Decision #133/19 - Type: Workers Compensation
Preamble
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his permanent partial disability rating of 3.4% has been correctly determined. A file review was held on September 24, 2019 to consider the worker's appeal.
Issue
Whether or not the worker's permanent partial disability rating of 3.4% has been correctly determined.
Decision
The worker's permanent partial disability rating of 3.4% has been correctly determined.
Background
The worker has an accepted claim for an injury that occurred at work on January 12, 1988 when a steel door hit his right elbow. The WCB accepted the worker's claim as a right olecranon bursitis. On February 9, 1988, the worker had surgery to excise the olecranon spur and olecranon bursa in his right elbow. The worker returned to work on April 26, 1988.
On March 29, 2016, the worker contacted the WCB to enquire about his entitlement to a permanent partial disability rating and award. At the request of the WCB, the worker attended for a call-in examination on May 18, 2016 with a WCB physiotherapy consultant. The WCB physiotherapy consultant compared digital images of the worker's scarring on his right elbow and compared those images to folio images at the WCB and opined that the worker did not have a rateable cosmetic impairment. On May 25, 2016, the worker was advised he was not entitled to a permanent partial disability rating or award.
On June 22, 2016, the worker requested reconsideration of the decision by the WCB. He advised that he saw his family physician on June 14, 2016 to have his elbow assessed. The worker reported that he was not able to fully extend his elbow and that his physician noted a skin adhesion. The worker also submitted a report from an initial physiotherapy assessment he attended on June 16, 2016.
The WCB received and reviewed the June 14, 2016 report from the worker's treating physician and the June 16, 2016 physiotherapist report. A WCB physiotherapy consultant reviewed these reports as well as the worker's file on August 15, 2016. The WCB physiotherapy consultant concluded that a relationship could not be established between the worker's current difficulties and the January 12, 1988 injury, given the length of time since the last medical report on file in 1988 to the worker's initial reports of difficulties with range of motion in his right wrist on May 18, 2016, and therefore no change was required to the decision that the worker did not have a rateable cosmetic impairment.
On December 7, 2016, the worker requested Review Office reconsider the WCB's decision. Review Office returned the worker's file to the WCB's Compensation Services on December 19, 2016 for further investigation regarding the worker's current diagnosis and range of motion difficulties.
At the request of the WCB, the worker attended another call-in examination with a WCB medical advisor on January 31, 2017. After the examination, the WCB medical advisor opined that the worker's initial diagnosis was a "…traumatic right olecranon bursitis." The WCB medical advisor noted that the worker had undergone an uncomplicated surgery to excise the olecranon bursa and had a normal recovery, which typically occurs within six to eight weeks. The medical reports on the worker's file after the surgery noted increasing range of motion, decrease in pain and full recovery of normal function. The medical advisor concluded that there was not a current diagnosis that would relate to the 1988 workplace accident. With respect to the worker's complaint regarding scar tissue, the WCB medical advisor noted that there was no evidence on examination that the scar had adhered to the olecranon and that it was unlikely that a surgery in 1988, followed by 25+ years of normal function would result in the worker's current difficulties. On February 28, 2017 the worker was advised that his accepted diagnosis was a traumatic right olecranon bursitis, a condition temporary in nature, and he was not eligible for a permanent partial disability award.
The worker submitted further medical information on March 7, 2018 and again requested reconsideration of the decision. At this time, the WCB recommended the worker be reassessed for a permanent partial disability award. The examination took place on May 24, 2018. A WCB medical advisor compared digital photos taken that day with the WCB folio and recommended a finding of cosmetic impairment of 1%. The WCB medical advisor measured active guided left and right elbow mobility, finding a 15 degree deficit of range of motion noted in the worker's right arm. The difference in range of motion resulted in calculation of an impairment rating of 2.4%, and accordingly, the WCB medical advisor recommended a permanent partial disability (PPD) rating totalling 3.4%. On August 14, 2018, the worker was advised of his PPD rating and monetary award amount.
On September 7, 2018, the worker requested reconsideration of the WCB's decision to Review Office. The worker noted his WCB examination of January 31, 2017 indicated a 20 degree difference in range of motion, as compared to the May 24, 2018 examination which found a difference of 15 degrees. The worker felt his PPD rating should have been calculated based on the 2017 examination. Further, the worker felt that his cosmetic impairment rating was only based on a 1 cm scar when he actually has a 4 cm scar and he should therefore be entitled to greater than a 1% cosmetic impairment rating.
On October 24, 2018, the employer provided a submission in support of the WCB's August 14, 2018 decision.
Review Office determined on November 21, 2018 that the worker's permanent partial disability rating of 3.4% was correctly based upon the findings of the May 24, 2018 examination by the WCB medical advisor.
The worker filed an appeal with the Appeal Commission on March 8, 2019. 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 established by the WCB's Board of Directors.
At the outset, the panel notes that the worker’s claim dates back to 1988; therefore, benefits are to be assessed under the Act as it existed at that time.
