Decision Nº Released_Decisions from Workplace Safety and Insurance Appeals Tribunal of Ontario, 20-12-2023

JudgeC. Zehr : Vice-Chair M.P. Trudeau : Member Representative of Employers B. Grisdale : Member Representative of Workers
Judgment Date20 December 2023
Judgement NumberReleased_Decisions
Hearing Date28 September 2023
IssuerWorkplace Safety and Insurance Appeals Tribunal of Ontario

WORKPLACE SAFETY AND INSURANCEAPPEALS TRIBUNAL

Decision No. 1366/23

BEFORE:C. Zehr: Vice-Chair

M.P. Trudeau: Member Representative of Employers

B. Grisdale: Member Representative of Workers

HEARING:September 28, 2023 at

Post-hearing activity completed on December 7, 2023

DATE OF DECISION:December 20, 2023

NEUTRAL CITATION:2023 ONWSIAT 1935

DECISION(S) UNDER APPEAL:WSIB decisions dated February 26, 2021 and January 9, 2023

APPEARANCES:

For the worker:S. Cirillo,

For the employer:

Interpreter:Not applicable

REASONS

(i)Introduction

  1. The worker appealed two ARO decisions, dated February 26, 2021 and January 9, 2023.Both decisions relate to a claim which the worker filed with the Workplace Safety and Insurance Board (the Board) for a low back injury that gradually developed as a result of her work duties, and for which she first sought medical treatment on April 15, 2016.
  2. In the decision dated February 26, 2021, the ARO denied the worker entitlement for Loss of Earnings (LOE) benefits as of March 8, 2018, the date on which the worker resigned from her employment with the (accident) employer.
  3. The Board determined that the worker had a permanent impairment related to her low back injury and granted the worker a Non-Economic Loss (NEL) award of 11% in May 2022.In the ARO decision dated January 9, 2023, the ARO upheld the 11% NEL award for the worker’s low back injury.

(ii)Issues

  1. The Tribunal’s Hearing Letter associated with this appeal listed the following appeal issues:
  1. Entitlement to LOE benefit from March 8, 2018
  2. Quantum of the 11% NEL award for the low back injury
  1. At the outset of the hearing, the worker representative advised that the worker wanted to withdraw the issue of the 11% NEL award for her low back injury.The worker representative advised that the worker had undergone surgery in March 2023 and an additional diagnosis for the worker’s compensable condition had been provided.The worker representative indicated that he anticipated a review of the NEL award in the future due to the material changes in the worker’s entitlement in 2023.As a result, the representative indicated that the worker no longer needed to dispute the quantum of the 11% NEL award as determined in May 2022.
  2. At the hearing, the Panel advised the worker and her representative that when withdrawing an issue on appeal, it must be understood that any attempt to renew the appeal of that issue will likely be subject to the time limit provision in the Workplace Safety and Insurance Act, 1997. The worker representative confirmed their understanding of this fact and he continued to advise that the worker was requesting a withdrawal of the NEL issue.As such, we accepted the withdrawal of this issue.Accordingly, the sole issue before us is the worker’s entitlement to LOE benefits from March 8, 2018.

(iii)Background

  1. On April 15, 2016, the now 45 year old worker, who worked as a general labourer for the employer, an automotive parts manufacturer, reported an onset of low back pain, which she claimed was related to the repetitive nature of her job duties.The worker sought medical attention on April 15, 2016 from her family physician, Dr. S. Sidhu, and Dr. Sidhu provided a diagnosis of “lower back and lower abdominal wall/thigh strain.”Dr. Sidhu also advised that the worker was totally impaired with her compensable condition.
  2. The worker filed a claim with the Workplace Safety and Insurance Board (the Board).The Board’s Eligibility Adjudicator reviewed the worker’s job duties and found that the duties required repetitive bending, lifting and twisting, which was compatible with the medical diagnosis of a repetitive strain type injury to the low back.As a result, in a decision dated April26, 2016, the Eligibility Adjudicator granted the worker initial entitlement for a low back strain and associated health care benefits.In the same decision, the Eligibility Adjudicator noted that the employer had offered the worker modified duties, but there was a dispute between the workplace parties as to the suitability of the modified work.
  3. In correspondence dated April 15, 2016, the employer offered the worker non-specific modified work; however, the worker declined, citing the severity of her condition.In correspondence dated April 28, 2016, the employer identified the modified work as “Scanning in Trim,” and offered the worker this position in writing.The employer advised that this job was within the restrictions identified by the worker’s doctor.
  4. The worker attended the employer’s premises on May 2, 2016 for about one hour, but did not perform the modified duties.The worker subsequently advised that, as she waited a long time for the supervisor, her back pain increased; therefore, she had to go home.The worker remained off of work, claiming that she was unable to perform any form of work.
  5. ...

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