APPEALS RESOLUTION OFFICER DECISION
decision number:
20220027
OBJECTING PARTY:
wORKER
REPRESENTED by:
representative
RESPONDENT:
EMPLOYER
HEARING:
HEARING IN WRITING
HEARD by:
Kelly Gordon, appeals resolution officer
ISSUES
The worker, through their representative is objecting to the following decisions:
The Non-Economic Loss (NEL) Clinical Specialist’s decision dated August 16, 2021, that allowed a five (5) percent NEL benefit for the worker’s concussion.
The Case Manager’s (CM) decision dated August 24, 2021, that determined the following organic injuries fully recovered with no ongoing impairment:
Neck strain/sprain
Upper back strain/sprain
BACKGROUND
On June 11, 2018, this worker was working eight (8) feet high on a ladder when they fell backwards into a wall. The worker hit their head and tailbone on a stud, and suffered injuries to their head, neck, upper back, lower back, and right foot. On June 18, 2018, initial entitlement was allowed for a head injury, and loss of earning (LOE), benefits were allowed as of June 12, 2018. As per the CM’s decision dated July 5, 2018, entitlement was extended to include neck, upper back, and lower back strain/sprain injuries, and a right foot contusion.
The worker later resigned from employment with the employer, and on November 27, 2018, the worker secured employment as a personal support worker (PSW). As a result, the CM issued a decision dated August 14, 2019, stating that since the worker removed them self from employment, the worker was no longer entitled to LOE benefits.
The worker underwent an assessment at the WSIB Neurology Specialty Program, and the worker was diagnosed with Generalized Anxiety and Panic Disorder. These conditions were reported to be pre-existing. However, the CM accepted the workplace injuries caused a temporary worsening of these conditions, and in the decision dated October 31, 2019, entitlement was extended to include psychotraumatic disability.
The worker underwent the recommended treatment for the psychological conditions, and in the decision dated November 3, 2020, the CM determined the medical evidence supports the worker’s compensable psychological conditions resolved. Therefore, ongoing entitlement to the psychotraumatic disability was denied.
The CM accepted the medical evidence supported the worker’s concussion resulted in a permanent impairment, and referred the worker for a NEL assessment. On August 16, 2021, the NEL Clinical Specialist determined the worker’s entitlement to a five (5) percent NEL benefit for the concussion.
In the decision dated August 24, 2021, the CM refers to the compensable neck, upper back, and lower back strains as well as the right foot contusion, and states there is no medical evidence to support an ongoing impairment for these areas of injury. As such, the CM denied ongoing entitlement for these injuries.
The worker representative submitted the Intent to Object (ITO) Form dated September 7, 2021, and requested a review of the NEL benefit allowed for the worker’s permanent impairment resulting from the concussion. Although the CM reviewed the medical evidence, the CM upheld the five (5) percent NEL benefit in the reconsideration decision dated September 15, 2021.
The worker representative submitted the Appeal Readiness Form (ARF) dated October 27, 2021, confirming the worker’s objection to the NEL quantum for the concussion, and the denial of ongoing entitlement for the neck, and upper back injuries. While I note that on the ARF the representative also confirms their objection to the denial of psychological treatment, operations has determined this issue is not to be included in this appeal. As such, the representative’s objection to the denial of psychological treatment will not be included in this appeal.
The worker’s objection to the NEL quantum for the concussion and the denial of ongoing entitlement to neck, and upper back injuries form the basis of this appeal.
AUTHORITY
Operational Policy Manual
Published
18-05-03 Determining the Degree of Permanent Impairment
November 3, 2014
11-01-05 Determining Permanent Impairment
November 3, 2014
American Medical Association’s Guides to the Evaluation of Permanent Impairment, 3rd.edition revised.
ANALYSIS
In reaching the following decisions, I have carefully considered all of the available information on file, and the relevant operational policies.
The worker representative submitted the ARF dated October 27, 2021. On this form, the representative confirms the worker’s objection to the NEL quantum for the concussion, and the denial of ongoing entitlement to the neck, and upper back injuries. The representative did not include any submissions for my consideration.
The employer is not participating in this appeal, and no submissions have been provided for my review.
- Is the NEL quantum of five (5) percent appropriate for the worker’s concussion?
I find the NEL quantum of five (5) percent for the concussion is confirmed.
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).
