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 rating. A file review was held on May 2, 2017 to consider the worker's appeal.

Issue

Whether or not the worker's permanent partial impairment rating of 3% has been correctly calculated.

Decision

That the worker's permanent partial impairment rating of 3% has been correctly calculated.

Background

The worker has an accepted claim with the WCB for a right shoulder injury that occurred in the workplace on December 19, 2012. The diagnosis accepted as compensable was a right rotator cuff tear involving the supraspinatus/subscapularis. The worker has undergone surgeries to his right shoulder, the first one on May 26, 2013 and the second on February 18, 2015.

On May 31, 2016, a WCB medical advisor noted to the file that the worker was likely at maximum medical improvement ("MMI") with respect to his right shoulder condition and that he would be assessed for a possible permanent partial impairment ("PPI") award.

The worker was then seen at the WCB's office for a PPI assessment on June 22, 2016. The WCB medical advisor outlined his examination findings and impression as follows:

Examination:

A well-healed scar was noted over the anterior lateral aspect of the right shoulder with well-healed portal scars noted.

Complaints of pain were elicited with palpation around the right shoulder girdle and along the right cervical paraspinal muscles.

Complaints of pain were elicited with minimal attempts at active guided range of motion measurements of the right shoulder.

Active guided right shoulder flexion, abduction and internal/external rotation was accompanied by resistance to movement in a manner that limited measurement of right shoulder mobility.

Minimal wasting was noted around the right shoulder, with reduced power noted in all muscle groups around the right shoulder as compared to the left.

Impression:

An assessment of active guided shoulder mobility in each direction of shoulder movement, to include an assessment of end feel at end range of each movement is required in order to determine a scheduled PPI in relation to [worker's] right shoulder condition.

In light of the described limitation in assessing active guided right shoulder range of motion, determination of an unscheduled rating utilizing the AMA Guides to the Evaluation of Permanent Impairment, 6th Edition, is recommended.

The methodology utilized for calculating the PPI is described in Chapter 15 of the AMA Guides: Upper Extremity Impairment.

Table15-5, Shoulder Regional Grid, on Page 503 of the AMA Guides, was utilized with the [worker's] diagnosis best described as a "rotator cuff injury, full-thickness tear".

[Worker] would be placed in 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 [worker], the highest rating in Class 1 of 5% upper extremity impairment is recommended. The rating of 5% upper extremity impairment equates to a rating of 3% whole person impairment, as per Table 15-11 on Page 420 of the Guides.

The AMA guides methodology includes the cosmetic rating associated with the compensable injury.

The final recommended PPI rating for the right shoulder is 3% whole person impairment.

On July 7, 2016, the worker was advised by Compensation Services that he was entitled to a PPI rating of 3% which resulted in an award in the amount of $3,690.00.

On September 8, 2016, the worker appealed the July 7, 2016 decision to Review Office through his legal representative and requested a new evaluation of his right shoulder based on a report from his treating physiotherapist dated August 22, 2016. In part, the physiotherapist stated:

Someone with [worker's] type of rotator cuff injury and instability often presents with painful movement and difficulty with active end range motion (when moving the arm himself) and with apprehension upon external AAROM and PROM due to said instability. His latest MRI dated February 02, 2016, shows a partial thickness infraspinatus tear and "severely thin subscapularis tendon with only a few intact fibers remaining attached". I would question what kind of ROM was being tested during "active guided shoulder mobility" if the examiner was trying to move the arm himself. [Worker] is capable of (limited) AROM on his own and due to his unstable shoulder, it would stand to reason that this would be the most appropriate measure of ROM. It does not appear that [worker's] shoulder was given an adequate testing of ROM and therefore an inadequate calculation of PPI award.

I would also question the classification of [worker's] injury as "Class 1: history of painful injury, residual symptoms without consistent objective findings"…These 26 reports, some from WCB consultants themselves, and the 3 MRI's all show consistent objective findings in regards to [worker's] right arm impairment.

On October 19, 2016, Review Office confirmed that the worker's PPI rating of 3.0% was correct.

