WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 346/14

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 346/14 BEFORE: J.E. Smith: Vice-Chair HEARING: February 25, 2014 at Toronto Written DATE OF DECISION: March 13, 2014 NEUTRAL CITATION: 2014 ONWSIAT 533 DECISION(S) UNDER APPEAL: WSIB Appeals Resolution Officer (ARO), M. St-Hilaire, dated March 5, 2012 APPEARANCES: For the worker: For the employer: Interpreter: Self-represented Did not participate 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. 346/14 REASONS (i) Introduction to the appeal proceedings [1] The worker appeals the decision of Appeals Resolution Officer, M. St-Hilaire, dated March 5, That decision concluded that the worker was not entitled to a redetermination of his non-economic loss ( NEL ) award of 14%. (ii) Issues [2] The issue to be determined in this case is whether the worker is entitled to a redetermination of his non-economic loss award due to a deterioration of his condition. (iii) Background [3] The following are the basic facts. [4] The now 44 year old worker was employed as a driver for a building supplies retailer. On January 15, 2007, while in the course of his employment, he slipped on ice and fell sustaining a severe right chest wall strain. The Board allowed entitlement for the worker s chest wall injury and he received loss of earnings benefits as well as health care coverage for physiotherapy. [5] By June 26, 2007 it was evident that the worker had sustained neck strain and right forearm and wrist tendonitis in the accident of January 15, 1007, in conjunction with the chest wall strain initially diagnosed. Further, Board medical consultant, Dr. R. Hickman, reported in Memo #25, dated July 3, 2007, that the worker had sustained a T2-3 disc prolapse with radicular involvement and the worker was referred for a neurosurgical consultation. [6] By July 9, 2007, subject to the feasibility of surgery as an option which was later rejected, the Board concluded that worker had reached maximum medical recovery with respect to his thoracic spine injury and he was referred for a NEL assessment. The worker was awarded a NEL based on a 14% impairment rating with respect to his back, on July 30, [7] On December 1, 2010 (Board Memo #48), the worker contacted the Board to report that his condition had deteriorated. The worker requested a redetermination of his NEL rating and submitted comparative findings to the Board reported by his treating physician. These were reviewed by Board Medical Consultant, who concluded that the worker had not deteriorated below the NEL level. The worker s request for redetermination was, therefore, subsequently denied and that denial was upheld by ARO St.-Hilaire. It is the denial by ARO St-Hilaire which is the subject of the appeal now before me. (iv) Law and policy [8] Section 46 of the Workplace Safety and Insurance Act, 1997 and section 42 of the pre 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. [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.

3 Page: 2 Decision No. 346/14 [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). [12] Subsections 47(9) and (10) of the Workplace Safety and Insurance Act, 1997 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 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 Document No , Redeterminations addresses significant deterioration, in part, as follows: Significant deterioration Definition A significant deterioration is a permanent worsening of the medical condition occurring after the most recent NEL medical assessment. It must be demonstrated by a substantial change in medical findings. Evaluation Workers applying for a redetermination must be examined by their treating physician. For the purpose of the evaluation, these workers may give their physician a copy of the last NEL medical assessment report and any supporting medical reports, to help the physician identify how the worker s condition has changed. The physician then reports to the WSIB on the worker s clinical history, any measurable changes in the worker s condition, and any new medical findings. This report may include changes in the worker s range of motion complications in the worker s medical condition evidence of neurological dysfunction an increase in the worker s medical treatment, and information about lost time from work. Decision-makers review the physician s report and all medical information added to the file since the last NEL medical assessment. They compare these findings to the condition described in the last NEL medical assessment report to determine if there is evidence of a significant deterioration. (v) Relevant medical evidence [13] The worker was assessed for the purposes of a NEL rating on June 9, 2008 by Board roster physician, Dr. K.C. Lim. The area of permanent impairment assessed was noted as the worker s lower back, specifically with a diagnosis of T2-3 disc herniation with thoracic radicular irritation without motor deficit. Dr. Lim noted that the worker reported pain and numbness in his chest, neck and right arm and a constant ache and pain in his mid and lower back.

