DECISION NUMBER:
20230005
OBJECTING PARTY:
WORKER
REPRESENTED by:
SELF
RESPONDENT:
EMPLOYER (NOT PARTICIPATING)
REPRESENTED by:
N/A
HEARING:
HEARING IN WRITING
HEARD by:
J.L. HUGHSON, APPEALS RESOLUTION OFFICER
DATED:
OCTOBER 20, 2022
ISSUES
The worker objects to the non-economic loss (NEL) Clinical Specialist’s decision dated February 17, 2022, which awarded the worker an 8% NEL award in recognition of their bilateral shoulders permanent impairment.
BACKGROUND
On July 22, 2018, this right-hand dominant Police Sergeant was attempting to arrest a subject who actively resisted and had to be grounded. On July 26, 2018, the worker’s claim was allowed for initial entitlement to health care benefits for injuries to both shoulders as well as their right hand.
The worker underwent surgery on September 26, 2019, for their right shoulder. In the CM’s decision of September 26, 2019, they allowed the worker’s claim for entitlement to benefits for bilateral supraspinatus tears, labrum tears and subacromial bursitis. They did not allow entitlement to benefits for degenerative changes in the right acromioclavicular (AC) joint. The CM also allowed the worker’s claim for entitlement to benefits for right shoulder surgery.
In the CM’s decision dated August 17, 2020, they allowed the worker’s claim for entitlement to left shoulder surgery to treat the worker’s compensable subacromial bursitis, supraspinatus and labrum tears. The worker underwent this surgery on September 10, 2020.
As noted in the letter dated February 9, 2022, the worker achieved maximum medical recovery (MMR) as of December 7, 2021. In their decision dated February 17, 2022, the NEL Clinical Specialist rated the worker’s work-related permanent impairment at 8% for both shoulders.
The worker objects to the decision dated February 17, 2022, and this issue is now before me.
AUTHORITY
Operational Policy Manual
Published
18-05-03 Determining the Degree of Permanent Impairment
November 3, 2014
American Medical Association’s Guides to the Evaluation of Permanent Impairment, 3rd Edition, Revised
Administrative Practice Document: Permanent impairment rating guidelines for acromioplasty, repetitive strain injuries and splenectomy, reviewed December 2020
The above-noted policy version was in effect as of the date of the decision under appeal.
ANALYSIS
I find the worker’s NEL benefit remains rated at 8% for their whole person impairment. I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision.
In their submission, the worker stated their NEL benefit should have been rated higher considering the impact their injuries will have on the rest of their life. The worker noted that, due to their injuries and subsequent surgeries, they were no longer able to remain on the specialized Emergency Response Team (ERT), a position they loved. The worker had to adjust their fitness training forever. The worker missed three years of being able to play with, pick up, and carry their children when they were younger, noting that their children are now beyond the time of their lives when these activities are possible. The worker can no longer sleep comfortably and soundly, and their arms constantly fall asleep, with the sensation of pins and needles throughout the night. Finally, the worker described that they own a hobby farm with their spouse, and the worker is limited in their strength and flexibility in completing chores.
The employer did not indicate they would participate in this appeal, and did not provide a submission on this issue.
The NEL award is intended to compensate workers for the effects of the permanent impairment other than those associated with a wage loss, health care costs, and rehabilitation costs. The award is payable whether the worker suffers any wage loss as a result of the injury.
To rate permanent impairments, the WSIB uses the prescribed rating schedule and all relevant medical reports on file. The prescribed rating schedule is the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 3rd Edition, Revised (AMA Guides).
In order to determine if the worker’s NEL has been calculated correctly, I must consider policy 18-05-03, Determining the Degree of Permanent Impairment, which states, in part, that
A worker who has a work-related permanent impairment is entitled to a non-economic (NEL) benefit based on the degree of his/her work-related permanent impairment determined by the decision-maker. The decision-maker uses a prescribed rating schedule, all relevant health care information in the claim file and, if required, a report from an independent medical assessment, to determine the degree of permanent impairment.
Although the NEL Clinical Specialist indicated in the NEL rating sheet, dated February 17, 2022, that they had relied upon a medical report dated January 22, 2022, this was in fact the physiotherapist’s discharge report, dated November 18, 2021. I agree with the NEL Clinical Specialist’s decision to rely upon the findings from this report when determining the worker’s abnormal ROM values, as they are the most
up-to-date ROM values at the time of the worker’s MMR date, December 7, 2021. This report provided the following range of motion (ROM) values for both shoulders:
Right Shoulder
Left Shoulder
Planes of Motion
Degree of measurement
Impairment: AMA Guides
Planes of Motion
Degree of measurement
Impairment: AMA Guides
Flexion
160°
1%
Flexion
160°
1%
Extension
Not given
0%
Extension
Not given
0%
Abduction
160°
1%
Abduction
160°
1%
Adduction
Not given
0%
Adduction
Not given
0%
Internal rotation
Reach to T8
0%
Internal rotation
Reach to T7
0%
External
rotation
80°
0%
External
rotation
50°
1%
Total for abnormal ROM:
2%
Total for abnormal ROM:
3%
The worker’s extension and adduction values for both shoulders were appropriately rated as a 0% impairment, as no measurement was provided, indicating no impairment exists. These findings resulted in a total 2% impairment for the worker’s right shoulder abnormal ROM values, and a total 3% impairment for their left shoulder abnormal ROM values, as provided in figures 38, 41, and 44 of the AMA Guides.
