Worker, 2010 CanLII 35730

WORKPLACE SAFETY AND INSURANCE BOARD

APPEALS RESOLUTION OFFICER DECISION

DECISION NUMBER: 20100066

OBJECTION BY: Worker

PARTICIPANTS: Worker, Worker’s Representative

ISSUES

The worker requests:

1. Continuing entitlement and a permanent impairment for a left-shoulder condition;

2. Entitlement to a right-shoulder condition;

3. Loss of earnings (LOE) benefits or s. 147(4) benefits from August 5, 2004 until February 24, 2006 (when he became 65 years of age);

4. The back-dating of arrears from his recent 2.5 per cent increase in his low-back permanent disability pension (back to 2004);

5. A permanent aggravation of the worker’s pre-existing low-back condition in Claim F, which occurred in 2004, and;

6. Psychotraumatic disability entitlement.

HOW THE ISSUES ARISE

Under Claim A this, now 69-year old, worker felt the onset of low-back pain after lifting a 50-pound pail of sauce on February 27, 1967. Later, there was a diagnosis of mechanical low-back pain. Subsequently, he was found to be a candidate for low-back surgery. A discotomy was carried out in January 1972 at the L5-S1 level, and he returned to work in his regular duties by March 1972. He was seen for a permanent-disability assessment in June 1973, but no permanent disability was awarded in the claim.

Under Claim B (date unavailable), the worker suffered a low-back strain. He did not lose time from work. No permanent disability was awarded.

Under Claim C, the worker suffered a no-loss-time low-back injury in August 1980. He received conservative treatment. There was a diagnosis of a low-back strain with sciatica.

Under Claim D, the worker suffered a further low-back strain, superimposed on prior lumbosacral surgery and degenerative disc disease (DDD). He did not lose time from work, and there was no permanent-disability award (PDA).

Under Claim E, the worker suffered a contusion to his low back after he pushed a trolley and fell to the floor on July 16, 1986. It appeared that he had aggravated his existing condition. He returned to work by September 1986.

The worker was seen on May 15, 1989 for a permanent-disability assessment for his low back under all of the above-noted claims. It was determined that he should receive a 10 per cent award under Claim A (with arrears to five years after his 1972 surgery) and another 10 per cent under Claim E.

Under Claim F, the worker was pushing a heavy cart and felt pain in his low back and left shoulder on June 30, 2004. There was an initial diagnosis of acute low-back strain. The physiotherapy report of a week later indicated there were diagnoses of lumbar strain and left-shoulder strain. Both the low back and shoulder strains were accepted as compensable, and the worker was paid LOE benefits.

The August 10, 2004 Workplace Safety and Insurance Board (WSIB) medical consultant review concluded that the worker had been temporarily below his permanent-disability level for his low back. It was expected that he would recover to his permanent-disability level. He was found to be capable of a return to work with low-back physical restrictions. The left-shoulder condition was not analysed, and this appears to be due to a lack of medical reporting about the shoulder.

LOE benefits were extended only to August 5, 2004, as the employer had been offering modified duties, and updated medical reporting had not been received to indicate any continuing injury. By September 2004, the case manager (CM) noted a continuing lack of medical reporting to indicate any continuing compensable condition, and the worker was advised that he had returned to his permanent-disability level.

Also, in September 2004, medical reporting arrived indicating the worker was experiencing right-shoulder pain. In the September 20, 2004 CM letter, the worker was denied right-shoulder entitlement, as this type of injury was incompatible with the accident history.

The November 19, 2004 CM letter denied the worker further physiotherapy sessions, as the medical evidence did not indicate ongoing further entitlement.

In the December 3, 2007 investigator’s report, the worker stated he did not notice any right-shoulder pain at the time of the accident. He speculated that it arose as a result of favouring his left shoulder during his activities. He could not recall when the right-shoulder difficulty began. He had no recollection of mentioning this to his family physician, but he noted he had mentioned it to the physiotherapist. He acknowledged that he had not worked since the June 20, 2004 accident. He reached 65-year of age in February 2006, when he officially retired.

The investigator’s report was accepted, and the worker continued to be denied right-shoulder entitlement. It was concluded that there was no proof of accident for the right-shoulder injury and little evidence of any over-compensation because the worker had not worked since the date of accident.

