Decision #53/19 - Type: Workers Compensation

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he is not entitled to further wage loss benefits and his Permanent Partial Impairment rating of 4.3% has been correctly calculated. A hearing was held on April 4, 2019 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to further wage loss benefits; and

Whether or not the worker's Permanent Partial Impairment rating of 4.3% has been correctly calculated.

Decision

The worker is not entitled to further wage loss benefits; and

The worker's Permanent Partial Impairment rating of 4.3% has been correctly calculated.

Background

The worker reported to the WCB on December 1, 2015 that he injured his right shoulder and arm in an incident on November 20, 2015 that he described as:

I was pushing a wheel barrel (sic) when I slipped on ice and fell to the ground injuring myself. No hazard on premises.

The worker attended a local hospital emergency department on November 20, 2015 and reported pain in his right shoulder "…after fall while pushing a wheel barrow at work." A previous surgery on his right shoulder four years ago and an upcoming surgery on the worker's left shoulder were also noted. An x-ray of his right shoulder was taken and noted "No fracture, subluxation or dislocation…" The worker was diagnosed with a rotator cuff injury to his right shoulder and it was recommended that he follow up at the local minor injury clinic.

On November 24, 2015, the worker was seen at the minor injury clinic. An attending sports medicine physician diagnosed the worker with a rotator cuff tear and referred the worker for an MRI.

The worker's claim was accepted by the WCB on December 7, 2015 and the payment of benefits commenced.

The MRI conducted on the worker's shoulder on January 4, 2016 indicated the following, in part:

1. Full-thickness, full-width tear of the supraspinatus tendon with failure at the footprint and retraction of the torn tendon by approximately 2.9 cm. Moderate associated atrophy of the supraspinatus muscle. 

At a follow-up appointment with his treating sports medicine physician, the January 4, 2016 MRI was reviewed and a referral was made to an orthopedic surgeon, who examined the worker on February 2, 2016. It was decided that surgery to attempt either a partial or complete rotator cuff repair would be scheduled. The treating surgeon stated in his report:

I have warned [the worker] that, given the previous findings of a full thickness cuff tear which was irreparable, I can give no guarantees that it will be fixable.

The worker underwent a right shoulder surgery on April 18, 2016 which resulted in a partial rotator cuff repair. The worker attended a follow-up appointment with the orthopedic surgeon on May 10, 2016 where it was noted that the worker should "…proceed slowly through physiotherapy for optimal results." It was further noted by the orthopedic surgeon that the worker will likely have a "…permanent disability as a result of his irreparable tear."

On December 20, 2016, the worker attended a WCB call-in examination with a WCB medical advisor. The WCB medical advisor provided the opinion that the worker's recovery from the recurrent rotator cuff tear surgery on April 18, 2016 was "incomplete and has been prolonged." It was noted that the worker had a right rotator cuff repair surgery on January 18, 2010 due to a previous WCB compensable injury and the previous injury and repair were a significant pre-existing condition that likely combined to prolong the worker's recovery.

With respect to the 2009 injury to the worker's right shoulder and resulting WCB claim, it was noted by the WCB case manager that the worker was previously deemed capable of employment within NOC (National Occupational Code) 6411 Sales Representative/Wholesale Trade. There were previous permanent restrictions implemented of no work with the right upper limb above shoulder level, no lifting with both hands to waist level more than 40 pounds, 20 pounds frequently, no carrying more than 25 pounds, 15 pounds frequently and no pushing or pulling more than 30 pounds, 20 pounds frequently. The WCB case manager questioned the WCB medical advisor whether those restrictions would still apply and the WCB medical advisor requested an FCE (Functional Capacity Evaluation) be performed on the worker.

