Decision #50/21 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that she is not entitled to a permanent partial impairment award. A file review was held on November 19, 2020 to consider the worker's appeal.
Whether or not the worker is entitled to a permanent partial impairment award.
That the worker is entitled to a permanent partial impairment award.
On November 9, 2017, the worker reported to the WCB that she injured her left heel at work on November 6, 2017 when a person pushed a cart into her from behind, catching her left heel. The worker noted she felt "instant sharp pain" in her left heel, could barely walk and was limping throughout the day. She also noted her foot was swollen the next day and she sought medical attention.
At the appointment with her family physician on November 7, 2017, the physician noted tenderness and an inability to walk, and diagnosed the worker with an avulsion injury to her Achilles tendon. The worker was referred to an orthopedic specialist and it was recommended she remain off work. On November 10, 2017, the worker was seen by the orthopedic specialist, who noted swelling, bruising and a hematoma. The worker was diagnosed with a left calcaneus fracture and was placed in a cast.
On November 16, 2017, the WCB's Compensation Services advised the worker that her claim was accepted and payment of benefits commenced. The worker underwent conservative treatment for her compensable left foot injury, including physiotherapy, and remained off work. In a January 9, 2018 report from a treating podiatrist, the podiatrist noted that the worker was also receiving treatment for a non-work-related injury to her right foot. The worker subsequently underwent surgery on her right foot.
On December 6, 2019, the worker's file was reviewed by a WCB physiotherapy consultant, who indicated the worker's November 6, 2017 diagnosis was a left heel contusion and that the initial concern with regard to a calcaneus avulsion fracture and/or Achilles tendon injury had been ruled out based on a WCB radiology consultant's review of the imaging reports. The WCB physiotherapy consultant went on to note that the worker was likely at maximum medical improvement and her active guided left versus right ankle mobility should be evaluated for a permanent partial impairment ("PPI") rating. The consultant further opined that there was a major pre-existing/co-existing condition related to the PPI.
On January 7, 2020, the worker attended a call-in examination with the WCB physiotherapy consultant for the purpose of determining the PPI rating resulting from the November 6, 2017 workplace accident. During the examination, the WCB physiotherapy consultant noted that any attempt to evaluate guided left ankle mobility was met with "…an abrupt muscular resistance that blocked further motion. Gentle repetitive motion of the left ankle into plantarflexion allowed for some improvement in range of motion that was not maintained on formal measurement." The consultant concluded that "The nature of the current range of motion findings at the left ankle is not medically accounted for in relation to the reported mechanism of the November 6, 2017 accident and resultant contusion of the left heel," and that a non-scheduled rating would be considered using The American Medical Association's Guides to the Evaluation of Permanent Impairment, Sixth Edition (the "AMA Guides").
The WCB physiotherapy consultant went on to determine that the rating for the impairment stemming from the November 6, 2017 accident as per the AMA Guides was the maximum 2% lower extremity rating under Class 1, which was converted to a 1% whole person rating pursuant to the Guides. The consultant further concluded that as the worker had a major pre-existing/co-existing condition related to the PPI, the 1% whole person impairment rating would be pro-rated by 50%, resulting in a 0.5% whole body PPI rating. On January 23, 2020, the WCB's Chief Medical Officer noted his agreement with the determination of an unscheduled impairment rating.
On February 12, 2020, the worker's WCB case manager advised the worker that the WCB Healthcare had assessed her PPI rating as 1%, but that this had to be reduced by one-half due to a pre-existing condition. The worker advised that she was unaware of any pre-existing condition, and the case manager agreed to forward a copy of the WCB physiotherapy consultant's PPI report to her treating practitioners for comment.
By letter dated February 24, 2020, the worker's treating physiotherapist provided the WCB with a narrative report setting out updated range of motion measurements and strength test findings from a February 20, 2020 examination of the worker. On February 27, 2020, the worker's treating nurse practitioner also provided a narrative report setting out a chronology of the worker's injury and ongoing disability, and the impact her injury had had on her activities of daily living. The new medical information was reviewed by the WCB physiotherapy consultant, and on March 5, 2020, the case manager advised the worker that there would be no change to her PPI rating.
On March 11, 2020, the worker requested that Review Office reconsider the WCB's decision. The worker submitted that her treating healthcare providers confirmed her limited range of motion and left ankle/heel impairment, and that she was entitled to a higher PPI rating. On March 17, 2020, Review Office referred the matter back to Compensation Services to provide the worker with a formal decision letter with respect to her PPI review and rationale.
By letter dated March 25, 2020, Compensation Services advised the worker that following a review of the new medical information from her healthcare providers, the impairment rating remained the same and she was not entitled to a PPI award. The request for reconsideration was referred back to Review Office, and on May 4, 2020, the employer's representative provided a submission in support of Compensation Services' decision.
