WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20170020
OBJECTING PARTY: Worker
REPRESENTED by: Paralegal
RESPONDENT: Employer (Not Participating)
HEARING: Hearing in Writing
DATE: June 23, 2017
ISSUES
The worker is objecting to the following:
The quantum of the permanent disability (PD) award;
Level of employability; and,
Denial of entitlement to an independent living allowance (ILA).
BACKGROUND
On June 24, 1987, this then-25-year old worker’s right arm was crushed while in the course of employment. Operations granted a 60% PD award in December 1988 for a right arm amputation four inches below the elbow. The worker remained with the employer for 18 years until the company closed in September 2001.
The worker experienced overuse of his left elbow while performing contract work with a new employer from February 2002 to November 2002. Operations granted secondary entitlement for the left arm diagnosis of lateral epicondylitis in April 2003. There was no activity in the claim for the period of 2005 – 2013. In May 2013, Operations granted entitlement to treatment related to secondary entitlement for the left elbow/arm injury.
A Case Manager decision letter dated November 9, 2015 confirmed entitlement to total temporary disability benefits effective September 25, 2015 and a referral for a Work Transition (WT) assessment. The left elbow PD rating of 4.5% (including increase and multiple factor or MF) took place on February 9, 2016. The Operations decision letter of February 25, 2016 confirmed a revised PD total award of 64.5%.
The WT Specialist decision of June 1, 2016 authorized a WT plan scheduled for June 13, 2016 to September 2, 2016 for the determined suitable occupation (SO) of Supervisor. In July 2016, the worker indicated his intent to withdraw from the WT plan as he felt that he was unable to work. The PD rating for the left forearm/wrist and thumb took place on July 11, 2016.
Clinical Specialist’s decision
The Clinical Specialist’s decision letter dated August 19, 2016 confirms the PD rating for the left forearm, wrist, hand, and digits. The decision letter outlines a left forearm and wrist PD rating of 1% with arrears to January 20, 2003. The left thumb PD was rated at 1% with arrears to January 10, 2013.
The Clinical Specialist also confirmed that the left wrist PD award would increase to 3% and the left thumb PD award would increase to 2% with arrears to January 8, 2016. The total PD award increased to 72% (60% right arm, 3% left elbow, 3% left wrist, 2% left thumb, 4% MF) with arrears to January 14, 2016.
Case Managers’ decision
The Case Manager decision letter of September 8, 2016 outlines that there is no medical information on file to support total disability. A reconsideration letter dated May 4, 2017 states that the medical information continued to support that the worker remains partially impaired. The Case Manager determined that the worker remained employable.
The Recurrence Case Manager’s decision letter of March 27, 2017 denied ILA entitlement on the basis that the total PD rating was less than the required 100%.
Worker’s position
It is the worker’s position that a 10% PD rating is in order for both the left wrist and left thumb.
The worker submits that if he could return to work he would return to work. The worker presents the view that his transferrable skills are limited to his trade and without significant assistance from the Workplace Safety and Insurance Board (WSIB) he is essentially unemployable.
The worker maintains that the Merits & Justice policy (11-01-03) should apply as a strict application of the ILA policy would lead to an unfair result that the WSIB never intended.
AUTHORITY
The following Operational Policies apply:
17-06-02 Independent Living Allowance
18-07-02 The Ontario Rating Schedule
18-07-10 Pre-1990 Pension Supplements
ANALYSIS
I find for the reasons outlined below that the PD decision of August 19, 2016 is appropriate. I additionally find that the worker is not essentially unemployable and that ILA entitlement is not in order.
Clarification of issues
I acknowledge that the worker representative’s written submission of April 20, 2017 provides arguments regarding the PD award for the left elbow, the SO of Supervisor, and entitlement to section 147(4) supplementary benefits.
I find that the decision letters of February 25, 2016 (PD award decision for the left elbow) and June 1, 2016 (WT plan/SO decision letter) are not properly before me at this time. Specifically, I note that the Objection Intake Team (OIT) Case Manager’s letter of May 9, 2017 does not list either decision letter. Thus, I make no findings with respect to the authorized WT plan/SO.
