WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1041/16 BEFORE: K. Iima: Vice-Chair HEARING: April 20, 2016 at Toronto Written DATE OF DECISION: July 8, 2016 NEUTRAL CITATION: 2016 ONWSIAT 1821 DECISION UNDER APPEAL: WSIB Appeals Resolution Officer (ARO) decision dated February 3, 2015 APPEARANCES: For the worker: For the employer: Interpreter: S. Cirillo, Paralegal 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
Decision No. 1041/16 REASONS (i) Issue [1] The issue under appeal is whether the worker is entitled to a redetermination of her non-economic loss (NEL) award for the low back, rated at 24% in 2002. (ii) Background [2] The worker was employed as a dietary aide. On September 12, 1999, she lifted a case of milk and felt pain in her low back. The Board allowed entitlement for a low back strain injury with L5 radiculopathy, and subsequently recognized a permanent low back impairment. Following a NEL medical assessment on October 25, 2001, the worker received a NEL award of 24% in February 2002. [3] The worker requested a NEL redetermination in April 2013, on the basis that her lower back condition had deteriorated significantly since her initial NEL assessment. On August 24, 2012, the Board Case Manager denied the worker s request; that decision was upheld by the ARO in February 2015. [4] The worker now appeals this issue to the Tribunal. This appeal was selected for a written hearing pursuant to the Tribunal s Practice Direction on Written Appeals. The worker s representative relies upon written submissions dated July 8, 2015 1. (iii) Law and policy [5] The Workplace Safety and Insurance Act, 1997 (the WSIA) is applicable to this appeal. All statutory references in this decision are to the WSIA, as amended, unless otherwise stated. [6] Section 46 of the WSIA provides that if a worker s injury results in permanent impairment, the worker is entitled to compensation for non-economic loss. The amount of the NEL award is calculated based upon the degree of the worker s permanent impairment, expressed as a percentage of total impairment. [7] 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 AMA Guides rate back impairments by assessing reduced range of motion, specific disorders of the spine (fractures, intervertebral disc or soft tissue lesions, surgeries, etc.), and any associated neurological deficits in the spine. [8] 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. 1 The submissions, dated July 8, 2015, appear to have been faxed to the Tribunal on November 4, 2015; nothing turns on this difference in dates.
Page: 2 Decision No. 1041/16 [9] Section 126 requires the Tribunal to apply Board policy when making its decisions. Board policy on NEL redeterminations, Operational Policy Manual (OPM) Document No. 18-05-09, 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. [10] In order to evaluate whether there is evidence of a significant deterioration, decision-makers are directed to compare the most recent medical findings with the clinical condition at the time of the last NEL determination. (iv) The worker s condition at the NEL assessment in October 2001 [11] Following the Board Medical Consultant s opinion that a permanent impairment was likely, the Board referred the worker for a NEL assessment, based on the compensable condition of lumbar strain with L5 radiculopathy. [12] On October 25, 2001, the worker attended a NEL assessment with Dr. R. Maggisano, who noted that the worker complained of low back pain, radiating to her left lower leg. She described the pain as dull, severe, and constant, and ranged in intensity from 8 to 10 out of 10; movement was an aggravating factor. The worker s pain medication at the time included Rofecoxib (a nonsteroidal anti-inflammatory drug) and Tylenol 2. Her lumbar range of motion was 15º to 29º of flexion from neutral position, 10º of extension from neutral position, and 10º for both right lateral flexion and left lateral flexion from neutral position. [13] In accordance with this assessment and the AMA Guides, the NEL Clinical Specialist rated the worker s reduced range of motion at 18%, and her spinal disorder (i.e., unoperated lesion with injury and ongoing pain and rigidity, with or without muscle spasm, associated with degenerative changes) at 7%. As required by the AMA Guides, these ratings were combined using the Combined Values Chart, for a whole person impairment rating of 24%. (v) Recent medical documentation regarding the worker s condition [14] The worker was referred to neurosurgeon Dr. I. B. Schacter for an assessment. In his report of February 26, 2014, Dr. Schacter documented the following complaints and findings: [The worker] still continues with pain in the lower back and she says that if she can walk for 5 minutes she has to stop because of pain in her legs. She told me that this back pain is constant at an intensity of about 8/10. She says that sitting for 20 minutes aggravates the pain. She has some easing symptoms when recumbent but she is interrupted during the night be [sic] pain. There was no spasm in her lumbar musculature and forward flexion at the waist was carried out to fingertips reaching kneecaps, a measurement of 30 degrees. Extension was limited as well to 16 degrees. When she was seated on the edge of the examining table I could fully extend her left knee but she complained of pain which starts at the knee and radiates up into the back and on the right at full extension she had similar symptoms but to a lesser degree. When she was lying on her back straight leg raising was 45 degrees on the right limited by back pain and on the left at 35 degrees the movement was also limited by increased back pain. There was no atrophy in the calf muscles each side measuring 15.
