WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL

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1 2005 ONWSIAT 469 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1300/04 [1] This appeal was considered in Toronto on August 3, 2004, by Tribunal Vice-Chair M. Crystal. THE APPEAL PROCEEDINGS [2] The worker appeals the decision of Appeals Resolution Officer (ARO) G. Sicillia, dated October 19, That decision concluded that: i) in relation to a workplace accident which allegedly occurred on January 21, 2000, the worker was not entitled to benefits subsequent to July 10, 2000; ii) in relation to the January 21, 2000 accident, the worker was not entitled to a permanent impairment (PI) assessment for the low back; iii) in relation to a workplace accident which allegedly occurred on March 1, 1998, the worker was not entitled to benefits for lost time; and iv) in relation to the March 1, 1998 accident, the worker was not entitled to a permanent impairment (PI) assessment for the right shoulder. [3] The worker also appeals the decision of Claims Adjudicator (CA), M. Mosey, dated October 20, That decision concluded that the workplace accidents alleged to have occurred on January 21, 2000 and March 1, 1998, should not be amalgamated into a claim by the worker for an earlier workplace accident which occurred on July 5, That decision was confirmed as a final decision of the Board in correspondence from Paul Gilkinson, Director, Appeals Branch, dated January 5, [4] This appeal was referred to me as part of the Tribunal s alternative dispute resolution (ADR) process. [5] The worker was represented by Mr. Odoardo Di Santo, consultant. The employer was represented by Mr. Jim O Dell, consultant. THE RECORD [6] The material in the Case Record, dated March 12, 2003, prepared by the Office of the Vice-Chair Registrar (Exhibit #1) was considered. In addition, Addendum No. 1, dated March 12, 2003 (Exhibit #2), Addendum No. 2, dated July 6, 2004 (Exhibit #3), the Background Summary prepared by the Tribunal s ADR Officer dated July 8, 2004 (Exhibit #4) and the ADR Agreement signed by the parties and their respective representatives, dated July 8, 2004 (Exhibit #5) were considered.

2 Page: 2 Decision No. 1300/04 THE ISSUES [7] The issues to be determined in this appeal are: i) whether the workplace accidents alleged to have occurred on March 1, 1998 and January 21, 2000 were recurrences of the July 5, 1996 workplace accident, and whether the claims in relation to the 1998 and 2000 accidents should therefore be amalgamated into the claim for the 1996 accident; ii) if the claims should be so amalgamated, whether the worker is entitled to compensation benefits subsequent to July 10, 2000 under the amalgamated claim; iii) if the claims should be so amalgamated, whether the worker is entitled to a benefit for a PI for the low back under the amalgamated claim; and iv) if the claims should be so amalgamated, whether the worker is entitled to a benefit for a PI for the right shoulder under the amalgamated claim. THE REASONS (i) Background [8] As a result of participation in the Tribunal s ADR process, the worker and his representative and the Tribunal s ADR Officer have agreed that the worker s appeal should be resolved on the following terms: i) The worker s appeal is allowed. ii) The March 1, 1998 and January 21, 2000 claims are considered recurrences of the July 5, 1996 claim, rather than new accidents. The Board is directed, therefore, to amalgamate the 1998 and 2000 claims with the 1996 claim. iii) Under the July 1996 claim, the worker has entitlement to compensation benefits, subsequent to July 10, 2000, including entitlement to permanent impairment awards for the low back and right shoulder. The Board is directed to determine the extent of the worker s entitlement to lost time benefits as a result of this finding and to conduct non-economic loss assessments for the low back and right shoulder. [9] I concur with the disposition of this appeal as provided by that agreement. The reasons for my decision are set out below. [10] The worker, who was sixty-two years old as of the date that this appeal was considered, suffered a workplace accident on July 5, 1996 when she slipped and fell on a greasy floor. At the time of the accident, the worker was employed by the accident employer, a grocery retailer. According to the Employer s Report of Accident dated July 12, 1996, as a result of the accident the worker injured her right arm and lower back. According to a Physician s First Report, dated July 5, 1996, prepared by Dr. M. Deans, the physician who treated the worker in the emergency room of a local hospital on the accident date, the worker complained of pain in her right buttock and tenderness in the neck as a result of the accident. According to a report, dated February 11, 1997, prepared by Dr. Sheila Brereton, the worker s family physician, on July 8, 1996, the worker was first seen by Dr. Brereton in relation to the July 1996 accident. The report stated that the worker experienced tenderness at the right buttock and neck as a result of