Review Office considered the physiotherapist's discussion regarding measurement limitations stemming from the worker's subjective pain levels and the extent of his compensable injury (ies). Review Office accepted the medical advisor's conclusion that he was unable to measure the lost range of motion in the worker's injured shoulder on the date in question and found this position was somewhat aligned with the physiotherapist's concerns. Review Office stated that it rejected the inference regarding the medical advisor's (and the policy's) general methods, and acknowledged the medical advisor's expertise and experience.

Review Office stated that it agreed with the medical advisor's choice to use the AMA Guide to calculate the worker's rating, both as a matter of fairness and due to challenges arriving at a valid impairment rating given the worker's pain limitations.

Review Office compared the examination findings of a WCB physiotherapy consultant who assessed the worker on January 5, 2016 and the June 22, 2016 PPI examination notes, and found there was a lack of consistency in the (objective) measurement of range of motion. The medical advisor's PPI examination observed resistance on the part of the worker to movement in a manner that limited measurement of right shoulder mobility while attempting to measure right shoulder flexion, abduction and internal/external rotation. Review Office did not find similar comments in the physiotherapy consultant's notes.

On the basis of this difference in the objective findings, Review Office accepted the medical advisor's opinion that, at that specific point in time, he was unable to objectively measure range of motion in a manner that was consistent with other medical reports seen on the file. It followed that Review Office supported his choice to pursue the AMA alternative rating.

Based on the available evidence, Review Office was satisfied that the PPI rating was correct at 3.0% as was the $3,690.00 award. On December 8, 2016, the worker's legal representative appealed Review Office's decision to the Appeal Commission and a file review was held on May 2, 2017.

Following the file review, the appeal panel requested additional information from the WCB's healthcare branch regarding the worker's PPI rating that was outlined on June 22, 2016. A response from the WCB was later received and was forwarded to the interested parties for comment. On May 25, 2017, 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 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 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 in the following amount, for an impairment that is determined by the board to be

(a) 1% or greater but less than 30%: $1,030 for each full 1% of impairment; ….

Pursuant to subsection 44(1) of the Act, the specific dollar amount of $1,030 is to be indexed annually, and as per regulation, the adjusted amount for accident dates in 2012 is $1,230.00 for each full 1% impairment.

In accordance with the Act, the Board of Directors established WCB Policy 44.90.10, Permanent Impairment Rating Schedule (the “Policy”) which provides guidelines on how impairment awards are to be calculated. The Policy states, in part:

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

3. In the event that the Healthcare Management Services Department feels that strict adherence would create an injustice, or if it is felt that an impairment exists that is not covered by the schedule, Healthcare Management Services may deem it just and fair to establish an impairment rating that is not specifically covered by the schedule. In such cases they may use information other than the schedule such as the American Medical Association Guides to the Evaluation of Permanent Impairment established for a similar purpose. In such cases the award will not be official until it is reviewed and approved by the Director of Healthcare Management Services. The Healthcare Management Services Department will document the case and explain the justification for the non-scheduled award in full. Awards in excess of 20% must be reviewed and approved by the Director of Healthcare Management Services.

Worker's Position

The worker was represented by legal counsel. His position, stated in the Notice of Appeal, was that "The WCB Review Office Decision should be overturned because the worker's ROM testing was inadequate and the unscheduled rating using the AMA guide which provided a default PPI rating of 3% was used in this particular case."

The panel also notes that the worker's advocate earlier relied on an August 22, 2016 letter from the worker's treating physiotherapist who reviewed the WCB case manager's decision and the

PPI examination report of June 22, 2016. She noted that there were three kinds of range of motion (ROM) that can be assessed, and queried why the WCB medical advisor chose to use active assisted range of motion (AAROM) when active range of motion (AROM) is the only functional type of range of motion. She asserts that the method used (AAROM) did not result in an adequate testing of the worker's ROM and therefore there was an inadequate calculation of his PPI.

The physiotherapist also queried the WCB medical advisor's classification under the AMA Guidelines as "Class 1: history of painful injury, residual symptoms without consistent objective findings" given her listing of 26 reports plus 3 MRIs consistently showing objective findings of a right arm impairment.

Employer's Position

The employer did not participate in the appeal.

