Workplace Health, Safety & Compensation Review Division

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1 Workplace Health, Safety & Compensation Review Division WHSCRD Case No: WHSCC Claim No: Decision Number: Marlene A. Hickey Chief Review Commissioner The Review Proceedings 1. The hearing of the review application was held at the Review Division office in Mount Pearl, NL on February 24, The worker attended the hearing and was represented by Tom Osborne, MHA. 2. Neither the Commission nor the accident employer attended or participated in the hearing process. Introduction 3. On May 13, 2011 the worker filed a Form 6, Worker s Report of Injury for nonspecific, repetitive strain injuries to both wrists which she related to her employment as a mail processing clerk. The diagnosis for the right wrist was repetitive strain injury. Physiotherapy was prescribed. The claim was accepted in relation to the right wrist symptoms only. The left wrist symptoms were not accepted as compensable. 4. Between May 4 and July 2, 2012 the worker participated in a Clinic-Based Occupational Rehabilitation program. 5. On April 25 and 26, 2013 the worker participated in a functional assessment which found her capable of part-time work at a sedentary level of strenuousness. The assessment report is dated May 15, A July 24, 2013 labour market re-entry report identified suitable return to work options. 7. On December 10, 2013 the worker was assessed for a permanent functional impairment award by the Commission s medical consultant. 8. A January 8, 2014 client services assistant s decision advised the worker of her entitlement to a total impairment rating of 1% and the associated minimum monetary award of $1,000. The worker appealed. 1

2 9. The October 29, 2014 internal review decision upheld the client services assistant s decision. It is this decision the worker is appealing before the Review Division. Issue 10. The worker is requesting a review of a decision of the Commission dated October 29, The worker is requesting I find the Commission erred in determining her whole person, permanent functional impairment rating for her right wrist and elbow is 1%. Outcome 12. The decision of the Commission dated October 29, 2014 is confirmed. The worker s permanent functional impairment rating is maintained at 1%. With respect, the review is denied. Legislation and Policy 13. The jurisdiction of the Chief Review Commissioner is outlined in the Workplace Health, Safety and Compensation Act (the Act), Sections 26(1) and (2), 26.1 and 28 which state, in part: Review by review commissioner 26(1) Upon receiving an application under subsection 28(1) a review commissioner may review a decision of the commission to determine if the commission, in making that decision, acted in accordance with this Act, the regulations and policy established by the commission under subsection 5(1) as they apply to (a) (a.1) (b) (c) (d) (e) compensation benefits; rehabilitation and return to work services and benefits; an employer's assessment; the assignment of an employer to a particular class or group; an employer's merit or demerit rating; and the obligations of an employer and a worker under Part VI. (2) An order or decision of a review commissioner is final and conclusive and is not open to question or review in a court of law and proceedings by or before a review commissioner shall not be restrained by injunction, 2

3 prohibition or other process or proceedings in a court of law or be removable by certiorari or otherwise in a court of law. Review commissioner bound by policy 26.1 A review commissioner shall be bound by this Act, the regulations and policy. Application to a review commissioner 28(1) A worker, dependent or an employer, either personally or through an agent acting on their behalf with written consent, may apply to the chief review commissioner for the review of a decision as referred to in subsection 26(1), within 30 days of receiving the written decision of the commission. (2) A review commissioner shall not review a decision under subsection (1) except in accordance with subsection 26(1). (4) A review commissioner to which a matter has been referred for review shall (a) (b) notify the person seeking the review and the commission of the time and place set for the review; and review the decision of the commission and determine whether it was in accordance with this Act, the regulations and policy. (4.1) Where a review commissioner determines that the decision of the commission was in accordance with this Act, the regulations and policy, he or she shall confirm the decision of the commission. (4.2) Where a review commissioner determines that the decision of the commission was not in accordance with this Act, the regulations and policy, he or she shall identify how the decision of the commission was contrary to this Act, regulations and policy, specify the contravened provision, set aside the decision of the commission and (a) (b) make a decision which is in accordance with this Act, regulations and policy; or where it is appropriate to have a new decision from the commission, refer the matter to the commission for a new decision with or without direction on an appropriate remedy. 3

