WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20090015
OBJECTION BY: Worker
EMPLOYER: Not Participating
REPRESENTATIVES: Worker
HEARING DATE: N/A
ISSUES
The worker requests ongoing entitlement to a Non-Economic Loss (NEL) redetermination for the low back, and physiotherapy treatments.
HOW THE ISSUES AROSE
On November 1, 1990, this worker was 31 years of age and employed as a mechanic. On that date, he was lifting a transmission with another employee when he injured his lower back.
The initial diagnosis was a ligamentous back strain. He was initially off work from the day of accident until December 4, 1990 when he returned to work at modified duties.
He suffered a recurrence in August 1991 and the diagnosis was discogenic lumbar pain. In February 1992, he underwent a CT Scan and myelogram. The findings showed no significant pathology at L3-4, L4-5 and L5-S1.
There was evidence of a large central disc herniation at L4-5, which was sequestered. There was no evidence of spinal stenosis, and no significant degree of joint degenerative change was noted at the levels examined. Surgical therapy was declined by the worker.
A permanent impairment was evident. He had permanent restrictions on repetitive bending, no prolonged sitting, standing, and walking; no lifting greater than 7kg., no pushing, pulling and low level work, and to allow for change of positions periodically.
It was also recognized that he could not return to work at his pre-accident occupation of mechanic. As a result, he was sponsored in a Labour Market Re-entry (LMR) plan involving upgrading, followed by a small-business management program at College.
Further to legislated requirements, a future economic loss (FEL) review was conducted in March 1993. Effective April 1, 1993, he was entitled to a FEL benefit and FEL supplement while co-operating in his LMR program. This decision was outlined in the letter dated March 16, 1993.
He underwent a Non-Economic Loss (NEL) assessment on May 10, 1993. Based on the assessment findings, he was granted a 21% NEL benefit for the residual impairment to the low back.
The final FEL review was conducted in April 1998. His FEL benefit was calculated at 90 percent of the difference between his pre-accident net average earnings ($410. 32 per week) and the projected net average earnings ($360.32 per week). He was successfully employed with a new employer as a mechanic repairing alternators/starters effective November 20, 1995. This decision was outlined in the letter dated April 2, 1998.
In 2001, the worker requested entitlement to chiropractic treatments. As outlined in the letter dated October 15, 2001, the claims adjudicator determined the worker suffered a recurrence to the low back injury and allowed the chiropractic treatments.
The worker contacted the claims adjudicator in April 2002 and requested a Non-Economic Loss (NEL) redetermination. The file was reviewed by the claims adjudicator and the regional medical consultant. It was determined that the condition had not deteriorated significantly below the previous NEL level. Therefore, the request for a NEL redetermination was denied and this decision was outlined in the letter dated April 29, 2002.
The worker submitted a letter dated August 21, 2006 requesting a NEL redetermination. As well, he requested twelve weeks of physiotherapy for the low back. A specialist’s report was submitted to the claim file.
It was noted in the report from the specialist that the worker had suffered a fracture and that he had attended the specialist’s appointment of July 4, 2006 using crutches to ambulate. The physiotherapy report dated September 5, 2006 indicated that the worker had suffered a fractured right hip.
The worker advised the claims adjudicator that on April 25, 2006, he slipped on ice, at home, and fell down the stairs. This resulted in a fracture of the right hip. He advised he was off work due to this injury with a tentative return to work date of November 2006. He also indicated he had attended physiotherapy for the right hip injury through the Work Fit Centre.
The file was reviewed by the claims adjudicator and the regional medical consultant and it was determined that the compensable low back condition had not deteriorated below the 21% NEL level. As well, it was determined by the claims adjudicator that the low back condition had been aggravated by the right hip fracture/injury.
Therefore, noting the worsening of the condition was not linked to or related to this claim, entitlement to a NEL re-determination was denied and physiotherapy treatments was denied. This decision was outlined in the letter dated September 13, 2006. This is the issue under objection.
AUTHORITY
Operational Policy # 18-05-09, Redeterminations and Recalculations
Operational Policy #17-01-02, Entitlement to Health Care
RESOLUTION METHOD & PROCESS
On behalf of the worker, the worker representative requested a decision based on the record and his submission dated October 10, 2008.