The May 16,, 2008 CM's review noted Dr. Kwok’s report of March 14, 2007. The report indicated that the worker had good range of motion in both shoulders. The CM subsequently concluded that there was little indication of any continuing left-shoulder problem.

In the May 12, 2008 CM letter, the worker was denied entitlement to chronic pain disability (CPD) and psychotraumatic entitlement. It was concluded that his experience of pain could be well explained by his organic condition, and, hence, CPD entitlement could not be authorized. Since the June 30, 2004 accident was not traumatic and there was evidence of family-related problems, psychotraumatic disability entitlement was not allowed. The request for a left-shoulder permanent impairment would be further reviewed later.

The worker representative requested a permanent-disability award (PDA) re-assessment under Claim E.

The May 26, 2008 medical consultant’s review only analysed the medical information up to 1998 from Claims A and E. As there was no medical information after this date in these claims, it was opined that the worker made an excellent recovery after the two injuries, as he returned to work in regular duties with no reporting after 1998. No indication was made regarding Claim F or the medical information available since 2004.

The medical opinion was accepted. It was concluded by the CM that there was no evidence of a permanent impairment or a NEL award under Claim F. Although the medical consultant had suggested that a permanent-disability re-assessment under Claim E was not warranted, it was accepted by the CM, as there had been an extensive period of time since the last permanent-disability re-assessment. The ruling for benefits under s.147(4) and s.147(14), was deferred until after the permanent-disability re-assessment.

The January 8, 2009 permanent-disability re-assessment report concluded that since the May 1988 re-assessment, the worker expressed new symptoms in the left side of his back. As a result, it was recommended that his low-back permanent-disability award (PDA) under Claim E be increased to 12.5 per cent. It was recommended that the PDA increase be awarded from the date of the assessment, onwards.

The February 9, 2009 CM decision confirmed the 2.5 per cent PDA increase, and arrears were awarded back to January 18, 2008, which was three months prior to the worker representative’s request.

In regard to s.147(4) and s.147(14) benefits, the February 9, 2009 decision noted that the worker had returned to work in his regular duties after all his injuries that he sustained prior to 2004. In the 2004 claim, it was concluded that he had returned to his pre-accident injury level as of August 5, 2004. As a result, he was found to have been capable of re-approximating his pre-accident earnings as of August 5, 2004. Hence, there was no entitlement to s.147 benefits.

In the worker representative’s letter dated March 25, 2009, it was contended that the worker’s low-back condition had worsened as of 2004. It was suggested that the medical reporting, under Claim F, supported arrears to the date of accident in 2004.

The April 27, 2009 CM’s decision noted that the medical reporting under Claim F had been reviewed as part of the permanent-disability re-assessment by the medical consultant, and it was not found to support deterioration back to 2004. Hence, the request for arrears to 2004 was denied.

The worker representative’s letter dated June 9, 2009, disagreed with this conclusion, and it also requested psychotraumatic entitlement.

The July 13, 2009 CM’s decision found that there had been no indications of any psychological condition until at least January 2008. As Claim E had begun in 1986, over 20 years had passed at the time the psychological diagnosis appeared. The 2004 claim had resolved. Under WSIB Operational Policy Manual Document, 15-04-02 – Psychotraumatic Disability, there is a requirement that the onset of the condition be apparent within five years of the injury. Hence, psychotraumatic entitlement was denied.

Submissions

The worker representative forwarded submissions dated December 15, 2009.

AUTHORITY

Operational Policy Manual Documents (OPM)

• 11-01-05 – Determining Maximum Medical Recovery (MMR)

• 18-07-01 – Determining the Degree of Disability

• 18-07-02 – The Ontario Rating Schedule

• 18-07-03 – Type and Duration of Awards

• 18-07-04 – Calculating Permanent Impairment Benefits

• 18-07-05 – Arrears

• 11-01-15 – Aggravation Basis

• 15-04-02 – Psychotraumatic Disability

• 18-03-02 – Payment of LOE Benefits

• 18-03-03 – Reviewing LOE Benefits

• 15-03-01 – Recurrences

• 18-05-03 – Assessing the Degree of Permanent Impairment

• 18-06-03 – Definitions for Adjudicating Pre-1998 Claims

• 15-05-01 – Resulting from Work-Related Disability

• 15-05-02 – Accidents Resulting from Treatment

• 15-05-03 – Non-Work-Related Second Accidents

• 15-05-04 – Non-Work-Related Conditions – Reduction or Suspension of Benefits

RESOLUTION METHOD AND PROCESS

The worker representative has requested a decision based on submissions.

