WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20100191
OBJECTION BY: Worker
PARTICIPANTS: Worker, Worker’s representative, Employer, Employer’s representative
HEARING DATE: June 16, 2010
ISSUES
The worker is appealing for chronic pain disability (CPD) entitlement. If this appeal is not successful, he is also appealing for a re-assessment of his non-economic loss (NEL) award.
HOW THE ISSUES AROSE
This now 30 year old collision services helper stepped down from a bus he was working on and fell on his back on January 12, 2001. There was an initial diagnosis of lumbar strain. He was later referred for physiotherapy. Although there was a delay in reporting the accident, entitlement was accepted. Loss of earnings (LOE) benefits were allowed from January 15 until February 19, 2001.
As of June 4, 2001, the worker sought further treatment for his low back and he claimed a recurrence. The recurrence was accepted and LOE benefits were reinstated.
The August 21, 2001 regional evaluation centre (REC) report offered a diagnosis of lumbar strain. They advised that his examination was essentially normal other than some mild functional restrictions. There was a recommendation of continued physiotherapy with three weeks of physical restrictions on heavy lifting, bending and prolonged positioning. A full recovery was anticipated.
The November 20, 2001 CT scan indicated the presence of a small central disc herniation of the L5-S1 sac without any evidence of sequestration.
Although the worker had been terminated from the employer for poor work ethics and lateness (he had only been employed there for a month), they agreed to take him back on modified duties as of December 27, 2001. The worker was paid LOE benefits up to December 26, 2001.
The December 20, 2001 REC report advised again of a diagnosis of lumbosacral strain. Further physical restrictions were outlined.
During January 2002, the worker complained about the suitability of his duties. The employer complained that the worker did not carry out any duties, and they were looking at termination, as the worker already had two written warnings. As a result, the issue was referred to an ergonomic specialist.
However, before the ergonomic specialist came to do the review, the worker was terminated from his job on March 27, 2002 for stealing on the job.
The April 22, 2002 ergonomic specialist’s report advised that a simple change in work methods would eliminate any difficulties the worker stated he had with his modified duties. The modified work was found to be suitable.
The April 26, 2002 claims adjudicator’s (CA) decision concluded that the worker’s wage loss was not related to his compensable injury. The employer could have provided suitable modified work, but the worker had been terminated due to stealing.
The worker received a 13 per cent NEL award on August 21, 2002 in recognition of his low back permanent impairment.
Subsequently, the worker claimed a recurrence.
The December 11, 2002 Workplace Safety and Insurance Board (WSIB) medical consultant review found insufficient evidence of a recurrence in the medical reporting and a little evidence of any deterioration of the NEL award level.
Dr. Singh’s January 1, 2003 report advised that the CT scan results were not available, but he suggested that the worker might have a disc herniation at the L5-S1 level. To confirm this, an MRI scan was requested.
The June 5, 2003 MRI report advised of a central and mild paracentral disc herniation at the L5-S1 level towards the right side along with ride-sided neural foraminal narrowing.
By June 24, 2003, Dr. Singh advised the worker to continue with exercise and increase his activity level as tolerated.
The worker underwent a left S1 nerve root block on October 5, 2004. He subsequently underwent further nerve blocks.
The November 4, 2004 MRI report advised of a moderate sized central disc herniation at the L5-S1 level. The worker was also found to have moderate degenerative disc disease (DDD).
By February 2006, there was a request for a NEL assessment. The February 15, 2006 medical consultant review concluded that the current medical reporting was insufficient to identify a deterioration in the worker’s permanent impairment. This opinion was accepted and no reassessment was arranged.
Dr. Seligman’s April 10, 2006 report suggested the worker had symptoms of bilateral S1 nerve root compression along with moderate arthritis at the L5-S1 level.
The December 24, 2006 MRI report advised of a small disc protrusion toward the left side of the L4-5 level that was not present on the previous study. There was contact with the L5 nerve root on the left side. However, the disc herniation at the L5-S1 level had improved significantly especially on the left side.
