2025 CanLII 39071

DECISION NUMBER:

20250027

OBJECTING PARTY:

REPRESENTED by:

RESPONDENT PARTY:

HEARING:

HEARD by:

DATED:

JANUARY 30, 2025

ISSUE

The Worker objects to the NEL Clinical Specialist (NCS) decision dated February 25, 2021, which limited the Worker’s Non-Economic Loss (NEL) rating for the neck to 14%. (The payable NEL benefit under this claim for the neck was determined to be 12% when the Worker’s previous NEL benefits were accounted for.)

BACKGROUND

On June 26, 2019, this Worker injured their neck, upper back, and right shoulder at work. They were driving a shunt truck, reversing it towards a trailer in order to hook it up to that trailer. They thought the trailer was empty when in fact it was full of water. They experienced an unexpected jolt in their body when the truck made contact with the trailer.

The Workplace Safety and Insurance Board (WSIB) allowed the claim for injuries to those aforementioned areas of the body. The WSIB subsequently recognized that the Worker had a Permanent Impairment (PI) related to the neck injury.

In the decision of February 25, 2021 (reconsidered and upheld on September 9, 2024), the NCS determined that the Worker was entitled to a 14% NEL benefit for the neck injury. The Worker was previously paid for other NEL benefits related to other areas of the body under other claims. When accounting for said previous NEL benefits, the Worker’s payable NEL benefit under this claim for the neck was 12%, which was the rating communicated in the decision letter. The Worker objected to that decision and the issue was forwarded to the Appeals Services Division (ASD).

The Worker’s Position

The worker representative submitted an Appeal Readiness Form (ARF) dated August 22, 2024 along with a one-page explanation. They asserted that range of motion values for Flexion and Extension should be higher - as 1% and 3% impairment ratings, instead of 0% and 2%, respectively. This is because, as the Worker’s range of motion values did not conform exactly with the applicable guidelines, and instead fell in between the expressed percentages (i.e. the guidelines states 40 degrees and 60 degrees, but the Worker’s measured range of motion fell in between those values, at 50 degrees) then the WSIB should use in-between values. Instead, the WSIB rounded-up the values, for example, to 60 degrees with respect to Flexion. This resulted in a 0% impairment rating for that movement (for Flexion), which the worker representative contended was unfair to the Worker since the Worker had an actual range of motion impairment. The worker representative asked that the WSIB accept an in-between range of motion value (the actual 50 degrees), and by extension an in-between corresponding impairment rating (1%) for Flexion, and similarly with respect to Extension.

The worker representative supported their position by noting that the Worker at the time of MMR (Maximum Medical Recovery) had just recently received an epidural injection and radio frequency ablation. They argued that the Worker was still under the effects of said treatment when the range of motion values were measured and used to calculate their NEL benefit, since said range of motion values were taken on the date of MMR. As a result, the WSIB should give Worker the benefit of a lower range of motion value (and to not round up the value) to account for the effects of the treatment.

The Employer’s Position

The Employer did not return the Participant Form that the WSIB sent to them with regard to this appeal. As such, I have considered them as not participating in this appeal.

AUTHORITY

Workplace Safety and Insurance Act (WSIA):

Published:

Ontario Regulation 175/98

1997

Operational Policy Manual:

18-05-03 Determining the Degree of Permanent Impairment

November 3, 2014

ANALYSIS

I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision. I have determined that the Worker’s objection is allowed. I find that the Worker is entitled to a 1% increase in their NEL rating for their neck injury, resulting in a 15% NEL rating for their neck injury under this claim. I remit to the Operating Area to make the payable NEL benefit calculations, taking into account what the WSIB previously paid the Worker for their previous NEL benefits.

My reasons are as follow.

Policy 18-05-03 Determining the Degree of Permanent Impairment states in part:

A worker who has a work-related permanent impairment is entitled to a non-economic (NEL) benefit based on the degree of his/her work-related permanent impairment determined by the decision-maker. 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.

