Worker v. Employer, 2024 CanLII 140465

20250005

REPRESENTED by:

HEARD by:

DATED:

C. Goegan, appeals resolution officer

NOVEMBER 1, 2024

ISSUE

The worker is objecting to the April 4, 2024, decision of the Case Manager denying entitlement to a Non-Economic Loss (NEL) redetermination.

BACKGROUND

On September 2, 2020, this then 53-year-old dietary aide at a hospital was struck on the left side of the head, face, and neck by a heavy overhead freight elevator door. The worker was initially diagnosed with a head injury and immediately returned to modified duties the day after the accident. The Operating Area approved the claim for health care benefits.

The worker subsequently experienced symptoms consistent with a concussion (mild traumatic brain injury) and a neck injury. They received periods of full loss of earnings (LOE) benefits, participated in treatment for the mild traumatic brain injury (MTBI), and attended multiple assessments through WSIB Neurology and Back and Neck Specialty Programs.

In a September 1, 2022, decision the Case Manager determined the worker had reached maximum medical recovery (MMR) by March 31, 2022. They also concluded that the worker had a permanent impairment resulting from residual headaches associated with the MTBI, and the exacerbation of pre-existing foraminal stenosis at the C5-C6 and C6-C7 levels in the neck with C6-C7 radiculopathy.

In a September 7, 2022, NEL evaluation the NEL Clinical Specialist determined the NEL rating for the MTBI was 10%. They also determined the NEL rating for neck condition was 14%. The NEL Clinical Specialist combined (not added) the NEL ratings for the MTBI and the neck and combination resulted in a total whole person impairment rating of 23%. The worker received a 23% NEL benefit.

The worker representative wrote to the Operating Area on February 1, 2024. They requested a NEL redetermination and submitted medical reports from both a physical medicine and rehabilitation specialist as well as the worker’s family doctor. In an April 4, 2024, decision the Case Manager denied entitlement to a NEL redetermination as they found the medical reports did not establish a permanent and significant deterioration in the work-related impairments.

The worker, through their representative, objected to the April 4, 2024, decision and the matter was referred to the Appeals Services Division for consideration.

AUTHORITY

Operational Policy Manual

Published

18-05-09 NEL Redeterminations

January 3, 2023

Reference:

American Medical Association’s Guides to the Evaluation of Permanent Impairment, 3rd.edition revised.

ANALYSIS

I carefully considered all the available information, legislation, and relevant operational policies in reaching this decision. For the reasons explained below, I find the worker is not entitled to a NEL redetermination.

The Worker’s Position and Remedy Sought

The worker representative has requested entitlement to a NEL redetermination.

In the May 22, 2024, Appeal Readiness Form (ARF) she confirmed her position in the appeal was outlined in the February 1, 2024, letter to the Operating Area. In the letter the worker representative indicated the worker felt their condition had deteriorated since the last NEL determination.

The representative referenced July 4, 2023, and September 18, 2023, reports from Dr. Elsherif, a specialist in physical medicine and rehabilitation, as well as a November 8, 2023, report from Dr. Bannon, the worker’s family doctor, in support of the appeal.

The Employer’s Position

The employer did not complete and return the Respondent Form or make submissions in this appeal.

Entitlement to a NEL Redetermination

Policy 18-05-09 (NEL Redeterminations) states that the WSIB may consider a worker’s request for a redetermination of their existing NEL benefit provided that:

The worker’s degree of permanent impairment was previously determined to be greater than zero
The worker’s condition has deteriorated significantly and permanently since the last NEL determination; and
12 months have passed since the worker’s last NEL decision.

A significant deterioration refers to a marked degree of deterioration in the work-related impairment that is demonstrated by a measurable change in objective clinical findings. To establish the presence of a significant deterioration, the most recent clinical findings for the body part, system, or function for which a NEL redetermination is being requested are compared with the clinical condition of the body part, system, or function at the time of the last NEL determination to evaluate whether there is evidence of a significant deterioration.

