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 not entitled to a permanent partial impairment award with respect to his compensable left shoulder injury. A file review was held on October 1, 2015 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to a permanent partial impairment award.

Decision

That the worker is entitled to a permanent partial impairment award.

Background

On January 21, 2013, the worker fell onto his knee and then his left shoulder when he tripped on some steps while carrying lumber. His claim for compensation was accepted by the WCB and benefits were paid to the worker. The compensable diagnosis was acute on chronic left shoulder rotator cuff impingement/rotator cuff tear.

On January 8, 2015 a WCB medical advisor reviewed the worker's file for the purposes of a permanent partial impairment ("PPI") review. The medical advisor stated:

An MRI demonstrated minor tearing of the supraspinatus and subscapularis as well as tearing of the biceps tendon.

The MRI also demonstrated significant AC joint arthrosis.

[The worker] underwent an arthroscopy, biceps tenotomy, subacromial decompression, acromioplasty and rotator cuff repair on November 7, 2013.

At the time of surgery, degenerative fraying was noted of the labrum and was debrided.

An almost full range of motion has been described postoperatively.

It is noted that a diagnosis tear of the long head of biceps on the right shoulder has been described in the past.

MMI [The worker] is at MMI (maximum medical improvement).

Pre-existing There is a major pre-existing condition in relation to the PPI as evidenced by the following: --- Imaging evidence of degenerative changes of the left shoulder --- Degenerative changes noted within the shoulder joint at the time of arthroscopy.

Evaluation [The worker] will be assessed for a possible PPI as follows: --- Cosmetic rating --- Loss of mobility of left shoulder

On January 22, 2015, the worker was seen at the WCB's office for an examination to determine a PPI rating. Based on range of motion testing, the recommended impairment rating was 1.0%. Based on the finding that the worker had a major pre-existing condition, the PPI rating was prorated by 50% (1.0% x 0.5 = 0.5%). The total recommended PPI was therefore 0.5% whole person impairment.

On January 26, 2015, the worker was advised by the WCB that the final PPI rating did not result in a monetary award as it was less than 1%. The worker disagreed with the decision and an appeal was filed with Review Office. The worker said he was concerned about his left shoulder strength and that he had disfigurement of his bicep.

On April 30, 2015, Review Office determined that there was no entitlement to a PPI award. Review Office considered the worker's comments that his "bicep is off to one side which looks horrible" and that the appearance of his left bicep was a disfigurement.

Review Office referred to a specialist report on file from September 2013 which recorded that the contour of the worker's left shoulder was normal. The specialist also stated: "He does have Popeye deformity on the contralateral right side but contour on the left bicep is normal." Review Office noted that when assessing the worker's shoulder for PPI purposes, the WCB medical advisor said that the muscle bulk around the left shoulder girdle was normal. Based on this finding, Review Office found no cosmetic impairment for disfigurement in relation to the worker's left shoulder.

Review Office stated that the WCB medical advisor's PPI rating of 1% for reduced range of motion in the worker's left shoulder was correct. In accordance with policy, there was no rating provided for a loss of strength.

Based on WCB policy concerning pre-existing conditions, Review Office found that the PPI rating for the left shoulder had been correctly reduced by 50%, and the total PPI award was therefore established at 0.50%. As the PPI rating was less than 1%, there was no entitlement to a PPI award.

On June 1, 2015, the worker appealed Review Office's decision to the Appeal Commission and a file review was arranged.

After the file review, the appeal panel asked the WCB's Healthcare Services branch to respond to several questions related to the PPI assessment that was carried out on January 22, 2015. After the response was received from the Healthcare Services branch, the appeal panel requested further information from the WCB regarding its policies on Permanent Impairment Ratings.

The worker was provided with the information received from the WCB and was asked to provide comment. On September 1, 2016, the panel met further to consider the worker's appeal and 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 WCB's 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 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. Subsection 38(1) states that the WCB shall determine the degree of a worker's impairment expressed as a percentage of total impairment. Subsection 38(2) provides a formula to determine the monetary value of an impairment award. Pursuant to subsection 38(2), an impairment award is not payable for an impairment assessed at less than 1%.

