APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER:
20230010
OBJECTING PARTY:
worker
REPRESENTED by:
worker representative
RESPONDENT:
employer (out of business)
HEARING:
HEARING IN WRITING
HEARD by:
DATED:
l.cirillo, appeals resolution officer
NOVEMBER 28, 2022
ISSUE
The worker objects to the Case Manager’s (CM’s) decision dated May 25, 2022, which denied a Permanent Disability (PD) reassessment for the lower back.
BACKGROUND
There a number of prior Appeals Resolution Officer (ARO) and Workplace Safety & Insurance Appeals Tribunal (WSIAT) decisions on file that provide a detailed claim background, which will not be repeated in their entirety.
Briefly, however, on August 3, 1978, the worker injured their lower back and left hip (left flank hematoma) when they were struck by a front-end loader, which was backing up. At the time, the worker had been working for the employer as a Garbage Truck Driver.
The worker received the following for the lower back (including a left flank hematoma)
March 1984 - 10% PD
November 1996 – increased PD to 15%
August 2008 – increased PD to 20%
Following the WSIAT decision dated February 28, 2018, the worker was granted a PD reassessment, which resulted in an increase to a 25% PD.
The WSIAT decision dated January 4, 2021, denied secondary entitlement for the left knee.
In May 2020, the worker underwent MRI investigation of their lower flank region, which confirmed the presence of chronic hematomas (two). In their report dated February 25, 2021, Dr. Vivek Panchapakesan, Plastic and Reconstructive Surgeon outlined that repeat MRI once again confirmed the presence of chronic hematomas or seromas, which continued to cause the worker significant discomfort and as a result, he suggested that the worker undergo surgical excision.
The worker underwent excision of the complex masses on their lower back with fascial and muscle excision on March 24, 2021.
The operating area concluded that noting there was evidence of a hematoma dating back to the date of injury, entitlement for the surgical excision and associated Temporary Total Disability (TTD) benefits were in order. The decision was communicated to the worker in correspondence dated April 28, 2021.
Following the surgery, the worker developed some post-surgical complications. As a result, the operating area granted entitlement for a lift chair.
In correspondence dated September 29, 2021, the worker’s representative wrote to the WSIB and requested a PD reassessment, additional healthcare benefits and home modifications.
The worker continued to see Dr. Panchapakesan for regular follow-ups and by December 6, 2021, the specialist noted that they had healed quite well and there was no evidence of any re-accumulation or infection. This was re-confirmed in their report dated March 28, 2022.
In correspondence dated May 12, 2022, the worker’s representative wrote to the WSIB again and
re-requested consideration for a PD reassessment.
It was ultimately concluded that based on the medical reporting beyond 2018, there had been no unanticipated worsening of the low back being below the accepted 25% PD level. For these reasons, a PD reassessment was denied. The decision was communicated to the worker in correspondence dated May 25, 2022.
The worker objected to the above decision; however, it remained unchanged and as a result, the matter was referred to the Appeals Services Division for further consideration.
Worker’s Position:
In correspondence dated October 20, 2022, the worker’s representative disagrees with the decision, which denied a PD reassessment. They provide a claim history and summary of the memos on file, which will not be repeated.
