v WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 813/10 V. Marafioti: Vice-Chair April 20, 2010 at Toronto Written Self-represented

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1 v WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 813/10 BEFORE: V. Marafioti: Vice-Chair HEARING: April 20, 2010 at Toronto Written DATE OF DECISION: July 19, 2010 NEUTRAL CITATION: 2010 ONWSIAT 1685 DECISION(S) UNDER APPEAL: WSIB ARO decision dated September 22, 2009 APPEARANCES: For the worker: For the employer: Interpreter: Self-represented Did not participate Not applicable 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. 813/10 REASONS (i) Background [1] On November 8, 1989 the worker was employed as a casual labourer when he injured his left shoulder. I note that several of the reports on file indicate that it was the right upper limb that was involved, however the claim is for a left upper limb injury and this is what was accepted by the Workplace Safety and Insurance Board (the Board). [2] The worker was diagnosed with a minor sprain to the right shoulder on November 10, 1989 when he was assessed by an orthopaedic surgeon Dr. Chan. There is a significant gap in medical reporting and on January 30, 2008, the worker sought treatment with his family physician for recurrent left shoulder dislocations and was referred to a specialist. He underwent a CT Scan and MRI. The current ongoing left shoulder problems were accepted by the Board as a recurrence of the original accident and injury of November 8, [3] The worker was assessed for a permanent disability award and granted a 4% full arrears award and subsequently an 8% award dating from three months prior to the MRI scan. The worker is appealing the arrears date and feels that the arrears should be 8% following the date of accident. He is also requesting a commutation of his pension stating that his left shoulder problems will not deteriorate further. He is also requesting interest payments back to These requests were denied by the Claims Adjudicator at the Board and Appeals Resolution Office (ARO) on September 22, 2009 denied the worker s request for full arrears of 8%, the commutation of his pension and the payment of interest. (ii) The issues [4] I must determine whether the worker is entitled to full arrears of the 8% pension award. In addition I must determine whether the worker is entitled to a commutation of his pension award and whether there is entitlement to interest payments for the pension arrears. (iii) The law and Board policy [5] On January 1, 1998, the Workplace Safety and Insurance Act 1997 (WSIA) took effect. However, pursuant to section 102 of the WSIA, the Workers Compensation Act continues to apply to pre-1998 injuries. [6] Pursuant to sections 112 and 126 of the WSIA, the Appeals Tribunal is required to apply any applicable Board policy when making decisions. Pursuant to the WSIA section 126, the Board has identified certain policies as applicable to this appeal. [7] The Legal Services Division of the Board has confirmed that the following policy packages, Revision No. 8, would apply to the subject matter of this appeal. Policy Package #42 - Pension Arrears Date Policy Package #43 - Pension Commutation/Lump Sum

3 Page: 2 Decision No. 813/10 Policy Package # Interest Payments Policy Package #300 - Decision-Making/Benefit of Doubt/Merits and Justice [8] The policies will not be duplicated here for practical reasons. I have considered the policies in the context of the appropriate legislation in arriving at my decision. (iv) The Vice-Chair s Analysis [9] The investigation report from an interview in the worker s home on March 28, 2008 indicates that the worker worked at various jobs mainly physical in nature and as a labourer. Essentially the worker indicated that his shoulder seemed fine and he basically carried on with normal activities about five or six times since his shoulder has dislocated but he basically pops it back himself and the pain goes away. The worker essentially made no complaints to any doctor over the years regarding his left shoulder until he mentioned it to Dr. G. Holdway in January Dr. Holdway has been the worker s family physician over the past 10 years. The worker was seen in November 1989 by Dr. K. Chan and there is reporting also from Dr. A. Hall with the accident employer. [10] At the time Dr. Hall noted that the worker slipped, moved his arm violently and felt that his arm was dislocated. Dr. Chan saw the worker in November [11] I note that on November 10, 1989 Dr. Chan diagnosed minor sprain rotor cuff, right shoulder. Dr. Chan reported on November 1, 1989 that the worker s shoulder was improved, abduction was 90º, passively he had full forward flexion. He had good external rotator strength. Dr. Chan suggested that the worker be treated with physiotherapy with gentle range of motion exercises and isometric exercises within his comfortable range. He recommended that the bony fragment in the inferior part of the glenoid be left alone for the time. Should it cause the worker s problems an arthrogram should be carried out to confirm if this was intra-articular. An arthroscopy could also be performed and if a loose body was found it could be removed under the same general anesthetic. Dr. Chan recommended that the shoulder should be rehabilitated first before making any surgical decisions. Dr. Chan saw the worker next on December 7, There was no pain with the arm by his side, the worker had good abductor and external rotator strength. An arthrogram was arranged to rule out the possibility of a rotator cuff tear. [12] On December 14, 1989 Dr. Chan noted the worker s left shoulder pain was improving and the arthrogram did not show any tear of the rotator cuff. On examination passive and active abduction was to 120º before he started to have pain. Dr. Chan felt that the worker could benefit from an oral anti-infammatory. The last report on file from Dr. Chan is dated December 28, The left shoulder was settling down with Naprosyn and there was full forward flexion. Abduction was to 110º and still painful. Dr. Chan noted that a re-examination was booked in two weeks and if there was no further improvement a depo medrol injection would be considered. There is a gap in medical reporting until January 3, 2008 when the worker saw Dr. Holdway for the left shoulder discomfort. Dr. Holdway noted the accident at work in November The worker had constant pain in his left shoulder over the years and the shoulder had become dislocated approximately four times. Dr. Holdway felt that the history indicated a torn rotator cuff. On examination there was reasonable range of motion in the shoulder but it was painful mainly in abduction and external rotation. No effusion was seen.

