Appeals Resolution Officer Decision
Decision Number: 20210023
Objecting Party: Worker
Represented by: Worker Representative
Respondent: Employer (Not-Participating)
Represented by: None
Hearing: Hearing in Writing
Heard by: S. Di Carlo, Appeals Resolution Officer
Issue
The worker through her representative objects to the Non-Economic Loss (NEL) Specialist’s (NCS) decision dated June 23, 2020, which confirmed the quantum of her NEL award and offset a 50% apportionment due to a pre-existing condition.
Background
On February 7, 2012, this now mid 50-year-old part-time school bus driver was turning to her left to check the road when she hit a pothole and jolted her neck. The worker also claimed that the repetitive nature of her job duties led to her injuries as she has pain in her neck, upper back, and bilateral elbows and shoulders.
Entitlement was initially accepted for right shoulder tendonitis due to the repetitive opening and closing of the school bus door; however, entitlement to the neck, left elbow and left shoulder were denied.
In January 2013, a Case Manager (CM) reviewed ongoing entitlement and determined that the issues in the right shoulder were degenerative in nature and not the responsibility of the claim, and ongoing benefits were denied.
In February 2014, entitlement to chronic pain disability (CPD) was denied as the criteria for allowance was not met.
An Appeals Resolution Officer’s (ARO) decision dated September 15, 2014, denied ongoing right shoulder entitlement beyond November 26, 2012. The ARO allowed initial entitlement for a cervical strain and found the worker recovered as of November 26, 2012. Initial entitlement to the left shoulder and bilateral elbows was denied along with CPD.
A Workplace Safety Appeals Insurance Tribunal (WSIAT) decision dated October 30, 2017, granted ongoing entitlement to benefits beyond November 26, 2016, for the worker’s right shoulder labral tear. The Vice-Chair concluded the worker has entitlement to ongoing benefits for a neck condition as the workplace accident aggravated a pre-existing condition. The Vice-Chair granted initial entitlement to benefits for a left shoulder condition as the nature of the worker’s duties aggravated a pre-existing condition and entitlement for a bilateral elbow condition was accepted as it was causally related to the repetitive nature of the worker’s job duties. The nature and duration was remitted back to the Board for further adjudication.
Following the implementation of the Tribunal decision, the CM accepted a permanent impairment was evident for the both elbows for lateral and medial epicondylitis, left shoulder biceps tendinitis, a right shoulder labral tear and mild stable chronic C5/6 cervical radiculopathy: degenerative disc disease (DDD) of the cervical spine and chronic myofascial pain syndrome for the neck. The CM determined the worker achieved maximum medical recovery (MMR) as of December 20, 2019, and the file was referred to the Permanent Impairment Program for a NEL rating.
In a decision dated June 23, 2020, the NCS determined a 17% NEL benefit for the worker’s permanent impairments. As well, the NCS confirmed the 17% NEL benefit was offset by a 50% apportionment due to a pre-existing condition. On November 6, 2020, the decision was reconsidered and upheld.
The worker’s representative is appealing the apportionment of 50% offset due to pre-existing impairment, which now forms the basis of this appeal.
Authority
Operational Policy Manual
Published
15-02-03 Pre-existing Conditions November 3, 2014
18-05-03 Determining the Degree of Permanent Impairment November 3, 2014
American Medical Association’s Guides to the Evaluation of Permanent Impairment, 3rd.edition revised.
Analysis
I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision. I find in favour of the worker. The following is my rationale.
On the Appeal Readiness Form (ARF) dated February 3, 2021, the worker’s representative refers to her prior submission dated July 10, 2020, for consideration. In this submission, the representative submits that it appears certain pieces of medical documentation were chosen in an attempt to demonstrate and support that the worker had a “pre-existing impairment to the neck, bilateral shoulder and bilateral elbows” prior to the date of injury; February 7, 2012.
The representative submits that the worker’s claim was initially allowed for a right shoulder tendonitis; however, entitlement was expanded to include a right shoulder labral tear, neck, left shoulder and bilateral elbow injuries. The representative contended that the Vice-Chair did not rule on CPD, and that entitlement was granted on an organic basis, and that no decision has been rendered by the Tribunal regarding CPD entitlement. The representative referred to the reports considered by the NCS in support of the apportionment; “seemingly as consultation reports that make findings relating to complaints of chronic pain”; however, these reports were relating to treatment that was directly related to the worker’s compensable conditions and allowed by the Tribunal.