WCB Policy 44.90.10, Permanent Impairment Rating, addresses how impairment awards are to be calculated. Policy 44.90.10 states, in part, as follows:

1. The degree of impairment will be established by the WCB's Healthcare Services Department in accordance with this policy. The degree of impairment established by this Department can only be altered on review and approval by the WCB Director responsible or his/her designate, subject to the normal appeal process.

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

Appendix A provides that permanent impairment from a workplace is evaluated for the following deficits:

* loss of a part of the body; * loss of mobility of a joint(s); * loss of function of any organ(s) of the body identified in the Schedule; and * cosmetic disfigurement of the body.

For injuries to upper extremities, Appendix A provides as follows:

Upper Extremity: Loss of Movement

The impairment rating for loss of range of motion resulting from direct injury or related surgical procedures will be determined by a WCB Healthcare Advisor, through clinical examination or assessment of the medical information on file, based on the loss of active guided movement of the affected joint(s).

The methodology for determining the impairment rating for loss of range of motion is set out at pages 5 to 8 of Appendix A.

With respect to pre-existing conditions, Appendix A states, in part, that:

If a worker has a pre-existing condition, the worker is eligible for an impairment rating based on the difference between the total rating and the rating assigned to the pre-existing condition. The WCB Healthcare Advisor will assign a fair rating to the pre-existing condition based on the best information available.

When it is reasonable to do so, the assigned rating for the pre-existing condition will be based on the Schedule. However, when this is not practical, the impairment rating assigned to the pre-existing condition will be determined as follows:

i. A pre-existing condition that is determined to be minor will be assigned a 0% impairment rating;

ii. A pre-existing condition that is determined to be major will be assigned an impairment rating equivalent to 50% of the impairment rating for that structure.

The effective date of Policy 44.90.10, as it existed at the date of the PPI examination (January 22, 2015) and decisions by Compensation Services and Review Office, was stated to be: "For decisions on or after January 1, 2015."

Also in force at that time was WCB Policy 44.90.10.01, Permanent Impairment Rating Schedule, the effective date of which was stated to be: "For accidents occurring between January 31, 2003 - December 31, 2014, inclusive." The worker's accident occurred on January 21, 2013.

Worker's Position

In his appeal notice dated June 1, 2015, the worker set out his reasons for appeal as follows:

My left bicep will have a permanent bulge and is off centre from my arm. The review stated that my bicep is aligned normally to the rest of my arm. I strongly disagree. Because of the bulge and alignment, I don't wear sleeveless shirts.

In regards to my left arm, I have only 80% of my lifting strength…[The surgeon] had stated that to me before he did surgery on my arm. The WCB [doctor] did not test my arm strength when he conducted his assessment on that arm.

For these reasons, I believe I have sufficient evidence to back my claim.

In his comments received August 25, 2016, the worker further stated:

I do not believe the WCB physician took into account the appearance of the bicep during his examination. My bicep is certainly deformed. This is the second arm/bicep that I have injured and it has affected my mobility and appearance.

Employer's Position

The employer did not participate in the appeal.

Analysis

The issue before the panel is whether or not the worker is entitled to a permanent partial impairment award. For the appeal to be successful, the panel must find that the Act and/or WCB policies were not correctly applied in this case. The panel is able to make that finding, in part.

With respect to the calculation of the worker's loss of movement in his left shoulder, the panel has reviewed the notes of the WCB medical advisor who performed the PPI assessment on January 22, 2015. The panel finds that the medical advisor appears to have examined the worker properly and made the appropriate measurements using the criteria set out in the policy. The panel has also reviewed the calculations of the impairment rating for loss of range of motion, and finds that the calculations are correct.

The panel notes that the worker has indicated that he has also suffered a loss of strength in his left arm as a result of his injury and related surgery, which the WCB medical advisor did not test. The panel acknowledges his position on this point, but notes that the PPI rating for his shoulder injury is based on loss of range of motion according to the assessment criteria in the policy, and a change in the worker's functional ability, including a loss of strength, is not a factor which is taken into consideration when calculating the PPI award.

