Decision #70/19 - Type: Workers Compensation
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 June 10, 2019 to consider the worker's appeal.
Whether or not the worker's permanent partial impairment rating and monetary award have been correctly calculated.
The worker's permanent partial impairment rating and monetary award have been correctly calculated.
On December 29, 2015, the worker reported an incident that occurred at work on December 24, 2015 in which he was struck on his left side by a forklift carrying a load of approximately 900 kgs. 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 WCB began payment of wage loss and medical aid benefits. An April 6, 2016 MRI of the worker's left shoulder indicated the worker had sustained a supraspinatus tear. The worker underwent a rotator cuff repair surgery on June 23, 2016.
On August 10, 2017, the worker attended an appointment with a WCB physiotherapy consultant for a permanent partial impairment (PPI) examination to determine the applicable 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 conducted all comparative measurements, but indicated that "Left shoulder flexion was limited in a way that was not valid for the purpose of a PPI rating." For this reason, WCB chose to rely instead upon the measurement of left shoulder flexion as noted in a May 16, 2017 medical report from the worker's treating orthopedic surgeon. Relying upon these combined measures, the WCB physiotherapy consultant determined the worker's PPI rating for the deficit in 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% which resulted in an award of $3,900.00.
On November 15, 2017, the worker requested reconsideration of the PPI rating and monetary award to Review Office. The worker submitted 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 of their decision that his PPI rating and award had been correctly calculated. Review Office determined that using the measurement recorded by the worker's treating orthopedic surgeon in May 2017 was an accurate representation of the worker's left shoulder range of motion, as the WCB physiotherapy advisor had been unable to measure the worker's left shoulder forward flexion. Review Office accepted the rating of 2% of whole body impairment for the worker's total measured loss of range of motion as well as the WCB physiotherapy consultant's 1% whole body impairment for cosmetic disfigurement. On this basis, Review Office concluded the worker's total PPI rating of 3% and the PPI award of $3,900.00 was correctly calculated.
The worker appealed the decision of Review Office and a file review took place. As noted in Appeal Commission Decision 141/18 dated October 11, 2018, the appeal panel found that the evidence did not address the requirement for "end-feel" measurement in respect of left shoulder flexion, and the worker's file was returned to the WCB for reassessment of the worker's loss of left shoulder flexion range of motion in accordance with the WCB's policies.
The worker's file was reassessed by a WCB physiotherapy consultant on November 29, 2018, who stated that all measurements of shoulder mobility taken at the August 10, 2017 PPI examination "…were valid with the exception of left shoulder flexion." Noting that the worker was examined on April 12, 2018 by an occupational health clinic physician and that examination yielded a different active guided range of motion measurement for the worker's left shoulder forward flexion, the WCB physiotherapy consultant used the April 2018 measurement of left shoulder forward flexion to reassess the worker's PPI rating. The result was a calculation of a PPI rating of 3.5% in respect of the loss of range of motion in the left shoulder plus 1% for cosmetic disfigurement, for a total PPI rating of 4.5%. On December 13, 2018, the worker was advised that his PPI rating and related monetary award increased following reassessment by the WCB.
On January 11, 2019, the worker requested reconsideration of the WCB's decision to Review Office, noting he disagreed with the PPI rating and monetary award as he was continuing to have physical effects from of the workplace accident including loss of strength.
Review Office determined on March 1, 2019 that the worker's PPI rating and monetary award had been correctly calculated. In reaching that conclusion, Review Office considered the medical evidence gathered by both the WCB physiotherapy consultant and the occupational health clinic physician, and agreed that the PPI rating correctly represented the worker's left upper extremity loss of range of motion due to his compensable injury. Review Office further noted the comment by the occupational health clinic physician that the WCB's PPI ratings do not account for pain and loss of strength or function but are based on loss of movement or cosmetic disfigurement. Review Office agreed that there was no provision in the Act or any WCB policy to provide a PPI rating for pain, loss of strength and/or function. As such, the worker's PPI rating and monetary award had been correctly calculated.
The worker filed an appeal with the Appeal Commission on March 8, 2019 and a file review was arranged.
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 therefore adjudicated under the provisions of the Government Employees Compensation Act (GECA). Section 4(2) of the GECA sets out that 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.
Section 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, and s 4(9) provides that the WCB may award compensation for an impairment that does not result in a loss of earning capacity. The Act defines "impairment" in s 1(1) as "a permanent physical or functional abnormality or loss, including disfigurement, that results from an accident."
