Decision Nº ReleasedDecisionsWithSummaryAdded 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: ReleasedDecisionsWithSummaryAdded
• Hearing Date: 19 August 2020
• Issuer: Workplace Safety and Insurance Appeals Tribunal of Ontario

--SUMMARY--

Decision No. 966/20 27-Nov-2020 J.Smith

• Consequences of injury (iatrogenic illness) (medication)
• Dependency benefits (death results from an injury)
• Permanent impairment {NEL} (degree of impairment) (psychotraumatic disability)

The worker suffered bilateral shoulder disablement in January 2001, for which the Board granted the worker a 10% NEL award, later increased to 12%. In Decision No. 1228/13, the Tribunal found that the worker had entitlement for psychotraumatic disability. The Board then rated the psychotraumatic disability at 25%.

In this decision, the Vice-Chair increased the rating for psychotraumatic disability to 35%.

The Vice-Chair found that the worker did not have entitlement for seizures as a secondary condition. Evidence did not establish that the seizures were related to medication taken by the worker for pain and depression.

The worker died as a result of cardiac arrest, respiratory arrest and myoclonic seizures. As the worker did not have entitlement for seizures and there was no recognized entitlement for the other conditions, there was no entitlement to survivor benefits.

11 Pages

References:	Act Citation WSIA Other Case Reference [w0321s] CROSS-REFERENCE: Decision No. 1228/13, 2013 ONWSIAT 1697
Style of Cause:
Neutral Citation:	2020 ONWSIAT 1911

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...