Workplace Safety and Insurance Board
Appeals Resolution Officer Decision
Decision Number: 20100133
Objection By: Worker
Employer: Non-participant
Representatives: None
Hearing Date: June 25, 2010
Participants: Worker
Issue
The worker objects to the denial of a non-economic loss (NEL) redetermination.
How the Issue Arises
In November 1995 the worker reported that he slipped off a step ladder, sustaining an injury to his low back. Initial entitlement was denied by the operating area as the Case Manager (adjudicator) determined that the evidence did not support an injury arising out of and in the course of employment as there was a significant delay in seeking medical treatment and laying off work. The worker objected to the denial of initial entitlement and the claim was referred to the Appeals Branch for further consideration. In a June 9, 1999, the Appeals Resolution Officer (ARO) granted initial entitlement.
The worker received conservative treatment but he was not successful in achieving a full recovery. The Case Manager determined that the worker reached maximum medical recovery (MMR) on March 9, 1997. MMR is achieved when the worker has reached a plateau in their recovery and it is not likely that there will be any further significant improvement in their medical impairment. As a permanent impairment was evident, the worker’s file was referred for a NEL evaluation. The worker was assessed on March 29, 2000 and was rated a 30% NEL award for the low back, on July 6, 2000.
As requested by the worker, the claim was reviewed by the Case Manager to determine if a NEL redetermination was in order. In reviewing the information on file, the Case Manager found that the evidence did not support deterioration from his NEL level of impairment and as such entitlement to a NEL redetermination was not in order. The decision was communicated in a letter dated October 14, 2009.
An Objection Form was received by the Workplace Safety and Insurance Board (WSIB) indicating that the worker objected to the above decision and the file was referred to the Appeals Branch for further review and consideration.
Authority
Operational Policy Document
18-05-09 Redeterminations and Recalculations
Assessment of the Evidence
Worker Testimony
The worker stated that he was told he was unemployable with at 30% disability. He said that the first 10 years of his impairment he did not feel too bad but over the last two and a half years the pain had increased to the point where he had to alter his medications. He said that he was taking Tylenol #3 (two every four hours) and morphine (6mg, four times per day). He said that the medication took the edge off but did not take the pain away. He added that he was able to get some relief from sitting in the hot tub.
He said that over the last two years his life had changed considerably. He said that his quality of life has been greatly disturbed as he could not do anything due to pain in his neck, back, legs and feet. He also suffered from headaches which would occur every three to four days.
He had lost over 35 lbs in an attempt to ease the weight in his back but it did not help with his back pain.
He said that he was restricted in the activities he performed with his grandson and he could not allow him to climb up on him due to pain.
He said that he continued to mow the lawn with a riding lawn mower. He said that he could mow half the lawn at one time (two acres). He clarified that it took five hours to do the whole lawn. He said that his son and wife helped out. He said his wife used the push mower and his son, who lived next door, used his own large mower.
He could no longer bend over and was required to bend at the knees or squat if he had to reach below counter level for anything.
He said that when driving he found that he could drive an hour to an hour and a half and then he would have stop to move around for approximately 15 minutes prior to driving again.
He said that he could no longer ride a bicycle which he used to do daily, riding four to five miles per day. He said he had stopped cycling two years ago.
He was limited to walking 400 - 500 feet but then had to stop due to pain.
He said that he had pain and stiffness day and night. He took one to one and a half sleeping pills at night. He went to bed at 11:30pm and fell asleep at about 1:30am. He said that his first hour of sleep was good but the remainder of the night his sleep was disturbed. He said that he was very uncomfortable, mostly on the left side. When he rolled over he was awakened due to pain. He had to nap during the day in order to function.
He stated that there were days when he felt like he didn’t want to get out of bed. He did not feel like doing much and was physically unable to do work. His wife did most of the yard work and she did all the inside household chores as he could not do so. He said that getting up and down the stairs was difficult and he was careful to take one step at a time.
He indicated that his doctor had told him that the spinal cord was pushing on the sciatic nerve which was causing him so many problems and there was nothing further that they could do.
He said that there were no new incidents over the past few years, just a gradual increase in problems due to sciatic problems.
File Review and Analysis
The worker was seen for a NEL assessment on March 29, 2000. He presented with gnawing and stabbing pain in the low back and hip area. He indicated that the pain was present with walking, prolonged sitting or lying and that his sleep was disturbed as a result of the pain. The following objective findings were noted in the report:
- Flexion from neutral position - 0º - 14º.
- Extension from neutral position - 10º.
- Region ankylosed at 10º.
- Right lateral flexion from neutral position - 10º.
- Left lateral flexion from neutral position - 10º.
- Lateral flexion / extension – region ankylosed at 0º.
- Standing lordosis measurement - 5º.
- Straight leg raise (SLR) - 90º on both sides.
- Knee jerk 3+ on the left, 2+ on the right.
In November 2003 the worker requested a NEL redetermination. A WSIB medical consultant reviewed the information on file and opined that there were insufficient clinical findings to do a comparative analysis on the level of impairment. The issue was again reviewed in May 2005 upon receipt of further medical information. At that time the WSIB medical consultant opined that the current medical information did not support a deterioration of the work injury.
