WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 111/15

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 111/15 BEFORE: V. Marafioti: Vice-Chair HEARING: January 14, 2015 at Toronto Written Post-hearing activity completed on April 30, 2015 DATE OF DECISION: June 5, 2015 NEUTRAL CITATION: 2015 ONWSIAT 1236 DECISION UNDER APPEAL: WSIB Appeals Resolution Officer (ARO) decision dated June 28, 2013 APPEARANCES: For the worker: For the employer: Interpreter: Ms. C. Oliverio, Paralegal Did not participate Not applicable 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. 111/15 REASONS (i) Introduction [1] This appeal was selected for a written hearing pursuant to the Tribunal s Practice Direction on Written Appeals. The worker appeals the decision of the Appeals Resolution Officer (ARO) dated June 28, Written submissions were provided on behalf of the worker by Mr. Stefano Oliverio, paralegal dated November 27, The Vice-Chair requested further information and explanation regarding the Non-Economic Loss award from the Workplace Safety and Insurance Board (WSIB or the Board) on January 21, The Board responded on February 5, 2015 regarding the information requested by the Vice-Chair about the Non- Economic Loss (NEL) award in this claim. The request from the Vice-Chair was referred to the Permanent Impairment Program and Policy and Consultation Services Division of the WSIB and a response was made dated March 12, (ii) The issues [2] The issue in this appeal is the quantum of the NEL award for the low back. (iii) Background [3] The background information in the claim is contained in the ARO decision of June 28, 2013 and on record and the Vice-Chair summarizes the background facts as follows. [4] The worker reported that left-sided low back pain occurred on July 1, 2009 while helping to reposition a patient in bed. The worker was employed as a registered nurse. [5] Entitlement in the claim was accepted by the WSIB for mechanical low back pain. The worker also reported sciatica symptoms bilaterally. A CT scan revealed L5 spondylolysis and Grade 1, L5-S1, spondylolisthesis but no neural compression. [6] The worker received physiotherapy and there was improvement. She was able to return to modified duty gradually in July Subsequently, her leg pain deteriorated significantly with increased activity and she went off work in October An MRI conducted in November 2009 confirmed bilateral spondylosis, a Grade 1 anterolisthesis and posterior lateral bulging. Her condition improved and the worker resumed modified duty in February [7] The worker received therapeutic injections at the Pain Clinic and a surgical repair technique was recommended to treat her developmental abnormality (L5 bilateral pars defect) to improve her pain. The worker's surgery was performed on January 5, The worker returned to modified duty again in October [8] Entitlement in the claim was considered by the WSIB and it was ultimately accepted that the July 1, 2009 workplace injury caused a mechanical low back pain that was further aggravated by the worker's asymptomatic underlying low back condition. It was concluded that the injury would not likely have caused neurological complaints if not for the underlying spondylosis. [9] The permanent impairment was identified by the WSIB with maximum medical recovery determined to be May 8, Following a NEL assessment, the worker was awarded 8% whole person impairment. The permanent impairment that resulted from the workplace injury was determined with regard for the relative contribution of the worker's pre-existing impairment.

