WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
Decision Number: 20100080
OBJECTION BY: Worker
EMPLOYER: Participating
HEARING DATE: Not Applicable
ISSUES
The worker requests:
entitlement for right hip, left knee, and left elbow problems;
an increase in the 20 per cent permanent partial disability award;
a labour market re-entry (LMR) assessment/program.
HOW THE ISSUES AROSE
This 54 year old mechanic injured his back while pushing cars into a garage on December 22, 1989. No medical attention was sought until January 2, 1990 and entitlement was allowed for a lumbar strain. He underwent a permanent partial disability assessment and was allowed a 10 per cent permanent partial disability (PD) award in December 1991, which was increased to 15 per cent in May 1997, and to 20 per cent in October 2008.
The worker was notified of the increase to 20 per cent PD on November 14, 2008. There was indication of the worker having developed hip problems; however, entitlement was denied since no medical relationship was seen between the workerâs injury and the hip problems.
The decision of March 17, 2010 additionally denied the worker entitlement for the left hip, left knee and left elbow problems. The increase to 20 per cent PD was confirmed. It is noted that the decision referred to 25 per cent, which appears to been a typographical error.
It is noted that since the initial injury the worker has continued working at his pre-accident job of a mechanic and, while it was previously determined that he had an ongoing PD as a result of the injury, an impairment of earning capacity was not seen. The worker has experienced a number of recurrences and requested an LMR program in order to retrain for more suitable work, feeling the mechanic job is becoming more difficult to perform because of the compensable injury. Since this issue has not been ruled on by the operating level, it will be returned in order to appropriately address the workerâs request.
AUTHORITY
Workplace Safety and Insurance Act (the Act) Operational Policy Manual Documents:
18-05-01 â Determining the Degree of Disability
18-07-02 â The Ontario Rating Schedule
15-05-01 â Resulting from Work-Related Disability
15-05-03 â Non-Work-Related, Second Accidents
15-05-04 â Non Work-Related Conditions
ASSESSMENT OF THE EVIDENCE AND SUBMISSIONS
In arriving at my decision, I have considered the information in the claim file, the relevant sections of the Act, and appropriate operational policies. I find, on balance, the evidence does not support the workerâs objection and the following is a summary of my assessment/observations.
The basis for the workerâs objection is outlined in his previous letter of January 19, 2010 and the spouseâs verbal submission. Basically, he claims that the low back condition has deteriorated due to the nature of his job (mechanic) and the changes in duties. It was indicated that the worker previously carried out specialized duties, such as tune-ups; however, since the automotive problems in the last year, he has been assigned work that includes all aspects of a mechanics job, including motor work, transmission work, wheel/tire work, et cetera. This has resulted in increasing low back problems.
The WSIB relevant policy provides guidelines for the basis in determining the degree of disability;
The WSIB adopted the permanent partial disability rating schedule proposed by the committee on permanent disability evaluation of the Association of Workers Compensation Boards of Canada in the report of September 1, 1964. Using the associations rating schedule, the WSIB developed the Ontario rating schedule, which is periodically updated (see 18-07-02, The Ontario Rating Schedule).
I note the level of permanent partial disability has been in question since the initial 10 per cent award. The reassessment of June 1993 confirmed the 10 per cent level, which led to the decision review specialistâs decision of July 9, 1993, confirming the level awarded. On September 4, 1994 the hearing officer confirmed the 10 per cent PD adequately compensated the workerâs residual disability. The May 22, 1997 hearing officerâs decision directed a permanent disability examination and the award was subsequently increased to 15 per cent.
The worker reinjured his back on March 31, 2004 while stepping off a hoist, and was diagnosed with recurrent low back pain. Objective medical findings did not support deterioration from the 15 per cent PD level and therefore, entitlement as a new claim and recurrence was denied on June 21, 2004. However, the subsequent decision of July 30, 2004 allowed the further lost time benefits as a recurrence of the initial injury, and the new claim was therefore amalgamated into this claim.
At the time of the initial 1989 back injury, which was diagnosed as a strain, there were x-ray findings of marked disc space narrowing at L5-S1 level with anterior degenerative lipping and osteophytes at the posterior and inferior margin of L5 projecting into the spinal canal. The workerâs treatment has been conservative and normal electro diagnostic studies were reported. An MRI investigation in 1994 was reported to show a central disc herniation at L4-5, with mild annular bulging at L3-4 and L5-S1, with multi-level degenerative disc disease (DDD).
The PD reassessment of October 22, 2008 resulted in an increase in PD from 15 per cent to 20 per cent with arrears paid from April 26, 2004. According to the examination report, the worker was no longer doing any of the heavier tasks as a mechanic. He performed three-quarter squats and recovered independently. There was a 10° resting lordosis, 25° of flexion, 15° of right lateral flexion, 10° of left lateral flexion, and 5° extension. The lateral rotation was symmetrical at 20°; a modified Schoberâs test was at 5 centimetres. Knee and ankle reflexes were symmetrical and plantar responses were normal, with no evidence of any clonus. Straight leg-raising was 80° on either side in the sitting position, and 50° bilaterally in the supine position.
In comparing the objective medical findings provided in the PD reassessment, with the medical reports in the claim, I note the medical report (Form 8) of April 2, 2004 stated that the worker had approximately 50 per cent reduction of range of movement. On June 25, 1998 the specialist stated there was no loss of a normal lumbar curve. The worker had âexcellent unrestricted range of back motionâ, and there were no neurological findings. Straight leg-raising was 90° bilaterally.
