WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
decision number: 20100024
OBJECTION BY: Worker
REPRESENTATIVES: Worker
HEARING DATE: N/A
ISSUE
The worker objects to the denial of entitlement to a permanent disability reassessment.
HOW THE ISSUE ARISES
This claim was accepted for an accident which occurred on November 1, 1989. At that time, the worker fell while carrying a case of beer. He was diagnosed with a lumbar and cervical strain superimposed on underlying arthritic changes in the spine.
A permanent disability was accepted for the neck and back injuries and the worker was first seen for permanent disability assessment in May 1993 following which he was granted a 5 per cent pension for his neck and a 10 per cent pension for his back. These awards were later increased to 15 per cent for both the back and the neck for a total of 30 per cent and further increased to 20 per cent for each area of injury in October 2002 representing a total award of 40 per cent.
The appeals resolution officer decision of February 27, 2007 denied entitlement to a permanent disability reassessment on the basis that the worker’s condition had not deteriorated significantly. This decision was upheld as per the Workplace Safety and Insurance Appeals Tribunal (WSIAT) decision of November 27, 2007.
Subsequent to this decision, the worker requested further consideration for a permanent disability reassessment based on the findings contained in the family doctor’s report dated July 16, 2009. The worker’s request, however, was denied as per the case manager’s correspondence dated September 30, 2009.
The worker has objected to this decision and this issue is now before the appeals resolution officer.
AUTHORITY
Operational Policy Document 18-07-01 - Determining the Degree of Disability
RESOLUTION METHOD AND PROCESS
Decision without hearing
ASSESSMENT OF THE EVIDENCE AND SUBMISSIONS
The worker was last seen for a permanent disability reassessment on October 16, 2001, at which time his pension was increased to 20 per cent for the cervical spine and 20 per cent for the lumbar spine, comprising a total award of 40 per cent.
The Workplace Safety and Insurance Appeals Tribunal (WSIAT) decision of November 27, 2007 considered all subsequent medical reporting and findings from October 16, 2001 up until the date of their decision and concluded that there was no evidence of any significant deterioration.
The issue that is therefore before the appeals resolution officer at this time is evidence of deterioration in the permanent disability subsequent to November 2007.
Since November 24, 2007, three additional medical reports have been filed by this worker’s attending physician. These reports are dated April 15, 2008; March 20, 2009 and July 16, 2009.
In the medical report of April 15, 2008, the doctor reported that there was a 20 per cent range of motion of the cervical spine and a 30 per cent range of motion of the lumbar spine. Neurovascular examination showed no definite neurovascular deficit and there was paracervical and paralumbar spasm and tenderness.
The report of March 20, 2009 showed 20 per cent range of movement of the cervical spine and 20 per cent range of motion of the lumbar spine. Neurovascular examination showed no definite neurovascular deficit and the paracervical and paralumbar spasms were still present along with tenderness.
The report of July 16, 2009 showed radicular symptoms in the left leg which the doctor opined was most certainly related to the lumbar disc compression. There was a 20 per cent range of movement in the cervical spine and a 20 per cent range of movement in the lumbar spine. The paracervical and paralumbar spasms were still present along with tenderness and it was also noted that there was extra wasting of the musculature of the left leg likely related to nerve compression. It is further noted that the neurovascular examination showed positive SLR of 40 degrees on the right side.
The WSIB’s medical consultant reviewed the contents of the family doctor’s report of March 20, 2009 and opined as follows:
“As noted in Memo 73 (dated October 6, 2006) this man is most appropriately compensated at 20 per cent plus 20 per cent equals 40 per cent for mechanical neck and back complaints.”
The medical consultant, however, did not have the opportunity to review the family doctor’s last report of July 16, 2009. Instead, the case manager concluded that the findings in this report were identical to the findings of the March 20, 2009 report.
With all due respect to the WSIB medical consultant’s opinion, the reports of March 20, 2009 and July 16, 2009 do show evidence of deterioration in that the worker’s range of movement in the cervical spine was further reduced from 30 per cent to 20 per cent.
The report of July 16, 2009 also commented upon radicular symptoms in the left leg related to lumbar disc compression along with extra wasting of the musculature of the left leg related to nerve compression.
In fact, the family doctor’s suggested that further investigations in the form of an MRI scan may be warranted if the radicular symptoms did not subside.
Based on the aforementioned information, it is therefore my opinion that the medical reports of March 20, 2009 and July 16, 2009 and the findings therein, do provide evidence of some deterioration in this worker’s permanent disability level.
For this reason, I am therefore granting the worker entitlement to a permanent disability reassessment.
CONCLUSION
The worker is entitled to a permanent disability reassessment.
The worker’s objection is allowed.
Dated: February 26, 2010
C. Rubino
Appeals Resolution Officer
Appeals Branch