WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 2194/15

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1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 2194/15 BEFORE: G. McCaffrey: Vice-Chair HEARING: October 9, 2014 at Toronto Written DATE OF DECISION: October 27, 2015 NEUTRAL CITATION: 2015 ONWSIAT 2411 DECISION(S) UNDER APPEAL: WSIB Appeals Resolution Officer (ARO) F. Amorin dated May 15, 2014 APPEARANCES: For the worker: For the employer: Self-represented Not participating 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. 2194/15 REASONS (i) Introduction [1] The worker appeals the decision of Appeals Resolution Officer (ARO) F. Amorin, dated May 15, That decision confirmed the quantum of the worker s right shoulder non-economic loss (NEL) award. (ii) Background [2] The following are the basic facts. [3] The worker started working for the employer in On January 15, 2008, at age 49, while employed as a sales account executive, she slipped and fell on ice in her employer s parking lot. The diagnosis was of a right acromioclavicular joint separation. She returned to work on January 18, The worker continued to have shoulder problems despite a range of treatment. A subsequent MRI found a full thickness rotator cuff tear. On May 2, 2010 she underwent a surgical repair; she then received loss of earnings (LOE) benefits until she returned to work on July 5, The maximum medical rehabilitation (MMR) date, the date at which there is unlikely to be any further significant improvement in the worker's medical condition, was set as August 4, The worker underwent a medical assessment on October In November 2011 the Board granted a 17% non-economic loss (NEL) award. [4] The worker objected to the MMR date. A July 2012 ARO decision adjusted the MMR date to March 29, The Board accepted a subsequent deterioration in the right shoulder condition with a permanent worsening date set as May 24, An August 2013 NEL redetermination increased the NEL award to 19%. A December 2013 review by the NEL clinical specialist confirmed the quantum. The worker s objection to the quantum of the award was denied by an ARO on May 15, The worker continues to object, and the quantum of the NEL award for the right shoulder impairment is the issue now before the Tribunal. (iii) Law and policy [5] 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. [6] 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. [7] Permanent impairment means impairment that continues to exist after the worker reaches maximum medical recovery. [8] 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.

3 Page: 2 Decision No. 2194/15 [9] Pursuant to section 126 of the WSIA, the Board stated the following policy packages, Revision #9, apply to the subject matter of this appeal: #263 NEL Quantum #300 Decision Making/Benefit of Doubt/Merits and Justice [10] In addition I note Operational Policy Manual (OPM) Document No NEL Redetermination. (iv) Analysis [11] The appeal is denied for the reasons set out below. [12] The sole issue before me is whether the 19% NEL award was correct as of the August 2013 NEL redetermination. In the communication with the Tribunal there are references to the accident employer closing, future earnings, and the possibility of future surgery. These issues do not have a bearing on the issue of whether the objective medical findings, as they existed at the time, were correctly rated in August The entitlement in the claim is for a right shoulder rotator cuff tear and subsequent surgical repair. There are references in the record to pain in the arm and neck associated with the compensable injury. There is no distinct entitlement for these areas. With respect to organic conditions, it is generally accepted that pain, as a sensation, will manifest itself in restricted range of motion. Thus, to the extent that pain restricts movement, it is captured in the assessment. [13] Turning first turn to the permanent worsening date (PWD), I find there is no basis on which to disturb the Board's date. OPM Document No defines the PWD as the date the deterioration in the worker's condition stabilized and/or no further significant improvement is likely. Increases in the NEL benefit are payable from the PWD. [14] The medical reports prior to May 2013 describe the treatment the worker was undertaking. Active treatment is not consistent with having attained a new MMR level. For example the pain clinic report dated June 7, 2012 from Dr. Kargel recommended the use of nerve blocks for pain control. Dr. Cayen, orthopaedic surgeon, in his April 30, 2013 report suggested further physiotherapy to maximize her passive range of motion especially in forward flexion. Furthermore, the medical reports prior to May 2013 do not include all the measurements required for a NEL determination. The June 7, 2012 report from Dr. Kargel only indicates the worker s right shoulder range of motion was rated at 25% normal but did not indicate the degrees of flexion, extension, abduction, adduction, internal rotation or external rotation. Dr. Cayen s report dated April 30, 2013 only indicated that the worker had full passive external rotation and that the worker was unable to forward flex her shoulder actively beyond approximately 20º of forward flexion without pain. While Dr. Cayen s report lists a worsening in flexion from the prior NEL assessment in 2011 (from 70º to 20º of flexion), his report also notes an improvement in external rotation since the prior NEL assessment (from 50º of external rotation to full external rotation). No other measurements are recorded by Dr. Cayen. I find on the balance of probabilities that these reports do not demonstrate a permanent worsening in the worker s condition to warrant an earlier permanent worsening date. [15] The Board considered the PWD to be May 24, 2013 based on the report of that date from Dr. McGarr, chiropractor. A Board medical review confirmed both a deterioration from the

4 Page: 3 Decision No. 2194/15 previous NEL assessment, and that May 24, 2013 should be used to establish the PWD. I note the NEL clinical specialist questioned that date as the report refers to the possibility of conservative physiotherapy improving the range of motion. That echoes the April 30, 2013 orthopedic surgeon s report indicating physiotherapy to maximize the passive range of motion. No surgery was suggested and no follow-up was arranged. [16] The worker advised however, on June 7, 2013 in Board Memo #51, that she was not seeking further entitlement for physiotherapy or further surgery, she had received physiotherapy and chiropractic treatment in the past and had discontinued because she was no longer getting any benefit. In August 2013, according to Board Memo #55, the worker again advised she had done all the treatments necessary, she was looking after the shoulder herself with exercises, a heat therapy machine and swimming, and she expressed the view that further physiotherapy could cause more harm. Based on the worker s indication that her condition was stable, the NEL redetermination was arranged. On that basis and in the absence of any objective information to the contrary, I find the PWD of May 24, 2013 is correct. [17] Turning to the quantum itself, no argument has been put forth that either the range of motion measurements used were incorrectly recorded, or not representative of the worker s condition at that time. There was also no suggestion the AMA guides were incorrectly applied or there was an error in the calculations on the NEL evaluation form dated August 20, [18] I have reviewed the 2013 range of motion figures, and they do represent a slight deterioration from the 2011 NEL determination. The worker s flexion decreased from 70º in 2011 to 60º in 2013; the worker s extension improved slightly from 15º to 20º; the worker s abduction decreased from 60º to 25º; the worker s adduction remained the same at 20º; the worker s internal rotation decreased from 50º to 15º; and the worker s external rotation decreased from 50º to 15º. [19] I find that the information on the NEL evaluation form accurately reflects figures in the May 24, 2013 report. I further find the calculations on the NEL evaluation form are in accordance with the AMA guides and were combined correctly to come to the 19% whole person impairment. Accordingly I find the worker s right shoulder impairment was correctly evaluated in August 2013 as being 19%. [20] Should the worker suffer a significant deterioration subsequent to August 2013, she may request a further redetermination at the Board at that time, subject to the usual rights of appeal.

5 Page: 4 Decision No. 2194/15 DISPOSITION [21] The appeal is denied. DATED: October 27, 2015 SIGNED: G. McCaffrey