The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB")that his permanent partial impairment rating of 5% had been correctly established.  A hearing was held on February 1, 2016to consider the worker's appeal.

Issue

Whether or not the worker's permanent partial impairmentrating has been correctly established at 5%.

Decision

That the worker's permanent partial impairment rating hasbeen correctly established at 5%.

Decision: Unanimous

Background

The worker has an accepted claim with the WCB for a left-sided inguinal hernia resulting from the work duties he performed in December 2010. In May 2011, the worker underwent a laparoscopic left inguinal hernia repair. Subsequent file records showed that the worker suffers from left groin and leg pain post-operatively.

On December 9, 2014, a senior medical advisor reviewed the file at the request of case management. He stated:

Determination of a PPI is partly dependent on the diagnoses accepted by WCB in relationship to a workplace accident. In this case, the currently accepted diagnoses include i) a left-sided inguinal hernia and ii) non-specific left groin pain...the medical aspect of the file was reviewed in its entirety, for the purpose of clarifying the diagnosis to account for [the worker's] long-standing symptoms involving his left groin/left scrotal region/left upper medial thigh.

Impression

It is recognized that the diagnosis of neuropathic pain stemming from the left ilio-inguinal nerve has been postulated by various health care practitioners. This diagnosis has not, however, been confirmed to date via diagnostic blocks.

Having said the above, it is our joint position that [the worker's] long-standing symptoms involving his left groin/left scrotal region/left upper medial thigh are concordant with neuropathic pain stemming from post-operative involvement of the ilio-inguinal nerve; and that this condition would be anatomically accounted for in relation to the prior inguinal hernia repair.

On April 7, 2015, the worker underwent a PPI examination and the examining medical advisor commented as follows:

[The worker] has a diagnosis of left ilioinguinal neuropathic pain. The WCB Permanent Impairment Rating Schedule does not provide a methodology for calculating a PPI in relation to this diagnosis. Therefore, an unscheduled rating utilizing the AMA Guides to Evaluation of Permanent Impairment, 6th Edition is recommended.

The AMA Guides provides a methodology for calculating a PPI as described on page 344 in Table 13-20 under the heading of Criteria for Rating Miscellaneous Peripheral Nerves.

[The worker] reports "severe neurogenic pain in the anatomic distribution of the ilioinguinal nerve," which results in a rating of 4-5%. The recommended PPI rating is 5% whole person impairment.

In a memorandum to file dated April 21, 2015, the WCB senior medical advisor stated that he agreed with utilization of the AMA Guides, 6th Edition to determine an unscheduled rateable impairment of 5%, as described in the April 7, 2015 PPI Exam Notes.

In a decision dated April 24, 2015, it was confirmed to the worker that he was entitled to a PPI award of 5% and the award amount was $5,800.00. In May 2015, the worker appealed the amount of his PPI award to Review Office.

On July 3, 2015, Review Office decided that the 5% PPI rating and the amount of the award was correct, based on the file evidence and review of WCB Policy. On July 23, 2015, the worker appealed Review Office's decision to the Appeal Commission and an oral hearing was held.

Following the hearing, the appeal panel provided the worker with additional information for comment taken from The American Medical Association's Guides to the Evaluation of Permanent Impairment, Sixth Edition regarding the Central and Peripheral Nervous System: Articles 13.1 to 13.3 (pages 321 to 326) and Articles 13.6 to 13.13 (pages 336 to 345).

On February 12, 2016, the worker provided the appeal panel with his final comments regarding the additional information and on February 22, 2016, the panel met further to discuss the case and rendered its final decision on the issue under appeal.

Reasons

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by The WorkersCompensation Act (the "Act") regulations, and policies of theWCB's Board of Directors.

Under subsection 4(1) of the Act, where a worker suffers personal injury byaccident arising out of and in the course of employment, compensation shall bepaid to the worker by the WCB. Subsection 4(9) provides that the board mayaward compensation for an impairment that does not result in a loss of earningcapacity.

The method for calculating compensation for an impairment is set out in section38 of the Act. Subsection 38(1) provides that "[t]he board shall determinethe degree of a worker's impairment expressed as a percentage of totalimpairment." Subsection 38(2) provides a formula to determine the monetaryvalue of an impairment award.

The WCB Board of Directors has established Policy 44.90.10, PermanentImpairment Rating Schedule (the "PPI Policy") whichapplies to decisions made on or after January 1, 2015. Pursuant to the PPIPolicy, impairment awards are calculated by determining a rating whichrepresents the percentage of impairment as it relates to the whole body. Themethod used in calculating the rating is set out in the PPI Policy. Thefollowing sections of the PPI Policy are relevant to this appeal:

                    

A. POLICY

1. The degree of impairmentwill be established by the WCB's Healthcare Services Department in accordancewith this policy. The degree of impairment established by this Department canonly be altered on review and approval by the WCB Director responsible orhis/her designate, subject to the normal appeal process.

