Decision Nº Released_Decisions from Workplace Safety and Insurance Appeals Tribunal of Ontario, 07-08-2012

• Judge: R. Nairn: Vice-Chair
• Judgment Date: 07 August 2012
• Judgement Number: Released_Decisions
• Hearing Date: 18 April 2012
• Issuer: Workplace Safety and Insurance Appeals Tribunal of Ontario

WORKPLACE SAFETY AND INSURANCEAPPEALS TRIBUNAL

Decision No. 2380/11

BEFORE: R. Nairn: Vice-Chair

HEARING: April 18, 2012 at

DATE OF DECISION: August 7, 2012

NEUTRAL CITATION: 2012 ONWSIAT 1763

DECISIONS UNDER APPEAL: WSIB Appeals Resolution Officer (“ARO”) decisions dated July 31, 2009 and October 28, 2010

APPEARANCES:

For the worker: Mr. L. Brown,

For the employer: Closed

Interpreter: N/A

REASONS

(i) Introduction

1. The worker, born in 1961, experienced a sudden onset of pain in his low back at work on February 20, 1991, as he bent down to pick up a load of sheets. He sought medical attention at a local hospital emergency department and in the initial reporting of February 25, 2001, Dr. P. Malon provided a diagnosis of “back strain”. The Physician's First Report provided by Dr. G. Pannozzo of July 11, 1991, provided a diagnosis of “lumbar strain”.
2. The WSIB (the “Board”) recognized the worker's back injury as compensable and he was granted various periods of temporary compensation benefits. According to the decision on appeal, the worker continued performing modified duties until June 29, 1991, when he laid off because of continuing pain. He returned to modified duties on January 6, 1992 but by approximately January 24, 1992, it became apparent that the accident employer could no longer provide suitably modified duties. As such, the Board granted the worker vocational rehabilitation (“VR”) assistance.
3. In 1992 the Board considered the issue of the worker's entitlement to Future Economic Loss (“FEL”) benefits and in Memo #28 dated August 5, 1992, the FEL Adjudicator noted the following with respect to the worker's D1 FEL award:

(…)

Accident history: On 20 Feb 1991 this now 30 year old worker was feeding cardboard into a feeder, he bent down to pick up a load of sheets, he twisted, turned and bent forward when he felt a pain in his low back. The worker was employed as a stockpiler for [the employer] receiving $9 per hour based on a 40 hour workweek. The worker has been employed with the above mentioned employer since 08 Aug 1989.

Medical history: entitlement was established for the low back. Initial treatment consisted of rest, medication and physio. Subsequent treatment for the worker's condition remained conservative. The worker has suffered 12 consecutive months of partial disability. A permanent impairment is likely in this claim but has not been formally ruled on as yet.

The worker is fit for modified work within his current precautions. The worker should avoid heavy lifting and frequent bending.

The worker has a non-compensable hearing impairment. IW suffers from a 100% hearing loss in his right ear and 90% in his left ear.

A pre-existing back condition has not been detected therefore, SIEF relief is not an issue.

Vocational rehabilitation: the vocational rehabilitation department became active in this file because it became evident that the worker could not return to his pre-accident work.

The worker returned to light work with the employer on 06 Jan 1992, general painting. The employer could not offer any work beyond 24 Jan 1992. The accident employer is unable to accommodate the worker with alternative or suitable. The accident employer has been ruled out as a vocational objective.

The vocational objective that has been developed is an insurance clerk or a messenger (…). The objectives have been chosen using the results from the vocational testing and the worker's personal characteristics. The worker is pleased with the goals set out and believes they are achievable.

The objectives will be achieved via aid in placement, work trials and training on the job. (…)

FEL decision: The information used indicates that this worker's compensable accident on 20 Feb 1991 has left him with a loss of earnings capacity and therefore, the worker is suffering a wage loss and as such, entitlement to a future economic loss award will be granted. The amount of the award is equal to $353.46 per month. Since the worker continues to cooperate in a Board approved vocational rehabilitation program he is entitled to supplement under section 43(9) of the Worker's Compensation Act. The supplement award is equal to $795.36 per month. The total award will be $1148.82 per month.

The effective date...