4 14. Other relevant sections considered are Sections 19(1), 60(1) and 73 of the Act, along with Policy EN-01: Permanent Functional Impairment. The sixth edition of the American Medical Association s Guides to the Evaluation of Permanent Impairment was also considered. Relevant Submissions and Positions 15. Mr. Osborne provides background information on the claim, noting that the worker has been compromised in her ability to manage her workers compensation claim. In addition to having a very limited understanding of the workers compensation system, and having lacked representation for most of the duration of the claim, the worker has also experienced a very challenging time with a diagnosis of breast cancer and chemotherapy treatment. Mr. Osborne suggests some leniency should be extended to the worker in regard to previous decisions made on her claim. 16. It is noted that there had been a decision dated October 28, 2011 on the compensability of the worker s left wrist, however, this decision was not appealed by the worker due her lack of knowledge of the appeal procedures and having no assistance at that time. Further, Mr. Osborne notes the worker is currently not in receipt of any earnings loss benefits from the Commission at this time and this is very unfair to the worker considering the severity of her injury and her continuing restrictions which render her unable to work. 17. With respect to the issue of the permanent functional impairment rating of 1% for the worker s right wrist and elbow, the worker states she is very limited in her ability to use her right wrist and arm since her injury. For example, her ability to drive has been significantly impacted by the limited range of motion and other restrictions resulting from her injured right wrist and elbow. She states she has a lot of pain in her right wrist and elbow and often times is unable to lift her right hand. 18. The worker states the medical consultant did not obtain an accurate measurement of her impairment as she gave 110% effort during the assessment. This, she submits, contributed to the medical consultant not providing an appropriate rating which truly reflects her level of functional impairment. 19. The position of the Commission is provided in the decision of the internal review specialist dated October 29, The internal review specialist acknowledges the worker is appealing the January 8, 2014 decision and identifies the issue as an objection to the permanent functional impairment award. She references the opinion of the Commission s medical consultant and provides the following reasoning and conclusions: From my review of your assessment, it is clear that the Consultant availed of the AMA guidelines to establish your PFI rating. The consultant noted he considered chapter 15 and the particular tables used to determine your right wrist impairment. When consulting the AMA 4

5 guides, the findings on examination must be correlated into upper extremity impairment and then subsequently this impairment is classified into a whole body impairment rating. I have reviewed the tables referenced by the Medical Consultant. In review of the summary provided by the Medical Consultant I would concur that a Class 1 Grade D impairment of the elbow is equivalent to 1% upper extremity impairment and a Class 1 Grade D impairment of the wrist is also equivalent to 1% upper extremity impairment. Thus you are eligible for a 2% upper extremity impairment. An upper extremity impairment then must be converted to a whole person impairment. I have reviewed Table as referenced by the Medical Consultant and would concur that a 2% upper extremity impairment is equivalent to 1% whole person impairment. Therefore from my review of your file, taking into account your submission, I find that the Medical consultant has conducted an examination, has referenced the tables used in determining your whole person impairment which has been determined to be a 1% whole person impairment. I would support this decision. Analysis 20. On this claim there appears to be some confusion on the part of the worker with respect to how she might access the benefits she is seeking. From a review of the claim documentation, her request for internal review and the presentation at the hearing, the worker primarily appears to be seeking entitlement to earnings loss benefits primarily, though she did indicate an objection to the 1% permanent functional impairment award as well. 21. I note the Commission s communication to the worker on the suitable employment and earnings issue is not recorded on the claim documentation currently before me. Further, the worker did not expressly appeal a decision in relation to her entitlement to earnings loss benefits. I do note, however, that on her request for internal review dated September 16, 2014, she indicates she is seeking loss of earnings benefits. 22. Upon review of the claim, I note a Claim Note dated August 26, 2013 records information relative to a suitable employment and earnings determination, however, the worker indicates she does not recall receiving a decision on this issue. The Claim Notes states: Claim Note dated August 26, 2013 SEE decision completed today and sent to typing. Spoke with worker today regarding option selection and worker did not have a preference for 5

