WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1533/13

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1533/13 BEFORE: I. Welton : Vice-Chair V. Phillips : Member Representative of Employers D. Broadbent : Member Representative of Workers HEARING: August 8, 2013 at Oshawa Oral DATE OF DECISION: September 11, 2014 NEUTRAL CITATION: 2014 ONWSIAT 1935 DECISION UNDER APPEAL: WSIB Appeals Resolution Officer (ARO) decision dated September 9, 2011 APPEARANCES: For the worker: For the employer: T. McConnell, Office of the Worker Adviser Not Participating 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. 1533/13 REASONS (i) Introduction [1] The worker appeals a decision of N. Glyn-Williams, Appeals Resolution Officer (ARO), dated September 9, 2011, which denied entitlement to a redetermination of the worker s Non-Economic Loss (NEL) assessment for the low back under a claim with an accident date of March 29, The ARO decision also denied recognition of a permanent impairment and entitlement to a NEL assessment for the low back under a claim with an accident date of November 18, [2] In addition, the ARO decision denied entitlement to further Loss of Earnings (LOE) benefits beyond those already paid under either claim. (ii) Background [3] The then 23-year-old worker was employed as a carpenter in the construction industry on March 29, 2005, when he sustained an injury to his low back while lifting drywall. A CT scan of the lumbar spine on May 20, 2005, revealed a right lateral herniated disc at L5-S1, possibly irritating the right S1 root. [4] The worker was seen on June 20, 2005, by Dr. J. Seligman, an orthopaedic surgeon, who noted that the worker had significant right-sided sciatica. Dr. Seligman performed a right L5-S1 laminectomy, discectomy and foraminotomy on January 4, [5] The Board recognized a permanent impairment for the low back. The worker was subsequently referred for Labour Market Re-entry (LMR) services, after the accident employer indicated that no permanent modified duties were available. A suitable employment or business (SEB) of Retail Salespersons and Sales Clerks was identified and the worker was provided with a Job Search Training Program (JSTP) during August On August 25, 2006, the worker secured employment and commenced work in a retail store. [6] The worker received a NEL award of 31% for the low back on October 19, [7] On November 18, 2009, the worker had been employed by a new employer as a dump truck driver for just over three months when he hit a hole in the road while driving, bounced high off his seat and struck his head on the roof of the cab. The worker felt immediate pain in his low back, radiating to the right leg. He received treatment in a hospital emergency department and was initially diagnosed with a lumbar strain. [8] A CT scan of the worker s lumbar spine on November 24, 2009, was compared with the previous scan from May The new scan revealed multilevel abnormalities with mild disc bulging and facet joint osteoarthritis, with some progression in the osteoarthritis since The changes at the L5-S1 level were described as difficult to evaluate as to whether they are predominantly due to postsurgical scarring or whether there is recurrent or persistent mild disc herniation. It was noted that there appeared to be no more than mild potential compression of the right S1 nerve root. [9] The Board allowed entitlement for the incident as a disablement (unexpected result of working duties) under a new claim, since the worker reported having no ongoing medical treatment for his previous back injury and was asymptomatic at the time of the new incident.