I recognize that the August 19, 2016 PD decision letter outlines an increase in the left elbow rating from 1% to 3% when summarizing the increase from 69% to 72% with arrears to January 14, 2016. Nonetheless, I note that the prior PD decision letter dated February 25, 2016 also states that the 1% left elbow PD increased to 3% when summarizing the overall PD award increase from 61.5% to 64.5% with arrears to January 14, 2016. Hence, I find that the PD award decision letter dated August 19, 2016 does not contain any new decision specific to the quantum of the left elbow PD award. Accordingly, I make no findings regarding the quantum of the PD rating/award for the left elbow.
Policy 18-07-10 outlines the criteria for payment of section 147(4) supplementary benefits. I note that policy outlines that section 147(4) supplements may be in order depending on a worker’s earning capacity after participating in a WT plan. I note that the worker representative’s argument surrounding entitlement to section 147(4) supplementary benefits includes the submission that the identified SO is not suitable. Therefore, I similarly make no findings regarding entitlement to section 147(4) supplementary benefits on the basis that the issue of the authorized WT plan and/or SO is not properly before me.
For these reasons, I will limit the focus of my review to the issues of the quantum of the PD award for left wrist & thumb, employability, and entitlement to an ILA.
1) Quantum of the permanent disability award
I am in agreement with the PD rating of July 11, 2016 for the left forearm/wrist/hand/digits.
Policy 18-07-02 confirms that the Ontario Rating Schedule (ORS) is used only as a guide for minimum rating levels for specific disabilities. Policy states that in every case emphasis is placed on the individual factors being appraised and appropriate allowances are made.
The worker representative submits that 10% PD ratings would be appropriate for both the left wrist and left thumb. It is also suggested that Operations viewed the ORS rating levels as maximal, not minimal amounts.
Left forearm/wrist
The worker representative argues that the ORS provides a minimum rating level for complete immobility of the wrist of 12.5%. It is presented that since the worker’s range of motion is reduced by 75%, a 10% PD rating would more adequately reflect the level of disability.
I find that the earliest medical evidence of left forearm and wrist complaints is the chiropractor’s March 15, 2003 report diagnosing left lateral epicondylitis and indicating symptoms dating back to January 20, 2003. The chiropractor’s report dated June 18, 2003 confirms that the worker recovered full range of motion and strength in the left forearm and wrist. I note that the chiropractor’s discharge report of January 10, 2013 documents 100% left wrist range of motion and that left wrist extensor strength was within normal limits. However, the treatment discharge report dating from January 2016 documents radial deviation that was 75% of full range of motion with decreased left wrist strength.
I observe that the ORS provides a 12.5% rating for immobility of the wrist. As outlined above, I note that there are medical reports confirming full range of motion and that normal wrist strength was documented on January 10, 2013. Therefore, I accept that a 1% rating is appropriate with arrears back to January 20, 2003 as this is the date that the March 15, 2003 chiropractor’s report for a re-opened claim indicates the worker was unable to perform modified duties. Similarly, I find that an increase of 2% (for a wrist rating of 3%) is in order with arrears to January 8, 2016 given the documented decrease in strength and range of motion.
Left thumb
The worker representative submits that the worker’s left thumb range of motion is extremely limited with severe pain even with minimal use. It is highlighted that amputation of the left thumb would have a minimal rating of 20% and that the ORS provides a rating of 7.5% for ankyloses (total immobility) of both joints of the thumb.
The PD rating assessment of July 11, 2016 notes that the ORS does not provide ratings for CMC joints. Instead, the Clinical Specialist indicates that policy 18-07-02 provides a rating for the amputation or total loss of the thumb. I observe that while policy 18-07-02 does have a section referring to immobility of the thumb, policy indicates using a value which is proportional to the disability rating for amputation.
