WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
Decision Number: 20150081
Decision Date: March 24, 2015
Objecting Party: Worker
Represented by: Worker Representative
Respondent: Employer Represented by: Employer Representative (not participating)
Hearing: Hearing in Writing
Heard by: K. MacMillan, Appeals Resolution Officer
ISSUE
The worker is requesting an increase in the 5% non-economic loss (NEL) benefit for a permanent vestibular impairment.
BACKGROUND
Injury History:
On August 31, 2009, this then 46 year old truck driver’s trailer was struck by another truck. The prior Appeals Resolution Officer’s (ARO) decision dated December 2, 2013 provides an outline of the claim history. The prior ARO found that a second opinion by a neurologist was required to determine if there was a permanent impairment (PI) for peripheral vestibulopathy. The ARO directed that once the report was on file, Operations was to obtain a medical opinion to assist in determining if a PI was evident. The resulting neurological report is dated March 25, 2014. A medical opinion was obtained April 25, 2014. On April 29, 2014, Operations determined that a PI was evident with the maximum medical recovery (MMR) date of May 3, 2013.
Date of NEL Decision: July 15, 2014
Current NEL % and Area of entitlement under review:
The current NEL benefit of 15% is comprised of a 5% NEL award for peripheral vestibulopathy and 10% for a right shoulder supraspinatus tear. The issue before me is the quantum of the 5% vestibular NEL benefit.
Worker’s position
The worker argues that the medical evidence supports a more serious level of impairment than is currently reflected in the 5% NEL benefit. It is the worker’s position that a more appropriate rating would be 10% (the higher range of class 2), or at the lower end of class 3 (15%).
AUTHORITY
The following Operational Policies apply:
18-05-03 Determining the Degree of Permanent Impairment (October 1, 2001)
18-05-04 Calculating NEL Benefits
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 Association’s Guides to the Evaluation of Permanent Impairment, 3rd. edition revised, (AMA Guides).
ANALYSIS
I find for the reasons outlined below that a 5% NEL benefit for peripheral vestibulopathy is appropriate.
I have considered all of the available information, legislation and relevant operational policies in reaching this decision. The Respondent Form issued to the employer’s representative on December 16, 2014 has not been returned.
Specifically, I have reviewed the worker representative’s (WR) submissions of August 8, 2014 and November 3, 2014. I have also reviewed the Case Manager’s (CM) August 6, 2014 denial of entitlement to vision loss and prescription glasses. The issue of work-related vision loss is not properly before me as it is distinct from the NEL decision of July 15, 2014.
CT, MRI, and EEG investigations
I accept that the CT, MRI and EEG reports confirm normal findings. The WR highlights that the January 6, 2010 CT report shows a large chunk of foreign material or cerumen (ear wax) in the right external auditory canal. I find that this is an incidental finding as the January 12, 2010 specialist’s report documents that the worker’s ears were examined and debrided. The CT report of January 6, 2010 and the specialist’s January 12, 2010 report both confirm normal CT findings with some incidental changes.
I note that the May 6, 2011 brain MRI report documents an impression of mild, nonspecific and likely insignificant white matter foci of hyperintensity which is seen within the right frontal pole. I accept the MRI report’s opinion that this white matter does not appear to lie in a pattern associated with previous head trauma. As a result, I additionally accept the MRI report’s suggestion that the hyperintensities are likely normal for the worker’s age and gender.
An EEG was performed March 5, 2013. The March 6, 2013 report documents it was within normal limits. A continuous alternating and bilateral motor function task is documented as being well performed. Accordingly, I find that the clinical investigations show normal results.
Weighing of medical evidence
I afford the most weight to the neurological report of March 25, 2014. The NEL Clinical Specialist (NCS) determined that the vestibular impairment was 5%, or the low-end of class 2 impairment. Policy 18-05-03 states that once maximum medical recovery is reached, the NEL rating is to be determined using the AMA Guides and the medical evidence contained within the case record. The WR suggests that the NCS ignored medical evidence in favour of the Workplace Safety and Insurance Board (WSIB) funded expert who assessed the worker once.
I am bound by the prior ARO decision of December 2, 2013. The previous ARO clearly directed Operations to arrange for a second opinion by a neurologist. Policy 18-05-03 confirms that the AMA Guides are the prescribed rating schedule. The AMA Guides (page 178) state that final conclusions regarding vestibular disorders should be based on the worker’s condition after it is medically stable. The CM determined that MMR was reached May 3, 2013.
