WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 2192/16

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 2192/16 BEFORE: E. Kosmidis: Vice-Chair HEARING: August 30, 2016 at Toronto Written DATE OF DECISION: October 25, 2016 NEUTRAL CITATION: 2016 ONWSIAT 2891 DECISION(S) UNDER APPEAL: WSIB Appeals Resolution Officer (ARO) dated February 27, 2015 APPEARANCES: For the worker: For the employer: Interpreter: Self-represented 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. 2192/16 REASONS (i) Introduction [1] The worker appeals the decision of Appeals Resolution Officer, dated February 27, [2] The ARO rendered a decision based upon the written record without an oral hearing. That decision concluded that the worker was not entitled to an increase in the quantum of her non-economic loss award. The ARO concluded that there was insufficient evidence to support a significant deterioration in the worker s condition. [3] The Tribunal has determined that this appeal is suitable to proceed by way of written submissions. The worker provided the Tribunal with her written submissions dated March 28, [4] The employer is not participating in this appeal. (ii) Issues [5] The issue is whether the worker is entitled to a redetermination of her NEL award due to a significant deterioration of her condition. (iii) Background [6] This claim arises out of a workplace injury that occurred on September 30, The worker injured her neck and right shoulder while working in a cafeteria. The Board initially accepted entitlement for a right shoulder strain. However, in 1997, the Board subsequently also accepted entitlement for a neck injury. The Board determined that the worker had sustained a permanent impairment to her neck. The Board accepted a diagnosis of cervical myalgia with annular bulging at C5-6 and C6-7 with no herniation or nerve root impairment. [7] After a medical assessment, the worker was awarded a 12% NEL in The diagnosis at the NEL assessment was cervical myalgia with annular bulge at C6-7 with no herniation or nerve root entrapment. [8] As a result of an ARO decision dated March 23, 2012, the worker was granted a NEL redetermination for her compensable neck impairment. The diagnosis was the same, a cervical myalgia with annular budge at C5-6 and C6-7. Based on a paper review, effective April 23, 2012, the worker received an additional NEL award of 3% NEL. The worker s NEL was therefore increased to 15%. [9] In 2014, the worker requested a NEL redetermination. In a decision dated July 28, 2014, the case manager concluded that the medical evidence did not support a finding that the worker s neck condition had deteriorated since the worker s last NEL assessment. [10] The worker appealed this decision. The worker s appeal was dismissed by the ARO. The worker now appeals this decision. (iv) Law and policy [11] 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. In view of the worker s accident date, the pre-1997 Act is applicable in this case.

3 Page: 2 Decision No. 2192/16 [12] 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. [13] Permanent impairment means impairment that continues to exist after the worker reaches maximum medical recovery. [14] 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). [15] Section 42(21) provides that if a worker with a permanent impairment 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: 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. [16] Decision makers are directed to compare the most recent medical findings with the worker s clinical condition at the time of the last NEL determination. [17] This Policy also states that workers applying for a NEL redetermination must be examined by their treating physician. The physician then reports to the WSIB on the worker s clinical history, any measureable changes in the worker s condition, and any new medical findings. In accordance with Policy , this report may include: (v) 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 health care treatment, and Information about lost time from work. Analysis [18] The worker submitted that she was entitled to a NEL redetermination based on the medical evidence which showed that her range of motion had decreased. She relied upon the April 9, 2015 report from her doctor and the March 13, 2015 report from her massage therapist which noted a decrease in her range of motion. [19] I have carefully reviewed the medical evidence in the claim file and considered the worker s submissions. The worker s appeal is denied. After a review of the medical evidence, I have concluded that the worker s symptoms are related to her noncompensable degenerative condition which has progressed over the years. My reasons including a summary and analysis of the medical evidence follow. [20] A CT report of the worker s cervical spine dated July 22, 1996 notes that there is evidence of a small broad based central disc protrusion at C5-6 and annular bulging at C6-7.