Subsequent to the PD reassessment, the rheumatologistâs report of June 9, 2009 mainly dealt with osteoarthritis involving various areas. However, with respect to the low back, the rheumatologist stated that the worker showed âflattening and very limited movements on rotation and flexion.â Rotation was to about 10° in either direction. Lateral flexion was 5° to 10° to either direction. Schoberâs tests showed only about 2 to 3 centimetres of lumbar distraction with forward flexion through the hip area. The doctor stated:
Overall this gentleman has long-standing osteoarthritis history with progressive peripheral involvement in recent times.
A December 4, 2009 rheumatologistâs report was provided at the workerâs request and noted;
âExtensive degenerative changes in the lumbar spine x-rays. Evidence of facet joint narrowing typical of osteoarthritis of the L4-5, L5-S1 levels. Joint narrowing of L3-4, L4-5, L5-S1 facet joints typical of osteoarthritis. A slight scoliosis of the lumbar spine was noted convex to the right side levels L2-4. Marked DDD of L2-S1 is noted with anterior osteophytes from L2-5. A very large and bulky osteophyte is seen at L2-3 on the right lateral side with almost complete bridging noted, likely resulting in compromised mobility. At L4 there is mild (approximately 10 per cent) loss of anterior vertebral body height compatible with a previous wedge compression fracture.â
The rheumatologist stated that the x-ray appearances were of a long-standing progressive process and the extensive distribution would compromise the functional status of the workerâs lower axial skeleton, hips and lower limb movements in light of the lumbar spine, hips and right knee involvement.
While the referenced medical reports do not offer detailed functional loss measurements as the PD reassessment, in comparing the objective findings with the normal lumbar range of movement, I do not see the reported findings amount to more than 75 per cent of the normal, which is appropriately represented by the 20 per cent PD award, in comparison to the rating schedule.
In addressing the workerâs request to entitlement for the left hip, knee and elbow problems, I note the first indication of a hip problem was made at the time of the PD reassessment in 2008. According to the rheumatologistâs referenced reports;
The worker has had a long-standing history of osteoarthritis originally relating to lower back problems related to his work in the automotive industry as a mechanic. It was understandable that the gradual evolution from the original area and the lower axial skeleton further involvement on a generalized basis involving peripheral areas including left hip, which came to resurfacing procedure in February of this year at St. Michaelâs Hospital. He also has involvement in his wrists, hands, left elbow, which has left him with a flexion deformity and progressive limitations and signs of disease activity involving his right knee by history.
The doctor noted a history of maternal osteoarthritis. It was stated that:
Overall this gentleman has long-standing osteoarthritis by history but progressive peripheral involvement in recent times. The severity which is evolutionary has progressed severely to the left hip requiring surface surgery at St. Michaelâs earlier this year.
The most recent rheumatologistâs report again noted the x-ray appearances are of a long-standing progressive process and the particular extensive distribution would compromise the functional status of the lower axial skeleton, hips and lower limb movements in light of the lumbar spine, hips and right knee involvement.
The report went on to state that:
âThe original compensable injury of his low back has resulted in the progressive degenerative changes that have been documented in the radiographs noted above. The pain and functional compromise involved in the lower back region has likely contributed to altered body mechanics and movement involving his hips, knees, as well as his lower back. This gentleman is left-handed, and the normal physical nature of his work would have within its own history contributed to the progressive damage and osteoarthritis changes that are witnessed in his left elbow. No doubt, he has had to alter the manner in which he does his work. In the absence of being able to depend on the usual leveraging strength that his axial skeleton should have provided, he has had to alter the manner in which he performs actions with his left upper extremity through the elbow. It would seem reasonable that this alteration on an ongoing and continual basis over some 20 years has contributed to the more accelerated pattern of degenerative and damaged change that is seen in his left elbow under current radiographs.â
According to E-Health ;
âDespite years of research, no one has a simple answer to this question (What causes osteoarthritis?). Many factors probably caused the initial cartilage damage that sets off the destructive process. It remains a mystery why particular joints are affected by osteoarthritis (OA) if they have not suffered any previous injury or disease. The aging process clearly can contribute to the breakdown in the joints and cause osteoarthritis, but not all elderly people develop detectable OA. In addition. Athletes and labourers often subject joints to prolonged wear and tear, which places them at increased risk of developing arthritis in later years.â
I note the x-ray findings at the time of the accident noted significant DDD and the injury was that of a strain. I see no evidence of trauma to the skeletal area. The osteoarthritic condition in the referenced areas is reported as being long-standing. While the worker has continued performing his regular mechanic employment, it has been reported that there was a job modification for a significant period of time, when he specialized in less labouring duties. I therefore do not find the evidence relates the onset of osteoarthritis in the right hip, left knee and left elbow to the low back injury and its sequelae.
It has additionally been reported that the worker suffered a left elbow injury about six or seven years ago and a claim was established. Determining entitlement for the left elbow as a recurrence of any previous claim is not within the scope of this decision. It will be directed to the operating level to address. Likewise, while I note that the worker has continued performing the mechanics job for about 20 years, specific job duties, the first onset of right hip and left knee problems/diagnosed as osteoarthritis, are not available and a relationship to the work itself has not been addressed by the operating level, and is also not within the scope of this decision.
CONCLUSION
The worker is not entitled to an increase in the 20 per cent PD award.
The worker has no entitlement for the right hip, left knee, and left elbow problems, diagnosed as osteoarthritis, since the evidence has not shown this has resulted from the compensable injury or its sequelae.
The workerâs objection is denied.
Dated April 29, 2010
B. Romano
Appeals Resolution Officer
Appeals Branch