Decision #06/22 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that:
1. Responsibility should not be accepted for the worker's right hip difficulties as being a consequence of the August 16, 2019 accident; and
2. They are not entitled to a permanent partial impairment award for their left shoulder injury.
A videoconference hearing was held on November 9, 2021 to consider the worker's appeal.
1. Whether or not responsibility should be accepted for the worker's current right hip difficulties as being a consequence of the August 16, 2019 accident; and
2. Whether or not the worker is entitled to a permanent partial impairment award for their left shoulder injury.
1. Responsibility should be accepted for the worker's current right hip difficulties as being a consequence of the August 16, 2019 accident; and
2. The panel finds the worker's left shoulder impairment has not been properly assessed and returns the file to the WCB for further adjudication.
In an Employer’s Incident Report to the WCB of August 16, 2019, the employer reported the worker was injured in an incident at work on the same date. The employer indicated the worker injured their arm and back upon falling from an upper level to the floor below and was transported to hospital by ambulance for medical attention. In the Worker Incident Report provided to the WCB on August 19, 2019, the worker reported injury to their left arm, shoulder and back in an incident described as follows:
I was working in the warehouse and put a ladder up so I could get to a certain height to grab materials. I was on a platform which would have been the ceiling and I was opening some boxes and was standing on a metal trust (sic). Once I closed one of the boxes and I shifted my weight and my foot went off the trust (sic) and my foot went through the tile. I fell through the tile onto the floor. The fall was about 10ft. I landed on my back but I think I might have tried to grab something or something hit me on the way down and caused a bruise on my left arm and shoulder.
Upon assessment at the local emergency department, the examining physician reported no cervical spine tenderness but found tenderness in the worker’s lower back in the midline area and paraspinals. X-rays were taken and did not identify any acute fracture or subluxation, and the worker was discharged from the hospital.
On August 20, 2019, the worker attended for initial chiropractic assessment, reporting an inability to weight bear on their right leg or flex their spine, a heavy dull ache and poor sleep due to pain, and inability to elevate their left arm beyond 45 degrees with the arm symptoms aggravated by pushing. The chiropractor diagnosed pelvic sprain, latissimus myofascial pain syndrome and an elbow contusion.
When the WCB spoke with the worker on August 22, 2019, the worker confirmed the mechanism of injury noting they landed on the center of their back to their right hip and reported their belief they “…must have hit something on the way down causing bruising to [their] left arm, pain in elbow and shoulder.”
The worker saw their family physician on August 23, 2019 reporting pain in the right back and sacroiliac area. The treating physician examined the worker and noted the worker was uncomfortable, had right lumbar spine tenderness and was using a crutch.
The WCB accepted the worker’s claim on August 28, 2019.
The worker attended for an initial physiotherapy assessment on August 28, 2019. The physiotherapist noted the worker’s pain mostly on the right side of their low back and buttock area, left-sided shoulder pain, and a bruised left elbow and forearm. The physiotherapist diagnosed a rotator cuff and sacroiliac joint sprain.
At follow-up with the treating family physician on September 5, 2019, the worker reported that ongoing pain was “somewhat better”, and the physician noted the worker was limping and had tenderness in their right hip and shoulder. The physician recommended ongoing physiotherapy and chiropractic treatment.
A WCB medical advisor reviewed the worker’s file on September 5, 2019 and provided diagnoses of a strain/sprain for the worker’s left shoulder and non-specific, non-radicular pain for the worker’s low back.
The WCB arranged a call-in examination with a WCB medical advisor on November 7, 2019, due to the worker’s reported ongoing symptoms and slow progress in recovery. Upon examination, the medical advisor concluded the worker had ongoing pain to their left shoulder and right flank but that the worker’s low back and hip symptoms were resolved. The medical advisor diagnosed left shoulder rotator cuff tendinopathy, possibly in the presence of degenerative changes that would need confirmation by an MRI. In respect of the worker’s right flank pain, the WCB medical advisor opined the worker may “…have had a hematoma, which would explain the swelling over the costal margin and is now left with non-specific abdominal wall or flank pain. It is expected that this will resolve with time…”. The medical advisor recommended further restrictions which the WCB provided to the employer on November 21, 2019. On December 10, 2019, the employer advised they could not accommodate the worker’s restrictions.
On November 28, 2019, the worker underwent an MRI study of their left shoulder that indicated a "small articular surface partial tear" at the cephalad subscapularis insertion and "Degenerative cysts in the inferior glenoid with displaced degenerative labral tear and tiny paralabral cyst infericity".
