Decision Nº Released_Decisions from Workplace Safety and Insurance Appeals Tribunal of Ontario, 15-01-2009
| Judge | M. Gannage: Vice-Chair |
| Judgment Date | 15 January 2009 |
| Neutral Citation | 2009 ONWSIAT 131 |
| Judgement Number | Released_Decisions |
| Hearing Date | 22 October 2008 |
| Issuer | Workplace Safety and Insurance Appeals Tribunal of Ontario |
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Workplace Safety and Insurance
Appeals Tribunal
DECISION NO. 2224/08
BEFORE: M. Gannage: Vice-Chair
HEARING: October 22, 2008 at
DATE OF DECISION: January 15, 2009
NEUTRAL CITATION:
DECISION(S) UNDER APPEAL: December 12, 2007
APPEARANCES:
For the worker: M. Grossman,
For the employer: C. Landgren,
Interpreter: None
reasons
(i) Introduction
[1] The worker appeals the decision of F. Pansino dated December 12, 2007. That decision, among other things, confirmed the quantum of the Non-Economic Loss (NEL) award of 18% for impairment of the worker’s right forearm and right shoulder
(ii) Issue
[2] Is the worker entitled to an increase in her NEL award of 18% for impairment of her right forearm and right shoulder?
[3] This issue consists of two sub-issues:
- Was the NEL award correctly assessed at 18%?
- Is the worker entitled to a redetermination of her NEL award?
(iii) Background
[4] On May 3, 2000, the worker, now 61 years old, was working on the assembly line of a metal stamping and fabrication company. She sustained a crush injury to her dominant right forearm. At the time of the accident, the worker was 53 years old and had been working in a factory for 24 years. She laid off until August 2000. She received LOE and health care benefits.
[5] She reached maximum medical recovery (MMR) on July 31, 2002 for the right forearm.
[6] The worker was assessed for a NEL award on October 23, 2002. On January 29, 2003, the NEL adjudicator granted the worker a NEL award of 10% for a permanent impairment to the right forearm.
[7] In September 2006 the Board determined that the worker had a permanent impairment of the right shoulder relating to the 2000 accident. She was diagnosed with chronic right rotator cuff tendonitis.
[8] On January 9, 2007 the worker was assessed for a NEL redetermination. On April 14, 2007 the adjudicator increased the 10% NEL award to 18% to reflect a permanent impairment of the right shoulder. The worker objected that the quantum was too low. The ARO confirmed the quantum. The worker is appealing.
[9] Related claims include those for right hand (DeQuervain’s) tenosynovitis and an injured left arm.
(iv) Law and policy
[10] Since the worker’s accident occurred after January 1, 1998, the Workplace Safety and Insurance Act, 1997 (the WSIA) applies. Subsection 46(1) of the WSIA provides that if a worker’s injury results in permanent impairment, the worker is entitled to compensation for her non-economic loss. “Impairment” means a physical or functional abnormality or loss that result from an injury and any psychological damage arising from the abnormality or loss (subsection 2(1)). “Permanent impairment” means impairment that continues to exist after a worker reaches maximum medical recovery (subsection 2(1)).
[11] Subsection 47(1) of the WSIA and Board Operational Policy Manual (OPM) Document #18-05-03, “Assessing Permanent Impairment”, provide that the Board shall determine the degree of the worker’s permanent impairment expressed as a percentage of total permanent impairment (sub-issue 1 above). The determination must be made according to the prescribed rating schedule and having regard to any medical assessments and the worker’s health information on file (subsection 47(2)). The prescribed rating schedule for most impairments, including that involved in this appeal, is the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 3rd edition (revised) (the AMA Guides). The roster physician who examines the worker and assesses the extent of her permanent impairment must consider any reports by the worker’s treating health professional (subsection 47(5)).
[12] If the worker having a permanent impairment suffers a significant deterioration in her condition, she may request that the Board redetermine the degree of her permanent impairment (subsection 47(9)) (sub-issue 2 above).
[13] Board OPM Document #18-05-09, “Redeterminations and Recalculations”, as provided by the Board, addresses “significant deterioration” in part as follows:
Significant deteriorationDefinitionA ‘significant deterioration’ refers to a marked degree of deterioration in the work-related impairment that is demonstrated by a measurable change in objective clinical findings.EvaluationWorkers applying for a NEL redetermination must be examined by their treating physician. For the purpose of the evaluation, these workers may provide their physician a copy of the last NEL medical assessment report and any supporting medical reports, to help the physician identify how the worker’s condition has changed. The physician then reports to the WSIB on the worker’s clinical history, any measurable changes in the worker’s condition, and any new medical findings. This report may include
- changes in the worker’s range of motion
- complications in the worker’s medical condition
- evidence of neurological dysfunction
- an increase in the worker’s medical treatment, and
- information about lost time from work.
…Decision-makers review the physician’s report and all medical information added to the file since the last NEL medical assessment. They compare these findings to the condition described in the last NEL medical assessment report to determine if there is evidence of a significant deterioration. …
[14] As well, pursuant to WSIA section 126, the Board has identified certain other applicable policies, in addition to those cited above. I have also considered them as necessary in deciding this appeal.
(v) Medical evidence
[15] While I have considered all the evidence on file, I find the medical evidence set out below particularly germane.
(a) Before NEL assessment
[16] The medical evidence before the NEL assessment includes Neurologist Dr. Susan A. Carleton’s report (October 9, 2001), the Regional Evaluation Centre (REC) Report (November 9, 2001) and Physical Medicine and Rehabilitation Dr. John D. Heitzner’s letter (May 2, 2002).[17] Dr. Carleton referred to the worker’s continuing problems and her more recent difficulty with her left shoulder and arm because she was overcompensating. Dr. Carleton identified very mild right carpal tunnel syndrome, considered
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