WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
Decision Number: 20150028
Decision Date: March 10, 2015
Objecting Party: Worker
Represented by: Worker Representative
Respondent: Employer (not participating)
Hearing: Hearing in Writing
Heard by: A. Rivet, Appeals Resolution Officer
ISSUE
The worker is requesting entitlement for:
A greater Non Economic Loss benefit quantum.
A determination that the Suitable Occupation (SO) of accounting clerk is unsuitable.
A Future Economic Loss (FEL) benefit redetermination.
BACKGROUND
On September 18, 1996 this worker had an onset of lower back pain after carrying a drum of raw material weighing approximately 75lbs up some stairs. The claim was allowed for a lumbar muscle strain injury. The employer was awarded 75% SIEF as the worker was found to have a major pre-existing condition that stems from convex scoliosis to the right and a history of prior back problems for which he was actively receiving treatment.
The worker was granted a 17% NEL benefit in this claim in February 1998. As the worker was unable to return to work with his employer he was granted a Labour Market Re-entry (LMR) program. The SO of as an accounting clerk (NOC 1431) was deemed suitable and the worker successfully completed a computer and accounting application training program with an 84% average. The worker completed his job search and secured full time employment as a night auditor at the Colonel Butler Inn on April 4, 2000 earning $8.00 per hour, 40 hours per week. The worker became dissatisfied with this job because the employer added duties such as watering plants and retrieving food from the fridge.
As noted in memo 81, the worker quit this job to accept a job at a casino starting June 19, 2000 earning $12.05 per hour, working 24 hours or more per week. As noted in a memo dated July 17, 2002 the worker was working as a slot operator earning $16.35 per hour 40 hours per week. The worker was permanently laid off by the employer over 6 years later in February 2007. The worker was let go due to his inability to cope with the job demands caused by his compensable and non compensable medical conditions. The worker had developed severe plantar fasciitis which the worker related to standing while working at the casino. As noted in memo 152 the worker reporting this condition caused him to walk awkwardly which in turn caused his back pain to increase. The worker complained of tingling and pain in his hands and feet and was found to have a small fiber neuropathy of unknown etiology. This condition was determined to be unrelated to the worker’s injury.
The worker subsequently secured employment as a telemarketer in 2008 and worked in the position for approximately four months. The worker has frequently complained of flare ups and worsening of his lower back condition since his initial NEL award.
A NEL reassessment was completed in February 2014 and the worker was granted a 3% increase to his NEL benefit for a total NEL of 20%. The worker is objecting to the quantum of the increase to his NEL benefit. This is the first issue before me.
Following the NEL reassessment the Case Manager concluded the SO of accounting clerk remained suitable and within the worker’s compensable related restrictions and limitations. As a result, the Final FEL Benefit Review was confirmed and unchanged. The worker objects to both of these decisions and is claiming total disability. These issues will also be addressed in my determination.
AUTHORITY
Policy 18-04-20 Final FEL Benefit Review
Policy 18-05-03 Determining the Degree of Permanent Impairment
Policy 18-05-05 Effect of Pre-existing Impairment
The NEL award is intended to compensate workers for the effects of the permanent impairment other than those associated with a wage loss, health care costs, and rehabilitation costs. The award is payable whether the worker suffers any wage loss as a result of the injury.
To rate permanent impairments, the WSIB uses the prescribed rating schedule and all relevant medical reports on file. The prescribed rating schedule is the American Medical Associations Guides to the Evaluation of Permanent Impairment, 3rd.edition revised, (AMA Guides).
ANALYSIS
In my determination of initial entitlement, I considered the record, evidence and policy. In my review, I have found both the NEL redetermination of June 11, 2014 and FEL entitlement review of July 31, 2014 to have been correctly adjudicated. I have only included a synopsis of the relevant evidence in my decision.
NEL Quantum Issue:
This worker was granted a NEL benefit for his work related low back strain injury. I have reviewed the claim file and find no submission from the worker or his representative regarding why they feel the NEL award for the low back strain is incorrect. There is no rationale provided to demonstrate any errors made by the clinical specialist when the rating schedule was applied.
The 2014 NEL rating utilized the February 10, 2014 range of motion findings found in the worker representative’s submission of February 25, 2015. The worker was found to have increased lumbar sacral abnormal motion from 12% in 1998 to 21% in 2014. In addition, there was an increased level of “other impairment” from 5% in 1998 to 7% in 2014. The combined total impairment level had increased from 17% in 1998 to 27% in 2014.
The 2014 NEL rating was offset and reduced by 7% due to the worker’s pre-existing non compensable multi-level degenerative disc disease. At the time of the 1998 NEL rating, no offset or reduction of the NEL rating was done despite congenital mild scoliosis stenosis having been identified.
WSIB policy states that when there is a pre-existing non work related impairment; “If both impairments affect the same area of the body, and the pre-existing impairment is measurable, the WSIB
rates the total impairment to the area
determines the rating for the pre-existing impairment, and
subtracts the rating for the pre-existing impairment from the total impairment rating to get the rating for the new work-related impairment.
This worker’s entitlement is limited to a lower back strain. I find the 7% reduction applied to the 2014 NEL rating due to the worker’s multi-level degenerative disc disease and fiber neuropathy
to have been correctly applied and in accordance to the policy and the rating schedule.
In summary, I find the worker was entitled to only a 3% increase to his NEL benefit. The February 2014 NEL decision is confirmed and the worker’s objection is denied.
Issue of Suitable Occupation (SO):
I find the 3% deterioration of the worker’s compensable lower back condition does not render the selected SO of accounting clerk (NOC 1431) unsuitable. This worker continues to have lower back restrictions that consist of avoid repetitive or sustained bending or twisting of the low back, avoid prolonged sitting or standing, ability to alternate between sitting, standing or walking as needed; avoid heavy or repetitive lifting.
I acknowledge the worker has increased complaints of pain; however, I cannot attribute all of the increased pain symptoms or the worker’s claim of total disability to his compensable injury. The record shows this worker has developed non compensable plantar fasciitis. The worker’s complaints of paraesthesia of the hands and feet