The representative submits that the worker has no history of symptomatic complaints regarding the areas of entitlement (neck, bilateral shoulders and elbows) nor are there any diagnostics or diagnoses on file that confirm the presence of findings prior to the date of accident. The representative states the worker had no medical treatment for the areas of entitlement with the exception for the minor mentions of pain in the clinical records on file; two (2) visits in total prior to the workplace injury, which would not support a major apportionment reduction of 50%. The representative submits that the minor/mild degenerative eventually noted on the diagnostic imaging do not warrant a reduction in the amount of 50% and that there is a significant absence of evidence to support any significant pre-accident condition that required health care treatment or job modification for the 14 years the worker was performing her pre-injury job. The representative seeks that the 50% apportionment be overturned in this case and that the worker’s full NEL quantum of 36% be reinstated.
The employer is not participating in this appeal.
From the offset, in considering the worker representative’s submissions this appeal is limited to the apportionment of the NEL offset further to the NCS’s decision dated June 23, 2020. In my review, there is no evidence that the worker representative has any objections to the NEL calculation itself as no arguments were presented rather the representative objects to the apportionment offset of 50% from the NEL quantum amount.
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).
Further to the Tribunal decision dated October 30, 2017, the Vice-Chair found “based on a balance of probabilities, that the compensable accident aggravated a previously asymptomatic degenerative condition in the worker’s neck and she has yet to return to her pre-accident state…the worker’s repetitive job duties played a significant role in aggravating the underlying degenerative condition in her left shoulder…the nature of the worker’s duties made a significant contribution to the onset of her bilateral elbow conditions.”
I refer to operational policy 15-02-03, titled “Pre-existing Conditions” which provides the following definition: “a pre-existing condition is any condition that existed prior to a work-related injury/disease, and may include injuries, diseases, degenerative conditions, and psychiatric conditions. The existence of the condition must be confirmed by pre-injury or post-injury clinical evidence and may have been evident prior to the occurrence of the work-related injury/disease or it may become evident afterwards.” The policy indicates where the clinical evidence demonstrates that a pre-existing condition has been aggravated as a result of a work-related injury/disease, benefits continue until the worker recovers from the aggravation of the pre-existing condition.
In this case, entitlement has been accepted for bilateral elbow lateral and medial epicondylitis, left shoulder biceps tendinitis, a right shoulder labral tear and mild stable C5/6 cervical radiculopathy: DDD of the cervical spine and chronic myofascial pain syndrome further to memo A0017.
On June 11, 2020, the NCS completed a NEL Evaluation for the diagnoses of:
- Bilateral elbows, lateral and medial epicondylitis
- Biceps tendinitis, left shoulder
- Labral tear, right shoulder
- C5/6 radiculopathy, DDD, chronic myofascial pain syndrome, neck
Regarding the above diagnoses, the NCS considered the medical information within the claim record in accordance with the AMA Guides and determined the impairment calculation summary to reflect a whole person impairment (WPI) of 36%. Following this determination, the NCS concluded that the available medical reports support that the worker’s 36% NEL quantum should be adjusted for a pre-existing condition that affect the same areas of the body as her permanent impairment entitlement diagnoses and that the condition is to be of major significance, therefore a 50% reduction is applied resulting in a WPI of 17% in this claim.
In considering the issue before me regarding the apportionment offset, I refer to operational policy 18-05-03, titled “Determining the Degree of Permanent Impairment” for guidance. The policy stipulates
a worker who has a work-related permanent impairment is entitled to a NEL benefit based on the degree of his/her work-related permanent impairment determined by the decision-maker. The decision-maker uses a prescribed rating schedule, all relevant health care information in the claim file and, if required, a report from an independent medical assessment, to determine the degree of permanent impairment.
If a condition other than the work-related injury/disease is contributing to the total degree of impairment to the area, the degree of impairment caused by the work-related injury/disease is determined.
When determining the degree of work-related permanent impairment for workers who have a pre-existing condition, or a prior work-related permanent impairment, 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.
If a pre-existing condition affects a different area of the body, the decision-maker rates the new work-related impairment on its own without any reduction for the pre-existing condition.
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 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 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.
