Decision #153/21 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that their permanent partial impairment rating has been correctly determined. A file review was held on December 2, 2021 to consider the worker's appeal.
Whether or not the worker's permanent partial impairment rating has been correctly determined.
The worker's permanent partial impairment rating has been correctly determined.
The WCB accepted the worker’s claim for an injury to their right shoulder that occurred as a result of an incident at work on December 19, 2018 when the worker slipped and fell on ice. The initial diagnosis provided by the treating emergency room physician was a shoulder strain. The worker attended for physiotherapy treatment but due to ongoing symptoms, the worker was referred for an MRI. The MRI study of April 16, 2019 indicated:
"Low grade partial intrasubstance tearing/tendinosis of the supraspinatus critical zone. Infraspinatus tendinosis. Suspected partial tearing and tendinosis of the superior subscapularis tendon with minor subluxation of the long head biceps tendon. Suspected superior and posterosuperior labral degeneration and tearing/separation. Mild approaching moderate atrophy fatty streaks involving the teres minor, no obvious axillary nerve compressive mass, this may relate to an adhesion."
On May 9, 2019, the treating family physician referred the worker to an orthopedic surgeon who, on October 16, 2019, recommended arthroscopic surgery. The WCB authorized the surgery on November 1, 2019 and the surgery took place on January 21, 2020. Post-surgery, the worker received physiotherapy and they returned to work on March 2, 2020.
On March 4, 2021, at the request of the WCB, a WCB physiotherapy consultant reviewed the worker’s file to determine eligibility for a permanent partial impairment (“PPI”) rating and award. The consultant reviewed the January 21, 2020 surgical report and opined the accepted diagnosis in relation to the December 19, 2018 workplace accident was "…an aggravation of a pre-existing rotator cuff tear…"
The worker attended a call-in examination on March 25, 2021 with a WCB physiotherapy consultant for the PPI assessment. Photographs taken of the scarring on the worker's right shoulder were compared to the folio images on file at the WCB and the WCB physiotherapy consultant provided an opinion that the worker did not have a ratable cosmetic impairment related to the compensable injury. The consultant performed active guided right shoulder mobility testing using a goniometer and determined an impairment rating of 2.8%, which was reduced by 50% due to the pre-existing condition to a final rating of 1.40%. On April 13, 2021, the WCB advised the worker of their rating and provided the PPI award.
The worker requested reconsideration of the WCB's decision to Review Office on June 23, 2021. In their submission, the worker noted they had sustained an injury to their left shoulder in 2014, which was not related to this claim for injury to their right shoulder. The worker indicated their belief that the WCB was referencing the left shoulder injury as the pre-existing condition; however, it was their right shoulder that was injured in relation to the claim and as a result, the WCB physiotherapy consultant did not determine a correct PPI rating and award for their right shoulder.
On August 19, 2021, Review Office upheld the WCB's decision and found the worker's permanent partial impairment rating was correct. Review Office accepted and agreed with the WCB physiotherapy consultant who reviewed the worker's file and determined the worker had a major pre-existing condition. As well, Review Office found the WCB physiotherapy consultant who conducted the PPI assessment was correct in the assessment of the worker's rating for scarring and active guided range of motion.
The worker filed an appeal with the Appeal Commission on September 15, 2021. A file review was arranged for December 2, 2021.
Applicable Legislation and Policy
The panel is bound by and must apply the provisions of The Workers Compensation Act (the “Act”), regulations under the Act and the policies established by the WCB.
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. That compensation includes awards for permanent partial impairment, as well as medical aid and wage loss benefits, as outlined in s 37 of the Act. Section 4(9) provides that the WCB may award compensation for an impairment that does not result in a loss of earning capacity, and s 38 of allows the WCB to determine the permanent partial impairment rating as a percentage of total body impairment and to make an award based upon each full percentage of whole-body impairment.
The WCB’s Policy 44.90.10, Permanent Impairment Rating (the "Policy”) describes how permanent impairment ratings are calculated as a 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 will be established strictly in accordance with the PPI Schedule which is attached as Schedule A to the Policy.