2.Whenever possible, and reasonable, impairment ratings will be establishedstrictly in accordance with the Rating Schedule attached as Appendix A.

.....

6. In the event that the WCBHealthcare Services Department determines that:

a. strict adherence wouldcreate an injustice, or

b. an impairment exists thatis not covered by the Rating Schedule, or

c.the clinical examination or medical file assessment does not allow for thedetermination of a valid impairment rating by a WCB Healthcare Advisor,

 

thenthe WCB Healthcare Advisor may deem it just and fair to establish an impairmentrating that is not specifically covered by the Rating Schedule.

 

Insuch cases, the WCB Healthcare Advisor may use information other than theRating Schedule, such as The American Medical Association's Guides to theEvaluation of Permanent Impairment.

 

Impairment ratings in these casesmust be reviewed and approved by the WCB Director responsible or his/herdesignate. The Healthcare Services Department will document these cases andexplain the justification for the non-scheduled rating.

 

Worker’s position

The worker provided the panel with a history of his claim,focusing on how his hernia operation led to damage to his ilioinguinal nerve,which was misdiagnosed by the WCB for a considerable period of time, and wasfinally accepted as being a consequence of his hernia operation.

 

His position on the appeal is that the WCB has taken a toolimited approach to how it calculated his PPI impairment rating. He agreed withthe WCB's use of The American Medical Association's Guides to the Evaluation of Permanent Impairment, Sixth Edition(the "AMA Guide") to establish an appropriate impairment rating, butexpressed a number of concerns that the AMA Guide had not been appliedcorrectly. His particular concerns are described in greater detail in ouranalysis which follows, but can be summarized as follows:

• He was not given the type of examination that was contemplated in the AMA Guide.
• The medical examiner did not take a detailed history.
• A Function Capacity Evaluation was not done. It should be done, and the results should be added to the impairment rating that was already provided to him.
• The category that was used to establish the rating dealt only with his significant neuropathic pain and does not reflect the overall losses that he deals with every day, including his inability to work.
• Overall, the WCB medical advisor had done an incomplete analysis and impairment rating.
• He did not fully understand the AMA Guides and was not sure if there were other sections that were applicable to him.

 

Regarding this last point, the panel confirmed at thehearing that the worker had not received the AMA Guide. Accordingly, the workerwas provided after the hearing with additional information from the AMA Guideregarding the rating of impairments to the Central and Peripheral NervousSystem: Articles 13.1 to 13.3 (pages 321 to 326) and Articles 13.6 to 13.13(pages 336 to 345).

 

The worker then provided a written submission to the panelwhich pointed to the sections of the AMA Guide that he felt were relevant tohis appeal and would lead to an increase to his impairment rating. The panelconsidered this submission as well as the evidence provided by the worker atthe hearing and the worker's earlier submissions to the WCB prior to thehearing.

 

In response to questions from the panel, the workerdescribed his activities of daily living and the symptoms he currently dealswith on a daily basis. He indicated that he could do most activities of dailyliving, but at a much slower pace or spaced out over time. He would havesignificant residual effects, in the form of pain, that would last for sometime afterwards. His activity levels have not really changed over the past fewyears.

 

The worker confirmed to the panel that he has no residualimpairment from his original hernia or the hernia surgery itself, and is notseeking an impairment rating for those conditions. His appeal is dealing specificallywith the nerve pain that arose from the surgery.

 

The worker also confirmed that he is not contesting theformula used for the calculation of the financial award provided to him for hiscurrent impairment rating.  His positionis that the 5.0% impairment rating should be increased.

 

The worker described a numberof medical conditions that he felt had flowed from his nerve injury, includinga pain disorder and sexual dysfunction. The panel advised the worker that, atthis point in time, WCB responsibility under his claim has been limited to aninjury to the hernia, the hernia operation and damage to the ilioinguinalnerve. The panel can only consider what is the correct impairment rating forthe accepted conditions at this point in time. The PPI examination (and the worker'sentitlements under the Act) and the panel decision are limited to hiscompensable injuries and the impairments from those conditions which have beendetermined to be compensable consequences of those conditions.

Employer’s position

The employer did not participate in the appeal.

Analysis

The issue before the panel is whether or not the worker’s PPI rating hasbeen correctly calculated. In order for the worker’s appeal to succeed, thepanel must find that the Policy was not correctly applied. The panel is notable to make that finding, for the reasons that follow.

