WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1794/10

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1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1794/10 BEFORE: R. McClellan : Vice-Chair S. T. Sahay : Member Representative of Employers M. Ferrari : Member Representative of Workers HEARING: September 23, 2010 at Toronto Oral Post-hearing activity completed on May 2, 2011 DATE OF DECISION: November 1, 2011 NEUTRAL CITATION: 2011 ONWSIAT 2504 DECISION UNDER APPEAL: WSIB ARO decision dated September 26, 2008 APPEARANCES: For the worker: For the employer: Interpreter: Mr. E. Grisolia, Office of the Worker Adviser 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. 1794/10 REASONS (i) The appeal [1] The worker appeals the decision of the Appeals Resolution Officer Ms Diaz dated September 26, That decision concluded that the worker did not have entitlement to a permanent impairment award for a right shoulder injury under the June 1996 accident claim. The decision also concluded that the worker did not have entitlement to temporary total disability benefits and future economic loss (FEL) benefits from August 20, 1996 until December 1, 1998 and from May 30, 2002 and ongoing. The decision also concluded that suitable modified work identified as the Clipper position was available from the accident employer in August [2] The issues before the Panel are: whether the worker has entitlement to a permanent impairment award for a right shoulder injury under the June 1996 accident claim; whether the worker has entitlement to temporary total disability benefits and future economic loss (FEL) benefits from August 20, 1996 until December 1, 1998 and from May 30, 2002 and ongoing; and, whether suitable modified work identified as the clipper position was available from the accident employer in August (ii) Background [3] The worker now aged 55, was employed in a rubber factory beginning in On July 5, 1996, the worker filed a Worker s Report of Injury Form 6 claiming an injury to his right shoulder on June 7, 1996, which had been reported to the accident employer the same day. The Employer s Report of Injury Form 7, dated August 6, 1996, objected to the worker's claim on the ground first, that a workplace accident and injury had not been reported and second, that suitable modified work was available from the employer. Initial entitlement was denied in Board Memo #11, August 1996, on the ground that proof of injury to the right shoulder by a workplace accident could not be established. [4] In a letter dated September 11, 1996, the employer advised that the worker had been offered the modified job of clipper. The worker returned to work at that job on August 21, 1996, and worked a maximum of two hours per day until August 30, 1996, when he laid off. The worker provided a note from his doctor dated September 6, 1996, indicating that he was disabled from gainful employment at that time. [5] Initial entitlement for a right shoulder injury on June 7, 1996 was awarded in Tribunal Decision No. 1165/05, dated July 14, The Panel found: The worker s duties were extremely heavy and the mechanics of the movements involved in lifting, carrying and emptying bags that weighed between 50 and 75 pounds would place the sort of stress on the worker's right shoulder that could easily result in such an injury. [6] In this Decision, the Tribunal Panel relied on the report of Dr. Roland Wong dated, September 13, 2002.

3 Page: 2 Decision No. 1794/10 [7] Following the award of initial entitlement in 2005, the worker's file was reviewed at the claims level to determine his ongoing entitlement. A claims investigator was assigned to the case and reported in October The investigator reported that following the injury of June 7, 1996, the worker had stopped working on Tuesday, June 11, 1996, and subsequently returned to modified light work on the clipper job. The worker advised that he had to stop working on August 30, 1996 because of increased pain in his right shoulder and felt that the clipper job was not suitable within his medical restrictions. On October 7, 1996, the worker was terminated from employment for failing to return to the clipper job. The worker then received 15 weeks of Employment Insurance Sick benefits. [8] The worker returned to work for two or three weeks in the summer of He then obtained a security guard position on December 1, 1998 where he worked until May 30, 2002, when he resigned from that position with the explanation that it was too far to travel, and that his wife was seriously ill and required his attendance at home. The worker has not worked since that time and his family was supported by Canada Pension Plan disability benefits as well as ODSP benefits. [9] In Board Memo #31, dated November 16, 2005, entitlement to benefits between August 30, 1996 and December 1, 1998 and subsequent to May 30, 2002 was denied on the grounds that the clipper job had been assessed by the Board ergonomist and was found to be within the worker's medical restrictions and functional capabilities and was available to the worker as of August Entitlement to a permanent impairment award for the right shoulder was denied on the basis of a medical gap of six years between 1996 and 2002 and that compatibility between the right shoulder strain of June 1996 and the current diagnosis of right shoulder capsulitis and chronic C7 lesion without impingement could not be established. [10] The ergonomist s report referred to by the claims adjudicator was actually performed for a different case in October 2003 but it did contain an analysis of the physical demands of the clipper job offered to the worker in August The ergonomist was assessing the clipper job on behalf of a different worker entirely who had a compensable back impairment. The job duties for the clipper position were described as follows: Retrieve rubber pieces from bulk bin and place on workstation. Visually inspect, removing excess trim with scissors if necessary. Retrieve and insert plastic clips into preformed holes. Stack completed rubber pieces to side of workstation. Place completed rubber pieces into cardboard box located on pallet. Form cardboard boxes and seal when full. Retrieve supplies on as needed basis. [11] The ergonomist advised that the job did not require any whole-body pushing or pulling; pushing using fingers/hand/upper extremity was required to insert plastic clips into the rubber pieces. Bending to 60 was required when retrieving rubber pieces from bulk plastic bins; lateral and forward bending was observed when packing rubber pieces into cardboard boxes on the pallet. The clipping work was done from a seated position, with occasional standing and walking for a short distance to retrieve rubber pieces. No crouching or kneeling was required. The job