3 Page: 2 Decision No. 111/15 [10] The worker objected to the NEL quantum and the reduction in the award due to her preexisting impairment. The matter was reviewed by the WSIB NEL Clinical Specialist but the award was confirmed on reconsideration. The worker appealed and the ARO DeRose in a decision dated June 28, 2013 confirmed the NEL quantum as appropriate and an accurate reflection of an injury-related permanent impairment. The reduction for a measureable preexisting impairment was also considered correct and consistent within the policies. [11] The worker now appeals to the Tribunal. (iv) Law and Board policy [12] On January 1, 1998, the Workplace Safety and Insurance Act, 1997 (WSIA) took effect. Pursuant to sections 112 and 126 of the WSIA, the Appeals Tribunal is required to apply any applicable Board policy when making decisions. Pursuant to the WSIA section 126, the Board has identified certain policies as applicable to this appeal. [13] The Legal Services Division of the Board confirmed that the following policy packages, Revision #9, would apply to the subject matter of this appeal: Policy Package #263 - NEL Quantum Policy Package #300 - Decision-Making/Benefit of Doubt/Merits and Justice [14] The policies will not be duplicated here for practical reasons. The Vice-Chair considered the policies in the context of the legislation in arriving at the decision. As the accident occurred in 2009 the WSIA applies. Section 46 of the Act states the following: 46(1) If a worker s injury results in permanent impairment, the worker is entitled to compensation under this section for his or her non-economic loss. [15] Section 47 of the WSIA states the following: 47(1) If a worker suffers permanent impairment as a result of the injury, the Board shall determine the degree of his or her permanent impairment expressed as a percentage of total permanent impairment. (2) The determination must be made in accordance with the prescribed rating schedule (or, if the schedule does not provide for the impairment, the prescribed criteria) and, (v) (a) having regard to medical assessments, if any, conducted under this section; and (b) having regard to the health information about the worker on file with the Board. Analysis and conclusions [16] I have considered the submissions by the worker's representative dated November 27, 2014 and the post-hearing submissions made by the representative dated April 23, The worker s representative essentially relied on the arguments made in the submission of November 27, 2014 and had nothing further to add. [17] The worker's representative provided comprehensive submissions in his correspondence of November 27, The worker requested a redetermination of the worker's NEL award currently rated at 8%. The worker argued the actual calculation of the NEL quantum award as well as the incorrect application of WSIB OPM Document No (Effect of a Pre-existing Impairment). The submissions provided by Mr. Oliverio were comprehensive and will not be

4 Page: 3 Decision No. 111/15 outlined further here. I have considered all of the submissions carefully and fully in arriving at my decision. [18] Upon review of the file the Vice-Chair requested further information and explanation from the Board. In particular the Vice-Chair requested the following information: 1. Explanation pertaining to the section on Peripheral Nervous System Disorders. The NEL Clinical Specialist s evaluation report only denotes nerve root impairment in respect to the right leg pertaining to the L5 vertebrae. The medical indicates nerve root impairment in respect to the S1 vertebrae level as well. Was this considered? 2. Table 49 (of the AMA Guides) was used by the NEL Clinical Specialist in the quantification of Peripheral Nervous System Disorders. The asterisk under Table 49 indicates the following: * See table 10 & 11 for grading schemes for deriving the percent impairment of the upper or lower extremity due to sensory deficit or the loss of strength. See Table 46 for converting lower extremity impairments to whole person impairment. Conversion to whole person impairment should be made only when all impairments involving the upper extremity have been combined [sic] Table 10 grades the loss of sensation resulting from Peripheral Nervous System Disorders. Did the NEL Clinical Specialist use Table 11 instead of Table 10? Table 11 grades the loss of power and motor skills. It is not clear from the NEL Specialist report which Table was used and whether the NEL quantum award should have been 25% for the whole person if Table 10 was used. 3. Although the NEL Clinical Specialist maintains that the worker s pre-existing low back impairment is measured at 7% whole person percentile, she provides no authoritative basis or reference in the AMA Guides to account for the calculations. How is the 7% arrived at? Is there in fact a pre-existing impairment or pre-existing conditions that were asymptomatic and would have remained so, but for the work-related injury? What is the evidence used to support a preexisting impairment? [19] The Vice-Chair notes the response to the above mentioned questions, from the WSIB dated March 12, 2015 as follows: Question 1 Response The worker's surgery of January 5, 2011 involved the L5 and S1 vertebrae. This is not the same as nerve root compression/compromise at these levels which would be considered in a rating under the section on Peripheral Nervous System Disorders in the AMA Guides. As the worker's surgery of January 5, 2011 involved the S1 vertebrae, the possibility of an S1 nerve root impairment was considered in the decision as a matter of course. While the clinical evidence makes mention of hypersensitivity in the right L5 nerve distribution as per the physiotherapist, Mariam Salama's report of December 1, 2011 and the MRI findings of November 3, 2009 indicate a bulging disc seen to touch the right exiting L5

