Decision Nº Released_Decisions from Workplace Safety and Insurance Appeals Tribunal of Ontario, 27-11-2020

• Judge: J.E. Smith: Vice-Chair
• Judgment Date: 27 November 2020
• Judgement Number: Released_Decisions
• Hearing Date: 19 August 2020
• Issuer: Workplace Safety and Insurance Appeals Tribunal of Ontario

WORKPLACE SAFETY AND INSURANCEAPPEALS TRIBUNAL

Decision No. 966/20

BEFORE: J.E. Smith: Vice-Chair

HEARING: August 19, 2020 at

DATE OF DECISION: November 27, 2020

NEUTRAL CITATION: 2020 ONWSIAT 1911

DECISION(S) UNDER APPEAL: WSIB December 7, 2017 and June 11, 2019

APPEARANCES:

For the worker: L.J. Dillon,

For the employer:

Interpreter: N/A

REASONS

(i) Introduction

1. The worker’s estate appeals two ARO decisions. In the first decision, dated December 7, 2017, the ARO confirmed the quantum of the worker’s non-economic loss (NEL) award for psychotraumatic disability and denied entitlement for a seizure disorder. In the decision dated June 11, 2019, the ARO denied the worker’s estate entitlement to survivor benefits and found that the worker was appropriately granted partial loss of earnings (LOE) benefits from March 29, 2004 to April 7, 2004.
2. By way of background, the now deceased worker was granted entitlement for neck and bilateral shoulder injuries resulting from his job duties, with an accident date of January 29, 2001. Permanent bilateral shoulder impairments were recognized as compensable with a non-economic loss (NEL) award of 12%.
3. The worker subsequently claimed entitlement for psychotraumatic disability or chronic pain disability (CPD) which was denied by the WSIB (the Board) and appealed to the Tribunal. The background to the worker’s claim was set out in Decision No. 1228/13 as follows:

[4] The worker began working for the accident employer, a meat processing company, in November 1989. He was then 43 years old. He was working as a live-haul driver when he developed bilateral shoulder pain in early 2001. He sought medical attention on May 26, 2001, at which time he was diagnosed as having suffered bilateral shoulder and neck strains. The Board initially denied the worker's claim. An ARO decision dated May 7, 2002 granted initial entitlement for the worker's bilateral shoulder and neck strains as related to the repetitive loading of chickens onto his truck.

[5] In 2003, the worker was granted a 10% NEL award for a permanent impairment of the shoulders. The worker was unable to return to his pre-accident duties. The employer offered modified duties some of which were to be performed in a cold environment. An ARO decision dated September 22, 2003 accepted that the worker should avoid working in a cold environment as a result of his injury. He found that the positions offered by the employer did not meet all of the worker's compensable restrictions. As a result, he granted the worker full loss of earnings (LOE) benefits and ordered a functional abilities evaluation, return to work mediation and labour market re‑entry assessment if the employer could not offer suitable work. The employer offered alternative duties in 2004, which a Board ergonomist deemed suitable. The worker tried these duties for one day but then left, on the basis that he was unable to do them. The Board maintained that the duties were suitable and therefore terminated LOE benefits because the worker refused suitable work. The worker also requested entitlement for CPD and psychotraumatic disability, which were denied.

[6] There was not much further action in the worker's claim until 2009, when another representative pursued CPD on the worker's behalf. The ARO decision of May 31, 2010 denied CPD entitlement. In 2011, the worker underwent a NEL reassessment, resulting in an increase to his NEL award from 10 to 12%. With his current representative, the worker also pursued entitlement to psychotraumatic disability and an increased NEL award for his shoulder impairment, which were denied in the ARO decision of April 24, 2012.

[71 The worker now appeals both of these ARO decisions. Mr. Dillon focused his submissions on psychotraumatic disability entitlement.

4. The Panel, in Decision No. 1228/13, allowed the worker’s appeal, in part, granting entitlement for psychotraumatic disability, denying entitlement for CPD and confirming the quantum of the 10% NEL award for bilateral shoulder impairments.
5. In a January 2015 decision, an ARO found it was premature to rate the worker’s NEL award for psychotraumatic disability, finding that the worker had not yet reached maximum medical recovery (MMR). The ARO referred the worker to a Function and Pain Program (FPP). However, in April 2015, prior to commencing the FPP, the worker was admitted to hospital for hemoptysis (coughing up blood), had a cardiac arrest a few days later while in hospital and...