4 Page: 3 Decision No. 2192/16 There was no evidence to suggest obvious impingement of nerve root structures or compression of the spinal cord at either level. The remainder of the study was unremarkable. [21] The worker was seen by Dr. D. Taylor, an orthopaedic surgeon. In his report dated January 24, 1997, it was his opinion that the worker has cervical myalgia. However, in the absence of nerve root findings or impingement, the worker was not a surgical candidate. [22] In a decision dated May 16, 1997, the Board accepted initial entitlement for a neck condition arising out of the September 30, 1992 workplace accident. In that same decision, the Board also determined that the worker had sustained a permanent impairment. These decisions were based on a medical opinion from the Board s medical consultant, Dr. Heckadon dated May 12, [23] Dr. Heckadon noted that the worker had continued to complain of neck problems since the accident date. He references the diagnosis of cervical myalgia from Dr. Taylor. The worker s ongoing complaints to the neck and the continuity of the worker s symptoms led Dr. Heckadon to conclude that the worker s neck complaints were compatible with the accident history and that a permanent impairment for the neck was also evident. [24] Accordingly, the worker was assessed for a NEL in The diagnosis was cervical myalgia with an annular bulge at C6-7 with no frank herniation or nerve root impairment. The worker s rotation of movement (ROM) was recorded as: Flexion 60 degrees Extension 50 degrees Right lateral flexion 45 degrees Left lateral flexion 45 degrees Right rotation 40 degrees Left rotation 40 degrees [25] The worker was awarded a 12% NEL for her neck. [26] An MRI report dated September 6, 2006 showed a progression of multi level degenerative disc changes involving disc herniations and bulges at various levels of the cervical spine with no compression of the cord. A disc herniation is noted at C3-4. A moderate disc bulge is noted at C4-5. The findings with respect to C5-6 and C6-7 did not significantly change from [27] In his report dated September 8, 2006, Dr. McIntyre, the worker s then family doctor, notes that the worker is complaining of severe neck pain. Dr. McIntyre provides a diagnosis of arthritis and osteophytic nerve root impingement. [28] The worker was also assessed by Dr. Death, a physiatrist. His report dated May 28, 2008, provides a diagnosis of cervical sprain probably due to degenerative changes and disc herniation. [29] The worker had another MRI and the report is dated September 1, The MRI report states: At C2-C3, discs foramen and facets are normal. At C3-4, small midline disc protrusion is seen that just impresses upon the ventral aspect of the cord. No alteration in cord signal is seen. Right foramen is patent. Marginal

5 Page: 4 Decision No. 2192/16 osteophytes and facet hypertrophy narrow the left foramen and marginal osteophyte is in contact with the exiting left nerve root. At C4-C5, disc bulge is seen that does impress upon the ventral aspect of the cord. No alteration in cord signal is seen. Foramen are patent. At C5-C6, disc bulge with marginal osteophyte is noted. There is partial effacement of the CSF column ventral to the cord. Bilateral foraminal narrowing is noted more marked on the left side where marginal osteophyte is in contact with the existing nerve root. The exiting nerve root is displaced posteriorly and laterally by this. Marginal osteophyte is also in contact with exiting right nerve root at this level but the degree of displacement of the nerve root is not as marked, At C6-C7, disc bulge is noted without cord compromise. Both foramen are narrowed but exiting nerve roots are not compromised. [30] The overall impression is left-sided cervical spine degenerative changes. [31] The worker s physiotherapist in his Treatment Extension Request dated May 4, 2010 provides a working diagnosis of cervical degenerative disc. [32] In his report dated June 15, 2010, the physiotherapist states that the worker s rotation was 90% to the right and approximately 75% to the left. Extension was 50% and forward flexion was full. [33] In his July 21, 2011 report, the physiotherapist notes that the worker was at 80% flexion and 70% extension. Left side flexion was 40% and right side flexion was 80%. Left rotation was 70% and right rotation was 80%. The physiotherapist notes that the worker is being treated for a cervical nerve root impingement which creates referred pain and limitation of movement. The second condition is noted as being sterno costal inflamed joints on the left. These are conditions for which the worker has no entitlement under this claim. [34] The worker was granted a NEL redetermination as a result of an ARO decision dated March 23, The NEL redetermination in 2012 was based on review of the July 21, 2011 report from the worker s physiotherapist. The MRI report of 2010 was also considered by the NEL assessor as supporting a C5-C6 foramen narrowing and a C6-7 disc bulge. The diagnosis at that time was cervical myalgia with annular bulge at C5-6 and C6-7. There is no reference to nerve root impingement in this analysis. [35] The 2012 assessor relied on the ROM recorded in the July 21, 2011 report from the physiotherapist. The rotation of movement (ROM) recorded in the 2012 NEL assessment is: Flexion 36 degrees Extension 32 degrees Right lateral flexion 36 degrees Left lateral flexion 18 degrees Right rotation 72 degrees Left rotation 63 degrees [36] The worker had another MRI. The report dated September 19, 2014 notes: C1-2 and C2-3 no canal or foraminal narrowing. C3-C4 mild to moderate left osteophyte. No definite exiting nerve root impingement. There is mild canal stenosis.