4 Page: 3 Decision No. 813/10 There was tenderness over the anterior aspect of the shoulder. The worker was to be seen by Dr. Moro and was to have an MRI, an ultrasound and an x-ray. Dr. Holdway completed recurrence form on January 30, [13] I note that there was an MRI of the left shoulder dated March 4, The MRI did not indicate any evidence of a rotator cuff pathology. There were changes related to recurrent anterior shoulder dislocation. There was a small possible Hill-sachs deformity. Anterior inferior labral tears were in keeping with a Bankart cartilaginous labral lesion, likely bony Bankart lesion given the presence of multiple intra-articular bony bodies. There was thickening of the interior band of the inferior glenohumeral ligament related to scarring and fibrosis at that site. There were multiple intra-articular bodies seen in the axillary recess, the largest of these measuring 1.4 centimetres. An obvious donor site was not identified for these bodies, though synovial osteochondromatosis could cause this appearance according to the Board doctor. There were no features to suggest PVNs or erosive arthropathy. Hyalaine cartilage loss was noted in the anterior/inferior glenoid from degenerative changes. Mild to moderate subacromial subdeltoid bursitis was noted. [14] I note that on July 8, 2008 the worker was seen by Dr. J. Moro, orthopaedic surgeon. The worker complained of anterior shoulder pain particular over the last few years. The pain was constant and was aggravated by typical impingement activities. On examination, the left shoulder revealed full range of motion and power. There was a positive O Brien s test. Apprehension test was positive. X-rays on February 27, 2008 revealed inferior loose bodies of the humeral head possibly indicating a possible ossified HAGL lesion versus loose bodies from recurrent instability. An ultrasound of the same date did not reveal a rotator cuff tear. The diagnosis was left shoulder loose body, query SLAP lesion, soft tissue Bankart lesion, recurrent anterior dislocation. Dr. Moro recommended a CT scan of the left shoulder. Dr. Moro also recommended a left shoulder arthroscopic anterior stabilization and loose body removal. The worker was placed on a surgical waiting list. [15] I note that there was a CT scan report of the left shoulder dated August 13, There was minimal impaction of the posterolateral humeral head and some hypertrophic degenerative changes in the anterior inferior glenoid. There were multiple corticated osseous loose bodies in the axillary pouch. A clear donor site was not identified. These findings were likely related to secondary osteochondromatosis with changes suggestive of secondary degenerative change due to the instability seen. [16] A further report I note is dated November 3, 2008 from Dr. Moro. The examination of the left shoulder revealed full active range of motion with some stiffness. The worker was very sore and a deep anterior shoulder after the examination. There was full power of all the components of the rotator cuff. There was a positive anterior apprehension sign. There was positive O Brien s test. On CT scan, Dr. Moro felt that there was a small inferior humeral head osteophyte possibly indicating some early post-traumatic arthritis. The worker at that time was still currently on the waiting list for surgery. Dr. Moro requested that the family physician follow-up regarding investigation of the worker s left lung upper lobe. [17] I note the pension medical assessment carried out on December 12, 2008 by Dr. D.S. Dorcas, Pension Medical Consultant for the Board. Dr. Dorcas provided a

5 Page: 4 Decision No. 813/10 comprehensive review of the medical evidence and examined the worker. Dr. Dorcas concluded that there was recurrent dislocation of the left shoulder with post-traumatic osteoarthritis. Dr. Dorcas concluded that based on the findings of the worker s examination and taking the history into account, a permanent impairment rating of 8% was recommended for the worker s left shoulder problem. Full arrears of 4% were recommended and arrears of 8% were recommended for three months prior to the MRI of March 4, Dr. Dorcas found a further deterioration of the worker s left shoulder was possible and noted that the worker was on the waiting list for surgical stabilization. [18] I noted that Operational Policy Manual (OPM) Document No on the subject of Arrears indicates that arrears are retroaction pension benefits, paid as a lump sum, dating from the onset of permanent disability. Arrears are calculated for all periods where temporary benefits were not paid or were less than monthly pension benefits. They are subject to the maximum in effect and escalated by applicable amendments. The decision-maker usually determines the dating of arrears at the time of the pension assessment. If a permanent disability award is increased after reassessment the increase dates from: three months prior to the date of the request, or an earlier date if supported by clinical evidence. [19] I also note, as did the ARO, OPM Document No on the section of Permanent Disability Benefits (Accidents before 1990) on the subject of Lump Sum (Commutations). The document states as follows: It is the policy of the Workplace Safety and Insurance Board (WSIB) that compensation for permanent disability will normally be in the form of periodic monthly payments. The WSIB may, however, in its discretion, commute, in whole or part, such compensation to a worker or to a surviving spouse. Guidelines Authorization criteria s.26(1) A commutation of a monthly pension may be authorized under section 26(1) when required as a new or continuing rehabilitative measure intended to enable the person to obtain or maintain suitable employment by reducing the effects of a physical and/or psychological disability medical evidence indicates that the worker's financial situation is producing a disability, which is preventing the worker from obtaining or maintaining employment, and where a commutation will significantly remedy the situation. Authorization criteria s.45(4) Unless the worker elects to receive the permanent disability benefit in monthly payments, the benefit is commuted to a lump sum when the impairment of the worker's earning capacity, estimated from the nature and degree of the injury, does not exceed 10%, and it is medically reasonable to conclude that the impairment of earning capacity will not change; and the combined permanent disability benefits of all claims for a worker are not greater than 10%.