The Policy confirms that the existence of a pre-existing condition will not negate an injured worker's entitlement to an impairment benefit arising from a compensable injury. If a worker has a pre-existing condition, the worker is eligible for an impairment rating based on the difference between the total rating and the rating assigned to the pre-existing condition. The WCB Healthcare Advisor will assign a fair rating to the pre-existing condition based on the best information available. When it is reasonable to do so, the assigned rating for the pre-existing condition will be based on the Schedules.
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.
In respect of cosmetic disfigurement, Schedule A provides that when a worker is permanently disfigured due to an injury, the WCB may determine the disfigurement is a permanent impairment to which the worker is entitled to an impairment benefit. The rating calculation for disfigurement is done by a WCB Healthcare Advisor and determined based on their judgment. The maximum rating for disfigurement is 25% in extreme cases, but typical ratings are between 1 - 5%. For consistency in disfigurement ratings and to make the ratings as objective as possible, the WCB's Healthcare Advisor is required to reference a folio of disfigurement ratings established in previous cases in determining a rating.
Schedule A also addresses the determination of rating for a pre-existing condition. A minor pre-existing condition will be assigned a 0% impairment rating and a major pre-existing condition will be assigned an impairment rating equivalent to 50% of the impairment rating for that structure. For the PPI rating determination, a pre-existing condition is considered to be major if:
i. The impairment was/is significantly affected by the pre-existing condition; or
ii. The diagnosis accepted by the WCB was adjudicated as an enhancement of a pre-existing condition; or
iii. The diagnosis accepted by the WCB would not have occurred in the absence of the pre-existing condition.
The worker’s position is set out in the Appeal of Claims Decision and accompanying letter, dated September 10, 2021 and received on September 15, 2021.
The worker appeals the WCB decision on the basis that the PPI rate calculation incorrectly took into account a major pre-existing condition, but the worker does not agree that they had any such condition.
The worker submitted that both the surgical report and MRI study indicated that they had degeneration in their right labral soft cartilage and not in the rotator cuff which did not show degeneration as the WCB has stated.
The worker also noted and questioned why there was a significant difference in the PPI rating determined for their right shoulder as compared to their left shoulder rating which was calculated in another province several years earlier.
Further, the worker indicated that prior to the December 19, 2018 workplace injury, they had no pain symptoms or injury in their right shoulder, as confirmed by their physician. In a letter dated June 17, 2021 submitted with the appeal application, the physician confirmed that the worker did not have any previous injury to their right shoulder. The worker stated:
“If I had a “major” rotator cuff tear/degenerative issue in my right shoulder prior to my 2018 injury at work, I absolutely would have experienced pain/discomfort and loss of function. I would have had to seek treatment. I do not believe there was any type of “pre-existing” major rotator cuff tear or otherwise in my right shoulder prior to my December 19, 2018 injury at work, besides mild arthrosis.”
The worker also noted that the PPI assessment for their left shoulder arising out of the 2014 claim compared that shoulder’s movement against the right shoulder’s mobility and at that time, the right shoulder moved as expected, or normally.
In sum, the worker’s position is that the PPI rating was not correctly determined in that it took into account a major pre-existing condition that the worker does not agree existed.
The employer did not participate in the appeal.
The issue before the panel is whether the worker's permanent partial impairment rating was 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 was not able to make such a finding for the reasons that follow.
The panel considered whether the WCB’s PPI assessment was conducted in accordance with the process set out in the Policy. The panel reviewed the healthcare service request of February 16, 2021 and opinion offered by the WCB physiotherapy consultant on March 4, 2021 in response to that request. The physiotherapy consultant agreed that the worker was likely at maximum medical improvement and set out the requirement for measurement of the worker’s active guided range of motion of the left versus right shoulders as well as evaluating any cosmetic impairment. They reviewed the file evidence and determined that there is a probable major pre-existing condition related to the PPI, supported by the following evidence:·
- April 16, 2019 MRI findings indicating “Low grade partial intrasubstance tearing/tendinosis of the supraspinatus critical zone. Infraspinatus tendinosis. Suspected partial tearing and tendinosis of the superior subscapularis tendon with minor subluxation of the long head biceps tendon. Suspected superior and posterosuperior labral degeneration and tearing/separation. Mild approaching moderate atrophy fatty streaks involving the teres minor, no obvious axillary nerve compressive mass, this may relate to an adhesion.”