Analysis

The worker disagrees with the WCB's determination that he has a 3% permanent impairment and that his award was correctly calculated at $3,690.00. Accordingly, the issues to be determined by the panel are whether or not the worker's PPI rating of 3% and the associated financial award has been correctly calculated. For the worker's appeal to be approved the panel must find that the worker's permanent impairment rating was not correctly calculated and that the financial value was not properly calculated.

The panel has reviewed the report of the WCB medical advisor who performed the PPI assessment. The panel finds that the assessment was thorough, the physician appears to have examined the worker properly and attempted to make the appropriate measurements that correctly uses the criteria set out in the policy, specifically, active assisted range of motion (AAROM). The panel has also reviewed the calculations and finds that the calculations are correct. Our reasons follow.

The issue under appeal deals with what happened at the worker's June 22, 2016 PPI examination, and whether the rating of 3% that was established at that date was appropriate. The WCB medical advisor advised that he was unable to perform sufficient clinical testing of AAROM to establish an impairment rating.

In the panel's view, the Policy provides that the key determinant in establishing a PPI rating on a given day is that it must be based on clinical findings, done by a qualified medical examiner, and in a manner consistent with WCB's measurement practices as set out in the Policy. Since it is a requirement under the Policy and since the panel and the Appeal Commission are bound by the policies passed by the WCB Board of Directors, it will necessarily guide the panel in this appeal.

While the worker's advocate and physiotherapist note that healthcare professionals had been able to assess the worker's range of motion both before and after the June 22, 2016, the panel finds that those other measurements cannot be used as the basis of a calculation of the worker's PPI. The Policy is clear that the PPI can only be undertaken after the worker is determined to be at maximum medical improvement (MMI) and that the ROM measurements are done in specific compliance with the methods set out in the Policy. It is understood that the PPI examination simply represents a snapshot of the worker's loss of range of motion, measured according to WCB practices at the time of the examination.

The panel notes the position of the worker's legal counsel that the range of motion testing was inadequate, and as well his later request, on May 24, 2017 that the worker be reassessed by a neutral third party to come to a just PPI rating; that an oral hearing be scheduled and the WCB medical advisor be subpoenaed for examination; and for an expert to be called on behalf of the worker at the hearing.

In reviewing the file and in response to the advocate's position, the panel declines the advocate's requests. The panel notes that WCB PPI examination practices in 2016 required that clinical findings be based on the measurement of AAROM in the worker's right shoulder. The panel has reviewed the examination notes of June 22, 2016 and accepts the evidence of the WCB medical advisor that he was unable to complete those measurements using that criterion. The panel accepts the examination practices as being valid, and finds that in the absence of the required clinical findings, a rating cannot be established using loss in range of motion via the mandated AAROM process, which led to the WCB's later use of the AMA Guidelines.

In the panel's view, the process used by the WCB Medical Advisor which was reflected in the earlier WCB decisions follows the exact process contemplated in the Policy. Accordingly, the panel finds that it has the evidence before it to make a decision in compliance with the Policy. The panel therefore declines the worker's request for an examination by a neutral third party or by the calling of an expert on behalf of the worker, presumably to restate the inadequacy of the WCB Policy or the ROM methods used in the PPI examination. All of these requests are outside the purview of the Policy and introduce evidence that is not relevant to the Policy criteria. Further, the panel declines to subpoena the WCB medical advisor who examined the worker; his evidence, on file, is that he was unable to measure the worker, using the AAROM method, and the panel sees little probative value in having him present for examination at an oral hearing.

The panel then turned its attention to the WCB medical advisor's use of the AMA guidelines to determine the worker's PPI rating. The panel notes that the WCB Policy allows for the use of AMA Guidelines where it would be just and fair to do so. In the panel's view, it is definitely an alternate, or more accurately, a backup mechanism for establishing a PPI, but it does provide a way of obtaining a measurement for impairment rating when a clinical finding is unavailable. The panel finds that since the WCB medical advisor could not establish a rating by using AAROM, it was appropriate to use the AMA Guidelines to establish a rating in June 2016.

In keeping with the criteria used by the AMA Guidelines, the panel has carefully reviewed the historical information on the file regarding the worker's functional and medical history and has assessed the methodology used by the WCB medical examiner in establishing a 3% rating under the AMA Guidelines, in order to assess whether the worker's PPI was correctly calculated. We find that the medical advisor correctly:

• Used Chapter 15 of the AMA Guides -- Upper Extremity Impairment

• Used Table 15-5 Shoulder Regional Grid, on Page 503.

