WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 2103/16

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 2103/16 BEFORE: K. Cooper: Vice-Chair HEARING: August 16, 2016 at Toronto Written DATE OF DECISION: August 19, 2016 NEUTRAL CITATION: 2016 ONWSIAT 2245 DECISION UNDER APPEAL: WSIB Appeals Resolution Officer (ARO) dated February 12, 2015 APPEARANCES: For the worker: For the employer: Interpreter: F. Martins, Lawyer Not participating N/A Workplace Safety and Insurance Appeals Tribunal Tribunal d appel de la sécurité professionnelle et de l assurance contre les accidents du travail 505 University Avenue 7 th Floor 505, avenue University, 7 e étage Toronto ON M5G 2P2 Toronto ON M5G 2P2

2 Decision No. 2103/16 REASONS (i) Introduction [1] The worker appeals a decision of an Appeals Resolution Officer, dated February 12, The ARO rendered a decision based upon the written record without an oral hearing. That decision concluded that the worker was not entitled to a Non-Economic Loss (NEL) award for permanent impairment of the right shoulder, right hand/wrist, and the left knee. The ARO also concluded that the worker was not entitled to Loss of Earnings (LOE) benefits beyond December 31, [2] Entitlement in this claim was accepted for a right shoulder, right hand, and left knee injury on November 6, LOE benefits were paid from October 27, 2008 up to but not including December 31, As of this date the worker s Case Manager (CM) determined that the worker had made a full recovery and was thus not entitled to recognition of permanent impairment of either of the right shoulder, right hand, and left knee, nor to ongoing LOE benefits. [3] The worker objected to this finding leading to the appeal herein. (ii) Issues [4] The issues under appeal are whether the worker has permanent impairment of her right shoulder, right hand, and left knee and is entitled to a NEL award for same; and whether the worker is entitled to ongoing LOE benefits beyond December 31, (iii) Background Medical reports [5] An initial assessment from the WSIB Shoulder and Elbow Specialty Program dated May 23, 2006 indicated that the worker had suffered injuries to her right shoulder, right elbow, right hand, and left knee on November 6, 2005 when she fell outside at work. [6] A diagnostic imaging report of the right shoulder dated May 23, 2006 found no abnormality. [7] A left knee ultrasound dated May 31, 2006 found moderate joint effusion, but no joint or bone abnormality. [8] A total body bone scan dated May 31, 2006 found left knee synovitis without significant underlying arthritis, as well as minimal arthritis in the right thumb and shoulder. [9] A report dated December 17, 2007 from Dr. Wright, an orthopaedic specialist, noted that the worker did not have any significant effusion of the knee, but reported pain in her right shoulder. [10] An ultrasound of both shoulders dated December 18, 2007 indicated a tear of the left shoulder supraspinatus and infraspinatus, but no abnormality in the right shoulder. [11] A MRI of the left knee dated April 2, 2008 found osteochondritis dissecans.

3 Page: 2 Decision No. 2103/16 [12] A report dated August 18, 2008 from Dr. Wright indicated that the worker had increasing problems with her left knee, as well as waiting for an EMG of her right hand, and to see a specialist regarding her right shoulder. [13] An operative report dated October 27, 2008 noted that the worker had undergone arthroscopic debridement of the left knee, with a diagnosis of left knee osteoarthritis. [14] A report dated March 31, 2009 from Dr. Holtby, an orthopaedic surgeon, stated: Examination today of her right shoulder showed 120 degrees of flexion with external rotation of 45 degrees and internal rotation to waist level. She had minimally positive impingement signs. Rotator cuff strength was grade 4 out of 5 for supraspinatus and normal for the rest. X-rays were reviewed and show no significant rotator cuff impingement. She has had an ultrasound scan of both shoulders. Interestingly, this right shoulder showed no tears, but the left shoulder which is asymptomatic showed partial thickness tearing. With normal x-rays and ultrasound scan, I do not think there is a role for surgery. This appears to be a sprain injury and I would recommend that she focus on strengthening exercises. [15] A report dated September 9, 2009 from Dr. Avila, a pain management specialist, indicated that the worker had obtained employment as a janitor at a casino, but was unable to land a full time job due to limitations in her range of motion, physical strength, and endurance. [16] A report dated October 21, 2009 from Dr. Sehmi, an orthopaedic surgeon, stated: On examination, her neck had mild discomfort on the right side, but otherwise mobile. Her right shoulder had some discomfort over the supraspinatus. The movements were full. The right elbow was tender over the common flexor origin, with full range of movements. There was some tenderness in the base of the right thumb. The movements were otherwise full in the wrist and fingers. She had some numbish feeling along the palmar aspect of the right thumb. The grip was weak and I felt that she may have a nerve entrapment and I sent her for EMG studies, and it does show that she has a mild carpal tunnel stenosis, most likely chronic since she fell and would benefit from wearing a carpal tunnel splint. [17] A report dated January 13, 2010 from Dr. Avila noted that the worker had chronic pain involving the left knee, right shoulder, right hand, right elbow, and right wrist. [18] A left knee ultrasound dated February 24, 2010 found no abnormality or effusion. [19] A MRI of the left knee dated July 29, 2010 found a complex tear of the posterior horn medial meniscus with small displaced meniscal fragment. [20] A report dated August 4, 2010 from Dr. Avila noted that the worker exhibited regional myofascial pain, and fibromyalgia, probably posttraumatic. [21] A MRI of the right shoulder dated February 26, 2011 found mild to moderate supraspinatus tendinosis, with a high grade bursal side tear. A degenerative tear of the superior glenoid labrum with a tiny cyst was found. Bursitis was also noted. [22] A post-operative report dated June 9, 2011 noted osteoarthritis in the left knee.

