Decision Nº Released_Decisions from Workplace Safety and Insurance Appeals Tribunal of Ontario, 10-12-2013

• Judge: N. Jugnundan : Vice-Chair M. P. Trudeau : Member Representative of Employers K. Hoskin : Member Representative of Workers
• Judgment Date: 10 December 2013
• Judgement Number: Released_Decisions
• Hearing Date: 26 April 2011
• Issuer: Workplace Safety and Insurance Appeals Tribunal of Ontario

WORKPLACE SAFETY AND INSURANCEAPPEALS TRIBUNAL

Decision No. 957/11

BEFORE: N. Jugnundan : Vice-Chair

M. P. Trudeau : Member Representative of Employers

K. Hoskin : Member Representative of Workers

HEARING: April 26, 2011; February 28, 2012 at Windsor

Post-hearing activity completed on August 23, 2013

DATE OF DECISION: December 10, 2013

NEUTRAL CITATION: 2013 ONWSIAT 2625

DECISION UNDER APPEAL: WSIB dated April 27, 2010

APPEARANCES:

For the worker: S. Dajczak, Lawyer

For the employer: not participating

Interpreter: not applicable

REASONS

(i) Introduction to the appeal proceedings

1. The worker appeals a decision of the , which concluded that the recurrence in 2004 was correctly recognized under the worker’s previous claim with the Board and a new claim should not be established.

(ii) Issues

2. The only issue before the Panel is whether the worker had a new accident on February 26, 2004.

(iii) Background

4. The worker’s claim was allowed for thoracic outlet syndrome (TOS) affecting the left upper extremity and neck. It was accepted that the general work duties led to the development of the condition. The worker underwent a rib resection. The worker was granted a non-economic loss (NEL) award of 42% for the left sided condition. Subsequently, the worker developed right overuse syndrome affecting the right arm and shoulder. The Board granted entitlement to the right side in 1999. The worker was granted a 12% NEL award for the right shoulder/upper extremity condition. The combined NEL award for the neck and both shoulders is 53%.
5. The worker claimed a recurrence in 2004, claiming that the increased pain in her right arm was due to a change in her job duties from having worked primarily at home then going back to working in the office.
6. The Board determined that the development of the worker’s right shoulder and right upper extremity impairment were compatible to overuse due to the limitations exposed by the left shoulder thoracic outlet syndrome and therefore allowed entitlement for the right shoulder as a secondary condition and recurrence. The worker is claiming that her right shoulder disablement is a new accident that occurred on February 26, 2004 and not a recurrence of the previous compensable injury.
7. This issue is now on appeal before the Tribunal.

(iv) Post-hearing activity

8. Following the initial hearing, the Panel requested that the worker be assessed by an independent assessor to determine whether the worker’s complaints in regards to the right shoulder are the result of a new injury or a recurrence or a secondary condition of a previous injury.
9. We provided a summary of facts and a complete medical history as noted in the file to the assessor. We requested a medical opinion as to whether the worker’s claim that the diagnosis of TOS and its related symptoms were distinct from her prior condition and diagnosis in regards to the right shoulder and arm.

(v) Law and policy

10. 2004,

(vi) The worker’s testimony

11. In summary the worker provided the following testimony.
12. In 1999, she worked as a customs clerk. Her job entailed securing documents, by filing them in the record room. These duties required repetitive use of her arms above shoulder level.
13. Shortly after the left TOS she began having muscle cramping in the right shoulder blade. In 1994, she had surgery and was off work for two years. The symptoms in the right shoulder began while she was recovering from the operation.
14. Her right shoulder condition eventually resolved, but not totally. She continued to have pain and irritation, but it was less frequent.
15. From being a records clerk in 1992, she moved on to become a cashier in 1993. This job required her to prepare daily statements, print statements and file them in the broker’s folders. Her job also required her to work on the computer.
16. She then worked eight-hour shifts as a customs officer on the bridge. This work did not bother her.
17. Her right shoulder began to bother her in 1996. Around September or October 1996 while she was performing the CR3 job, she experienced symptoms in her right shoulder.
18. In 1997, she returned to the cashier position. In 1997, both her shoulders began to bother her again. She experienced pain and muscle spasms.
19. For the period 1998 to 1999, she worked as a PMI collections clerk. In 2000, she worked as a PMI auditor and a PM2 field auditor. In 2001, she worked as an AO1 corporate tax auditor.
20. Working in the audit division required a considerable...