4 Page: 3 Decision No. 346/14 [14] On examination by Dr. Lim, and as recorded by him on the Dorso-Lumbar Spine Recording Form, flexion was 10 from the neutral position: extension was 10 from neutral position: right lateral flexion was 10 and left lateral flexion was 10. No nerve root impairments, motor deficits, or sensory deficits were reported. [15] Under Table 53 of the AMA Guide, the Impairment Due to Specific Disorders of the Spine recording form, the assessor identified intervertebral disc or other soft tissue lesion, Part II, Category C meaning: Unoperated, with medically documented injury, and a minimum of six months of medically documented pain and rigidity with or without muscle spasm, associated with moderate to severe degenerative changes on structural tests; includes unoperated herniated nucleus pulposus with or without radiculopathy. [16] Based on the assessment completed by Dr. Lim, on July 26, 2008 Board NEL Clinical Specialist, D. Robb, rated the level of impairment of the worker s thoracic spine by transferring the findings of Dr. Lim into percentages under the associated AMA Guides, and then by converting those percentages into a whole person rating for the worker s spine/pelvis, of 14%. The worker was informed of this decision regarding his NEL rating and award by Board correspondence dated July 30, [17] On September 2, 2008 the worker wrote to the Board appealing the NEL decision on the basis that, it was alleged, the Board did not give sufficient weight to the evidence and that it did not follow Board policy and/or comply with the Act. On January 5, 2009, the worker s then representative, Ms. Katherine Chartrand, wrote to the Board objecting to all outstanding decisions made before January 5, 2009, which have adversely affected his rights to benefits or services under the Act, in each claim. [18] On March 29, 2010 Ms. Chartrand made further written submissions to the Board. In that letter Ms. Chartrand submitted, amongst other things, that the worker s condition had deteriorated significantly and that she would be requesting an assessment of his impairment levels from his treating physician which would show significant levels of deterioration. [19] In a note to the Board dated April 28, 2010, the worker s treating physician, Dr. George V. Freundlich, reported that the worker had recently come under his care and that he complained bitterly of T-Spine pain. He further reported that the worker s 2008 NEL assessment only dealt with the Li L-S spine and requested a further NEL assessment. [20] In a letter dated July 21, 2010, the Board wrote to the worker in response to his request for a redetermination of his 14% NEL. Specifically, the worker was directed to provide his family doctor with his copy of the July 26, 2008 NEL assessment so that the family doctor could compare his, present condition to the physical findings of the NEL assessment report and provide a report on the following: 1. Specific areas of deterioration 2. Changes in range of motion 3. Complications in medical condition 4. Evidence of neurological dysfuntion, if appropriate 5. Any further lost time from work

5 Page: 4 Decision No. 346/14 [21] In a note to the Board dated August , Dr. Freundlich reported that he had reassessed the worker in his office that day and opined that he should definitely undergo a T- spine NEL assessment. [22] On September 16, 2010 the Board wrote to the worker requesting that his family doctor fill out a progress report and provide physical findings with respect to any areas of deterioration, changes in range of motion, complications in his medical condition and evidence of neurological dysfunction if appropriate. [23] On October 14, 2010, Dr. Freundlich completed the Form 26, Health Professional s Progress Report, in which he reported that the worker experienced on-going mid-back extremely severe pain and reduced range of motion and referred the worker to Orthopedist, Dr. A.K. Mitra for further assessment. [24] Dr. Mitra examined the worker on November 1, 2010 and reported in correspondence to the Board on November 16, 2010 that, Examination of the dorsal spine shows that he has pain in the region of T2, T3 and T4 which is quite tender. Review of the x-ray was not very satisfactory because the quality of the x-ray is poor, but I did not see any fractures as such. There is definite tenderness but he has no shortness of breath and no obvious motor weakness though he complains of numbness of the ulnar 2 fingers on both sides. Forward flexion at the lumbar spine is possible to 30 degrees, lateral bending to 15 degrees on the left side, and extension 10 degrees backwards. The dorsal spine rotation was only limited to 10% on either side with no neurological abnormality as such. [25] On December 1, 2010, Dr. Mitra s findings were referred by the case manager to Board Medical Consultant, Dr. Herrick, for review and opinion. In Board memo 48A dated January 10, 2011, Dr. Herrick summarized the findings of the June 9, 2008 NEL Assessment, the September 16, 2008 CXR and CT T-spine, the October 14, 2010 Form 26 findings, and the November 1, 2010 reporting from Dr. Mitra, from which he concluded that the worker had not deteriorated below NEL level. [26] Following its review of Dr. Herrick s report the Board wrote to the worker in a letter dated January 27, 2011 denying his entitlement to a NEL redetermination. Ms. Chartrand objected to that decision in correspondence dated February 15, 2011 in which she submitted that: Dr. Mitra was not equipped to compare [the worker] s present condition to the physical findings on the NEL assessment report and he was unable to provide a proper report in the 5 areas you requested in your letter of July 21, Additionally, it is [the worker] s thoracic spine that is injured not his lower back as you requested to be checked. Dr. Mitra also told [the worker] that the Board is asking him to check the wrong area of the back. Dr. Freundlich also sent a letter to the Board stating that this is the wrong area of the back. All Dr. Mitra could do was ask [the worker] questions and to move. He then took the numbers on the last NEL and put in his own numbers. When [the worker] went for his original NEL assessment he saw Dr. Lim. Dr. Lim used a protractor to measure [the worker] s range of motion. This was not done on the redetermination because Dr. Mitra is not equipped to perform this type of assessment. In fact in the Timmins area we do not have any doctor that uses the proper measurements that the Board requires to determine if the physical findings have changed. [27] On February 17, 2011, the Board wrote to Ms. Chartrand that it was not prepared to change its decision regarding the worker s NEL rating. That decision was upheld by the ARO in the decision dated March 5, 2012, and which is now before me on appeal.