3 Page: 2 Decision No. 1533/13 [10] The worker remained off work and was referred for a multidisciplinary health care assessment, conducted on March 30, 2010, by Dr. A. Clark, an orthopaedic specialist, and a physiotherapist. The assessment report noted that the worker had received physiotherapy treatment after his November 2009 accident, but still experienced low back pain with occasional pain radiating down his right leg. The report recommended continuation of the worker s current physiotherapy program for another six to eight weeks, followed by a Functional Abilities Evaluation (FAE). [11] An MRI of the lumbar spine on April 8, 2010, revealed evidence of a small L5-S1 disc annulus protrusion and indications of mild epidural fibrosis, in keeping with slight postsurgical scarring. [12] A Final Summary of the earlier multidisciplinary health care assessment was prepared by Dr. Clark on August 10, The doctor noted that a recent x-ray of the worker s lumbosacral spine, pelvis and right hip had been reported as normal. Dr. Clark provided a threefold diagnosis viz., 1) Dural adhesions; 2) Post laminectomy and discotomy (some improvement expected, but not full recovery); 3) Degenerative disc disease of the cervical spine. No further treatment was recommended and no restrictions were identified. [13] In a Board memorandum dated August 25, 2010, the worker s Case Manager reported that a Board Medical Consultant had noted that recent medical findings suggested that the worker was currently better than his 31% NEL rating. Discussion with the physiotherapist involved in the worker s multidisciplinary assessment was reported as confirming that scar tissue from the previous surgery was affecting nerves in the worker s back, causing increased pain and affecting function, and the worker s degenerative disc disease may have been made worse by the prior surgery. [14] On September 7, 2010, following a review, the Case Manager determined that the worker had recovered from the November 2009 injury and any further LOE for ongoing disablement related to post surgery scarring should be transferred under the March 2005 claim, but paid based on layoff earnings from [the trucking firm that employed the worker in November 2009]. [15] The worker began to develop upper back and neck pain in early 2011, in addition to his low back and right leg pain, and his family doctor sent him for an MRI of the cervical spine, which was conducted on February 25, The MRI revealed broad based disc bulges at C3-4, C5-6 and C6-7, as well as significant central stenosis at C5-6 and C6-7. [16] On February 28, 2011, the Board notified the worker that LOE benefits had been restored incorrectly under the worker s March 29, 2005, claim for the period from August 26, 2010, to the present date. It was noted that these benefits would be written off as an unrecoverable debt and LOE benefits under that claim would cease on March 11, [17] The worker was seen by Dr. Krete, a specialist in physical medicine and rehabilitation, on March 17, 2011, for his back and leg pain, as well as his more recent neck pain. The doctor recommended a continuation of exercises and core strengthening, and suggested a possible referral to a multidisciplinary pain clinic for assessment. [18] A letter to the Board from Dr. Kilmartin, the worker s family doctor, dated April 7, 2011, stated that the worker was experiencing chronic and severe pain, for which Oxycocet had been prescribed, and the worker is unable to work because of pain.

4 Page: 3 Decision No. 1533/13 [19] Dr. Kilmartin submitted a medical report on the worker s behalf to Service Canada on August 31, 2011, with a twofold diagnosis of the worker s condition viz., 1) Chronic prolonged and severe lumbar discogenic back and right leg pain (previous surgery following March 2005 workplace injury); 2) Chronic prolonged and severe neck pain due to cervical discogenic pain, associated with spinal central stenosis. The doctor noted that the worker had suffered a recurrence of low back and leg pain in 2009, with severe pain and neuropathic pain right leg since then and he had not been able to return to his work as a dump truck driver since the recurrence. [20] The ARO decision of September 9, 2011, concluded that the worker fully recovered from his low back injury under the November 2009 claim, with no evidence of a permanent impairment. The ARO decision also concluded that there had been no significant deterioration in the permanent impairment level below the 31% NEL level already recognized in the March 29, 2005, claim. As a consequence, the worker was not entitled to a NEL assessment in the former case, or to a NEL redetermination in the latter case. In addition, entitlement was denied for further LOE benefits under either claim. [21] An MRI of the worker s lumbar spine on October 17, 2011, found that the worker s L5-S1 disc protrusion had worsened since his MRI of April 8, 2010, and was now compressing the right S1 nerve root. [22] On December 8, 2011, the worker saw Dr. Seligman, the orthopaedic surgeon who had performed the worker s low back surgery in April The doctor noted that the worker had been fine until a 2009 workplace injury, when he jolted his back and began getting pain again in his right leg. Dr. Seligman stated that the worker had suffered a recurrent disc herniation at L5-S1, adding that this is certainly a recurrence of his WSIB injury. [23] Dr. Seligman performed a right L5-S1 repeat laminectomy and discectomy and foraminotomy on February 29, The doctor noted that during the surgery it was obvious there was a large sequestered disk many fragments were removed. [24] The worker was notified by the Board on March 8, 2012, that the worker s low back surgery was within the scope of his March 29, 2005, claim and full LOE benefits would be paid from February 29, 2012, for the acute recovery period following the surgery. The worker s earnings from 2009, when he last worked, were used to calculate the LOE benefit rate. [25] The worker received physiotherapy treatment from May to September A Discharge Report prepared by the physiotherapist, J. Manley, on September 19, 2012, indicated that the worker still continued to have significant pain in his back, radiating down his right leg. The pain level was described as easily aggravated with movement, the worker was reported to be unable to stay in one position longer than one hour, and the worker s sleep was significantly affected by pain. The report noted that an MRI had shown evidence of scar tissue at the sciatic nerve roots and this was the most likely cause for the continued radiating pain. [26] In a report dated December 6, 2012, Dr. Seligman noted that the worker had improved with physiotherapy since his surgery but he does not have (sic) normal spine. The doctor stated that range of motion was limited to about 50% of normal and the worker still had numbness in his right lower leg. The doctor commented that the worker should be on permanent light duties and not be doing any heavy labour.

