WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20172026
OBJECTING PARTY: Worker
REPRESENTED by: Representative
RESPONDENT: Employer
Date: August 2, 2017
HEARD by: H. Shaw, Appeals Resolution Officer
ISSUE
The worker is objecting to the quantum of her Non-Economic Loss (NEL) benefit, which was offset because of a pre-existing condition.
BACKGROUND
Injury History:
The worker was employed in a shipping department. On November 14, 1994 she injured her low back while moving boxes. She was 47 years old at the date of injury and is currently 70 years old. Entitlement was granted for a low back strain and multilevel disc herniations. She had surgery at the L4-5 level on November 8, 1996.
She was granted a 28% NEL benefit for her low back in 1996. She was also granted a 35% NEL benefit for a psychotraumatic disability in 2002, increasing her total NEL benefit to 53%. A decision by the Workplace Safety and Insurance Appeals Tribunal (WSIAT) on September 30, 2016 granted a NEL redetermination for her low back.
Date of NEL Decision:
December 16, 2016
Current NEL % and Area of entitlement under review:
The decision of December 16, 2016 determined there was no measurable permanent worsening of her work-related low back impairment, after the NEL benefit was reduced due to a pre-existing condition. Her total NEL benefit remained at 53%.
AUTHORITY
Operational Policies
11-01-05 Determining Permanent Impairment
18-05-03 Determining the Degree of Permanent Impairment
18-05-04 Calculating NEL Benefits
18-05-09 NEL Redeterminations
The NEL benefit 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 benefit is payable whether or not the worker suffers any wage loss as a result of the injury.
A work-related impairment is considered permanent when it continues to exist after a plateau in recovery has been reached. This is referred to as maximum medical recovery (MMR).
The term permanent impairment is defined as any permanent physical or functional loss (including disfigurement) which results from any injury and any psychological damage arising from the abnormality or loss. This definition is taken from section 2(1) of the WSIA.
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 have considered all of the available information, legislation and relevant operational policies in reaching this decision and find there is no entitlement to an increase in the NEL benefit for the worker’s low back. My reasons are explained below.
WSIAT Decision
The NEL redetermination was directed by the WSIAT decision of September 30, 2016. The most pertinent findings from that decision are:
The worker experienced a significant deterioration in her compensable low back impairment and thus has entitlement to a NEL redetermination for that impairment.
The low back range of motion values reported in September 2011 were significantly worse than the range of motion reported in 1995.
The MRI of March 30, 2012 showed a worsening of the affected levels, with a significant area of impingement at L4-5.
The worker required increased physiotherapy treatment and more potent pain medication.
The worker’s entitlement is for multilevel disc herniations and surgery at the L4-5 level.
The work injury remained a significant contributing factor in her deteriorated condition, even if age-related changes were also a contributor.
Low Back Total Impairment Rating
Three criteria are considered when rating spine impairments:
Range of Motion (ROM);
Impairments due to Specific Disorders of the Spine (Table 53); and
Neurological disorders (when appropriate).
These criteria were considered by the NEL Clinical Specialist on the NEL Evaluation form dated December 12, 2016. A physiatrist’s report dated September 19, 2014 indicated the worker’s range of motion was less than 5° in all directions; therefore, the worker was rated at 4° for each range of motion. This resulted in a 27% impairment rating for abnormal motion in her low back. She was rated with a 10% impairment for the surgically treated disc lesion under Table 53 II E on page 80 of the AMA Guides. She was also rated with a 2% impairment for the sensory deficit. When these impairment values were combined, using the Combined Values Chart from the AMA Guides, it resulted in a 35% total impairment rating for the low back. This reflected a 7% increase from the previous NEL rating for the low back, which I consider to be consistent with the findings and conclusions from the WSIAT decision. The worker representative has not objected to the total impairment rating for the low back.
Reduction for a Pre-existing Condition
Although the total impairment rating for the low back increased to 35%, there was no increase in the NEL benefit for the low back because it was reduced due to a pre-existing condition.
According to Operational Policy 18-05-03, when determining the degree of work-related permanent impairment for workers who have a pre-existing condition, the decision-maker:
rates the area of the body affected by the work-related permanent impairment
disregards any pre-existing conditions affecting other areas of the body, and
factors out pre-existing conditions and prior-work-related permanent impairments affecting the same area of the body.
To factor out a pre-existing condition, it must be established that it is contributing to the degree of impairment to the same area of the body as the work-related permanent impairment. To establish this, the evidence must show that the pre-existing condition, on its own, would result in an impairment rating. The pre-existing condition does not need to have produced periods of impairment or disease requiring health care, or have caused a disruption in employment, in order to factor out its rating from the total impairment rating.
If it is established that a pre-existing condition is contributing to the degree of total impairment to the same area of the body, the decision-maker:
rates the total impairment to the area according to the prescribed rating schedule
determines the rating for the pre-existing condition according to the prescribed rating schedule, and
subtracts the rating for the pre-existing condition from the total impairment rating to get the rating for the new work-related impairment.
