The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") regarding the calculation of his permanent partial impairment award. A file review was held on February 14, 2017 to consider the worker's appeal.

Issue

Whether or not the worker's permanent partial impairment rating and monetary award have been correctly calculated.

Decision

That the worker's permanent partial impairment rating and monetary award have been correctly calculated.

Background

The worker has an accepted claim with the WCB for injuries he sustained in a work-related accident on January 29, 2015 to his left shoulder, hip and elbow.

Medical reports on file showed that the worker recovered from his hip and elbow difficulties but continued to experience problems with his left shoulder. On April 7, 2015, the worker underwent an MRI assessment and was found to have a massive rotator cuff tear. On June 29, 2015, the worker underwent surgery to his left shoulder which included subacromial decompression, biceps tenotomy and partial rotator cuff repair.

The worker was seen for a call-in examination by a WCB orthopedic consultant on June 23, 2016. In his examination notes, the orthopedic consultant stated, in part:

…on June 29, 2015, a massive tear of the left rotator cuff was identified; only partial repair was feasible. An additional biceps tenotomy and subacromial decompression was carried out…

The workplace injury of January 29, 2015, caused a rotator cuff tear and adhesive capsulitis of the left shoulder.

The current condition of the left shoulder is related to an incomplete repair of a massive rotator cuff tear together with persistent adhesive capsulitis.

On August 24, 2016, a WCB medical advisor performed a Permanent Partial Impairment ("PPI") file review, and stated, in part:

Pre-existing

There is evidence of a major pre-existing condition in relation to the PPI. The MRI demonstrated a massive rotator cuff tear involving 3 tendons with fatty infiltration and marked retraction noted.

As noted in a healthcare service report dated May 13, 2015, the left shoulder findings are likely an acute tear on the background of chronic rotator cuff problems.

[The worker] is also (sic) known type II diabetic and signs and symptoms of early adhesive capsulitis were described by the attending surgeon prior to the surgery.

Is likely that mobility deficits of the left shoulder are the result of a combination of the CI (compensable injury) and the pre-existing condition.

Evaluation

[The worker] will be assessed for a possible PPI as follows: --- Cosmetic rating including a possible "popeye" deformity --- Mobility deficits left shoulder comparing the measured values of the left shoulder to the range of motion measurements of the left shoulder described in the April 18, 2012 PPI examination notes for the right shoulder --- Enhancement rating.

On August 30, 2016, the worker was seen for an examination by the WCB medical advisor for the PPI assessment. The final recommended PPI was 2.25% whole person impairment. On September 8, 2016, the WCB advised the worker that he was entitled to a PPI rating of 2.00% which amounted to a monetary award of $2,600.00.

On November 15, 2016, Review Office considered an appeal by the worker and determined that the PPI rating and award were correctly calculated.

Review Office found that the August 30, 2016 examination of the worker's left shoulder was conducted in accordance with the process outlined in the PPI policy. It accepted the medical advisor's recommendations for the 2.25% PPI rating, which considered pro-rating of the PPI by 50% (for the pre-existing condition) and an enhancement rating of 0.75%. Review Office concurred there was no ratable cosmetic impairment related to the compensable injury. Review Office found that the impairment rating of 2.25% whole person impairment was an adequate reflection of the worker's degree of impairment for his left shoulder injury.

Review Office also referred to subsection 38(2) of The Workers Compensation Act (the "Act"), and noted that the regulations associated with the Act stated that for accidents occurring in 2015, the amount of $1,300.00 is due for each full 1% of impairment. Therefore, the worker was entitled to a monetary award of $2,600.00 ($1,300.00 x 2). On November 22, 2016, 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 Act, regulations and policies of the WCB's 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. Subsection 4(9) provides that the WCB may award compensation for an impairment that does not result in a loss of earning capacity. "Impairment" is defined in subsection 1(1) of the Act as "a permanent physical or functional abnormality or loss, including disfigurement, that results from an accident."

Subsection 38(1) of the Act provides 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. The dollar amount in that formula is adjusted on an annual basis pursuant to the Adjustment in Compensation Regulation (the "Regulation").

The WCB Board of Directors has established Policy 44.90.10, Permanent Impairment Rating (the "Policy"). Under the Policy, impairment benefits are calculated by determining a rating which represents the percentage of impairment as it relates to the whole body.

The Policy provides that the degree of impairment will be established by the WCB's Healthcare Services Department in accordance with the Policy, and that whenever possible and reasonable, impairment ratings (with the exception of impairment of hearing ratings) will be established strictly in accordance with the PPI Schedule which is attached as Schedule A to the Policy.

The Policy goes on to state, in part, that:

In the event that the WCB Healthcare Services Department determines that:

a. strict adherence would create an injustice, or

b. an impairment exists that is not covered by the PPI Schedules, or

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

then the WCB Healthcare Advisor may deem it just and fair to establish an impairment rating that is not specifically covered by the PPI Schedules.

