Workplace Safety and Insurance Board
Appeals Resolution Officer Decision
Decision Number: 20090005
Objection By: Worker
Employer: Not Participating
Representatives: Worker
Hearing Date: N/A
Issue
The worker requests a Non-Economic Loss Redetermination.
How the Issue Arises
On July 14, 2004, this worker was 39 years of age and employed as a transport driver. On that date, he pulled an activation lever on his truck and sustained injuries to his low back and right leg.
He sought medical attention and the condition was diagnosed as right S1 radiculopathy with co-morbid L5-S1 right sided disc herniation. He was authorized off work effective the day of accident. Loss of Earnings (LOE) benefits were implemented accordingly.
On September 28, 2004, he underwent a lumbar discectomy, performed by Dr. Adegbite, neurosurgeon. A permanent impairment was evident and a Non-Economic Loss (NEL) assessment was conducted on March 27, 2006.
Based on the assessment findings, the worker was granted a 20 percent NEL benefit for the residual impairment to the low back.
Entitlement to psychotraumatic disability was also granted in this claim. The worker underwent a NEL assessment for the non-organic disability in June 2007. Based on the NEL assessment findings, the worker was granted a 28 percent NEL benefit for the psychotraumatic disability.
As a result of both the organic and non-organic disabilities, the worker is presently in receipt of a NEL benefit of 48 percent.
In February 2008, the worker requested a redetermination of the 20 percent NEL award for the low back. Further medical documentation was also provided. The file was reviewed by the claims adjudicator and the regional medical consultant.
It was determined that the current medical documentation did not show a deterioration below the examination findings at the time of the NEL assessment. Therefore, the request for a NEL redetermination was denied. This decision was outlined in the letter dated August 11, 2008. This is the issue under objection.
Authority
Operational Policy #18-05-09, Redeterminations and Recalculations
Resolution Method & Process
On behalf of the worker, the worker representative requested a decision based on the record.
Assessment of Evidence
I have reviewed the record and considered the matter. The following is my assessment of the evidence on file.
The Workplace Safety and Insurance Board (WSIB) uses the American Medical Association Guides to the Evaluation of Permanent Impairment, 3rd Edition (Revised) to calculate NEL awards. The guides provide an impairment rating for the injured area which is then converted to a whole person or NEL award.
The intent is to provide consistency in medical assessments across the province and over time. As a result, workers and their employers have a reasonable expectation that workers with similar ongoing impairments will receive a similar NEL percentage. Secondly, the guides also attempt to establish a degree of consistency when comparing the effects of various types of injuries.
The WSIB may consider a worker's request for a redetermination of his existing non-economic loss (NEL) benefit provided that
- the worker's degree of permanent impairment was previously determined to be greater than zero
- the worker's condition has deteriorated significantly since the last NEL medical assessment, and
- 12 months have passed since the worker's last NEL decision.
A "significant deterioration" is a permanent worsening of the work-related medical condition occurring after the most recent NEL medical assessment. The significant deterioration must be demonstrated by a substantial change in medical findings.
I carefully reviewed all of the medical documentation in the claim file, including the opinion of the regional medical consultant. Based on this review, I concur with the regional medical consultant and find that the current medical reports on file do not establish a physical impairment greater than the impairment present at the time of the low back NEL assessment.
However, I find that a NEL recalculation is in order in this case. The NEL examination report indicated that flexion was 0-14 degrees, but the NEL rating report indicated that flexion was rated as 60 degrees with 0% impairment.
Therefore, I find that the NEL rating should be recalculated using the actual range of motion findings from the NEL examination.
Conclusion
I conclude that a NEL recalculation is in order.
The worker’s objection is granted.
DATED June 8, 2009
M. St-Hilaire
Appeals Resolution Officer
Appeals Branch