WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20100002
OBJECTION BY: Worker
WORKER: Participated
REPRESENTATIVE: Worker
EMPLOYER: (Not Participating)
Nature of Enquiry: The representative completed a 60 day decision option
ISSUE:
- The worker objects to the decision of the case manager dated July 9, 2009 which denies a non-economic loss (NEL) reassessment.
HOW THE ISSUE ARISES:
The worker was employed as a co-owner of a bakery. On March 16, 1990 he sustained an injury to his neck and low back while lifting a batch of bread dough weighing approximately 60 pounds. Initial entitlement was allowed for a neck and low back strain.
In December 1992, the worker was granted an 18 percent non-economic loss (NEL) award for the permanent impairment resulting from this injury.
Subsequent to his recovery from the injury, the worker returned to his pre-injury job duties with accommodations and continued working until January 1995, when he suffered a further back injury. The worker did not return to work at any time subsequent to the January 1995 aggravation of his low back condition. However shortly after this incident, he was considered to have recovered to his NEL permanent impairment level, and a NEL reassessment was not considered warranted.
The decision to deny a NEL reassessment was upheld by an Appeals Resolution Officer (ARO) decision dated February 18, 1998 and again by the Workplace Safety Insurance Appeals Tribunal (WSIAT) in a decision dated January 31, 2000.
In March 2003 the worker’s then representative submitted new medical information and once again requested a NEL redetermination. Upon review of the additional medical information, it was concluded there was no objective clinical findings to support there had been a significant deterioration of the workers recognized permanent impairment award. This decision was upheld by an ARO in a decision dated March 30, 2004 and by the WSIAT in its decision dated March 29, 2006.
The workers representative made a further request for a NEL reassessment in a letter dated June 12, 2009. The case manager denied this request in a decision to the dated July 9, 2009 and the objection is now before me for further consideration.
Authority Reference
18-05-09 NEL Re-determinations and Re-calculations
ASSESSMENT OF EVIDENCE AND SUBMISSIONS:
In arriving at my decision, I considered the information in the claim file, the relevant sections of the Act, and the appropriate operational policies.
Having reviewed all of the available information, the following is a summary of my assessment/observations:
The WSIB may consider a worker’s request for a NEL redetermination provided the worker's condition has deteriorated significantly since the last NEL determination. A significant deterioration refers to a marked degree of deterioration in the work-related impairment that is demonstrated by a measurable change in objective clinical findings.
Workers requesting a NEL redetermination must be examined by their treating physician and/or a specialist. To assist the physician and/or specialist in identifying how the worker’s medical condition has changed, workers may provide their physician and/or specialist with any supporting health care information in their claim file. This may include a copy of the last NEL medical assessment report.
The physician and/or specialist then reports to the WSIB on the worker’s clinical history, any measurable changes in the worker’s condition, and any new medical findings. This report may include changes in the worker’s range of motion, complications in the worker’s medical condition, evidence of neurological dysfunction, and increase in the worker’s health care treatment.
The initial NEL assessment took place 17 years ago in November 1992. Under normal circumstances, when considering whether a NEL reassessment is warranted, I would review the new medical report(s) and all health care information added to the file since the last NEL determination, and compare the most recent medical findings with the clinical condition of the body part at the time of the last NEL determination and evaluate whether there is evidence of a significant deterioration. However, in this particular case, the WSIAT has already ruled on the issue of a NEL redetermination on two separate occasions. Therefore, my determination of whether there has been a significant deterioration in the workers permanent impairment is based on an assessment of the new medical evidence submitted to the file subsequent to March 29, 2006, the date of the WSIAT decision that found no evidence of a significant deterioration.
In arriving at my decision I must also have regard for information contained in the March 29, 2006 WSIAT decision.
o Paragraph 29 of this decision states in part; "The only documented deterioration is in the workers non compensable, pre-existing DDD, which has been shown to be present throughout his lower lumbar spine. This DDD has resulted in increased pain and limitation of activity."
o Paragraph 32 of the decision states; "I also note there is no evidence before me to support the conjecture that the injury accelerated the course of the DDD. None of the medical reports on file have opined that the workers workplace accident in 1990 and 1995 exacerbated his pre-existing DDD nor do I have sufficient evidence before me to make such inference."
o Paragraph 33 of the decision states; "In summary I find no objective evidence that the workers increased back pain is caused by any factors other than the ongoing, non-compensable, pre-existing DDD."
In other words, the WSIAT decision found that the deterioration in the workers low back condition was caused strictly by the pre-existing non compensable degenerative disc disease that was present throughout the lumbar spine. More importantly, the decision found there was no evidence to suggest that the degeneration of the lumbar spine had been accelerated in any way by the workplace injuries.
Subsequent to the March 29, 2006 WSIAT decisions, there have been three medical reports submitted to the file. These reports make reference to degenerative type conditions found in the thoracic spine including kyphosis and ankylosing spondylitis. However, it should be noted that the worker does not have entitlement in this claim for the thoracic spine and therefore I will refrain from making any comment relating to the workers thoracic spine condition as part of my decision making process.
The MRI report dated August 22, 2008 indicates that alignment of the lumbar spine was normal and diffuse osteopenia was present. The disc spaces in the lumbar spine were generally well maintained and with the exception of osteoarthritis of the facet joints the posterior elements looked unremarkable.
The report from the family physician dated August 25, 2008 indicates the worker reported instability of his lumbar spine and with occasional acute lumbar pain which he described as a spasm. The worker was noted to be bent forward and walk very slowly using a cane. His range of movement of the lumbar spine was almost negligible with straight leg raising on the right being 10% of normal and 20% on the left side. The worker's muscle bulk and power in his legs however was normal.
The report from orthopedic surgeon Dr. Clements dated May 25, 2009 indicates the worker continued to show signs of deterioration in terms of his symptoms since he was last seen six years earlier. The report indicates that the worker's most significant complaints appeared to be in his thoracic spine. The report indicated the worker did not describe any significant neurological symptoms other than a generalized feeling of weakness, which came on with prolonged activity and attempt to do physical activity beyond his means. On examination he was noted to have reasonable motor, power and tone in his lower extremity musculature and sensation appeared to be intact to touch and pinprick throughout the lower extremities. When commenting on the results of the MRI, it was noted there was ample room in the worker's spinal canal and although there was evidence of mild disc bulge at L4-5, the canal size was quite reasonable at that level. It was Dr. Clements medical opinion this was not causing any major clinical symptomatology. The report concludes by stating there was nothing that could be offered from a surgical perspective that would offer any hope of substantial improvement of his symptoms and it was suggested that if the likely diagnosis of ankylosing spondylitis (of the lumbar of the thoracic spine) was confirmed it might be reasonable to have the worker assessed by a rheumatologist. The only other recommendation was a routine excise program in order to maintain some degree of mobility.
Although the worker clearly does have ongoing significant complaints, it would appear this is more of a progression of the worker's non compensable DDD as he continues to age (currently 65 years of age) and the non compensable thoracic spine condition. Based on my review and assessment of the medical information submitted to the file since March 29, 2006, I am unable to conclude there has been any significant deterioration in the workers permanent impairment level as currently recognized by the 18 percent NEL award
CONCLUSION ,
Based on the medical information submitted to the file subsequent to March 29, 2006, there is no objective medical evidence to support the presence of a significant deterioration in the worker's compensable low back condition beyond the currently recognized permanent impairment level.
The worker’s objection is therefore, denied.
Dated at Toronto, Ontario, Friday, February 26, 2010.
C Cirinna Appeals Resolution Officer Appeals Branch