5 Page: 4 Decision No. 1533/13 [27] On December 20, 2012, Dr. Kilmartin, the worker s family physician, provided an update to the Board on the worker s condition. The doctor stated that the worker continued to experience severe lower back pain and his prognosis was for permanent light duties only. The doctor noted that the worker has not improved as he had after his first surgery in Dr. Kilmartin indicated that the worker was keenly interested in retraining for some other form of work and stated that his prospects of employment without retraining are slim. (iii) Issues [28] The issues for this appeal are as follows: Recognition of a permanent impairment of the low back under the claim with an accident date of November 18, 2009, and entitlement to a NEL assessment; Entitlement to a redetermination for the low back under the claim with an accident date of March 29, 2005; Entitlement to further LOE benefits beyond those already paid under both claims. (iv) Analysis (a) Law and policy [29] The worker was injured in 2005 and 2009, and, therefore, the provisions of the Workplace Safety and Insurance Act, 1997 ( the Act ) are applicable to this appeal. [30] Section 13 (1) of the Act provides that a worker who sustains a personal injury by accident arising out of and in the course of employment is entitled to benefits under the insurance plan established by the Act. [31] Section 43(1) of the Act provides that a worker who has a loss of earnings as a result of an injury is entitled to payments beginning when the loss of earnings begins and continuing, with some exceptions for workers 63 years of age or older on the date of injury, until the loss of earnings ceases, the worker is no longer impaired as a result of the injury or the worker reaches 65 years of age, whichever occurs first. [32] Section 46 of the Act entitles a worker to compensation for his or her non-economic loss where the worker s injury results in permanent impairment. Section 2(1) of the Act defines an impairment as a physical or functional abnormality or loss (including disfigurement) which results from an injury and any psychological damage arising from the abnormality or loss. A permanent impairment is an impairment that continues to exist after the worker reaches maximum medical recovery. [33] The provisions of the Act are supplemented by policies contained in the WSIB Operational Policy Manual (OPM). In accordance with section 126 of the Act, the WSIB has identified those policies that are applicable to the subject matter of this appeal and they have been taken into consideration in the analysis which follows. [34] OPM Document No (Payment and Reviewing LOE Benefits) allows entitlement to full LOE benefits where the nature or seriousness of an injury completely prevents the worker from returning to any type of work, provided that the worker co-operates in health care measures recommended by the attending health care practitioner and approved by the WSIB. Workers are entitled to full LOE benefits if they co-operate in return to work

6 Page: 5 Decision No. 1533/13 (RTW)/work transition (WT) activities and continue to have full loss of earnings. If the worker has returned to work or is participating in RTW/WT activities, the WSIB calculates a partial LOE benefit by taking 85% of the difference between the worker s pre-injury and post-injury net average earnings. [35] OPM Document No (Aggravation Basis) covers situations where the worker has a pre-accident impairment and suffers a minor work-related injury to the same body part. Entitlement to benefits is considered on an aggravation basis. An aggravation is defined as the effect that a work-related injury/illness has on the pre-accident impairment requiring health care and/or leading to a loss of earning capacity. If the pre-accident impairment is due to a work-related injury/illness, further entitlement may be allowed as a recurrence. [36] Entitlement on an aggravation basis is generally considered for the acute episode only, with benefits ending when the worker s condition returns to the pre-accident state. Entitlement is accepted on an aggravation basis when: A relationship is shown between the pre-accident impairment and the degree of impairment resulting from the accident, and An increased degree of impairment occurs, which exceeds the usual, owing to the pre-accident impairment. [37] OPM Document No (Determining Maximum Medical Recovery) states that maximum medical recovery (MMR) is reached when it is not likely that there will be any further significant improvement in the worker s medical condition. Decision-makers determine when MMR is reached based on the following information, which includes but is not limited to: Clinical reports from the treating health professional(s) Specialists report(s), where appropriate Reports from agency(ies) providing treatment and/or evaluation (e.g., Regional Evaluation Centres) Information from the worker on his/her medical impairment External, evidence-based medical/scientific guidelines on disease and injury-specific impairment and treatment, and The opinion of WSIB clinical staff, if obtained. [38] After MMR is identified and recorded, if there is a residual impairment, the WSIB arranges a NEL assessment. [39] OPM Document No (Redeterminations and Recalculations) states that the Board may consider a worker s request for a redetermination of an existing NEL benefit provided that: 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 determination, and 12 months have passed since the worker s last NEL decision. [40] A significant deterioration refers to a marked degree of deterioration in the work-related impairment that is demonstrated by a measurable change in objective clinical

