WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1602/11

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1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1602/11 BEFORE: M. M. Cohen: Vice-Chair HEARING: August 16, 2011 at Toronto Written DATE OF DECISION: August 23, 2011 NEUTRAL CITATION: 2011 ONWSIAT 2009 DECISION(S) UNDER APPEAL: WSIB Appeals Resolution Officer decision dated September 16, 2010 APPEARANCES: For the worker: For the employer: Interpreter: Mr. L. J. Dillon, Lawyer Did not participate N/A Workplace Safety and Insurance Appeals Tribunal Tribunal d appel de la sécurité professionnelle et de l assurance contre les accidents du travail 505 University Avenue 7 th Floor 505, avenue University, 7 e étage Toronto ON M5G 2P2 Toronto ON M5G 2P2

2 Decision No. 1602/11 REASONS (i) Introduction [1] This is a written appeal by the worker of decision of Appeals Resolution Officer (ARO) M. Flaherty of the Workplace Safety and Insurance Board (the Board) confirming as correct a non-economic loss (NEL) award of 11% for the right wrist and right shoulder. (ii) Issue [2] The issue is whether or not the NEL award of 11% is correct. (iii) Background [3] On January 23, 2000, the worker, then a service associate performing housekeeping duties, slipped on a wet floor onto her right side when she went to pick up a bucket and mop. [4] The initial diagnosis was contusion to the right side and a right wrist strain. [5] She attempted modified work in March 2000 but the pain and swelling in her arm forced her off work entirely. She then returned to modified work in July 2000, working intermittently, but found it necessary to stop work entirely by January [6] The worker s own progress reports in 2000 complained of soreness on the right side of her arm from the neck down and to include her wrist. [7] In a Regional Evaluation Center report dated January 3, 2001 the worker, who was right handed, complained of discomfort and pain in the right side of the neck and in the whole right upper extremity. Movement with her limb increased her discomfort. She reported numbness, tingling and weakness in her right upper extremity. She was not able to perform vacuuming or any heavy household duties. There were limitations in her cervical range of motion (ROM). Any movement of the right upper extremity produced pain in the neck, shoulder and arm. [8] On June 14, 2001, a final report on the worker s participation in a Pain Management Program identified ROM limitations in her cervical spine, shoulder, wrist and hand. In the wrist there was right wrist flexion in the three quarter range. While there was mention of poor effort on the right wrist and all hand strength testing with giving way on wrist extension and flexion, the report still identified decreased right grip and flexor strength of right 4 th and 5th fingers. [9] In a July 6, 2001 report from Dr. V. Ahluwalia, rheumatologist and internal medicine specialist, the worker reported her complaint of constant pain on the right side of her neck, the entire right arm, and some numbness in the 2 nd and 3 rd fingers. The finger paresthesias did not correlate with any clear impingement and EMG and nerve conduction studies had previously been negative. [10] A physician progress report from Dr. R. Tautkus, family physician, dated October 29, 2001 reported the worker s description of severe driving pain on my right side neck, shoulder down to my fingertips.

