Decision Nº Released_Decisions from Workplace Safety and Insurance Appeals Tribunal of Ontario, 20-04-2016

• Judge: S. Peckover: Vice-Chair
• Judgment Date: 20 April 2016
• Judgement Number: Released_Decisions
• Hearing Date: 18 February 2016
• Issuer: Workplace Safety and Insurance Appeals Tribunal of Ontario

WORKPLACE SAFETY AND INSURANCEAPPEALS TRIBUNAL

Decision No. 424/16

BEFORE: S. Peckover: Vice-Chair

HEARING: February 18, 2016 at

DATE OF DECISION: April 20, 2016

NEUTRAL CITATION: 2016 ONWSIAT 1045

DECISION UNDER APPEAL: WSIB decision dated September 18, 2014

APPEARANCES:

For the worker: S. Oliverio,

For the employer: (Closed)

Interpreter: Not Required

REASONS

1. Introduction

1. The worker appeals the decision of (ARO) dated September 18, 2014. That decision concluded that the worker’s non-economic loss (NEL) award had been appropriately set at 32%, and that this accurately represented the worker’s permanent impairment in the low back.

(ii) Issue

2. The issue to be determined in this case is whether the worker’s NEL award was correctly assessed at 32% on redetermination.

(iii) Background

4. The worker, a tile installer born in 1970, injured his low back while carrying a sheet of boarding on a stairway. As he attempted to turn in the stairs, he felt the onset of low back pain.
5. The worker was granted a NEL of 25% on September 25, 1994.
6. The worker has undergone surgery on his back twice, the first time for a lumbar laminectomy decompression for S1 radiculopathy secondary to osteophytosis and degenerative disc disease. The surgery was repeated on March 25, 2011. Neither was successful.
7. A NEL redetermination was approved, based on a medical report from general practitioner Dr. Galea dated January 31, 2014. The worker’s NEL therefore was increased to 32%. The worker was advised of this development in a decision letter dated May 9, 2014. The worker objected.
8. At the Appeals Services Division, in a decision dated September 18, 2014, the ARO reviewed the available evidence, and found as follows:

In reviewing the calculations performed by the NEL Clinical Specialist, Non Economic Loss evaluation rating date of May 9, 2014, the calculations are correct and the appropriate tables were applied. Comparing the report and the current medical documentation, and the objective findings documented by the attending physicians, to the categories listed, pertaining to the AMA Guide, the impairment assessed accurately reflects the worker’s level of permanent impairment. In addition, appropriate calculations were taken into account and the surgeries the worker underwent. In addition, comparing the results of the NEL evaluation results and the reports of the treating physician, essentially there are no discrepancies and I am satisfied with the accuracy of the reporting. In conclusion, the NEL quantum was appropriately awarded and increased from 25% up to 32%.

9. The worker appeals from this decision.

(iv) Law and policy

10. 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.
11. “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.
12. “Permanent impairment” means impairment that continues to exist after the worker reaches maximum medical recovery.
13. 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, 3^rd edition (revised) (the AMA Guides). The Board has adopted specific rating schedules for impairment due to psychological disability, fibromyalgia, chronic pain and other conditions.
14. 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. 18-05-09 “Redeterminations” defines the term “significant deterioration” as follows:

A...