ASSESSMENT OF THE EVIDENCE AND SUBMISSIONS

I have reviewed the record and have examined the evidence. The key issues in this appeal include:

1. The sufficiency of the medical evidence to support that the worker had a continuing and/or permanent impairment for his left shoulder;

2. The sufficiency of the medical evidence to support that the worker’s right-shoulder is causally related to his 2004 accident injury;

3. The sufficiency of the medical evidence to support that the worker’s compensable injuries, arising from the 2004 claim, rendered him incapable of re-approximating his pre-accident wages from August 5, 2004 until February 24, 2006;

4. The sufficiency of the evidence to support that the worker’s psychological condition meets the criteria for psychotraumatic entitlement found in the WSIB OPM;

5. The sufficiency of the medical evidence to support that the 2004 accident resulted in a permanent aggravation of the worker’s pre-existing low-back condition;

6. The sufficiency of the medical evidence to support that the worker’s recently allowed low back permanent-disability deterioration had occurred as far back as 2004.

In regard to the left-shoulder issue, I note the following:

1. The worker’s accepted left-shoulder diagnosis in 2004 was of a left-shoulder strain. There is no indication that this was more than a simple soft-tissue injury;

2. After the June 2004 accident, there was no further medical reporting indicating any left-shoulder condition after July 2004;

3. Given the lack of further medical reporting, the Operating Area concluded the claim had resolved by August 2004;

4. The physiotherapist’s reporting indicated significant improvement to the left shoulder during 2004;

5. The November 17, 2004 orthopaedic consultant’s report made no indication of any shoulder problem;

6. The next medical report that mentioned left-shoulder problems is dated April 2009. There is a continuity gap in the medical reporting of about five years.

Given the above-noted evidence, I find that the worker’s compensable left-shoulder injury had resolved in 2004. He does not have continuing entitlement or any entitlement to a permanent impairment.

In regard to the right-shoulder condition, I note that there was no history of any injury to the worker’s right shoulder at the time of the 2004 accident. In the investigator’s report, the worker stated he was unsure of when his right-shoulder condition began.

The worker suggested that the right-shoulder condition arose as a result of over-compensating for his left shoulder. However, I have now found that the worker’s left-shoulder condition resolved by August 5, 2004. This would mean that he would have possibly over-compensated for slightly over one month after the date of accident, when performing his activities of daily living. I also note that the worker did not work from the date of accident, onwards. Hence, there was no work-related over-compensation.

As a result, I find there is insufficient evidence to support that the worker either injured his right shoulder on the date of accident or injured it later by having over-compensated for his left-shoulder condition. He does not have entitlement to a right-shoulder condition.

In regard to the issue of LOE benefits from August 5, 2004 until February 24, 2006 (when the worker reached 65-years of age), I note:

1. There are no medical reports from August 5, 2004 to February 24, 2006 that state that the worker was incapable of any return to work whatsoever;

2. The medical consultant’s review of August 2004 concluded that the worker was capable of a return to work in at least modified duties (if not regular duties);

3. The employer made clear indications that they had modified work available for the worker;

4. The evidence from the file indicates that the worker did not make any attempt to return to work with the employer;

5. Dr. Kowk’s November 17, 2004 report indicated, “I understand that he has decided to retire.”

Given the above-noted evidence, I find that the worker’s wage loss after August 5, 2004, was not the result of any of his compensable injuries. He would not be entitled to any LOE benefits under Claim F from August 5, 2004 until February 24, 2006.

A sub-issue here would be whether the worker would have been entitled to s.147(4) and s.147(14) benefits under either Claim A or E. After each of these injuries, the worker was able to return to work in his regular duties for many years without any wage loss. Even if I accept that the worker’s 2.5 per cent permanent-disability deterioration occurred as far back as August 2004, the fact remains that he was capable of at least modified duties by August 5, 2004 and modified duties were available with the employer at no-wage loss. The relevant policy requires that the injury must have had a significant responsibility in the worker’s wage loss before any entitlement to s.147(4) or s.147(147) benefits may be considered. Hence, I find the worker does not have any entitlement to s.147(4) or s.147(14) benefits under Claim A or E, between August 5, 2004 and February 24, 2006.