6 Page: 5 Decision No. 813/10 [20] In addition I noted OPM Document No on the subject of Interest Payments. The policy states as follows: The WSIB pays interest on delayed benefit payments to workers or, in case of death, to their survivors. Delayed benefit payments are payments issued after the standard payment due date. Two groups of workers are entitled to interest on delayed benefit payments workers whose claims are registered before January 1, 1990, only if the delayed benefit payment is the result of an Appeals Resolution Officer (ARO) or the Workplace Safety and Insurance Appeals Tribunal (WSIAT) overturning a decision and now granting entitlement to compensation benefits workers whose claims are registered on or after January 1, Interest is also payable if an adjudication decision is overturned because a policy is revised, after having been found to be contrary to the law by the Board of Directors. This policy is intended to place workers in the same financial position that they would have been in had the WSIB originally made the appropriate decision, or processed the benefit payment on or before the standard payment due date. [21] As indicated earlier I have reviewed all the policies in arriving at my decision and I have noted in particular the above policies. (v) Conclusion (a) Arrears [22] A permanent disability as defined by section 45(12) of the pre-1989 Act is any physical or functional abnormality or loss, and any psychological damage arising from such abnormality or loss, after maximal rehabilitation has been achieved. From my review of the medical evidence particularly noting the reporting from Dr. Chan and the assessment and reporting by Dr. Dorcas, I am satisfied that the Board correctly applied the policies and correctly interpreted the medical evidence on record. The clinical evidence clearly indicates that following the original injury the worker sought medical treatment and when no further treatment was sought for a number of years the worker essentially continued to work and did not lose time as a result of the dislocations. The worker began to experience increased pain in the left shoulder and resorted to further treatment with his family doctor in Subsequently he was referred for an MRI scan and assessed on March 4, 2008 as noted above. The arrears date was set based on three months prior to the MRI scan in recognition that a worsening of a condition typically predates the medical report in which it is documented. There was clearly a lack of treatment from the worker for several years and in my view there was no functional abnormality lost prior to that date beyond that which is recognized by the Board. I therefore see no compelling reason to backdate the arrears of 8%. I noted in particular the comprehensive reporting and conclusion reached by Dr. Dorcas and the medical staff at the Board and I am persuaded by that comprehensive reporting. (b) Interest [23] Interest on delayed benefits are paid as a result of a Tribunal or an ARO overturning a decision and not granting entitlement to compensation benefits in pre-1990 cases. Neither of these situations apply in this worker s case. The worker advised that he was an exceptional case

7 Page: 6 Decision No. 813/10 based on the fact that he was misdiagnosed. I see no reason to consider this case exceptional and I am not persuaded that there is any reason to overturn the decision of the Board in this regard. (c) Commutation [24] I note that the worker was referred and assessed by the specialist Dr. Moro in July At that time he was put on a waiting list for arthroscopic anterior stabilization and loose body removal. In May 2008 the specialist indicated the worker did not require surgery at that time and had been taken off the surgical waiting list. Possible further surgery was discussed and the worker was advised to call the office should he require further evaluation or wishes to evaluate the surgery. The medical opinion on file from the medical consultant advised that deterioration was possible and the worker was on the waiting list for possible surgery. Since that review the worker has been taken off the surgical waiting list however. I note the report from Dr. Moro dated May 25, 2009 indicates that the worker was taken off the surgical waiting list. Dr. Moro did not think that surgical intervention was required at the present time. Dr. Moro wrote that the worker was to call his office if he wishes to have the surgery in the future for repeat evaluation and surgical discussion. No further arrangements were made. Considering the evidence on record that I have available, I see no compelling reason to change the decision of the ARO on this issue. I have reviewed the medical evidence, the record, policy and legislation and I am satisfied that the ARO correctly decided this case.

8 Page: 7 Decision No. 813/10 DISPOSITION [25] The worker s appeal is denied. DATED: July 19, 2010 SIGNED: V. Marafioti.