The March 5, 2007 report by Dr. Seligman noted the MRI results and suggested there were symptoms of spinal stenosis. Arrangements were made for bilateral nerve root blocks. The blocks were carried out on March 30, 2007.
However, in Dr. Seligman’s April 30, 2007 report, the worker advised that he only had brief relief from pain.
The worker subsequently requested a NEL reassessment, CPD entitlement and LOE benefits.
The July 4, 2007 medical consultant review of the medical reporting did not note any evidence of deterioration in the worker’s compensable impairment. It also concluded that the nature of the worker’s condition did not meet the medical criteria for CPD entitlement.
The medical consultant’s opinion was accepted. There was no entitlement to CPD or to a NEL reassessment.
After further reporting was received, the worker’s request for a NEL reassessment was again denied in a letter of November 20, 2007.
Dr. Seligman’s November 20, 2007 report advised that the worker’s epidural steroid treatment had reduced all of his leg pain. There only remained some intermittent low back pain. Dr. Seligman suggested a further MRI, but doubted the likelihood of any future surgery.
After the worker missed three MRI appointments, no further appointments were allowed as of May 2, 2008.
However, it appears that a further MRI was carried out on January 1, 2009. The report found:
The L3-4 level was normal
The L4-5 level was normal, and
At that L5-S1 level, there was a small annular tear without evidence of any nerve root impingement or spinal stenosis, and some evidence of mild osteoarthritis at that level was noted.
Dr. Singh’s June 25, 2009 report stated that the worker’s L5-S1 level condition would not likely be responsible for the level of pain as was expressed by the worker. He suggested that the pain was out of keeping with the available organic evidence and suggested the possibility of chronic pain disability (CPD).
The September 28, 2009 medical consultant review concluded that the evidence regarding the worker’s experience of pain did not meet the medical criteria for CPD.
After further clarification, the case manager accepted the medical consultant’s opinion and denied the worker’s CPD entitlement in the letter of December 9, 2009.
The worker objected to this decision and requested a hearing.
AUTHORITY
Workplace Safety and Insurance Act (the Act) Operational Policy Manual (OPM) Documents:
15-04-02 – Psychotraumatic Disability
11-01-05 – Determining Maximum Medical Recovery (MMR)
18-05-03 – Determining the Degree of Permanent Impairment
18-05-04 – Calculating NEL Benefits
18-05-05 – Effect of a Pre-existing Impairment
18-05-09 – Redeterminations and Recalculations
EXHIBITS
The worker provided a document from Ontario Disability that outlined his income from 2001 onwards.
ASSESSMENT OF THE EVIDENCE AND TESTIMONY
I have reviewed the record and have examined the evidence and testimony. The key issues in this appeal include:
The sufficiency of the available evidence to support that the nature of the worker’s condition meets the criteria under Workplace Safety and Insurance Board (WSIB) Operational Policy 15-04-03 – Chronic Pain Disability, and
The sufficiency of the medical evidence to support that the worker’s organic low back permanent impairment has deteriorated since his NEL examination.
The worker’s representative clarified at the onset of the Hearing that the only issues they were pursuing at that time were CPD entitlement and, failing that, a NEL reassessment for the worker’s organic low back NEL award.
In his presentation and submission, the worker’s representative outlined a number of justifications for CPD, citing the criteria found under Operational Policy 15-04-03 – Chronic Pain Disability. Each part of the criteria was reviewed along with corresponding evidence from the medical section of the file.
The worker testified extensively about the impact he has experienced in relation to the pain from the injury. Prior to the injury, he played several sports including hockey and baseball. He regularly performed weightlifting at a gym. Currently, he is unable to play any sports and is no longer able to weight-lift. He is unable to bend, twist, perform heavy lifting or maintain static trunk positioning.
The worker is presently single and has a room at a house with several other people. As well as paying rent, he is responsible for a number of chores around the house. These include dishwashing, lawn mowing, cleaning and snow shovelling during the winter. He finds that performing any of these tasks for a long time will aggravate his low back pain, particularly if they cause him to maintain a slightly bent over position (he is 6’ 3” tall). For example, dishwashing itself is not that much of a difficulty, but he finds the counter level is low and this results in static trunk positioning. The same occurs with the lawnmower, as the handle is designed for someone shorter, and he needs to bend over to push the mower. It would be helpful if the snow shovel was longer, as he finds it difficult to shovel heavier snow.
