WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20090067
OBJECTION BY: Worker
EMPLOYER: Out of Business
REPRESENTATIVE: None
ISSUE
The worker defined the issues as an objection to the quantum of the organic and non-organic awards
HOW THE ISSUE AROSE
This then self employed general carpenter (DOB December 17, 1953) on July 18, 1984 while lifting a counter experienced lower back discomfort. Medical reporting provided a diagnosis of lumbar sprain and possible L3 nerve root irritation. A conservative treatment program was initiated and included physiotherapy and assessment at the Board’s Downsview Rehabilitation Centre.
In July 1985, the worker was assessed at the Board’s offices for pension purposes and granted a 15% award for the residual lower back disability.
Entitlement was subsequently accepted for the non organic component of the worker’s disability and in July 1987, a 25% provisional award was granted. The award was made permanent in 1990.
In addition to the combined 40% award, the worker has been granted section 147(4) supplement to age 65.
In May 2009 a reassessment was undertaken following which, the non organic award was increased to 35% and the award for the lower back was confirmed at 15%. The worker was notified of his entitlement in the claims adjudicator’s correspondence dated May 27, 2009. The worker is not in agreement with the quantum of the lower back award. This is the issue for determination
AUTHORITY
Operational Policy Document
- 18-07-01-Determining the Degree of Disability
- 18-07-02-Rating Schedule
RESOLUTION METHOD & PROCESS
The worker submitted a 60 Day Decision Option Form dated October 8, 2009.
ASSESSMENT OF EVIDENCE
The appeals resolution officer has considered the information on record.
In dealing with issues of the quantum of the award Operational Policy Document 18-07-01 speaks to the subject of “Determining the Degree of Disability”. Essentially, a permanent impairment evaluation is undertaken when the individual’s condition is stable and the worker has achieved maximum medical rehabilitation. A Board physician conducts a permanent disability evaluation and not only is that assessment taken into consideration, but also reporting from the worker’s attending physicians.
The Board medical adviser/consultant examines the worker to estimate the degree of clinical impairment from the nature and degree of the injury and recommends an appropriate clinical rating. The worker’s impairment of earnings capacity is to be estimated from the nature and degree of the injury.
Operational Policy Document 18-07-02 outlines the Board’s rating scheduling which is a schedule of percentages of impairment of earnings capacity for specified injuries which may be utilized as a guide in determining the compensation payable in permanent impairment cases. A permanent impairment award is strictly a clinical award reflecting anatomical or functional abnormality resulting from a work injury.
It is the worker's position the 15% award does not adequately recognize the level of disability involving the lumbar spine and that the findings merit a higher award.
The appeals resolution officer notes the worker was given the benefit of a reassessment in May 2009, at which time the non organic award was increased from 25% to 35% and the 15% award for the lumbar spine confirmed. Reviewing the Medical Consultant’s assessment and comparing it to the medical documentation from the attending physician, essentially the findings are similar, with no discrepancies. The appeals resolution officer is satisfied a comprehensive examination was undertaken.
The appeals resolution officer's understanding of the rating schedule, specifically the 15% category is that upon examination, restriction of mobility of the spine would be approximately half normal on all planes, with perhaps signs of mild nerve root irritation, however, there would be no evidence of any neurological deficit. The worker would present with moderate symptoms.
For an individual to be assessed at a higher level, for argument sake in the 20% category, upon examination there would be evidence of moderate symptoms. Objective physical findings would reveal that the movement of the spine would be conservatively restricted to probably one-third of normal, with possibly some nerve root irritation on straight leg raising. If there were to be neurological deficit it would be minor in degree.
Reviewing the pension assessment results of May 2009, the examination is described as revealing no limp when walking, the worker was able to rise on both his heels and toes and complete a full squat with some assistance. Straight leg raising in the sitting position was 80 degrees bilaterally, however, in sharp contrast, in the supine position it was 30 degrees at most, thus one must question the validity of the worker’s symptoms/pain. There was no evidence of muscle wasting, with muscle power considered to be symmetrical. Range of motion was impaired.
The family physician, in the reporting of August 10, 2009, describes the examination as follows:
“Walked slowly with his back leaning forward because of pain at his lower back. The spinal alignment was normal. Para-vertebral muscles of the lumbar spine were tender on palpation. The range of motion of the lumbo-sacral spine was decreased by 40%. Straight leg raising was normal bilaterally. Deep tendon reflexes were also normal.”
The objective clinical findings are in keeping with a 15% permanent disability award. There is no evidence that the worker's condition is producing neurological symptoms. Neurologically the worker is intact. Strength testing of both lower extremities is graded as normal, with no report of muscle wasting. The physiatrist, in the report of December 17, 2008 although indicating the worker presents with an L3-4 disc bulge and minimal protrusion of the L4-L5 with degenerative changes (MRI), there was no evidence of lumbar radiculopathy.
CONCLUSION
In the judgement of the appeals resolution officer, the 15% award adequately and accurately reflects the worker's level of disability involving the compensable lower back injury.
The worker’s objection is therefore denied.
DATED October 19, 2009 at Toronto, Ontario
M. De Marco
Appeals Resolution Officer
Appeals Branch