Decision Nº 452/23 from Workplace Safety and Insurance Appeals Tribunal of Ontario, 04-07-2023
| Judge | V. Patel: Vice-Chair |
| Judgment Date | 04 July 2023 |
| Neutral Citation | 2023 ONWSIAT 1017 |
| Judgement Number | 452/23 |
| Hearing Date | 30 March 2023 |
| Issuer | Workplace Safety and Insurance Appeals Tribunal of Ontario |
--SUMMARY--
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Decision No. 452/23 |
04-Jul-2023 |
V.Patel |
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Strains and sprains
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Chronic pain
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Post-traumatic stress disorder
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Psychotraumatic disability
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Non-economic loss {NEL} (calculation)
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Osteoarthritis (knee)
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Permanent impairment {NEL}
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Permanent impairment {NEL} (degree of impairment) (shoulder)
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Loss of earnings {LOE} (employability)
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Suitable occupation
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Work transition plan (eligibility)
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Tear (meniscus) (medial)
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Major depressive disorder
No Summary Available
32 Pages
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Neutral Citation: |
2023 ONWSIAT 1017 |
WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL
DECISION NO. 452/23
BEFORE: V. Patel: Vice-Chair
HEARING: March 30, 2023 at Toronto Oral by Videoconference
DATE OF DECISION: July 4, 2023
NEUTRAL CITATION: 2023 ONWSIAT 1017
DECISION(S) UNDER APPEAL: WSIB Appeals Resolution Officer (ARO) decisions dated
April 12, 2021, December 3, 2021, and May 16, 2022
For the worker: J. Sirithar, Lawyer
For the employer: Not participating
Interpreter: N. Motevakel, Persian Dari, Afghanistan
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 7th Floor 505, avenue University, 7e étage
Toronto ON M5G 2P2 Toronto ON M5G 2P2
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Introduction
[1] The worker appealed three decisions of the ARO.
[2] First, the worker appealed the ARO decision dated April 12, 2021 (written hearing), which concluded that the worker has a 6% Non-Economic Loss (NEL) award for the left shoulder rotator cuff tear. The ARO further concluded that the Suitable Occupation (SO) of Customer Service Clerk was suitable and that the worker did not have entitlement to Loss of Earnings (LOE) benefits.
[3] Second, the worker appealed the ARO decision dated December 3, 2021 (hearing by videoconference), which concluded that the worker does not have entitlement to psychotraumatic disability and chronic pain disability (CPD).
[4] Third, the worker appealed the ARO decision dated May 16, 2022 (written hearing) which concluded that the worker does not have entitlement for degenerative changes to the left knee and a medial meniscal tear; she does not have entitlement for degenerative changes to the cervical, lumbar and thoracic spine; she does not have entitlement for left shoulder impingement; and she does not have entitlement to recognition of a permanent impairment (PI) and entitlement to a NEL determination for the left knee, upper back, lower back and neck sprain/strain.
[5] At the outset of the hearing the worker’s representative submitted that the worker was withdrawing the issues of whether the worker has entitlement for degenerative changes to the cervical, lumbar and thoracic spine and whether she has entitlement for left shoulder impingement. If an appeal on these issues returned to the Tribunal, it would be subject to the time limits under s. 125(2) of WSIA.
- Issues
[6] The issues under appeal are as follows:
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Quantum of the NEL award for the left shoulder rotator cuff tear.
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Suitability of the SO of Customer Service Clerk.
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Entitlement to LOE benefits.
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Entitlement for CPD.
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Entitlement for psychotraumatic disability.
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Entitlement for degenerative changes to the left knee and a medial meniscal tear.
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Recognition of PI and entitlement to a NEL determination for the left knee, upper back, lower back and neck sprain/strain.
- Background
[7] On May 2, 2017, the now 48 year old worker, a Baker, had a box fall from a shelf onto her left shoulder/neck area. The worker reported the injury to the employer when it occurred and she sought medical attention on May 6, 2017.
[8] On May 25, 2017, the CM allowed initial entitlement for the left shoulder, the neck and the left knee.
[9] The employer offered the worker modified work however the worker did not work due to pain. The Regional Evaluation Centre (REC) assessed the worker on June 15, 2017 and the Case Manager (CM) found the worker was able to return to modified work with physical limitations. The worker participated in physiotherapy treatment and the CM initiated Return to Work (RTW) services on June 16, 2017. A RTW meeting was held with the workplace parties on July 5, 2017. Although the employer was willing to accommodate the worker she did not return to work as she did not feel fully recovered. A gradual RTW plan was developed for the worker but the worker did not participate. The letter to the worker from the CM dated July 14, 2017 explained the full LOE benefit payment would be adjusted to partial LOE benefit payments based on the gradual RTW plan developed for the worker beginning July 10, 2017. The partial LOE benefit payment was closed on August 14, 2017.
[10] The worker was referred for assessments at the Specialty Clinic Surgical program, the Back and Neck Specialty Clinic and the Hip and Knee Specialty Clinic. The worker was also allowed a Psychological Assessment and treatment for cognitive behavioural therapy for
12 sessions. The worker presented with ongoing pain behaviour.
[11] The report from the Specialty Clinic Surgical Program dated March 27, 2018 provided the occupational diagnosis of rotator cuff tear. The medical evidence dated March 27, 2018 from the Hip and Knee Specialty Clinic reported it highly likely the worker’s problems with the left knee are pre-existing and unrelated to any incidental finding of medial meniscal tearing.
[12] On November 27, 2018 the worker’s representative indicated the worker was interested in participating in RTW activities. A referral for RTW services was initiated on
December 3, 2019. The CM reviewed the record to delineate the areas of entitlement and to determine the further management of this case.
[13] On May 21, 2020 the CM allowed initial entitlement for the sprain/strain injuries of the left knee, the lower back, the neck and the upper back and the left shoulder rotator cuff tear. Entitlement for the left knee meniscal tear and the degenerative changes of the left knee was denied; entitlement for the degenerative changes of the cervical spine, the lumbar spine and the thoracic spine was denied; and entitlement was denied for the left shoulder possible impingement. The maximum medical recovery (MMR) date for the left shoulder rotator cuff tear with a PI was May 22, 2018. The MMR date for the lower back, the upper back and the left knee with no evidence of a PI was September 8, 2017. The MMR date for the cervical spine with no PI was October 23, 2017. The worker’s representative objected to the denial of entitlement for the left knee meniscal tear and the degenerative changes of the left knee; the denial of entitlement for the degenerative changes of the cervical spine, the lumbar spine and the thoracic spine; the denial of entitlement for the left shoulder possible impingement; and the denial of recognition of a PI and entitlement to NEL for the left knee, upper back, lower back and neck sprain/strain. The ARO decision dated May 16, 2022 denied the worker’s objections. The worker’s representative appealed the May 16, 2022 ARO decision to the Tribunal and it is before me.
[14] On June 26, 2020 the NEL Clinical Specialist granted the worker a 6% NEL award for the left shoulder rotator cuff tear.
[15] The RTW Specialist developed a Work Transition (WT) plan proposal that identified the SO of Customer Service Clerk. The evidence shows the RTW Specialist was advised by ...
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