no rating, the healthcare advisor correctly referred to the AMA guidelines for the worker's accepted diagnosis, a C6 vertebral fracture. Review Office stated that it agreed with the 6% impairment rating as it provided the most accurate rating outside of passive range of motion testing. On February 15, 2015, the worker appealed Review Office's decision to the Appeal Commission and a hearing was arranged.

On June 24, 2015, a hearing was held at the Appeal Commission and it was adjourned in order to provide the worker with additional information. This included medical text taken from the 6th Edition of the AMA entitled "Guides to the Evaluation of Permanent Impairment." On November 2, 2015, the hearing was reconvened to consider the worker's appeal.

Reasons

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by The WorkersCompensation Act (the “Act”), regulations and policies of the Board ofDirectors.

The worker's injury occurred in 1975. Accordingly, the Act as it existed in 1975 is applicable. Under subsection 4(1) of the Act, where aworker suffers personal injury by accident arising out of and in the course ofthe employment, compensation shall be paid to the worker by the WCB.

Payment of compensation for an impairment is provided for under subsections4(10) and 32(1) of the Act.

Subsection 51(2) of the Act provides the WCB with the exclusive jurisdictionto determine the existence and degree of disability.

The panel must consider and rely upon the WCB policy that was in effect atthe time the PPD assessment was performed on October 13, 2013. WCB Policy44.90.10.02, Permanent Impairment Rating Schedule (the Policy) was thepolicy in effect at that time (as it was numbered at that time) and isapplicable to this appeal. The Policy has an effective date of "October 1,1996 for all decisions (initial, reconsideration, and appeal)." The policyprovides:

1. The degree of impairment will be established bythe Healthcare Management Services Department of the Workers Compensation Boardin accordance with this policy. The degree of impairment established by thisDepartment can only be altered on review and approval by the Executive orSenior Director responsible subject to the normal appeal process.

2. Whenever possible, and reasonable, impairmentratings will be established strictly in accordance with the schedule attachedas Appendix A.

3. In the event that the Healthcare Management ServicesDepartment feels that strict adherence would create an injustice, or if it isfelt that an impairment exists that is not covered by the schedule, HealthcareManagement Services may deem it just and fair to establish an impairment ratingthat is not specifically covered by the schedule. In such cases they may useinformation other than the schedule such as the American Medical AssociationGuides to the Evaluation of Permanent Impairment established for a similarpurpose. In such cases the award will not be official until it is reviewed andapproved by the Director of Healthcare Management Services. The HealthcareManagement Services Department will document the case and explain thejustification for the non-scheduled award in full. Awards in excess of 20% mustbe reviewed and approved by the Director of Healthcare Management Services.

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

The policy also outlines that permanent impairment is measured by the lossof a part of the body, loss of mobility of the joints, loss of function of anyorgans of the body identified in the schedule, and cosmetic deformity of thebody. Regarding spinal injuries, the WCB Policy provides that:

"The criteria used for development ofimpairment ratings in regard to the spine, whether resultant from direct injuryor related surgical procedures, essentially involves measurement of restrictedmotion. For this purpose, the spine is divided into the cervical and thelumbar/thoracic region.

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

Further, Board policy 44.10.20.10 Pre-Existing Conditions outlinesthe impact of pre-existing conditions on ratings.

Worker’s position

The worker provided the panel with a detailed history of hisclaim, focusing on how his cervical spine condition has deteriorated since hisoriginal injury in 1975, and how that deterioration resulted in increasing lossof range in motion in his neck over time, increased pain, changes in hispermanent restrictions and a loss of function that is reflected in many areasof his life.

The worker commented on the various PPD examinations that hehas had over the course of his claim.

The worker's concern was firstly about the differentmeasurement techniques that were used by each of the medical examiners. Henoted that in his first PPD examination in 1977, the WCB medical advisor basedhis findings on active range of motion, leading to a 3% disability rating. In1997, he was examined again. There was no additional pressure or manipulationby the examiner. The worker was found to have a 22% disability rating for his cervicalspine range of motion, out of a maximum of 30%. In contrast, a 2002 PPIexamination used a different technique, passive range of motion, in which theWCB medical advisor pushed past the point that the worker could move his neck.The procedure hurt him. Using this technique, the worker demonstrated less lossof his cervical spine range of motion. This in turn led to a reduction in hisoverall disability rating, to 14.3% of total body impairment. The workerindicated that he had identified issues with the way the measurements had beendone, and the WCB arranged for an outside medical consultant who, using acomputer based system, came up with the same number. In 2007, his impairmentrating was set at 14.6%.

In October 2013, the worker was examined by another WCB medicaladvisor. The physical examination for range of motion was hurting him and thetesting was not completed. The worker cannot see the basis for the even lowerimpairment rating of 6% especially since he has an advancing degenerativecondition in his neck from the surgery that was performed, which is supportedby the medical information on the file.

At the hearing, the worker indicated the WCB had been usingdifferent measurement approaches for each of the examinations, and that hewanted the WCB to use a constant technique. He noted that the first examiner in1977 used active range of motion, asking him to demonstrate how far he couldmove his neck and head in a number of directions. The worker then demonstratedthose motions at the hearing, against a wall, using active range of motion andadvising the panel that many of his neck movements were limited to about 5degrees. He felt that the use of passive range of motion in the October 2013PPD examination was improper, inaccurate and hurtful. The worker indicated thathis range of motion was much more limited than the 6% established in 2013. He preferred that active range ofmotion be used, and in the alternative, he asked the panel to have himre-evaluated by the independent medical consultant who assessed him in 2002.

