WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 239/06

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 239/06 BEFORE: HEARING: J. Dimovski February 1, 2006, at Toronto Written DATE OF DECISION: February 24, 2006 NEUTRAL CITATION: 2006 ONWSIAT 425 DECISION(S) UNDER APPEAL: WSIB ARO decision dated April 19, APPEARANCES: For the worker: Ms. Connie Oliverio, Consultant For the employer: Mr. Mel Prpic, Consultant Do Not Use This Page 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 239/06 REASONS (i) Introduction [1] The worker appeals the decision of an Appeals Resolution Officer (ARO) dated April 19, That decision denied the worker entitlement to a redetermination of the 24% non-economic loss (NEL) award granted for the residual impairment in her low back, which resulted from a compensable accident on November 2, The ARO did not find any clinical findings to support that the worker s condition had permanently worsened. [2] The worker subsequently claimed entitlement to psychotraumatic and chronic pain disability, which was denied in Tribunal Decision No. 1253/03. [3] The issue in this appeal is: 1. whether the worker is entitled to a NEL redetermination. (ii) Medical Evidence [4] In a NEL assessment report dated January 20, 1994, a NEL Roster Physician, Dr. Mayer, found that the worker s range of motion was restricted as follows: flexion from neutral position, 16 to 30 degrees; extension from neutral position, 10 degrees; right lateral flexion from neutral position was to 10 degrees; and left lateral flexion from neutral position was to 10 degrees. Dr. Mayer also recorded that the worker s standing lordosis measurement was at 55 degrees and the worker recorded restricted movement on right and left straight leg raising. Additionally, Dr. Mayer recorded that the worker had no sensory deficit problems and that the worker s radiological reports showed a small disc herniation at L5-S1. Dr. Mayer also acknowledged on the assessment form that the worker had ongoing pain complaints. As a result of the assessment, the worker received a 24% NEL. [5] In a report dated May 24, 1994, Dr. D.F. Wilson (an orthopaedic surgeon) noted the worker s severe pain and opined that the worker s symptoms emanated from her L5-S1 disc only. Dr. Wilson recommended fusion surgery but left the decision to the worker. [6] In a report dated October 4, 1995, Dr. Wong noted the following restrictions in the worker s lumbar movement: PHYSICAL EXAMINATION: This 39 year old female appeared to be in severe pain and depression, but not acute physical distress. She showed decreased lumbar lordosis in the low back of mild degree. The pelvic symmetry was normal. There was no evidence of leg length discrepancy. The pain was indicated in the right paraspinal area at L5-S1. There was tenderness over this area on palpation. There was muscle spasm of fairly marked degree. She had limitation of lumbosacral movements: extension 15 degrees, flexion 45 degrees, lateral flexion was limited to half of normal range. Straight leg raising was limited to 40 degrees on the right and 65 degrees on the left.

3 Page: 2 Decision 239/06 Knee jerks were present. Ankle jerk was decreased on the right. However, she showed no significant motor or sensory loss in the lower extremities. Stance and gait: She was slightly antalgic on the right side. DIAGNOSIS: Based on the medical information and physical examination findings, I felt that [the worker] was suffering from lumbar disc herniation. [7] The next report on record dealing with the worker s lumbar spine is a translation of a radiologist s report dated October 5, Dr. Milton Quiroz E., a Chilean radiologist, noted the following in part: The vertebral bodies are normal in height and alignment. The medullar cone is of normal morphology and signal intensity at the L1 level. The elements of the cauda equina.do no show alterations. The L3-L4 and L4-5 are of normal height and signal with no signs of hernia [tion?] The vertebral bodies show normal contours. The conjugation foramen is ample and symmetrical. At the L4-5 the facet joints show discrete signs of bilateral subcondral selerosis. At the L4-L5 level the disc is significantly decreased in height and signs due to degenerative changes, and the adjacent corporal platforms show hyperintensive bands in T1 suggesting osteochondrotic reaction... CONCLUSION: Marked degenerative discopathy at the L5-S1 level with no signs of hernia (sic). Osteochondrotic reaction associated with the adjacent corporeal platforms. Discrete signs of bilateral degenerative facet arthropathy at the L4-L5 and L5-S1 levels. [8] In a translated report dated October 10, 2000, Nina Gazzolo Torrealba, a clinical psychologist, noted she had treated the worker since the beginning of 1999 for depression. In that time, it was noted that the worker s back problems had placed great limitations in her daily life. [9] In two separate translated reports dated November 2, 2000, Dr. Waldo Nagel V., reports that the worker s MRI showed degenerative alterations that explained the worker s lumbago. In one of the reports the following appears: The studies of lumbar resonance demonstrate degenerative alterations that explain her lumbar illness, and this can only be treated in symptomatic form. It does not exist any surgical indication. (sic) [10] Lastly, in a report dated May 13, 2003, Dr. Lazaro Marsan Suarez (another foreign report but not translated) provides the following in part: [The worker], a 46 years old female is suffering from the following pathologies: -severe degenerative discopathy L5-S1 -Osteocondrosis of the adjacents joints.