6 any of the options identified. Reviewed LMR report and options. As worker had previous direct work experience as a receptionist for 2.5 years, NOC Minor Code 141 Clerical Occupations, General Office Skills selected as a safe and suitable option for worker. Claim Note dated August 28, 2013 Worker entitled to 6 weeks employment readiness benefits from August 28 October 8/13. Partial EEL in the amount of $16.70/week effective October 9/13 and to be issued in a lump sum payment. SEE decision letter mailed to worker today. 23. The worker acknowledges it is possible she received a decision from the Commission, however, given she was in the midst of a breast cancer diagnosis and treatment; she would have had some difficulty knowing what to do about it in any event. 24. Despite the worker s request for earnings loss benefits in her September 16, 2014 request for internal review, I am unable to review this issue and explained this to the worker and her representative during the hearing, that I did not have the jurisdiction to review this issue because the Commission s processes have not have been finalized on this matter as the worker had not internally appealed the suitable employment and earnings determination. 25. Furthermore, an issue was also raised with respect to the compensability of the left wrist, decided by the Commission on October 28, This was referenced on the worker s request for review of November 12, 2014 to the Review Division. The worker stated, I disagree that the evidence does not weigh in favor of accepting my wrist symptoms. I assume this refers to her left wrist as the right wrist and elbow have been accepted as compensable. The decision currently under review, however, does not concern this. This issue is also not within my jurisdiction and I indicated I was unable to address it at this time. 26. The only issue open for my review is the October 29, 2014 decision of the Commission in relation to the 1% permanent functional impairment award. This is the only matter I will be reviewing by way of this Decision. 27. As the worker s injury is to her wrist and elbow, the Rating Schedule of Policy EN-01: Permanent Functional Impairment is not applicable. Under this circumstance, the American Medical Association s Guides to the Evaluation of Permanent Functional Impairment is relied upon for the impairment assessment and subsequent rating. My review of the Commission s decision confirms that the Guides were referenced by the medical consultant, specifically, Chapter 15, The Upper Extremities. 28. Chapter 15, The Upper Extremities provides detailed information with respect to assessing upper extremity impairment and specifically outlines reference tables for the evaluation of wrist and elbow impairments. Upon review of the medical consultant s 6

7 assessment dated December 10, 2013, I note he has provided the following relative to the table inputs to determine the impairment rating. I note he states:...if one refers to Table 15-3 on Page 395, [the worker] would be considered as having a Class 1 impairment with regards to her wrist symptoms. Referring to Table 15-4 on Page 398, [the worker] would qualify for a Class 1 impairment of her elbow. [The worker] did complete a Quick DASH survey prior to the appointment this morning. She scored 71. If one refers to Table 15-7 on Page 406, a Quick DASH score of 71 would result in a Functional History Grade Modifier score of 3. Referring to Table 15-8 on Page 408, the Clinical Studies grade Modifier score would be 1. Finally, referring to Table 15-9 on Page 410, the Clinical Examination Grade Modifier score would be 0 as x-rays and electrophysiological studies were normal. One must next refer to the Net Adjustment Formula on Page 411. The Class 1 score is subtracted from the Grade Modifier Functional History of 3, then added to the Class 1 score subtracted from the Physical Examination Grade Modifier score of 1, and then added to the Class Score 1 subtracted from the Clinical Studies Grade Modifier score of 0 for a total net adjustment of +1. The net adjustment score of +1 means that [the worker] will be considered as having a Class 1 Grade D impairment, both for her wrist and for her elbow. A Class 1 Grade D impairment of the elbow is equivalent to 1% upper extremity impairment and a Class 1 Grade D impairment of the wrist is also equivalent to 1% upper extremity impairment. [The worker] is thus eligible for a 2% upper extremity impairment. If one refers to Table on Page 420, a 2% upper extremity impairment is equivalent to 1% whole person impairment. I am recommending a PFI rating of 1% at this time. This rating takes into consideration any difficulties [the worker] may have with chronic pain. 29. Upon my view of the medical consultant s assessment reported, I see no reason to find the medical consultant in error with respect to the inputted values in the tables. The medical consultant has expertise in this area and neither the worker nor her representative argued that these values were in error or that the medical consultant failed to consider a feature of the worker s compensable condition relative to her overall compensable impairment. 30. The internal review specialist relied heavily on the rationale and recommended rating of the medical consultant and I find no error in this regard. Though the internal review specialist did not appear to directly consider the medical reporting of the worker s treating health care providers, I am satisfied that this feature of the worker s claim was considered in the overall rating as the medical consultant clearly demonstrated he was aware of the worker s medical history, her treatments and the views of her treating specialists. 7