3 Page: 3 Decision No. 1300/04 the accident. The worker returned to work with the accident employer performing part-time modified duties on July 15, [11] By correspondence from the Board dated July 30, 1996, the worker was advised that the Board had allowed entitlement for the low back and right buttock injuries only. The Board allowed benefits for three days of lost time as a result of that injury. [12] Dr. Brereton provided a report to the Board, dated November 26, 1996, which stated that the worker had suffered injuries to her neck, right shoulder and lower back as a result of the July 5, 1996 accident. The report stated that the worker had been on light duties at work and had undergone physiotherapy for three months without improvement. [13] The worker was referred to the Orthopaedic and Arthritic Hospital Regional Evaluation Centre (REC) where she was assessed by Dr. John C. Cameron, orthopaedic surgeon, and Stacey Klawitter, physiotherapist, on February 28, The report provided a diagnosis of soft tissue injury to the right shoulder and lumbar strain. It stated that it appeared that the worker s injuries had resolved, but that she might continue to have intermittent right shoulder discomfort with repetitive activities involving her right arm. [14] The worker was seen by Dr. Steven Rosenfeld, orthopaedic surgeon on June 11, 1997 and in a report of that date, Dr. Rosenfeld stated: I think [the worker] definitely has a couple of problems. She sustained an accident last year at work falling and injuring her shoulder and lower back. She comes in to see me complaining of a lot of low back discomfort and pain in her neck and into the shoulder. She returned to work full time about three months ago and since that time with repetitive lifting she has quite severe low back discomfort. [15] The worker continued treatment with Drs. Brereton, Rosenfeld and Dr. J. D. Bare, chiropractor, for her back and shoulder problems throughout the latter part of [16] The Board established a new claim, with an accident date of March 1, 1998, for the worker s gradual onset of right shoulder pain as a result of her duties as a deli worker for the accident employer, and allowed the claim on a no lost time basis. In an internal Board memorandum dated March 13, 1998, Dr. Boga, Board Medical Advisor, responded to a request from the CA on the issue of whether the worker s right shoulder problem was compatible with the worker s 1996 accident. In his memo Dr. Boga stated, in part: The essential area involved in the [1996] accident is obviously the back. Claims has allowed the right arm as well. The issue now is compatibility of right shoulder and neck. Obviously the neck and shoulder were not involved directly in the accident noting lack of documentation of symptoms or findings relative to these areas. However, it is possible that the force of the impact may have been transmitted to neck and shoulder by way of minor strain, during the accident [Dr. Boga concluded that these injuries, along with the back injury had resolved without permanent impairment]. [17] The worker was referred to Dr. Tommy K. C. Chan, orthopaedic surgeon, who saw the worker on February 25, 1999, and prepared a report of that date which stated that the worker was still having problems with her back and right shoulder since her slip and fall accident a few years earlier. The materials also included an internal Board memorandum dated June 4, 1999,

4 Page: 4 Decision No. 1300/04 reflecting a telephone conversation between the worker and the CA in which the worker related her current problems to the July 1996 accident. Dr. Chan also prepared a Physician s Report, Re-opened Claim dated July 5, 1999, which stated that the worker continued to experience right shoulder tendonitis and myofascial back pain, which had never settled down since the 1996 injury. [18] The Board established another new claim for the worker as a result of an incident on January 21, 2000, when the worker experienced increased low back pain after lifting a box of chickens. The worker laid off work on February 22, 2000, and the Board allowed temporary benefits from that date. The worker returned to work in March 2000, and partial loss of earnings benefits were allowed by the Board, but were terminated on July 10, An internal Board memorandum dated September 20, 2000, reflecting a telephone conversation between the worker and the Board s Nurse Case Manager, indicated that the worker had returned to regular work and hours but continued to experience a lot of pain. [19] The worker was again assessed at the REC on November 6, 2000, and a report on her assessment was prepared by Dr. J. Murnaghan, orthopaedic surgeon, and M. Gaudet, physiotherapist. The report provided a diagnosis of lumbar strain with underlying degenerative disc disease and facet joint arthritis at L5-S1, as well as neck pain with radiation to both shoulders. The report stated that the worker s condition might limit her ability to perform prolonged bending and lifting on a permanent basis. [20] In a report dated December 17, 2001, Dr. Chan provided a detailed history of the worker s problems and concluded that the worker s complaints of low back pain and right shoulder pain dated back to her earlier slip and fall accident. He expressed the view that the worker s condition was chronic and that her complaints would likely be permanent. [21] A further report prepared by Dr. Chan, dated October 21, 2002, stated in part: (ii) Undoubtedly, all her findings in her right knee, shoulder as well as her lower back are all degenerative in nature. It can be argued that degenerative changes are the result of normal aging and are not as a result of injury, however it is also readily acceptable from a legal sense, that pre-existing changes render the patient to be more susceptible to injury. The so-called thin scull [sic] theory applies in this case, that if indeed degenerative changes are the sole result of aging, then the injuries in question, are the initiating factors that brought these symptoms on to become symptomatic. There is disability, in that, there is limitation of function. She is not totally disabled however, a combination of her symptoms indeed constitutes a partial permanent disability. Whether she has degenerative changes in the area of question is immaterial, since it is clearly established that the injuries documented were the initiating events. Applicable law [22] In the circumstances of this appeal, the worker is seeking to have workplace accidents which allegedly occurred on March 1, 1998 and January 21, 2000 considered as recurrences of a workplace accident which the worker suffered on July 5, As will be noted below, as a result of this decision, the 1998 and 2000 accidents shall be considered as recurrences of the 1996 accident. Accordingly, the worker s entitlement to benefits in this appeal is governed by the pre-1997 Act ( the Act ).