On May 20, 2020, Review Office determined that the worker was not entitled to a permanent partial impairment award. Review Office agreed with the WCB physiotherapy consultant's use of the AMA Guides to determine the appropriate rating and accepted the 1% PPI whole person rating. Review Office further agreed that the worker had a major pre-existing/co-existing condition related to the PPI, and that pro-rating the 1% PPI rating by 50%, resulting in a 0.5% whole body PPI, was correct. Review Office went on to conclude that as the WCB does not grant PPI awards for ratings less than 1% under its legislation, there was no entitlement to a PPI award.
On June 11, 2020, the worker appealed the Review Office decision to the Appeal Commission and a file review was arranged.
Following the hearing, the appeal panel requested additional medical information prior to discussing the case further. The requested information was later received and was forwarded to the interested parties for comment. On March 3, 2021, the appeal panel met further to discuss the case and render its final decision on the issue under appeal.
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(9) of the Act provides that the WCB may award compensation in respect of an impairment that does not result in a loss of earning capacity.
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 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.
Sections 1 and 2 of the Policy provide 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 (other than impairment of hearing ratings) will be established strictly in accordance with the PPI Schedule attached as Schedule A to the Policy.
The Policy goes on to state, in part, as follows:
6. In the event that the WCB Healthcare Services Department determines that:
a. strict adherence would create an injustice, or
b. an impairment exists that is not covered by the PPI Schedules, or
c. the clinical examination or medical file assessment does not allow for the determination of a valid impairment rating by a WCB Healthcare Advisor,
then the WCB Healthcare Advisor may deem it just and fair to establish an impairment rating that is not specifically covered by the PPI Schedules.
In such cases, the WCB Healthcare Advisor may use information other than the PPI Schedules, such as The American Medical Association's Guides to the Evaluation of Permanent Impairment.
Impairment ratings in these cases must be reviewed and approved by the the (sic) WCB Director responsible or his/her designate. The Healthcare Services Department will document these cases and explain the justification for the non-scheduled rating.
Section 1 of Schedule A to the Policy provides, in part, 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 4 of Schedule A deals with "Lower Extremity: Range of Movement Impairment." The methodology for determining loss of range of motion is set out at pages 20 to 24 of Schedule A.
The worker was self-represented on the appeal. The worker's position was that she has a permanent disability as a result of the November 6, 2017 workplace incident and is entitled to be compensated with a PPI award.
The worker submitted that she never had any issues with her left foot prior to the accident. She was once very active, but now has a disability which has adversely affected her and will do so for the rest of her life.
The worker submitted that there is supporting evidence from two physicians and two physiotherapists that there is irreversible damage to her left heel. The WCB physiotherapist consultant confirmed that she has an issue with her left heel. The consultant did not know if it was pre-existing or related to her accident, but she told him she did not have problems with her heel prior to the accident. Her physiotherapist, who had been treating her for more than a year, reported that she definitely had an issue with her heel. Her family physician also provided a report indicating she had problems. The medical evidence confirmed that the active guided range of motion on her left heel is substantially decreased. The MRI also supported that there is damage.
The worker submitted that she has been in constant pain since the accident. She noted she is unable to walk long distances, walk up a flight of stairs or climb a ladder; she has trouble sleeping because of the pain in her heel; and her foot does not bend or flex properly.
The worker submitted that every person is an individual and should be treated as such. She argued that she has been denied PPI compensation just because her case does not fall within the mathematical criteria the WCB uses. She submitted that the WCB's calculations are just guidelines, and the WCB should look at individual cases and circumstances, and take reports from treating healthcare providers into consideration.
In conclusion, the worker submitted that she is an individual who has a disability as a result of a workplace accident which has changed her life, and for which she should be compensated with a PPI award.
The employer was represented by an advocate who provided a written submission in response to the worker's appeal.
The employer's position was that the evidence did not substantiate the worker was entitled to a PPI award, given the nature of the worker's disability and the available medical evidence.
The employer's advocate submitted that while the worker has indicated she continues to experience pain and difficulties with activities of daily living, WCB policy makes no provision for quality of living and pain issues in the PPI rating schedule. The advocate noted that an impairment award can be provided for loss of a body part, loss of mobility of a joint, loss of function of an organ, or cosmetic disfigurement, but not for pain.
It was submitted that there is a clearly prescribed process for the provision of a PPI award which was followed in this case, and the decision that there was no entitlement to a PPI award was made in accordance with the provisions of the Act and WCB policy.
The employer's advocate submitted that based on the confirmed diagnosis of a soft tissue injury or contusion to the left calcaneus, the presence of a pre-existing condition which was considered to be major, the findings of the PPI examination by the WCB physiotherapy consultant, and the provisions of the Act and Policy, the worker was not entitled to a PPI award, and her appeal should be denied.