A December 2003 CT of the lumbar spine revealed a posterior spinal fusion at the L4-5 with layering of new bone over the posterior elements down to S1. The L5-S1 apophyseal joints were not fused and demonstrated changes of fairly severe osteoarthritis with mild medial osteophytosis. There was also some irregularity of the disc margin with mild narrowing of the left lateral recess in association with the changes.
The worker was assessed by a specialist in November 2004. The report indicated that the worker presented with complaints of pain in the low back, radiating into both thighs and down the right leg with parasthesia into the right leg. Examination failed to show any focal neurological deficit.
In January 2006 the worker was assessed by a neurosurgeon. The examination revealed that the worker was able to walk on his toes but had some weakness of his dorsi-flexors of the ankles. There was mild wasting of both his peroneal and calf muscles. There was a patchy sensory loss from approximately L5-S1 bilaterally. Knee jerk was 3+ on the left and 2+ on the right. SLR was 90º. There was a moderate amount of paravertebral muscle spasm especially on the right side and considerable restricted range of motion (ROM) of the lumbosacral spine.
An April 2008 MRI of the lumbar spine revealed multi level degenerative changes, most significant at L1-2 where there was a large left paracentral disc protrusion causing significant posterior displacement of the traversing L2 nerve root on the left as well as causing posterior displacement of the thecal sac and moderate spinal stenosis on the left. At L2-3 there was bilateral narrowing of the lateral recess, more prominent on the left which may have been causing compression of the traversing L3 nerve roots bilaterally.
A CT of the lumbar spine was taken in March 2009. The report indicated extensive postoperative changes in the spine which appeared uncomplicated. There was evidence of severe disc degeneration at L1-2, L2-3 and L5-S1.
A specialist report of June 2009 reported that the worker presented with complaints of constant severe back pain. The worker reported that he was limited in physical activity and had disturbed sleep. The doctor opined that the worker was severely limited as a result of a 1995 injury. Objective findings were not provided in the report.
In July 2009 the worker underwent a functional assessment. He presented with complaints of pain that had increased over the past two years. SLR was 24º on the right and 19º on the left. The report outlined the worker’s capabilities.
The claim was again referred to a WSIB medical consultant in July 2009. The medical consultant reviewed and summarized all pertinent medical information. The medical consultant opined that the medical information before them did not provide for a comparative analysis but based on the evidence before them, they opined that the worker had not deteriorated below his NEL level of impairment.
In September 2009, an occupational therapist submitted a report providing findings. The worker presented with complaints of pain aggravated by moving in bed, prolonged sitting and walking. Flexion was measured at 70 cm from fingertip to floor, fingers 0 to superior aspect of patella with minimal curve reversal noted. Extension was nil. Side flexion pivot point was T10 with no side flexion below T10.
Following receipt of the above medical information, the claim was again referred to a WSIB medical consultant in October 2009. The medical consultant opined that the worker was not below his NEL level of impairment.
A worker may be entitled to a NEL redetermination if there is evidence of a permanent significant deterioration in the work-related impairment. This is demonstrated by a measurable change in objective clinical findings. Other supportive facts may include: complications in the worker’s medical condition; surgery; an increase in medical treatment; and lost time from work.
I have considered all information on file as well as the applicable law and policy. Based on my assessment of the evidence, I conclude that the information on file does not support a permanent significant deterioration in the work-related left shoulder impairment. The following is a summary of the rationale for the conclusion reached.
The worker testified that his pain had increased since the NEL assessment and more specifically it had altered significantly over the past two years. While findings of complaints of pain were noted in the medical reports subsequent to the NEL assessment, this was also evident prior to and at the time of the NEL assessment, which would be expected given that the worker had a 30% impairment as well as a pre-existing impairment and a degenerative condition in his back. It should also be noted that the finding of complaints of pain is considered a subjective finding which can be controlled by the patient and their subjective reaction to stimuli.
The worker testified that his sleep was disturbed and he was limited in activities, this was evident at the time of the NEL assessment in 2000. While he also testified that his medication had changed in the past two years to manage his pain, this does not necessarily speak to a marked deterioration as it could be that the worker’s ability to manage his pain had changed. As such, I must rely on objective evidence to determine if deterioration was evident.
I have carefully reviewed all the medical reports on file since the worker’s NEL assessment in March 2000. While many of the reports did not provide complete ROM measurments, I considered the objective findings that were available and found that there was an absence of evidence to support a marked deterioration in the work injury.
In July and October 2009 the claim file was referred to members of the WSIB medical staff. Medical opinions were provided, based on review of the information on file. It was the opinion in both cases that the medical information on file did not establish a significant deterioration in the worker’s work-related impairment.
In reviewing the evidence before me and in accepting the opinion of the WSIB medical consultant, I find that there was an absence of objective findings to support a permanent significant deterioration in the work-related impairment.
Conclusion
Entitlement to a NEL redetermination is not in order.
The objection is denied.
DATED June 30, 2010
K. Hille Appeals Resolution Officer Appeals Branch