- Non-economic loss {NEL} (calculation)
- Permanent impairment {NEL} (degree of impairment) (shoulder)
- Permanent impairment {NEL} (rating schedule) (AMA Guides) (rounding)
The worker appealed the decision of the Appeals Resolution Officer, dated February 16, 2022. That decision concluded that the Non-Economic Loss (NEL) award for the right shoulder was appropriately determined at 11%.
The worker's appeal was allowed.The Vice-Chair noted that a NEL award represents the level of a worker's physical impairment according to the prescribed rating schedule, in this case, the AMA Guides. The NEL award is not intended to compensate for a loss of income or other injury-related expenses. It was also noted that the AMA Guides do not distinguish between the dominant and non-dominant arm. The rating is the same regardless of which arm is affected, and there is no discretion to divert from the rating scheme of the AMA guides on this basis.After reviewing the calculation for abnormal motion of the left shoulder, the Vice-Chair found that the worker's impairment should be increased from 10% to 11% of the upper extremity.The medical report indicated that the worker had abduction of 85 degrees. Figure 36 of the AMA Guides indicates that abduction of 80 degrees represents a 5% impairment of the upper extremity, and abduction of 90 degrees represents a 4% impairment of the upper extremity. The Vice-Chair noted that this measurement falls directly in between an impairment of 4% (90 degrees) of the upper extremity and an impairment of 5% (80 degrees) of the upper extremity.In addition, a similar issue with respect to the measurement of 105 degrees for shoulder flexion was noted. Figure 38 of the AMA Guides indicates that an impairment of 5% of the upper extremity is applied in the case of both 100 degrees and 110 degrees. Accordingly, the Vice-Chair found that the rating of 5% was correctly applied. It was also found that the NEL Clinical Specialist correctly concluded that the worker's range of motion in extension, adduction, and internal rotation were full, and no range of motion impairment was identified in these functions.The Vice-Chair noted that the Tribunal has considered the correct approach when faced with a situation where the worker's abnormal ROM does not conform to the rated percentage impairment measure in the AMA Guides' tables in a number of decisions. Decision No. 754/20 involved ROM measurements that fell directly between the rated measures, just as they did in the current appeal. In that case the Vice-Chair rounded the ROM value up to the higher rated measure. This was determined to be the best approach, taking into account the worker had left femur fracture surgery that required the use of hardware, the worker's functional impairments, and the physical abnormality of the hardware, such that the worker's actual impairment most closely reflected the higher rating.The Vice-Chair adopted the approach in Decision No. 754/20 of rounding the range of motion value to the higher rated measure. It was concluded this was the correct approach, taking into account that the worker required shoulder surgery on the dominant arm, and required permanent functional restrictions for work. As such, by applying the 5% impairment for abduction, rather than the 4% granted, this resulted in an increase in the percentage left upper extremity impairment based on abnormal ROM from 10% to 11%.It was noted that the worker also received a 10% discretionary rating of the upper extremity for the acromioplasty of the left shoulder. The worker's representative did not provide any specific submissions relating to these Other Non-Scheduled Impairments; however, these other non-scheduled impairments were reviewed with the WSIB Administrative Practice Rating Guidelines for Acromioplasty, Repetitive Strain Injuries, and Splenectomy, and the Vice-Chair found that this rating was consistent with the Guidelines.In sum, the combination of the 11% upper extremity for range of motion with the 10% discretionary rating for the surgery resulted in a combined upper extremity rating of 21%. On conversion to a whole person award, in accordance with the AMA Guides, the 21% upper extremity impairment rating was reduced to a 12% whole person impairment rating. Furthermore, Table 3 of the AMA Guides states that the whole person impairment rating "may be rounded to the nearest 5% when it is the only impairment involved". The Vice-Chair noted that the language used in Table 3 is permissive, and does not mean that a worker's whole person impairment will be rounded, either up or down, automatically. It requires an exercise of discretion, having regard to the worker's particular circumstances. In this case, the worker received both a non-discretionary rating for the loss of range of motion and a discretionary rating for the surgical procedure. In this circumstance, the Vice-Chair found that worker had been rated for the full extent of his impairment, and there was no basis on which to apply the rounding principle as noted in Table 3 of the AMA Guides.Accordingly, the worker was found to be entitled to an increase in the NEL award on the basis of the range of motion values and impairments, from the 11% NEL award granted to a 12% NEL award.