7 Page: 6 Decision No. 1533/13 findings. After confirmation that the criteria for a NEL redetermination are met, the permanent worsening date (PWD) must be determined, i.e., the date the permanent worsening begins. (b) Findings [41] The Panel has reviewed the evidence presented in this appeal and has also considered the submissions made by the worker s representative. The Panel finds that the worker s accident of November 18, 2009, did not result in a new permanent injury to the low back. Accordingly, the Panel denies recognition of a permanent impairment or entitlement to a NEL assessment under that claim. [42] The Panel finds that the November 18, 2009, accident resulted in a permanent exacerbation or aggravation of the worker s previous permanent impairment sustained in the workplace accident of March 29, As a consequence, the worker suffered a significant deterioration in this pre-existing permanent impairment, and the Panel finds that the worker has entitlement to a redetermination of his previous NEL award. [43] Further, the Panel finds that the worker has entitlement to additional LOE benefits under the March 29, 2005, claim, specifically for the period from March 2011 to November 2011, and from November 2012 onwards until the worker s NEL redetermination takes place. Thereafter, the Panel concludes that the worker s future LOE benefit level should be reviewed, based on the results of a FAE. The reasons for the Panel s decision are set out below. [44] In his testimony, the worker briefly described his medical condition and employment history following his first injury in March 2005, and the consequences of his second injury in November The worker stated that after the first injury he experienced pain down his right leg and had difficulty walking. Following his back surgery in January 2006, he stated that he generally felt O.K. Although he had some pain, he stated that he no longer had constant leg pain. [45] The worker stated that he returned to employment, with a new employer, in August 2006, and worked in a large retail store for about two to three months. Subsequently, he worked in the Parts Department at an auto dealership for approximately six months. After a period of unemployment, he trained as a driver and obtained a license to drive a transport truck. After about six months, the company he was working for went bankrupt and he eventually acquired a job as a dump truck driver, the job that he was performing at the time of his November 2009 accident. The worker stated that he had not been experiencing any back problems prior to that accident. He stated that immediately following his second accident, the injury felt the same as it did after the first accident, with back pain accompanied by right leg pain. [46] The worker stated that he has not worked again since the November 2009 injury. He stated that after his second surgery in February 2012 his back seemed to be improved for a time, and he underwent physiotherapy treatment, ending about September However, his severe back and leg pain returned again. The worker stated that he had applied for Canada Pension Plan (CPP) disability benefits around August 2011, and was successful on his first attempt, with benefits commencing from December (1) Entitlement for a NEL assessment/redetermination [47] The Panel notes that following the worker s injury on March 29, 2005, low back surgery was performed on January 4, 2006, a permanent impairment was recognized and permanent restrictions were identified for the low back. The worker s NEL medical assessment took place

8 Page: 7 Decision No. 1533/13 on July 12, 2006, and a 31% NEL award was made in October The clinical findings in the NEL assessment included 20 degrees of forward flexion, zero degrees of extension, eight degrees of right lateral flexion and five degrees of left lateral flexion (all measurements taken from the neutral position). A neurological deficit affecting the S-1 nerve root was noted. [48] The worker found employment in a retail store in August 2006, and testified that he subsequently worked in an auto dealership and as a highway transport driver prior to his job as a dump truck driver, the job in which he again injured his low back on November 18, During the three-year period from October 2006 to November 2009, there are no medical reports in the Case Record and no indication that the worker required further medical treatment for his back. The worker confirmed in his testimony that he had not experienced problems with his back during this time. [49] The workplace accident of November 