The worker was assessed at the Mild Traumatic Brain Injury (MTBI) on September 21, 2018, and the worker received treatment until the worker was discharged on November 14, 2018. At the time of discharge, the worker continued to have multiple concussion symptoms, and as a result, the worker was referred to the WSIB Neurology Specialty Program. The worker was assessed at the Neurology Program on February 7 and February 8, 2019. As per the assessment report, the worker’s diagnostic investigations were reviewed. Specifically, the following investigation results are noted:
The June 11, 2018, CT scan of the head and neck indicate opacification ethmoid, sphenoid and maxillary sinuses, no cranial vault fractures, and no fracture of dislocation in the cervical spine
The June 21, 2018, head CT scan findings are unremarkable
The June 27, 2018, repeat head CT scan findings are unremarkable
The July 17, 2018, head MRI identifies no significant intracranial abnormality and no evidence of previous haemorrhage
The worker participated in 18 weeks of treatment at the Neurology Specialty Program. Treatment included physiotherapy, occupational therapy, and speech language pathology sessions. Treatment focused on functional balance, potential motion sensitivity, and increasing physical and cognitive tolerances with functional tasks.
The worker was discharged from treatment on July 19, 2021, and in terms of the concussion, the report provides a diagnosis of MTBI with post-concussion headaches, likely transition to mixed headaches (migraine/muscle tension), Dizziness (Query Mild chronic disequilibrium – intermittent), and cognitive disorder due to TBI. Also included under occupational diagnosis is DSM- criteria for Mild Neurocognitive Disorder due to TBI. Under clinical impression, the worker is reported to have ongoing symptoms of headaches and neck pain, general deconditioning, dizziness and nausea.
From a cognitive perspective, the discharge report states the worker has functional cognitive deficits of decreased attention, decreased short-term memory, and slowed mental processing. These conditions are impacted by the worker’s report of pain, cognitive fatigue, sleep disturbance, pre-morbid personality factors, psychological factors, and emotional disturbance. The worker is reported to have limited ability in concentration, memory, problem solving, multi-tasking, judgement and responsibility, ability to work under pressure, planning and organizing, as well as flexibility and adaptation, and ability to work independently.
In the decision dated August 3, 2021, the CM refers to the above noted discharge report, and accepts the worker reached MMR for the concussion as of July 19, 2021, when the worker was discharged from treatment at the Neurology Specialty Program.
I find it significant to note here that the CM’s decision that confirmed the MMR date of July 19, 2021, is not an issue before me in this appeal. As such, I will accept the MMR date of July 19, 2021, for the purpose of this appeal.
In reviewing the NEL evaluation assessment, I note the NEL Clinical Specialist refers to the findings provided in the June 3, 2021 and June 4, 2021 Specialty Clinic report. The NEL Clinical Specialist also took into consideration the findings provided in the July 19, 2021, treatment discharge report.
The worker’s NEL rating included the following:
Issues with attention, short-term memory and processing, difficulties with multi-tasking, and slow information processing
Emotional disturbances - the worker’s mood changes
Physical symptoms as they relate to headaches and dizziness
Ability to participate in activities of daily living which include local driving and household tasks
The worker underwent a driver rehabilitation assessment on September 1, 2021. As per the assessment report on file, the worker was observed to be in control of the vehicle at all times with no concerns noted with their driving. There was no evidence to suggest that their medical condition is affecting their ability to drive. The worker was able to stop, start, and steer the vehicle in a predicated manner. Time and space judgement, hazard perception, speed adjustment, and vehicle positioning were all appropriate. There were no concerns with cognitive elements. The worker was observed to plan ahead and get into the appropriate lane to avoid a situation ahead. The worker used the signal indicator, and was observed to perform blind spot checks at all times.
In determining the worker’s concussion NEL rating, I refer to the criteria for the evaluation of a permanent impairment resulting from dysfunction of the brain as provided in the AMA Guides, Chapter 4.1a, page 104. Categories for evaluating impairments are provided, and are established in terms of restrictions or limitations of a worker’s ability to perform the activities of daily living. As stated in the AMA Guides, if more than one category of impairment results from a brain disorder the various degrees of impairment from the several categories are not added or combined, but the largest value, or greatest percentage of the six categories of impairment is used to represent the impairment for all of the types. The six categories for Brain Impairment Values are listed in Table 1B, page 109 of the AMA Guides.
The categories include:
Language disturbances
Complex integrated cerebral function disturbances
Emotional Disturbances
Consciousness Disturbances
Episodic neurological disorders
Sleep and arousal disorder
Largest Brain disorder impairment (page 104 of the AMA Guides)
In this case, I find the July 19, 2021 treatment discharge report indicates the worker’s symptoms fall in the following three (3) categories:
Complex integrated cerebral function disturbances – functional cognitive deficits of decreased attention, decreased short-term memory, and slowed mental processing
Emotional Disturbances – fluctuations in mood related to dizziness and nausea
Episodic neurological disorders – ongoing dizziness and headaches, worse with quick movements and unfamiliar activities
When I compare the worker’s symptoms as noted above to the AMA Guides Table 1, page 109, and page 104, I find the worker’s impairment is appropriately rated as a five (5) percent impairment.