4 Page: 3 Decision 239/06 -Degenerative bilateral artropathy of L4-5 y L5-S1. -Bipolar Depressive Desease (sic) -Obesity. [11] In a memo dated September 10, 2004, Dr. Cantile (a Board Medical Consultant) reviewed the worker s medical file and provided the following in part: We subsequently have medical reports from Chile, most of which are now almost 4 yrs ago. These provide no objective clinical findings, and only describe ongoing back pain and obesity, which the MD concedes would also be contributory to the problem. The MRI scan shows the expected evidences of chronic DDD [degenerative disc disease] with no suggestion of a more recent herniation. The most recent report of May 03 simply lists the diagnoses without any description of clinical findings at that time. These data do not provide adequate grounds for an indisputable NEL redetermination and in fact do no suggest significant and unanticipated deterioration related to the compensable injury. (iii) The worker s submissions [12] In written submissions dated July 29, 2004 and November 30, 2005, the worker s representative noted the findings of the medical reports from 2000 clearly demonstrated the permanent worsening of the worker s low back impairment. In particular, she noted that the worker s degenerative condition has deteriorated beyond that recorded by Dr. Mayer in In the end, Ms. Oliverio concluded: (iv) Most of the opinions expressed by the physicians treating [the worker] have treating (sic) her well over 3 years, (at that time now over 6 years) and their opinion must be given sufficient weight as the continuity and consistency are key elements in addressing theissues. The employer s submissions [13] The employer s representative reviewed the file and Board policy and submitted there was an absence of medical opinion which supported the worker s impairment had significantly and permanently worsened to warrant a NEL redetermination. (v) Law and policy [14] On January 1, 1998, the Workplace Safety and Insurance Act, 1997 ( WSIA ) took effect. However, pursuant to section 102 of the WSIA, the Workers' Compensation Act continues to apply to pre-1998 injuries. Since the worker s accident occurred on November 2, 1992, the pre-1997 Act continues to apply, as amended by the WSIA. [15] Pursuant to WSIA section 126, the Board has identified certain policies applicable to this appeal. We have considered these policies as necessary in deciding this appeal. In particular, we have considered Operational Policy Manual ( OPM ) Document # , Redeterminations and Recalculations, which provides the following in part: The WSIB may consider a worker's request for a redetermination of his/her existing noneconomic loss (NEL) benefit provided that

5 Page: 4 Decision 239/06 the worker's degree of permanent impairment was previously determined to be greater than zero the worker's condition has deteriorated significantly since the last NEL medical assessment, and 12 months have passed since the worker's last NEL decision. A "significant deterioration" is a permanent worsening of the work-related medical condition occurring after the most recent NEL medical assessment. The significant deterioration must be demonstrated by a substantial change in medical findings. Evaluation (vi) Workers applying for a NEL redetermination must be examined by their treating physician. To assist the physician in identifying how the worker's medical condition has changed, workers may provide their physician with a copy of their last NEL medical assessment report and any other supporting medical reports. 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. Workers should identify each body part/system that has deteriorated and for which a NEL redetermination is being requested. Decision-makers review the physician's report and all medical information added to the file since the last NEL medical assessment. The most recent medical findings are compared with the condition described in the last NEL medical assessment report to determine if there is evidence of a significant deterioration. Whenever necessary, decision-makers may request additional medical information, consult WSIB medical staff, and/or ask the worker to be examined by a specialist. Findings [16] There is scant medical evidence on file, despite Ms Oliverio s submissions, which establishes that the worker s low back impairment has significantly deteriorated from her last NEL assessment. Dr. Wong s 1995 report is the last report on file that provides clinical findings regarding the worker s range of motion. I place little weight on this report, as it was uncorroborated and thus, not particularly useful to persuade me that the worker s condition had significantly deteriorated. [17] Ms. Oliverio submitted that the radiological reports showed that the degeneration in the worker s back had progressed since her NEL assessment and as a result her condition has deteriorated. However, I placed little weight on the more recent foreign medical reports because they did not provide any findings regarding the worker s range of motion. Further, these reports do not persuade me that the worker has any compensable neurological dysfunction nor has had any

6 Page: 5 Decision 239/06 complications in her condition that has required increased medical attention. As such, there is no useful medical evidence on file to indicate that the worker s compensable condition has significantly deteriorated. [18] I did place significant weight on the opinion from the Board s Medical Consultant since it seems he was the only physician on record that compared the worker s NEL results to the subsequent reports on file. In summary, there is nothing to persuade me that the worker s condition permanently worsened from her condition assessed by the NEL Physician in I therefore dismiss the worker s appeal. DISPOSITION [19] The appeal is dismissed. DATED: February 24, SIGNED: J. Dimovski