18, 2009, resulted in low back and right leg pain, described by the worker in his testimony as feeling the same as the pain he experienced from his previous injury in March A CT scan of the lumbar spine on November 24, 2009, is compared with a similar previous examination of May 20, 2005, and the report comments as follows: There are multilevel abnormalities with mild disc bulging and facet joint osteoarthritis. The facet joint osteoarthritis has progressed. The changes at the L5-S1 level are difficult to evaluate as to whether they are predominantly due to postsurgical scarring or whether there is recurrent or persistent mild disc herniation. In either case there appears to be no more than mild potential compression of the right Si nerve root. [50] The worker s family doctor, Dr. Kilmartin, continued to indicate that the worker was unfit to return to work during early A multidisciplinary health care assessment conducted on March 30, 2010, by Dr. Clark, an orthopaedic specialist, and P. Woodley-Vooys, a physiotherapist, confirmed that in November 2009 the worker had aggravated his underlying low back condition stemming from a 2005 injury. The assessment report also confirms that the worker was still not fit for work, and that full recovery was not anticipated. [51] The report on an MRI performed on April 8, 2010, reveals evidence of a small disc annulus protrusion at L5-S1 in contact with the anterior margin of the thecal sac and the right-sided Si nerve root sheath as it emerges out of the thecal sac. The report also notes indications of mild epidural fibrosis in the right epidural space, regarded as in keeping with slight postsurgical scarring. [52] On July 23, 2010, Dr. Kilmartin wrote to the Board, attaching clinical notes from a visit on July 9 which indicate that the worker was complaining of constant right leg and low back pain. Dr. Kilmartin provides a diagnosis of discogenic back pain, poss (sic) Rt. SI joint disruption secondary to back pain. The doctor also states that in the absence of any significant change in his condition, I do not think he is fit to return to work in the near future. [53] The multidisciplinary health care assessment Final Summary report was submitted by Dr. Clark on August 10, It indicates that recent x-rays of the worker s lumbar spine, pelvis and hips are normal and recommends no further treatment and no restrictions. The worker s diagnosis indicates dural adhesions and post laminectomy and discotomy, but also references degenerative disc disease of the cervical spine. [54] A Board memorandum, dated August 25, 2010, states that the physiotherapist involved in the worker s multidisciplinary assessment had indicated that the worker s dural adhesions (scar

9 Page: 8 Decision No. 1533/13 tissue from his earlier surgery) were affecting the nerves in his back, causing increased pain and affecting function. The physiotherapist is also reported to have indicated that it was reasonable to assume that the worker s degenerative disc disease would not be prominant (sic) without having had the prior surgery. From August 26, 2010, the worker s LOE benefits continued, but were paid under the March 29, 2005, claim. [55] The worker had visited Dr. Krete, a physiatrist, in October 2010 for his longstanding low back and leg pain. When the worker continued to experience severe back pain, and also began to develop neck pain in early 2011, Dr. Kilmartin again referred the worker to Dr. Krete for a follow-up visit. A letter from Dr. Kilmartin to the Board on April 7, 2011, reaffirms the worker s daily chronic and severe pain, indicates that the worker was currently taking Oxycocet for pain relief and states that the worker is unable to work because of pain. [56] Dr. Kilmartin s clinical notes for the period from February to December 2011 indicate that the worker made regular visits to the doctor during this time for his low back and leg pain. The clinical notes appear to indicate a continuation and/or worsening of the worker s pain symptoms throughout 2011, including a number of changes in the worker s prescribed pain medications in an attempt to find more effective pain relief without troublesome side-effects. The worker was referred to a Pain Management Centre and Dr. Kilmartin also submitted a medical assessment in August 2011 in conjunction with the worker s application for CPP disability benefits. In his testimony to the Panel, the worker confirmed that this application for benefits was granted. [57] On October 17, 2011, an MRI of the worker s lumbar spine was compared with a previous MRI performed on April 8, 2010, and a CT scan from November 24, The MRI report indicates a larger disc/osteophyte at L5-S1 than previously, extending in the right paracentral and lateral regions and encroaching on the proximal foramen on the right side. In addition, the lesion is reported to be contacting and probably mildly compressing the right S1 nerve root and it just mildly indents the thecal sac. The L5-S1 disc protrusion is described as having worsened since 8 April [58] On December 8, 2011, the worker was seen again by Dr. Seligman, the orthopaedic surgeon, for