WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20090064
OBJECTION BY: Worker
WORKER: Participating
EMPLOYER: Not participating
HEARING LOCATION:
DATE: August 19, 2009
ATTENDEES:
Worker:
Worker Representative:
Interpreter:
Observer:
ISSUE
The worker objects to the claim adjudicator’s decision dated June 18, 2009, providing an arrears date effective September 12, 2007. The worker is requesting that the arrears for the increase in his pension be made earlier than September 12, 2007.
HOW THE ISSUE ARISES
On September 3, 1970, this 68-year old worker sustained an injury to his low back. The worker was treated conservatively and in November 1971, he was awarded a 10 per cent permanent-disability award for his low back.
Information on file reveals that the worker was seen by his family physician, for a physical examination on December 12, 2007. Based on the results of this physical examination, the claim’s adjudicator, in keeping with the opinion of the medical consultant, determined that the worker’s low-back impairment had deteriorated on a permanent basis. The worker was assessed by the Workplace Safety and Insurance Board (WSIB) medical consultant on April 8, 2008. The physical findings showed a decreased sensation in the left heel as well as a positive straight-leg raising on the left side at 45 degrees. The femoral-stretch test was positive bilaterally. Based on the assessment, the worker’s permanent-disability award was increased from 10 per cent to 20 per cent.
Based on this assessment, retroactive permanent-disability benefits were paid to three months before the date of the doctor’s assessment. As the worker was seen by the physician in December 2007, the case manager allowed arrears to be paid three months prior to the date of the physician’s appointment. As such, the increased permanent-disability award was paid retroactive to September 12, 2007.
The worker objects to the date of the arrears payment and requests that arrears payment be paid back to an earlier date.
AUTHORITY
Operational Policy Manual Document:
- 18-07-05 - Arrears
PRE HEARING ACTIVITY
The worker’s sister-in-law assisted the worker with his testimony due to the nature of his non work related health concerns. This hearing was arranged to be held on a priority basis due to the worker’s non work related deteriorating health issues. It was understood that the worker’s other claim would also be requested for review, following the hearing.
Initially the worker had appealed for the increased permanent disability (PD) award arrears to be paid retroactive to the date of accident. Following further discussions, the worker’s sister in law explained that it is their position that the arrears date should be earlier than September 12, 2007 and it was to be left to the Appeals Resolution Officer (ARO) to determine the exact date.
The worker had initially requested “compensation” for the delay in approving a back brace. The worker subsequently withdrew this issue from the appeals agenda, as confirmed by his sister in law.
ASSESSMENT OF THE EVIDENCE
The decision in this claim has been based on the information on file, the worker’s testimony, as well as the applicable legislation and Workplace Safety and Insurance Board (WSIB) Operational Policy.
WSIB Policy 18-07-05, concerning arrears, states in part:
If a permanent disability award is increased after reassessment, the increase dates from:
three months prior to the date of the request, or
an earlier date if supported by clinical evidence.
The worker argues that he is entitled to full arrears for the increased PD award for his back injury dating prior to September 12, 2007, claiming that his back has been slowly deteriorating over the years since his original back injury.
When a permanent-disability award is increased because of a PD re-assessment, WSIB policy considers two effective dates, either three months before the request is made or earlier if supported by medical evidence. The re-assessment provisions are intended to cover situations when the initial level of disability worsens.
It is the worker’s argument that his back has permanently deteriorated and medical evidence under a subsequent WSIB claim file, would confirm this. As such, a copy of the subsequent claim file has been reviewed in order to note the low-back findings for the interval beyond October 1992.
The permanent impairment in the worker’s low-back arises from the accident of September 3, 1970. Subsequent medical information revealed that the worker’s condition had plateaued and therefore, a further permanent-disability assessment was performed on April 8, 2008. Based on the assessment of April 8, 2008, it was determined that the worker’s permanent-impairment rating should be increased to 20 per cent, based on specialist, Dr. Papini’s letter of December 12, 2007.
In carefully reviewing all of the available medical evidence I agree with the conclusion reached by the adjudicator that there is a lack of medical reporting available to substantiate exactly when there was a permanent assessable deterioration in the worker’s compensable low back condition.
It is noted that the worker was formally assessed at the Regional Evaluation Centre (REC) in 1993. The physical findings at that time confirmed that the worker’s PD award of 10% was still an accurate reflection of his low back disability.
I find that the medical reports between 1993 and 2006 provide generally similar findings. Objectively, the worker’s low back was no different from when he had been assessed in 1971. Subjectively, the worker reported a diminished tolerance for standing, sitting, and walking, and complained of deterioration to his low back. However a PD reassessment is based on objective medical findings rather than subjective complaints.
A WSIB medical consultant (under the subsequent claim file) compared the physical findings at the REC in 1993 with the PD rating in 1972 and confirmed that “no change is noted regarding the low back …the worker was at his 10% PD level re his low back”.
The worker’s testimony at the hearing indicated that although he suffered flare-ups on a regular basis since the date of accident, the duration and intensity of the flare-ups progressed over time. I note the WSIB medical consultant comments (in the subsequent claim file, memo 67 of February 17, 1995) that due to non work related kidney problems, “one of its symptoms is backache, sometimes intense, which may ‘colour’ things …which includes low back strain”.
I note, in the permanent-disability assessment of May 2, 1972, that the worker was seen and provided with a provisional 10 per cent permanent-disability award based on an assessment of November 19, 1971. The worker had expressed the desire to return to Italy and therefore, he was seen again on April 26, 1972.
Another WSIB medical consultant (subsequent claim file, memo 88 of November 15, 1995) indicates “most of our claimant’s problems stem from non compensable conditions- gastro urinary tract problems …which are not the responsibility of this claim. By no stretch of the imagination, is the claimant below his PD level.”
The WSIB medical consultant (subsequent claim file, memo 99 of August 6, 1996) once again opines “the findings for the back, are no different from those, recorded by the REC …the patient has a history of chronic G.U. tract problems, which may affect back symptomatology”.
Dr. Roscoe, Orthopaedic Surgeon, in his report of September 18, 2006 noted that the “lumbar spine range of motion was very restricted with forward flexion allowed so that the tips of fingers pass his knee level. Poor extension achieved.”
Upon reviewing all of the evidence available to me, I find that medical evidence does suggest a progressive worsening and deterioration of the worker’s low back. Having regard for the specialist, Dr. Roscoe’s comments of September 18, 2006, I do accept that there was evidence, at the time of that report, which reflects a significant permanent deterioration from the worker’s original pension assessment. As such, I have relied on the medical report of September 18, 2006 to conclude that there was evidence of a significant permanent deterioration in the worker’s low back. Therefore, in my view, the more appropriate date from which the arrears should be paid would be 3 months prior to the specialist report (of September 18, 2006), which in this case would be June 18, 2006.
Accordingly, after reviewing all of the medical information, as well as the testimony heard, it is my finding that the arrears date is to be set as June 18, 2006 for the worker’s permanent-disability award to be increased from 10 per cent to 20 per cent.
CONCLUSION
I conclude that the arrears date is to be adjusted from September 12, 2007 to June 18, 2006.
The worker’s objection is therefore allowed.
DATED October 8, 2009
S. Bennett
Appeals Resolution Officer
Appeals Branch