I accept that the chiropractor’s referral note of January 10, 2013 is the first documentation of left thumb pain. In particular, I note that x-rays were recommended for the left thumb. The x-ray performed on January 11, 2013 showed mild to moderate degenerative changes at the first CMC joint.
I observe that the ORS provides a 20% rating for amputation of the thumb including the metacarpal. Amputation of both phalanges is 15% while one phalanx is 10%. Immobility of both joints of the thumb has a provided rating of 7.5% while the distal joint has a listed rating of 2.5%.
In this case, I accept that the left thumb rating relates to reduced range of motion (not immobility or ankyloses) of a single joint (the first CMC joint) which has mild to moderate degenerative changes. Therefore, I am not persuaded that the left thumb rating should be greater than 2.5%. Accordingly, I accept that the 1% rating with arrears to January 10, 2013 is appropriate.
I note that x-ray dated January 8, 2016 identified severe first CMC degenerative change with near complete obliteration of the joint space. The discharge report of January 2016 indicates that left thumb abduction was approximately 75% of full. Therefore, I find that an increase to a rating of 2% is in order with arrears to January 8, 2016.
Total PD rating as of the date of the August 19, 2016 decision letter
I accept that the total PD rating of 72% is appropriate. The previous PD decision letter of February 25, 2016 confirmed a 64.5% PD award consisting of 60% right arm, 3% left elbow, and 1.5% MF with arrears to January 14, 2016.
Policy 18-07-02 confirms that a bilateral disability (for example both hands) is determined by adding the disabilities of the individual limb parts plus half the value of the lesser disability. The worker representative suggests that a MF of 5% (50% of the requested 10% rating) is in order.
As discussed above, I find that the quantum of the left elbow PD rating is not properly before me. I find that by applying policy 18-07-02, the lesser limb percentage must reflect the left side since the right arm was rated at 60%. Therefore, I accept that the MF is to be determined by adding the left-sided ratings and then halving the result.
The following chart lists the dates and ratings provided in the decision letter of August 19, 2016. I have included the subtotal in order to verify the appropriate MF rating:
Arrears date
Left elbow
Left wrist
Left thumb
Subtotal
MF (50% of subtotal)
January 20, 2003
1%
1%
2%
1%
January 10, 2013
1%
1%
1%
3%
1.5%
January 8, 2016
1%
3%
2%
6%
3%
January 14, 2016
3%
3%
2%
8%
4%
Therefore, I accept that the Clinical Specialist’s determination of a 72% PD award with arrears to January 14, 2016 is appropriate (60% right arm, 3% left elbow, 3% left wrist, 2% left thumb, and 4% MF for a total of 72%).
2) Level of impairment and employability
I am not persuaded that the worker is essentially unemployable.
On June 3, 2016, the worker expressed concern to the WT Specialist regarding his ability to work at all. The worker indicated to the Case Manager on June 15, 2016 that he felt that he could not return to work at that time. On July 25, 2016, the worker indicated his intention to withdraw from employment placement services as he viewed himself to be unable to work.
The worker representative submits that one of the worker’s most disabling injuries on the left side is his severe thumb carpometacarpal (CMC) joint arthritis. The worker representative argues that the worker is unable to grip a pen or a piece of paper, or perform any activity with his left thumb without experiencing severe shooting pain. The argument is presented that the worker’s prosthetic is not advanced enough that the worker can use it to button his shirt or zip/unzip his pants.
I appreciate the worker representative’s arguments regarding the worker’s prosthetic and left thumb. The worker informed the Case Manager on July 26, 2016 that he cannot do much with his right arm prosthetic and hook. While the worker confirmed he received a bionic hand in 2013, the worker explained that it is too heavy and causes pain when he wears it over one hour.
New Myoelectric prosthesis
The worker underwent a comprehensive assessment at the WSIB Amputee Speciality Clinic on May 27, 2013. The corresponding report dated May 30, 2013 confirms that the worker was assessed by a physiatrist, nurse clinician, and occupational therapist (OT). The report confirms that the functional benefits of a myoelectric prosthesis are very large compared to the worker’s old device.