In reviewing the documentary evidence I agree with the worker representative that the medical evidence does not warrant a major pre-existing condition resulting in a 50% reduction, rather that the worker’s pre-existing condition is minor and that no reduction is offset in accordance to policy 18-05-03.
The NCS referred to the following medical evidence in support of a major pre-existing condition:
Dr. Noad’s clinical notes dated September 6, 2011, October 4, 2011 and February 9, 2012, which noted pain noted in elbows, neck, and shoulders. “Ongoing neck pain…has been aggravated [emphasis added] by bumps in road while driving bus…May need to see rheumatologist after imaging.”
Dr. K. Legault medical reports dated October 21, 2014, May 18, 2015 and November 17, 2015 indicated: “As you know, she is a 45-year old woman whom I have previously seen for multifocal joint and soft tissue pain, most consistent with fibromyalgia”... “She continues to have chronic pain that she localize [sic] to her whole body.”
The Electromyography (EMG) report dated August 22, 2016, outlined a diagnosis of fibromyalgia and noted on physical examination affected by “pain inhibited efforts”.
A reissued clinical note by Dr. E. Tunks dated March 9, 2018, revealed “Ranges of motion for the neck, shoulders, and elbows are not limited by orthopedic as much as by pain.”
I note that CPD was denied further to the ARO CPD in the decision dated September 15, 2014 and that the Vice-Chair did not consider CPD entitlement in the WSIAT decision dated October 30, 2017. Based on the NCS’s review of the above medical documentation, I presume that the NCS considered the worker’s fibromyalgia condition to be considered a pre-existing condition; however, in my review of the available medical documentation I find that aside from two (2) occasions of pain complaints, there is no medical evidence to support the worker was diagnosed with fibromyalgia prior to the workplace injury and it was not until years following the workplace accident that the worker was diagnosed with fibromyalgia. The existence of fibromyalgia was not confirmed by pre-injury or post-injury clinical evidence.
In my review of the medical documentation, I note further to Dr. Noad’s clinical note of September 6, 2011, there was no specific recommendation for an x-ray of the worker’s neck, bilateral shoulders or elbows, nor did the September 28, 2011 clinical note make reference of an x-ray being performed of the neck, shoulders or elbows. Rather, the worker underwent diagnostic imaging of an x-ray at a clinic for her pelvis, left hip x-ray and left wrist, which she has no entitlement to in this claim.
Of significance, I note the clinical note dated February 9, 2012, reflects the worker’s first medical visit post-accident and while it referenced ongoing neck pain causing her headaches, it has “been aggravated by bumps in the road while driving the bus; radiating down her back.” Left elbow pain medially for several months with right shoulder difficulty was noted. The worker was experiencing considerable and wide spread soft tissue pain.
In my view, there are no diagnoses or diagnostics on file that would confirm the presence of findings prior to the workplace injury aside from the mild degenerative changes that were accepted by the Vice-Chair in the WSIAT decision of October 30, 2017, for the worker’s neck and left shoulder conditions. However, in my view, these conditions would result as a minor pre-existing condition and therefore would not warrant a reduction of the worker’s NEL quantum.
The worker representative contended that the February 24, 2012, ultrasound of the cervical spine and right shoulder did not refer to a previous report for comparison nor did the Magnetic Resonance Imaging (MRI) of the cervical spine of May 13, 2012, confirm any previous imaging for comparison by the radiologist.
Furthermore, there is no medical evidence pre-injury that would deem the degenerative findings to be measureable according to the AMA Guides. The degenerative findings outlined on the diagnostic are noted as mild and have been mainly asymptomatic prior to the date of injury. In summation, the mild degenerative conditions reflect a minor pre-existing condition which in accordance with policy 18-05-03 does not warrant a reduction of the worker’s NEL benefit, which was initially calculated at 36% WPI under this claim.
In this case, I find the worker’s 36% NEL benefit in this claim does not warrant a reduction and I remit the NEL quantum back to the Operating Area for further adjudication flowing from this decision.
Conclusion
Based on the above, I find the worker’s 36% NEL benefit in this claim does not warrant a reduction and I remit the NEL quantum back to the Operating Area for further adjudication flowing from this decision.
The worker’s objection is allowed.
June 24, 2021
S. Di Carlo Appeals Resolution Officer Appeals Services Division