In such cases, the WCB Healthcare Advisor may use information other than the PPI Schedules, such as The American Medical Association's Guides to the Evaluation of Permanent Impairment.

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

With respect to a pre-existing condition, the Policy provides that the existence of such a condition does not negate a worker's entitlement to an impairment benefit. 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 Policy provides that the WCB Healthcare Advisor will assign a fair rating to the pre-existing condition based on the best information available, and states in Schedule A that:

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.

A pre-existing condition is considered to be major for the purpose of the PPI determination if:

i. The impairment was/is significantly affected by the pre-existing condition; or

ii. The diagnosis accepted by the WCB was adjudicated as an enhancement of a pre-existing condition; or

iii. The diagnosis accepted by the WCB would not have occurred in the absence of the pre-existing condition.

Schedule A to the Policy further provides that where there are injuries to symmetric or mirror joints or structures (such as both shoulders), the PPI rating may be increased by an enhancement factor. In such cases, the impairment rating for each of the symmetric joints is determined individually, following which the lesser of the symmetrical impairment ratings is multiplied by an enhancement factor of 50%.

Schedule A also allows for a cosmetic rating for disfigurement. Disfigurement is described as an altered or abnormal appearance. This may be an alteration of color, shape, and/or structure. The rating for disfigurement is done by a WCB Healthcare Advisor and the degree of disfigurement is determined on a judgmental basis. In order to maintain consistency in ratings for disfigurement, and to make the ratings as objective as possible, reference is made to a folio of disfigurement ratings established in previous cases.

Worker's Position

The worker provided a written submission in support of his appeal. The worker's position was that the WCB should have considered the consequences of his injury as it applies to his everyday life. The WCB should have looked at his claim on an individual basis and should not have made a decision based on a chart. He has lost the use of his left shoulder and has no hope of recovery. He is no longer capable of doing tasks that he used to do in his everyday normal life, and has to pay others to do those tasks for him. He said he feels fortunate that he is still employed, but cannot foresee what the future holds for him. He is concerned that all of the work-related injuries he has sustained will be a liability in terms of any future employment opportunities. The worker said that he was looking for compensation for his future care and needs, as he has a disability, and in his view, the WCB is accountable for his claim.

The worker submitted a letter from his spouse, providing her perspective on the worker's shoulder injury and the difficulties and additional expenses which have resulted from that injury.

The worker also provided a letter from the treating physiotherapist dated January 23, 2017 in support of his appeal. The physiotherapist referred in that letter to his examination findings from the time of the worker's discharge from physiotherapy on March 3, 2016 and a reassessment of the worker on January 12, 2017, noting that the worker had lost significant passive range of motion in his left shoulder between those dates and now has frozen shoulder on the left.

Employer's Position

The employer did not participate in the appeal.

Analysis

The issue before the panel is whether or not the worker's permanent partial impairment rating and monetary award have been correctly calculated. For the worker's appeal to succeed, the panel must find that the Act, regulations and WCB policy were not properly applied in establishing the PPI rating and/or in calculating the amount of the PPI award in this case. The panel is not able to make these findings, for the reasons that follow.

The worker has referred in his submission to the impact his shoulder injury has had and will continue to have on his life and on his future employability and needs. A permanent impairment award, however, is not related to loss of earning capacity, and is not a substitute for loss of earning capacity. It is not intended to compensate a worker for any pain or suffering resulting from an injury.

The Policy provides that the impairment rating for loss of function or range of motion of an upper extremity (including a shoulder) 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. For the loss of movement to be ratable using the Schedule to the Policy, the advisor must be satisfied that the end-feel at end range of the best attainable active guided movement was valid.

In this instance, the WCB medical advisor reviewed the worker's file and conducted a clinical examination of the worker. In the clinical examination, he noted complaints of pain, grimacing and withdrawal with active guided range of motion measurements, and that no hard end-feel was noted with attempted active guided range of motion measurement. In light of the described limitations in assessing the left shoulder range of motion movements, the advisor recommended determination of an unscheduled rating utilizing The American Medical Association's Guides to the Evaluation of Permanent Impairment, Sixth Edition (the "AMA Guides").

Based on our own review of the information on file and the medical advisor's file assessment and clinical examination findings, the panel is satisfied that the advisor's recommended use of the AMA Guides was consistent with the Policy and appropriate in the circumstances.

In proceeding with the PPI assessment, the WCB medical advisor stated that he utilized the methodology described in Chapter 15 of the AMA Guides, The Upper Extremities. The panel notes that the Introduction section to Chapter 15 states, in part, that:

This chapter provides criteria for evaluating permanent impairment due to impairments of the upper extremities (upper limbs)…

Musculoskeletal impairment rating is based primarily on a specific diagnosis, which, in the current method, results in assignment to an impairment class using grids designed for this purpose. The impairment value within a class is further refined by considering information related to functional status, physical examination findings, and the results of clinical testing.

