APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER:
20250046
OBJECTING PARTY:
WORKER
REPRESENTED by:
WORKER REPRESENTATIVE
RESPONDENT PARTY:
EMPLOYER (NOT PARTICIPATING)
HEARING:
HEARING IN WRITING
HEARD by:
HELEN SHAW, APPEALS RESOLUTION OFFICER
FEBRUARY 28, 2025
ISSUES
The worker is objecting to the Case Manager decision of November 21, 2023, including:
The denial of entitlement for cervical spine instability and anterolisthesis of C2 and C4; and
The denial of a redetermination of the Non-Economic Loss (NEL) benefit for the neck impairment.
BACKGROUND
The worker was employed as a painter. On June 11, 2018 the worker fell backwards from a ladder, sustaining a concussion and soft tissue injuries of the neck, upper back, lower back, and right foot. The worker was 38 years old when the injury occurred.
Full loss of earnings (LOE) benefits were paid from June 12, 2018 to November 27, 2018. The worker took a new job as a personal support worker on November 27, 2018 and LOE benefits were stopped. The worker was unable to sustain their new employment and full LOE benefits were restored as of April 27, 2019 and have continued to be paid.
The worker was diagnosed with generalized anxiety and panic disorder. Although the conditions were determined to be pre-existing, on October 31, 2019 entitlement was allowed for a psychotraumatic disability for a temporary worsening of the conditions. A decision dated November 3, 2020 determined the work-related psychotraumatic condition had resolved with no ongoing entitlement, but that decision was overturned in a decision by an Appeals Resolution Officer (ARO) dated February 16, 2023. Further psychological treatment was subsequently approved.
A permanent impairment was recognized for the concussion, with the worker reaching maximum medical recovery (MMR) as of July 19, 2021. On August 16, 2021, the worker was rated with a 5% NEL benefit for the concussion. The 5% NEL quantum was confirmed in an ARO decision dated March 23, 2022.
The ARO decision of March 23, 2022 also allowed ongoing entitlement for a neck strain. A subsequent ARO decision dated October 20, 2022, recognized a permanent impairment for a chronic cervicogenic strain of the neck. The worker reached MMR for the neck impairment by October 25, 2021 and on November 7, 2022, the worker was rated with a 4% NEL benefit for the chronic cervicogenic strain, resulting in a 9% NEL benefit in the claim.
On October 11, 2023, the worker had a fall at home while going up stairs and sought treatment at a hospital emergency. The worker sustained a neck strain and a concussion. Hospital records also noted there was a minimal grade 1 anterolisthesis of C2 and C4. The worker requested entitlement for a NEL redetermination for the neck and recognition of new diagnoses.
The Case Manager decision of November 21, 2023 denied entitlement for the new accident on
October 11, 2023, determined there had been no significant deterioration in the worker’s neck condition, and denied entitlement for new diagnoses of cervical spine instability and anterolisthesis of C2 and C4. The decision was confirmed in reconsideration decisions dated June 18, 2024 and October 11, 2024.
AUTHORITY
Operational Policy Manual
Published
15-05-01 Resulting from Work-Related Disability/Impairment 18-05-09 NEL Redeterminations
April 9, 2021
January 3, 2023
ANALYSIS
I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision and find there is no entitlement for new diagnoses in the cervical spine and no entitlement for a NEL redetermination for the neck. My reasons are explained below.
The worker representative submitted an Appeal Readiness Form dated August 1, 2024 with an attached submission. It is their position that entitlement should be allowed for cervical spine instability and anterolisthesis, and that a NEL redetermination should be allowed for the neck because of a significant deterioration. They relied on a report from the worker’s physiotherapist dated July 26, 2024.
The employer is not participating in the appeal and did not submit a Respondent Form. Cervical Spine New Diagnoses
According to operational policy 15-05-01, entitlement for a secondary condition is accepted when it is established that a causal link exists between it and the work-related injury.
I find there is no entitlement for the fall at home on October 11, 2023, because the evidence does not establish a causal link between that incident and the work-related injury. On October 30, 2023, documented in claim file memo A0221, the worker reported having a recent fall. The worker attributed the fall to being dizzy because of the concussion and neck impairment in this claim, but the worker’s position is not supported by medical evidence. Hospital records show the worker was seen on October 11, 2023, after a trip and fall while going upstairs resulted in the worker hitting their face on the stairs. The worker was having cervical spine pain and was feeling nauseated after the fall, but there was no indication that
the worker was experiencing dizziness leading up to the fall. I find the trip and fall incident on October 11, 2023, was not causally related to the injuries in this claim.
I find there is no entitlement for anterolisthesis of C2 and C4 in the cervical spine. A minimal grade 1 anterolisthesis of C2 and C4 was shown on a CT scan of the head and cervical spine on
October 11, 2023, but the report did not identify it as a significant new finding. The presence of the anterolisthesis was not confirmed in a subsequent MRI. An MRI of the cervical spine on July 7, 2024, showed multilevel degenerative changes characterized by disc dehydration but there was no reference to anterolisthesis of C2 and C4. Given the inconsistent evidence regarding the presence of anterolisthesis of C2 and C4, and the absence of evidence to link the potential condition to the injuries in this claim, I find entitlement is not in order for anterolisthesis of C2 and C4.
I also find there is no entitlement for cervical spine instability. A physiotherapy report dated
August 25, 2023, noted that the worker presented with signs of cervical spine instability, but there was no definitive diagnosis. When the worker was seen at a hospital emergency on October 11, 2023, after the fall at home, the hospital records indicated the physiotherapist was concerned about cervical spine instability but there was no true diagnosis of the condition. Noting the absence of a confirmed diagnosis of cervical spine instability, I find entitlement for the condition is not in order.
NEL Redetermination
According to operational policy 18-05-09, 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
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.
A significant deterioration refers to a marked degree of deterioration in the work-related impairment that is demonstrated by a measurable change in the clinical findings.
After reviewing the medical evidence, I find it does not establish a significant deterioration of the cervical spine impairment. When the NEL benefit for the cervicogenic strain was determined on
November 7, 2022, the worker had normal range of motion in the cervical spine. The 4% impairment rating arose under Table 53IIB of the AMA Guides for an unoperated intervertebral disc or other soft tissue lesion.
The physiotherapy reports of August 25, 2023 and July 26, 2024 indicated the worker was being treated for a cervical spine injury. The physiotherapist reported there was reduced range of motion, but not all reports confirmed a deterioration in the cervical spine range of motion. When the worker was seen at the hospital following the trip and fall on October 11, 2023, the hospital records indicated there was full range of motion of the neck and no paraesthesias. The diagnosis was neck strain.
The worker has a permanent impairment for a chronic cervicogenic strain. There may be times when symptoms are temporarily flared up, but because the evidence does not establish a significant and permanent deterioration in the cervical spine range of motion or other measurable changes, I am unable to establish that the work-related cervical spine impairment has deteriorated significantly and permanently since the last NEL determination. There is no entitlement for a NEL redetermination for the cervical spine.
CONCLUSION
I conclude:
There is no entitlement for a trip and fall incident at home on October 11, 2023 and no entitlement for cervical spine instability and anterolisthesis of C2 and C4.
There is no entitlement for a redetermination of the NEL benefit for the neck impairment.
The worker’s objection is denied.
DATED FEBRUARY 28, 2025
Helen Shaw
Appeals Resolution Officer Appeals Services Division