The worker reviewed Exhibit 1 that listed his history of jobs and income since 2001. This was compiled by Ontario Disability (he has been paid by Ontario Disability since 2006). Prior to that, he had been on the Ontario Works Program. He reviewed a number of the jobs on the list. Many of these involved construction related work, which he advised constituted much of his work experience. A lot of these jobs did not work out as there was bending, twisting and lifting required, and this activity led to aggravated low back pain. This was also the case for the moving jobs that were listed in the Exhibit. However, some of the jobs were fine for his low back, but he had to leave for other reasons. He worked at a bar and grill as a bartender and found that it allowed him to alternate positions. It appears he was laid off. He also worked at a winery bar and that was appropriate for his condition, but his knowledge of fine wines was inadequate for the work.
The worker’s representative summarised the worker’s testimony and contended that this fulfilled the CPD criterion for evidence of marked life disruption.
In regard to the CPD issue, I note that the key criterion that led to its denial by the operating area was the requirement of incompatibility between the organic condition and the worker’s experience of pain. The September 28, 2009 WSIB medical consultant review noted a couple of features that would not support fulfilment of the criterion. First, the reporting by Dr. Seligman indicated that the worker experienced a pattern of only intermittent pain which is not compatible with a diagnosis of CPD. Also, Dr. Seligman offered a diagnosis of mechanical low back pain which is clearly an organic diagnosis and is the most common type of organic low back pain.
Dr. Seligman acknowledged that the worker’s experience of pain was centred on the low back area that was injured in the accident, but he contended that the pain appeared to be somewhat more extensive than one would expect for the condition outlined in the imaging reports.
However, in the course of the hearing, the worker repeated the descriptions of his pain condition that he outlined to Dr. Seligman. He outlined how the pain was focused on his low back area and would radiate into his lower limbs. On some days, he would be pain-free. The onset of the pain would result from activities that contravened his organic low back physical restrictions. He did not describe any pain experience that did not arise from the low back injury being aggravated by certain activities.
Dr. Seligman’s main argument in the June 25, 2009 report was that while the pain was consistent with the injury the worker incurred, the degree of pain was more than one would expect. This, in itself, does not fulfil the CPD policy criterion for medical incompatibility between the pain and the injury. Hence, it does not provide much weight in terms of evidence to support CPD entitlement.
There are no other medical reports that suggest the worker has CPD.
On the other hand, the medical consultant review looked at the pattern of pain and its extent. The features of the condition were found to be quite compatible with the worker’s organic injury.
Considering the worker’s 13 per cent NEL award for his organic low back condition, I do not find that his outline of the impact on his activities of daily living to be inconsistent with the award.
As a result, I find that the weight of the evidence supports the worker’s experience of pain is compatible with his organic injury. Hence, he does not have CPD entitlement.
In regard to the issue of the NEL reassessment, it must be demonstrated through the medical reporting that the worker’s organic low back condition has deteriorated since his NEL exam.
In the 2009 medical reporting, the worker’s condition was described as reflective of mechanical low back pain or simply low back pain. This would not indicate any deterioration. The most recent review of his range of motion indicates that he had about 50 per cent of normal range of motion. This information is not significantly different from the NEL examination of 2002.
The medical reporting has been reviewed two times by the WSIB medical consultant since the NEL examination. On both occasions, little evidence was identified to indicate any deterioration.
The worker himself acknowledges that his condition has improved since undergoing the nerve blocks.
As a result, I have little available evidence to support that the worker’s compensable low back condition has deteriorated since his NEL examination. There is no basis for a NEL reassessment.
CONCLUSION
I conclude:
The worker does not have entitlement to chronic pain disability (CPD) or entitlement to a non-economic loss (NEL) reassessment for his organic permanent impairment.
The worker’s appeal is denied.
Dated: June 28, 2010
P. Prummell
Appeals Resolution Officer
Appeals Branch