WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
decision number: 20150020
DECISION DATE: February 11, 2015
OBJECTING PARTY: Worker
REPRESENTED by: Worker Representative
RESPONDENT: Employer
REPRESENTED by: Employer Representative
HEARING: Hearing in Writing
HEARD by: A. Rivet, Appeals Resolution Officer
ISSUE
Non-Economic Loss (NEL) Redetermination
This worker is objecting to the decision of August 8, 2014 that denied entitlement to a NEL redetermination of the worker’s lower back strain injury.
BACKGROUND
Injury History: This worker was employed as a spot welder when he sustained a gradual onset lower back injury. The worker was granted entitlement in this claim to a lower back strain. Per the WSIAT decision of October 1, 2008 the worker was also granted entitlement to a permanent impairment for psychotraumatic disability.
Date of last NEL Assessment: The worker attended a NEL assessment for his lower back strain injury on February 6, 2013.
Current NEL % and area of entitlement under review: The worker was granted a 14% NEL award for a lower back strain on April 9, 2003. The worker was also granted a 23% NEL for psychotraumatic disability. The worker has requested a NEL redetermination for his lower back strain injury.
Date of Case Manager’s Decision: August 8, 2014
Case Manager’s Conclusion: There was no evidence of a significant deterioration of the worker’s lower back strain injury. The worker’s request for a NEL reassessment was denied.
AUTHORITY
Operational Policy 18-05-09 Redeterminations
The WSIB may consider a worker’s request for a redetermination of his/her existing non-economic loss (NEL) benefit provided that:
- The worker’s degree of permanent impairment was previously determined to be greater than zero;
- The worker’s condition has deteriorated significantly since the last NEL determination; and
- 12 months have passed since the worker’s last NEL decision.
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.
ANALYSIS
I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision and find the worker is not entitled to a NEL redetermination. I have only included a synopsis of the relevant evidence in my decision.
This worker has entitlement in the claim for a lumbar strain injury. I noted the medical consultant indicated in memo 27 that the worker had a pre-existing condition per the CT scan of April 14, 2001. The scan indicated the presence of an L3-4 and L4-5 disc bulge, bilateral neuroforminal narrowing and mild bilateral stenosis. These findings represent a pre-existing condition that is unrelated to the lower back strain.
Findings from the last NEL Assessment:
The February 6, 2013 NEL assessment report indicates the worker complained of pain throughout his back not just in the spinal area. He reported having pain across the upper back, across his shoulders, the sternum area, and both his thighs to the knees. The worker reported having a burning sensation in his hips and thighs. The pain was described as being present all day and on a scale of 1-10 the worker rated the pain at a level of 6-7. Aggravating factors included walking, sitting for long periods of time, dancing and working. At the time, the worker indicated his condition was remaining the same.
The lumbar spine range of motions findings indicate the worker’s flexion to be 60 degrees or greater, extension 10 degrees, right and left lateral flexion were both 15 degrees. It was noted the worker exhibited full range of motion of the lumbar sacral spine except for straight leg raising which was only 30 degrees. There was no loss of reflexes, motor power or sensation.
Current Medical Findings and Analysis:
The MRI report of the lumbar spine dated July 10, 2011 states there is a 4 mm anterior subluxation of the L3 on L4 associated with degenerative changes at the facet joints. The report also refers to the L2-L3 level having right lateral disc protrusion with disc material seen extending into the right neuroforamen with encroachment upon the exiting nerve. There L4-L5 level has a moderate to large diffuse bulging disc extending to both side with mild to moderate encroachment on the neuroforamina. The radiologist’s interpretation of the MRI findings was degenerative disc disease.
The neurosurgeon in his report of August 25, 2014 noted the worker had decreased range of motion and reports of pain and reviewed the prior imaging and physician reports. The neurosurgeon stated that “basically this gentleman’s symptomatology is similar although probably more intensified because of the passage of time and further degenerative changes in the lower back to those noted in 2011.” The specialist also indicated the worker’s chronic pain disorder which has developed over the years and the depression and emotional aspects of the ongoing symptomology.
The January 28, 2014 report states the worker has severe decrease of the range of motion of all the lumbar movements. He concludes the worker has severe chronic pain with depression and very severe functional activities impairment. He refers the July 10, 2011 MRI findings that showed an anterior subluxation at the L3-L4 with some degenerative changes of the facet joints.
There is no doubt that this worker has decrease range of motion and increased pain; however, the medical evidence directly attributes these changes to the worker’s degenerative disc disease. Degenerative disc disease (DDD) describes a condition of cumulative damage to the intervertebral discs that arises from long term wear and tear associated with the aging process. It is not a condition that is caused by a single incident or accident or normally recognized as being work related.
In this case, the worker clearly had DDD prior to his lower back strain injury of March 2001. Imaging reports show the deterioration of the worker’s lumbar spine caused by the DDD. This is confirmed by the neurosurgeon. As the DDD is a pre-existing condition unrelated to this claim, any physical deterioration caused by that condition is not the responsibility of this claim and is unrelated to the lower back strain injury. The worker is not entitled to a NEL redetermination of the organic lower back strain injury.
CONCLUSION
Entitlement to a NEL determination of the lower back is denied.
The objection is denied.
DATED
February 11, 2015
Mrs. A. Rivet
Appeals Resolution Officer
Appeals Services Division