• Chose the category of "Rotator cuff injury, full thickness tear." The panel notes that this category is consistent with the worker's compensable diagnosis of a right rotator cuff tear involving the supraspinatus/subscapularis.

• Within that category, classified the injury as Class 1. The panel notes that there are only two Classes in this grid category. Grade 0 is clearly not applicable, as its criteria indicates "No significant objective abnormal findings at MMI." This leaves Class 1, with its higher degree of impairment.

• Within Class 1, classified the worker's injury as being consistent with "History of painful injury, residual symptoms without consistent objective findings".

o The panel, in its initial file review, noted that there were two impairment scales within Class 1, and sought clarification from the WCB medical advisor as to his rationale for choosing this scale, rather than the second scale which referred to "Residual loss, functional with normal motion." The written response dated May 9, 2017 was shared with the worker's advocate who provided a written comment, with a supporting letter from the worker's physiotherapist.

o The panel accepts the WCB medical advisor's opinion that the worker "did not demonstrate a normal active range of motion of the right shoulder and the second scale does not apply for calculating his PPI." The panel places less weight on the advocate's comments which, as noted above, focused not on the two different scales, but rather on the worker's limited use of his right arm and very poor range of motion, and sought to subpoena the medical advisor in a hearing. Meanwhile, the physiotherapist asserted that the two AMA scales are confusing and illogical; the panel notes that the use of the AMA guidelines, as written, are stipulated by the Policy, and bind both the WCB medical advisor and the panel itself. The panel is not in a position to assess or rewrite the AMA guidelines, but rather, by the Policy, is required to implement it to the best of our ability. The panel agrees with the WCB medical advisor that the chosen scale best fits the worker.

• Chose the default rating of 3% upper extremity impairment within the scale of "History of painful injury, residual symptoms without consistent objective findings".

• Bumped up the Class 1 rating to the highest part of the scale (5% upper extremity impairment), given the functional and physical impairment described by the worker to the medical advisor.

o The panel sought clarification from the WCB medical advisor as to how the AMA grade modifiers were used. His written response of May 9, 2017 was shared with the worker's advocate, and the advocate's written response did not touch on this matter. The panel finds that the medical advisor appropriately used Tables 15-7, 15-8 and 15-9, and assessed the evidence on file and at the time of the examination in developing grade modifiers for Functional History (Grade modifier of +3 or +4), Physical Examination (Grade modifier +2), and Clinical Studies(Grade modifier +2). The medical advisor then used the net adjustment formula (AMA Guides, page 411), noting that the worker has greater than a +2 adjustment, which results in moving the PPI rating 2 positions to the right, resulting in a total rating of 5% upper extremity impairment. The panel notes that this is the maximum impairment available. The panel accepts and adopts the WCB medical advisor's recommendations and calculations.

• Translated the rating of 5% upper extremity impairment to a rating of 3% whole person impairment, in accordance with Table 15-11 on Page 420 of the Guides.

• Interpreted the AMA guides methodology regarding cosmetic rating, noting that the class 1 rating included any associated cosmetic impairment rating.

Based on our review, the panel finds, on a balance of probabilities that the worker's PPI rating for the right shoulder was correctly calculated at 3% whole person impairment at the time of the PPI examination . The panel further finds that the calculated PPI payment of $3,690 was correctly established, based on the indexed rating for 2012 accidents, of $1,230 for each full 1% of impairment.

The panel acknowledges the worker's and advocate's frustrations with the decision to use the AMA Guidelines rather than a direct measurement (which was not able to be done at the time of the June 22, 2016 PPI examination). The panel notes, however, that to not provide the worker with any rating as a result would create an injustice in light of what is an obvious impairment. The panel notes as well that subsections 38(6) and 38(8) of the Act do allow for the worker's PPI rating to be reviewed no greater than once every two years, provided there is a significant deterioration on or after that time.

Based on this analysis, the panel finds that the worker's PPI was correctly calculated on June 22, 2016, in accordance with WCB Policy. The worker's appeal is therefore denied.

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 11th day of July, 2017