5 Page: 5 Decision No. 1300/04 (iii) Analysis [23] The worker suffered a workplace accident on July 5, 1996 when she slipped and fell on a greasy floor at work. Initially, the injury was reported in relation to the neck and right buttock, however, subsequent medical reports indicated that as a result of that accident, the worker injured her low back and her right shoulder. In her report of November 26, 1996, Dr. Brereton stated that the worker had suffered injuries to her low back and right shoulder as a result of the July 1996 accident. This view was also confirmed in medical reports prepared by Dr. Rosenfeld, dated June 11, 1997, and Dr. Chan in his reports dated February 25, 1999 and December 17, In his internal memorandum dated March 13, 1998, the Board s Medical Consultant, Dr. Boga, stated that the worker had obviously injured her low back in 1996, but also stated that the force of impact from the 1996 slip and fall may have been transmitted to the right shoulder. [24] On the basis of this medical information, notwithstanding the fact that medical reporting of the right shoulder injury was delayed for several weeks, there is no evidence of any other factors, apart from the July 1996 fall, which could account for the shoulder injury. I find that the worker injured her low back and right shoulder, as a result of the 1996 accident. [25] I also note that the incidents in 1998 and 2000, for which new accident claims were established by the Board, were minor. The incident in 1998 was established for the right shoulder on a gradual onset basis with no discrete incident cited as being responsible for the injury. Similarly, the incident of January 21, 2000 was minor, in that the worker developed low back pain after lifting a box of chickens, part of her regular duties. [26] Given the medical reports referred to above, which attribute both the right shoulder and low back injuries to the July 1996 accident, and the fact that the incidents in 1998 and 2000 were minor, as compared to the 1996 accident, in my view, it is probable that the worker s ongoing right shoulder and low back injuries were the result of the July 1996 accident. Accordingly, I find that the claims established by the Board for the 1998 and 2000 incidents should be amalgamated into the claim established for the 1996 accident. [27] I also note that the worker s right shoulder and low back injuries have persisted since 1996, and that Dr. Chan stated in his December 17, 2001 report that these injuries were likely to be permanent. For those reasons I find that the worker is entitled to an award for a permanent impairment of her low back and right shoulder. The Board is directed to conduct a non-economic loss (NEL) assessment in relation to both the worker s low back and right shoulder and to pay the worker a NEL benefit commensurate with the result of the assessment. [28] I also note that the Board discontinued paying the worker partial loss of earnings benefits as of July 10, Given my findings, set out herein, the Board is directed to determine the worker s entitlement to benefits for lost time (i.e., temporary total or temporary partial disability benefits under the pre-1997 Act) subsequent to July 10, [29] The disposition of the worker s appeal as noted above is consistent with the outcome to which the parties and their representatives agreed, as a result of the Tribunal s ADR process, and I am satisfied that such a result represents the worker s entitlement under the Act.

6 Page: 6 Decision No. 1300/04 THE DECISION [30] The appeal is allowed. 1. The March 1, 1998 and January 21, 2000 claims are considered recurrences of the July 5, 1996 claim, rather than new accidents. The Board is directed, therefore, to amalgamate the 1998 and 2000 claims with the 1996 claim. 2. The Board is directed to conduct a non-economic loss (NEL) assessment in relation to both the worker s low back and right shoulder, and to pay the worker a NEL benefit commensurate with the results of the assessment. 3. The Board is directed to determine the extent of the worker s entitlement to lost time benefits subsequent to July 10, DATED: February 28, SIGNED: M. Crystal

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