4 Page: 3 Decision No. 2103/16 (b) Board memoranda [23] Memo #58, dated November 12, 2013 contained a review of the worker s file by Dr. Kanalec, a Board Medical Consultant. He indicated that he had reviewed all of the medical information on file available as of that date. He opined: In summary it appears the worker strained her right shoulder, right elbow, right hand, right thumb, and contused her left knee. There is not any clinical information on file predating this injury. In summary it appears that the right shoulder strains, right hand strains, right thumb strains and right elbow strain have most likely resolved. Over the years she continued to complain of right shoulder discomfort but continued to work at alternative job. Imaging proximal to the work injury did not note any evidence of rotator cuff damage or tear and it wasn t until several years later that imaging studies noted a partial rotator cuff tear necessitating surgery and rotator cuff repair. I cannot relate the rotator cuff repair temporally to the work incident in question. It appears the CMC strain, right hand strains and right elbow strains have essentially resolved with possible ongoing subjective reporting of pain but without any obvious evidence of objective impairment as related to the work incident. There is noted evidence of probable CMC joint arthritis that was pre-existing. I cannot relate the CTS diagnosis and need for CTS release as strictly related to this work incident as there wasn t any fracture of the carpal bones or significant swelling in the carpal area described immediately after the work incident. There is evidence that she contused her left knee however ongoing discomfort and left knee issues appear to be related to underlying significant degenerative conditions and osteochondritis dissecans of the medial femoral condyle and associated degenerative change throughout the knee in several compartments. Therefore, the first arthroscopy may be claims related because of ongoing discomfort and from an investigative standpoint but multi-compartmental debridement would unlikely be related to the simple contusion of the knee. Any ongoing symptoms are most likely related to intra-articular degenerative condition which most likely pre-existed the work incident. There isn t entitlement to osteochondritis dissecans as a claims related diagnosis. [24] Memo #52 dated November 22, 2013 noted that the worker s October 27, 2008 left knee surgery was related to her claim, and full LOE benefits were paid from October 27, 2008 to December 31, The memo indicated that there was no indication that the worker was totally disabled before or after the surgery and recovery time. The worker s medical visit of December 30, 2008 indicated that the worker could return to work. (c) Correspondence [25] A letter dated June 8, 2007 from the accident employer to the worker indicated that they had requested a Functional Abilities Form (FAF) from the worker on May 30, 2007 to determine what modified duties may be suitable for the worker, but that they had not yet received same. [26] A letter dated June 25, 2007 from the accident employer to the worker noted that they had received a note from the worker s family doctor which indicated that worker could not perform modified work, and that they were awaiting an updated FAF. [27] A letter dated August 17, 2007 from the accident employer to the worker noted that they had sent a letter dated July 10, 2007 to her in response to a prescription pad note from her doctor which only stated modified duties, requesting an up to date FAF. The employer noted

