Decision Nº Released_Decisions from Workplace Safety and Insurance Appeals Tribunal of Ontario, 19-12-2023

• Judge: A. Wong: Vice-Chair S. Chahal: Member Representative of Employers S. Roth: Member Representative of Workers
• Judgment Date: 19 December 2023
• Judgement Number: Released_Decisions
• Hearing Date: 17 May 2023
• Issuer: Workplace Safety and Insurance Appeals Tribunal of Ontario

WORKPLACE SAFETY AND INSURANCEAPPEALS TRIBUNAL

Decision No. 716/23

BEFORE: A. Wong: Vice-Chair

S. Chahal: Member Representative of Employers

S. Roth: Member Representative of Workers

HEARING: May 17, 2023 at Toronto

Oral by Videoconference

Post hearing activity completed on August 23, 2023

DATE OF DECISION: December 19, 2023

NEUTRAL CITATION: 2023 ONWSIAT 1926

DECISION(S) UNDER APPEAL: WSIB Appeals Resolution Officer (ARO) dated February 3, 2022 and November 8, 2022

APPEARANCES:

For the worker: S. Yormak, Lawyer

For the employer: S. Lam, Paralegal

Interpreter: Not applicable

REASONS

(i) Introduction

1. The worker appeals a decision of the Appeals Resolution Officer (ARO) dated February 3, 2022, denying entitlement to benefits for a right shoulder injury. The worker also appeals a decision of the ARO dated November 8, 2022, which concluded that the worker does not have entitlement to benefits for psychotraumatic disability.

(ii) Issues

2. The issues under appeal, as set out in the Hearing Ready (HR) letter dated February 14, 2023, are as follows:

1. Initial entitlement to benefits for the right shoulder as a secondary condition
2. Initial entitlement to benefits for psychotraumatic disability

(iii) Background

3. The following are the basic facts.
4. The now 54-year-old worker started as a truck driver with the accident employer in 2014. The worker was injured on May 17, 2017. He was pulling down a roll up door and as he went to step down to the bumper, he lost his footing and fell to the ground.
5. On the same day, the worker attended at an urgent care clinic for medical treatment and reported the accident to the employer. The worker was diagnosed with a left shoulder sprain/contusion.
6. On April 19, 2018, the worker had surgery on his left shoulder.
7. The Board determined the worker reached Maximum Medical Recovery (MMR) with a Permanent Impairment (PI) as of November 15, 2019. The worker received a Non-Economic Loss (NEL) award of 8%, for the left shoulder distal clavicle excision on March 13, 2020. Permanent restrictions were accepted for the left shoulder.
8. In the fall of 2020, the worker requested entitlement to benefits for his right shoulder.
9. On June 27, 2021, the worker was diagnosed with Posttraumatic Stress Disorder, Major Depressive Disorder and Somatic Symptom Disorder.
10. In a decision dated October 20, 2020, the Board Case Manager (CM) denied the worker entitlement to benefits for a right shoulder injury. The worker objected to the CM’s decision of October 20, 2020 and his objection was referred to an ARO in the Board’s internal Appeals Branch. In a decision dated February 3, 2022 the ARO confirmed the decision to deny entitlement to benefits for a right shoulder injury. The ARO found there was no causal link between a claimed right shoulder injury and the accepted work-related left shoulder injury.
11. In a decision dated March 2, 2022, the Specialty Case Manager denied the worker’s claim for psychotraumatic disability. The worker objected to the March 2, 2022 decision. In a decision dated November 8, 2022, the ARO found the worker was not entitled to benefits for psychotraumatic disability because the criteria under Operational Policy Manual (OPM) Document No. 15-04-02, “Psychotraumatic Disability” were not met. Specifically, the ARO found there was insufficient evidence of extended disablement and did not accept that the worker’s psychological condition was an indirect result of the worker’s physical injuries.
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