APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER:
20230115
OBJECTING PARTY:
WORKER
REPRESENTED by:
WORKER REPRESENTATIVE
RESPONDENT:
EMPLOYER – NOT PARTICIPATING
HEARING:
HEARING IN WRITING
HEARD by:
C. MARR, APPEALS RESOLUTION OFFICER
SEPTEMBER 6, 2023
ISSUE
The worker is objecting to the Case Manager’s (CM) decision dated May 8, 2023 in which entitlement to a redetermination of the worker’s Non-economic Loss (NEL) benefit was denied.
BACKGROUND
On July 16, 1997, this labourer injured their low back while lifting a piece of plywood. They were granted initial entitlement to benefits for a low back strain. Entitlement to benefits was later extended to include degenerative disc disease (DDD) in the worker’s lumbar spine, specifically disc herniations at the L3-S1 levels. The employer was granted 75 percent cost relief on the basis of the worker having a moderate pre-existing condition that was affecting their recovery from the work-related injury.
The worker was determined to have a permanent impairment as a result of their compensable low back injury. They were assessed with a 23 per cent NEL.
The worker was granted a full Future Economic Loss (FEL) award until they turn 65 years of age. The worker’s NEL award was increased to 28 percent on redetermination on July 24, 2006.
The worker requested another NEL redetermination. As explained in correspondence dated May 8, 2023, the CM found that the clinical evidence did not support that there has been a significant and permanent worsening in the work-related impairment.
Worker’s Position
The worker representative states that the worker’s flexion has deteriorated since the last NEL redetermination.
AUTHORITY
American Medical Association’s Guides to the Evaluation of Permanent Impairment, Third Edition (Revised)
Operational Policy
Published
18-05-09 NEL Redeterminations
January 3, 2023
ANALYSIS
I have carefully considered all of the available information, legislation and relevant operational policy in reaching this decision. I find that the worker is not entitled to a redetermination of their Non-economic Loss (NEL) award. The clinical evidence does not support that there has been a significant and permanent worsening of the work-related low back impairment.
WSIB Operational Policy 18-05-09 NEL Redeterminations states in part:
The WSIB may consider a worker’s request for a redetermination of his/her existing non-economic loss (NEL) benefit provided that:
the worker's degree of permanent impairment was previously determined to be greater than zero
12 months have passed since the worker's last NEL decision
the work-related condition has deteriorated significantly and permanently since the last NEL determination, and
the deterioration is work-related.
If a condition other than the work-related injury/disease is contributing to the degree of impairment to the area, the degree of impairment caused by the work-related injury/disease is determined.
The worker’s NEL award was last determined on July 24, 2006. At that time, the worker was assessed with a 28 percent NEL for their low back impairment. This was based on a seven percent impairment for the lumbar spine pathology, a two percent impairment for sensory deficit, and a 23 percent impairment for loss of lumbar spine range of motion (ROM). The worker’s lumbar spine ROM at that time was measured as follows:
Flexion – zero degrees Extension – zero degrees
Left lateral flexion – ten degrees Right lateral flexion – ten degrees
On February 1, 2023, Dr. Prutis reported that the worker’s lumbar spine ROM was as follows: Flexion – less than five degrees
Extension – zero degrees
Left lateral flexion – less than five degrees Right lateral flexion – less than five degrees
Forward flexion of the worker’s lumbar spine increased slightly since 2006. The worker representative argues in part that the worker’s lateral flexion has worsened. The degree of worsening is not significant, in my opinion. Impairment resulting from loss of lateral flexion of the lumbar spine is assessed using
Table 61 of the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Third Edition (Revised). The additional slight loss of lumbar spine lateral flexion would not result in an increased impairment rating under Table 61. Five degrees of lateral flexion results in the same impairment rating as the ten degrees of lateral flexion received in July 2006.
An EMG performed on the worker reportedly did not show evidence of radiculopathy. Dr. Prutis said that sensation was reduced. The degree of sensory deficit has not significantly worsened since the last NEL determination.
An MRI of the worker’s lumbar spine performed on April 12, 2023 showed predominately mild to moderate degenerative disc disease (DDD). The degree of change in the lumbar spine pathology is not significantly worse than it was at the time of the last NEL assessment.
In my opinion, the medical evidence does not support that there has been a significant and permanent deterioration in the work-related low back impairment. The worker is not entitled to a NEL redetermination.
CONCLUSION
The worker is not entitled to a NEL redetermination. The objection is denied.
DATED September 6, 2023
C. Marr
Appeals Resolution Officer Appeals Services Division