In support of their position, the representative argues the following in part:
In their view, the objective clinical findings support a measurable change in the low back;
They refer to memos A0023, A0027 & A0032, which allowed the March 24, 2021 surgical excision, a lift chair and TENS machine;
They further argue that the worker has significant mobility issues that support a PD reassessment as follows:
The need for active clinical treatment
Changes in functional abilities
There is a causal link between the significant deterioration and the original injury
The representative re-refers to memo A0023, which quotes the specialist’s report in that the removal of the growth would be a significant task. They also refer to the report dated July 21, 2021, where the specialist noted the necessity of a medical recliner post-operatively;
In their view, this confirms that the worker’s functional abilities have diminished and there is an increase and necessity for ongoing medical treatment;
In their view, worsening range of motion (ROM) values are just one tool in determining a significant deterioration;
In totality, the worker’s lower back condition has deteriorated if one compares the changes in their functional abilities and need for active clinical treatment;
They argue there is a causal link between the significant deterioration and the original injury;
In support of this they refer to the report dated December 6, 2021, in which it was noted that the worker was seen at a pain clinic and they declined to perform spinal injections due to concerns about infection;
In their view, the worker’s level of pain and complaint to the lower back are increased since 2018 and onwards;
For these reasons, theyrequest a PD reassessment for the lower back
AUTHORITY
Operational Policy Manual
Published
18-07-01 – Determining the Degree of Disability
18-07-02 – The Ontario Rating Schedule
January 2, 2015
October 12, 2004
ANALYSIS
I have reviewed the record and considered the information and relevant operational policies in reaching this decision. In considering all of the evidence including the medical reporting on file and the arguments presented, I find there is no entitlement for a PD reassessment of the low back. The rationale for my decision is as follows.
Prior to my analysis, I must outline some of the findings made in the February 28, 2018 and
January 4, 2021 WSIAT decisions, as I am bound by them.
Decision dated February 28, 2018: On page 7, paragraph [18] & [19], the Tribunal found the following in part:
“I further note, that the undated report from Dr. Tsang, likely written after August 25, 2015 as it references an assessment of that date, indicates that the worker’s back condition has deteriorated since 2008.
Dr. Tsang noted, in coming to this conclusion:
According to the 2008 assessment, there was a flexion of 20 degree compared with 10 degree now. His lateral flexion and rotation is 5 degree bilaterally. There is no change. His extension is 1 degree or nothing right now…
When this is compared to the 2008 report of Dr. Maehle which resulted in the worker’s PD increase to 20%, the following difference are noted:
The worker was able to forward flex to 20 degrees.
The worker’s extension was 5 degrees”
Decision dated January 4, 2021, on page 7, paragraphs [40], [41] and [42], the Tribunal found the following in part:
“The Panel acknowledges the presence of the left flank hematoma is a consequence of the
1978 work accident. Further earlier medical reports closer to the work accident record the
worker’s complaints of pain and weakness down the leg which he attributed to the hematoma.”
“The Panel also notes Dr. Tsang’s correspondence of April 1, 2018, which was written on
behalf of his patient and where the doctor noted the increase size of the hematoma. In viewing
the actual dimensions of the hematoma over the years the size appears to be variable. The
measurements show an increase in size in 2013 but decreasing in 2017. In any event the variance
in the size of the hematoma does not appear to the Panel to be significant. This would appear to
be consistent with orthopedic surgeon Dr. J. V. Seligman’s comment on August 11, 2014 that the
hematoma appeared to be stable.”
“…Further the Panel notes the appearance of a second hematoma as evidenced by the more recent MRI over the lower spine area. The emergence of a second hematoma without a history of trauma suggests
a different etiology.”
As is outlined above, entitlement in this claim has been allowed for soft tissue injuries to the lower back and left hip area. The worker also sustained a significant bruise, i.e. hematoma in the left lower flank area, which was unresolved for several years. The worker was granted a PD for the low back, initially at 10% and following the WSIAT decision of February 28, 2018, was increased to 25%.
At the time of the July 13, 2018 PD reassessment, the following was noted:
- Based on review of the available medical reports and direction from the WSIAT decision of February 20, 2018 it would appear that there is an increase in degenerative changes and decrease in function some of which has been attributed to the work place injury of 1978. The PD pension will increase from 20% to 25% with arrears to May 25, 2015, three months prior to the August 25, 2015 examination by Dr. Tsang.
Following the above, all of the medical reporting on file pertains to the hematomas (only one is work-related) and excision surgery on the worker’s lower back, which was accepted by the operating area.