With respect to the 50% reduction on account of a major pre-existing condition, the panel is satisfied that the evidence supports that the worker had significant degenerative changes in his left shoulder prior to the workplace injury. The panel is of the view that such a conclusion is supported by the following:

* The findings of an x-ray of the worker's left shoulder on November 22, 2012 showed that "Severe AC joint arthrosis is evident. Mild glenohumeral degeneration is seen. There is a subcentimeter calcific density superior to the humeral head likely reflective of calcific tendonosis"; * The worker's treating physician diagnosed the worker on January 23, 2013 with left chronic rotator cuff impingement; * The findings of an MRI of the worker's left shoulder on March 8, 2013 showed that "Moderately severe AC arthrosis is present with inferior spurring…"

The panel also places significant weight on the WCB medical advisor's January 8, 2015 analysis of the medical evidence and his conclusion on January 22, 2015 that "there would be considered a major pre-existing condition in relation to the PPI" for range of motion. As a result, the panel finds that the worker's PPI rating of 1.0% for loss of range of motion was properly reduced by 50%.

Following our initial review of the worker's appeal, the panel sought clarification from Healthcare Services as to the degree to which a cosmetic rating was addressed at the January 22, 2015 PPI examination. It is the panel's understanding that subsequent to that request for clarification, the WCB arranged for a further examination of the worker to evaluate a potential cosmetic impairment, which resulted in a cosmetic rating of 1.0%, and a PPI award to the worker based on a total PPI rating of 1.0%. The panel notes that the determination with respect to the cosmetic rating is not before the panel, and we make no findings with respect to that determination other than to acknowledge that it has apparently been made.

In our initial review of the worker's appeal, the panel noted that the report of the surgery on the worker's left shoulder on November 7, 2013 stated that the procedures performed included a tenotomy. This was similarly noted in the WCB medical advisor's PPI review on January 8, 2015. It is the panel's understanding that a biceps tenotomy, which is performed during surgery, can generally be considered to be the equivalent of a rupture of the long head biceps brachii. The panel notes that Policy 44.90.10.01 provides an impairment rating of 1.0% for a rupture of long head biceps brachii, while this specific rating is not present in Policy 44.90.10.

Following our initial review, the panel requested that the WCB advise as to whether a biceps tenotomy was ratable separately or otherwise under Policy 44.90.10. By memorandum dated December 15, 2015, the WCB's Director of Healthcare Services forwarded a response to that query from the WCB medical advisor, who stated that "Under the new WCB policy 44.90.10 there is no longer a separate rating for biceps tenotomy."

The panel notes that in this instance, the date of the worker's original injury and his surgery both occurred in 2013, i.e. within the effective dates for Policy 44.90.10.01, and that the decisions which are under appeal were arrived at after January 1, 2015, and therefore within the scope of Policy 44.90.10. In the panel's view, both policies are therefore applicable or accessible to the worker. The panel is further of the view, given that Policy 44.90.10 is silent with respect to a tenotomy and Policy 44.90.10.01 expressly contemplates a 1.0% rating for such an impairment, a 1% rating for the tenotomy can and should be accepted in this case. This would be in keeping with section 6 of Manitoba's Interpretation Act, which states that "Every Act and regulation must be interpreted as being remedial and must be given the fair, large and liberal interpretation that best ensures the attainment of its objects." The panel finds that a similar rationale should be used to choose the policy (and associated rating) that is more beneficial to the worker.

Based on our analysis, the panel therefore finds that the worker is entitled to an additional permanent partial impairment rating of 1.0% due to the tenotomy. The panel notes that what, if any, application the worker's pre-existing condition has on the tenotomy rating, and whether or not it results in a 50% reduction in that rating, is for the WCB to determine. In either event, the worker's PPI rating would be at least 1.0% and he would therefore be entitled to a permanent partial impairment award.

In conclusion, the panel finds that the wording and application of the WCB policies and ratings were inconsistent, as set out above, and that the worker is entitled to a permanent partial impairment award.

The worker's appeal is allowed.

Panel Members

L. Harrison, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

M. L. Harrison - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 21st day of October, 2016