Under s 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 permanent partial disability ("PPD") under the Act in effect in 1988 was provided for under s 32 as follows:
32(1) Where permanent partial disability results from the injury, the board shall allow compensation in periodical payments during the lifetime of the workman sufficient, in the opinion of the board, to compensate for the physical loss occasioned by the disability, but not exceeding seventy-five per cent of his average earnings.
32(2) Where a workman is permanently disfigured as a result of the injury, the board may determine that the disfigurement is permanent partial disability for which compensation may be allowed under this section notwithstanding that the amount which the workman was able to earn before the accident has not been substantially diminished by reason of the disfigurement.
The WCB Board of Directors has established Policy 44.90.10. Permanent Impairment Rating (the "Policy"). Pursuant to the Policy, impairment benefits are calculated by determining a rating which represents the percentage of impairment as it relates to the whole body. Schedule A to the Policy applies to all impairment ratings conducted on or after September 1, 2017 except for impairment of hearing.
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 will be established strictly in accordance with the Permanent Impairment Rating Schedule which is attached as Schedule "A" to the Policy. The Policy provides, in respect of disfigurement ratings, that:
In order to maintain consistency in ratings for disfigurement, and to make the ratings as objective as possible, medical staff will make reference to the folio of previous disfigurement ratings established as policy by WCB Order No. 67/89 and maintained by the WCB's Healthcare Services Department as prescribed in WCB Order No. 67/89.
Schedule "A" to the Policy allows for a cosmetic rating for disfigurement and states as follows:
Disfigurement is an altered or abnormal appearance. This may be an alteration of color, shape, or structure, or a combination of these and can also include loss of function due to contractures as a result of scarring.
The rating for disfigurement is done by the Board's Medical Department and the degree of disfigurement is determined on a judgemental basis. The maximum rating for disfigurement, in extreme cases, is 25%. Typical awards for disfigurement are between 1 and 5%.
Schedule "A" to the Policy also provides for rating of loss of range of motion in the upper extremity and sets out that such rating 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. 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.
Schedule A sets out a detailed methodology for the measurement of active guided range of motion and calculation of the resulting permanent partial impairment rating.
Worker's Position
The worker's position is set out in his Appeal of Claims Decision submitted to the Appeal Commission and received on March 8, 2019. The worker indicates that he believes the Permanent Partial Disability rating is not sufficient with respect to his loss of range of motion, stating that the range of motion measurement used was the lowest measurement available and that range of motion results can vary from day to day. With respect to the disfigurement rating, the worker indicates that he believes the scar was incorrectly measured at 1 cm when it is actually 8 cm in length, and further, that the tethering of the skin also qualifies as a scar that should be considered in calculating the appropriate rating amount.
Employer's Position
The employer did not participate in the appeal.
Analysis
The issue before the panel is whether the worker's permanent partial disability rating of 3.4% is correctly determined. For the worker's appeal to succeed on this question, the panel must find that the Act or the Policy was not correctly applied. The panel is not able to make that finding.
The panel considered whether the WCB medical advisor's assessment was conducted in accordance with the process which is set out in the Policy.
The WCB medical advisor in the report dated May 24, 2018 confirmed that the recommended PPD rating for disfigurement was arrived at based upon in-person examination of the scar over the worker's right olecranon. The report describes a "well-healed, barely visible scar…over the right olecranon with tethering of the skin noted as well." Digital pictures were taken of the scarring and asymmetry of the right elbow. Based on the examination and photos taken, the WCB medical advisor assessed the level of cosmetic impairment (or disfigurement) at 1% whole person impairment.
The panel accepts the medical advisor's assessment and exercise of judgment with respect to the calculation of the disfigurement rating of 1% and note that the medical advisor specifically took into account the tethering of the skin which the worker referenced in his appeal.
With respect to the calculation of the PPD rating for the loss of range of motion of the worker's right elbow, the panel notes that the WCB medical advisor measured active guided range of motion of both the worker's right and left elbows, comparing the two measurements as required to determine a deficit range of motion in the right elbow of 15 degrees, or 12%. This difference was multiplied by the Maximum Impairment Rating for the elbow of 20% resulting in 2.4% whole body impairment rating.
The calculated ratings were combined to support the WCB medical advisor's recommendation for a total PPD rating of 3.4% whole person impairment.
The worker suggested that the WCB medical advisor should have relied upon measurements of active range of motion taken at an earlier date which indicated a greater deficit or difference in range of motion between the right and left elbows. The panel does not agree that this would have been appropriate. The WCB medical advisor correctly followed the provisions of the Policy with respect to assessment of the worker's PPD rating.
The panel is satisfied, on a balance of probabilities, that the worker's PPD rating of 3.4% of whole body impairment was established in accordance with the provisions of the Policy and was therefore correctly determined.
The worker's appeal is dismissed.
Panel Members
K. Dyck, Presiding Officer
J. MacKay, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
K. Dyck - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 5th day of November, 2019