Decision
DECISION NUMBER: 20230075
OBJECTING PARTY: WORKER
REPRESENTED by: WORKER REPRESENTATIVE
RESPONDENT: EMPOYER (NOT PARTICIPATING)
HEARING: HEARING IN WRITING
HEARD by: M. RODRIGUES, APPEALS RESOLUTION OFFICER
ISSUE
The worker, through their representative, is objecting to the non-economic loss (NEL) clinical specialist’s decision of March 23, 2022. This decision determined the NEL quantum for neck and thoracic soft tissue strains, whiplash and exacerbation of pre-existing previously silent syrinx was 15%.
BACKGROUND
A prior Appeals Resolution Officer (ARO) decision of January 31, 2022 has thoroughly documented the claim history and has no bearing on the current issue under appeal in this claim. As such, I will only provide a brief history in order to place the issue for this appeal into context.
Briefly, on February 12, 2020, this medical equipment sales consultant was involved in a motor vehicle accident and hit on the right side by another vehicle. Initial entitlement was accepted for health care benefits for neck, upper back and left arm strains. On April 28, 2021, entitlement was later extended to include exacerbation of pre-existing previously silent syrinx, whiplash and two surgeries for the syrinx condition.
The worker had periods of time where they were at work and then off work. They received loss of earnings benefits for some periods of lost time and not for others. The worker has been in receipt of full loss of earnings benefits since March 27, 2021.
On March 4, 2022, the case manager accepted a permanent impairment for the neck and upper back injuries. In a decision letter of March 23, 2022, the NEL clinical specialist determined the NEL quantum for neck and thoracic soft tissue strains, whiplash and exacerbation of pre-existing previously silent syrinx was 15%.
The worker objects to the decision dated March 23, 2022 and the issue was referred to the Appeals Services Division for further consideration.
AUTHORITY
Operational Policy Manual
Published
18-05-03 Determining the Degree of Permanent Impairment
November 3, 2014
18-05-04 Calculating NEL Benefits
February 1, 2018
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. For the reasons that follow, I find the NEL quantum for the neck and thoracic soft tissue strains, whiplash and exacerbation of pre-existing previously silent syrinx is 19%. The worker’s objection is allowed.
Worker position
In the submission of April 6, 2022, the worker representative argued the NEL quantum was incorrectly calculated. They referenced Table 53 in the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 3rd. edition revised, (AMA Guides) for impairments due to specific disorders of the spine. The representative opined the “unoperated” section for each impairment was selected for the cervical and thoracic regions of the spine. They stated the worker’s two prior work-related spinal surgeries of June 19, 2020 and April 1, 2021 were not reflected in the NEL quantum.
Employer position
The employer did not participate in this appeal, nor provide any submissions for my review.
Policy
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 AMA Guides. This is outlined in policy 18-05-03 (Determining the Degree of Permanent Impairment).
The policy states that to rate permanent impairments, 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 type of impairment is not listed in the prescribed rating schedule, the decision-maker uses criteria in the prescribed rating schedule for the body parts, systems, or functions which are most similar to the worker's impairment.
Policy 18-05-04 (Calculating NEL Benefits) outlines how NEL benefits are calculated. The policy states that in most claims, a worker receives a NEL benefit for one permanent impairment resulting from an injury/disease. To calculate a NEL benefit for workers with a single impairment, the WSIB follows a three step process. Step 1 is to identify the correct base amount and the age adjustment factor for the year the worker reached MMR. Step 2 is to adjust the base amount according to the worker's age at the time of the accident. Step 3 is to determine the value of the NEL benefit. In some cases, workers receive a NEL benefit for more than one permanent impairment resulting from the same injury/ disease. The WSIB rates each body part, system, or function and then combines these values using the prescribed rating schedule.
Findings
Noting a NEL quantum was given for neck and upper back injuries in this claim, I reviewed Chapter 3 of the AMA Guides, which deals, in part, with the impairments of the spine. The spine is divided into the cervical, thoracic, and lumbar regions. Normally the cervical region has seven vertebrae, C1 to C7; the thoracic region has twelve vertebrae, T1 to T12; and the lumbar region has five vertebrae, L1 to L5. Of note, there may be congenital variations in the number of vertebrae.
Section 3.3 explains the principles for calculating the impairment of the spine. It involves both diagnosis- related factors, such as structural abnormalities, and musculoskeletal or neurologic factors that require physiologic measurements. The whole spine is divided into regions indicating the impairment of the spine represented by the total impairment of one region – cervical, thoracic and lumbosacral.
The AMA Guides state that after selecting the primarily impaired region, a diagnosis-based percentage of the impairment is used. The percentage of impairment due to abnormal motion for each specific movement is obtained. For the cervical region, in the AMA Guides, Table 55 on page 88 is used to calculate the abnormal motion for flexion and extension. Table 56 on page 90 is used to calculate the abnormal motion for lateral flexion. Table 57 on page 90 is used to calculate rotation. For the thoracic region, in the AMA Guides, Tables 58 and 59 on page 96 are used to calculate the abnormal motion for flexion, extension and rotation respectively.
The case manager determined that maximum medical recovery for the neck and upper back impairments was reached on February 14, 2022 based on the specialty clinic report of the same date. The assessment team took the range of motion findings for the cervical and thoracic regions. For the cervical region, flexion was 40-degrees, extension was 50-degrees, right lateral flexion was 25-degrees, left lateral flexion was 20-degrees, right rotation was 60-degrees and left rotation was 50-degrees. For the thoracic region, flexion was 45-degrees, extension was 20-degrees, right lateral flexion was 20-degrees and left lateral flexion was 15-degrees.
