WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 137/15

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 137/15 BEFORE: K. Jepson : Vice-Chair M. Christie : Member Representative of Employers F. Jackson : Member Representative of Workers HEARING: January 21, 2015 at Toronto Written DATE OF DECISION: February 20, 2015 NEUTRAL CITATION: 2015 ONWSIAT 422 DECISION UNDER APPEAL: WSIB Appeals Resolution Officer (ARO) K. Hille dated July 4, 2013 APPEARANCES: For the worker: For the employer: Interpreter: M. Beausoleil, Paralegal Not participating Not required 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. 137/15 REASONS (i) Introduction to the appeal proceedings [1] The worker appeals the decision of ARO K. Hille dated July 4, That decision confirmed that the worker s non-economic loss (NEL) award for her neck specifically, a cervical disc herniation at C6-7 was appropriately assessed at 16%. In arriving at this rating, the Board applied the AMA Guides to yield a prima facie impairment rating for the worker's neck of 22%, but went on to subtract 6% from this rating due to a finding that the work had a pre-existing non-compensable impairment of her neck. [2] The worker has no other NEL or pension awards from any other claims. [3] In conjunction with the appeal of the NEL decision, the worker had initially appealed to this Tribunal another decision of the Workplace Safety and Insurance Board (WSIB) (the Board) dated March 28, 2012 by ARO Glyn-Williams. That decision denied entitlement for cervical degenerative disc disease and cervical stenosis on the basis that these were not related to the worker's workplace activities. The decision also denied separate entitlement for the right shoulder. However, the worker's representative withdrew the appeal of these issues in correspondence the Tribunal dated September 16, 2014, leaving only the NEL quantum issue to be determined in this appeal. (ii) Issue [4] Since the basic calculation for the initial 22% permanent impairment level for the neck is not in dispute, in this case the issue is whether the Board was correct in deducting 6% from the worker's NEL award on the basis that she had a pre-existing impairment. (iii) Background [5] As will be seen below, the outcome of this appeal turns, to large extent, on a question of law. The essential accident history, medical treatment, and diagnoses are not substantially in dispute. It is therefore unnecessary to review the claim or medical history in detail. The basic facts are as follows. [6] The workplace accident occurred July 15, The then 52-year-old worker was lifting and turning with a box of car parts when she felt pain in her neck and right shoulder area. She was off work following the accident with ongoing pain and limitations, and underwent diagnostic investigations that eventually led to a finding that she had a disc herniation in her cervical spine at C6-7. The worker ultimately underwent cervical spine surgery in February At that time Dr. Fazl performed a C6 corpectomy, iliac bone graft, and anterior cervical plating. [7] The Board allowed initial entitlement and later recognized a permanent impairment for the worker's C6-7 disc herniation. The worker's diagnostic studies also showed cervical degenerative disc disease and cervical stenosis. The worker had originally pursued these conditions as additional areas of entitlement, on a disablement basis as flowing from her work duties over time. She had also sought entitlement for the right shoulder. The Board denied entitlement for these additional conditions/area, finding that her degenerative disc disease and stenosis were not due to work activities. The right shoulder entitlement was denied on the basis that her right shoulder problems were caused by her compensable C6-7 disc herniation and therefore was not a separate compensable injury area.

3 Page: 2 Decision No. 137/15 [8] In keeping with the Board s basic entitlement decisions outlined above, for the purposes of its NEL decisions the Board treated the worker's cervical degenerative disc disease and cervical stenosis at all times as separate conditions not related to her work duties. (iv) Law and policy [9] The workplace accident occurred on July 15, The worker's entitlement in this claim is therefore determined by the Workplace Safety and Insurance Act, 1997 (the WSIA). [10] 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. [11] Under Section 2 of the WSIA, 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, 3rd edition (revised) (the AMA Guides). [14] The Board has Operational Policies that relate to the relationship between pre-existing conditions, impairments, or disabilities and NEL ratings. The most relevant policies are: Operational Policy Manual (OPM) Document No , Aggravation Basis OPM Document No , Effect of a Pre-existing Impairment OPM Document No , Second Injury Enhancement Fund (SIEF) [15] In Decision No. 204/14, the Vice-Chair analyzed how these policies and the definitions they set out affect deductions from NEL benefits: (b) Board policy [20] Board policy on the Effect of a Pre-existing Impairment (Operational Policy Manual (OPM) Document No ) states: When calculating NEL benefits for workers who have a pre-existing permanent impairment, the WSIB rates the area of the body affected by the new permanent impairment disregards any pre-existing permanent impairments affecting other areas of the body, and factors out pre-existing permanent impairments affecting the same area of the body. If the pre-existing impairment is not measurable, the WSIB rates the total area's impairment, and reduces this rating according to the significance of the pre-existing impairment (see pre-accident disability in , Second Injury and Enhancement Fund).

