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

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

--SUMMARY--

Decision No. 424/16 20-Apr-2016 S.Peckover

• Permanent impairment {NEL} (degree of impairment) (back)
• Permanent impairment {NEL} (rating schedule) (AMA Guides)

The worker suffered a low back injury, for which he was granted a 25% NEL award, later increased to 32%. The worker appealed a decision of the Appeals Resolution Officer confirming the 32% award.

There were three reports from which to determine range of motion: a REC report from June 2012; a Function and Pain Program (FPP) report from August 2012; and a report from a neurosurgeon from November 2013.

The worker proposed using the lowest ratings from each of the reports. However, the Vice-Chair noted that each report contains a snapshot of the range of motion findings on a particular day and that range of motion findings can be somewhat subjective. One approach, taken in some Tribunal decisions, is to use the figures from the report closest to the date on which MMR was achieved. In this case, that date was in March 2011, so that the findings from the REC report would be use with that approach. Another approach would be to use the findings from the report that seems most complete and accurate. In this case, the report from the neurosurgeon was incomplete. The REC report and the FPP report were similar but with slight differences. The FPP findings would result in the highest possible NEL rating. That was the report used by the Board.

The Vice-Chair confirmed the range of motion findings as determined by the Board.

Regarding peripheral nervous system disorders, the Vice-Chair found that the Board used Table 49, with Table 11 to calculate the percentage of impairment of the left leg. However, the Board included a rating only for nerve root impairment at L5. In addition, there was nerve root impairment at S1. The worker was entitled to a rating for the S1 nerve root impairment.

The appeal was allowed in part.

6 Pages

References:	Act Citation WCA Other Case Reference [w2416s]
Style of Cause:
Neutral Citation:	2016 ONWSIAT 1045

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

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...