WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1051/15

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1051/15 BEFORE: C. M. MacAdam: Vice-Chair HEARING: April 27, 2015 at Toronto Written DATE OF DECISION: June 17, 2015 NEUTRAL CITATION: 2015 ONWSIAT 1343 DECISION UNDER APPEAL: WSIB Appeals Resolution Officer (ARO) dated April 3, 2014 APPEARANCES: For the worker: For the employer: Interpreter: T. Ross, Office of the Worker Adviser 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. 1051/15 REASONS (i) Introduction [1] The worker appeals the decision of Appeals Resolution Officer, dated April 3, 2014, which denied entitlement to a non-economic loss (NEL) redetermination for the worker s low back, currently rated at 27%. This remains the issue for determination in the appeal. (ii) Background [2] On May 22, 1997, the worker injured her low back while moving a heavy cart. The initial diagnosis was low back strain although the worker was later diagnosed with an L3-4 right-sided disc herniation. Entitlement was granted for a March 3, 1998 discectomy surgery. In July 1999 the worker was granted a 27% NEL award for the residual low back impairment. The worker was denied entitlement for a recurrence in 2011, including a NEL redetermination in That decision was not appealed and therefore the issue of entitlement for the 2011 recurrence is not before me in this appeal. The worker again applied for a NEL redetermination in That request was denied on May 3, A Board medical Consultant had opined that deterioration in the worker s low back was related to the aging process and was not related to the workplace injury. That decision was confirmed in the ARO decision of April 3, The worker now appeals to the Tribunal. (iii) Law and policy [3] 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. [4] 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. [5] Permanent impairment means impairment that continues to exist after the worker reaches maximum medical recovery. [6] 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. [7] 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:

3 Page: 2 Decision No. 1051/15 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. (iv) Medical evidence [8] While I have reviewed all the medical evidence on file, I note in particular the medical reporting set out below. [9] The worker underwent the L3-4 discectomy surgery in March The last report from the orthopaedic surgeon, Dr. Samuel Soriano, was dated December 7, Dr. Soriano indicated the worker s low back pain symptoms had not improve since the surgery, that epidural injections were being considered, that the worker did not wish to proceed with those injections as his NEL medical assessment was coming up, and he would advise the doctor if his wished to proceed with injections. [10] The April 1999 NEL medical assessment by Dr. J. T. Bertoia, indicated forward flexion of 15 degrees, extension of 10 degrees, and 20 degrees in both right and left lateral flexion. Dr. Bertoia s finding led to the 27% NEL award granted in July [11] There is no reporting from the worker s health professionals for the next 11 years until May A May 18, 2011 report from the family physician, Dr. F. Kakavand, indicated he had been the worker s doctor since May He noted the 1997 workplace accident, and indicated the worker had reduced ROM in the lumbar spine and relied on prescribed pain medication. This report was before the Board when the 2011 recurrence was denied by the Board. [12] There is then no further medical reporting to February, A February 22, 2013 lumbar CT report from Dr. Raymond Chan noted a comparison with the earlier CT report of May Dr. Chan noted mild degeneration at the L2-3 and L5-S1 disc levels, and mild diffuse disk bulging at the L3-4 and L4-5 disc levels with no significant spinal stenosis. Dr. Chan s impression was no significant change since the May 2008 CT scan. [13] A February 28, 2013 report to the Board from the family physician, Dr. Niall Lynagh indicated he had been treating the worker since early Dr. Lynagh noted the 1997 workplace injury, the 1998 discectomy surgery, the CT scan report of 2013 that showed DDD and OA no significant disc pathology and certainly nothing requiring surgery. Dr. Lynagh noted the worker s complaint of chronic daily severe low back pain of a mechanical nature increasing in severity as time passes, and he noted the worker s pain medication. Dr. Lynagh s opinion was reactive depression due to ongoing pain and significant decline in his ADLs. He suffers with poor sleep, weakness, and numbness in both legs, anhedonia, social isolation, lack of libido, quick to anger, easily frustrated, recurrent falls, uses a cane daily, withdrawn, poor concentration. Dr. Lynagh indicated he was trying to get the worker into a pain clinic for injections and that the worker had exhausted his physiotherapy coverage. A second letter to the Board from Dr. Lynagh, dated May 6, 2013, was a duplicate of the earlier one with the added notation that the worker was unemployable. The worker has not made a claim for psychotraumatic disability benefits. [14] On August 19, 2013, the worker s representative wrote to Dr. Lynagh with a series of questions and she provided a copy of the AMA Guides used in the 1999 NEL assessment. In his brief undated reply Dr. Lynagh indicated ROM findings of flexion 20 degrees, extension 0 degrees and right and left lateral flexion of 15 degrees on each side. Dr. Lynagh opined that the worker s sensory deficit in the L4 nerve root should have been graded at level 1 rather than