When the worker began physiotherapy on December 9, 2019, the treating physiotherapist diagnosed mild mechanical low back pain and left rotator cuff injury, and recommended light duties. An orthopedic surgeon who examined the worker on January 17, 2020 did not recommend surgical intervention but did note that with additional physiotherapy and home-based exercises, the worker's shoulder would return to baseline function.
The worker continued with physiotherapy and on January 27, 2020, the treating physiotherapist updated the worker's restrictions. The WCB provided the updated restrictions to the employer on January 29, 2020. The employer advised the WCB they could now accommodate the worker, and the worker returned to work on February 11, 2020.
On June 4, 2020, the worker reported to their family physician soreness in their right ribs and side, noted to be in the area that they fell onto in the workplace accident. On July 8, 2020, the physiotherapist noted the worker reported their right hip was "feeling worse" as they were performing their job duties alone more often.
The worker's WCB Case Manager requested a WCB medical advisor review the worker's file as the worker had not yet returned to full duties. On July 10, 2020, the reviewing WCB medical advisor provided an opinion that the worker's recovery from the rotator cuff tear was not complete, and this was not unexpected with a rotator cuff tear. The medical advisor went on to outline that the worker’s “…current restrictions would limit strain to [their] low back as well, but it should be noted that the right hip findings cannot be medically accounted for in relation to the C/I (compensable injury), as they were not present previously and wouldn't be associated with non-specific low back pain from a year ago."
The worker subsequently opted to switch from physiotherapy to chiropractic treatment, and the Physiotherapy Discharge Report completed on July 22, 2020 noted the worker continued to have symptoms in their left shoulder and had plateaued in their treatment. The worker saw a different chiropractor for initial assessment on July 23, 2020. At that time, the worker reported pain in their upper and lower back into their right hip, that their neck was not turning well, pain with deep breathing, left shoulder pain and tightness in their legs.
A WCB medical advisor reviewed the worker's file on July 28, 2020 and noted that when the worker was seen at a call-in examination on November 7, 2019, their back pain was localized in their flank. The WCB medical advisor opined that chiropractic treatment would not be supported months after the workplace accident and further, that no pathoanatomic diagnosis was apparent. The medical advisor also noted that although the physiotherapist reported the worker’s ongoing issues with their right hip, that area was not injured in the workplace accident and would not be the WCB’s responsibility. On July 31, 2020, the WCB advised the worker they were not entitled to further treatment for their right hip difficulties.
A WCB medical advisor reviewed the worker's file on September 11, 2020 to determine whether the worker was at maximum medical improvement as more than a year had passed since the workplace accident. The medical advisor stated the worker's claim was accepted for a left rotator cuff tear (subscapularis) and was not expected to fully recover but their symptoms had stabilized. The medical advisor found the worker was at maximum medical improvement and their current restrictions would be considered permanent.
On September 30, 2020, a WCB physiotherapy consultant reviewed the worker's file to determine whether the worker was entitled to a PPI rating and award. The consultant provided the worker would not be entitled to a rating and award based on the January 13, 2020 assessment by the treating orthopedic surgeon noting full active and passive shoulder mobility, a July 8, 2020 physiotherapy report noting full shoulder mobility and as there was no surgery. As such, the physiotherapy consultant concluded there was no ratable permanent impairment.
On October 1, 2020, the WCB advised the worker they were not entitled to a permanent partial impairment award. The worker requested reconsideration of the WCB's decision to Review Office on November 16, 2020 noting their shoulder injury was permanent and that due to the injury, they were permanently on light duties. Review Office determined on December 16, 2020 that the worker was not entitled to a PPI award, relying upon the opinion of the WCB physiotherapy consultant.
On March 22, 2021, the worker requested reconsideration of the WCB's July 31, 2020 decision to Review Office. In their submission, the worker noted their right hip, low back and left shoulder were injured from the workplace accident and requested reconsideration of the decision regarding responsibility for their right hip. Review Office determined on May 11, 2021 that responsibility for the worker's right hip difficulties would not be accepted by the WCB. In doing so, Review Office agreed with the WCB medical advisor that the worker's right hip was not injured from the workplace accident but accepted that the worker had some difficulties in their right pelvis and hip area after the accident. Nonetheless, Review Office could not establish a relationship between the worker’s ongoing difficulties and the workplace accident, noting the evidence supported that the worker’s right hip difficulties had resolved by November 2019.
The worker filed an appeal with the Appeal Commission on June 16, 2021. A videoconference hearing was arranged for November 9, 2021.
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 January 6, 2022, the appeal panel met further to discuss the case and render its final decision on the issues under appeal.
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 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.
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.
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.