With respect to his assessment of the worker's impairment, the medical advisor stated:

Table 15-5, Shoulder Regional Grid, on Page 403 of the Guides, was utilized with [the worker's] diagnosis best described as "a rotator cuff injury - full thickness tear."

[The worker] would best be described as Class 1 "history of painful injury, residual symptoms without consistent objective findings," which provides a default rating of 3% upper extremity impairment.

Given the functional and physical impairment described by [the worker], the highest rating in Class 1 of 5% upper extremity impairment is recommended.

As per Table 15-11 on Page 420 of the Guides, 5% upper extremity impairment is equates (sic) 3% whole person impairment.

The panel agrees with the WCB medical advisor's use and application of Tables 15-5 and 15-11 of the AMA Guides. The advisor identified the class and description which best fit the worker's diagnosis and status at the time of the impairment assessment. The panel notes that the medical advisor provided the worker with the maximum rating of 5% upper extremity for that class and description, based on the functional and physical impairment described by the worker. The 5% upper extremity impairment was then correctly converted into a 3% whole person impairment based on Table 15-11.

The panel notes that in a memorandum to file dated September 6, 2016, the WCB senior medical advisor documented that he had reviewed the file and discussed the PPI examination findings with the medical advisor, and agreed with the utilization of the AMA Guides, as described in the advisor's PPI examination notes, to determine the ratable impairment of the worker's left shoulder function.

In the PPI examination notes dated August 30, 2016, the WCB medical advisor went on to state:

Based on the medical information 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%.

i.e. 3.0% x 0.5 = 1.5%

The total recommended PPI is 1.5% whole person impairment.

The existence of a pre-existing condition had been considered by the medical advisor in his PPI file review dated August 24, 2016, and he had opined at that time that there was evidence of a major pre-existing condition in relation to the PPI. The panel notes in particular that in his file review, the advisor had referred to signs and symptoms of adhesive capsulitis having been described by the attending surgeon prior to surgery. The advisor had further stated that it was likely that the mobility deficits of the left shoulder were the result of a combination of the compensable injury and the pre-existing condition. The panel notes that reports on file from the treating physiotherapist and the WCB orthopedic consultant also indicate a significant deterioration in range of motion in the worker's left shoulder over the course of the year following the surgery and physiotherapy treatments, and that in the January 23, 2017 letter which was submitted by the worker, the treating physiotherapist wrote that his findings indicated that the worker now has frozen shoulder on the left.

In light of the foregoing, the panel is satisfied, on a balance of probabilities, that the worker's left shoulder impairment was/is significantly affected by a pre-existing condition of adhesive capsulitis, which therefore qualified as a major pre-existing condition for the purposes of the PPI determination at the time of the impairment assessment. Accordingly, the panel finds that the calculated PPI was properly reduced by 50%, to 1.5% whole person impairment.

The WCB medical advisor also addressed the issue of enhancement, based on the worker having previously sustained a work-related injury to his right shoulder, which had resulted in a PPI rating of 3.2% in 2012. The advisor stated that:

The WCB Permanent Impairment Rating Schedule provides for an enhancement rating when mirror body parts are injured and the enhancement rating is 50% of the lowest calculated PPI of both shoulders, in this case 1.5% whole person impairment: i.e. 1.5% x 0.5 = 0.75%.

The panel is satisfied that the issue of enhancement was properly considered by the medical advisor and the enhancement rating was correctly calculated.

The WCB medical advisor also considered a cosmetic impairment or disfigurement rating, based on his own visual examination of the worker's left shoulder and his comparison of digital pictures of the scarring of the worker's shoulder with the folio of images at the WCB, as contemplated under the Policy. Based on his assessment, and in the exercise of his judgment, the WCB medical advisor determined that there was no ratable cosmetic impairment related to the compensable injury. There is nothing to suggest that this determination was inappropriate. The panel is satisfied with and accepts the medical advisor's conclusion in this regard.

Combining the loss of function or mobility deficits rating of 1.5% with the enhancement rating of 0.75%, the WCB medical advisor arrived at a total recommended PPI rating of 2.25% whole person impairment, which was subsequently approved by Compensation Services. Based on the foregoing analysis, the panel is satisfied that the total PPI rating was correctly established as 2.25%.

The panel has also reviewed the calculation of the monetary amount of the PPI award and finds that it has been correctly calculated at $2,600.00 ($1,300.00 for each full 1% of impairment) in accordance with the formula in subsection 38(2) of the Act, as adjusted by the Regulation.

In conclusion, the panel finds that the Act, regulations and WCB policy were properly applied in establishing the PPI rating and in calculating the amount of the PPI award in this case. The panel therefore finds that the worker's permanent partial impairment rating and monetary award have been correctly calculated.

The worker's appeal is dismissed.

Panel Members

M. L. Harrison, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, B. Kosc

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

Signed at Winnipeg this 13th day of April, 2017