WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 147/15

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 147/15 BEFORE: B. Goldberg: Vice-Chair HEARING: January 20, 2015 at Toronto Written DATE OF DECISION: January 27, 2015 NEUTRAL CITATION: 2015 ONWSIAT 228 DECISION(S) UNDER APPEAL: WSIB Appeals Resolution Officer (ARO) B. Maier-Pessoa, decision dated November 18, 2009 and ARO K. Walsh, decision dated March 19, 2013 APPEARANCES: For the worker: For the employer: Interpreter: Mr. S. Cirillo, Paralegal Not participating N/A 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. 147/15 REASONS (i) Introduction [1] The estate of the worker appeals a 2009 decision of the ARO which concluded that the worker did not have entitlement to a redetermination of the 8% Non-Economic Loss (NEL) award for the worker s low back or to a redetermination of the 3% NEL award for the worker s right wrist. The ARO concluded that the worker did not suffer a permanent impairment of the right shoulder or lower back related to an April 1997 accident. The estate of the worker also appeals a 2013 decision of the ARO which concluded worker did not experience a permanent impairment of her cervical spine due to the compensable accident in April 1997 and therefore the worker s estate was not entitled to a NEL benefit for the cervical spine. In both decisions, the ARO rendered a decision based upon the written record without an oral hearing. (ii) Issues [2] The issues under appeal are as follows: 1. Does the worker have entitlement to a redetermination of the 8% NEL award for the low back injury related to the accident of August 28, 1992? 2. Does the worker have entitlement to a redetermination of the 3% NEL award for the right wrist related to the disablement of September 13, 1993? 3. Does the worker have entitlement to recognition of permanent impairment and entitlement to a NEL award for the cervical spine, right shoulder and low back related to the accident of April 14, 1997? (iii) Background [3] The worker was self-employed as a restaurant owner in November She had personal workplace compensation coverage. On August 28, 1992 (the August 1992 accident ), the worker was cooking. She injured her low back and neck when she slipped on a piece of lettuce leaf and fell while holding a large pot of water. The diagnosis was lumbar strain. The worker received physiotherapy. The Board referred the worker to a Regional Evaluation Centre (REC) due to ongoing symptoms. The worker had a CT scan. On March 10, 1993, the REC confirmed that the worker had spinal stenosis at L3-4 and L4-5, secondary to circumferential disc bulging greater at L4-5, without encroachment. The final diagnosis was degenerative disc disease with mechanical low back pain. The worker returned to part-time light duties in July [4] The worker had another compensable injury on September 13, 1993 (the September 1993 disablement ). In a report to the Board on November 30, 1993, she claimed that her right wrist had become painful and swollen due to the repetitive use of her hands making dough. The worker saw her family physician on October 5, 1993 who ordered an EMG study. The worker was diagnosed with median nerve entrapment on the right side, with an underlying diagnosis of right carpal tunnel syndrome (CTS). The worker had right median nerve decompression surgery on January 11, 1994.

3 Page: 2 Decision No. 147/15 [5] Subsequently, the Board determined that the worker s August 1992 low back injury was permanent. The worker was assessed for a NEL award. On February 6, 1995, the Board granted the worker an 8% NEL award for the ongoing low back impairment. [6] The Board determined that the worker s right wrist impairment was permanent. The Board arranged for a NEL assessment. On June 4, 1996, the Board granted the worker a 3% NEL award. [7] In 1996, the worker began work at a bakery. Approximately six months later, on April 14, 1997 (the April 1997 accident ), the worker was lifting a bucket of potatoes when the water spilled. She slipped and fell on the floor. She reported multiple injuries to her employer. The worker sought medical attention on the day following the injury with her family doctor, who diagnosed musculoligamentous strains to the neck, shoulders and back. [8] Six months later, the Board referred the worker to the REC, due to ongoing symptoms. The REC report, dated September 24, 1997, concluded that the worker had a diagnosis of mechanical low back pain secondary to pre-existing degenerative disease and strains to her neck and right shoulder. The REC report advised that although a short duration of pain was expected followed by recovery, many non-organic signs may indicate a potential non-organic barrier to recovery. [9] The Board closed the worker s benefits related to the April 1997 accident on October 15, This was communicated to the worker by letter dated October 20, The Board considered that the worker had recovered on an organic basis without evidence of a permanent impairment. [10] In 2007, the worker s representative requested a NEL redetermination for the August 1992 low back injury, the September 1993 right wrist injury, and for a NEL assessment for the August 1997 right shoulder and back injury. The representative provided updated medical reporting. [11] By letter dated February 12, 2007, the Board concluded that there was no evidence of a permanent impairment to the worker s right shoulder or back stemming from the April 1997 accident. The Board denied the request for a NEL assessment. [12] By letter dated March 7, 2007, the Board determined that there was no evidence to support a significant deterioration of the worker s right wrist condition related to the September 1993 disablement. [13] By letter dated April 19, 2007, the Board denied the worker s request for redetermination on the basis that there was no evidence of significant deterioration in the worker s low back condition related to the August 1992 accident. [14] The worker objected to these decisions. In a 2009 ARO decision, the ARO denied the worker s appeal. The ARO concluded that there was no evidence to support a significant deterioration of the worker s low back or right wrist conditions below the levels reflected in the existing NEL awards. The ARO also concluded that there was no evidence of a permanent impairment of the worker s low back and right shoulder conditions related to the 1997 accident. The ARO noted that the issue of whether the worker sustained a permanent neck impairment following the 1997 compensable injury was not before him.

4 Page: 3 Decision No. 147/15 [15] The worker s representative commenced an appeal. However, the Tribunal notified the representative that one of the areas for which entitlement was sought on appeal (the cervical spine) had not been adjudicated by the Board. The worker s representative returned to the Board to adjudicate the matter. [16] In a decision dated April 3, 2012, the Board denied the worker s request and concluded that there was no evidence to support that the worker had experienced a permanent impairment of her cervical spine due to her compensable accident of April 14, The worker objected to this decision. [17] The record reflects that the worker suffered from a serious illness from 1985 onwards requiring multiple hospitalizations and treatment. [18] The worker passed away on May 21, 2012, at age 66. [19] In a 2013 decision, the ARO concluded that the worker did not experience a permanent impairment of her cervical spine due to the compensable accident of April 1997 and therefore the worker s estate was not entitled to a NEL benefit for the cervical spine. [20] It is from these decisions that the worker s estate appeals to the Tribunal. (iv) Law and policy [21] Since the worker was injured on August 28, 1992, September 13, 1993, and April 14, 1997, the pre-1997 Worker s Compensation Act is applicable to this appeal. All statutory references in this decision are to the pre-1997 WCA, as amended, unless otherwise stated. The hearing of this appeal commenced after January 1, 1998, therefore certain provision of the Workplace Safety and Insurance Act, 1997 (the WSIA ) also apply to this appeal. [22] Tribunal jurisprudence applies the test of significant contribution to questions of causation. A significant contributing factor is one of considerable effect or importance. It need not be the sole contributing factor. See, for example, Decision No [23] Pursuant to section 126 of the WSIA, the Board stated that the following policy packages, Revision #9, would apply to the subject matter of this appeal: Package #63 NEL Quantum decisions from July 2, 2008 to March 29, 2011; Package #262 NEL Entitlement; Package #300 Decision Making/Benefit of Doubt/Merits and Justice. I have considered these policies as necessary in deciding the issues in this appeal. (v) Submissions [24] The worker s representative provided written submissions on behalf of the worker s estate, dated December 5, The worker s representative reviewed the ARO decisions under appeal, applicable Board policy, and the medical information in some detail. I discuss the relevant Board policy and medical evidence in the Analysis section, below. (vi) Analysis [25] The appeal is denied.

5 Page: 4 Decision No. 147/15 (a) The worker does not have entitlement to a redetermination of the 8% NEL award for the low back injury related to the accident of August 28, 1992 [26] The appeal on this issue is denied for the reasons that follow. [27] Legislation and Board policy provide that the degree of a worker s permanent impairment is determined in accordance with the prescribed rating schedule or criteria, any medical assessments, and having regard to the health information on file. The prescribed rating schedule for most impairments is the American Medical Association s Guides to the Evaluation of Permanent Impairment, 3 rd edition (revised) (the AMA Guides). The Board has adopted specific rating schedules for impairment due to psychological disability, fibromyalgia, chronic pain and other conditions. Board Operational Policy Manual (OPM) Document No ( Determining the Degree of Permanent Impairment ) states that to rate permanent impairment, the Board uses a prescribed rating schedule, the reports from a NEL medical assessment, and all relevant health information in the claim file up to the date of the NEL assessment. The prescribed rating schedule for rating permanent impairment is the AMA Guides. The AMA Guides contain tables for assigning a percentage for specific motions and conditions. [28] OPM Document No , Redeterminations and Recalculations indicates that a worker may request a redetermination of an existing NEL award when the worker s condition has deteriorated significantly since the last NEL medical assessment and 12 months have passed since the assessment. The policy defines the term significant deterioration as follows: 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. [29] I have considered the original NEL assessment, and the subsequent medical documentation on file. I find that based on the totality of the evidence before me, specifically the worker s medical reporting since 1995, the worker has not established deterioration of the low back condition below the level reflected in the current 8% NEL award. Thus, the worker is not entitled to a NEL redetermination. [30] The worker was diagnosed with a compensable lumbar strain in At the time of the accident, a CT scan showed degenerative changes with no disc herniation. At the 1995 NEL assessment, the worker was assessed as having flexion from neutral position limited to 31 to 45 degrees; extension from neutral position limited to 20 degrees; and left and right lateral flexion was limited to 20 degrees. The worker reported pain with all movements. The worker reported constant back pain with occasional radiation to the knees, with symptoms worse upon movement and better with rest. [31] The worker had another low back injury on April 14, When she reported ongoing symptoms, the Board referred her for a REC assessment. The REC report, dated September 24, 1997, recorded that the worker reported low back pain radiating into the right buttock with no radiculopathy. On examination, the worker demonstrated pain behaviors. Extension was one-third normal with pain complaints. Right side flexion was accompanied by moaning and was approximately one half range. The diagnosis was mechanical back pain secondary to pre-existing degenerative disc disease. The worker s non-organic behaviour was considered a barrier to recovery.

6 Page: 5 Decision No. 147/15 [32] There is little medical reporting of significance between 1997 and In support of the redetermination request, the worker provided a January 14, 2007 report from her family physician, Dr. M. Wong and a January 2006 CT scan. [33] The 2006 CT scan of the lumbar spine revealed a small left paracentral posterior disc herniation at L2-L3 and suspicion of same at L3-L4. [34] In her January 2007 report, Dr. Wong explained that for more than twenty years, the worker has suffered from a significant non-compensable illness that included repeated investigations and surgeries. This illness required regular hospitalizations. Dr. Wong stated, As a result, she seldom sought medical attention for the work related injuries. Dr. Wong reported that the worker had an onset of significant back pain on October 17, 2005 which resulted in the worker unable to leave her bed to attend for an examination. Dr. Wong examined the worker on January 12 th, and recorded that the worker grunted in pain when asked to touch her fingers to her shin and had difficulty straightening up. Dr. Wong described extension, lateral flexion, and rotation of the low back as full with no pain. The worker could do a straight leg raise to 90 degrees without pain. The worker s power was normal and symmetric with a normal gait. [35] The Board s Medical Consultant reviewed the worker s file. In a Memorandum dated April 12, 2007, Dr. Germansky concluded that there is no evidence of a substantial deterioration below the worker s assessed NEL level of 8% for the low back. [36] I concur with Dr. Germansky s assessment as the 2007 reporting does not provide objective findings to demonstrate a significant deterioration of the worker s low back condition below her NEL level of 8%. [37] However, I also considered that there was additional medical reporting that was submitted related to the worker s low back. The record reflects that the worker saw Dr. Schacter, a neurosurgeon. At a May 2009 appointment, Dr. Schacter recorded the worker s ongoing complaints of low back pain. Dr. Schacter recorded the worker s two compensable low back injuries of 1992 and He also described her numerous pelvic surgeries. He observed definite spasms in the low back and her limited forward flexion. She had bilateral straight leg raising of 30 degrees limited by back pain; however, Dr. Schacter was able to extend her knees without significant back complaints when the worker was seated. He observed no lower limb atrophy and no demonstrable definitive motor or sensory deficit in the lower limbs. He reviewed the 2006 CT scan and ordered a new CT scan as the worker indicated that due to her noncompensable conditions she could not manage an MRI. He considered that the worker was not a candidate for surgical treatment but recommended weight control, exercise, massage therapy and acupuncture. He queried whether injections or an epidural steroid would be beneficial. [38] Subsequently, Dr. Schacter reviewed the October 23, 2009 CT scan of the worker s lumbar spine which showed a central disc protrusion at L5-S1; evidence of canal stenosis at L4- L5 and L3-L4 and greatest at L4-:5; and multilevel facet degenerative changes. In a letter to the Board dated November 4, 2009, Dr. Schacter wrote as follows: While as noted there are significant degenerative changes through the lower back, there is certainly nothing here that indicates more than just some ongoing discogenic problems that were noted earlier. There is nothing here that would respond to surgical intervention in this patient's ongoing symptoms. She continues to have significant back and lower extremity pain associated with the severe degenerative changes in the lower back.

7 Page: 6 Decision No. 147/15 [39] Thus, Dr. Schacter s opinion is that the worker has progressive degenerative disc disease. Dr. Schacter does not attribute the worker s 2009 onset of low back pain to the 1992 accident. [40] The record included several Tribunal Medical Discussion Papers, including Back Pain prepared by Dr. W. Robert Harris and Dr. J.F.R. Fleming, 1997 (Revised 2003). The Tribunal s medical discussion papers deal with medical topics that frequently arise in appeals. Independent experts who are recognized in their fields of specialization write them. The papers are not peerreviewed publications, but are rather intended to provide parties and representatives with a broad, general overview of medical topics. A discussion paper is included in the case materials for an appeal when it appears that the paper may provide some relevant background to an issue in dispute. Medical discussion papers are also available on the Tribunal s website and in its Library. A Vice-Chair is not bound by any information or opinion expressed in a discussion paper, but may consider and rely on the general medical information provided by the paper. Every Tribunal decision must be based upon the facts of the particular appeal. It is always open to the parties to rely upon a discussion paper, or to distinguish or challenge it with other evidence. [41] The Back Pain Paper provides the following information regarding degenerative disc disease: Aging Lumbar Spine Any discussion of back pain is often dominated by the term Degenerative Disc Disease. This is an inappropriate phrase because what is being described is usually not a disease but normal aging change. A better description would be age-related change. This normal process produces typical x-ray and CT or MR changes which are commonly misinterpreted by physicians as being evidence of something abnormal. In turn this may lead to unnecessary investigation and sometimes, surgery. With gradual aging, there is loss of water from the nucleus pulpous with resulting thinning of the disc space between the adjacent vertebrae and this can be seen on plain x- rays. The narrowing of the disc space causes the annulus fibrosis to bulge but if the bulging is excessive one or more nerve roots may be compressed with resultant symptoms. The process of bulging is not the result of trauma. [42] Applying the relevant Board policy to the facts of this case, I find that the medical evidence on file does not demonstrate that the worker had suffered significant deterioration in her condition since the 1995 NEL assessment. Notably, the medical findings reported by Dr. Wong in 2007 reflect that the worker may indeed have experienced an improvement in her range of motion. The imaging and reporting from 2009 are indicative of age-related degenerative changes. There is no substantial evidence before me that these changes were in any way accelerated by the compensable low back condition arising from the 1992 work injury. In other words, there is no significant medical evidence to establish that the 1992 back injury made a significant contribution to the age-related changes. [43] Thus, in my opinion, based on the medical reports in the file, the worker has not suffered a significant permanent deterioration of her low back condition since her last NEL assessment in 1995 which resulted in a rating of 8%. (b) The worker does not have entitlement to a redetermination of the 3% NEL award for the right wrist related to the disablement of September 13, 1993 [44] The appeal on this issue is denied for the reasons that follow.

8 Page: 7 Decision No. 147/15 [45] As stated above, OPM Document No , Redeterminations and Recalculations indicates that a worker may request a redetermination of an existing NEL award when the worker s condition has deteriorated significantly since the last NEL medical assessment and 12 months have passed since the assessment. The policy defines the term significant deterioration as follows: 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. [46] I have considered the original NEL assessment, and the subsequent medical documentation on file. I find that based on the totality of the evidence before me, specifically the worker s medical reporting since the 1996 NEL assessment, the worker has not established deterioration of the right wrist condition below the assessed NEL level of 3%. Thus, the worker is not entitled to a NEL redetermination. [47] The worker was assessed on January 31, 1996 for a NEL award. The worker reported pain in her right wrist which radiated to her right hand, and all of the fingers of her right hand. The worker reported radiating pain to her right shoulder, and poor grip strength in her right hand. For example, she reported that she could not hold a small glass or a small baby, and she could not hold a heavy pot. The worker reported an inability to use her right hand to garden. The NEL assessor recorded that the worker had normal movement of the index and little fingers with some limitations in the range of movement of the thumb, middle and ring fingers on the right. The NEL assessor recorded decreased sensation in the fingers. Flexion was 38 degrees; extension was 24 degrees; radial deviation was 26 degrees and ulnar deviation was 34 degrees. [48] Dr. Wong, the worker s family physician, assessed her at a January 12, 2007 appointment. At that time, Dr. Wong reported that the worker complained of morning stiffness and swelling of the right hand. The worker reported limited function and an inability to squeeze her hand and being unable to use her hand in a kneading motion. Dr. Wong s examination revealed the worker had a full range of motion in the right wrist and hand, with a power grip of 4/5. [49] The Board s Medical Consultant reviewed the worker s file. In a Memorandum dated February 21, 2007, Dr. M. Chain concluded that there is no indication for a NEL redetermination of the worker s right wrist, post CTS. [50] The record reflects that the worker saw a specialist in 2009 for her right wrist. On December 22, Dr. R. Richards, a surgeon, reported that the worker has right wrist pain and stiffness with symptoms going back many years in relation to making dough. Dr. Richards examined the worker. Volar flexion was 50 degrees; dorsiflexion was 60 degrees; radial deviation was 20 degrees; ulnar deviation was 30 degrees; and pronation and supination was 80 degrees each. The worker s grip strength is 7 kgs on the right and 10 kgs on the left. Dr. Richards advised that the worker avoid working with heavy lifting or forceful use of the hands and wrist against resistance. She reviewed x-rays and concluded that the worker s symptoms are due to developing osteoarthritis. She asked to see further EMG reports from 2010 but doubted surgical intervention would be necessary. There is no further reporting from Dr. Richards. [51] The worker had an EMG with Dr. Chen in March There were no reported findings related to the worker s right wrist. Dr. Chen s March 2010 report records no muscle atrophy in the upper limbs, no hand clawing, and normal motor tone. The worker reported mild sensory changes at the second finger of the right hand, but otherwise sensory examination of the upper

9 Page: 8 Decision No. 147/15 limbs was unremarkable. The EMG testing revealed some changes suggestive of right C6 radiculopathy but Dr. Chen noted that these findings needed to be correlated with clinical and imaging assessments. [52] My review of the medical record leads me to concur with the opinion of the Board s Medical Consultant. I note that Dr. Wong s 2007 assessment reflected full range of motion of the worker s wrist. Dr. Wong recorded subjective complaints, but these are not in substance different than those recorded by the NEL assessor in While some of Dr. Richards findings may suggest some changes since the 1996 NEL assessment, Dr. Richards clearly ascribes the worker s developing condition to the worker s non-compensable osteoarthritis, not the worker s compensable CTS. Moreover, Dr. Chen did not describe any findings suggestive of significant deterioration below the worker s assessed NEL level of 3% or further right wrist issues following his testing and assessment. [53] Applying the relevant Board policy to the facts of this case, I find that the medical evidence on file does not establish on a balance of probabilities that the worker has suffered significant deterioration in her right wrist condition since her last NEL assessment in 1996 which rated her right wrist condition at 3%. (c) The worker does not have entitlement to recognition of permanent impairment and entitlement to a NEL award for the cervical strain, right shoulder and low back related to the accident of April 14, 1997 [54] The appeal on this issue is denied for the reasons that follow. [55] I find that the worker s cervical spine, low back, and right shoulder injuries as a result of the work-related accident of April 14, 1997 resolved. I arrive at this conclusion in consideration of the available medical reporting, the submissions made, and the applicable law and policy. (i) Applicable law and policy [56] Section 46 of the Workplace Safety and Insurance Act, 1997 and section 42 of the pre Workers Compensation Act provides that if a worker s injury results in permanent impairment, the worker is entitled to compensation for non-economic loss. [57] Impairment means a physical or functional abnormality or loss (including disfigurement) which results from an injury and any psychological damage arising from the abnormality or loss. [58] Permanent impairment means impairment that continues to exist after a worker reaches maximum medical recovery (formerly referred to as maximum medical rehabilitation under the pre-1997 Act). (ii) The 1997 REC assessment [59] Following the April 1997 accident, the worker was referred to a REC evaluation. [60] The September 24, 1997 REC assessment recorded that the worker reported low back pain radiating into the right buttock with no radiculopathy. On examination, the worker demonstrated pain behaviors. Extension was one-third normal with pain complaints. Right side flexion was accompanied by moaning and was approximately one half range. The diagnosis was mechanical back pain secondary to pre-existing degenerative disc disease.

10 Page: 9 Decision No. 147/15 [61] Regarding the worker s right shoulder, she demonstrated full range of motion but other testing was invalidated for the most part due to guarding and pain behaviours. The worker was diagnosed with a strain to her right shoulder. The REC report anticipated that this condition would resolve itself. [62] Regarding the worker s neck, in that report, the worker reported that she had right-sided neck pain, with radiated to her right shoulder and occasionally her elbow. The worker s neck flexion was reported to be full with two-thirds normal extension. The worker s neck rotation was approximately 40 degrees to the left, and 50 degrees to the right. The worker reported pain during the left rotation. The worker s right side flexion was full and left side flexion was painful at 20 degrees. The worker did not demonstrate any evidence of motor insufficiency or muscle wasting. The worker s cervical condition was diagnosed as a cervical strain which would resolve. [63] In summary, the REC assessor opined as follows: [The worker] complains of diffuse musculoskeletal pains for which there are no objective indicators of any significant impairment. I do not doubt that she experienced spinal pain secondary to some mechanic back pain of degenerative etiology with symptoms aggravated by the slip and fall. The same is probably true of her cervical spine. [64] The REC assessor concluded that the worker would likely continue to complain of functional limitations secondary to subjective pain, however, there was no objective determinants for same. (iii) The worker s 1997 low back injury [65] As described above, the worker is in receipt of an 8% NEL award for the low back. The worker injured her low back again in a fall at work on April 14, The REC assessor reported no objective findings related to the worker s low back, but for an aggravation of degenerative disc disease. The worker s condition was expected to resolve. There is no medical reporting of significance between 1997 and While Dr. Wong referenced that the worker s attention was focused on non-compensable conditions, I cannot make a finding regarding ongoing complaints in the absence of any medical evidence which supports that the 1997 work injury made a significant contribution to her ongoing condition. [66] A January 2006 CT scan revealed progression of the worker s degenerative disc disease. Dr. Schacter confirmed the progression of age-related changes when he assessed the worker in 2009 and reviewed the findings of an updated CT scan. Dr. Schacter does not link the worker s 2009 complaints of low back pain to her 1997 accident despite the worker s description of the accident. [67] Dr. Wong opined that the worker had chronic mechanical back pain from both her fall at work and from the degenerative changes of her spine. However, in her reporting, Dr. Wong only references one compensable injury to the worker s low back, that of the 1992 fall. She does not reference a low back injury related to the 1997 accident. Accordingly, I take Dr. Wong s reporting to reflect that the worker s 1992 low back injury is permanent. The Board has made this determination and has already awarded the worker a NEL award as a result. Moreover, Dr. Wong s January 2007 reporting, as described above, actually reflects that the worker s low back condition has improved since she was assessed for her NEL. Dr. Wong described a 2005 onset of severe low back pain but does not provide any information regarding its cause or duration. Thus, there is no substantial evidence to establish a low back impairment stemming

11 Page: 10 Decision No. 147/15 from the 1997 accident that is greater than that already recognized with an 8% NEL award for the 1992 low back injury. [68] Therefore, I find that on a balance of probabilities, the medical evidence does not establish a permanent impairment in the worker s low back injury arising from the 1997 accident. (iv) The worker s 1997 right shoulder injury [69] Regarding the worker s right shoulder, the REC assessment indicated that the worker had full range of motion of the right shoulder and did not provide a diagnosis for the right shoulder. There is no medical reporting of significance relating to any ongoing condition of the right shoulder between 1997 and [70] Dr. Wong reported in 2007 that the worker had normal range of movement without pain. Dr. Wong did not comment on the permanence of a right shoulder condition or any ongoing relationship between the worker s right shoulder and the 1997 compensable injury. [71] Therefore, the medical evidence before me, namely the REC report and Dr. Wong s 2007 report, is that the worker did not suffer from an ongoing right shoulder condition from 1997 onwards. [72] The worker did seek further medical attention for upper limb discomfort in The worker saw a specialist, Dr. Y. Chen, on March 3, Dr. Chen recorded the worker s history of a few WSIB claims, treatment with various specialists in the 1990s, and right CTS surgery in The worker provided a November 2009 insurance decision. She reported recurrent upper limb discomfort for years, more noticeable on the right, which she described as sharp and numb. On examination, Dr. Chen recorded that the worker had no muscle atrophy in the upper limbs, no hand clawing, and normal motor tone. The worker s reflexes were intact in both arms. The worker had normal muscle strength within normal functional limits in all major muscle groups with mild giveaway weakness due to pain inhibition. The worker reported mild sensory changes at the second finger of the right hand, but otherwise sensory examination of the upper limbs was unremarkable. There was no obvious acute bony deformity or significant erythema on inspection of the upper limbs. Shoulder impingement and drop arm tests were bilaterally negative. Palpation revealed numerous tender points including cervical paraspinal, periscapular, deltoid and arm muscles. Dr. Chen performed EMG testing which revealed some changes suggestive of right C6 radiculopathy but noted that these findings needed to be correlated with clinical and imaging assessments. Dr. Chen diagnosed a chronic pain disorder, associated with insurance appeal. He stated that the chronic pain started years ago. He arranged an MRI of the cervical spine to deal with her chief complaint. He recommended follow-up after the MRI and strengthening exercises. There is no further reporting from Dr. Chen. [73] I find that Dr. Chen s reporting is not persuasive of an ongoing right shoulder condition that has persisted since 1997, especially in light of the fact that the worker s 2007 examination revealed full range of motion and offered no diagnosis or treatment for a right shoulder condition. Dr. Chen did not specifically tie the worker s upper extremity complaints to the 1997 accident nor did he provide a specific right shoulder diagnosis. [74] Therefore, I find that on a balance of probabilities, the medical evidence does not establish a permanent impairment of the right shoulder arising from the 1997 work accident.

12 Page: 11 Decision No. 147/15 (v) The worker s 1997 neck injury [75] At the 1997 REC assessment, the worker was considered to have a neck strain that would resolve. The assessor commented on the absence of objective findings for the worker s pain complaints. Ten years later, Dr. Wong reported in 2007 that the worker had reduced range of movement of her neck in all directions with pain. Dr. Wong diagnosed chronic neck strain. However, given that Dr. Wong did not relate the worker s chronic neck strain to the 1997 compensable injury, I am not prepared to conclude that the worker s diagnosed neck strain 10 years after the accident was as a result of an unresolved neck injury of April 14, [76] Moreover, as is noted elsewhere in this decision, there is no medical evidence of significance in the record between 1997 and 2007 related to ongoing neck complaints. While Dr. Wong indicated that other non-compensable organic issues resulted in the worker not seeking medical attention for her compensable conditions, I am unable on the basis of the medical evidence before me to infer that the worker s neck injury of 1997 continued passed the anticipated resolution suggested by the REC assessment in September The lack of continuity for ten years, as well as the lack of an opinion linking the chronic neck strain diagnosed in 2007 to the worker s 1997 neck injury, leads me to conclude that the worker has not established that she experienced a permanent neck injury following the 1997 compensable injury. [77] I observed that at a March 2010 appointment, Dr. Chen performed EMG testing which revealed some changes suggestive of right C6 radiculopathy but noted that these findings needed to be correlated with clinical and imaging assessments. Dr. Chen diagnosed a chronic pain disorder, associated with insurance appeal. Dr. Chen did not provide a diagnosis for the worker s neck condition, nor did he specifically relate any neck condition to the 1997 accident. There is no further reporting from Dr. Chen. [78] Therefore, I find that on a balance of probabilities, the medical evidence does not establish a permanent impairment of the neck as a result of the 1997 work injury. (vi) Conclusion [79] Accordingly, while the worker injured her right shoulder, low back, and neck on April 14, 1997 in a compensable accident, the evidence before me demonstrates that these conditions resolved. Six months after the accident, the worker was expected to make a full recovery. Medical reporting from ten years later does not support that the worker s complaints of low back pain, upper extremity pain or neck pain are related to the 1997 accident. There is no objective medical reporting that the worker sustained an ongoing low back, neck or right shoulder impairment following the 1997 accident. There is a ten year gap in the medical reporting, and in the absence of any medical reporting relating to an ongoing lower back, neck or right shoulder condition that has not resolved from the date of the accident, I find that the worker does not have entitlement for a permanent impairment for these areas and is not entitled to a NEL assessment.

13 Page: 12 Decision No. 147/15 DISPOSITION [80] The appeal is denied. DATED: January 27, 2015 SIGNED: B. Goldberg