5 Page: 4 Decision No. 2103/16 that it had sent a second letter dated July 30, 2007 requesting the same. The letter went on to note: You have not responded or been a participant to this process. As such, you are absent without leave or proper justification. Failure to respond with the required information or a satisfactory explanation in writing on or before August 31, 2007 my result in your dismissal without further notice. (iv) Law and policy [28] Section 46 of the Workplace Safety and Insurance Act, 1997 (the WSIA) and section 42 of the pre-1997 Workers Compensation Act, as amended, provide that if a worker s injury results in permanent impairment, the worker is entitled to compensation for non-economic loss. [29] Impairment means a physical or functional abnormality or loss (including disfigurement) which results from an injury and any psychological damage arising from the abnormality or loss. [30] Permanent impairment means impairment that continues to exist after the worker reaches maximum medical recovery. [31] Legislation and Board policy provide that the degree of a worker s permanent impairment is determined in accordance with the prescribed rating schedule or criteria, any medical assessments, and having regard to the health information on file. The prescribed rating schedule for most impairments is the American Medical Association s Guides to the Evaluation of Permanent Impairment, 3rd edition (revised) (the AMA Guides). The Board has adopted specific rating schedules for impairment due to psychological disability, fibromyalgia, chronic pain and other conditions. [32] Since the worker was injured in 2005, the WSIA is applicable to this appeal. All statutory references in this decision are to the WSIA, as amended, unless otherwise stated. [33] Specifically, sections 40 and 43 of the WSIA govern the worker s entitlement in this case. Section 40 of the WSIA provides in part: 40(1) The employer of an injured worker shall co-operate in the early and safe return to work of the worker by, contacting the worker as soon as possible after the injury occurs and maintaining communication throughout the period of the worker's recovery and impairment; (b) attempting to provide suitable employment that is available and consistent with the worker's functional abilities and that, when possible, restores the worker's pre-injury earnings; (c) giving the Board such information as the Board may request concerning the worker's return to work; and (d) doing such other things as may be prescribed. 1997, c. 16, Sched. A, s. 40 (1). (2) The worker shall co-operate in his or her early and safe return to work by, contacting his or her employer as soon as possible after the injury occurs and maintaining communication throughout the period of the worker's recovery and impairment; (b) assisting the employer, as may be required or requested, to identify suitable employment that is available and consistent with the worker's functional abilities and that, when possible, restores his or her pre-injury earnings;

6 Page: 5 Decision No. 2103/16 (c) giving the Board such information as the Board may request concerning the worker's return to work; and (d) doing such other things as may be prescribed. 1997, c. 16, Sched. A, s. 40 (2). [34] Section 43 of the WSIA provides in part that: 43(1) A worker who has a loss of earnings as a result of the injury is entitled to payments under this section beginning when the loss of earnings begins. The payments continue until the earliest of, the day on which the worker's loss of earnings ceases; (b) the day on which the worker reaches 65 years of age, if the worker was less than 63 years of age on the date of the injury; (c) two years after the date of the injury, if the worker was 63 years of age or older on the date of the injury; (d) the day on which the worker is no longer impaired as a result of the injury. 1997, c. 16, Sched. A, s. 43 (1). (3) The amount of the payment is 85 per cent of the difference between his or her net average earnings before the injury and any net average earnings the worker earns after the injury, if the worker is co-operating in health care measures and, his or her early and safe return to work; or (b) all aspects of a labour market re-entry assessment or plan. 1997, c. 16, Sched. A, s. 43 (3); 2000, c. 26, Sched. I, s. 1 (6). (4) The Board shall deem the worker's earnings after the injury to be the earnings that the worker is able to earn from the employment or business that is suitable for the worker under section 42 and, if the worker is provided with a labour market re-entry plan, the earnings shall be deemed as of the date the worker completes the plan; or (b) if the Board determines that the worker does not require a labour market re-entry plan, the earnings shall be deemed as of the date this determination is made. 1997, c. 16, Sched. A, s. 43 (4). (7) The Board may reduce or suspend payments to the worker during any period when the worker is not co-operating, in health care measures; (b) in his or her early and safe return to work; or (c) (v) in all aspects of a labour market re-entry assessment or plan provided to the worker. 1997, c. 16, Sched. A, s. 43 (7). Submissions [35] Mr. Martins, in his submissions of March 1, 2016, stated that the medical evidence on file supported a finding that the worker suffered a workplace accident which injured her right shoulder, hand/wrist, as well as her left knee, from which she never recovered. As such, he submitted, she was entitled to a NEL award for these permanent impairments. He further