In summary, I find the worker’s concussion NEL rating of five (5) percent is confirmed.
- Does the worker have ongoing entitlement to the following compensable injuries:
Neck strain/sprain
Upper back strain/sprain
For the reasons that follow, I find the worker does have ongoing entitlement for the neck injury. I do not find the worker has ongoing entitlement to the upper back strain/sprain.
Policy 11-01-05 states a work-related impairment is considered permanent when it continues to exist after MMR has been reached. A recovery from the work-related injury/disease is considered to have been made if there is no evidence of an ongoing work-related impairment at the time MMR is reached.
To determine that a permanent impairment exists, the decision-maker must confirm that
MMR has been reached
evidence of ongoing impairment exists, and
the ongoing impairment is a result of the work-related injury/disease
The worker underwent an assessment at the Musculoskeletal Program of Care (POC) on September 28, 2018. As per the assessment report, the worker reported neck pain, and the diagnosis provided is mild whiplash. The worker received treatment, and on November 14, 2018, the worker was discharged. At the time of discharge, the worker’s neck range of motion (ROM) was reported to have improved, but due to complications from the concussion, the worker’s neck had not fully recovered. Further treatment was recommended.
At the time of the initial neurology assessment on February 7, 2019 and February 8, 2019, the worker reported pain along the posterior neck and shoulder region. The worker rated the pain as three (3) to four (4) out of 10 in severity. The discomfort was reported as frequent, and almost daily. The worker also reported some low back pain as well as right ankle pain.
As per the Neurology Specialty Program follow up report dated January 22, 2021, and the summary report dated June 3, 2021 and June 4, 2021, the worker is reported to have ongoing neck pain with reduced ROM. In terms of treatment recommendations, cervical neck ROM, and manual therapy is recommended, in addition to the treatment for the concussion. I also note the neurology treatment discharge report dated July 19, 2021, that states the worker continues to demonstrate a guarding behaviour with cervical spine ROM, and treatment included the neck. Cervical spine ROM findings provided support reduced extension, side flexion, and rotation.
The worker’s family doctor, Dr. Kirsten submitted clinical notes for the worker’s visits prior to the accident. The notes are dated from August 13, 2014 to March 4, 2019. I have reviewed these notes, and although the worker sought occasional medical attention for back complaints, I find no evidence of a pre-existing neck condition.
I have also considered the physiotherapist’s report dated September 27, 2021. As stated in this report, the worker has received treatment for chronic neck and upper back pain since June 18, 2021. The worker related their pain to the workplace accident accepted in this claim. The diagnosis provided is chronic hypomobility in the cervical spine due to muscle tension and decreased facet movement throughout the lower cervical spine. With treatment, the worker reported good relief from the neck tension, and headaches. However, the effects of the treatment only last a few days, and therefore the worker continues to receive treatment. The physiotherapist recommended neck treatment continue for an additional three (3) to four (4) months.
Based on my review of the medical evidence, I find the worker does have an ongoing work-related neck impairment. However, I do not find the medical evidence supports an ongoing upper back impairment.
In making this determination, I have placed significant weight on the specialty clinic and physiotherapy reports that confirm the worker has continued to receive medical attention and treatment for the neck strain accepted in this claim. I specifically refer to the neurology treatment discharge report that confirms the worker has reduced cervical spine ROM findings. While I find the worker does have ongoing entitlement to the neck strain, based on the medical information on file, I am unable to determine if the worker has reached MMR with a permanent neck impairment. In stating this, I refer to the physiotherapist’s September 27, 2021 report that recommended further neck treatment for an additional three (3) to four (4) months. In order to determine if the neck injury resulted in a permanent impairment, I will ask the operating area to obtain updated medical information for the neck condition, and determine if the worker continued to have limitations following the recommended treatment.
While I note the worker is also claiming ongoing entitlement for the upper back strain, I do not find the medical evidence supports an ongoing upper back injury. Although I note the worker reported upper back pain, I find the medical evidence relates this pain to the neck injury. I also find no ongoing diagnosis for the upper back injury. Therefore, I find the worker does not have ongoing entitlement for the upper back.
CONCLUSION
I find the NEL quantum of five (5) percent for the concussion is confirmed.
I find the worker does not have ongoing entitlement to the upper back strain/sprain.
I find the worker does have ongoing entitlement to the neck strain.
Noting ongoing entitlement has been accepted for the neck strain, I ask the operating area to obtain updated medical information for the neck condition. Once received, I ask the operating area to determine if the neck condition has resulted in a permanent impairment.
The worker’s objection is allowed in part.
DATED March 23, 2022
Appeals Resolution Officer
Appeals Services Division