6 Page: 5 Decision No. 2192/16 C4-5 Mild posterior disc osteophytes complex with mild canal narrowing. No foraminal narrowing. C5-6 moderate posterior disc osteophyte complex with moderate canal narrowing. This is contiguous with a moderate uncovertebral osteophyte on the left and mild to moderate osteophyte in the right. Mild compression of exiting left C6 nerve root not excluded. C6-C7 mild to moderate posterior disc osteophyte complex with mild canal narrowing. No significant foraminal narrowing. [37] In addition to the MRI report, the worker has also submitted two new medical reports dated April 3, 2014 and July 13, 2014, from Dr. S. Khan, the worker s family doctor since Both reports measure the worker s range of motion. [38] I have considered the ROM in these reports and compared them to the previous ROM findings used in the 2012 NEL redetermination. [39] In April 2014, the worker s ROM is measured by Dr. Khan as: Flexion 20 degrees Extension 15 degrees Right lateral flexion 15 degrees Left lateral flexion 10 degrees Right rotation 20 degrees Left rotation 20 degrees [40] On July 13, 2014, the worker s ROM is measured as: Flexion 10 degrees Extension 5-6 degrees Right lateral flexion 8-10 degrees Left lateral flexion 8-10 degrees Rotation 5-6 degrees [41] In the report dated July 13, 2014, Dr. Khan notes that the worker has increased her pain medication from 20 tablets every 60 days to 20 tablets every 30 days. Dr. Khan states that the worker s range of motion for the neck has gotten worse over time. [42] In his report dated October 16, 2014, Dr. Khan compares the findings between the 2010 and the 2014 MRI reports and notes that the multilevel degeneration disease has progressed with mild to moderate grade neural foraminal narrowing and mild canal stenosis at all the levels. [43] The April 9, 2015 report referenced by the worker in her written submission was prepared by a nurse practitioner covering Dr. Khan s practice during her absence. The nurse practitioner states that he reviewed Dr. Khan s chart. He listed the worker s cervical ROM for January 27, 2015 and March 13, 2015 as measured by the worker s massage therapist. I find that there is no significant change in the worker s ROM in 2015 when compared to the 2014 findings. This report also notes that a recent neurosurgical opinion confirms that the worker is not a surgical candidate. [44] In the final undated report from the worker s massage therapist, she also compares the two MRI reports and states that they showed some functional changes to her cervical spine at all levels.

7 Page: 6 Decision No. 2192/16 [45] While I acknowledge that the worker s range of motion continues to be affected, based on the findings in the two MRI reports and on Dr. Khan s opinion that the worker s degenerative disc disease has progressed to all levels of her cervical spine, I find that the worker s continuing symptoms are related to her noncompensable multilevel degeneration of her cervical spine. In referring back to the 1997 NEL assessment, the diagnosis was cervical myalgia with annular bulge at C6-7 with no frank herniation or nerve root entrapment. The 2012 redetermination relied on the 2010 MRI report which showed foraminal narrowing at C5-6 and a C6-7 disc bulge. [46] The 2014 MRI report confirms that the worker continues to have moderate foraminal narrowing at C5-6 that there has been no significant deterioration at C6-7 level. [47] Therefore, I conclude that the worker has not experienced a marked degree of deterioration in her compensable permanent condition, demonstrated by a measureable change in objective clinical findings, in comparison to her last NEL redetermination. The worker has not, on a balance of probabilities, suffered a significant deterioration in her compensable permanent impairment and she does not have entitlement to a NEL redetermination for her cervical myalgia with annular bulge at C5-6 and C6-7. [48] The worker s appeal is denied.

8 Page: 7 Decision No. 2192/16 DISPOSITION [49] The worker s appeal is denied. DATED: October 25, 2016 SIGNED: E. Kosmidis