7 Page: 6 Decision No. 2103/16 submitted that the worker had been unable to continue with her full time duties with the accident employer and was therefore entitled to LOE benefits from December 31, 2008 ongoing. (vi) Analysis [36] As noted above, Permanent impairment means impairment that continues to exist after the worker reaches maximum medical recovery. If a worker is found to have a permanent impairment they are entitled to a NEL assessment. PI of the right shoulder, right wrist/hand [37] Mr. Martins submitted that the medical evidence on file supported a finding that the worker had suffered a permanent impairment of her right shoulder, and her right hand/wrist. [38] With respect to these body parts I note the following: A diagnostic imaging report of the right shoulder dated May 23, 2006 which found no abnormality. A total body bone scan dated May 31, 2006 which found arthritis in the right thumb and shoulder. An ultrasound of both shoulders dated December 18, 2007 which indicated a tear of the left shoulder supraspinatus and infraspinatus, but no abnormality in the right shoulder. A report dated March 31, 2009 from Dr. Holtby, an orthopaedic surgeon, which stated: Examination today of her right shoulder showed 120 degrees of flexion with external rotation of 45 degrees and internal rotation to waist level. She had minimally positive impingement signs. Rotator cuff strength was grade 4 out of 5 for supraspinatus and normal for the rest. X-rays were reviewed and show no significant rotator cuff impingement. She has had an ultrasound scan of both shoulders. Interestingly, this right shoulder showed no tears, but the left shoulder which is asymptomatic showed partial thickness tearing. With normal x-rays and ultrasound scan, I do not think there is a role for surgery. This appears to be a sprain injury and I would recommend that she focus on strengthening exercises. A report dated October 21, 2009 from Dr. Sehmi, an orthopaedic surgeon, stated: On examination, her neck had mild discomfort on the right side, but otherwise mobile. Her right shoulder had some discomfort over the supraspinatus. Memo #58, dated November 12, 2013 contained a review of the worker s file by Dr. Kanalec, a Board Medical Consultant. He indicated that he had reviewed all of the medical information on file available as of that date. He opined: In summary it appears the worker strained her right shoulder, right elbow, right hand, right thumb, and contused her left knee. There is not any clinical information on file predating this injury. In summary it appears that the right shoulder strains, right hand strains, right thumb strains and right elbow strain have most likely resolved. Over the years she continued to complain of right shoulder discomfort but continued to work at alternative job. Imaging proximal to the work injury did not note any evidence of rotator cuff damage or tear and it wasn t until several years later that imaging studies noted a partial rotator cuff tear

8 Page: 7 Decision No. 2103/16 necessitating surgery and rotator cuff repair. I cannot relate the rotator cuff repair temporally to the work incident in question. [39] Thus, with respect first to the right shoulder, the medical evidence as set out above found no evidence of right shoulder abnormality contemporaneous to the workplace incident, and later tests indicated that the worker had a tear in her left shoulder, which is not before me. Drs. Holtby and Sehmi, both orthopaedic specialists, found that the worker had no significant objective evidence of a right shoulder injury as a result of her workplace accident, and the Board Medical Consultant opined that her initial strain had resolved. Although later tests showed issues with the right shoulder, these tests came several years after the earlier tests had shown no tears or issues with respect to her right shoulder. Therefore, as the Board Medical Consultant concluded, this cannot be temporally related to her workplace accident. [40] Therefore, on the balance of probabilities, and relying on the opinions of Drs. Holtby, Sehmi, and Kanalec, I find that the worker does not have an ongoing impairment of her right shoulder causally related to her workplace accident. [41] With respect to her right hand/wrist, I note as set out above that a bone scan had found evidence of arthritis at her right thumb. I also note the following: [Dr. Kanalec] It appears the CMC strain, right hand strains and right elbow strains have essentially resolved with possible ongoing subjective reporting of pain but without any obvious evidence of objective impairment as related to the work incident. There is noted evidence of probable CMC joint arthritis that was pre-existing. I cannot relate the CTS diagnosis and need for CTS release as strictly related to this work incident as there wasn t any fracture of the carpal bones or significant swelling in the carpal area described immediately after the work incident. [42] A report dated October 21, 2009 from Dr. Sehmi, an orthopaedic surgeon, stated: The right elbow was tender over the common flexor origin, with full range of movements. There was some tenderness in the base of the right thumb. The movements were otherwise full in the wrist and fingers. She had some numbish feeling along the palmar aspect of the right thumb. The grip was weak and I felt that she may have a nerve entrapment and I sent her for EMG studies, and it does show that she has a mild carpal tunnel stenosis, most likely chronic since she fell and would benefit from wearing a carpal tunnel splint. [43] I also note that the worker s diagnosis of CTS [Carpal Tunnel Syndrome] was bilateral. [44] Thus, Dr. Kanalec opined that he could not relate the worker s CTS to her workplace accident, and given that it was bilateral this would suggest that the condition s etiology was not that of an accident. I also note that in the Tribunal discussion paper on Carpal Tunnel Syndrome contained in the Case Record, it states that a contusion to the wrist would be distinctly unlikely to cause either a direct median nerve or to predispose the patient to developing symptoms of carpal tunnel syndrome due to compression of the median nerve. [45] Therefore, on the balance of probabilities, and relying upon the opinions of Drs. Kanalec and Sehmi, and on that of the discussion paper Carpal Tunnel Syndrome by Dr. Graham, I find that the worker does not have a permanent impairment of her right hand/wrist and is therefore not entitled to a NEL award for same. This portion of her appeal is denied. (b) Left knee [46] With respect to the left knee, I note the following:

9 Page: 8 Decision No. 2103/16 A left knee ultrasound dated May 31, 2006 which found moderate joint effusion, but no joint or bone abnormality. A total body bone scan dated May 31, 2006 which found left knee synovitis without significant underlying arthritis, as well as minimal arthritis in the right thumb and shoulder. A MRI of the left knee dated April 2, 2008 which found osteochondritis dissecans. A report dated August 18, 2008 from Dr. Wright which indicated that the worker had increasing problems with her left knee. An operative report dated October 27, 2008 which noted that the worker had undergone arthroscopic debridement of the left knee, with a diagnosis of left knee osteoarthritis. A MRI of the left knee dated July 29, 2010 which found a complex tear of the posterior horn medial meniscus with small displaced meniscal fragment. Memo #58, dated November 12, 2013 which contained a review of the worker s file by Dr. Kanalec, a Board Medical Consultant. He indicated that he had reviewed all of the medical information on file available as of that date. He opined: There is evidence that she contused her left knee however ongoing discomfort and left knee issues appear to be related to underlying significant degenerative conditions and osteochondritis dissecans of the medial femoral condyle and associated degenerative change throughout the knee in several compartments. Therefore, the first arthroscopy may be claims related because of ongoing discomfort and from an investigative standpoint but multi-compartmental debridement would unlikely be related to the simple contusion of the knee. Any ongoing symptoms are most likely related to intra-articular degenerative condition which most likely pre-existed the work incident. There isn t entitlement to osteochondritis dissecans as a claims related diagnosis. [47] Osteochondritis dissecans is normally found in young people and is commonly associated with repetitive stress on the joint, although the exact cause of this condition is considered unknown according to various medical sources, including the Mayo Clinic. Dr. Kanelac opined that the worker s first arthroscopic surgery was claims related, and indeed the Board agreed and paid the worker LOE benefits from the date of surgery to December 31, [48] There is no dispute that the worker struck her left knee in the workplace fall, and that thereafter her left knee has never recovered. The question is whether the workplace accident caused her ongoing issues, or whether they relate to pre-existing and/or underlying causes unrelated to the worker s accident. [49] In this instance, the early medical reporting showing continuous problems with the left knee from the date of injury, and Dr. Kanelac opined that, at the very least, the worker s first operation was claims related. Although it is possible that the worker s underlying issues contribute to her ongoing left knee issues, it is also possible that her workplace accident significantly contributed to her ongoing left knee issues. Board policy sets out that where the evidence for and against are relatively equal the benefit of the doubt is to be extended to the worker. In this instance, I find that the evidence for and against the worker s accident causing her left knee condition to be relatively equal and, as such, I find that the worker has an ongoing and permanent impairment of her left knee as is entitled to a NEL award for same. This portion of her appeal is allowed.