The WCB is required, under s 38(1) of the Act, to calculate the degree of a worker's impairment expressed as a percentage of the worker's total impairment. Section 38(2) sets out the 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 benefit is not related to loss of earning capacity nor is it a proxy for loss of earning capacity.
The Policy sets out 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%.
5. ...If the impairment rating is appealed, a re-assessment will be performed by the Healthcare Services Department or a physician ordered by the Appeal Commission.
Schedule A defines an impairment as a significant deviation, loss, or loss of use of any body structure or body function in a person with a workplace injury or occupational disease and clarifies that permanent impairment from a workplace injury or occupational disease is evaluated only 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.
An impairment is considered permanent when, in the opinion of a WCB healthcare advisor, the condition to be rated has reached maximum medical improvement.
Measured PPI ratings under Schedule A are determined by a WCB healthcare advisor using a specific measurement method as set out in the Schedule and its appendices. When determining impairment of range of motion, Schedule A provides that 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). Further, for the loss of movement to be ratable using the Schedule, the examining WCB healthcare advisor must be satisfied that the end-feel at end range of the best attainable active guided movement was valid.
The worker appealed the decision of the Review Office of March 1, 2019 on the basis that he disagrees with the findings with respect to the PPI rating and monetary award. He notes that he continues to experience pain and clicking in his shoulder especially during work and that this interferes with his sleep.
The employer did not participate in the appeal.
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 PPI rating and corresponding monetary award have not been correctly calculated. For the reasons that follow, the panel is unable to make that finding.
The initial PPI assessment was conducted by a WCB physiotherapy consultant on August 10, 2017. The results of that assessment were considered valid with the exception of a single measurement - the left shoulder forward flexion measure. At the first instance, WCB decided to substitute a measure of left shoulder forward flexion from the worker's treating orthopedic surgeon, as set out in a report dated May 16, 2017. On reconsideration, Review Office agreed.
The appeal panel, in their October 11, 2018 decision found that this was not a valid measurement of left shoulder forward flexion, in that it did not address the requirement for measurement of the end-feel at the end range of active guided movement, and the panel therefore ordered reassessment of the worker's forward flexion range of motion.
The WCB physiotherapy consultant reassessed the worker's left shoulder range of motion on November 29, 2018, confirming the validity of the original measurements taken August 10, 2017 with the exception of the left shoulder forward flexion measure. In respect of that measure, the WCB physiotherapy consultant referenced the report of April 12, 2018 by an occupational health physician as providing a valid measure of left shoulder forward flexion of 110 degrees. The WCB physiotherapy consultant noted that the physician had tested for end-feel at end range of the best attainable active guided movement with respect to that measure, was consistent with what was required by the Policy.
Relying upon this measurement as well as the other valid measures determined by the WCB physiotherapy consultant in August 2017, the result of the reassessment by the WCB physiotherapy consultant was that the total active guided range of motion in the worker's left shoulder was 430 degrees as compared to the total range of motion in the worker's right shoulder of 500 degrees. The deficit in range of motion, therefore, was 70 degrees, or 14%. Schedule A sets out that the maximum rating for a fused shoulder is 25%, and that to calculate the percentage of impairment as relates to the whole body, the maximum shoulder rating factor is multiplied by the percentage of deficit range of motion (i.e. 25% x 14%), resulting in a whole body PPI rating of 3.5%.
We are satisfied that the April 12, 2018 occupational health physician's measurement of the worker's left shoulder forward flexion is a valid measurement and provides the most proximate data point available in respect of this measure.
Schedule A of the Policy sets out the process for calculation of the PPI ratings with respect to upper extremity impairments and cosmetic disfigurement. Applying the Policy to the measures obtained and relied up by the WCB physiotherapy consultant, we find that the PPI rating was correctly calculated. We therefore agree with the determination of the WCB physiotherapy consultant of November 29, 2018 that the total rating for loss of range of motion and cosmetic disfigurement is 4.5%.
The Regulations set out that $1,300 is the entitlement for each full percentage point of impairment found. In this case, that would result in a total PPI award of $5,200, which is the amount that the WCB calculated. We find this to be the correct award.
The panel therefore finds that the worker's permanent partial impairment rating and monetary award have been correctly calculated.
K. Dyck, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
K. Dyck - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 19th day of June, 2019