The May 30, 2013 report documents that the worker had a myoelectric prosthesis that is at least 10 years old and in “near perfect shape”. The device was described as a traditional style three-jaw chuck myoelectric hand with a cosmetic glove finish. According to the report, the worker essentially only wore it to go out to functions. The utility of the hand was described as being very limited because of the single application. The Speciality Clinic noted that the worker no longer uses this prosthesis due to the limited utility and excessive weight. Additionally, the report documents that there is no lack of motivation or ability on the worker’s part to use a myoelectric prosthesis in the future.
The Speciality Clinic confirmed that a new myoelectric prosthesis with articulating fingers and hands, with the provision for multiple different grip positions, represents a dramatic improvement of the myoelectric prosthesis the worker previously had. The report confirms that the worker would be able to do fine tasks with pincer grasp and extend a single finger to push buttons. The functional benefits of using a new myoelectric prosthesis were described as being very large compared to the worker’s old device.
I observe that the Speciality Clinic report of May 30, 2013 also noted that changing to a myoelectric prosthesis would allow switching back to some more bimanual tasks either in the workplace or home and therefore diminish the likelihood of additional or future left-sided upper extremity issues. The Speciality Clinic suggested that the ability to use a myoelectric prosthesis on the right would increase the available options for job reassignments.
Operations granted entitlement to a myoelectric device in July 2013. The worker participated in a follow-up assessment at the Speciality Clinic on September 23, 2013. The report dated October 1, 2013 indicates that the worker was able to try the myoelectric prosthesis on September 10, 2013 and was able to operate the device with excellent control. Therefore, I am not persuaded that the new myoelectric prosthesis was too heavy to use.
Left thumb
With respect to the left thumb, I observe that a specialist report dated August 16, 2016 recommended a custom-moulded thumb brace. I note that Operations authorized the thumb brace on August 26, 2016. Further, a report from the Hand & Upper Limb Clinic (HULC) dated October 18, 2016 confirmed that the worker had full range of motion of the wrist and fingers with the exception of reduced range of motion in the thumb. The report states that while surgery would relieve a lot of the pain from the left thumb CMC arthritis, it would likely not allow the worker to return back to the factor in the position which he held.
Partial impairment
In my view, the worker remains partially impaired even with a total PD award of 72%.
For example, I am not persuaded that the worker is essentially unemployable given Operation’s authorization of both the new myoelectric prosthesis and custom left thumb brace. Moreover, while I appreciate that the worker may not be able to return to his prior position within a factory, I find that there is insufficient medical evidence that he is totally disabled. Hence, I find that the worker is partially impaired and able to perform suitable duties within his functional abilities.
3) Independent living allowance
I find that entitlement to an ILA is not in order.
Policy 17-06-02 outlines that severely impaired workers are entitled to an annual ILA. Policy defines ‘severely impaired’ as a PD benefit totalling at least 100%.
The worker representative cites policy 11-01-03 which allows for rare cases where the application of relevant policy would lead to an absurd or unfair result that the WSIB never intended. Policy 11-1-03 requires decision-makers to clearly identify the exceptional circumstance and explain why the relevant policy is not applicable. The worker representative suggests that the worker has minimal use of his upper extremities which impacts most activities of daily living.
I do not accept that this particular case represents an exceptional circumstance where the application of 17-06-02 would lead to an unfair result that the WSIB never intended. As outlined above, I observe that Operations granted entitlement to both a myoelectric prosthesis as well as a custom-moulded left thumb brace. Therefore, I find that policy 11-01-03 is not applicable to this particular case. As a result, I accept that the current PD award of 72% does not meet the policy threshold for entitlement to an ILA.
CONCLUSION
I conclude the following:
The quantum of the permanent disability (PD) award for the left forearm, wrist, hand, and digits is confirmed.
The worker is partially disabled and employable within his functional abilities.
Entitlement to an independent living allowance (ILA) is not in order.
The worker’s objection is denied.
DATED June 23, 2017
K. MacMillan
Appeals Resolution Officer
Appeals Services Division