The WR cites the vestibular physiotherapy reports as confirming symptoms of oculomotor impairments, eye shifting, and saccadic eye movements. The March 25, 2014 report documents that the worker’s eye movements were full with no diplopia or nystagmus (involuntary eye movement). No irregular saccades were observed.
I appreciate the WR’s argument that the vestibular physiotherapists assessed the worker multiple times, while the neurological second opinion was based on a single assessment. I also acknowledge that the CM set the MMR date based on the worker’s May 3, 2013 discharge from vestibular physiotherapy. At the same time, I must consider that the prior ARO directed that a second neurological opinion be obtained.
I observe that the March 25, 2014 report confirms that the neurologist reviewed the medical documents including the vestibular physiotherapy reports. Therefore, I accept that the neurologist was aware of the therapists’ clinical reporting relating to the two periods of vestibular physiotherapy. As a consequence, I find that the March 25, 2014 neurological report should be afforded the most weight when determining the vestibular NEL benefit.
NEL Quantum
I find that a 5% NEL benefit is in order. The AMA Guides (page 178) provide a rating of 5-10% for a class 2 vestibular impairment if there are signs and objective evidence, and usual activities of daily living (ADLs) are performed without assistance with the exception of complex activities. The AMA Guides defines complex activities as including riding a bicycle, or work duties involving walking on girders or scaffolds. The WR argues that the NEL should be set at either the high-end of class 2, or at the lower end of class 3.
Tinnitus
I find that the worker’s tinnitus was appropriately considered within the 5% NEL rating. The AMA Guides (page 173) state that tinnitus is not measurable. The AMA Guides direct that the value should be established based on severity and importance. The WR observes that the NCS did not appear to specifically consider the well-documented medical evidence of tinnitus.
The March 25, 2014 neurological report documents that the worker has an intermittent ringing tone in his head. The worker reported that it was a random experience with no predictable pattern in timing. I appreciate that the May 9, 2011 neurology report suggests that the tinnitus may possibly be related to a right cochlear injury. At the same time, I must consider that the March 25, 2014 report is closer to the MMR date. Therefore, I accept that the worker’s tinnitus reasonably falls within the low-end of a category 2 vestibular impairment.
Balance
I accept that the worker’s balance issues are most appropriately rated at the lower of class 2. The WR observes that the March 25, 2014 report refers to two occasions on which the worker fell. The WR outlines the case record contains evidence that the worker fell while walking down the street, and also while in the shower which led to secondary right shoulder entitlement.
The worker’s written statement contained within the case record outlines that he fell in the shower on December 2, 2012 shortly after performing his vestibular exercises. The worker also describes falling during a walk in January 2012. The March 25, 2014 report provides the additional detail that the worker slipped on ice while on a slope.
In my view, both the worker’s fall on a slope with ice and while in the shower represent activities which may be associated with a higher risk than other ADLs. In other words, while I appreciate that the worker’s balance caused him to fall I must also consider the factors of walking on an icy slope and standing in the shower.
The March 25, 2014 report documents that the worker was unsteady after approximately 10-11 seconds of performing the Romberg’s test. Nonetheless, the report also documents that the worker walked well on heels and toes without imbalance. Further, the worker performed full deep knee bends.
I observe that there was no drift of the worker’s outstretched arms. Additionally, the worker’s fine movements with the outstretched hand were normal. The worker performed the finger-nose test normally with his eyes both open and closed. Based on these clinical tests, I find that the worker’s balance is within the lower end of class 2 impairment.
Gait
I find that the worker’s gait is most accurately rated at the low end of class 2 impairment. The neurologist’s March 25, 2014 report states that special attention was paid to the worker’s gait. The WR highlights that the worker’s gait was ataxic.
I am not persuaded that the worker’s gait is consistently altered. I acknowledge that the neurologist’s March 25, 2014 documents an ataxic gait with a tendency to lurch to the right. Nonetheless, the worker self-corrected well.
The neurologist observed that sometimes the worker performed tandem gait well, while at other times there was an “exaggerated sense of staggering that approached astasia/abasia”. It is my understanding that the term astasia refers to an individual’s inability to stand upright without assistance, while abasia is the inability to walk normally. As outlined above, the worker was able to deep knee bend as well as walk on heels and toes without imbalance. Therefore, I accept that the worker’s gait is appropriately rated within the low-end of a class 2 vestibular impairment.
CONCLUSION
Based on the evidence outlined in this decision, I conclude that peripheral vestibulopathy was appropriately rated as a 5% non-economic loss (NEL) benefit.
The worker’s objection is denied.
DATED March 24, 2015
K. MacMillan Appeals Resolution Officer Appeals Services Division