At the hearing, the worker also questioned the WCB's use ofthe AMA guidelines (6th edition) in establishing a 6% impairment rating fromthe October 2013 PPI examination. These Guidelines had been provided to theworker prior to the continuation of the hearing. He carefully reviewed Chapters1 and 2 of the Guidelines. He expressed a particular concern that the WCBmedical advisor did not follow the AMA requirement of a complete and detailedreport to support the ultimate impairment rating. This report should havecontained a detailed medical background, functional, physical findings, andeach of the grids used in the AMA Guidelines should have been filled out. Heindicated that he has not been able to get an explanation on which evidence theWCB medical advisor is relying on.

In response to a question from the panel, the worker advisedthat he had received the AMA Guidelines (6th edition) after the first hearingwas adjourned, and that he was able to work through the various grids used inChapter 17 of the Guidelines to calculate his cervical spine impairment. He wassatisfied that they were accurate.

The worker did, however, assert that the WCB medical advisorhad done an incomplete analysis and impairment rating, as Chapter 17 of theGuidelines was not restricted to cervical spine impairments but also hadsections dealing with lumbar spine and thoracic spine impairments. He indicatedthat he has problems in these other areas and has been told that they arerelated to the deterioration of his cervical spine.

The panel advised the worker that, at this point in time,WCB responsibility under his 1975 claim has been limited to an injury to hiscervical spine, and the panel therefore can only consider what is the correctrating for his cervical spine. While the worker may have multiple impairmentsof his body, the PPD examination (and the worker's entitlements under the Act)are limited to his compensable injuries.

Employer’s position

The employer did not participate in theappeal.

Analysis

The issue before the panel is whether ornot the worker’s PPD rating has been correctly calculated. In order for theworker’s appeal to succeed, the panel must find that the Policy was notcorrectly applied. The panel is not able to make that finding, for the reasonsthat follow.

The worker provided a comprehensive andwell-organized presentation to the panel at the hearing, with a particularfocus on the changes in WCB practices over the years in how his permanentpartial disability/impairment has been measured. The worker asserted that thesechanges have led to a series of individual decisions that don't accuratelyreflect what has gone on over the whole history of his claim. His cervicalspine has gotten worse over the years and not better, from a combination of hisreturns to work and the expected deterioration of his cervical spine injurywhich happened 40 years ago. His PPD rating should be going up and not down.

In considering the worker's position, thepanel notes that the WCB has passed a series of Permanent PartialImpairment/Disability Ratings policies over the length of the worker's claim,which was first established in 1975. What is common to all those policies isthat the impairment ratings for an injury to a worker's neck is based on the measurement of restricted motion,and more specifically, the amount of loss of movement that can be determined by clinical findings. This loss ofmovement is then converted into a percentage of the assigned ratings for atotal body impairment.

What has changed over time is the bestpractices used in performing those measurements. As the worker noted in hispresentation, he was examined in different ways by various WCB medical advisorsand an outside medical consultant in the 1970s, in 1997, in 2002 and in 2007,leading to different loss of range of motion measurements and to changes to hisratings, some of which helped him (in terms of increases in his PPDentitlements) and others leading to reduced ratings which did not result inadditional entitlements.

The issue under appeal deals with whathappened at the October 2013 PPD examination, and the rating of 6% that wasestablished at that date. The WCB medical advisor advised that he was unable toperform sufficient clinical testing of passive loss of range of motion toestablish a rating.

In the panel's view, the Policy provides thatthe key determinant in establishing a rating on a given day is that it must bebased on clinical findings, done by a qualified medical examiner. This hasalways been the case in the worker's long claim history, and since it is arequirement under the WCB Policy, it will necessarily guide the panel in thisappeal. Since clinical findings have been done at each of the worker's PPDexaminations, it follows that each of the worker's PPD examinations willrepresent a unique snapshot of the degree of impairment at that examination. Itis not influenced by what happened before or by what the financial implicationsof the rating might be. It simply represents a snapshot of the worker's loss ofrange of motion, measured according to WCB practices at the time of theexamination.

In this case, WCB PPD examinationpractices in 2013 required that clinical findings be based on the measuring ofpassive range of motion in the cervical spine. The panel has reviewed the examination notes of October 29, 2013 andaccepts the evidence of the WCB medical advisor that he was unable to completethose measurements under the passive range of motion criteria established inthe Policy. The panel accepts the examination practices as being valid, andfinds that in the absence of any clinical findings, a rating cannot be establishedusing loss in range of motion.

The panel further notes that the WCBPolicy allows for the use of AMA Guidelines where it would be just and fair todo so. In the panel's view, it is definitely an alternate mechanism butprovides a way of obtaining a measurement for impairment rating when a clinicalfinding is unavailable. The panel finds that since the worker declined to betested via passive range of motion, it was appropriate to use the AMAGuidelines to establish a rating in October 2013.

The panel notes the worker's statedconcern that the WCB medical advisor's report was not complete and exhaustive.In that regard, the panel notes that the WCB medical advisor would have hadaccess to the worker's complete WCB file. In any event, the panel itself hascarefully reviewed the historical information on the file regarding theworker's functional and medical history and has assessed the methodology usedby the WCB medical examiner in establishing a 6% rating under the AMAGuidelines, in order to assess whether the worker's PPD was correctlycalculated. We find that the medical advisor correctly: