WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 2170/16

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 2170/16 BEFORE: L. Lampert: Vice-Chair HEARING: August 31, 2016 at Toronto Written DATE OF DECISION: September 2, 2016 NEUTRAL CITATION: 2016 ONWSIAT 2346 DECISION(S) UNDER APPEAL: WSIB Appeals Resolution Officer (ARO) decision dated October 13, 2015 APPEARANCES: For the worker: For the employer: Interpreter: F. Goncalves, 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. 2170/16 REASONS (i) Introduction [1] The worker appeals the decision of Appeals Resolution Officer Hearings Officer dated October 13, The ARO rendered a decision based upon the written record without an oral hearing. That decision concluded that the worker was not entitled to a redetermination of his non-economic loss benefits ( NEL ) in relation to his compensable neck condition. The ARO allowed entitlement for psycho traumatic disability. The worker therefore in this appeal is only pursuing the issue of entitlement to a NEL redetermination. (ii) Issues [2] The sole issue to be determined in this case is whether the worker is entitled to a redetermination of his NEL award due to a deterioration of his neck condition. (iii) Background [3] The now 61-year old worker was a construction labourer in October, 2000 when he fell from scaffolding, fracturing his neck at the C-6 level. [4] On November 1, 2000, the worker underwent surgery in connection with his injury. A post-operative report by Dr. Rampersaud, his orthopedic surgeon, described the surgery as involving: i) segmental instrumented fusion with lateral mass plates at C-6, C-7; ii) C-6 laminectomy; and iii) local autogenous bone graft harvesting. [5] The worker underwent a NEL assessment in 2002, pursuant to which he was granted a 19% NEL award in relation to his neck injury and subsequent surgery described above. This 2002 neck-related NEL award was based on several findings during the assessment, including but not limited to: range of motion ( ROM ) measurements that were below normal; the presence of tremors at the end of the worker s ROM which were not present in the resting position; pain described in the NEL assessment notes as burning, constant, occurring all the time, severe and radiating to the left scapula. At the time, the NEL assessment report indicated that the pain was aggravated when the worker sat with his neck in the upright position and that it was eased when he was lying down. Further, the NEL assessor, Dr. De Silva, indicated that the worker could not turn his head, that he experienced pain when he attempted neck extension, and that he felt tired when sitting for a prolonged time. [6] The worker was granted a NEL of 19% on July 9, 2002 and has not returned to work since the work accident. [7] In a decision dated December 4, 2014, the Board denied the worker s request for a NEL redetermination and this decision was upheld by the ARO s decision dated October 13, 2015, which is before me on appeal. (iv) Law and policy [8] Section 46 of the Workplace Safety and Insurance Act, 1997 (the WSIA) and section 42 of the pre-1997 Workers Compensation Act, as amended, provide that if a worker s injury results in permanent impairment, the worker is entitled to compensation for non-economic loss.