the first time since the doctor had performed the worker s low back surgery in Dr. Seligman confirms that the worker had suffered a recurrent disc herniation at the right L5-S1 level, and comments that this is certainly a recurrence of his WSIB injury. Although the doctor mentions the original injury and surgery in 2006, as well as the worker s subsequent injury in 2009, from its context in the letter the Panel interprets the reference to his WSIB injury as a reference to the original (2005) injury. [59] The worker saw Dr. Seligman for a follow-up visit on January 12, 2012, when the doctor agreed to proceed with a right L5-S1 laminectomy and discectomy to remove the recurrent disc. The back surgery took place on February 29, 2012, when the doctor discovered that the worker had a large sequestered disk [with] many fragments. [60] Following a detailed review of the worker s medical history, particularly since his second workplace injury in November 2009, the Panel arrives at a number of conclusions, based on the evidence presented. The worker s back problems since 2009, culminating in surgery in February 2012, are a result of the interaction between the worker s permanent impairment stemming from the earlier March 2005 injury and the injury sustained on November 18, Both injuries could be said to have contributed in some way to the worker s current back

10 Page: 9 Decision No. 1533/13 problems. However, the Panel finds it implausible that the more recent of these injuries would have resulted in a permanent impairment, in its own right, if not for the worker s pre-existing low back impairment. [61] The Panel finds that the evidence does not support the recognition of a separate permanent impairment arising out of the November 18, 2009, accident. The injury sustained at that time affected the right L5-S1 level of the lumbar spine, just as the original 2005 injury did. Dr. Seligman s report of December 8, 2011, confirms this and appears to the Panel to indicate that the second injury aggravated or precipitated a recurrence of the disc herniation that had led to the worker s 2006 low back surgery and resulted in a 31% NEL award. The issue then becomes whether the aggravation/recurrence in November 2009 produced a deterioration in the worker s permanent impairment sufficient to justify a redetermination of the original NEL award. [62] In the Panel s view, the history of the worker s low back condition since November 2009 suggests very strongly a persistent and gradually worsening intensity in the pain experienced by the worker from the low back itself and referred into the right leg. There is no indication in the various medical reports between November 2009 and October 2011 that the worker s back condition improved at any stage. Dr. Kilmartin, the worker s family doctor, maintained throughout that the worker was unable to return to work due to his pain level, and the reports seem to indicate that an increasing volume and/or strength of prescribed medications was regarded as necessary to exercise effective control over the worker s pain symptoms. [63] In addition, the various imaging tests (viz., the CT scan of November 24, 2009; the MRI of April 8, 2010; and the MRI of October 17, 2011) suggest to the Panel that some progressive deterioration was taking place during this period in the condition of the worker s lumbar spine, particularly at the L5-S1 level. [64] In the Panel s opinion, the most recent MRI of October 17, 2011, clearly confirms that a significant deterioration had occurred in the condition of the worker's low back since the NEL assessment conducted in 2006, in terms of the size of the disc herniation, the degree of compression of the S1 nerve root and the progression of degenerative changes in the lumbar spine. While it seems to the Panel possible that not all of the degenerative changes are necessarily attributable to the worker s compensable injury, the comments by the physiotherapist involved in the worker s multidisciplinary assessment in 2010 suggest that the injury nevertheless made a significant contribution to their progression. Dr. Seligman s comments in his December 8, 2011, report also confirm that the worker s 2005 injury played a prominent role. [65] In 2006, when the NEL assessment took place, the worker had already had his first back surgery, his recovery seemed to be progressing well and he was able to resume employment within a month of the assessment. In October 2011, he was unable to work, had been experiencing severe low back and leg pain for an extended period of time, and was facing the prospect of further back surgery with an uncertain prognosis for the future. [66] The most recent report in the Case Record from Dr. Kilmartin is dated December 20, 2012, i.e., approximately 10 months after the worker s second back surgery, in February The doctor indicates that the worker continues to experience severe lower back pain, he is limited in his ability to sit or stand for prolonged periods, and he is unable to do heavy lifting or repetitive bending. Dr. Kilmartin notes that the worker has not improved as he had after his first surgery in 2006.