The issue before the panel is whether or not the worker is entitled to a permanent partial impairment award. For the worker's appeal to be successful, the panel must find that the Act and/or WCB policies were not correctly applied in this case. For the reasons that follow, the panel is able to make that finding, in part.
As noted previously, the panel is bound by the Act and the policies of the WCB's Board of Directors. Section 4.1 of Schedule A to the Policy provides that the impairment rating for loss of function or range of motion resulting from direct injury to a lower extremity (including an ankle or foot):
…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 information on file shows that the WCB physiotherapy consultant reviewed the worker's file and conducted a clinical examination of the worker. In his notes of the PPI examination, the consultant wrote that he attempted to evaluate active guided left ankle mobility or range of motion using a goniometer, but gentle palpation of the left ankle resulted in increased symptoms in the left posterior calcaneal region and any attempt to gently assess or measure left ankle active guided motion was accompanied by an abrupt muscular resistance that blocked further motion. In these circumstances, the WCB physiotherapy consultant stated he was unable to determine that the end-feel at end range of the best attainable active guided movement was valid, as required for a scheduled rating, and a non-scheduled rating was to be considered utilizing the AMA Guides.
The panel notes that in a memorandum to file dated January 23, 2020, the WCB Chief Medical Officer documented that he had reviewed the file and discussed the PPI examination notes with the PPI examiner and agreed with the determination of an unscheduled rating, as per the methodology documented in the PPI examination notes.
Based on our own review of the information on file and the WCB physiotherapy consultant's examination findings, the panel is satisfied that the consultant's recommended use of the AMA Guides was consistent with the Policy and appropriate in the circumstances.
In proceeding with that assessment, the WCB physiotherapy consultant indicated he utilized the methodology described in Chapter 16 of the AMA Guides, The Lower Extremities. The consultant identified the criteria and class which best fit the worker's left heel symptoms and associated limitations of left ankle mobility at the time of the impairment assessment. The consultant noted that impairment ratings applicable to the ankle utilizing the AMA Guides are based primarily on the diagnosis to account for the impairment, and concluded that the "diagnostic criteria for rating the impairment stemming from the November 6, 2017 workplace accident is 'Soft Tissue' with the descriptor 'contusion', as per Table 16-2…of The Guides." The consultant determined the rating to be the maximum 2% lower extremity rating available under the applicable class, which was then converted to a 1% whole person impairment rating based on Table 16-10 of the Guides. The panel accepts and agrees with the WCB physiotherapy consultant's application of Chapter 16 of the AMA Guides and his assessment of a 1% whole person rating.
The panel notes that the worker has referred in her submission to the impact her injury has had and will continue to have on her life, for which she should be compensated. The panel acknowledges the worker's submission in this regard, but notes that as previously indicated, impairment ratings are based on loss of range of motion, and an impairment award is not intended to compensate a worker for pain or suffering resulting from an injury.
The panel has also considered the medical reports from the worker's treating physiotherapy and nurse practitioner dated February 24 and February 27, 2020, respectively, but is unable to place weight on those reports. The panel notes that the Policy is clear that the range of motion measurements are to be done in specific compliance with the Policy. While the treating physiotherapist has referred to "updated and specific" range of motion measurements, the methodology used is not documented and the provided measurements do not correlate with the Tables in Schedule A to the Policy. In addition, while the physiotherapist and nurse practitioner both speak to the impact the worker's injury has had on her activities of daily living, as previously stated, that the PPI is not intended to evaluate pain and suffering, including a reduced ability to perform activities of daily living or changed quality of life.
The panel further notes, however, that the worker's 1% PPI rating was reduced by 50% due to what was considered to be a major pre-existing condition, resulting in a 0.5% whole body rating which was not eligible for compensation under the Policy. Following our initial review of the worker's appeal, the panel requested clarification from the WCB's Healthcare Services Department regarding such a pre-existing condition and how it affected the ankle injury or impairment.
By memorandum dated January 18, 2021, the WCB physiotherapy consultant provided further explanation and clarification and concluded that:
In retrospect, and in discussion with…[the] WCB Chief Medical Advisor… it is recommended that the unscheduled impairment rating not be pro-rated by 50%. Therefore at this time the recommended PPI rating is 1%.
The panel accepts the WCB physiotherapy consultant's clarification on this point, and agrees with his conclusion that the unscheduled PPI whole person rating of 1% should not be pro-rated based on a pre-existing condition.
Based on the foregoing, the panel finds that insofar as the PPI rating was reduced based on a major pre-existing condition, the Act and Policy were not correctly applied in this case. The panel therefore finds that the worker's permanent partial impairment rating should be 1% and the worker is entitled to a PPI award based on that rating.
The worker's appeal is allowed.
M. L. Harrison, Presiding Officer
J. Witiuk, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
M. L. Harrison - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 20th day of April, 2021