WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 776/15

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 776/15 BEFORE: S. Netten: Vice-Chair HEARING: April 21, 2015 at Toronto Written DATE OF DECISION: May 1, 2015 NEUTRAL CITATION: 2015 ONWSIAT 936 DECISION UNDER APPEAL: WSIB Appeals Resolution Officer decision dated August 26, 2009 APPEARANCES: For the worker: For the employer: Interpreter: Self-represented Not participating None Workplace Safety and Insurance Appeals Tribunal Tribunal d appel de la sécurité professionnelle et de l assurance contre les accidents du travail 505 University Avenue 7 th Floor 505, avenue University, 7 e étage Toronto ON M5G 2P2 Toronto ON M5G 2P2

2 Decision No. 776/15 REASONS (i) Issue [1] The issue under appeal is the worker s entitlement to a redetermination of the non-economic loss (NEL) award for the low back. (ii) Overview [2] The worker has entitlement for a permanent low back impairment resulting from a lumbar strain sustained at work on December 30, Her compensable impairment was rated at 24% on March 6, [3] The worker requested a NEL redetermination in March This was denied at the operational and appeals levels of the Board, in April 2009 and August 2009, respectively. [4] The worker appealed to the Tribunal, but her appeal was put on hold at her request. Once revived, the appeal was selected for a written hearing pursuant to the Tribunal s Practice Direction on Written Appeals. The worker provided submissions dated February 24, 2015: the pain and weakness in my back, legs and feet are persistent and increased to the degree that it has seriously diminished my life, more so than the current rate of 24%. My level of motion has very much decreased and am finding that the pain medication doesn t seem to relieve the pain as well as it has in the past. I find it necessary to increase my medicine at times. More days than not I am stuck in bed with a heating pad, TENS machine and having to rely on others. [5] The worker also pointed out that she suffers from chronic depression and anxiety brought on by chronic pain, and provided reports from psychiatrist Dr. J. Dhaliwal. The issue before me is limited to a redetermination of the NEL award for an organic back injury. The worker does not presently have entitlement for depression or anxiety in this claim. As such, I have not considered the materials regarding the worker s psychological condition. (iii) Commentary in the Appeals Resolution Officer (ARO) decision [6] In her Notice of Appeal to the Tribunal, the worker focused upon her concern that the ARO misrepresented certain events associated with a non-compensable hip fracture. She set out a detailed description of the events, and provided two witness statements. The worker was referring to the following paragraph in the ARO decision: I note that on August 5, 2009 the worker sustained a right Garden IV subcapital hip fracture after falling from what the ambulance attendant reported as being standing height. She reported a different version of events to the adjudicator in memo #51 dated August 14, What concerns me is that the worker admitted to the ambulance attendant she was drinking alcohol and alcohol is contraindicated with the worker s medications. [7] The circumstances surrounding the worker s non-compensable hip fracture (including any use of alcohol) are entirely irrelevant to a determination of whether the worker had suffered a deterioration in her back condition between 2007 and 2009, and the expression of the ARO s concerns is thus unwarranted. I have not given any consideration to the ARO s comments in this respect.

3 Page: 2 Decision No. 776/15 (iv) Law and policy [8] The Workplace Safety and Insurance Act, 1997 ( WSIA ) applies to this appeal. All statutory references in this decision are to the WSIA, as amended, unless otherwise stated. [9] Section 46 grants compensation for non-economic loss when a worker suffers permanent impairment as a result of a compensable injury. The amount of the NEL award is calculated based upon the degree of the worker s permanent impairment, expressed as a percentage of total impairment. The degree of permanent impairment is determined in accordance with the prescribed rating schedule, which is the American Medical Association s Guides to the Evaluation of Permanent Impairment, 3 rd edition (revised) ( the AMA Guides ). The AMA Guides rate back impairments by assessing reduced range of motion, specific disorders of the spine (fractures, intervertebral disc or soft tissue lesions, surgeries, etc.), and associated neurological deficits in the spine (if any) which affect the lower extremities. [10] Pursuant to section 47(9), a worker may request a redetermination of the degree of permanent impairment if, at least one year later, he or she has suffered a significant deterioration of the permanent condition. [11] Section 126 requires the Tribunal to apply Board policy when making its decisions. Board policy on NEL redeterminations (Operational Policy Manual Document No ) defines significant deterioration as a marked degree of deterioration in the work-related impairment that is demonstrated by a measurable change in objective clinical findings. Decision-makers are directed to compare the most recent medical findings with the clinical condition at the time of the last NEL determination. [12] The standard of proof applicable in workers compensation proceedings is the balance of probabilities. Pursuant to section 124(2), the benefit of the doubt is given to the claimant in resolving an issue where the evidence for and against is approximately equal in weight. (v) The worker s condition leading up to and at the NEL determination [13] The Rehabilitation and Evaluation Centre report of January 4, 2006 noted constant pain, aggravated by activity, with radiation to the legs and reduced range of motion. Orthopedic surgeon Dr. J. Rodrigues assessed chronic mechanical low back pain with no definite neurological deficit. [14] On February 17, 2006, the worker s physiotherapist noted flexion of 50. In April 2006, the worker s family doctor, Dr. Y. Oozeer, reported ongoing pain, with flexion of and normal extension. [15] The worker was examined by Dr. G. Ing for NEL purposes, on February 23, At that time the worker reported taking, for her back pain, Oxycontin (20 mg) twice daily, Oxycocet as needed, Cyclobenzaprine (10 mg) (a muscle relaxant) and Meloxicam (15 mg) (a non-steroid anti-inflammatory drug). The worker complained of constant sharp pain in her back, aching pain in her lower legs and numbness in her toes, rated at 4 out of 5 in intensity. Her range of motion was reduced, to 15 forward flexion, 5 extension, and 10 right and left lateral flexion. There were no neurological findings.