4 Page: 3 Decision No. 1051/15 level 2 as in the NEL calculation. Dr. Lynagh opined that the worker s motor deficit should have been graded at level 1 rather than level 4 as in the NEL calculation. Dr. Lynagh indicated the worker was unemployable due to chronic severe mechanical low back pain with DDD/OA L2-5. [15] The medical file was reviewed by the Board medical consultant, Dr. James Kim. Dr. Kim noted the worker s representative s September 9, 2013 opinion that the CT scan of February 21, 2013, had indicated significant deterioration at the L3-4 and L5-S1 disc levels. Dr. Kim opined that this is absolutely not true as the interpretations of the findings in both reports are essentially identical. In fact, the more recent study demonstrated no compromise of the foramina at L3-4 and no thecal impingement at L5-S1. The findings of osteophyte formation and osteoarthritis would be evidence of natural degenerative changes over a 16 year period. Dr. Kim commented on the comparison of ROM measurements between the initial NEL report and Dr. Lynagh s report of Dr. Kim indicated there was evidence of a measurable decrease in ROM. However, Dr. Kim went on to state However, the degree of diminution is not significant over a 16 year period, during which time the natural degenerative processes and deconditioning would necessarily result in some degree of decreased functionality. Dr. Kim noted as well that evidence of the worker s increase in pain medication from 1998 to 2011 would be a measure of pain but not necessarily function. Dr. Kim s concluding opinion concerning the evidence of functional deterioration over the 16-year period was that it was arguable whether or not the changes can be considered significant in the context of the natural aging process and degeneration changes. [16] The worker had an MRI of his cervical and lumbar spine on December 12, The report of that date from Dr. Philip Buckler indicated mild to moderate degenerative changes in discs from L2-3, to L5-S1. Dr. Buckler suspected small disc herniations at L2-3, L4-5, and L5-S1 that he considered possibly though less likely that these represent postoperative granulation tissue. Dr. Buckler indicated that a follow-up study with gadolinium be done if intervention was being considered. There is no further evidence of follow-up to this report. [17] The worker s former representative wrote to Dr. Lynagh on May 2, 2014, asking for an opinion on Dr. Kim s opinion that the worker s low back deterioration was due to aging. In his two sentence reply of June 12, 2014, Dr. Lynagh indicated he partly agreed with aging and that prior injury and surgical interventions would greatly accelerate the normal aging of the spine. (v) Submissions [18] In her written submissions dated February 27, 2015, the worker s representative submits that the medical evidence since the initial NEL medical assessment in 1997 indicated significant deterioration. She reviewed the imaging evidence. She argued that category II-F of Table 53 of the AMA Guides should have been used in the initial calculation of the NEL since multiple levels of the lumbar spine were affected (L3-4, L5-S1). She noted the worker s pain medication intake reflected deterioration in the worker s condition such that a NEL of 30% was warranted. [19] The representative takes issue with the Board s reliance on the medical consultant, Dr. Kim s opinion. She argues that it was not within the scope of his expertise or role as a medical consultant to interpret whether or not the deterioration [noted by Dr. Kim], was significant for NEL purposes. The representative submits that once a deterioration was evidenced, it was for the Board to proceed as per policy, and not simply accept Dr. Kim s