Schedule A defines "expected range of motion (ROM)" as the “expected ROM is the measured active guided ROM of the non-injured symmetric joint. This value is compared to the measured active guided ROM of the affected side. The difference is the loss of ROM of the injured joint.” For assessment of upper extremity range of motion, Schedule A sets out the following method:
Step 1 Measure the "Expected ROM" of the symmetric non-injured side. Record in 5° increments. When the symmetric body part is rendered abnormal by pre or co-existing injury or disease, refer to section 3.5 to determine the "Expected ROM", then continue with the steps below.
Step 2 Determine the "Measured ROM" of the injured side. Record in 5° increments.
Step 3 Determine the difference between the Measured ROM and the Expected ROM.
Step 4 Multiply the difference by the Maximum Impairment Rating for the appropriate body part, as indicated in section 3.3.
Step 5 The result is the PPI rating for loss of ROM.
The worker appeared in the hearing on their own behalf, providing a brief oral submission to the panel and offering testimony through answers to questions posed by members of the appeal panel.
The worker’s position with respect to the WCB’s responsibility for their right hip difficulties is that they did injure their right hip and pelvic area as a result of the fall on August 16, 2019 as is demonstrated by the medical reporting, and therefore the WCB should accept responsibility for this aspect of the workplace injury.
The worker testified to experiencing pain and weakness on their right side at the pelvis area, radiating into their back. While this has improved over time, the worker continues to experience pain on sleeping on their right side as well as weakness in that side. They noted that physiotherapy helped with their right-sided hip and pelvic symptoms but that the symptoms would worsen with climbing steps or stairs. The worker indicated that they continue to experience a dull pain in this area, making it difficult to sit for long periods of time without adjusting position.
The worker described to the panel their use of crutches following the injury and experiencing excruciating pain for a number of weeks. The worker indicated they could not walk, initially, due to right hip and pelvis area pain. The worker stated that they would still be challenged to climb a ladder or do a barbell squat due to continuing weakness in their right hip versus their left. The worker described a continuing dull pain in the right pelvis area on the side of the hip a few inches below their belt level that is especially evident when lying on that hip but less so when seated. As a result, the worker noted they do lots of stretching to increase their mobility before walking.
The worker indicated that the right hip complaints have never fully resolved since the accident, although the worker has developed and does exercises to assist with symptoms.
With respect to the question of PPI entitlement for their left shoulder injury, the worker noted that there is no evidence of any prior injury and that their doctor is of the view that the shoulder injury is not just degenerative. The worker stated that their left shoulder is permanently injured and they are unable to fully extend their left arm. As a result the worker is unable to return to their pre-accident job duties or to their pre-accident level of activity. The worker believes that their left shoulder is permanently impaired as a result of the workplace injury, and as a result they should be entitled to a PPI award in respect of that impairment.
The worker noted that they have permanent restrictions in place, limiting above shoulder movement. They described being unable, for example, to reach up to change a light bulb, indicating that they are limited in extending their arm forward and up, as well as to the side and up.
In sum, the worker’s position is that evidence supports a finding that the WCB should accept responsibility for their current right hip difficulties as being a consequence of the August 16 2019, and further, that the evidence supports a finding that the worker’s left shoulder is permanently impaired as a result of the workplace accident and therefore the worker should be entitled to a PPI award for the left shoulder injury.
The employer was represented in the appeal by a human resources staff who made a brief oral submission on behalf of the employer. The employer’s representative indicated the employer did not take any position with respect to the questions on appeal. They confirmed that the employer has been able to create a position for the worker that accommodates their continuing restrictions and permits the worker to do meaningful work for the employer.
The worker’s appeal raised two issues for the panel to determine. Although related to the same claim, the questions are discrete and are therefore addressed separately below.
Should the WCB accept responsibility for the worker's current right hip difficulties as being a consequence of the August 16, 2019 accident?
The worker has appealed the WCB decision that their current right hip difficulties are not a consequence of the August 16, 2019 compensable accident and therefore are not the responsibility of the WCB. For the worker’s appeal of this question to succeed, the panel would have to determine that the worker sustained injury to their right hip as a result of the August 16, 2019 accident and that their continuing right hip difficulties relate to that injury. As outlined in the reasons that follow, the panel was able to make such a determination.
The WCB decision that the worker appeals from is outlined in a letter to the worker of July 31, 2020 in which the case manager denied the request for further chiropractic treatment relating to the workplace injury based on the July 10, 2020 opinion provided by the WCB medical advisor. The case manager relied upon information including the medical advisor’s statement that the worker’s “…current restrictions would limit strain to [their] low back as well, but it should be noted that the right hip findings cannot be medically accounted for in relation to the [compensable injury], as they were not present previously and wouldn’t be associated with non-specific low back pain from a year ago.”