In regard to the issue of whether the 2004 injury led to a permanent aggravation of the worker’s pre-existing condition, I note:

1. There was a lack of continuing medical reporting about the low-back injury, which led to the conclusion that his low-back strain had resolved;

2. The physiotherapy reporting indicated a significant improvement in his low-back condition;

3. The November 2004 orthopaedic surgeon’s report indicated the worker experienced an improvement in his low-back condition;

4. In reviewing this issue, we are not looking for evidence of a complete recovery from low-back problems. We are only looking at whether the worker returned to his significant pre-existing 20 per cent low-back permanent-disability level and his concurrent DDD;

5. The medical consultant’s review found that the worker was only temporarily below his permanent-disability level.

Given that the worker suffered a low-back strain in the 2004 accident, I find that the above-noted evidence supports that his low-back aggravation of 2004 was temporary and had resolved back to his 20 per cent permanent-disability level. Hence, he does not have entitlement to a permanent aggravation or to a permanent impairment arising out of the 2004 claim.

Given that there was little medical reporting between 2004 and 2009, I find that the arrears date of January 2008 to be correct.

In regard to the psychotraumatic disability entitlement issue, I note that the first clear psychological assessment and diagnosis occurred in June 2009. This is about five years after the 2004 injury, which has been found to have concluded. Also, it is well over 20 years after the previous claim.

The worker representative argues that the requirement that a psychological condition should appear within five years of an injury is not an absolute requirement, only a general rule. As a result, this general rule has been waived on many occasions when situations clearly indicated a causal relationship between the injury and the psychological condition. This is true. However, the key factor to consider, here, is whether there exists related evidence that would clearly substantiate the relationship. In this situation, the related evidence is not clear.

The worker’s psychological condition appeared well after his 65^th birthday, when he began receiving old-age benefits. Also, there is clear evidence in the file that he decided to retire in 2004, just shortly after the last claim occurred. Hence, the question arises as to how this condition arose after years of retirement. For some, the retirement process, itself, may lead to psychological reactions.

In the limited psychological reporting, various potential causes are raised including pain, aggravated diabetes, family stressors, and disagreements with the WSIB. Based on this evidence alone, I would not be in a position to accept that there is sufficient evidence to relate the worker’s psychological condition to the compensable injuries he has incurred. However, I will direct the Operating Area to accept any updated psychological reporting and have it reviewed by the WSIB psychological consultant. The Operating Area may then rule on this new information.

CONCLUSION

I conclude:

1. The worker does not have a continuing impairment or permanent impairment for his left-shoulder injury that he incurred in 2004. Continuing entitlement and entitlement to a permanent impairment for the left shoulder are denied;

2. There is little evidence to support that the worker’s right-shoulder condition bears any relationship to any of his workplace injuries. Right-shoulder entitlement is denied;

3. The worker’s wage loss from August 5, 2004 until February 24, 2006 is not related to any of his claims. He was found capable of a return to work in at least modified duties, and these duties were made available to the worker by the employer, and the worker did not return to work. Hence, he is not entitled to LOE benefits for this period of time under his 2004 claim, nor would he be entitled to s.147(4) and/or s.147(14) benefits under any of his pre-1990 claims. Entitlement to LOE benefits or s.147(4) and s.147(14) benefits from August 5, 2004 until February 24, 2006 are both denied;

4. The arrears date of the recent 2.5 per cent increase to the worker’s permanent disability pension was correctly identified. His appeal for further arrears is denied;

5. The worker is not entitled to a permanent aggravation of his pre-existing low-back condition as a result of the 2004 accident. Continuing entitlement and a permanent impairment under Claim F is denied;

6. Although the WSIB OPM regarding psychotraumatic conditions does allow for exceptions to the general rule that the condition must arise within five years of the injury, there is a significant lack of related psychological evidence in the reporting to allow for entitlement. I direct the Operating Area to accept any updated psychological reporting and have it reviewed by the WSIB psychological consultant for an opinion on the causal relationship. The Operating Area can then rule on the updated information. The worker’s request for psychotraumatic disability entitlement is partially allowed.

The worker’s appeal is allowed in part.

Dated: March 3. 2010

P. Prummel

Appeals Resolution Officer

Appeals Branch