The panel notes that the worker provided a comprehensive presentation to thepanel at the hearing, and we will follow that general outline in our analysis.

At the outset, the worker has outlined his concerns that the AMA Guide setsout a process, including examinations, interviews and clinical studies that wasnot followed by the WCB medical examiner in his case. As a result, the worker'sposition was that the WCB medical advisor's report was not complete andexhaustive.

The panel notes, however, that the AMA Guide presumes that a completelyindependent examiner would be assessing a client for the first time. This isnot the situation at hand -- the worker's claim was established in 2011, and  the WCB medical advisor would have had accessto the worker's complete WCB file, and would have reviewed it, together withthe evidence obtained during the call-in examination of April 7, 2015, as partof the process of establishing an impairment rating. In any event, the panelitself has carefully reviewed the historical information on the file regardingthe worker's functional and medical history that preceded that examination, aswell as the call-in examination report itself. The panel is satisfied that onthe whole, there was a sufficient evidentiary basis for an impairment rating tobe established.

In the course of our analysis, we have also assessed the methodology used bythe WCB medical examiner in establishing a 5% rating under the AMA Guide for theworker's nerve injury, in order to assess whether the worker's PPI wascorrectly calculated.

As a starting point in our analysis, the panel notes that the AMA Guide isbroken into major chapters, each of which is dedicated to a broad class ofmedical conditions where an impairment may result. Within each chapter, uniquecriteria and mechanisms are described for the rating of conditions within thatchapter. A rating scale is set out for the examiner to choose a number (apercentage of whole body impairment) along that scale that most closelyapproximates the severity of the specific condition. Where more than one ratingapplies to a particular medical condition, formulas are also provided as to howto combine various ratings to achieve a final impairment rating. Unless thereare specific cross-references to other chapters, the impairment ratings areestablished using the criteria, mechanisms, tables, and formulas of aparticular chapter.

The worker in this case has ilioinguinal neuropathic pain which was acceptedby the WCB as being related to his 2011 work injury. In the panel's view, theWCB correctly used The AMA Guide, Chapter 13, The Central and Peripheral Nervous System, to establish animpairment rating. In the Introduction section, it notes that "Thischapter provides criteria for evaluating permanent impairments due todocumented dysfunction of the various parts of the nervous system." Itgoes on to note that, "Disorders of the brain and spinal cord, peripheralneuropathies of the head and trunk, peripheral neuropathies...are rated in thischapter."

Section 13.12 later notes that "In recent editions of the AMA Guides,certain peripheral nerves have been inadvertently omitted...The purpose of thefollowing table is to rate miscellaneous peripheral nerves that are not ratablein other places in the Guides." Table 13-20, Miscellaneous Peripheral Nerves, which is referenced in Section1.12, specifically lists the ilioinguinal nerve as one of eight peripheralnerves covered by this section. Accordingly, the panel is satisfied thatChapter 13, and more specifically, Section 13.12 is the appropriate location inthe AMA Guide to establish an impairment rating for the worker's injury.

The criteria for measurement and rating of a nervous system impairment in Chapter13 are set out in Section 13.1, Principlesof Assessment. It is very specific, and provides as follows:

Neurological impairments should be assessed as theyaffect Activities of Daily Living (ADLs). ADLs reflect both the"basic" and "advanced" tasks that people ordinarily performon a daily basis (Table 13-2). The physician who rates impairment should document which ADLs cannot beperformed independently by the patient, and the severity of impairment of eachloss. The physician should note whether the patient's report of ADL isconsistent with the neurological impairment evident in the physician'soffice...

The worker's position is that other criteria should be added, in particulara functional or physical capacity evaluation as well as consideration of hisinability to work any longer. The panel finds that Chapter 13 is specific as towhich rating tools will (and will not) be used for nervous system impairments,and that the criteria proposed by the worker are not referenced in this sectionand therefore do not apply to the case at hand.

The panel then assessed how the worker was actually rated under Chapter 13.The panel notes that the WCB medical examiner did collect information as to theworker's ability to perform ADLs, and also had full access to the WCB file.Section 13.12 notes that there are unique features of peripheral nerves thatlead to slightly different criteria being used. It notes, in part, that:

Sensory loss in these nerves results in little orno impairment in ADLs. However, burning dysesthetic pain may be the source ofsignificant impairment. For example, a patient who has undergone an inguinalhernia repair may have the sequela of severe burning pain in the ilioinguinalnerve. Use Table 13-20 to rate such painful focal neuropathies that cannot berated from other chapters.