The worker takes issue with this particular aspect of the medical advisor’s opinion noting that there is evidence in the medical reporting that the worker did injure their right hip and pelvis area as a direct consequence of the August 16, 2019 workplace accident and further that they continued to experience right hip difficulties through to the time of this WCB decision.
On reviewing the medical and accident reporting, the panel agrees there is evidence to support the worker’s position, including the following:
• The August 20, 2019 chiropractic assessment includes a diagnosis of pelvic strain;
• The worker’s August 22, 2019 statement to the WCB indicates that they landed on the center of their back to their right hip;
• The August 23, 2019 report of the treating family physician to the WCB notes the worker’s complaint of pain in the right back and sacroiliac area;
• The August 28, 2019 physiotherapist assessment noted the worker’s pain mostly on the right side of their low back and buttock area, as well as left-sided shoulder pain, and a bruised left elbow and forearm, and diagnosed a rotator cuff injury and sacroiliac joint sprain;
• The September 5, 2019 report from the treating family physician noted the worker was limping and had tenderness in their right hip and shoulder;
• The November 7, 2019 call-in examination notes of the WCB medical advisor record that the worker’s low back and hip symptoms were resolved; and
• The January 13, 2020 report of the consulting orthopedic surgeon noted that in addition to the worker’s left shoulder injury, they sustained a pelvic injury at the time of the workplace accident.
In light of this evidence, the panel finds it difficult to reconcile the July 10, 2020 statement of the WCB medical advisor that the worker’s right hip findings could not be medically accounted for in relation to the compensable injury “as they were not present previously and wouldn't be associated with non-specific low back pain from a year ago.” We find that the evidence does support that the worker sustained injury to their right hip and pelvic area as a consequence of the August 16, 2019 workplace accident.
The panel considered the possibility the opinion of the medical advisor that the findings “were not present previously” was limited to the period of time following the November 2019 call-in examination and leading up to the more recent reports that the medical advisor had been asked to review. In this regard, the panel noted that despite the statement in the call-in examination notes that the worker’s low back and hip symptoms were resolved, the worker testified that their right hip difficulties continued beyond November 2019. On reviewing the subsequent medical records, we note there is some evidence supporting the worker’s testimony that they continued to experience some symptoms including weakness in these areas, including, specifically, the following:
• On December 9, 2019, the treating physiotherapist noted some weakness in the worker’s low back related to the injury “particularly in rotation.” The physiotherapist recorded negative SI joint kinetic tests and chart notes from indicate the worker’s “Back/pelvis doing fairly well”;
• On January 21, 2020, the physiotherapist noted the worker’s back was gradually feeling better;
• On January 27, 2020, the physiotherapist’s chart notes indicate the worker’s low back as being “a little better still”;
• On February 10, 2020, the physiotherapist noted “lumbar better even though at work”; and
• On February 19, 2020, the physiotherapist noted right hip range of motion of 4/5 on flexion and abduction and 5/5 on extension.
This evidence supports that the worker’s right hip and lumbar symptoms both continued, and continued to demonstrate improvement, through to February 2020. The panel noted the worker was unable to continue with their physiotherapy from late March 2020 to May 2020 due to pandemic-related restrictions although continued to work during this period. There is also evidence of the worker’s further report of right hip symptoms to the treating physiotherapist beginning in June 2020. The physiotherapy charts notes reviewed by the panel indicate:
• On June 4, 2020, the worker’s report of hip pain with sudden movements and lumbar sore after end of day;
• On June 10, 2020, the worker’s low back is sore all the time and right hip movement is assessed at 4/5; and
• On June 24, 2020, “lumbosacral more now – limping” as well as stiff SI joint that was better with treatment.
As of July 8, 2020, the physiotherapist noted in their report to the WCB that the worker reported a worsening of symptoms in their right hip. Their chart notes indicate the worker’s right hip/low back were “feeling worse” and that the worker attributed this to working alone, whereas previously they had more support in their job duties. The July 22, 2020 physiotherapy chart notes indicate the worker was still reporting pain toward their right hip along with increased low back stiffness.
The panel finds that the chart notes and reports from the treating physiotherapist support the worker’s testimony that they continued to experience some degree of right-sided hip and pelvic area mobility issues and symptoms beyond November 2019. We note that this same physiotherapist initially assessed the worker shortly after the injury occurred and treated the worker until July 22, 2020, and at that time, the physiotherapist remained of the opinion that the worker’s continuing right hip area weakness was related to their workplace injury and that the worker had to “be careful” as a result.