The prescribed rating schedule that the WSIB uses in determining the degree of a worker’s PI is the American Medical Association Guides to the Evaluation of Permanent Impairment, Third Edition Revised (AMA Guides). This is as per Ontario Regulation 175/98 of the Workplace Safety and Insurance Act.

In this Worker’s case, a separate decision established the date of Maximum Medical Recovery (MMR) for the neck as January 27, 2021. There is no dispute from the workplace parties related to the date of MMR. I will accept the date of MMR as stated.

I highlight the following pertinent medical reports and findings related to the neck PI around the time of MMR:

The WSIB Back and Neck Specialty Program – Follow-up assessment Report dated January 27, 2021 provided an occupational diagnosis of “cervical strain, with nearly resolved left- side radiculopathy.”

Range of motion figures were also provided:

o Flexion: 50 degrees

o Extension: 45 degrees

o Left-side Flexion: 25 degrees

o Right-side Flexion: 25 degrees

o Left Rotation: 35 degrees

o Right Rotation: 35 degrees

In their submission, the worker representative observed that in Table 55 of Chapter 3.3 of the AMA Guides, the range of motion degrees are expressed in specific intervals and there is a corresponding impairment rating (%) for each of those intervals. Flexion is expressed as follows:

Range of Motion (Degrees)

Impairment Rating (%)

Extension is expressed as follows:

Range of Motion (Degrees)

Impairment Rating (%)

The worker representative argued that since the Worker’s range of motion measurements accepted by the WSIB for Flexion and Extension of the neck were 50 and 45 degrees, respectively, and said values are not expressly stated in the Table, then they ask that the WSIB accept in-between values in the respective charts. They ask that in-between values of 1% and 3% impairment ratings for Flexion and Extension, respectively, be accepted.

As noted in a memo dated September 9, 2024, the AMA Guides (Chapter 2.2) provides some guidance on rounding of values when evaluating an impairment. However, I find it does not apply to this Worker’s range of motion findings for the neck. For example, it states with respect to “evaluating the Whole Person:”

To support systems that require such determinations, the reference tables of the Guides take into account all relevant considerations in reaching “whole person” impairment ratings. A final impairment percentage, whether the result of single or combined impairments, may be rounded to the nearer of the two nearest values ending in “0” or “5.”

The foregoing statement referring to “final impairment percentage,” I find, does not apply to the Worker’s range of motion measurements.

Chapter 3.3c for the neck provides some guidance with respect to range of motion measurements, but does not instruct the decision-maker to round up or down with respect to the range of motion degree or to choose a range of motion value specifically expressed in a Table (and by extension, a specific impairment rating value). For instance, Chapter 3.3c states that a clinician should take several range of motion measurements, the values of which should be within +/-10% or 5 degrees, whichever is greater” in order to be valid. Then, “the final measurement for impairment evaluation is the greatest angle measured.” Therefore, if three measurements taken resulted in 50, 53, and 55 degrees, the measurements would be valid, and the greatest angle would be 55 degrees.

In this Worker’s case, the WSIB accepted the range of motion values of 50 degrees for Flexion and 45 degrees for Extension. Therefore, these are the final measurements for impairment evaluation.

In this Worker’s case, I do not see it necessary, in order to respect the AMA Guidelines, that this Worker’s range of motion values for Flexion (50 degrees) and Extension (45 degrees), be made to strictly conform to Table 55’s expressed guidelines of 60 degrees and 50 degrees, respectively. In my view, rounding up to 60 and 50 degrees would not fairly recognize the Worker’s accepted range of motion deficit.

For these reasons, I accept the worker representative’s position. I find it fair to accept the in-between values. Therefore, the Worker’s 50 degrees of Flexion coincides with a 1% impairment rating, and their 45 degrees of Extension coincides approximately with a 3% impairment rating, based on Table 55 of the AMA Guides.