The WCB medical advisor, after reviewing the results of the FCE conducted on the worker on January 11, 2017, opined on January 24, 2017:

…It appears from the FCE report, that the worker would be able to do the NOC6411 sales representative/wholesale trade with the following permanent restrictions:

1. No work with the right upper limb above shoulder level. 

2. No lifting with both hands to waist level more than 40 pounds, 20 pounds frequently. 

3. No carrying more than 25 pounds, 15 pounds frequently. 

4. No pushing or pulling more than 30 pounds, 20 pounds frequently.

The above restrictions should be in place temporarily for the next 6 months, as it has been less than one year since the April 18, 2016, right shoulder surgery. In the future would likely need to be made permanent.

On February 21, 2017, the worker's WCB case manager made an initial request for vocational services for the worker. On February 23, 2017, the WCB case manager was advised by WCB Vocational Rehabilitation that, based on the information provided, the worker was presenting with the same physical restrictions as he had on his previous WCB claim from 2009 and, as such, it appeared the worker had reached his pre-injury status on his 2015 claim and was capable of working within the restrictions established on his previous WCB claim. The worker was formally advised by way of a letter dated March 13, 2017, that the WCB had determined he had reached his pre-injury status on his 2015 claim, that he was once again employable in NOC 6411 and that as of March 20, 2017, his wage loss benefits would be re-established based on the deemed earning capacity for NOC 6411 identified on his previous WCB claim.

The worker attended for a PPI (Permanent Partial Impairment) rating examination by a WCB physiotherapy consultant on August 22, 2017. Digital pictures of the worker's right shoulder were taken and compared to the folio images on file with the WCB and a cosmetic impairment rating of 1.00% was established. The WCB physiotherapy consultant measured the worker's active guided left and right shoulder mobility and determined a 5.0% impairment rating. It was noted at the time of the examination that the worker's left shoulder mobility was not considered normal due to a non-compensable surgery on that shoulder. As a result, the documented left shoulder mobility obtained at an April 1, 2011 PPI examination on the worker's previous WCB claim was used. The worker's combined PPI rating was determined to be 6.00%. However, the worker had a major pre-existing right shoulder injury for which he had previously received a PPI award. The rating was reduced by 1.70% (the previous award) to 4.30%. The worker was advised of the PPI rating and award on September 1, 2017.

On September 7, 2017, the worker requested reconsideration of the WCB's March 13, 2017 decision that reduced his wage loss benefits by his previously deemed earning capacity and the September 1, 2017 decision of his PPI rating, to Review Office. The worker noted on his reconsideration request regarding the reduction of his wage loss benefits that his orthopedic surgeon had advised that the rotator cuff repair surgery had failed and that he required a year's time to heal but that the time had passed and he was still in pain when he attempted any lifting or lifting with grasping. With respect to his PPI rating examination, the worker felt that the examination did not accurately reflect the mobility in his shoulder as the WCB physiotherapy consultant helped him through some of the rotations.

Review Office determined on October 25, 2017 that the worker was not entitled to further wage loss benefits and that his permanent partial impairment rating of 4.3% was correct. With regard to the entitlement to further wage loss benefits, Review Office noted that the worker had right shoulder restrictions in place as a result of his 2009 WCB claim. As a result, it was determined that the worker could not return to his pre-accident occupation as a construction foreman and was provided with vocational rehabilitation services. When he completed his vocational rehabilitation plan, the worker was deemed to be employable within NOC 6411 Sales Representative/Wholesale Trade and due to the change in occupations and loss of earning capacity, the worker received partial wage loss benefits from the WCB. Review Office noted that at the time of the November 20, 2015 workplace injury, the worker was employed in the construction trade and had been working outside of his permanent restrictions identified on his previous claim. As the January 11, 2017 FCE had indicated physical restrictions that were similar to the permanent restrictions already in place from the worker's previous claim, Review Office concluded that the worker had returned to his pre-accident status and he no longer had a loss of earning capacity. Review Office found that the worker had previously been provided with appropriate vocational rehabilitation services which made him employable within the restrictions identified and, as such, the worker was not entitled to further wage loss benefits.