The panel notes that this section describes with some considerable accuracythe worker's situation -- his evidence at the hearing and on file suggests thathe can perform most of his ADLs, but much slower and with long breaks sometimesbeing needed, and that his dominant issue is the neuropathic pain he is dealingwith on an ongoing basis.

Table 13-20, Criteria for RatingMiscellaneous Peripheral Nerves, lists the ilioinguinal nerve. It listsfour Classes (0-3). The highest is Class 3, which indicates a Whole PersonImpairment Rating range from 4-5% for "Severe neuropathic pain in ananatomic distribution." The panel notes that the WCB medical examinerprovided the worker with the maximum of 5%. After our review of the WCB medicaladvisor's assessment and of the worker's evidence, the panel agrees with the 5%impairment rating under Section 13.12 and Table 13-20.

The worker has submitted that other parts of Chapter 13 (certain Sections orTables) should be considered as well and added to the 5% rating alreadyprovided. The panel has reviewed each, as follows:

·        The worker has referred to Table 13-12, Criteria for Rating Impairments due toStation and Gait Disorders, and has asked to be placed in Class 2 based onhis mobility challenges. This would provide an impairment rating of 11-20%.

The panel finds that this table does not apply tothe worker's injury. In lay terms, this table refers to neurological impairmentthat causes problems "downstream" from where the nerve injury hasoccurred. Section 13.5 refers, for example, to movement disorders in the legsor arms from cerebral dysfunction that affect dexterity or precise orcoordinated movements such as gait. In the panel's view, the medical evidencedoes not suggest that the worker has a station or gait disorder from his nerveinjury.

·        The worker has referred to Section 13.7, Criteria for Rating Neurogenic Bowel,Bladder, and Sexual Dysfunction. The worker indicates he is getting testingregarding bowel function and has not advanced a specific position on thiscondition. The panel finds that there is no basis to consider an impairmentrating for neurogenic bowel dysfunction at this point in time.

As for sexual dysfunction, the worker has describeddifficulties with arousal and pain with orgasm. The panel notes that theSection 13.7c states that, "Awareness and capability of having an orgasmare the criteria for evaluating permanent impairment of sexual functioning thatmay result from spinal cord or other neurologic system disorders (Table13-15)."  The worker has asked for aClass 1 rating ("Individual has some sexual dysfunction but withdifficulty of erection or ejaculation in men or lack of awareness, excitement,or lubrication in either sex.") . The panel notes that the worker issexually active albeit with difficulties, and finds that the worker does nothave a rateable impairment under Table 13-15.

·        The worker has referred to Section 13.9, Criteria for Rating Peripheral Neuropathy,Neuromuscular Junction Disorders, and Myopathies and points to Table 13-17,Dysesthetic Pain. His position isthat he qualifies as Class 3 (Dysesthetic Pain) for a rating of 8-10%.

The panel has reviewed Section 13.9 and finds thatit does not apply to the worker's nerve injury, which as noted earlier iscausing local pain and difficulties. In the panel's view, Section 13.9 dealswith impairments caused along the anatomic distribution of the neurologicaldefect. Again, it is looking at the "downstream" effects of the nerveinjury on other structures. The panel finds there is no medical evidence toconsider a rating under this category.

·        The worker has referred to Section 13.10, Criteria for Rating Impairments Related toComplex Regional Pain Syndrome. The panel notes that this is a specificmedical diagnosis. The file information does not disclose that the worker hasever been given this diagnosis. The panel therefore finds there is no basis toconsider a rating under this category.

Finally, the panel notes that Section 13.13, Nervous System Impairment Evaluation Summary lays out the processto reach a final impairment rating. The worker has submitted that this sectionshould be used as well. The panel notes that this section deals with howmultiple ratings are dealt with, in order to provide a final rating. Itprovides a clear list of the process, and specifically lists how tables fromdifferent areas of Chapter 13 are to be added together, and which otherchapters with neurological impairment components may be added, if applicable.As to this last point, the panel is satisfied that those other chapters dealwith very different types of injuries and do not apply to the worker's injuryor to this appeal. The panel finds that this section does not apply to theworker's appeal. Based on our analysis, there has only been a single table usedfrom Chapter 13 (which established a 5% impairment rating), and therefore thereis no combined value to be considered or calculated.

Based on the evidence and our analysis, the panel finds that the worker isentitled to an impairment rating of 5% under the AMA Guide, for hisilioinguinal nerve pain, at this point in time. The worker's PPI was correctlycalculated on April 7, 2015. The worker's appeal is therefore denied.

Panel Members

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

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 4th day of February, 2016