3 Page: 2 Decision No. 2170/16 [9] 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. [10] Permanent impairment means impairment that continues to exist after the worker reaches maximum medical recovery. [11] 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, 3rd edition (revised) (the AMA Guides). The Board has adopted specific rating schedules for impairment due to psychological disability, fibromyalgia, chronic pain and other conditions. [12] Subsections 47(9) and (10) of the WSIA provide that if a worker with a permanent impairment greater than zero suffers a significant deterioration in his or her condition, and 12 months have passed since the Board s most recent determination concerning the degree of impairment, the worker may request that the Board redetermine the degree of the worker s permanent impairment. Board Operational Policy Manual (OPM) Document No , Redeterminations 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 measureable change in objective clinical findings. [13] The Board also supplied Policy Packages #9 Psychotraumatic Disability; #264 NEL Redetermination and #300 - Decision Making/Benefit of Doubt/Merits and Justice which I Have considered as applicable in deciding this appeal. (v) Analysis [14] The appeal is denied for the reasons set out below. [15] Written submissions on behalf of the worker were made by his representative and were dated May 5, In her submissions, the representative referenced the ROM findings measured during the 2002 NEL assessment. She also referred to a September 14, 2005 report from Dr. Sehmi, an orthopedic surgeon, who assessed the worker. Dr. Sehmi wrote that he remains tender in the cervical spine, that he had effusion of C6 C7 done and that movements are limited to 50% in the neck. The submissions also referred to a portion of Dr. Sehmi s letter which mentions that shoulder abductions were painful up to 40 degrees and that the worker s grips were weak on both sides. [16] The worker s representative then cited the American Medical Association s Guides to the Evaluation of Permanent Impairment, Third Edition, Revised. She submitted that the AMA Guides indicate that normal ROM measurements for the neck, in degrees, are: flexion (60), right and left lateral flexion (45), right and left rotation (80) and extension (75). In her submissions, the worker s representative compared these to the ROM measurements taken at the time of the 2002 NEL assessment and wrote that it is certain that there has been a worsening of [the worker s] neck in terms of ROM alone, noting that at last half of the ROM resting results were worse than they had been in April The worker s representative erred in that in her submissions, she compared the ROM measurements at the time of the last NEL assessment (in

4 Page: 3 Decision No. 2170/ ) to what she believes are the normal expected ROM based on the her reading of the AMA Guides. However, in fact, in Tables 55, 56 and 57 of the AMA Guides, the average range of motion for flexion-extension, lateral flexion and rotation in degrees are listed as 135, 90 and 160, respectively. More importantly, however, this appeal turns on whether the worker has experienced a significant deterioration in his neck condition since his last NEL assessment, which was in The worker s submissions on ROM do not address this. Instead, they compare the 2002 ROM measurements with average or expected ROM measurements, without addressing any changes since the 2002 NEL assessment. [17] The submissions also addressed the findings of Dr. De Silva, the physician who conducted the NEL assessment in In her April 18, 2002 NEL-related medical assessment, Dr. De Silva wrote that the worker could not turn his head, had pain, particularly when extending his neck, and felt tired when sitting for longer periods of time. The written submissions also referenced the constant, severe, burning pain described in the 2002 NEL assessment documents. However, in her submissions, the worker s representative did not address these in terms of any changes since the 2002 NEL assessment. [18] The written submissions also referenced two apparent contradictions in imaging tests conducted in in April, 2009 and March, The former reported milt multi-level degenerative disc disease ( DDD ), most notable at the C5-C6 level in the worker s neck and spine. The latter, however, reported no evidence of degenerative changes above or below the surgical site. The worker therefore argued that these degenerative changes constituted a significant deterioration in his condition. [19] Finally, the worker s representative referenced retrolisthesis and anterolisthesis of the spine and provided articles from Wikipedia, and from a source she referred to in her submissions as the Laser Spine Institute in St. Louis. These, she submitted, serve as proof that these conditions are conditions that can result from trauma and she submits that the worker suffers from these conditions as a result of his work accident. In her submissions, she does not reference when she believes these occurred and whether or how they constitute a significant deterioration in the worker s condition since has last NEL assessment. There is no medical evidence on file which suggests that the worker is suffering from retrolisthesis and/or anterolisthesis and that this results from the work injury, let alone whether it has caused a worsening or the worker s condition since In addition, I note that the ARO s decision under appeal did not reference retrolisthesis and/or anterolisthesis. I therefore have no jurisdiction relating to retrolisthesis and/or anterolisthesis raised by the worker s representative in this appeal. I note, parenthetically, that this Tribunal has generally been reluctant to give weight to general medical literature, including internet based materials, as these materials are generally not peer reviewed (see, e.g. Decision No. 783/13, Decision No. 1268/09 and Decision No. 2106/03). [20] In short, the worker s representative submitted that there were degenerative changes, including retrolisthesis and anterolisthesis, as well as DDD, combined with reduction in ROM testing and on this basis, she argues that the worker is entitled to a NEL redetermination. [21] There are no ROM measurements on file following the worker s 2002 NEL assessment. On October 16, 2003, Dr. Sehmi, an orthopedic surgeon, provided measurements relating to forward and lateral flexion and extension, but these related to the worker s lumbar spine which is not before me in this appeal. On November 8, 2002, following the worker s surgery, another