Review Office considered the measurements recorded by the WCB physiotherapy consultant and the opinion to reduce the worker's PPI rating by 1.70%. Review Office found, on a balance of probabilities, that the PPI rating appropriately represented the worker's right upper extremity loss of range of motion and rating for cosmetic impairment and concluded that the rating of 4.3% was correctly established in accordance with the WCB's Act and policies.

The worker filed an appeal with the Appeal Commission on October 17, 2018. An oral hearing was arranged.

The worker underwent a third surgery to his shoulder in January 2019 for which WCB accepted responsibility and provided wage loss benefits for the time the worker was unable to work due to the surgery and recovery.

The Appeal Commission hearing was initially scheduled for March 19, 2019. However, the employer did not attend the hearing, having previously indicated that he would do so. As a result, the hearing was adjourned and rescheduled for April 4, 2019. The employer did not attend the hearing on that date and the hearing proceeded in his absence.

Reasons

Applicable Legislation and Policies

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.

With respect to the issue of wage loss benefits, the following sections of the Act and policy are applicable:

Payment of wage loss benefits

4(2) Where a worker is injured in an accident, wage loss benefits are payable for his or her loss of earning capacity resulting from the accident on any working day after the day of the accident, but no wage loss benefits are payable where the injury does not result in a loss of earning capacity during any period after the day on which the accident happens.

Duration of wage loss benefits

39(2) Subject to subsection (3), wage loss benefits are payable until (a) the loss of earning capacity ends, as determined by the board; or (b) the worker attains the age of 65 years.

Policy 44.80.30.10 Establishing Post-Accident Earning Capacity

A) 5. Estimated or Deemed Earnings

The WCB may use deemed earnings, rather than actual earnings, under circumstances described in Policy 44.80.30.20, Post-Accident Earnings - Deemed Earning Capacity. These earnings include any income that the WCB deems the worker capable of earning, even though the worker is not actually earning this income.

With respect to the issue of the calculation of the Permanent Partial Impairment award, the following sections of the Act and policy are relevant:

Determination of impairment 

38(1) The board shall determine the degree of a worker's impairment expressed as a percentage of total impairment.

Policy 44.90.10 Permanent Impairment Rating 

GENERAL INFORMATION

The Workers Compensation Act of Manitoba, sections 4(9) and 38, addresses impairment benefits. These benefits are calculated by determining a rating that represents the percentage of impairment as it relates to the whole body. The benefit is not related to loss of earning capacity nor is it a proxy for loss of earning capacity.

Issue 1 - Whether or not the worker is entitled to further wage loss benefits

Worker's Position:

The worker stated to the panel that he was advised by his surgeon that the April 2016 surgery to repair his right shoulder had failed and that they would have to wait a year to determine whether there would be a follow-up surgery. The worker described the 2016 surgery as follows:

He abandon (sic) the rotator cuff repair, and only cut the bicep off. So in cutting the bicep off, what my surgeon now, [second surgeon], has figured out was that in cutting that bicep off, the bicep is what was stabilizing my entire shoulder. So cutting the bicep off, allowing my shoulder to move over, which allowed the rotator cuff to completely blow apart, I ended up from two and a half centimeters to four and a half centimeters of a tear.

As well, it took the trapezius tendons, it tore each of my trapezius tendons off of my scapula, from my shoulder blade. So that caused everything to shift over in my back, and what I was doing was shrugging and holding up the end of my humerus bone with just the muscles.

And that’s what was causing the back pain. That was also causing my hands to go, my right hand to go numb. I was losing these two fingers, or these three, depending on how much motion I would have.

The worker also stated that when he commenced physiotherapy after his 2016 surgery, he started to experience neck and back pain that he described as being "…like hot nails into my neck and back."

