Decision #141/18 - Type: Workers Compensation

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his permanent partial impairment rating and monetary award have been correctly calculated. A file review was held on October 1, 2018 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

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

Background

On December 29, 2015, the worker reported an incident that occurred on December 24, 2015 where he was struck on his left side at work by a forklift carrying approximately 900kgs. The worker reported injuring his left shoulder, hip and leg in the incident.

The worker's claim was accepted by the WCB for a cervical thoracic lumbar strain, left shoulder and hip strain. The payment of wage loss and medical aid benefits commenced. An April 6, 2016 MRI conducted on the worker's left shoulder indicated that the worker had sustained a supraspinatus tear and as a result, underwent a rotator cuff repair surgery on June 23, 2016.

On August 10, 2017, the worker attended a call-in appointment with a WCB physiotherapy consultant for the purpose of a permanent partial impairment (PPI) examination to determine a PPI rating. The WCB physiotherapy consultant examined the worker and determined the worker's cosmetic impairment related to the compensable injury to be 1%. The WCB physiotherapy consultant indicated that "Left shoulder flexion was limited in a way that was not valid for the purpose of a PPI rating."

As the WCB physiotherapy consultant found the worker's left shoulder flexion to be limited, after reviewing the worker's claim file, it was decided that the range of motion noted in a May 16, 2017 medical report from the worker's treating orthopedic surgeon would be used. Using the measurement from the May 16, 2017 medical report, the WCB physiotherapy consultant determined the worker's PPI rating for the deficiency in his left shoulder mobility to be 2% for a total PPI rating of 3%.

The WCB advised the worker on August 17, 2017, that based on the examination by the WCB physiotherapy consultant, his PPI rating was 3.00% which resulted in a PPI award of $3,900.00.

On November 15, 2017, the worker requested reconsideration of the WCB's establishment of his PPI rating and monetary award to Review Office. The worker provided that his shoulder was permanently deformed, was always causing him pain and, as a result, he could not sleep properly.

Review Office advised the worker on December 14, 2017 that his permanent partial impairment award had been correctly calculated. Review Office determined that, as the WCB physiotherapist advisor had been unable to measure the worker's left shoulder flexion, using the measurement recorded by the worker's treating orthopedic surgeon in May 2017 was an accurate representation of the worker's expected shoulder flexion range of motion. Review Office accepted the rating of 2% whole body impairment rating for the worker's total measured loss of range of motion. Review Office also accepted the WCB physiotherapy consultant's 1% whole body impairment for cosmetic disfigurement. Accordingly, Review Office found the worker's total PPI rating of 3% and the PPI award of $3,900.00 were calculated correctly.

The worker filed an appeal with the Appeal Commission on January 8, 2018. A file review was arranged.

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.

The worker was employed by a federal government agency or department and his claim is adjudicated under the Government Employees Compensation Act (GECA). Pursuant to subjection 4(2) of the GECA, a federal government employee in Manitoba is to receive compensation at the same rate and under the same conditions as a worker covered under the Act.

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:

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 PPI Schedules attached as Schedule A and Schedule B.

3. The appropriate time to assess an injured worker for a permanent impairment rating will be established by the PPI Schedules.

4. Healthcare Services Department will assign impairment ratings based on file information, or information from the attending physician, if such information is applicable and the impairment rating is less than 20%.

Schedule A of the Policy provides, in part, that there are two types of ratings: Scheduled ratings, which include measured ratings and judgment ratings; and Unscheduled ratings.

Section 2.1a. of Schedule A provides that scheduled ratings are measured as follows:

i. Measured PPI ratings are determined by a WCB Healthcare Advisor using a specific measurement method according to the Schedule and its appendices.

Schedule A also provides:

2.2 DETERMINING A RANGE OF MOTION IMPAIRMENT

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).

For the loss of movement to be ratable using the Schedule (a "Scheduled rating”), the examining WCB Healthcare Advisor must be satisfied that the end-feel at end range of the best attainable active guided movement was valid.

Worker's Position

In his "Worker Appeal of Claims Decision" dated January 8, 2018, the worker indicated that he was appealing his left shoulder injury because his left shoulder is deformed because of surgery. In his Request for Review form he indicated he did not agree with the $3900.00 payment for his shoulder disability. He noted that he always has pain and clicking.

In support of his appeal the worker obtained an opinion from an occupational health clinic physician. In a letter dated April 12, 2018, the physician who examined the worker reported:

Forward flexion and abduction efforts were accompanied by significant end range of supero-anterior left shoulder pain, with shoulder musculature tensing with scapular elevation efforts under my hand stabilizing the shoulder. Passive assistance achieved some further range as noted, with pain, which he could not perform unassisted nor could he hold in place.

Based on my measurements, the left shoulder lacks 95 degrees total range compared to WCB expected ROM, i.e., 19% deficit. Direct comparison to [worker's] right uninjured shoulder (total ROM 535 degrees) would yield 24% deficit.

The physician speculated that the measurement in the orthopedic surgeon's May 16, 2017 report was "likely attained by passive movement, I doubt it was "active guidance."

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 permanent partial impairment rating and monetary award have not been correctly calculated. The panel is able to make this finding.

The panel notes that in determining the worker's PPI rating the WCB Healthcare Advisor noted that:

Active guided left and right shoulder mobility was measured using a goniometer, as per American Academy of Orthopedic Surgeons "The Clinical Measurement of Joint Motion" handbook. Left shoulder flexion and abduction was limited to less than 90 degrees in a seated position due to reported anterior pain. In the seated positon left shoulder mobility was limited by a muscular resistance endfeel with a simultaneous onset of reported left shoulder pain. Assessment was attempted in a supine position. Abduction was able to be measured with a normal endfeel but flexion was again limited by symptoms and a muscular resistance endfeel. Left shoulder flexion was limited in a way that was not valid for the purpose of a PPI rating.

Analysis

A May 16, 2017 medical report documents elevation (forward flexion) to 140 degrees. PPI ratings are calculated based on the best available range of motion. The measurement of left shoulder forward flexion provided in the May 16, 2017 medical report was likely the best available and at maximum medical improvement. Therefore a measurement of 140 degrees of forward flexion will be utilized in the PPI calculation.

The panel finds the evidence does not establish that the calculation was based on "active guided movement of the affected joint." The panel notes that the WCB Healthcare Advisor used the orthopedic surgeon's measurement as a proxy for the worker's loss of range of motion. The orthopedic surgeon did not describe the method he used in determining that the worker has "…restriction range of motion, elevation only 140 versus 160 in the opposite side." The panel notes there is no reference to "endfeel." The panel cannot conclude that the orthopedic surgeon used the "endfeel" method in determining the loss of range of motion. This is required pursuant to s. 2.2 "Determining a Range of Motion Impairment of the Policy."

While it was available for the WCB Healthcare Advisor to use the measurements performed by another physician, it must be clear from the evidence that the method of measurement complies with the Policy. In this case, the evidence does not address the requirement for "endfeel" measurement. This impairment rating does not meet the requirements of the Policy for a scheduled rating.

The worker's file is to be returned to the WCB to reassess the extent of the worker's loss of range of motion in accordance with the provisions of the Policy and to make a decision on this matter.

The worker's appeal is approved.

Panel Members

A. Scramstad, Presiding Officer
R. Hambley, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

A. Scramstad - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 5th day of October, 2018

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