5 Page: 4 Decision No. 1051/15 pronouncements without further scrutiny. The representative relies on Tribunal Decision No. 1129/10R in support of her argument. [20] Concerning the issue of aging in the degeneration of the worker s low back condition, the representative relied on medical documentation she had submitted to the Board that supports that it is not possible to determine definitively whether observed degenerative changes are caused by an injury or simply the natural aging process. The representative referenced a paper from the New Zealand Medical Journal (NZMJ) 1 on the meaning of degeneration. The authors, Dr. Richard Wigley, Dr. Christopher Walls, Dr. David Brougham, and Dr. Peter Dixon, argue that degeneration is an ambiguous word that leads to false assumptions of age causation leading to flawed legal decisions The article suggests that the term degeneration be replaced by terms like osteoarthritis, spondylosis, and tendonopathy that do not imply causation. The worker relies on a second paper from the NZMJ by Dr. Peter Robertson and Dr. O. Ross Nicholson on preexisting asymptomatic back conditions. [21] The representative also relies on Tribunal Decision No1242/09 in support of her argument. She argues that Dr. Lynagh s report of June 12, 2014, supports that the workplace injury greatly accelerated the normal aging process in the worker s spine. [22] In summary, the representative argues it is unnecessary and incorrect to consider if deterioration is due to aging and/or the injury. She argues that the evidence of deterioration is sufficient to warrant a NEL redetermination. (vi) Analysis [23] After considering all the evidence, I find the appeal should be denied. I find there has been no significant deterioration in the worker s compensable low back condition since the initial NEL medical assessment. My analysis follows. [24] The representative takes issue with the initial NEL rating of June 17, 1999, wherein the NEL Adjudicator used Category II-E of Table 53 of the AMA Guides to assess the L3-4 discectomy. The representative argues that category II-F should have been used as well in recognition of impairment related to other disc levels. This argument concerns the initial NEL assessment. The only issue before the ARO, which is the subject of this appeal, was entitlement to a NEL redetermination. The question of the initial NEL award was not before the ARO in that decision. I therefore do not have jurisdiction in this appeal to address the NEL question. [25] The representative s argument is that the clinical evidence of deterioration accepted by the Board medical consultant, Dr. Kim, is sufficient to warrant a NEL redetermination, because it is not possible to attribute with any certainty what proportion of the deterioration is due to natural aging and what is due to the workplace injury. I am not so persuaded. [26] Board policy sets out a two-stage process for NEL redeterminations. The first stage involves adjudication to determine if the worker meets the criteria for a NEL redetermination, that being whether there is significant deterioration in the compensable condition. The policy sets out that decisions are based on an evaluation of medical reporting since the last NEL determination. It states that whenever necessary decision makers may consult WSIB clinical staff. If the adjudicator determines there to be no significant deterioration in the compensable condition, then that is the end of it subject to objection/appeal rights. The second stage of the 1 27 May 2011, Vol. 124 No.1335.