At the hearing, the worker further stated:

And at that point, my problem was my fingers were numb, and I was getting this searing pain into my shoulder I had, shoulder, it started into my elbow, it was going right down here, right up into the neck and back. You know, I’m not a doctor, but it was caused from the severe tearing, I would guess, of the rotator cuff, because the rotator cuff wasn’t torn that much before physio.

The worker stated that he had ongoing pain as a result of the 2015 injury that continued until he underwent a subsequent surgery in 2019. He told the panel that the pain kept him from sleeping more than two to three hours per night and resulted in the worker being prescribed pain medication which the worker stated did not alleviate his ongoing symptoms.

The worker also provided the panel with a great deal of information with respect to his duties as a concrete construction foreman and advised the panel that his duties in that capacity were within his stated restrictions.

It is the panel's understanding that the worker's position is that his ongoing pain and related symptoms prevented him from returning to his employment as a concrete construction foreman and, as a result, his wage loss benefits should not have been reduced in March 2017.

Analysis

The worker is appealing the WCB decision to reduce his wage loss benefits based on his deemed earning capacity for NOC 6411, determined as a result of a previous WCB claim for an injury that occurred in 2009.

In order for the worker's appeal to succeed, the panel would have to find that the worker had not recovered to his pre-injury status when his benefits were reduced in March 2017. The panel is unable to make that finding based on the following information.

The WCB had outlined the rationale for their decision in their correspondence dated March 13, 2017 which stated, in part:

Your work injury to your right shoulder in 2009 [claim number] resulted in permanent restrictions. Vocational options were explored based on your physical capabilities, education, skills aptitudes, interests and personal qualities. An occupational goal of NOC 6411, Sales Representative/Wholesale Trade, was identified and in 2012 you were deemed to be employable in that occupational goal. Your ongoing benefits were paid based on the earning capacity for NOC 6411.

On November 20, 2015 while holding onto wheelbarrow handles with both hands, you slipped on ice and fell to the ground. You heard a pop and felt pain in your right shoulder and this resulted in your current claim. You were scheduled for surgery on April 18, 2016 to repair a right rotator cuff tear. Based on recent information, you have recovered from the surgery to the point where the previous permanent restrictions would still be appropriate.

Following consultation with vocational rehabilitation services, I have determined the previous occupational goal is still appropriate for you and you are once again employable in NOC 6411. As a result, your wage loss benefits will be reduced by the earning capacity of this goal.

The restrictions identified by the WCB in January 2017 as a result of the 2015 injury were as follows:

1. No work with the right upper limb above shoulder level. 

2. No lifting with both hands to waist level more than 40 pounds, 20 pounds frequently. 

3. No carrying more than 25 pounds, 15 pounds frequently. 

4. No pushing or pulling more than 30 pounds, 20 pounds frequently.

The panel notes that the above restrictions were essentially the same as the permanent restrictions identified by a WCB medical consultant on September 9, 2010 as a result of the worker's 2009 compensable injury. These restrictions were accepted by WCB at that time. The 2009 injury, and resulting permanent restrictions, resulted in the worker being provided vocational rehabilitation and ultimately being deemed employable within NOC 6411 Sales Representative/Wholesale Trade. 

The worker acknowledged at the hearing that his restrictions noted after his 2016 surgery were the same restrictions that were identified after his surgery resulting from his 2009 compensable injury. However, the worker stated that after his 2016 surgery and during his ensuing physiotherapy treatment, his shoulder difficulties increased and that the restrictions identified by WCB in 2017 were no longer appropriate. The worker made a decision on his own to cease physiotherapy treatment in the fall of 2016 as he felt it was "not very helpful." The worker also advised WCB on November 23, 2016 that his surgeon at that time advised the worker that physiotherapy treatment was not required "as long as he keeps his arm moving." However, the panel notes that there is a May 10, 2016 medical report on file from the worker's surgeon that recommends the worker "…proceed slowly through physiotherapy for optimal results." The worker's position on the need for ongoing physiotherapy appears to the panel to be contrary to the documented medical recommendations.