ASSESSMENT OF EVIDENCE
I have reviewed the record and considered the matter. The following is my assessment of the evidence on record and worker representative’s written submission.
In March 2002, the worker was seen by the neurosurgeon. At that time, he underwent an MRI and the findings revealed degenerative disc disease at L4-5 and L5-S1 levels. There was also some bulging of the disc. There was no evidence of spinal stenosis, disc herniation or root compression. The file record showed he underwent physiotherapy treatment.
He next sought medical treatment in the form of physiotherapy in April 2004. This was for the treatment of L4-L5 disc bulge and degenerative disc disease. It was determined he was temporarily below his NEL level.
A future economic loss (FEL) medical supplement was allowed from May 17, 2004 to May 22, 2004 and physiotherapy treatment was accepted for twelve weeks. He returned to work on May 22, 2004.
On June 15, 2004 he advised the claims adjudicator that his back was improving with a combination of chiropractic and physiotherapy treatments. He was paying for the chiropractic treatments himself, while the WSIB sponsored the physiotherapy. He was discharged from physiotherapy on August 31, 2004.
On March 30, 2006, he underwent an MRI scan of the lumbar spine. The findings showed degenerative disc disease at L4-5 and L5-S1 with no disc herniation at any level of the lumbar spine and no canal stenosis. There were no changes from the MRI taken in March 2002.
The worker then suffered a home incident on April 26, 2006 and suffered a fractured right hip. This is a significant injury, which required ambulation with crutches. I find that the cause of the flare-up of the low back pain in April 2006 was related to the fall at home, the subsequent right hip fracture and the use of crutches.
Therefore, the request for physiotherapy treatments in 2006 was as a result of the home incident, and unrelated to this claim. As such, there is no entitlement to the physiotherapy in 2006.
Regarding the request for a NEL redetermination, 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/her 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 and considered the opinion of the regional medical consultant. The initial NEL assessment was conducted in May 1993. I noted that at the time of the accident, the worker did not have evidence of degenerative disc disease.
In 1992, the worker underwent a CT scan and a myelogram. The myelogram report stated, in part, “no evidence of degenerative disc disease or other bony abnormality.” The CT scan report stated, in part, “There is no evidence of spinal stenosis and no significant degree of apophyseal joint degenerative change is noted at the levels examined. “ There was a large central herniated disc at L4-5.
On October 8, 1997, he had an MRI scan of the lumbar spine. The findings showed moderate disc space narrowing at L4-L5 with central disc bulge, but only minimal compression of the anterior aspect of the thecal sac and no impingement on nerve roots. At L5-S1 there was minimal narrowing of the disc space and disc bulge. The results indicated he had mild degenerative changes at L5-S1 and moderate degenerative changes at L4-L5.
Essentially, the Board accepts that degenerative disc disease is an age-related disorder present in all individuals to some degree or another, and is progressive in nature unrelated to the workplace. Significant internal disruption of a disc or disc protrusion is likely to result in degenerative disc disease (Dr. Lloyd and Ogilvie-Harris from 1986). It would appear that a significant injury is required to cause the development of degenerative disc disease and mechanical low back pain to an extent greater than that caused by "natural progression".
I am satisfied that the medical evidence in the claim file supports that the chronic disc protrusion this worker has had since the compensable accident of November 1,1990, has caused the development of degenerative disc disease to an extent greater than that caused by natural progression.
At the time of the initial NEL assessment, degenerative disc disease had not been noted or identified at the site of injury, L4-5, L5-S1. Therefore, in light of the new findings of degenerative disc disease at the site of the compensable injury, I find this classifies as a “significant deterioration” and warrants a NEL redetermination in this case. The permanent worsening date is established at October 8, 1997, the date of the MRI confirming the presence of degenerative disc disease.
CONCLUSION
1-Entitlement to physiotherapy in April 2006 is denied.
2-The request for a NEL redetermination is granted.
The worker’s objection is granted in part.
DATED June 8, 2009
M. St-Hilaire Appeals Resolution Officer