We note as well that the assessing chiropractor whose request resulted in the July 10, 2020 medical file review by the medical advisor, assessed the worker on July 9, 2020 and recommended treatment of the worker’s pain in the lower back into their right hip, in relation to the workplace injury.
The panel further noted the lack of evidence before us to suggest that the worker’s right hip complaints beyond November 2019 are related to any pre-existing condition or other cause than the compensable workplace injury of August 16, 2019.
We found the worker to be a credible witness on their own behalf and noted as well the employer’s continuing support of the worker in their ongoing recovery from the compensable injury.
Based on the evidence reviewed and on the standard of a balance of probabilities, the panel is satisfied that the worker sustained injury to their right hip and pelvic area and continued to experience symptoms related to this injury through to July 2020 as a result of the workplace accident of August 16, 2019. In making this finding, the panel does not make any findings or take any position as to the worker’s entitlement, if any, to additional benefits arising out of this determination as that question is not before us.
The worker’s appeal on this question is granted.
Is the worker is entitled to a permanent partial impairment award for their left shoulder injury?
The worker has also appealed the WCB determination that they are not entitled to a permanent partial impairment award for their left shoulder injury. For the worker’s appeal of this question to succeed, the panel would have to determine that the WCB failed to properly assess the degree of permanent impairment of the worker’s left shoulder arising out of the compensable workplace injury and that the worker has sustained a permanent impairment of their left shoulder related to the workplace accident. For the reasons that follow, the panel was able to make such a determination, in part.
The WCB claim file shows that the WCB medical advisor confirmed, in an opinion dated September 11, 2020 that the worker had reached maximum medical improvement in respect of their left shoulder injury and that the restrictions in place at that time should be considered as permanent. On receiving that opinion, the WCB case manager requested the WCB physiotherapy advisor determine the worker’s eligibility for a PPI rating. The WCB physiotherapy advisor provided a response on September 25, 2020, concluding that the worker has a probable major pre-existing condition related to the PPI. The physiotherapy advisor went on to conclude that:
“On review of the complete file there is no ratable PPI related to the compensable injury. This is supported by the following:
- A January 13, 2020 report from the attending surgeon documents full active and passive shoulder mobility.
- A July 8, 2020 physiotherapy report appears to document full shoulder mobility.
- No surgery was done.
- The natural history of the accepted small articular sided partial subscapularis tear is for full recover of active guided range of motion.”
On the basis of this opinion the WCB determined that the worker was not entitled to a PPI award for their left shoulder injury, as outlined in the letter to the worker of October 1, 2020.
The panel notes that Schedule A to the WCB’s Permanent Impairment Rating Policy sets out that the impairment rating for loss of range of motion resulting from direct injury “...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).” The Schedule goes on to clarify that 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. When assessing the range of motion of an upper extremity Schedule A requires the measurement of expected range of motion of the symmetric non-injured side as well as the range of motion of the injured side. The PPI rating is determined on the basis of multiplying the difference between the measured and expected range of motion findings by the maximum impairment rating for that body part as outlined in the Schedule. Where there is a major pre-existing condition related to the PPI, there is a further adjustment to be made in determining the final impairment rating for that body part.
There is no evidence that this process was undertaken or applied in reference to the assessment of the worker’s entitlement to a PPI award for their left shoulder injury. In fact, there is evidence the process was not followed despite the clear Policy imperative that “Measured PPI ratings are determined by a WCB Healthcare Advisor using a specific measurement method according to the Schedule and its appendices.” While the Policy does allow for determination on the basis of the medical information on file, the panel does not find that this would apply where the medical information on file does not explicitly meet the criteria set out in the Schedule, as is the case here.
In reviewing the evidence relied upon by the WCB physiotherapy advisor, the panel notes specifically that they did not reference any evidence of the comparative range of motion of the worker’s right shoulder, did not reference the difference in measurements between the worker’s left and right shoulders, and did not confirm that any measurements relied upon are based upon valid measurement results as required by the Schedule. We also note that the Schedule does not reference the natural history of an injury or the lack of surgery as relevant considerations or criteria in assessing upper body impairment, yet these factors were considered by the physiotherapy advisor. Further, we note that the clinical findings of the attending surgeon from more than 6 months prior to the determination that the worker was at MMI do not include any specific measurements of the worker’s left and right shoulder range of motion, and that the apparent findings of the treating physiotherapist from some 2 months prior which also do not “appear to” provide the comparative detail required by the Schedule.
Based on the evidence before us, the panel is satisfied that the worker's left shoulder permanent impairment has not been properly assessed by the WCB and we therefore return the claim file to the WCB for further adjudication of this question. The worker’s appeal on this question is granted, in part.
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 14th day of January, 2022