The Appeal CommissionThe Workers Compensation Act of Manitoba

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 determined. A file review was held on April 25, 2019 to consider the worker's appeal.

Issue

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

Decision

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

Background

In the Employer's Report dated November 17, 2016, the employer reported that the worker injured his neck and right shoulder in an incident on November 15, 2016, as follows:

The employee was lifting up the backstop/fence for the rink and sprained his shoulder in the process.

The worker described the incident in a Worker Incident Report which was also dated November 17, 2016, as:

We were picking up screen ends and the chain link is attached to 2 x 4's. We stand it up and roll it. I was standing it up and pushing it up to make it upright. I felt a real strain like I pulled something in my right shoulder. I was in pain. I stayed at work. I filled out a green card.

The worker was seen by a physician on November 16, 2017. The worker reported feeling numbness but no tingling into his right hand. The physician ordered an x-ray of the worker's right forearm and shoulder, and noted that it was normal. The worker was diagnosed with a right rotator cuff impingement and right sided cervical radiculopathy, and it was recommended that he remain off work for three weeks.

On November 28, 2016, the worker's claim was accepted and payment of wage loss and medical aid benefits commenced.

At a follow-up appointment with the treating physician on December 8, 2016, the worker was referred for an MRI of his right shoulder and cervical spine, which was done on January 5, 2017. The summary of the MRI of the worker's cervical spine noted:

Left-sided disc protrusions are present at C5-C6 and C6-C7. No source for right-sided radiculopathy demonstrated.

The summary of the MRI of the worker's right shoulder, as compared to a previous study conducted in 2012, noted:

1. A tear at the junction of the supraspinatus and infraspinatus tendons has enlarged. 

2. New small partial-thickness tear of the cephalad fibers of the subscapularis tendon.

The worker's file was reviewed by a WCB medical advisor on January 10, 2017. The medical advisor opined that the worker's current diagnosis was a right supraspinatus, infraspinatus and subscapularis muscle tear. The medical advisor further opined that based on the medical information on file, the worker was not totally disabled from work and restrictions were suggested. The medical advisor also suggested that the worker be referred to an orthopedic specialist. On January 13, 2017, the worker and the employer were advised of the restrictions, and the worker returned to work, within his restrictions, on January 19, 2017.

On January 24, 2017, the worker was seen by an orthopedic surgeon, who recommended right shoulder arthroscopic surgery. A right shoulder arthroscopy with debridement of the rotator cuff and acromioplasty was performed on March 6, 2017. The worker began post-surgery physiotherapy on April 3, 2017, and returned to modified duties on May 30, 2017. On June 16, 2017, the worker's restrictions were reviewed and updated by a WCB sports medicine consultant.

Due to ongoing symptoms, the worker attended a call-in examination with the WCB sports medicine advisor on November 16, 2017, who opined that the worker's recovery "…is not progressing satisfactorily since the time of injury and since the time of subacromial decompression." The sports medicine advisor further updated the worker's restrictions to: "avoiding heavier lifting over 20 to 30 lbs. (below shoulder height); avoiding lifting overhead greater than 5 lbs; and avoiding repetitive motions of the shoulder for the next eight weeks…" A work reconditioning program was recommended, to be based upon a review by a WCB physiotherapy consultant. The worker attended an initial reconditioning assessment on December 19, 2017. The reconditioning program began on January 2, 2018 with a scheduled completion date of January 26, 2018.

On January 10, 2018, the treating orthopedic surgeon noted that the worker was capable of returning to full duties. On February 1, 2018, the case manager confirmed the worker was fit for his full, regular duties.

On April 30, 2018, a WCB physiotherapy consultant determined that the worker was "Likely at MMI [maximum medical improvement]" and could be evaluated for a permanent partial impairment ("PPI"). On August 16, 2018, the worker underwent a PPI assessment with the WCB physiotherapy consultant, who calculated the worker's impairment rating to be 2.8%, but recommended that final implementation of the rating be deferred until a review of the worker's imaging by a WCB radiology consultant was completed. On August 27, 2018, the WCB radiology consultant reviewed the MRI examinations from 2012 and 2017 and opined:

• The initial MRI performed June 20, 2012 demonstrates a small partial intrasubstance (concealed) tear involving the anterior insertion supraspinatus on a background of tendinosis. 

• The second MRI performed January 5, 2017 also demonstrates a partial intrasubstance tear. However, this tear is in a different location, posterior to the initial tear. 

• It is uncertain if the tear on the latter examination is a new tear or is a defect relating to healing and tear extension of the initial tear. 

• The second examination demonstrates abnormal signal involving the cranial insertion subscapularis, the appearance most consistent with tendinosis.

The WCB radiology consultant's opinion was reviewed by the WCB physiotherapy consultant, as well as the WCB senior medical advisor and the WCB medical PPI advisor, and it was noted that the criteria for a major pre-existing condition did not appear to be met. On August 30, 2018, Compensation Services advised the worker that he was entitled to a PPI rating of 2.80%, which resulted in a monetary award of $2,700.00.

On September 13, 2018, the worker requested that Review Office reconsider Compensation Services' decision. The worker submitted that the assessments conducted by his healthcare practitioners after the March 6, 2017 surgery indicated "…loss of strength of right arm significant to left arm" and that this provided the basis for loss of motion with comparison of results from the left arm. The worker also noted that the range of motion measurements achieved during the PPI examination were reached with assistance from the examiner and he would not be able to reach those limits on his own. Lastly, the worker noted that, according to medical literature, there is a difference between dominant and non-dominant sides when range of motion is measured, and as he was right hand dominant, the mirrored measurement approach used in the examination was not accurate.

