WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
decision number:
20150090
DECISION DATE:
August 14, 2015
OBJECTING PARTY:
Worker
REPRESENTED by:
Self-Represented
RESPONDENT:
Employer (no longer in operation)
HEARING:
Hearing in Writing
HEARD by:
Robert Sheridan, Appeals Resolution Officer
ISSUE:
November 19, 2012 Case Manager decision which denied entitlement for a permanent disability (PD) reassessment.
BACKGROUND:
On September 16, 1983 this then 21 year old worker sustained injuries to his left shoulder after moving a freezer. At the time of injury the worker was employed with (the company) as a transport truck driver.
The initial diagnosis was for left shoulder strain. Treatment post-accident was conservative consisting of analgesics.
The worker went on to develop recurrent anterior subluxations of the left shoulder. Left shoulder surgeries were performed on February 1, 1984, June 27, 1984, and December 21, 1984.
On January 5, 1987 the worker was granted a 10% Permanent Disability (PD) award in recognition of the left shoulder impairment.
Further left shoulder surgeries were performed on July 17, 1990 and in December 1991. The worker experienced significant complications from the 1991 surgery which resulted in dizziness, black outs, and cardiac arrhythmia.
On May 17, 1993 the PD award for the left shoulder was increased to 25%.
On June 12, 1997 the worker received a pacemaker which reduced his dizziness and cardiac arrhythmia. This procedure was considered to be within the scope of the claim.
The worker then developed painful and disabling dislocations of the left hip resulting in a surgical repair on June 29, 2000.
On August 1, 2001 the worker underwent a further PD assessment and was awarded a 30% award for the left shoulder, and 5% for the left hip and left thigh.
On December 10, 2004 the worker was granted a further 20% PD award for the pacemaker.
On January 24, 2005 the left hip and thigh PD award was increased to 10%.
On March 14, 2006 the worker was again reassessed and the left shoulder was increased to 35%, the left hip and thigh increased to 15%, an award for the left knee was denied, and the pacemaker was confirmed at 20%.
The worker then objected to the quantum of the PD award. In a decision rendered on March 22, 2007 an Appeals Resolution Officer confirmed the 35% award for the left shoulder and the 20% award for the pacemaker. A 5% award was granted for the left knee and the left hip and thigh award was increased to 20%. This brought the total PD award to the current level of 80%.
On November 30, 2011 the worker submitted further medical information and requested a PD reassessment.
On July 19, 2012 the worker formally objected to the denial of a PD reassessment.
On November 19, 2012 the Case Manager denied a PD reassessment on the basis that the medical reporting did not indicate a significant worsening of the range of motion in the affected joints.
RESOLUTION METHOD AND PROCESS:
On July 19, 2012 the worker requested that a decision would be rendered based on the information on file without the necessity of a formal hearing. The employer is no longer in operation. In reaching this decision I had regard for the worker arguments, the Board record, and Operational policy.
AUTHORITY:
Policy No: 18-07-01 : Determining The Degree of Disability
ANALYSIS:
The worker argued through the original objection form that the medical evidence did support a deterioration in his compensable condition.
Policy 18-07-01, determining the degree of disability, stipulates:
“When residual impairment continues even though the maximum medical recovery expected has been achieved following an accident, the WSIB undertakes a permanent disability evaluation. Generally, the evaluation is considered when the condition is stable, and the worker has attained maximum medical recovery.
If a permanent disability worsens, the WSIB may reassess the worker's disability. Additional disability developing subsequently is determined by physical examinations which may be made from time to time. The pensions awards considered include both monthly awards and previously commuted lump sum awards.”
In reviewing the information on file it is noted that on March 4, 2007 a WSIB medical consultant reviewed the existing medical findings reports and compared them to the previous PD assessments.
On the basis of this comparison the 35% award for the left shoulder was confirmed as was the 20% award for the pacemaker. Given the clinical findings a 5% increase for the left hip/thigh was recommended as was a 5% award for the left knee.
On October 12, 2012 the attending physician provided a report detailing the clinical measurements pertaining to the range of motion in the in the left shoulder, lumbar spine, left hip, and left knee.
The left shoulder has been granted the maximum allowable award of 35% and cannot be increased. The 20% award for the insertion of the pacemaker is also static and there is no evidence of deterioration in its functioning or any associated symptoms.
When compared to the clinical findings presented in the previous PD assessment there does not appear to be a significant deterioration in regards to the range of motion in the left hip/thigh or the left knee.
In a medical report dated July 14, 2014 the attending physician, in discussing a wheelchair related injury to the left ankle, states:
“This was not due to any change in any condition (of which there have not been any).”
I find from my analysis that the most recent medical measurements are not supportive of a PD reassessment.
CONCLUSION:
I conclude based on the objective medical evidence that there is no entitlement for a PD reassessment.
The worker’s objection is therefore denied.
DATED this day August 14, 2015
R. Sheridan
Appeals Resolution Officer
Appeals Services Division