4 o o o if minor, there is no reduction Page: 3 Decision No. 137/15 if moderate, there is a 25% reduction if major, there is a 50% reduction. [21] This policy does not contain a definition of pre-existing impairment. [22] The referenced policy on the Second Injury and Enhancement Fund (SIEF) (OPM Document No ) primarily addresses cost relief for employers due to a pre-existing disability or condition, but also addresses the impact on workers NEL benefits. A definition of pre-accident disability is found in the SIEF policy, where it is contrasted with pre-existing condition : Definitions Pre-accident disability is defined as a condition which has produced periods of disability in the past requiring treatment and disrupting employment. Pre-existing condition is defined as an underlying or asymptomatic condition which only becomes manifest post-accident. [23] The SIEF policy restates the impact on permanent benefits, including NEL benefits: Worker Permanent Benefits When the pre-existing condition is not measurable, but creates a pre-accident disability that enhances a residual work-related disability, the worker's benefit for work-related disability may be reduced according to the percentage of disability produced by the pre-existing condition. The application is as follows: Application to employee award where prior condition is not measurable Prior Condition Minor Moderate 75% Major 50% Amount of relief 100% (full assessment) [24] While not mentioned in OPM Document No , a definition of pre-accident impairment is found in Board policy on aggravation basis entitlement (OPM Document No ): (c) A pre-accident impairment is a condition, which has produced periods of impairment/illness requiring health care and has caused a disruption in employment. Discussion [25] The above-cited Board policies refer to three different terms: pre-existing (or pre-accident) impairment, pre-accident disability, and pre-existing condition. The first is defined in a separate Board policy; the latter two are defined in Board policy on the SIEF. Disability is the language of the Workers Compensation Act (pre-1985, pre-1989, and, in part, pre-1997); it has been superseded by the language of impairment in the WSIA, but certain Board policies continue to refer to disability. [26] The directly applicable Board policy on the effect of a pre-existing impairment uses this exact term exclusively, except when incorporating, by reference, the term pre-accident disability from the SIEF policy. There is no reference to the term pre-existing condition. In discussing the impact on permanent benefits, the SIEF policy refers to both pre-existing condition and pre-accident disability, but

5 Page: 4 Decision No. 137/15 specifically requires a pre-accident disability for a reduction in benefits. Accordingly, I find that a NEL award may be reduced pursuant to OPM Document No only where a pre-existing impairment or disability is present.[footnote omitted] Noting the definitions found in OPM Documents No and , I conclude that a pre-existing impairment exists where there have been periods of disability, impairment or illness in the past which have required treatment and disrupted employment. A pre-existing condition alone, being an underlying or asymptomatic condition made manifest, is not sufficient to permit a reduction of NEL benefits pursuant to Board policy. [16] We agree with and adopt this analysis. In summary, a deduction may only be taken from a NEL benefit where there is a pre-existing impairment (as defined in the Aggravation Basis Policy) or pre-accident disability (as defined in the SIEF policy). Despite slight differences in wording, the definitions of both pre-existing impairment and pre-accident disability are effectively the same: the worker s condition in the past has required periods of health care and lost time from work. In circumstances where a worker has an asymptomatic pre-existing condition that has not resulted in lost time or the necessity for health care there is no basis in the WSIA or Board policy for taking any deductions from a NEL benefit. [17] We note that the approach to deductions from NEL awards outlined above has been applied in numerous other Tribunal decisions other than Decision No. 204/14: see, e.g., Decision No. 607/14; Decision No. 1153/14; Decision No. 588/14; and Decision No. 530/05. (v) Analysis and conclusions [18] Both the NEL Clinical Specialist (who initially calculated NEL rating) and the ARO referred to the worker having a pre-existing impairment; the ARO also stated that the NEL clinical specialist appropriately subtracted the rating for the pre-existing condition [emphasis added]. In any event, neither made any finding that the state of the worker's degenerative condition in her spine ever produced periods of disruption in employment or required health care prior to the accident. The ARO explicitly found that such a finding was unnecessary: The worker representative made reference to Operation Policy Second Injury Enhancement Fund, and submitted that the claim permanently aggravated the worker's asymptomatic pre-existing condition. While the pre-existing impairment [sic] may or may not have been symptomatic at the time of injury, that is not a criterion of consideration when determining a NEL rating. [19] Given our analysis of the law and policy above, we find this statement to be incorrect. In determining whether a worker's pre-existing state amounts to a pre-existing impairment for NEL purposes, it is critical to determine if the condition was symptomatic or asymptomatic. An asymptomatic condition does not lead to health care treatment and does not result in disruption of employment. Put another way, using terminology and definitions precisely, there is no such thing as an asymptomatic pre-existing impairment. [20] Did the worker have a pre-existing impairment within the meaning of Board Policy as discussed above? We find no evidence in the medical reports of any lost time or necessity for health care in relation to the worker's neck/spine prior to the July 15, 2005 accident. The only pre-accident injury or lost time documented in the case record is a thumb injury the worker suffered in 1982.

6 Page: 5 Decision No. 137/15 [21] Given the absence of any evidence of lost time or health care in relation to worker s neck prior to the workplace accident, we find that the worker did not have a pre-accident impairment as defined by Board policy. Accordingly, there was no basis to take any deductions from the NEL Clinical Specialist s initial calculation of a 22% NEL award for the neck. The worker is entitled to a 22% NEL benefit for her neck.

7 Page: 6 Decision No. 137/15 DISPOSITION [22] The appeal is allowed. The worker is entitled to a 22% NEL benefit for the permanent impairment of her cervical spine. DATED: February 20, 2015 SIGNED: K. Jepson, M. Christie, F. Jackson