On October 30, 2018, Review Office upheld the decision by Compensation Services. Review Office found that the WCB physiotherapy consultant followed the WCB policy in using "best attainable active guided movement" and determined that the use of active motion assessment was appropriate when setting a worker's applicable range of motion. Review Office accepted the WCB physiotherapy consultant's August 16, 2018 assessment that the worker's left shoulder mobility "…was equal to or exceeded the WCB permanent impairment schedule's expected values" and allowed for the left shoulder to be used to provide a normal representation of the worker's range of motion. Review Office found that the WCB physiotherapy consultant's assessment findings demonstrated a loss of range of motion of the right shoulder when compared to the left. Review Office determined that the PPI rating of 2.80% and monetary award of $2,700.00 had been assessed and calculated correctly.

On November 11, 2018, the worker filed an appeal with the Appeal Commission and 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.

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.

Subsection 4(9) of the Act 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"). Impairment benefits are calculated under the Policy 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.

Schedule A to the Policy provides that permanent impairment from a workplace injury is evaluated 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.

Section 2 of Schedule A provides that there are two types of rating: Scheduled ratings, which include measured ratings and judgment ratings; and Unscheduled ratings.

Section 2.1 a. 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.

With respect to Unscheduled ratings, Section 2.1 b. provides, in part:

Unscheduled ratings may be used by a WCB Healthcare Advisor when:

i. strict adherence to the Schedule rating would create an injustice;

ii. it is determined that an impairment exists that is not covered by the Schedule; or iii. the clinical examination or medical file assessment does not allow for the determination of a valid impairment rating by a WCB Healthcare Advisor.

Section 3 of Schedule A addresses Ratable Upper Extremity Impairments, and provides, in part as follows:

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.

The methodology for determining the impairment rating for loss of range of motion is set out at pages 5 to 9 of Schedule A.

Worker's Position

The worker was self-represented and provided a written submission in support of his appeal.

The worker submitted that Review Office failed to consider different objective findings and contributing factors when determining his PPI rating and award. The worker noted that the WCB physiotherapy consultant performed the PPI examination using active guided range of motion and compared the results with the left shoulder mobility. In providing impairment calculations of 2.8% based on those results, the WCB physiotherapy consultant noted that this "will be only one of the factors considered by Compensation Services when determining the final PPI Award." [worker's emphasis] The worker submitted that although the physiotherapy consultant had suggested using additional methods, Review Office referred to this method as the sole measurement for determining an impairment rating.

The worker submitted that in determining an appropriate PPI award that reflected the effect of his injury, the rating should have been determined based on an Unscheduled Rating, the criteria for which, as listed in Section 2.1 b. of Schedule A to the Policy, were satisfied. The worker submitted that an Unscheduled Rating was required to address the disproportionate loss of strength in his right arm as compared to his left and the disparities in grip strength values between his left and right arm/shoulder, as indicated in medical information on file.

The worker submitted that functional testing performed by the treating physiotherapist both pre- and post-surgery showed grip strength values that indicated large disparities between his left and right arms/shoulders, such that directly comparing losses would require the use of an unscheduled rating. The worker submitted that grip strength values provided by a secondary source, the reconditioning program, also established losses which reflected the long term effects of his injury and how it has affected his right arm dominant functions. The worker submitted that this is an impairment that has a supported, measured and documented value that should be a consideration but was overlooked.

The worker further submitted that medical information shows that his loss of strength remains due to the impingement he suffered from his workplace injury. He submitted that it was unfair that the single source used to calculate the PPI award was a goniometer on August 16, 2018. The worker submitted that the procedure applied by the WCB produced a false and unfair valuation in these circumstances.

In conclusion, the worker submitted that his PPI award should be adjusted to represent a 4.2 to 4.5% loss of function.

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 determined. For the worker's appeal to be successful, the panel must find that the Act, regulations and/or WCB policy were not properly applied in establishing the PPI rating and/or calculating the amount of the PPI award in this case. The panel is not able make these findings, for the reasons that follow.

The worker has a compensable injury to his right shoulder. With respect to an injury to an upper extremity, including a shoulder, the Policy provides that impairment is evaluated for the loss of mobility of a joint. It further provides that the impairment rating for loss of mobility or range of motion is to be determined through clinical examination or assessment of the medical information on file, based on the loss of active guided movement of the affected joint.

The worker was examined by a WCB physiotherapist consultant on August 16, 2018. The panel has reviewed the physiotherapist consultant's notes of that examination, and is satisfied that the consultant made the appropriate measurements in accordance with the process and criteria set out in the Policy.

While the worker has argued that other factors ought to have been considered and an unscheduled rating utilized, that panel is unable to arrive at that conclusion. The panel notes that an unscheduled rating is only used in exceptional circumstances, including when a WCB healthcare advisor is unable to determine a valid impairment rating through clinical examination or medical file assessment. The panel notes that in this case there were no unusual factors or conditions, and the WCB physiotherapy consultant was able to objectively measure the range of motion as contemplated under the Policy. Based on our review of the evidence, the panel is satisfied that there were no other factors to apply in this case.

The panel notes that consideration had been given as to whether the PPI rating should have been reduced based on a pre-existing condition. An opinion was sought from the WCB radiology consultant, which was then reviewed by not only the WCB physiotherapy consultant but also the WCB senior medical advisor and the WCB medical PPI advisor, and it was noted that the criteria for a major pre-existing condition did not appear to be met.

The panel therefore finds that the physiotherapy consultant's calculation of the impairment rating of 2.8% for loss of range of motion was properly determined.

The panel reviewed the calculation of the monetary amount of the PPI award and finds that it has been correctly calculated at $2,700.00 ($1,350.00 for each full 1.00% 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, Regulation and 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 determined.

The worker's appeal is 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 24th day of June, 2019