In this case the worker received a combined 23% whole person NEL rating for the MTBI and the neck condition in the September 7, 2022, NEL evaluation. Accordingly, the first criterion in Policy 18-05-09 (NEL Redeterminations) of a NEL rating greater than zero is established. The third policy criterion is also satisfied since more than 12-month had passed following the NEL determination at the time of the

April 4, 2024, NEL redetermination decision.

The issue for determination in this appeal is second policy criterion of whether the work-related condition has deteriorated significantly and permanently since the last NEL determination. After comparing the clinical evidence submitted by the worker representative with the NEL determination, I find the second criterion of a permanent significant deterioration is not met for the MTBI and the neck injury.

To rate permanent impairments, the WSIB uses a 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).

I first considered the MTBI. Brain injuries are rated under Chapter 4 of the AMA Guides. According to Chapter 4, Section 1a of the AMA Guides, the common categories of impairment resulting from brain disorders are:

Sensory and Motor Disturbances
Language Disturbances
Disturbances of Complex, Integrated Cerebral Functions
Emotional Disturbances
Consciousness Disturbances
Episodic Neurological Disorders
Sleep and Arousal Disorders

The AMA Guides indicate that more than one category of impairment may result from brain disorders.

In such cases, the various degrees of impairment from the seven categories are not added or combined, but the largest value, or greatest percentage of the seven categories of impairment, is used to represent the impairment for all the types.

Regarding the MTBI in this case, the NEL Clinical Specialist assigned a 10% rating under the episodic neurological disorders category. According to Chapter 4.1a (p.106) of the AMA Guides, the criteria for evaluating episodic neurological disorders are based on the “frequency, severity, and duration of attacks as they affect the (worker’s) performance of activities of daily living.” Page 106 of the AMA Guides also contains descriptions of four criteria for evaluating impairment because of an episodic neurological disorder.

The third and fourth criteria describe impairment ratings ranging from 50-95% due to brain injuries resulting in total incapacitation or protected care. The first two episodic neurological disorder criteria are described as follows:

An episodic neurological disorder is of slight severity and under such control that most of the activities of daily living can be performed. (5-15% impairment of the whole person)
An episodic neurological disorder is of such severity as to interfere moderately with the activities of daily living. (20-45% impairment of the whole person).

The 10% NEL rating for the MTBI is at the mid-point of the first criterion. The rating was assigned based on clinical information contained in a March 31, 2022, report from the WSIB Neurology Specialty Clinic. The report described the worker experiencing intermittent daily headaches exacerbated by light, sound, and exertion. The report also described the worker experiencing severe headaches at a frequency of 2-3 times per week that included worsening phonophobia and photophobia with occasional nausea. The report noted worker was able to prevent progression of the headaches using conservative strategies and denied violent room spinning with the headaches.

I compared the Specialty Clinic report with the reports submitted by the worker representative.

The July 4, 2023, report from Dr. Elsherif stated the worker had “moderate headaches that come infrequently”. He also indicated the worker had photosensitivity to fluorescent lights since the post-concussion syndrome. The report noted the worker had difficulty concentrating when they wanted to and confirmed they could do their “usual work but not more”. Dr. Elsherif did not reference the MTBI or residual headaches in his September 18, 2023, report. Similarly, Dr. Bannon did not mention headaches or the MTBI in her November 8, 2023, report.

When comparing the clinical evidence used to determine the 10% NEL rating for the MTBI with the clinical reports from Dr. Elsherif and Dr. Bannon I do not find that the evidence supports a permanent significant deterioration in the MTBI. In my view the description of moderate infrequent headaches, photosensitivity, concentration difficulty, and the ability to do “usual work but not more” in Dr. Elsherif’s report, remains consistent with the AMA Guides criterion of an episodic neurological disorder that is of slight severity and under such control that most of the activities of daily living can be performed as opposed to one that moderately interferes with activities of daily living. Since I find the evidence does not establish the presence of a permanent significant deterioration in the MTBI, I conclude the worker is not entitled to a NEL redetermination for the head injury.