In summary, based on the AMA Guides, Tables 55-57 of Chapter 3.3, the following new impairment ratings apply for this Worker (new values in bold):

Abnormal Motion (in degrees) – Neck

Movement

Angle

Range of Motion

Impairment Rating

Flexion

(same)

Extension

(same)

Left-side Flexion

(same)

Right-side Flexion

(same)

Left Rotation

(same)

Right Rotation

(same)

Other Non-Scheduled Impairments

The MRI of September 5, 2019 showed “multi-level spinal stenosis (mild to moderate) C4 to C7 with multi-foraminal stenosis, worst at C4/5 on the left; moderate to large disc-osteophyte complex indenting/ flattening the anterior spinal cord.”

Based on Table 53 of Chapter 3.3, I find it appropriate to match the Worker’s neck impairment to category II-C.

Description of Impairment

Impairment Rating

Intervertebral disc or other soft-tissue lesions:

Unoperated, with medically documented injury and a minimum of six months of medically documented pain and rigidity with or without muscle spasms, associated with moderate to severe degenerative changes on structural tests; includes unoperated herniated nucleus pulposus with or without radiculopathy.

Peripheral Nervous System Disorders

There was no evidence of peripheral nervous system disorders. Deep tendon reflexes, upper extremity myotomes, and dermatomes were normal, as per the Specialty Program report of January 27, 2021.

The revised total neck impairment, arrived at by adding the range of motion impairment measurements is 10% (1% + 3% + 1% + 1% + 2% + 2%).

The combination of values is not the same as the addition of values – the former is calculated by using the Combined Values Chart of the AMA Guides, while the latter involves the traditional arithmetic of adding values. Combining the values ensures that no matter how many impairments are present, the total is never greater than 100% loss of an extremity or 100% Whole Person Impairment (WPI). The AMA Guides states, “The method for combining impairments is based on the principle that each impairment acts not on the whole part but only on the remaining portion after the preceding impairment has acted.” The AMA Guides specify when it is appropriate to combine versus add values.

The 10% combined with the Other Non-Scheduled Impairment of 6% results in 15%.

The 15% for the spine is already reflective of a Whole Person Impairment (WPI) as per Chapter 3.3. No adjustment in this regard is required.

There is indication on file, including in the Specialty Program reports, of neck osteoarthritis. Policy 18-05-03 states in part with respect to pre-existing conditions:

If it is established that a pre-existing condition is contributing to the degree of total impairment to the same area of the body, the decision-maker:

rates the total impairment to the area according to the prescribed rating schedule
determines the rating for the pre-existing condition according to the prescribed rating schedule, and
subtracts the rating for the pre-existing condition from the total impairment rating to get the rating for the new work-related impairment.

The NCS determined that, based on their review of the clinical information on file, the Worker’s circumstances did not meet the criteria for an adjustment to their impairment rating due to a pre-existing condition. Based on my review, I find this to be an appropriate finding.

The WSIB previously paid the Worker for 16% NEL benefits related to other areas of injury under other claims. This affects the payable NEL benefit resulting from this claim and this NEL assessment for the neck. In light of this, I remit to the Operating Area the task of adjusting the Worker’s payable NEL benefit flowing from this appeals decision.

In summary, pursuant to policy 18-05-03, I have determined that the Worker has entitlement to a 15% (WPI) NEL rating for their neck injury. This represents a 1% increase from what had been determined in the Operating Area. The Worker’s request for a higher NEL benefit for the neck is allowed.

CONCLUSION

I have determined that the Worker is entitled to a 1% increase in their NEL rating for their neck injury, resulting in a 15% NEL rating for their neck injury under this claim. I remit to the Operating Area to make the payable NEL benefit calculations, taking into account what the WSIB previously paid the Worker for their previous NEL benefits.

The Worker’s objection is allowed.

DATED JANUARY 30, 2025

Theodore Lim

Appeals Resolution Officer Appeals Services Division