The worker stated to the panel that he never obtained employment within the NOC 6411 classification but instead, prior to his 2015 injury, he had regularly worked as a cement construction foreman. There is a file note dated November 23, 2016 in which a discussion is noted where WCB asked the worker about his attempts to secure employment within NOC 6411 to which the worker could not confirm when he had last job hunted within that field. This is consistent with the worker's assertion at the hearing that his intention was to return to being a cement construction foreman once he had recovered from the 2019 right shoulder surgery.

While the worker's WCB file does contain file notes of conversations between the worker and WCB where the worker indicates that his shoulder problems were becoming worse, the panel notes there is no mention of increase in pain due to his physiotherapy treatment as stated by the worker at the hearing, and accordingly, there is no basis to change the worker's compensable restrictions.

For example, there is a file note dated April 7, 2017 which notes the worker as stating that he continued to experience difficulty with his right shoulder and does not consider himself back to pre-accident status. There is another file note dated August 2, 2017 where the worker advises WCB that he cannot lift anything over 20 lbs for more than 3 hours. If he does, he spends the next 3 days in pain. The worker also stated at that time that his right shoulder function was worse than it was at the end of the 2009 claim.

However, the medical reporting on file does not establish the worker was reporting an increase in pain to his medical caregivers to a level that the worker was incapable of working within his restrictions. The panel finds the medical reporting is more focused on the worker's concern regarding his inability to perform overhead work (which is outside his restrictions) and to return to his pre 2015 accident employment as a cement construction foreman.

In a report dated October 25, 2016 by the surgeon who performed his 2016 right shoulder surgery, the following was reported:

[The worker] continues to work diligently with physiotherapy in terms of his rehab but is somewhat frustrated in regards to ROM and ongoing discomfort…He continues to work with strengthening and rehabilitative exercises. Unfortunately I think that at some point [the worker] will plateau. We were only able to perform partial repair and as such I think the chances of permanent disability are quite high. For this reason I would recommend strong consideration be given to occupational retraining as it is unlikely that he will be able to return back to his previous occupation at full capacity.

During a WCB Call-in Exam on December 20, 2016, the worker stated his symptoms were as follows:

[The worker] reports he is a concrete foreman/carpenter and supervises construction projects. [The worker] reports he has been doing this kind of work for many years. There is a lot of physical work, a lot of lifting, nailing, working with skill saws, working in confined spaces, and sometimes working in holes and in awkward positions.

[The worker] reports he has had extensive physiotherapy for the right shoulder, but still has significant symptoms. [The worker] reports his sleep is disturbed because of the right shoulder symptoms. Because of the pain in the right shoulder, he wakes up every 45 minutes, has to adjust his position, sometimes gets out of bed and then readjusts his position and lies down. The average pain in the right shoulder area is an 8/10. The least pain he has is a 4/10. The most pain he has is a 10/10, which he would have after lifting a jug of milk or reaching for a bowl in the cupboard.

[The worker] reports that he often gets numbness in his right thumb, index, and long fingers with elevation of the right shoulder, which lasts for 10 to 15 minutes.

During the worker's Functional Capacity Exam on January 11, 2017 (which the panel notes was the basis for his current workplace restrictions), the examiner stated the following:

He noted that he uses his left upper extremity more. [The worker] noted that he can lift and carry best with his elbows into his side. He prefers to do activities within the body envelope with his right arm and not above his chest height.

While there is reference to the worker's right shoulder "tightening up" during the functional capacity examination, the panel notes that there is no mention of tingling or numbness in his elbow and/or hand with activity.

During the worker's PPI Exam on August 22, 2017, the worker described his symptoms as follows:

[The worker] reported concern regarding neck and back pain since his most recent right shoulder surgery. He reported an overall deterioration in his right shoulder function post surgery. He reported periodic numbness in his right hand in either the right thumb, index, and middle fingers or in the middle and ring fingers, worse with rotation of the right shoulder…He reported he is unable to do activity at or above shoulder level with his right arm. He reported difficulty using his right arm outside of his body envelope.