4 Page: 3 Decision No. 776/15 [16] The NEL rating of March 6, 2007 of 24% thus included 20% for the decreased range of lumbar motion, combined with 5% for other spinal disorders, specifically: 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 none-to-minimal degenerative changes on structural tests. (vi) Medical reporting since that time, regarding the low back [17] A CT scan of March 11, 2009 identified mild changes including bulging at L4-5, narrowing at L5-S1, and mild facet joint osteoarthritis. [18] On April 13, 2009 Dr. Oozeer responded to the Board s request for comment upon areas of deterioration, changes in range of motion, complications, evidence of neurological dysfunction and increase in treatment: [The worker] was examined on April 1, 2009 regarding her ongoing chronic low back condition. She has found that over the course of time her low back pain has increased. She has pain daily with an increase in the level of pain with prolonged standing or sitting. On her most recent exam (April 1) she was found to have the following range of motion: flexion was between 0-15 degrees, extension was 0 degrees, and lateral bending was approximately 10 degrees to either side. Reflexes were found to be 2 plus bilaterally. She had some subjective weakness on motor exam to the lower leg. Her condition has worsened to the point that she now requires Oxycontin 20 mg every 12 hours and Percocet one to two every six hours as needed for breakthrough pain. She is also on Flexeril 10 mg at night, Meloxicam 15 mg once a day and Celexa 20 mg tablets two a day for management of her chronic back condition. Given the reduced range of motion as well as her increase in medications to treat her condition, it is suggested that an NEL assessment be considered. [19] A CT scan of January 27, 2011 found mild bulging at L4-5 and mild facet joint arthritis at L4-5 and L5-S1. [20] In a letter dated February 23, 2011, Dr. Oozeer described debilitating, daily pain from the worker s chronic back condition and from a non-compensable hip fracture and replacement, for which the worker took the same medications noted in [21] Dr. Oozeer s chart notes were provided by the worker. These outline regular complaints of chronic back pain. While the chart note for the above-referenced visit of April 1, 2009 states flexion d Ext 0, the worker reportedly had flexion of 75 and normal extension in October 2008 and February 2009; flexion of 75 and extension of 10 in June 2010; flexion of 60 and extension of in January 2011; flexion of 75 and normal extension in February, May and August 2011, and August 2012; flexion of 75 and extension of 10 in August 2013; and normal flexion and extension of 10 in December The most recent chart note, for March 11, 2014, indicates that the worker needed copies of her records for the Board, and back pain flared recently. The worker then had flexion of 30, nil extension, and lateral flexion of (vii) Discussion and conclusion [22] The question before me is whether there has been a marked degree of deterioration in the worker s compensable chronic back condition, that is demonstrated by a measurable change in

5 Page: 4 Decision No. 776/15 objective clinical findings. An increase in subjective complaints, such as pain, is not sufficient. The focus is upon deterioration in back function assessed via range of motion, and worsening of spinal disorders, since these are the elements assessed within the AMA Guides for the worker s permanent back impairment. The worker does not have a compensable neurological impairment, nor does she have entitlement for underlying degenerative changes, facet osteoarthritis or a non-organic condition such as Chronic Pain Disability or Psychotraumatic Disability. [23] In support of her request for a redetermination, the worker and her physician have highlighted range of motion and use of medications. [24] The worker s range of motion on April 1, 2009 was slightly worse than that measured by Dr. Ing in However, I find that the worker s range of motion on that date was not reflective of her ongoing lumbar mobility, given the inconsistency with the preceding and succeeding measurements taken over an extended period. The worker s range of motion, assessed by Dr. Oozeer regularly between 2008 and 2014, has generally been substantially better than that assessed for NEL purposes in Her forward flexion has almost always been 60 or better, compared to 15 in 2007, and her extension has almost always been 10 or better, compared to 5 in Even during a recent flare-up in 2014 (which would not reflect a permanent change), the worker s flexion was twice that in I find, therefore, that the worker has not experienced a permanent worsening in her lumbar range of motion since February [25] While an increase in medication usage may suggest a compensable deterioration, it does not, in and of itself, constitute a change in clinical findings. For example, individuals may develop a tolerance to certain medications over time. In any case, the worker s prescriptions for her back in 2009 and 2011 are essentially the same as those in 2007, with the same dosages: Oxycontin twice daily, Oxycocet/Percocet (both combination opioid analgesics) as needed, Flexeril (brand name for Cyclobenzaprine) and Meloxicam. [26] I conclude, therefore, that the worker has not experienced a marked degree of deterioration in her compensable permanent condition, demonstrated by a measurable change in objective clinical findings, in comparison to her last NEL assessment. She does not have entitlement to a redetermination of her NEL award.

6 Page: 5 Decision No. 776/15 DISPOSITION [27] The appeal is denied. DATED: May 1, 2015 SIGNED: S. Netten