Decision Nº 1066/23 from Workplace Safety and Insurance Appeals Tribunal of Ontario, 15-09-2023

• Judge: R.V. Andal: Vice-Chair
• Judgment Date: 15 September 2023
• Neutral Citation: 2023 ONWSIAT 1424
• Judgement Number: 1066/23
• Hearing Date: 02 August 2023
• Issuer: Workplace Safety and Insurance Appeals Tribunal of Ontario

--SUMMARY--

Decision No. 1066/23 15-Sep-2023 R.Andal

• Non-economic loss {NEL}

• Permanent impairment {NEL}

• Loss of earnings {LOE} (retirement) (early)

• Strains and sprains (hip)

On February 11, 2019, the worker slipped and fell on ice while in the course of his employment as a veterinarian. The issues under appeal were: a) ongoing entitlement for the left hip; b, recognition of a permanent impairment and entitlement to a non-economic loss (NEL) determination for the left hip; and, c) entitlement to loss of earnings (LOE) benefits beyond April 17, 2019.

The appeal was allowed, in part.

The Vice-Chair noted that a claim for ongoing impairment typically requires medical evidence of ongoing treatment, investigation, and objective findings. With respect to the absence of clinical records of treatment after May 2019, the worker stated that he was a veterinarian with enough medical knowledge to manage his hip injury. He had also learned to live with the pain. In addition, the pandemic the following year had prevented him from seeking treatment. He took painkillers as needed. The Vice-Chair found that this explanation was plausible.

The worker had decided to take voluntary retirement on April 24, 2019, two months before he reached 65, because he could not physically perform fieldwork, and he did not wish to continue doing office work. The Vice-Chair found that this was consistent with having an ongoing impairment after April 2019. A chiropractic report of January 9, 2023 provided objective medical evidence of impairment of the left hip, measured in terms of ROM as compared to normal values. The evidence was sufficient to establish, on a balance of probabilities, that the worker had an ongoing impairment of the left hip after April 2019. Further, the evidence supported a permanent impairment of the left hip. The Vice-Chair found that the worker reached MMR in August 2019. The worker was entitled under section 47 of the WSIA to a NEL determination for the left hip impairment.

With respect to entitlement for LOE benefits after April 17, 2019, Tribunal case law has found that taking an early retirement is not, in and of itself, a bar to receiving LOE benefits. However, as found in Decision No. 2196/05, in order to receive LOE entitlement after an early retirement, it must be established that the worker's decision to leave the workforce was motivated by the consequences of the ongoing injury. The Vice-Chair determined that any loss of earnings incurred by the worker after April 24, 2019 was not a result of the compensable injury, but the worker's decision to retire early due to his dislike for remote clerical work. He was capable of maintaining his earnings because suitable modified work was available to him within his physical restrictions. The Vice-Chair found that any loss of earnings resulted from the worker's decision to take voluntary early retirement, and not as a result of his injury.

9 Pages

References:	Act Citation WSIA ; Other Case Reference [w4523s] CROSS-REFERENCE: Decision No. 943/17, 2017 ONWSIAT 1892 TRIBUNAL DECISIONS CONSIDERED: Decision No. 311/15, 2015 ONWSIAT 1143 refd to; Decision No. 2196/05, 2005 ONWSIAT 2894 consd
Style of Cause:
Neutral Citation:	2023 ONWSIAT 1424

WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL

DECISION NO. 1066/23

BEFORE: R.V. Andal: Vice-Chair

HEARING: August 2, 2023 at Toronto Oral by Videoconference

DATE OF DECISION: September 15, 2023

NEUTRAL CITATION: 2023 ONWSIAT 1424

DECISION(S) UNDER APPEAL: WSIB Appeals Resolution Officer (ARO) dated January 24, 2022

APPEARANCES:

For the worker: S. Ally, Paralegal

For the employer: Not participating

Interpreter: None

Workplace Safety and Insurance Tribunal d’appel de la sécurité professionnelle Appeals Tribunal 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

REASONS

1. Introduction

[1] The worker appeals a decision of the ARO, which concluded that the worker does not have entitlement for permanent impairment of the left hip or pelvis.

2. Background

[2] On February 11, 2019, the worker slipped and fell on ice while in the course of his employment as a veterinarian. The Workplace Safety and Insurance Board (WSIB or Board) granted him initial entitlement to health care and loss of earnings (LOE) benefits for left hip and left wrist strains. On April 24, 2019, the worker retired from the accident employer. He sought entitlement for a permanent impairment of the left hip and pelvis.

[3] The ARO denied entitlement for a permanent impairment of the left hip and pelvis on the basis that the worker reached maximum medical recovery (MMR) and had fully recovered upon being discharged from the Musculoskeletal Program of Care (MSKPOC) on April 17, 2019. The ARO reasoned that there was no clinical evidence that the worker was receiving treatment or using medication to improve the work-related injury.

[4] At the outset of the hearing, the worker’s representative withdrew the appeal with respect to the pelvis.

[5] I note that the ARO decision of January 24, 2022 lists one of the issues under appeal as LOE benefits beyond April 17, 2019. However, the ARO did not provide an analysis of this issue and it is absent from the disposition section of the ARO decision. I find that entitlement to LOE benefits beyond April 17, 2019 is within the Tribunal's jurisdiction, despite the ARO's silence on this issue. As stated in Decision No. 943/17, 2017 ONWSIAT 1892, the Board's refusal to decide an issue is itself a decision and equivalent to a denial of the substantive issue.

3. Issues

[6] The issues under appeal are as follows:

1. Ongoing entitlement for the left hip.

2. Recognition of a permanent impairment and entitlement to a non-economic loss (NEL) determination for the left hip.

3. Entitlement to loss of earnings (LOE) benefits beyond April 17, 2019.

4. Testimony

[7] The worker, now age 69, gave the following testimony. He was a veterinarian since 1996. His responsibilities included carrying out inspections relating to reportable animal diseases, import and export of animals, and testing. On February 11, 2019, he attended at a quarantine site for animals when he slipped and fell on snow and ice. He injured his left arm, left hip and pelvis. X-rays taken at a hospital showed no fractures.

[8] The worker took painkillers for his injuries. He visited a walk-in clinic and was told that he had trauma to his pelvis. He was prescribed rest and pain medication. The pain improved during the first six months following the accident, then it plateaued. He had six physiotherapy treatments consisting of exercises. He stopped attending the treatments because of the long drive to the clinic, but he continued to do the exercises. While there has been some reduction in the pain, he continues to have pain in the left hip.

[9] The treatment options offered to the worker were cortisone injections and pain medication. A doctor told him that the pain is permanent, and referred him to a neurologist to investigate nerve damage. Despite this referral, he has not seen the neurologist because he believes that the neurologist cannot help him.

[10] The worker returned to modified duties on March 2, 2019 consisting of office paperwork.

He was not assigned any fieldwork because of his injury. He was able to perform the modified duties albeit with some pain. On April 24, 2019, he took early retirement because he preferred to do the fieldwork of a veterinarian, which he could no longer do due to pain with physical activity. He did not want to do more clerical office work.

[11] The pain is located in the left hip below the waist, which continues to this day. Because the worker is placing more weight on his right side, his back started to hurt about 1^1/2 years after the accident. He feels the pain everyday, especially when driving, which he can only do for a maximum of 20 minutes. He explained that there are no medical records of treatments afte...