WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20100042
OBJECTION BY: The Worker
EMPLOYER: Not Participating
REPRESENTATIVES: Worker
ISSUE
The worker is objecting to the amount of the Non-economic loss (NEL) benefit which was quantified at zero.
HOW THE ISSUE AROSE
The worker was injured at work on March 14, 2003. A forklift wheel rolled over his right foot. The original diagnosis was contusion left forehead and right fifth metatarsal fracture. Following this injury the worker was treated with a cast to his foot after which he received a course of physiotherapy.
He returned to work June 23, 2003 going off again in August 2003. This claimed recurrence was initially denied but subsequently granted. He was sent for an independent medical assessment. It was determined that there was no permanent impairment. There was an additional review and the worker was sent for a NEL assessment. The NEL quantum was 0.
The objection to this decision was referred to the Appeals Branch.
AUTHORITY
From Operational Policy documents
18-05-03 Determining the Degree of Permanent Impairment
18-05-04 Calculating NEL Benefits
11-01-05 Determining Maximum Medical Recovery
RESOLUTION METHOD AND PROCESS
The worker representative made written submissions; in turn I requested an opinion was requested from the Appeals Medical Consultant on this issue. This opinion was provided to the worker representative and she made final written arguments in her letter of March 22, 2010.
ASSESSMENT OF THE EVIDENCE
To rate permanent impairments the Workplace Safety and Insurance Board (WSIB) uses a prescribed rating schedule, the report from the NEL medical assessment and relevant health care information in the file.
A worker’s degree of permanent impairment is expressed as a percentage of the total impairment of the whole person. The prescribed rating schedule is contained in The American Medical Association’s Guide to the Evaluation of Permanent Impairment, 3-rd edition revised (the AMA guides).
The worker representative argued that at the very least the worker was entitled to a 3 per cent NEL benefit based on a mathematical calculation referring to the NEL assessment and the AMA Guides. It was her argument there was a clear miscalculation and that there should be no dispute in the matter. In addition she presented that the impairment has had an impact on the worker’s daily living that must be taken into account.
In arriving at my decision I considered the arguments presented, the applicable policy, medica opinions and the file record.
The original diagnosis was forehead contusion and right fifth metatarsal fracture, the x-ray report of March 15, 2003 showed a fracture at the base of the right fifth metatarsal without significant displacement.
The family doctor reported in response to the worker representative’s letter August 18, 2004 providing details of treatment. She wrote that there has been stiffness and pain. She refers to stiffness of the ankle.
When seen at the Regional Evaluation Centre April 27, 2005 the diagnosis was healed fracture of the right proximal fifth metatarsal bone. Presenting complaints included pain in the whole right foot with the major aggravating factor being weight bearing. There was no swelling in the ankle and active range of motion was full in all directions however with all movements he complained of discomfort and pain; any pressure to the proximal metatarsal brought complaints of discomfort and pain. However during informal examination when checking range of motion of the hips, knees and when in the lying position when pressure was put on the right foot there was no discomfort or pain. Examination was positive for inconsistencies. There was no specific abnormality to account for the presentation.
The NEL assessment was done July 14, 2005 the results of the review was a zero benefit. The chief complaint was pain in the right foot with movement and weight-bearing, stiffness and weakness of the right foot.
The worker representative argued in her submission of February 1, 2010 that the pain was from an organic source and it is not surprising given the significant injury that the worker has had ongoing problems.
The opinion of the Appeals Medical Consultant was that “the worker sustained an undisplaced fracture of the base of the fifth metatarsal of the foot which healed uneventfully. There isn’t any information which is objective which would explain the ongoing pain complaints. Additional testing was not done nor additional referral made that provided any objective evidence or diagnosis of why the reported pain persists.” He agreed that the zero NEL decision was appropriate.
The worker representative discounts that there is no diagnosis to account for the pain and if one is required she suggests the WSIB suggest what testing should be done. In this case the WSIB did arrange an assessment at the REC by a specialist who did a thorough assessment and no further testing or assessment was thought to be necessary. The inconsistency of the worker in his pain complaints would have been considered in determining whether further investigation should be done, this would have also been considered presumably by the worker’s own physician as well. There is no entitlement for the right ankle and there is no diagnosis.
The worker was granted entitlement for an organic injury to his right foot. There is also no entitlement granted under the chronic pain disability policy and this has never been considered by the operating area. In this case, I am reviewing the pain complaints in accordance with the accepted injury. Pain is considered only as it relates to the measurable information provided in the medical reports.
I reviewed the results of the NEL assessment noting the argument that 3 per cent should have been allowed. Entitlement was reviewed for the right fifth toe not for the right ankle. Although the argument was made that there was a significant injury to the entire foot, entitlement was granted based on the original diagnosis. The range of motion for right fifth toe at the NEL assessment was normal.
Upon review of the arguments presented, opinions from the NEL clinical specialist, Appeals Medical consultant and the medical reports, I conclude the zero award is correct for the measurable impairment remaining from the fracture of the right fifth metatarsal.
CONCLUSION
The objection is denied.
DATED March 31, 2010
S. McKinnon
Appeals Resolution Officer
Appeals Branch