The worker was referred to second surgeon who examined him on September 25, 2018 and stated the following in a report from his examination:

He has continued to have discomfort in his shoulder since that time [the 2016 right shoulder surgery] and has been off work as construction foreman for over two years. His main concern is pain and weakness with overhead activity. He has tried a long course of physiotherapy, taken pain medications, but does not feel that any of this has helped his shoulder to any great extent.

The second surgeon who examined the worker referred him to another surgeon (who ultimately performed a third right shoulder surgery on the worker in 2019). In the referral letter the surgeon made the following comment:

I am hoping that you could see him for consideration of either superior capsular reconstruction or tendon transfer, as he does have near full range of motion of his shoulder, but pain is a major issue for him in preventing him from working as a construction foreman.

The third surgeon who examined the worker on October 10, 2018 made the following comment in his report:

He currently reports severe pain that ranges from 2/10 at rest up to 10/10 with any attempted overhead or push/pull activities. His greatest concern is loss of sleep on a regular basis due to the pain.

The panel notes that medical reporting on file or provided by the worker at the hearing does not support that the restrictions outlined by WCB in January 2017 were insufficient or that he remained completely disabled from work due to his 2015 injury or the resulting surgery that occurred in 2016. 

Based on the reporting contained within the worker's WCB file as well as his assertions at the hearing, it is apparent to the panel that one of the primary factors in the worker seeking further medical treatment was to return to his employment as a cement construction foreman. The worker stated at the hearing that his employment as a cement foreman was within his noted restrictions, as his duties were sedentary as foreman of a concrete crew of two other employees and only involved "measuring and layout." The panel does not accept the worker's assertion.

The panel's conclusion is based on the worker's description of his concrete foreman duties at his December 20, 2016 call-in examination as well as the worker's assertion at the hearing that he uses/carries his own tools on the jobsite as they are "lighter" than the employer-provided worksite tools. The panel finds that the use of construction tools in a construction site environment would not be considered "light" or "sedentary" type of work.

The worker also stated at the hearing that his surgeon advised him that, because of the failed surgery in 2016, his right shoulder was separating from his body. However, there is an absence of medical evidence on file to support such an assertion. The May 17, 2018 MRI of the worker's right shoulder does confirm a "full width re-tear…of the superspinatus and infraspinatus tendons measuring 4 x 4 cm." It is the panel's understanding that such an injury would not result in the skeletal changes to the worker's right shoulder that he asserted at the hearing.

The panel further notes that there is an entry dated April 3, 2014 in the worker's 2009 WCB claim file in which he advised WCB that he had been off work for approximately two weeks as he was having problems with his right hand going numb and that he had a doctor's appointment scheduled for the following week and was unsure as to how long he would be off work. When asked about this by the panel, the worker responded that any of his previous tingling/numbness was not that bad and now it is worse. The panel finds the worker's response to be inconsistent with the described symptomology that caused the worker to be unable to work for over two weeks in 2014 and supports that the worker was experiencing significant tingling and numbness prior to the worker's position of an onset in symptomology after the 2016 surgery.

The panel also relies on the fact that the surgeon who performed the worker's 2019 right shoulder injury noted in his October 10, 2018 report that, prior to proceeding, he required the worker to engage in physiotherapy with the goal of regaining near normal range of motion in the injured shoulder. The panel finds that the worker's assertion that his previous physiotherapy had made his shoulder worse is inconsistent with the surgeon prescribing shoulder physiotherapy prior to the worker's 2019 shoulder surgery to improve shoulder function.