The medical reporting between 2018 and 2021 reveals the following in part:
MRI – May 6, 2020 – notes the presence of two focal masses in the lower flank area, with the larger mass located in the left lower flank, and the small lesion located more superficially in the midline;
February 25, 2021 Report – Dr. Panchapakesan – outlines that the worker underwent MRI, which again confirms the presence of chronic hematomas or seromas, which are causing the worker discomfort and that the best course of action would be to perform surgical excision;
Operative report dated March 24, 2021 – excision surgery;
Reports between May and August 2021 – Dr. Panchapakesan note the worker suffered some post-surgical complications (i.e. fluid buildup);
December 6, 2021 – Follow up report – Dr. Panchapakesan – notes that the worker was more than 6 months from surgery. Things have healed quite well. There is no evidence of
re-accumulation and no evidence of any infection. The worker continues to complain of back pain related to underlying arthritic changes. The worker had been to a pain clinic, but they declined to perform spinal injections due to concerns over infection. The specialist suggested the worker obtain a second opinion; with respect to surgical follow-up, they would see them for a final exam at the one-year mark;
- March 28, 2022 – report Dr. Panchapakesan – the worker was noted to be doing quite well and had not been seen for several months. The specialist outlined that there was a small collection involving the left buttock (fluid/swelling); however, the worker was feeling quite well with respect to the site of the surgery, and this was not bothering them or concerning them anymore. The specialist did not recommend any further diagnostic imaging. For the worker’s reassurance, they requested that they been seen again in 3 months’ time
The WSIB policy for Determining the Degree of Disability states in part:
When residual impairment continues even though maximum medical recovery (MMR) expected has been reached following an accident, the WSIB determines the degree of permanent disability. Generally, the determination is made once the condition is stable, and the worker has attained MMR.
The WSIB adopted the Permanent Partial Disability Rating Schedule proposed by the Committee on Permanent Disability Evaluation of the Association of Workers' Compensation Boards of Canada in its report of September 1, 1964. Using the Association's Rating Schedule, the WSIB developed the Ontario Rating Schedule, which is periodically updated.
The WSIB determines the degree of permanent disability when treatment is concluded, the condition is stable, and MMR has been reached. The decision-maker determines suitability for permanent disability rating using the Referral Reference Chart.
In all cases, the rating is expressed in terms of a percentage, in accordance with the provisions of the approved Permanent Disability Rating Schedule.
In each case, the WSIB determines the degree of clinical impairment based on available health care information and determines a percentage figure for the disability that is consistent with the Permanent Disability Ontario Rating Schedule. The decision-maker uses this information to determine the nature and amount of the Permanent Disability Award.
Re-assessment
If a permanent disability worsens, the WSIB may reassess the worker's disability. The degree of worsening is determined based on health care information submitted to file.
Operational policy 18-07-02 also states the following in part:
Ratings for the spine
Location Percentage
Lumbar and/or lumbosacral 30
While I acknowledge that entitlement for the surgical excision of the work-related hematoma was accepted and that the worker developed some post-surgical complications, which required health care treatment and the use of a lift chair, the reporting of Dr. Panchapakesan supports that these issues fully resolved without sequelae. In fact, in their December 2021 report, the specialist noted that the worker had healed quite well and while they were complaining of back pain, this was related to underlying arthritic changes. This was further supported in the March 2022 report, where the specialist noted the worker was feeling quite well with respect to the site of the surgery, and this was not bothering them or concerning them anymore.
While I acknowledge the arguments which have been presented, in my review of the available information subsequent to the 2018 PD reassessment, there is an absence of any objective findings, which would support the presence of a permanent deterioration in the accepted low back condition.
Further, I must also note that the maximum PD award for the lumbar spine is 30%, which represents total immobility of the joint, which is clearly not evident in this case.
In considering all of the above, I am satisfied that the worker’s 25% PD award accurately reflects their low back disability and as a result, there is no entitlement to a PD reassessment.
CONCLUSION
I conclude there is no entitlement to a PD reassessment.
The worker’s objection is therefore, denied.
DATED November 28, 2022
L. Cirillo
Appeals Resolution Officer
Appeals Services Division