5 Page: 4 Decision No. 111/15 nerve root without displacing it, there is no clear clinical evidence to confirm ongoing nerve root compression/compromise at the S1 level. Any true neurological impairment related to the nerve root levels of the lumbar spine would need to correlate with other clinical findings to ensure true evidence of impairment. In this case there is no mention of nerve root compromise to the S1 level on radiological studies or in the operative report. Question 2 Response Both Tables 49 and Table 10 of the AMA Guides are used to determine the percent impairment of the lower extremity due to sensory deficit. Table 49: Unilateral Spinal Nerve Root Impairment Affecting the Lower Extremity, p.76 of the AMA Guides was used to calculate the sensory deficit resulting from the worker's L5 nerve root impairment. This table provides the maximum lower extremity impairment values resulting from a sensory deficit for each lumbar spine nerve root. The Guide provides a maximum of 5% lower extremity impairment due to sensory deficit at the L5 nerve root. This is found under the column "Maximum % Loss of Function Due to Sensory Deficit, Pain or Discomfort". The grading scheme for sensory loss can be found in Table 10: Grading Scheme and Procedure for Determining Impairment of the Upper Extremity Due to Pain or Loss of Sensation Resulting from Peripheral Nervous System Disorders on p. 42 of the AMA Guides. The worker's sensory loss due to Impairment of the L5 nerve root was graded by the NEL Clinical Specialist at 25% ( Decreased sensation with or without pain, which is forgotten during activity") noting findings of hypersensitivity in this nerve distribution as reported by the worker's physiotherapist, Mariam Salama in her report of December 1, 2011, and mild intermittent radicular leg symptoms reported by Dr. Yap in her report of February 7, Using the Tables and values mentioned above, the worker's neurological impairment was calculated as follows: 25% (grading due to loss of sensation Table 10) x 5% (maximum % due to sensory deficit to L5 nerve root) = 1.25% lower extremity which rounds down to 1% lower extremity impairment. As noted in Table 49, impairment percentages calculated are of the lower extremity. Lower extremity impairments are converted to impairments of the whole person using Table 46: Relationship of Impairment of the Lower Extremity to Impairment of the Whole Person, p. 72 of the AMA Guides. Using Table 46 of the AMA Guides, a 1% lower extremity impairment converts to a 0% whole person impairment. The grading scheme for loss of strength due to a nerve root impairment is calculated using Table 11: Grading Scheme and Procedure for Determining Impairment of the Upper Extremity Due to Loss of Power and Motor Deficits Resulting from Peripheral Nervous System Disorders, p. 42 of the AMA Guides. This table was not used in the calculation of the worker's impairment as there was no clear clinical evidence to confirm a lower extremity strength impairment resulting from any lumbar nerve root compromise and noting Dr. Ahn's medical report of July 22, 2011 indicating the worker had 5/5 power in both extremities.

6 Page: 5 Decision No. 111/15 Question 3 Response Guiding Authority Under the Workplace Safety and Insurance Act, 1997 (WSIA), workers are entitled to compensation for permanent impairments. The WSIA defines impairment as a "physical or functional abnormality or loss, and any psychological damage that arises from the abnormality or loss". The definition does not require that the impairment have caused lost time from work or to be symptomatic. The WSIB is required to determine the degree of the work-related permanent impairment according to the American Medical Association Guides to the Evaluation of Permanent Impairment, Third Edition (Revised) (the AMA Guides). While the AMA Guides provide instruction for the evaluation of permanent impairment regardless of the cause or causes of impairment, it does recognize that compensation may be "apportioned" based on contributing medical factors. Because the purpose of a NEL benefit is to compensate for work-related permanent impairments, the WSIB is required to consider causation when using the AMA Guides to determine the degree of work-related impairment. Policy Interpretation When calculating NEL benefits prior to November 1, 2014 for workers who have a preexisting impairment, Policy document (Effect of a Pre-existing Impairment) does allow the WSIB to adjust an award by an appropriate amount to reflect the extent of the pre-existing impairment. The clinical evidence must establish that the pre-existing impairment is a "physical or functional abnormality or loss that was not caused by the work-related injury/disease. There is no requirement that the pre-existing permanent impairment, work-related or not, have affected a worker's ability to work or required health care, for it to be factored out of the NEL benefit calculation. In cases where the pre-existing impairment can be rated according to the AMA Guides, the rating is deducted from the overall impairment rating. The definitions of pre-accident impairment and pre-existing condition provided in the WSIB's Aggravation Basis ( ) and SIEF ( ) policies respectively are intended for the specific administration of these policies. The Aggravation Basis policy defines "pre-accident impairment" as "a condition which has produced periods of impairment/disease in the past requiring treatment and disrupting employment". The intent of this policy is to limit entitlement to the injury that is workrelated for the acute period, until the worker returns to the pre-accident state and does not contemplate permanent impairments. Therefore, this definition is not considered applicable for calculating NEL benefits. While policy document does not provide a definition of "pre-existing impairment", the definition of impairment in the WSIA applies and is similar to that found in the AMA Guides, the rating schedule for calculating NEL benefits. Case Details The MRI findings of November 3, 2009 report the presence of bilateral spondylolysis of L5 with grade I anterolisthesis upon S1. Dr. Ahn's report of June 22, 2012 indicates the worker's spondylolysis was pre-existing though the condition was asymptomatic prior to the work accident. Disorders of the spine including degenerative disc disease are considered "measurable" conditions/impairments as the AMA Guides provide specific impairment values for these disorders. See Table 53: Impairments Due to Specific Disorders of the Spine, Section IIC, p. 80 of the AMA Guides.