11 Page: 10 Decision No. 1533/13 [67] The Panel notes that Board policy (OPM Document No ) provides that the WSIB may consider a request for a NEL redetermination if three criteria are met. The worker clearly meets two of these criteria (viz., a previous non-zero permanent impairment, and a lapse of more than 12 months since the last NEL decision). The remaining criterion requires that the worker s condition has deteriorated significantly since the last NEL determination. A significant deterioration is defined as a marked degree of deterioration in the work-related impairment that is demonstrated by a measurable change in objective clinical findings. [68] The policy provides that the medical reports and findings on which evidence of a significant deterioration may be evaluated may include factors such as range of motion findings, complications in the worker s medical condition, evidence of neurological dysfunction, an increase in the worker s health care treatment and information about lost time from work. Where necessary, decision-makers may request additional health care information or request that the worker be examined by a specialist. [69] The Panel recognizes that not all of the recent medical information may point to a significant deterioration in the worker s condition. For example, some of the findings on range of movement provided by Dr. Kilmartin in his December 20, 2012, report appear to suggest improvement in the worker s findings since the NEL assessment. Forward flexion is given as 30 degrees and extension as 15 degrees by Dr. Kilmartin, whereas the corresponding figures in the NEL medical assessment are 20 degrees and zero, respectively. The Panel notes that these are the only two range of movement measures that are common to both reports and can, therefore, be compared. [70] Despite this, the Panel is satisfied that the information available in the medical documentation as a whole is sufficient to establish that a NEL redetermination is justified. The MRI findings, in particular, demonstrate that a significant deterioration had occurred in the worker s lumbar spine, especially at the L5-S1 level, by October The evidence suggests to the Panel that this deterioration occurred over a period of time, although the process of deterioration was almost certainly progressed by the workplace injury of November 18, [71] The Panel experienced some difficulty in applying Board policy to the determination of a PWD in this case. In the Panel s view, the evidence suggests that the work-related impairment may have gradually worsened over time, through the progression of the degenerative changes occasioned by the surgery in 2006, as well as the consequences of the November 2009 injury. However, there is no medical documentation of this until after the November 18, 2009, injury. The first CT scan following this injury, on November 24, 2009, reveals evidence of a progression of the worker s osteoarthritis since 2005, but the changes at L5-S1 are described as difficult to evaluate (i.e., with respect to the impact of post-surgical scarring, as opposed to recurrent/persistent mild disc herniation). [72] Thereafter, the medical documentation suggests further worsening in the worker s work-related impairment up to the point where the MRI of October 17, 2011, raises the issue of the need for further surgical intervention. The Panel finds, on a balance of probabilities and with the benefit of hindsight, that the worker s work-related impairment gradually worsened, and the permanent worsening or deterioration began with the injury in November On this basis, and in accordance with Board policy, the Panel determines that the most appropriate PWD is November 18, 2009.