I note that the NEL Clinical Specialist appears to have transposed their ratings for the right and left shoulder in their rating sheet. They calculated the worker’s abnormal ROM values for the right shoulder as 3%, and the left shoulder as 2%. Further, as I will describe below, although the worker’s left shoulder surgery was the more complicated of the two, they rated the left shoulder surgery as 10%, and the right shoulder surgery as 12%. This did not result in an error in the NEL Clinical Specialist’s mathematical determination of the worker’s NEL rating in this claim, but for the purposes of completing my review, and for future decision making, it is important to highlight that the ratings of the two shoulders are effectively reversed in the NEL rating sheet.
The Administrative Practice Document, Permanent impairment rating guidelines for acromioplasty, repetitive strain injuries and splenectomy, identifies that the AMA Guides do not provide a percentage value for the rating of surgeries to the acromioclavicular (AC) joint, and there is no other upper extremity joint disorder or surgery which could be used as an accurate analogy in reference to the AC joint.
However, the AMA Guides do allow for a discretionary rating where the severity of the clinical findings does not correspond to the true extent of the musculoskeletal defect. In the absence of a closer analogy for rating AC joint surgeries, the WSIB established a rating guideline to promote consistency and fairness in the rating of surgeries to the AC joint. The administrative practice document goes on to state, in part, that
Using a discretionary rating, an acromioplasty, including distal clavicle resection, will be rated at 10 per cent for the upper extremity impairment. This value would be combined with other
impairment values, such as range of motion loss and would then be reduced to a whole person impairment (WPI) percentage…
Any shoulder surgery that meets the definition of impairment in the AMA Guides and is more invasive than an acromioplasty but does not involve major alteration of the GH joint will be rated at 12 per cent for the upper extremity impairment. This would also be combined with other impairment values and then reduced to a whole person impairment (WPI) percentage.
The worker underwent right shoulder surgery on September 26, 2019. As noted in the operative report, this surgery included arthroscopy, biceps tenodesis supra pectoral, subacromial decompression and partial excision of the coracoacromial ligament. The NEL Clinical Specialist rated this as a 12% impairment; however, as noted above, this was meant to be their rating for the left shoulder.
The worker underwent left shoulder surgery on September 10, 2020. As noted in the operative report, this surgery included arthroscopy, biceps tenodesis supra pectoral, subacromial decompression with acromioplasty and a partial excision of the coracoacromial ligament, and distal clavicle dissection. The NEL Clinical Specialist rated this surgery as a 10% impairment; however, as noted above, this was meant to be their rating for the right shoulder.
As indicated in the administrative practice document excerpt above, a rating of 12% is given in cases where a surgery is more invasive. Although the NEL Clinical Specialist actually rated the worker’s right shoulder as 10%, I find that 12% is the appropriate rating for the worker’s right shoulder. In addition to the worker’s right acromioplasty, the worker had biceps tenodesis with an anchor. I find the worker’s left shoulder surgery should also be rated as 12%, as the worker’s left shoulder surgery included acromioplasty with distal clavicle dissection and biceps tenodesis with an anchor.
Although the worker stated in their submission for this appeal that both of their arms constantly fall asleep, and they have a pins and needles sensation throughout the night, there is no indication that the worker has neurological deficits as a result of their compensable shoulders injuries. The worker was assessed by a neurologist on September 27, 2021, when they underwent EMG testing. In the report from this assessment, the neurologist diagnosed the worker with Carpal Tunnel Syndrome (CTS) in both wrists, but there was no evidence of cervical radiculopathy or brachial plexopathy. The worker was reassessed by the neurologist on January 25, 2022, when they again had EMG testing. The neurologist noted that the worker continued to have CTS in both wrists. There was no indication of any neurological deficits as a result of the worker’s compensable shoulders injuries.
While I acknowledge the impact of the worker’s injuries on their life, policy 18-05-03, Determining the Degree of Permanent Impairment, identifies that the NEL benefit must be calculated based upon a prescribed rating schedule, which is the AMA Guides. The AMA Guides do not contain a provision for including the impact of this type of injury on the worker’s life, like missed activities or experiences during recovery, or inability to perform activities they were able to complete prior to the workplace injury.
Because of this, there is no method supported by policy to rate the worker’s permanent impairment beyond that already used within this decision.
For the worker’s right shoulder, in combining their 2% abnormal ROM impairment with their 12% other impairment, using the Combined Values Chart in the AMA Guides, the result is 14%. For the worker’s left shoulder, in combining their 3% abnormal ROM impairment with their 12% other impairment as a result of their surgery, the result is 15%. When rating a permanent impairment of the upper extremity, the AMA Guides provide Table 3, which outlines the relationship of the impairment of the upper extremity to the
whole person. According to this table, the worker’s right shoulder impairment is an 8% whole person impairment. The worker’s left shoulder impairment is a 9% whole person impairment.
The worker previously received a 9% NEL benefit for their left shoulder under a different claim.
Policy 18-05-03, Determining the Degree of Permanent Impairment, states in part that if a worker with a pre-existing NEL benefit has a new injury that results in an increased impairment to the same area of the body, the decision-maker determines the second NEL benefit by
rating the total impairment to the area, and
subtracting the existing NEL rating from the total rating…
As the worker’s previous NEL benefit for their left shoulder was 9%, and their total impairment for their left shoulder in this claim is 9%, this results in a 0% NEL benefit for the worker’s left shoulder in this claim.
As per the AMA Guides, when a worker receives NEL benefits resulting from more than one area of injury, these benefits must be combined, not added. Combining the worker’s 0% NEL benefit for their left shoulder with their 8% NEL benefit for their right shoulder results in an 8% NEL benefit for their whole person permanent impairment.
Given the above, I find the NEL rating of 8% for the worker’s whole person permanent impairment is consistent with the medical evidence and the AMA Guides, as required in policy 18-05-03.
CONCLUSION
The worker’s objection is denied.
The worker’s NEL award remains 8%.
DATED October 20, 2022
J.L. Hughson
Appeals Resolution Officer Appeals Services Division