3 Page: 2 Decision No. 1602/11 [11] A psychological report from Dr. D. Panjwani dated November 8, 2002, noted the worker s complaint that Since then, she experienced stiff neck and continuous pain from the right side of neck all the way to the fingers. [12] There were medical reports suggesting chronic pain syndrome in her arm that would render the worker s restrictions to be permanent. In Decision No. 1313/07 dated June 29, 2007 a Tribunal Vice-Chair reviewed various medical reports throughout 2001 and concluded that the worker was not entitled to benefits for chronic pain disability (CPD). Instead the Vice-Chair found that the worker did not recover from the effects of her right arm injury but rather that the injury left her with an organic permanent impairment and entitled to benefits for a permanent impairment in her right arm. [13] What followed was a referral for a NEL assessment of the right arm shoulder to wrist (Claims Adjudicator comment in Memorandum #106 dated July 5, 2007). [14] As a result there was a NEL assessment based on a diagnosis of shoulder strain/wrist tendonitis. [15] The worker was seen for the NEL assessment on September 13, The NEL physician noted that the worker described pain radiating from behind my ear down to whole arm forearm and hand. Range of motion details were noted for the right wrist and the right shoulder. For the right shoulder these findings allowed a 15% award. There was no sensory or motor deficit noted. The findings resulted in a 5% right wrist award. The 15% right shoulder award and the 5% right wrist award were combined to give a total award for the right arm of 19%. The 19% award was then reduced to a whole person NEL award of 11%. [16] In completing the NEL assessment forms the NEL assessor physician completed a form called Upper Extremity Set - Hand Recording Form, recording range of motion of each finger in the worker s right hand. In completing the form Upper Extremity Set Shoulder, Elbow & Wrist Recording Form the assessor recorded ranges of motion in the shoulder, elbow and wrist. [17] The assessor then completed the form Upper Extremity Set-Other AMA Disorders. Under Anatomical Area Affected the assessor listed the shoulder and wrist, indicating mild grading of impairment. [18] In the impairment detail and impairment calculation summary, only the figures used for abnormal motion of the right wrist and shoulder were utilized by the NEL calculating specialist in determining the degree of impairment. (iv) Submissions [19] In his submissions dated June 10, 2011, Mr. Dillon noted that the worker advised the assessing NEL physician that she was experiencing pain throughout her entire right upper extremity from behind the ear down into her hands. He maintained that his corresponded with the bulk of the medical evidence. [20] He noted that the assessor found that the range of motion was somewhat impaired in the fingers of the right hand.

4 Page: 3 Decision No. 1602/11 [21] He also noted that the assessor found some impairment involving the shoulder, elbow and the wrist. [22] He maintained that the compensable injury involved the entire right upper extremity and that despite the fact that diminution of range of motion was objectively indicated, only the diminution of the range of motion for the wrist and shoulder were officially part of the assessment. He submitted that the assessment would have been more accurate by factoring in the diminution of range of motion for the right elbow and the fingers of the right hand as these were affected by the compensable injury. [23] He concluded that the worker was entitled to a specific assessment of the elbow and fingers and that these should have been properly factored into the assessment as other musculoskeletal system defects. (v) Conclusion [24] NEL awards are granted pursuant to section 2 of the pre-1997 Act, (the Act) which states: 42.(1) A worker who suffers permanent impairment as a result of an injury is entitled to receive compensation for non-economic loss in addition to any other benefit receivable under this Act. (5) The Board shall determine in accordance with the prescribed rating schedule and having regard to medical assessments conducted under this section the degree of a worker s permanent impairment expressed as a percentage of total permanent impairment. [25] The NEL ratings are taken from the American Medical Association s Guides to the Evaluation of Permanent Impairment, Third Edition Revised (the AMA Guides). The Board s Operational Policy Manual Document No , Assessing Permanent Impairments, provides the following guidelines and states in part: To rate permanent impairments, the WSIB uses a prescribed rating schedule, the report from a NEL Medical Assessment (if one is conducted) and all relevant health information in the claim file. [26] The policy goes on to advise that the prescribed rating schedule is the American Medical Association Guides to the Evaluation of Permanent Impairment, Third Edition Revised. [27] The medical findings noted by the NEL physician were converted to a percentage of the impairment using the AMA Guides as required by Board policy. The assessment confirmed reduced range of motion values, which were converted to a percentage impairment award as per the tables of the AMA Guides. However, the areas classified as impairments to be utilized were for the wrist and shoulder and did not include elbow and fingers. [28] The relevant health information in the claim file and the consistent descriptions by the worker indicated that the entire arm, which included the elbow and the area running down to the worker s fingers, were part of her impairment. The Tribunal Vice-Chair found that the worker was entitled to benefits for a permanent impairment in her right arm. Elbow and fingers should have been included in the NEL assessment. Somehow the referral to the NEL department which was described in Memorandum #106 as shoulder to wrist became shoulder strain/wrist

5 Page: 4 Decision No. 1602/11 tendonitis and it was only these two areas that made up the NEL assessment. We therefore find the NEL assessment to have been concluded without factoring in any diminution of range of motion for the right elbow and the fingers of the right hand.

6 Page: 5 Decision No. 1602/11 DISPOSITION [29] The worker s appeal is allowed. [30] The clinical specialist who calculates the NEL quantum is instructed to perform a recalculation to include the degree of impairment affecting the worker s elbow and fingers. DATED: August 23, 2011 SIGNED: M. M. Cohen

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