10 Page: 9 Decision No. 2103/16 (c) LOE from December 31, 2008 [50] Specifically, sections 40 and 43 of the WSIA govern the worker s entitlement in this case. Section 40 of the WSIA provides in part: (2) The worker shall co-operate in his or her early and safe return to work by, contacting his or her employer as soon as possible after the injury occurs and maintaining communication throughout the period of the worker's recovery and impairment; (b) assisting the employer, as may be required or requested, to identify suitable employment that is available and consistent with the worker's functional abilities and that, when possible, restores his or her pre-injury earnings; (c) giving the Board such information as the Board may request concerning the worker's return to work; and (d) doing such other things as may be prescribed. 1997, c. 16, Sched. A, s. 40 (2). [51] In this instance the worker was performing two jobs at the time of her accident. She worked full time with the accident employer, and part time with a casino operator. The worker performed janitorial work at both employers. [52] Following her accident the worker continued her part time job. With respect to her full time job with the accident employer, this employer accommodated the worker after she first injured herself with modified work. Board memoranda show that the accident employer maintained contact with the WSIB and repeatedly requested updated information on the worker s condition that would allow the employer to provide suitable modified work, as set out in the Act. [53] There is no medical evidence on file that indicates that the worker was ever totally disabled. Noting that she continued to work part time at her alternate janitorial employment, this would suggest that the worker was capable of performing her regular duties without accommodation. I also note that the worker s doctor indicated in his notes of December 30, 2008 that the worker could return to work. [54] More noteworthy, however, is the worker s lack of communication and cooperation with the accident employer concerning her abilities to perform work. As set out in the Act, and above, a worker has a duty to maintain contact with the accident employer and to provide them with any and all information that could help them determine whether or not suitable modified work could be provided. In particular, I note: A letter dated June 8, 2007 from the accident employer to the worker which indicated that they had requested a FAF from the worker on May 30, 2007 to determine what modified duties may be suitable for the worker, but that they had not yet received same. A letter dated June 25, 2007 from the accident employer to the worker which noted that they had received a note from the worker s family doctor which indicated that worker could not perform modified work, and that they were awaiting an updated FAF. A letter dated August 17, 2007 from the accident employer to the worker which noted that they had sent a letter dated July 10, 2007 to her in response to a prescription pad note from her doctor which only stated modified duties, requesting an up to date FAF. The employer noted that it had sent a second letter dated July 30, 2007 requesting the same. The letter went on to note:

11 Page: 10 Decision No. 2103/16 You have not responded or been a participant to this process. As such, you are absent without leave or proper justification. Failure to respond with the required information or a satisfactory explanation in writing on or before August 31, 2007 my result in your dismissal without further notice. [55] It appears that the worker never contacted the accident employer with an up to date FAF, or with any other information that would have allowed the accident employer to determine if they had suitable modified work available for her. Subsequently, she was terminated from the accident employer. [56] Had the worker provided the information requested by the accident employer, one of two outcomes would have occurred. Either the accident employer would have been able to provide suitable modified work for the worker, which would have meant no loss of earnings for the worker; or the accident employer would have been unable to provide suitable modified work for the worker which would have entitled the worker to LOE benefits and a referral to a LMR assessment. Since the worker did not respond, her ongoing loss of earnings (less any recovery period from allowable surgery) is a result of her refusal or failure to cooperate in her early and safe return to work (ESRTW) and not a result of her compensable injury. [57] The Act and attendant policy is quite clear on the obligations and responsibilities of the worker during the ESRTW process, and the evidence before me and as set out above indicates that the worker did not meet these obligations and responsibilities, most particularly sections 40 (b), by not maintaining contact with the accident employer throughout the process and by not providing them with the necessary information to determine whether suitable modified work could be offered or not. [58] Given that I have found the worker has a permanent impairment of the left knee, there may be periods of time (such as recovering from compensable surgery) when she is entitled to LOE benefits, but that determination would be made at the Board level subject to the usual rights of appeal. [59] With respect to LOE benefits beyond December 31, 2008 I find that the worker s ongoing loss of earnings is a result of her failure or refusal to cooperate in her ESRTW process and not a result of her compensable accident. This portion of her appeal is denied.

12 Page: 11 Decision No. 2103/16 DISPOSITION [60] The appeal is allowed in part as follows: 1. The worker does not have entitlement to a NEL assessment for her right shoulder or right wrist/hand. 2. The worker does have entitlement to a NEL assessment for her left knee. 3. The worker does not have entitlement to ongoing LOE benefits beyond December 31, DATED: August 19, 2016 SIGNED: K. Cooper