- May 5, 2019 opinion of the WCB medical advisor that the MRI changes noted: “…would be considered pre-x as they are degenerative in nature and not from an acute injury. If [they] didn’t have the pre-x, it’s unclear what injury [they] would have sustained from the accident. However, the degeneration made [their] shoulder vulnerable to a greater extent of injury with lesser force. [The worker] may have just had a strain/sprain to the shoulder had it not been for the pre-x.”
- October 30, 2019 opinion of the WCB medical advisor indicating that “The subscapularis portion of the tearing is associated with the subluxation of the biceps tendon, so all is really related. The claim was accepted as an aggravation of the pre-x cuff tears.”
- January 21, 2020 surgical report outlining a post-operative diagnosis of “Low grade cleavage type subscapularis tendon tearing, low-grade partial articular-sided supraspinatus tendon tear, type II SLAP lesion and inflammation of long head of biceps, rotator cuff impingement, AC joint arthrosis.”
The PPI assessment report dated March 25, 2021 was prepared by the WCB physiotherapy advisor who met with the worker on that date. The report indicates with respect to the surgical scarring that digital photos were taken of the scarring on the right shoulder and the scars were compared to the folio of images at the WCB. The WCB physiotherapy advisor concluded there was no ratable cosmetic impairment related to the compensable injury.
The WCB physiotherapy advisor interviewed the worker who reported on their ongoing symptoms and functional abilities and measured the worker’s active guided right shoulder mobility using a goniometer, comparing the worker’s right shoulder mobility against the expected values chart as the worker reported a prior out-of-province injury affecting their left shoulder. Based upon the measured right shoulder results as compared to the expected values for each measurement, there was a difference of 55 degrees between the total active guided range of motion in the right shoulder and the expected range of motion, which equates to an 11% deficit in range of motion for the right shoulder, and which translates to a total body impairment rating of 2.8%. The WCB physiotherapy advisor then applied a 50% reduction factor to the total body impairment rating of 2.8% based upon the WCB physiotherapy consultant’s March 4, 2021 conclusion that there was a major pre-existing condition in the worker’s right shoulder.
The worker believes that if there were a major pre-existing condition in their right shoulder, it would have been symptomatic prior to the workplace accident and noted that at the time of the left shoulder PPI assessment in 2016, their right shoulder had full mobility. They also relied upon the statement by their treating family physician that they had no prior right shoulder concerns. But the panel noted the May 5, 2019 opinion of the WCB medical advisor that concludes the combination of cuff tearing, subluxation of the long head biceps tendon, degenerative tearing of the labrum and atrophy of the teres minor, as indicated on the MRI study of April 16, 2019, “would support a degenerative etiology.” The medical advisor went on to state that the worker’s presentation:
“...has been interpreted as being related to a cuff injury. The findings on the MRI suggest that the cuff was torn before the injury (even if asymptomatic). If [the worker] wasn’t presenting with cuff pain and findings prior to the workplace accident, then this presentation would support that the [compensable injury] aggravated a pre-x cuff tear…. [T]he changes on MRI would be considered pre-x as they are degenerative in nature and not from an acute injury.”
The WCB medical advisor’s opinion allows that the worker’s MRI findings may have been asymptomatic prior to the workplace accident and concludes that the workplace injury aggravated the pre-existing right shoulder issues and likely would not have been as significant an injury if not for the pre-existing condition. The panel finds that the medical advisor’s opinion provides a clear explanation for the basis of the WCB determination that there was a major pre-existing condition, in that the medical advisor outlines that the worker’s injury was significantly affected by the pre-existing condition and that the accepted diagnosis likely would not have occurred in the absence of the pre-existing condition. We accept and rely upon this opinion.
On the basis of the evidence before us, the panel is satisfied that the Policy requirements for determining that a pre-existing condition is major have been met in that the worker’s permanent impairment is significantly affected by the pre-existing condition and that the accepted diagnosis likely would not have occurred in the absence of the pre-existing condition. Therefore, the panel concurs with the WCB determination that the worker’s impairment rating be reduced by 50% to reflect a major pre-existing condition.
The panel is satisfied, based on our review of the file, that the worker's PPI rating was determined in accordance with the provisions of the Policy. The panel therefore determines, on a balance of probabilities, that the worker's permanent partial impairment rating is correct.
The worker’s appeal is dismissed.
K. Dyck, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
K. Dyck - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 23rd day of December, 2021