5 Page: 4 Decision No. 2170/16 orthopedic surgeon, Dr. Conn, reported that the worker has done well and that while assessing the worker on that date, virtually full range of movement of his neck [was] eventually obtained. He noted cog wheeling at the end of the worker s ROM on that date, particularly with rotation and lateral flexion. He also reported good bilateral grip strength. In September, 2005, Dr. Sehmi reported that [a]ll the movements are limited to 50% in the neck. [22] There is therefore no objective evidence such as a measurable change in ROM to support a deterioration in the worker s neck condition since his last NEL assessment. In fact, the medical evidence before me suggests that the worker s condition likely improved. [23] There is a lot of medical evidence which supports continuing pain in the worker s neck. This includes various reports over many years from Dr. Kohlt, the worker s family physician; Dr. Rampersaud, the orthopedic surgeon who operated on the worker and saw him on several occasions after his surgery to follow-up; and Drs. Sehmi and Conn, other orthopedic surgeons who assessed the worker. On September 14, 2005, Dr. Sehmi reported that the pain is worse on some days than on others. On May 30, 2012, Dr. Rampersaud reported that the worker had chronic neck pain which was persistent and related to soft tissue issues arising from his injury and subsequent surgery. However at no point did any medical professional opine that the pain or the worker s condition was worse than it had been at the time of his 2002 NEL assessment. In addition, pain alone does not constitute a physical or functional impairment that is compensable unless it causes measurable physical restrictions (see, e.g. Decision No. 1728/00R and Decision No. 980/15). [24] It appears that there may have been some deterioration in the worker s grips. In November, 2002, Dr. Conn reported good bilateral grip strength. However, Dr. Sehmi in 2003 and again in 2005 reported weak bilateral grips. However, the medical evidence before me does not establish that there is a causal connection between the reduced grip strength and the worker s compensable neck condition, let alone whether this is an indication of a significant deterioration of the worker s compensable neck condition. [25] On December 1, 2014, Dr. Somerville, a Board Medical Consultant, reported on his review of the worker s file. His report referenced the medical evidence on file, including from the worker s family physician, who had opined that the worker developed degenerative changes in his cervical spine after the work accident. However, Dr. Somerville noted that there were no details whatsoever relating to the worker s level of pain, any changes in his medication, ROM findings, or any deterioration in his condition or worsening of his functionality. On this basis, Dr. Somerville opined that there was insufficient evidence of a significant deterioration in the worker s neck condition. [26] Dr. Somerville also addressed the apparent inconsistencies in the April 24, 2009 and March 8, 2011 imaging studies. As mentioned above, the former showed mild degenerative changes whereas the latter reported no evidence of degenerative changes. In his view, the changes observed and reported in 2009 were likely so mild as to be undetected/overlooked in He concluded that they were likely of no clinical significance because of the worker s age and the prevalence of multi-level DDD. [27] While I accept the worker continues to suffer from neck pain resulting from his work accident and subsequent surgery and that his ROM measurements are below average and not normal, the evidence before me does not support that there has been a significant deterioration

6 Page: 5 Decision No. 2170/16 in the compensable condition of his neck since the last NEL assessment. I find therefore on a balance of probabilities that he is not entitled to a redetermination of her NEL award. [28] Should the worker suffer a significant deterioration in future, he may request a redetermination at the Board at that time, subject to the usual rights of appeal.

7 Page: 6 Decision No. 2170/16 DISPOSITION [29] The appeal is denied. DATED: September 2, 2016 SIGNED: L. Lampert