8 31. I believe it is important to clarify precisely what a permanent functional impairment award is intended to represent. It should be noted that the award is a benefit totally unrelated to the worker s pre-injury earnings or the worker s entitlement to earnings loss benefits. 32. Section 73 of the Act provides for the payment of a permanent functional impairment award. It also permits the Commission to adopt and consult a rating schedule for the purposes of determining the award. The Commission adopted a rating schedule in Policy EN-01: Permanent Functional Impairment and the Policy also authorizes the use of the American Medical Association s Guidelines to the Evaluation of Permanent Impairment in certain circumstances. The permanent functional impairment assessment is conducted by a medical consultant, usually with specific experience in performing these types of assessments. 33. Typically, the assessment consists of a physical examination in the context of a review of the relevant medical documentation. The medical consultant performing the assessment interprets the documentation and the results of the examination, and makes findings as to the signs and symptoms. These signs and symptoms are then correlated to the ranges provided in the rating schedule. My role is to review the Commission s application of the Act, regulations, and Policy in its decision. In reviewing the medical findings themselves, I am poorly positioned to substitute my own opinion for that of the medical consultant; I am not qualified to do so. I must review how the Commission weighed the evidence, and whether its final decision was in compliance with the Act, regulations, and policies. 34. Policy EN-01: Permanent Functional Impairment provides a worker who suffers a permanent impairment, as a result of a work related injury, a lump sum payment. I note the definition of impairment in Section 2(1)(1.1) as a physical or functional abnormality or loss, including a disfigurement. Policy EN-01: Permanent Functional Impairment specifies that there is no specific award for pain and suffering. It also states that the impairment percentages given in the A.M.A. Guides include allowances for the pain that may occur with the impairment. The existence of pain does not enhance the impairment percentages recommended. 35. The concept of impairment is also to be distinguished from a disability. A disability is defined in Section 2(1)(g.1) as the loss of earning capacity of a worker as a result of an injury. The Act recognizes that a compensable injury may have effects both on bodily function (impairment) and earning capacity (disability), but the two concepts are not identical. For example, a worker who is totally disabled from work may retain a significant degree of bodily function, so a finding of total disability does not automatically translate into a 100% permanent functional impairment award. Conversely, a worker may have a significant degree of impairment, but no loss of preinjury earning capacity because the losses to the injured body part may not affect the worker s ability to perform his or her job. The two concepts do not always translate, and they are assessed by different methods. 8

9 36. A permanent functional impairment has to be a physical or functional abnormality which is permanent by its nature. An assessment requires evidence of some detectable or quantifiable damage, loss, or diminishment due to the compensable injury that manifests in a physical or functional impairment. It is the physical or functional losses which are being compensated for, not pain and suffering in and of itself. 37. With the foregoing as the framework for entitlement to a permanent functional impairment award, and upon review of the Commission s decision, which relied on the opinion of the medical consultant, I find the decision of the Commission to be in accordance with the Act. 38. As to the worker s request for further review of the issues relating to the compensability of her left wrist, as a possible aggravation of a pre-existing condition, and her entitlement to further earnings loss benefits, as I stated, I do not have the jurisdiction to review these matters at this time. I do, however, suggest the worker follow up with the Commission in terms of how she may further pursue these matters. The worker appeared as a genuine person, and with a limited understanding of the provisions of the workers compensation system. She may be more appropriately assisted in future in light of the fact that she now has representation. 39. I note Section 64 of the Act authorizes the Commission to further review any claim it deems appropriate and the worker can submit any information or evidence she may have to the Commission which she believes supports her position on these two issues; 1) compensability of the left wrist, and 2) further entitlement to earnings loss benefits. If the worker receives a subsequent decision on those issues, and believes that decision is in error, that decision would be appealable at that time. Decision 40. The decision of the Commission dated October 29, 2014 is confirmed. The worker s permanent functional impairment rating is maintained at 1%. With respect, the review is denied. Review Denied Marlene A. Hickey Chief Review Commissioner February 26, 2015 Date 9

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