| Neutral Citation | 2023 ONWSIAT 1934 DECISION UNDER APPEAL: WSIB , M. Rodrigues, dated April 21, 2023 APPEARANCES: For the worker: P.M. Pallante, For the employer: Interpreter: Not applicable REASONS (i) Introduction The worker appeals a decision of the , that confirmed; the effective date of the 4% Non-Economic Loss (NEL), the level (quantum) of the NEL, and denied further loss of earnings (LOE) benefits beyond 2012. In addition, the April 21, 2023 ARO decision limited entitlement to a left shoulder partial rotator cuff tear. (ii) Issues Entitlement for a left shoulder full thickness rotator cuff tear. Whether January 23, 2018 is the correct maximum medical recovery (MMR) date. Quantum of the Non-Economic Loss (NEL) award for the left shoulder partial thickness rotator cuff tear (currently rated at 4%). Entitlement to Loss of Earnings (LOE) benefits beyond 2012. (iii) Background This now 60-year-old former construction foreman injured his left shoulder when he slipped from scaffolding. To prevent a fall he grabbed an overhead beam with his left arm. He fell with his full weight applied to the arm and shoulder. He had an immediate onset of pain in his left shoulder and was diagnosed with a left shoulder rotator cuff strain. Noting his job was largely supervisory he was able to continue with his work, delegating heavier work to others. The worker underwent an MRI for the shoulder on August 15, 2009 which showed a partial tear in the supraspinatus tendon. He was referred to an orthopedic surgeon whom he saw on November 18, 2009. Dr. R. Zannett, on review, felt that surgery might be in order but wished to defer further treatment to the Board’s Upper Extremity and Shoulder Specialty Clinic. Dr. Holtby, also an orthopedic surgeon, at the Upper Extremity and Shoulder Clinic, on February 18, 2010 indicated that surgery was not indicated at that time as he anticipated a gradual improvement over the next three months. If there was no improvement he recommended the worker return to Dr. Zannett for consideration of surgery. At the time of the Specialty Clinic (SC) assessment on February 18, 2010 the worker indicated he was coping well with his accommodated work. In a decision dated March 15, 2010 the Workplace Safety and Insurance Board (WSIB or the Board) Case Manager advised the worker’s case would close effective, May 18, 2010 as it was considered by that date he would have reached maximum medical recovery (MMR) with no evidence of permanent impairment. The worker did not progress as anticipated and underwent a further MRI on May 2, 2010. This MRI failed to demonstrate a significant tear in the supraspinatus tendon and Dr. Zannett as a result did not recommended surgery as indicated in his June 10, 2010 report. According to the worker’s representative, the worker indicates he continued to have ongoing shoulder problems and his employer was reluctant to maintain his accommodations and pushed him to return to his regular duties. According to the worker’s current representative the worker felt as of October 2011 he had no choice but to resign. He did so and attempted to set up his own business but was unsuccessful as he was unable to complete the physical tasks required. The worker recommenced active treatment for his left shoulder in 2016 and had yet another MRI, this one dated October 26, 2016. It showed progression of the supraspinatus tear seen in the August 15, 2009 MRI and it was now described as a full thickness tear. The worker was again referred to an orthopedic surgeon. He saw Dr. C. Veillette on May 23, 2017, July 25, 2017 and January 23, 2018. Dr. Veillette noted ongoing reduction in the range of motion (ROM) and pain in the shoulder. An injection into the shoulder failed to provide significant relief. A further MRI was conducted on January 30, 2018 which did not show any significant change in the appearance of the supraspinatus tear now described as a high-grade tear. Dr. Veillette recommended surgery. The worker has to date not had the surgery. The WSIB closed the worker’s claim in 2010 following the SC recommendation that he would likely recover. There was no further activity until March 2021 when the worker through his representative asked that the Board recognize his ongoing left shoulder problem, grant a permanent impairment and pay LOE benefits from October 28, 2011 when he left his pre-accident employment. The Board has granted the worker a 4% NEL benefit from January 23, 2018 the date of Dr. Veillette’s consultation report but declined to pay loss of earnings (LOE) benefits on the basis the worker left accommodated work on his own accord. On appeal, an ARO in a decision dated April 21, 2023 limited left shoulder entitlement to a partial tear of the supraspinatus tendon and denied a full thickness tear. The ARO confirmed the MMR date of January 23, 2018 and confirmed the decision not to pay LOE benefits from October 2011. The worker has now advanced his appeal to the |