12 Page: 11 Decision No. 1533/13 (2) Entitlement to further LOE benefits [73] Following his accident on November 18, 2009, the worker received LOE benefits from November 19, 2009, to August 25, 2010, under his November 18, 2009, claim. At that point, the Board considered the low back injury sustained on November 18, 2009, to have resolved. Any continuing low back problems were regarded as the responsibility of the worker s March 29, 2005 claim. LOE benefits were continued under the latter claim from August 26, 2010, but this decision was later reversed by the Board and characterized as being in error. The LOE benefits were ended on March 25, 2011, with the benefits paid since August 26, 2010, treated as an unrecoverable debt. [74] LOE benefits were subsequently restored from October 17, 2011, a date which was described by the Board Case Manager as the actual worsening date. This was the date of the MRI which indicated that the worker s L5-S1 disc protrusion had worsened since an earlier MRI in April The LOE benefits continued during the period covered by the worker s second low back surgery in February 2012 and the subsequent period allowed for the worker s recovery, before the LOE benefits were finalized on November 13, At that date, the Board determined that the worker s recovery was complete and he had returned to his 31% NEL level. [75] The worker s appeal issue for the payment of additional LOE benefits, therefore, essentially involves the period from March 25, 2011, to October 17, 2011, and the period from November 13, 2012, onwards. [76] The Panel has found that the worker did not return to his previous 31% NEL level at any time during the period from November 18, 2009, to November 13, In particular, the Panel finds that the worker was not able to work from March 25, 2011, to October 17, 2011, due to his low back impairment. His condition had not improved, but rather had continued to deteriorate further, after his LOE benefits were ended in March In the Panel s view, the medical evidence supports that the worker had still not returned to his 31% NEL level as of November 13, 2012, when the LOE benefits were finalized. [77] The Panel finds that the worker has entitlement to additional LOE benefits for the period from March 25, 2011, to October 17, 2011, and from November 13, 2012, onwards, until such time as a NEL redetermination takes place. The Panel directs that following the NEL redetermination, the Board is to recalculate the quantum of the worker s LOE benefits thereafter, as necessary, with reference to the results of an FAE conducted in order to establish the worker s future work capacity and restrictions. [78] The Panel notes that the Case Record documentation appears to indicate that the worker s LOE benefits after August 26, 2010, were paid under the worker s March 29, 2005, claim, with the worker s earnings, used to calculate the level of benefits, based on his earnings at the time of the November 2009 injury. The earnings basis used is referenced in a memorandum dated September 7, 2010 (M#16, under the November 18, 2009, claim file). [79] When LOE benefits were restored after October 2011, they were initially paid from February 29, 2012 (the date of the worker s second surgery), but were subsequently extended back to October 17, The earnings basis used for this LOE benefit calculation is described in a letter from the Case Manager to the worker, dated March 8, The letter clearly states that the earnings used to calculate the LOE benefits were the worker s last earnings from 2009.

13 Page: 12 Decision No. 1533/13 [80] The Panel observes that the worker had established a new employment and earnings pattern during the period when he was employed between 2006 and Although the worker s post-2009 LOE benefits are attributed to the March 2005 claim, since the worker s injury is in effect a recurrence of the original injury in that claim, the earnings that were interrupted by the recurrence were the worker s 2009 earnings. In the Panel s opinion, continued use of the 2009 earnings basis is fair and appropriate for the calculation of the worker s LOE benefits after 2009, including the LOE benefits awarded as a result of the Panel s decision in this appeal.

14 Page: 13 Decision No. 1533/13 DISPOSITION [81] The appeal is allowed in part. [82] The worker has entitlement to a redetermination of the NEL award for the low back under the claim with an accident date of March 29, [83] Recognition of a permanent impairment and entitlement to a NEL assessment for the low back under the November 18, 2009, claim is denied. [84] The worker has entitlement to further LOE benefits beyond those already paid, specifically for the period from March 25, 2011, to October 17, 2011, and from November 13, 2012, until the NEL redetermination takes place. The LOE benefits payable thereafter are referred to the Board for determination, based on the results of a Functional Abilities Evaluation. DATED: September 11, 2014 SIGNED: I. Welton, V. Phillips, D. Broadbent