The panel notes that the worker was able to satisfy the surgeon's requirement and significantly increase his shoulder range of motion when he was again examined by his surgeon on December 5, 2018 (approximately 8 weeks later). The ability of the worker to increase his range of motion prior to the surgery further supports the panel's position that the worker's restrictions identified in January 2017 were appropriate, as the worker was able to increase his right shoulder function with appropriate physiotherapy treatment as opposed to causing further injury to the worker's shoulder as asserted by the worker at the hearing.

The panel acknowledges that the 2015 compensable right shoulder surgery that occurred in 2016 was not completely successful and that the worker had ongoing symptomology and, as a result, a third surgery was performed in 2019. However, the panel finds that there is no objective medical evidence on file that the worker could not have participated in his deemed employment in NOC 6411, Sales Representative/Wholesale Trade during the period of time that the worker was deemed to have returned to his pre-2015 injury status, in March 2017, and the time of his third surgery on January 28, 2019, 22 months later. The panel notes that the worker confirmed at the hearing that between the time that he was deemed to have returned to his pre-2015 accident level of function and his January 2019 surgery, he did not seek any type of employment. When specifically asked whether the worker had looked for any other jobs since his employment ceased with the accident employer (shortly after the injury), the worker stated:

I haven’t been able to work since that time, I got the surgery, and immediately after the surgery, it hasn’t been good, I haven’t done anything since then, I don’t have the ability.

The panel therefore finds that the worker had recovered to his pre-injury status when his benefits were reduced in March 2017 and the worker is not entitled to further wage loss benefits.

As a result, the worker's appeal on this issue is dismissed.

Issue 2 -Whether or not worker's Permanent Partial Impairment rating was correctly calculated.

Worker's Position

The worker advised the panel that he felt the PPI examination was not done correctly.

The worker stated:

He actually had to help me lift my arm up, we were going up this way, and he said, I can get it up to here. And he goes, oh, I’ll just help you out, and he lifted it up. I said, well, that’s normally reflective of what I can do, is it? And I explained to him, my shoulder, neck and back pain, and he told me to see a chiropractor because of it.

The worker identified that, as a result of his workplace injury, his right shoulder experienced "clicking" in certain spots when he lifted his shoulder and that the identified "clicking" occurred during his PPI examination.

Analysis

The worker's submission to Review Office dated September 7, 2017 stated the following:

I attended my physical evaluation for my PPI with [name] physio consultant. During the shoulder measuring procedures the consultant helped by supporting my arm through what I call deadspots in my shoulder rotation. It was also said that I could move to any comfortable possition (sic) to get the most mobility from the joint. If I need help and have to contort my body and position my hand in a way that allows the shoulder to move from a dead spot where I have no lift power of even just the arm is that really a reflection of mobility?

Schedule "A" of WCB Policy 44.90.10, "Permanent Impairment Rating", states that the following criteria are to be used when assessing loss of range of motion:

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.

Schedule "A" of the Policy also provides the following definitions:

"active guided ROM [range of motion]" - The examinee moves the region to be examined on their own (active movement), with guidance of the movement by the examiner, to include an assessment of end-feel at end range of movement.

"end feel" - the sensation imparted to the examiner's hands at the end point of joint range of motion. The end-feel varies according to the joint, due to limiting structure or tissue at the particular joint. Types of normal end-feels include bone-on-bone, springy block, and capsular.

The following was noted during the PPI examination dated August 22, 2017:

Active guided left and right shoulder mobility was measured using a goniometer, as per the American Academy of Orthopedic Surgeons "The Clinical Measurement of Joint Motion" handbook. Left shoulder mobility is not considered normal at the time of today's examination. Therefore right shoulder mobility will be compared to the documented left shoulder mobility obtained at the time of an April 11, 2011 PPI examination…

The worker confirmed that his PPI examination was conducted in accordance with the above noted criteria.

The panel finds that the PPI examination and resulting rating were performed in accordance with WCB legislation and policy. The worker's appeal on this issue is therefore dismissed.

Panel Members

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

Recording Secretary, J. Lee

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

Signed at Winnipeg this 15th day of May, 2019

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