Turning to the compensable neck injury, the NEL Clinical Specialist assigned an 8% impairment rating for abnormal motion of the neck based on Tables 55, 56 and 57 (pp. 55-57) of the AMA Guides and a 7% rating under Table 53 II.C (p.80). The Table 53 II.C rating is described as an “unoperated 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 moderate to severe degenerative changes on structural tests; includes unoperated herniated nucleus pulposus, with or without radiculopathy”.

With respect to abnormal motion, the range of motion measurements for the neck used in the NEL rating were from a March 28, 2022, Neurology Specialty Program report. The measurements were as follows:

Flexion – 45 degrees
Extension – 35 degrees
Left lateral flexion – 40 degrees
Right lateral flexion – 40 degrees
Left rotation – 50 degrees
Right rotation – 50 degrees

When considering the reports from Dr. Elsherif and Dr. Bannon I find there is no basis to conclude there has been a marked degree of permanent deterioration in abnormal motion of the neck.

In the section of the July 4, 2023, report describing the results of his physical examination Dr. Elsherif discussed flexion and extension of the lower back. He also confirmed active movements of the left shoulder were within normal limits. However, Dr. Elsherif did not provide any objective range of motion measurements for the neck. The September 18, 2023, report discussed the results of electrodiagnostic studies and Dr. Bannon’s report did not contain any range of motion measurements since she completed a telephone consultation. Therefore, in the absence of objective measurements for the neck there is no basis for me to conclude there has been a permanent marked degree of deterioration in abnormal motion.

Regarding the component of the NEL rating assigned under Table 53. II.C for the exacerbation of pre-existing foraminal stenosis at the C5-C6 and C6-C7 levels in the neck with C6-C7 radiculopathy, I also find the evidence does not support a permanent significant deterioration.

The NEL Clinical Specialist assigned the rating based on the results of a September 14, 2021, MRI of the cervical spine. According to a November 24, 2021, Back and Neck Specialty Clinic report from Dr. Drew, an orthopaedic surgeon, the MRI showed degenerative changes at multiple levels in the neck. The most significant changes were at the C5-C6 and C6-C7 levels where there was severe bilateral foraminal stenosis possibly affecting the C6 and C7 exiting nerve roots.

In his July 4, 2023, report Dr. Elsherif discussed the findings of an MRI of the cervical spine. Although he did not specifically indicate the date of the scan he was referring to, I find it more probable than not he was referring to the September 14, 2021, scan for two reasons. First, Dr. Elsherif described the same MRI findings that Dr. Drew did in the November 24, 2021, Specialty Clinic report. Second, there is no evidence the worker has undergone another MRI of the neck after the one that was completed in September 2021. Therefore, I find on a balance of probabilities that the MRI referenced by Dr. Sherif is the same one the NEL Clinical Specialist considered in the NEL determination.

In addition to my conclusion concerning the MRI findings, Dr. Elsherif confirmed in his September 2023 report that a neuromuscular examination and electrodiagnostic studies were not suggestive of any acute cervical radiculopathy. Dr. Bannon endorsed that conclusion in her November 8, 2023, report. Therefore, as I conclude the MRI findings referenced by Dr. Elsherif were the same findings used in the NEL determination, and the neuromuscular examination and electrodiagnostic studies were not suggestive of any acute cervical radiculopathy, I find there has been no significant deterioration of the work-related neck impairment when considering Table 53 II.C (p. 80) of the AMA Guides.

Since I find there has been no permanent significant deterioration in the work-related neck impairment when considering both abnormal motion of the cervical spine and the “unoperated 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 moderate to severe degenerative changes on structural tests; includes unoperated herniated nucleus pulposus, with or without radiculopathy”, I find the second criterion in Policy 18-05-09 (NEL Redeterminations) is not satisfied and the worker is not entitled to a NEL redetermination for the neck.

In summary, I conclude the clinical evidence does not establish the worker has experienced a permanent significant deterioration for either the work-related MTBI or the neck injury. Accordingly, I find the worker is not entitled to a NEL redetermination.

CONCLUSION

I conclude the April 4, 2024, decision of the Case Manager is appropriate, and the worker is not entitled to a NEL redetermination for the MTBI or the neck injury.

The objection denied.

DATED November 1, 2024

C. Goegan

Appeals Resolution Officer

Appeals Services Division