Decision Nº Released_Decisions from Workplace Safety and Insurance Appeals Tribunal of Ontario, 08-05-2014

• Judge: L. Petrykowski : Vice-Chair B. Davis : Member Representative of Employers A. Grande : Member Representative of Workers
• Judgment Date: 08 May 2014
• Judgement Number: Released_Decisions
• Hearing Date: 09 April 2014
• Issuer: Workplace Safety and Insurance Appeals Tribunal of Ontario

WORKPLACE SAFETY AND INSURANCEAPPEALS TRIBUNAL

Decision No. 693/14

BEFORE: L. Petrykowski : Vice-Chair

B. Davis : Member Representative of Employers

A. Grande : Member Representative of Workers

HEARING: April 9, 2014 at Toronto

DATE OF DECISION: May 8, 2014

NEUTRAL CITATION: 2014 ONWSIAT 1018

DECISIONS UNDER APPEAL: WSIB dated February 15, 2012

WSIB Appeals Resolution Officer (ARO) July 31, 2012

APPEARANCES:

For the worker: Mr. A. Acquaviva, paralegal

For the employer: Not participating

Interpreter: None

REASONS

(i) Introduction to the appeal proceedings

1. The worker appeals a decision of the Appeals Resolution Officer (“ARO”) of the Workplace Safety and Insurance Board (“Board”), dated February 15, 2012, which concluded that the worker reached maximum medical recovery as of December 9, 1998, that the worker did not have a permanent impairment for his lower back and that there was no ongoing entitlement to further benefits on a recurrence basis. The ARO rendered a decision on a “decision without hearing” basis at the Board’s Appeals Branch.
2. The worker appeals a second decision of an ARO, dated July 31, 2012, which denied entitlement for a tear in the worker’s right shoulder and denied entitlement for a Non-Economic Loss (“NEL”) re-determination for his right shoulder. The ARO rendered a decision on a “decision without hearing” basis at the Board’s Appeals Branch.
3. The worker attended the Tribunal hearing with his representative, Mr. Acquaviva, a paralegal. The employer was inactive and did not participate in the Tribunal proceedings.

(ii) Issues

4. The issues to be decided in this appeal are as follows:

1. Whether the worker has entitlement for a permanent impairment as related to his low back injury on November 28, 1996
2. Whether the maximum medical recovery (MMR) date of December 9, 1996 is correct
3. Whether the worker has ongoing entitlement to further benefits on a recurrence basis in relation to his low back injury on November 28, 1996
4. Whether the worker has entitlement for a right shoulder tear as related to his June 30, 1999 injury?
5. Whether the worker is entitled to a NEL redetermination related for his compensable right shoulder injury?

(iii) Background

5. The Panel has reviewed the entirety of the documentary record and the following background facts are briefly noted.
6. The now 49 year-old worker injured his low back on November 28, 1996, while working as a disposal truck driver after slipping on a section of waxed cardboard while walking around his truck. The initial diagnosis was back strain. A subsequent physician’s progress report provided a diagnosis of mechanical low back pain. He lost approximately ten days from work and then returned to his regular duties around December 9, 1996.
7. Fourteen years later, the worker called the Board’s Case Manager around February 2, 2011, to request access to his Board claim file indicating he wished to re-open his claim. The worker’s representative provided correspondence dated May 9, 2011 along with new medical information and requested entitlement to further benefits in his claim. In a September 14, 2011 decision, the Board’s Case Manager denied entitlement to further benefits. In October 4, 2011 correspondence, the worker’s representative objected to this decision and indicated the Board’s Case Manager had not addressed the issue of the worker’s re-injury to his low back on August 27, 2006. The Board’s Case Manager provided October 12, 2011 correspondence which confirmed the previous decision made, in addition to noting there was no record of a back injury occurring in 2006.
8. In a separate claim, on June 30, 1999, the worker was employed as a truck driver and sustained an injury to his right shoulder when a cement discharge chute came unlocked and jammed his right shoulder. The Board’s operating level consequently accepted entitlement for right rotator cuff tendonitis. Permanent medical restrictions were identified and they included no heavy lifting and no repetitive above shoulder activity. A NEL assessment took place on July 24, 2000 and the worker was granted a 10% NEL award for the permanent impairment he sustained in this workplace injury. The quantum of the NEL award was also confirmed in Tribunal Decision No. 867/08 dated January 20, 2009.
9. The...