WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
decision number:
20150095
DECISION DATE:
June 5, 2015
OBJECTING PARTY:
Worker
REPRESENTED by:
Worker Representative
RESPONDENT:
Employer (no longer in operation)
HEARING:
Hearing in Writing
HEARD by:
R. Sheridan, Appeals Resolution Officer
ISSUE:
The worker in this case is requesting entitlement for a permanent disability (PD) reassessment on the basis that his compensable condition has deteriorated.
BACKGROUND:
On September 19, 1974 this then 31 year old worker sustained injuries to his low back after lifting a heavy tool box with a co-worker. At the time of injury the worker was employed with (the company) as a labourer since May 6, 1974.
The initial diagnosis was for low back strain and sciatica. Treatment post-accident was conservative consisting of analgesics. X-rays showed evidence of degenerative disc disease at L2-L3.
On September 23, 1977 the worker was seen for a permanent disability (PD) assessment and was awarded a 15% PD for the lumbar spine.
On August 4, 1978 the 15% PD award was confirmed.
On April 29, 2003 the PD award as increased to 20% retroactive to April 5, 1992. Then the award was increased to 30% retroactive to November 4, 2001. The working diagnosis was strained back with degenerative disc disease at L2-L3, severe spinal stenosis, and chronic mechanical low back pain.
On March 19, 2009 the PD award was increased to 35% based on chronic low back pain, advanced degenerative disc disease, and severe spinal stenosis. Further deterioration was anticipated.
On December 9, 2010 a laminectomy was performed at the L3-L4 level. On January 24, 2012 a second laminectomy and spinal fusion was performed at the L3-L4 and L5-S1 levels. After review entitlement for these surgeries was denied.
In a decision dated October 31, 2014 an Appeals resolution Officer concluded that entitlement for the surgeries was in order.
On January 13, 2015 entitlement for a PD reassessment was denied. The rationale for this denial was that the worker was seen to have improved from his pre-surgery levels.
On April 15, 2015 the worker formally objected to the denial of a PD reassessment.
RESOLUTION METHOD AND PROCESS:
On May 15, 2015 the worker, through his representative was informed that a decision would be rendered based on the information on file without the necessity of a formal hearing.
The employer is no longer in operation.
In reaching this decision I had regard for the worker arguments, the Board record, and Operational policy.
AUTHORITY:
Policy No: 18-07-01 : Determining The Degree of Disability
ANALYSIS:
The worker representative argued through the original objection form that the worker has a failed back and that the previous Appeals Resolution Officer had allowed for additional levels in the low back.
Policy 18-07-01, determining the degree of disability, stipulates:
“When residual impairment continues even though the maximum medical recovery expected has been achieved following an accident, the WSIB undertakes a permanent disability evaluation. Generally, the evaluation is considered when the condition is stable, and the worker has attained maximum medical recovery.
If a permanent disability worsens, the WSIB may reassess the worker's disability. Additional disability developing subsequently is determined by physical examinations which may be made from time to time. The pensions awards considered include both monthly awards and previously commuted lump sum awards.”
In reviewing the information on file it is noted that in the decision, rendered on October 31, 2014, the Appeals Resolution Officer found that the workplace accident caused a permanent deterioration in the pre-existing conditions of degenerative disc disease and spinal stenosis. The worker required the operations due to a work-related deterioration of the degenerative conditions.
In order to determine if there is evidence of a deterioration the physical findings from the last PD reassessment of March 19, 2009 were compared to the last medical report on file dated December 3, 2014.
March 19, 2009
December 3, 2014
Flexion
0 degrees
60 degrees
Extension
8 degrees
5 degrees
Left lateral flexion
5 degrees
5 degrees
Right lateral flexion
5 degrees
5 degrees
Left straight leg raising
0 degrees
0 degrees
Right straight leg raising
5 degrees
0 degrees
Left patellar reflex
absent
decreased
Right patellar reflex
present
decreased
In comparing these physical findings there is a noted improvement in flexion and left patellar reflex. The rest of the findings are either the same or show a minor deterioration. Taken as a whole the results indicate that the worker is physically improved post-surgery.
I find from my analysis that the most recent medical measurements are not supportive of a PD reassessment for the lumbar condition.
CONCLUSION:
I conclude based on the objective medical evidence that there is no entitlement for a PD reassessment for the lumbar condition.
The worker’s objection is therefore denied.
DATED this day June 5, 2015
R. Sheridan
Appeals Resolution Officer
Appeals Services Division