If the pre-existing condition cannot be rated according to the prescribed rating schedule, the medical significance of the pre-existing condition is determined based on the clinical evidence and the decision-maker reduces the total impairment rating of the area according to the determination. If the significance of the pre-existing condition is:
minor, there is no reduction
moderate, there is a 25% reduction
major, there is a 50% reduction.
The NEL Clinical Specialist determined the worker had a moderately significant pre-existing condition in her low back, which resulted in a 25% reduction of the total impairment rating. This reduced the NEL rating for the work-related component of her low back injury to 26.25% and her NEL benefit did not increase.
The Worker’s Position
The worker representative provided a submission dated April 5, 2017. It is his position there should have been no reduction for a pre-existing condition under Operation Policy 18-05-03, as the pre-existing condition should be considered minor in severity. He argued that although the worker had back problems before the workplace accident in November 1994, she had not lost time from work between May 1993 and November 1994. He asserted the workplace injury changed every aspect of her life. He provided a copy of WSIAT decision 2657/16, which determined an underlying or asymptomatic condition is not sufficient to permit a reduction of NEL benefits. It is his position the worker should have a 35% NEL rating for her low back.
Assessment of the Evidence
I find the worker had a pre-existing condition in her low back that was symptomatic before the workplace injury. A CT scan of the lumbar spine in October 1994 showed a disc herniation at L4-5 and left-sided L-5 spondylolysis. The clinical records showed she was having symptoms and receiving treatment as a result of this pre-existing condition. A report from a physical medicine and rehabilitation specialist dated September 30, 1994 indicated the worker had a history of recurrent low back pain with significant low back spasm for several years. The report noted the worker felt the episodes of back pain when she needed to rest for 2 or 3 days were increasing, with 5 severe disabling episodes in the previous year. A report from her chiropractor dated March 24, 1995 documented a history of low back complaints dating back to 1988. In the 18 month period before the workplace injury, the chiropractor treated her for low back pain between May 25, 1993 and July 14, 1993 and from April 18, 1994 to June 15, 1994. Although the worker representative argued she had not lost time from work between May 1993 and November 1994, the March 24, 1995 report indicated she lost time from work in April 1994.
Although the pre-existing condition was not offset from the NEL benefit at the initial determination, I find the offset at the redetermination is supported by Operational Policy 18-05-09. That policy confirms pre-existing conditions that contribute to the degree of impairment to the area of injury at the time of redetermination may be factored out, even if they were not factored out at the time of the initial determination.
The worker representative argued the pre-existing condition was minor in severity, but I find the medical evidence and opinions support a finding that the pre-existing condition was moderate in severity. The issue was reviewed by a Medical Advisor on April 10, 1995, who concluded the claim was enhanced or prolonged by a moderately severe pre-existing condition. I find this opinion is consistent with other medical reports documenting regular episodes of severe disabling back pain prior to the workplace injury.
The NEL Clinical Specialist treated the pre-existing condition as non-measurable and reduced the NEL benefit by 25%. The pre-existing condition could have been rated under the prescribed rating schedule, but I find it would not have made a difference to the outcome of the decision. Using Table 53 II C on page 80 of the AMA Guides, the worker had intervertebral disc or soft tissue lesions, unoperated, with medically documented injury and a minimum of 6 months of medically documented pain and rigidity with muscle spasm, associated with moderate degenerative changes. The pre-existing L4-5 disc herniation would be rated as a 7% impairment. Under Table 53 III A on page 80 of the AMA Guides, the pre-existing L5 spondylolysis would be rated as an 8% impairment. If the total impairment rating of 35% had been reduced by either of these pre-existing spinal disorders, the result would have been the same; there would have been no increase in the NEL benefit for the low back.
I reviewed WSIAT Decision No. 2657/16, relied on by the worker representative, but find it is not applicable to this case. The Operational Policy relied on in that decision was policy 18-05-05, Effect of Pre-existing Impairment. That policy was not applicable to the NEL redetermination decision of December 16, 2016, because Operational Policy 18-05-03 applies to all decisions made on or after November 1, 2014. That policy states that a pre-existing condition does not need to have produced periods of impairment or disease requiring health care or have caused a disruption in employment in order to factor out its rating from the total impairment rating. In this case, there is clear evidence of periods of impairment and employment disruption related to the low back condition prior to the workplace injury.
In summary, I find the worker was correctly rated with a 35% total impairment rating for her low back at the redetermination. I also find it was appropriate to reduce the total impairment rating because of a pre-existing condition in her low back. Although the worker had a significant deterioration in her low back impairment, once the pre-existing condition was factored out of the rating, I find there should be no increase in the NEL benefit for her low back.
CONCLUSION
I conclude there is no entitlement to an increase in the NEL quantum for the low back. The total impairment rating for the low back was appropriately reduced due to a pre-existing condition.
The objection is denied.
DATED August 2, 2017
H. Shaw
Appeals Resolution Officer
Appeals Services Division