DECISION NUMBER: 20230143

OBJECTING PARTY: WORKER

REPRESENTED by: WORKER REPRESENTATIVE

RESPONDENT: EMPLOYER

REPRESENTED by: EMPLOYER REPRESENTATIVE

HEARING: HEARING IN WRITING

HEARD by: S. JOHNSON, APPEALS RESOLUTION OFFICER

DATED: NOVEMBER 20, 2023

ISSUE

The worker objects to the Case Manager’s decision letter dated November 16, 2022 that concluded the worker reached maximum medical recovery on July 5, 2022 for their right elbow biceps tendon insertion strain with no evidence of a permanent impairment.

BACKGROUND

On September 21, 2021, this form setter attempted to lift steel plates overhead when they felt a sudden onset of right arm pain.

Initial entitlement to health care benefits was allowed for a right elbow biceps tendon insertion strain. The worker did not lose time from work and returned to work to their pre-injury work duties with accommodation.

The worker participated in extensive medical treatment programs that included community-based chiropractic treatment from September 30, 2021 to December 23, 2021 and physiotherapy treatment at the WSIB Upper Extremity Specialty Program Enhanced Functional Treatment Program from February 3, 2022 to July 5, 2022. On July 5, 2022, the physiotherapist discharged the worker from the Enhanced Functional Treatment Program with permanent restrictions.

In a decision letter dated November 16, 2022, the Case Manager concluded the worker reached maximum medical recovery on July 5, 2022 for their right elbow biceps tendon insertion strain with no evidence of a permanent impairment based on normal ranges of motion at the time of discharge from the WSIB Upper Extremity Specialty Program Enhanced Functional Treatment.

This is the issue for determination.

AUTHORITY

Operational Policy Manual

Published

11-01-05 Determining Permanent Impairment

November 3, 2014

Section 18(2), Ontario Regulation 175/98 – Workplace Safety and Insurance Act

ADMINISTRATIVE PRACTICE DOCUMENT

Permanent Impairment Rating Guidelines for Acromioplasty, Repetitive Strain Injuries and Splenectomy, published December 2020

ANALYSIS

I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision.

I find the worker reached maximum medical recovery on July 5, 2022 with evidence of a permanent impairment in their work-related right elbow biceps tendon insertion strain injury.

The OPM Document No. 11-01-05 – Determining Permanent Impairment – states a work-related impairment is considered permanent when it continues to exist after maximum medical recovery has been reached. A recovery from the work-related injury/disease is considered to have been made if there is no evidence of an ongoing work-related impairment at the time maximum medical recovery is reached. This policy provides the following definitions:

Impairment means a physical or functional abnormality or loss, including disfigurement, which results from an injury and any psychological damage arising from the abnormality or loss.

Maximum Medical Recovery means that a plateau in recovery has been reached and it is not likely that there will be any further significant improvement in the work-related injury/disease.

Permanent Impairment means impairment that continues to exist after the worker reaches maximum medical recovery.

In determining when maximum medical recovery is reached in all cases, the decision-maker considers whether:

• recent clinical evidence indicates any change in the work-related injury/disease,

• the worker is receiving or will receive treatment that is likely to improve the work-related injury/disease, or

• the worker is receiving treatment or using medication to maintain the current level of recovery.

Worker Representative Submission:

In a submission attached to the Appeal Readiness Form dated August 10, 2023, the worker representative relied on the WSIB Upper Extremity Specialty Program Enhanced Functional Treatment Discharge Report dated July 5, 2022 that documented the worker requires permanent restrictions for their work-related right elbow biceps tendon injury. In this report, the worker was functioning at a light to medium physical demands capacity level and required permanent restrictions that included avoid heavy lifting, pushing, pulling, limitation on tool use, avoid repetitive tasks and requires five-minute micro-breaks every hour.

Employer Submission:

In the Respondent Form dated October 27, 2023, the employer representative had no additional information or submission to add for my review and consideration.

Findings:

There is no dispute this worker’s case fits squarely within the definition of maximum medical recovery in the OPM Document No. 11-01-05 – Determining Permanent Impairment. In coming to this conclusion, I relied on the WSIB Upper Extremity Specialty Program Enhanced Functional Treatment Discharge Report dated July 5, 2022 that opined the worker did not experience any change in their right elbow biceps tendon insertion strain injury and did not require active medical treatment plans or interventions that will likely improve their condition.

The issue to be resolved is whether the worker experienced a physical or functional abnormality or loss arising from their right elbow biceps tendon strain injury after they reached maximum medical recovery on July 5, 2022 in accordance with the definitions of impairment and permanent impairment in the OPM Document No. 11-01-05 – Determining Permanent Impairment. I find these conditions have been met.

I agree with the worker representative’s position the worker reached maximum medical recovery for their right elbow biceps tendon insertion strain injury on July 5, 2022 with evidence of a permanent impairment. In support of this finding, I accord the greatest amount of weight to the WSIB Upper Extremity Specialty Program Enhanced Functional Treatment Discharge Report dated July 5, 2022 that documented the following:

• pain is aggravated by repetitive motions involving the elbow, especially utilizing a hammer at work with repetitive gripping, elbow movement and vibration

• duration and severity of flare-ups of pain have decreased further

• despite improvement, aggravation with repetitive and forceful work persists

• Yergason’s and Speed’s test were positive for biceps tendon sprain

• Permanent functional restrictions include:

o lifting up to 35 lbs occasional basis (light to medium DOT PDC)

o lifting waist to shoulder 5-10 kg (light)

o lifting above shoulder 5-10 kg (light)

o pushing and pulling 10-20 kg occasional basis (medium)

o ladder climbing 1-3 steps occasional basis

o low-end occasional bending, twisting repetitive movement of right elbow

o limit repetitive and sustained gripping of the right hand to low-end occasional basis

o exposure to arm/right forearm vibration

o pace activities and take five minute micro-breaks every hour for stretching and symptom management

The team of medical experts at the WSIB Upper Extremity Specialty Program are the worker’s primary health care professionals and in the best position to provide a medical opinion about their recovery outcome. They had the opportunity to assess and treat the worker at regular intervals during the period they attended the WSIB Upper Extremity Specialty Program from February 3, 2022 to July 5, 2022. The medical reports are objective, balanced and based on an accurate and complete understanding of the worker’s recovery and treatment recommendations at each clinic visit.