6 Page: 5 Decision No. 1051/15 process applies only where significant deterioration has been accepted. The policy indicates that after decision-makers confirm that a worker meets the criteria for a NEL redetermination the Board then determines the date from which the deterioration has stabilized, the permanent worsening date. The policy sets out that the Board considers all relevant health care information and may request information from health professionals and/or require the worker to attend a new NEL medical assessment. Any increase in the NEL award is payable from the permanent worsening date. [27] In this case, the Board was entitled to seek Dr. Kim s opinion to assist in adjudicating whether there was significant deterioration in the worker s compensable condition. I take no issue with Dr. Kim s opinion that the CT scan of February 21, 2013, did not indicate significant deterioration at the L3-4 and L5-S1 disc levels since the last NEL assessment. Dr. Kim opined that the interpretations of the findings in both reports are essentially identical. In fact, the more recent study demonstrated no compromise of the foramina at L3-4 and no thecal impingement at L5-S1. The findings of osteophyte formation and osteoarthritis would be evidence of natural degenerative changes over a 16 year period. By this, Dr. Kim supported his opinion with a clinical explanation. Dr. Kim s concluding opinion concerning the evidence of functional deterioration over the 16-year period was that it was arguable whether or not the changes can be considered significant in the context of the natural aging process and degeneration changes. I interpret this remark as suggesting that, given the other medical evidence that indicated no significant change, the evidence of change since 1998 was so minimal in Dr. Kim s opinion that it likely reflected no adverse consequences from the surgery and likely reflected normal aging over 16 years. In providing his medical opinion on the degree of compensable deterioration, Dr. Kim was responding with exactly what was expected of him. That explanation is supported, in my view, by Dr. Buckler s MRI report where he opined that suspected small disc herniations at L2-3, L4-5, and L5-S1 were unlikely related to the 1998 compensable surgery. [28] I am not persuaded that the ARO accepted Dr. Kim s opinion without scrutiny of the other medical reporting, as suggested by the representative. The ARO decision included a close review of the medical evidence since the initial NEL assessment. [29] There is no medical opinion in the appeal file before me that indicates significant deterioration related to the 1998 surgery. Dr. Kakavand did not indicate any treatment concerning the discectomy surgery from May 2007 until his report of May 18, 2011, where he indicated the worker had chronic pain and provided no objective findings. Dr. Chan indicated no significant change between the CT scan of May 2008 and the CT scan of February 22, Dr. Chan noted only mild degeneration and mild disc bulging in the worker s low back. Dr. Lynagh did not indicate that the worker s low back condition in 2013 was due to his workplace injury. Dr. Lynagh opined on February 28, 2013, that the worker s condition was reactive depression due to ongoing pain and significant decline in his ADLs. He suffers with poor sleep, weakness, and numbness in both legs, anhedonia, social isolation, lack of libido, quick to anger, easily frustrated, recurrent falls, uses a cane daily, withdrawn, poor concentration. Dr. Lynagh made no comment on a relationship between the worker s condition and the workplace injury. [30] The representative s argument with respect to Tribunal Decision No. 1129/10R is not persuasive. She argued that the Board should have made its own determination on whether or not the deterioration noted by Dr. Kim and not have relied on Dr. Kim s opinion that the compensable deterioration was not significant. As indicated above, the purpose of seeking an

7 Page: 6 Decision No. 1051/15 opinion from the Board s clinical staff is expressly sanctioned in Board policy to assist in the Board deciding the issue of significant deterioration related to the compensable condition. The section of Decision No. 1129/10R cited by the representative is consistent with that policy. The Vice-Chair turned her mind to whether the Board made a decision on the issue of the significance of the deterioration because it referred the worker for a NEL re-assessment, even if it did not expressly address that issue in the decision letter. The Vice-Chair cited section 47(9) of the WSIA which indicates a worker may request a NEL redetermination only in the case of significant deterioration. The Vice-Chair then reasoned as follows: If the Board declines the redetermination, in my view, this provides the worker with a right to appeal on the basis that there was a significant deterioration. That would require a formal adjudication of that issue. [31] The Vice-Chair in Decision No. 1129/10R was considering a case where the worker had been granted a NEL redetermination although the decision letter had not indicated or explained the finding of significant deterioration. The formal adjudication the Vice-Chair refers to is the first stage adjudication set out in the policy discussed above. The representative argues that the Vice-Chair s reasoning supports that the Board improperly relied on Dr. Kim s opinion. For the reasons given, I am not so persuaded. [32] The representative included a lengthy excerpt from Tribunal Decision No. 1242/09 in relation to the impact of aging on the spine. The Vice-Chair in that case, determined that the workplace injury was a significant contributing factor to the deterioration of his compensable low back condition. I have found otherwise in the instant appeal. The representative made no submissions explaining how this excerpt supports the worker s appeal. [33] The representative notes Dr. Lynagh s June 12, 2014 letter where he partly agreed the deterioration was age related but indicated the prior injury and surgical interventions would have greatly accelerated the normal aging of [the worker s] spine. I place little weight on this opinion as there is no other objective evidence of an accelerated aging process in the worker s lumbar spine. The clinical evidence since the 1999 NEL assessment indicated minimal gradual change over a 16-year period, hence consistent with normal aging. [34] In summary, I find there has been no significant deterioration in the worker s compensable low back condition since the 1997 workplace injury and the March 1998 discectomy surgery.

8 Page: 7 Decision No. 1051/15 DISPOSITION The appeal is denied. DATED: June 17, 2015 SIGNED: C. M. MacAdam