6 Page: 5 Decision No. 346/14 (vi) Submissions [28] The worker filed a Notice of Appeal dated January 10, 2012 stating that he believed the ARO s decision was incorrect as the evidence, he submitted, was not properly considered. The worker stated that, The information the Appeals Resolution Officer decided on is incorrect. The Appeals Resolution Officer is stating I lied about the parts of the body examined by Dr. Lim when in fact there is documentation to prove that the Board made their own decision without getting a re-assessment. [29] In the Hearing Ready letter dated October 29, 2013, the worker was invited to make further submissions in support of his appeal but declined to do so. (vii) Analysis and conclusions [30] I have before me in deciding this appeal the Hearing Ready Letter dated October 29, 2013, the Case Record and Addenda Nos. 1 and 2. For the following reasons, I find that the appeal for a redetermination of the worker s 14% NEL for permanent impairment to his thoracic spine is denied. [31] I find that the preponderance of medical evidence before me does not support the conclusion that the worker suffered a significant deterioration in his medical condition within the meaning of Board policy. I accept the most recent findings reported by Dr. Mitra in respect of the condition of the worker s thoracic spine as of November 16, 2010, and I am not persuaded by Ms. Chartrand s argument that those findings were in any way unreliable. There is no evidence before me supporting such a conclusion. I therefore find, based on my review of Dr. Mitra s report when compared with the worker s NEL assessment, that there is no evidence of negative change in the worker s range of motion. Dr. Mitra appears to find an improvement in flexion to 30 from 10 since the time of the worker s NEL assessment. I further find that there is no evidence of new complications in the worker s medical condition, or new evidence of neurological dysfunction, or an increase in the worker s required medical treatment. Finally, the Board s Medical Consultant reviewed the most recent medical evidence and similarly found a lack of objective evidence of a significant deterioration in the worker s medical condition. [32] The worker has submitted that the Board did not assess the correct body part. I find there is no evidence establishing this to be correct. As noted above, the Board allowed entitlement for a permanent impairment of the worker s thoracic spine. Although some confusion may have arisen by various references in the medical documentation to the worker s lower back, the NEL assessment indicates that the range of motion in respect of the thoracic spine was measured and recorded and the worker s report of symptoms with respect to that area were reported to both Dr. Lim and to Dr. Mitra. Further, the diagnostic imaging reviewed by the assessor, the medical consultant, and the worker s treating physicians consistently and appropriately reported on findings on the T-spine area, the area of entitlement allowed by the Board. [33] Having weighed all the evidence, and applied relevant legislation and policy, I am not persuaded on a balance of probabilities that a significant deterioration of the worker s condition has been demonstrated by a substantial change in medical findings after his NEL medical assessment in I am not satisfied that there is a permanent worsening of the worker s thoracic spine condition. While I appreciate that the worker has suffered considerably as a result

7 Page: 6 Decision No. 346/14 of his work-related injury, I agree with and accept Dr. Herrick s conclusion that the medical findings do not show a significant NEL deterioration at this time. [34] For the above reasons, I conclude that the worker is not entitled to a redetermination of his NEL award of 14% at this time.

8 Page: 7 Decision No. 346/14 DISPOSITION [35] The appeal is denied. DATED: March 13, 2014 SIGNED: J.E. Smith