I acknowledge the worker’s right elbow ranges of motion documented in the WSIB Upper Extremity Specialty Program Enhanced Functional Treatment Discharge Report dated July 5, 2022 were essentially normal with pain in the right elbow at the biceps insertion on flexion. Despite these findings, the team of medical experts concluded the worker experienced flare-ups with repetitive movements and required permanent functional restrictions.

I note the normal ranges of movement in the worker’s right elbow region would yield a 0 percent impairment rating in accordance with the AMA Guides, 3^rd edition. It is instructive that, where the prescribed rating scheduled (the AMA Guides, 3^rd edition) does not provide for an impairment,

Section 18(2), Ontario Regulation 175/98 of the Workplace Safety and Insurance Act (WSIA) directs the use of criteria in the prescribed rating schedule for the body parts, systems or functions which are most analogous to the condition of the worker. Where there is no close analogy in the prescribed rating schedule or where the application of the prescribed rating schedule would result in an unfair assessment of the worker’s impairment, the WSIB established the Administrative Practice Document entitled Permanent Impairment Rating Guidelines for Acromioplasty, Repetitive Strain Injuries and Splenectomy, published December 2020 to determining the degree of impairment in these cases.

I am of the view the most appropriate mechanism to rate the worker’s right elbow biceps tendon insertion strain injury is the Administrative Practice Document entitled Permanent Impairment Rating Guidelines for Acromioplasty, Repetitive Strain Injuries and Splenectomy, published December 2020. In using this document, I note the worker’s right elbow biceps tendon insertion strain injury arose from a disablement basis due to an unexpected result of their regular work duties. The case record documents the worker experienced right arm pain while performing their regular work duties lifting steel plates overhead with a co-worker. I also find the AMA Guides would result in an unfair assessment of the worker’s right elbow biceps tendon insertion strain impairment.

While the Administrative Practice Document entitled Permanent Impairment Rating Guidelines for Acromioplasty, Repetitive Strain Injuries and Splenectomy, published December 2020 is not a binding policy document, it provides the decision-maker with permanent impairment rating guidelines for repetitive strain injuries with no clinically documented restrictions in ranges of motions. This document states, in relevant part:

The AMA Guides indicate that to determine the degree of permanent impairment resulting from RSIs, the injured person should have worked for six to eight hours at the job that led to the RSI prior to attending a medical assessment. The expectation is that, after having used the extremity for this prescribed period of time, the assessment would more accurately capture the resulting symptoms. However, noting the diverse and unique situations of injured people and employers, as well as scheduling issues with health care professionals, such an arrangement is generally not viable or realistic.

Therefore, if the injured person attends a medical assessment(s) without having used the extremity for a prolonged period of time, or just if the limb has not been active, there is a possibility that rating parameters, such as decrease in range of motion may be within normal limits.

According to the AMA Guides, the degree of impairment in these cases would be 0 percent.

I find the facts and circumstances in this worker’s case mirror the guidelines set out in the Administrative Practice Document entitled Permanent Impairment Rating Guidelines for Acromioplasty, Repetitive Strain Injuries and Splenectomy, published December 2020. This worker was in active medical treatment and performing suitable work duties at the time of discharge from treatment with permanent functional restrictions on July 5, 2022. They did not use the right arm for a prolonged period to capture their physical or functional deficits in the right elbow region. In my view, the application of the prescribed rating schedule (the AMA Guides, 3^rd edition) using the ranges of movement documented in the WSIB Upper Extremity Enhanced Functional Treatment Discharge Report dated July 5, 2022 would result in an unfair assessment of the impairment in the worker’s right elbow biceps tendon insertion strain injury.

I find the threshold criteria in the OPM Document No. 11-01-05 – Determining Permanent Impairment – have been established. The weight of the medical evidence supports the worker reached maximum medical recovery on July 5, 2022 with evidence of a permanent impairment arising from their right elbow biceps tendon insertion strain injury requiring permanent restrictions. I also accept the permanent restrictions for the worker’s right elbow biceps tendon insertion strain injury detailed in the WSIB Upper Extremity Enhanced Functional Treatment Discharge Report dated July 5, 2022 are the responsibility of this claim.

CONCLUSION

I conclude the worker reached maximum medical recovery on July 5, 2022 with evidence of a permanent impairment arising from their right elbow biceps tendon insertion strain injury.

I direct the Case Manager to refer the worker’s case to the Non-Economic Loss (NEL) Clinical Specialist to determine the degree of impairment arising from the worker’s right elbow biceps tendon insertion strain injury using the RSI Rating Schedule for Upper Extremity in the Administrative Practice Document entitled Permanent Impairment Rating Guidelines for Acromioplasty, Repetitive Strain Injuries and Splenectomy, published December 2020.

I also direct the NEL Clinical Specialist to communicate the results of the NEL rating assessment to all workplace parties in writing, subject to the usual right of appeal.

I remit all benefits flowing from this decision to the Case Manager for review and adjudication. The worker’s objection is allowed.

DATED November 20, 2023

S. Johnson

Appeals Resolution Officer Appeals Services Division