Page: 3 Decision No. 1041/16 [15] Dr. Schacter noted that the worker was taking Tylenol 2 for pain management. In light of the worker s reported symptoms, the neurosurgeon ordered an MRI of the worker s lower back to assess the actual spinal pathology. In Dr. Schacter s opinion, the worker did not require surgical intervention, but he recommended a regular exercise program for muscle toning and to help improve her pain. [16] The MRI report of the worker s lumbar spine, dated March 22, 2014, indicated the presence of mild multilevel degenerative changes with no focal disc herniation, and a developmental lumbosacral S1 transitional vertebra. [17] Dr. Schacter reviewed the MRI study and provided the following opinion: On a clinical basis this patient s problem is strictly lower back pain and based on the findings of the MRI study there is nothing definitive that would indicate the need for surgical consideration. She does however, in my view, require supportive care and treatment for her lower back symptoms. (vi) Analysis [18] The issue to be determined in this case is whether there has been a marked degree of deterioration in the worker s compensable condition of a low back strain injury with L5 radiculopathy, as demonstrated by a measurable change in objective clinical findings. [19] In his written submissions dated July 8, 2015, the worker s representative submitted that the worker s recent complaints of increasing symptoms, objective evidence of deterioration, the passage of some twelve years since her initial NEL assessment and recent reduced mobility supported a finding that the worker s low back condition had significantly deteriorated since her NEL rating in 2002. However, I find there is no objective evidence of deterioration or reduced mobility before me. In comparing the 2001 and 2014 evidence, the worker reported constant pain at similar levels of intensity; in fact, it appears the worker s level of pain in 2014 had improved somewhat as she reported pain at an intensity of 8 out of 10, whereas in 2001 she reported pain at an intensity ranging from 8 to 10 out of 10. This improvement in pain intensity is further supported by the fact that the worker was taking both Tylenol 2 and Rofecoxib for pain in 2001; in 2014, she was only taking Tylenol 2 for pain. I note, however, that even if the worker had intended to convey that she was experiencing an increase in symptoms, a worsening of subjective symptoms such as pain does not in and of itself warrant a NEL redetermination, particularly in respect of an organic condition 2 ; rather, there must be evidence of a measurable change in objective clinical findings. [20] In comparing the range of motion measurements from the worker s 2001 NEL assessment and the worker s most recent range of motion measurements, as reported by Dr. Schacter, I agree with the ARO that the evidence does not support a significant deterioration in the worker s lower back condition, but rather suggests a slight improvement in the worker s flexion and extension. Although Dr. Schacter did not provide range of motion measurements for right lateral flexion and left lateral flexion for comparison with the 2001 NEL assessment, in my view, the totality of the clinical findings reported by Dr. Schacter does not establish a significant deterioration in the worker s lumbar mobility or low back condition in general. 2 A number of Tribunal decisions have found that an increase in the level of pain reported is insufficient to establish a significant deterioration in an organic condition such as to warrant a NEL redetermination see, for example Decision Nos. 136/07, 2246/08, 454/15, and 171/16.
Page: 4 Decision No. 1041/16 [21] Mr. Cirillo also submitted that the degenerative changes in the worker s back have been accelerated or aggravated by her compensable condition, although he acknowledged that the Board had opted to view degenerative changes as part of the normal aging process and not part of the compensable disability. Notwithstanding the fact that the worker s compensable condition, as accepted by the Board, was a low back strain injury with L5 radiculopathy, the mild degenerative changes noted in the worker s CT scan report of November 1999 appear to have been taken into account in the worker s NEL rating, given the 7% rating included for a spinal disorder (as per Table 53 II C of the AMA Guides). [22] Therefore, as the evidence before me does not demonstrate a measurable change in objective clinical findings, I conclude that the worker has not had a significant deterioration in her compensable condition since her last NEL assessment in 2001. Accordingly, she is not entitled to a redetermination of her NEL award.
Page: 5 Decision No. 1041/16 DISPOSITION [23] The appeal is denied. DATED: July 8, 2016 SIGNED: K. Iima