7 Page: 6 Decision No. 111/15 As previously mentioned when calculating NEL benefits for workers who have a preexisting permanent impairment, Policy does allow the Board to adjust a benefit by an appropriate amount to reflect the extent of the pre-existing impairment. Preexisting impairments include both work related and non-work related impairments. If the pre-existing impairment is measurable, the WSIB: rates the total impairment to the area determines the rating for the pre-existing impairment, and subtracts the rating for the pre-existing impairment from the total impairment rating to get the rating for the work related impairment In this case, the worker's total impairment to the lumbar spine was assessed at 15% whole person impairment (WPI). The impairment rating for the pre-existing condition was determined to be 7% whole person impairment (Table 53, Section IIC). As the worker's bilateral spondylolysis at L5 is a measurable non-work-related pre-existing condition that has an impairment value of 7%, this was subtracted from the overall 15% rating to arrive at the final WPI rating of 8%. (a) Conclusions [20] I find the award accurately reflects the worker's permanent low back impairment. I have reviewed the calculations and the Board s response and find them to be correct and in accordance with the AMA Guides. [21] Furthermore, I note OPM Document No was applied in this case to reduce the worker's low back permanent impairment award to reflect her pre-existing condition. The policy indicates that a pre-existing permanent impairment includes non-work-related impairments, work-related impairments for which there is a permanent disability pension and work-related impairments for which there is a NEL benefit. [22] The policy states that where a worker without pre-existing non-work-related impairment has a new injury affecting the same body area, and the pre-existing impairment is measurable, the WSIB rates the total impairment to the area, determines the rating for the pre-existing impairment and subtracts it from the total impairment rating to get the rating for the new workrelated impairment. [23] If the pre-existing impairment is not measureable, the WSIB rates the total areas of impairment and reduces the rating according to the significance of the pre-existing impairment. [24] The policy also provides the definition for what constitutes a measureable pre-existing condition. A pre-existing impairment is measurable or non-measureable depending on whether it can be rated using the American Medical Association s Guides to the Evaluation of Permanent Impairment, 3 rd Edition, Revised. This determination is based on the clinical information available at the time of the work-related injury. [25] As noted in this case the NEL Clinical Specialist determined the worker's pre-existing impairment is measureable based on the finding in the medical investigations in the record and I find this determination to be correct based on the medical investigations available. [26] I note that the findings of the CT scan and the MRI revealed L5 spondylolysis and grade I spondylolisthesis and as such a measureable permanent impairment rating of 7% could be determined. Since this condition was not caused by the accident but enhanced the post-accident impairment, it was correctly deductible from the total award as per the above policy.

8 Page: 7 Decision No. 111/15 [27] In summary, I find that the WSIB reasonably and correctly assessed the worker's NEL award. I see no compelling reason to change or vary the decision of the Board.

9 Page: 8 Decision No. 111/15 DISPOSITION [28] The quantum of the NEL award for the low back is confirmed. I find that the NEL quantum is appropriate and accurately reflects the injury related permanent impairment. The reduction of measureable pre-existing impairment is also correct and consistent with WSIB policy. [29] The worker s appeal is denied. DATED: June 5, 2015 SIGNED: V. Marafioti