I will first focus on the abnormal motion findings for the cervical and thoracic spine for Tables 55 to 59 in the AMA Guides. Then I will move onto rating the other non-scheduled impairments for both regions under Table 53 on page 80. I note the worker representative made no arguments in regards to the abnormal motion percentages selected for both the cervical and thoracic spine.
For flexion and extension of the cervical spine, I referred to Table 55 on page 88 of the AMA Guides. I find the abnormal motion percentage for flexion and extension was correctly calculated at 4%. For right and left lateral flexion, I used Table 56 on page 90. I am satisfied the abnormal motion percentage for right and left lateral flexion was correctly calculated at 3%. For right and left rotation, I used Table 57 on page 90. I find the abnormal motion percentage for right and left rotation was correctly calculated at 2%. I am satisfied these findings for the cervical spine are supported by the range of motion values in the February 14, 2022 specialty clinic report.
For the flexion of the thoracic spine, I used Table 58 on page 96 of the AMA Guides. I find the abnormal motion percentage for flexion was correctly calculated at 0%. For right and left rotation of the thoracic spine, I referred to Table 59 on page 96 of the AMA Guides. I agree and concur with the NEL clinical specialist in regards to rating the right and left rotation for the thoracic region as normal, at 30-degrees each. As such, I find the abnormal motion percentage for right and left rotation was correctly calculated at 0%. The findings for the thoracic spine are supported by the range of motion values in the February 14, 2022 specialty clinic report.
In addition, there were no abnormalities based on the above clinical report and the neurological findings were normal as well. I find the clinical evidence did not establish a neurological disorder resulting from the cervical and thoracic spine impairments.
The worker representative argued the NEL quantum did not reflect the two work-related spinal surgeries the worker had in 2020 and 2021 respectively. Per the June 30, 2020 operative report, the worker had a thoracolumbar laminectomy and cerebral subarachnoid shunt insertion on June 19, 2020. The April 1, 2021 operative report stated the worker had surgery for a syringopleural shunt of the cervical spine syrinx.
As the worker underwent surgeries in the cervical and thoracic regions, I referred to Table 53 on page 80 of the AMA Guides. Table 53 is used to obtain impairments due to specific disorders of the spine and only the primary diagnosis should be considered in an evaluation. I find the usage of Table 53 is applicable to this claim.
The NEL clinical specialist found section II, item B in Table 53 applicable for the cervical and thoracic regions. They rated the cervical and thoracic spine at 4% and 2%, respectively, under item B described as unoperated, with medically intervertebral disc or other soft tissue lesion, with medically documented injury and a minimum of six months of medically documented pain, recurrent muscle spasm or rigidity associated with none-to-minimal degenerative changes on structural tests.
After reviewing the clinical information, I accept the worker representative’s position that the surgeries should be included in the NEL quantum. I note the case manager’s decision of April 28, 2021 accepted entitlement to the worker’s surgeries of June 19, 2020 and April 1, 2021. I find the incorrect impairment percentage was assigned to the cervical and thoracic regions of the spine noting Table 53.
For the cervical spine, I relied on the April 1, 2021 operative report, which states an incision was made and the spinous processes of C7 and T1 were exposed. A full laminectomy was performed.
Subsequently, the discharge report of April 12, 2021 stated the surgery went well and there were no complications or further complaints of pain. There was no indication the worker had residual symptoms following the surgery.
As such, for the cervical regional, I find this corresponds to item D in Table 53, section II. This is described as a surgically treated disc lesion with no residual signs or symptoms. I find that 7% is the correct impairment percentage assigned to the cervical region based on Table 53, section II, item D.
Turning to the thoracic spine, I afforded weight to the June 20, 2020 report that described the operation of June 19, 2020. A thoracolumbar laminectomy and cerebral subarachnoid shunt insertion was performed. In the clinical note of June 30, 2020, the worker was told the recovery time would be two to four weeks and they complained of numbness in their left arm. I note the worker continued to complain of symptoms of weakness, numbness and tingling, as noted in the February 1, 2021 Occupational Health Assessment Program report. The report provided an overview of the clinical information in the case record from June 2017 to December 2020.
As such, for the thoracic region, I find this corresponds to item E in Table 53, section II. This is described as a surgically treated disc lesion with residual, medically documented pain and rigidity with or without muscle spasm. I find that 5% is the correct impairment percentage assigned to the thoracic region based on Table 53, section II, item E.
To obtain the impairment of the whole person due to the impairment of the regions of the spine, the Combined Values Chart, on pages 254 to 256, is used to combine the diagnosis-based impairment(s) with the impairment due to limited range of motion. The outcome results in the whole person impairment for the spine.
I used the Combined Values Chart in the AMA Guides to calculate the regional impairments of the cervical and thoracic spine. I find the regional impairment of the cervical spine is 15%. I combined the abnormal motion of 9% and impairment of the cervical region of 7%. This resulted in a cervical regional impairment of 15%. I am satisfied the regional impairment of the thoracic spine is 5%. I combined the abnormal motion of 0% and the impairment of the thoracic region of 5%. This resulted in a thoracic regional impairment of 5%.
I then combined the regional impairments of the cervical and thoracic regions, 15% and 5% respectively, to obtain the total impairment for the spine. This resulted in a total impairment of 19% for the spine. Thus, noting policy 18-05-03 (Determining the Degree of Permanent Impairment), I find the NEL quantum for the neck and thoracic soft tissue strains, whiplash and exacerbation of pre-existing previously silent syrinx is 19%.
CONCLUSION
The NEL quantum for the neck and thoracic soft tissue strains, whiplash and exacerbation of pre-existing previously silent syrinx is 19%.
The worker’s objection is allowed.
DATED May 19, 2023
Ms. M. Rodrigues
Appeals Resolution Officer Appeals Services Division