4 Page: 3 Decision No. 1794/10 was seen as unsuitable for a worker with a low back impairment. There is no analysis in the report or on file respecting the suitability of the position for an injured worker with a right shoulder impairment. [12] In his decision, the ARO took note of the Physical Capabilities Form from Dr. Sira dated September 20, 1996, which issued restrictions against lifting, pushing, pulling, carrying, overhead work and over-the-shoulder work. The ARO concluded that the clipper job as described above by the Board ergonomist was suitable work within the meaning of Board s OPM Document # The ARO also found that there was no documented record of right shoulder symptoms, medical treatment, or complaints between September 30, 1996 and July 2002, and further, symptoms in the neck or cervical area were not part of the area of entitlement accepted by the Tribunal in its Decision. The ARO concluded that the worker's right shoulder impairment had resolved in 1996 without permanent impairment and that the modified work on offer, that is the clipper position, constituted suitable modified work within the worker s medical restrictions and functional capabilities. [13] In Decision No. 1165/05, dated July 14, 2005, the worker was granted initial entitlement for the right shoulder injury with accident dated June 7, The Panel stated a finding that the worker had injured his right shoulder at work on the morning of June 7, In its decision, the Panel stated that they considered the worker's testimony to be credible, and that his testimony was: clear, consistent and straightforward as to how and when the injury occurred and what happened in the days following, and his testimony is consistent with what he is told the doctors and his co-worker. For these reasons the panel accepts his testimony and in particular, his statement that this injury did not occur at home as being credible. [14] The Panel considered the medical reports from Dr. Sira dated June 10, 1996, and from Dr. Wong dated September 13, 2002, to be both corroborative and determinative. The Panel also found: Since his injury [the worker] has been unable to return to his old job and has worked off and on as a security guard. (iii) The medical evidence [15] The Physician s First Report from family physician Dr. Sira is dated June 10, 1996 and gave a diagnosis of right shoulder sprain as a result of a lifting accident at work. The worker had restricted range of motion in the right shoulder and pain with paraesthesia down his right arm. Analgesics and physiotherapy were prescribed. On September 6, 1996, the doctor issued a note that the worker was disabled for gainful employment at this time. On September 20, 1996, Dr. Sira issued instructions that the worker must avoid lifting, carrying, pushing, pulling, overthe-shoulder work and overhead work, again, based on a diagnosis of right shoulder sprain. [16] There are no medical reports in the worker's file between September 1996 and the family physician's clinical notes, which began on December 16, The first reference to right arm pain in the clinical notes is dated July 31, [17] The report of the claims investigator dated October 24, 2005, indicates that the worker s family physician after his layoff in August 1996 was Dr. Sira, whom the worker continued to see

5 Page: 4 Decision No. 1794/10 until he switched to Dr. W. K. Tsang in The worker claimed ongoing constant pain at the back of the neck from the base of his skull radiating down his right shoulder joint behind the right shoulder blade all the way down to the fingers, which the worker attributed to the 1996 accident. [18] However, the Case Record contains the OHIP personal claim history for the worker from April 1, 1998 until December 31, This record shows a history of chiropractic treatment for "sprains and strain injuries" beginning on August 31, 2000 and comprising some 24 chiropractic treatments in September, October and November of 2000 from chiropractor Dr. Harry Kaufman. The specific reason for these treatments is not identified. The OHIP claims record indicates treatment for a number of non-compensable conditions. First treatment from the new family physician Dr. Tsang is dated December 14, 2001, for diabetes mellitus. [19] An x-ray taken on August 15, 2002, reported no evidence of rotator cuff tear or other abnormality in the right shoulder. An x-ray of the lumbar spine taken on September 12, 2002 was normal. [20] The first report from orthopaedic specialist Dr. Roland Wong is dated September 13, Dr. Wong examined the worker for his right shoulder complaints. Symptoms included pain radiating from his right neck and upper back into the right arm, which the worker stated had been present over the past six years. Dr. Wong advised as follows: I believe that he was exposed to extremely heavy work, with the potential of injuring his right shoulder and possibly cervical spine. He reported his injury to his family physician and he had witnesses from fellow workers. It is unfortunate that his account was not given equal weight. [21] An x-ray of the cervical spine taken on September 18, 2002 showed minimal degenerative changes at C5 and C6 with no acute abnormality. [22] An EMG taken at St. Michael's Hospital on October 1, 2002 showed evidence of older chronic right C7 radiculopathy, with no evidence of carpal tunnel syndrome. Physiatrist Dr. Awan advised Dr. Wong that further testing was warranted. [23] An MRI test was arranged, which took place on November The MRI of the cervical spine was normal at all levels. [24] In a report to the Board dated October 9, 2005, family physician, Dr. Tsang advised that the worker first complained of right shoulder pain on July 31, 2002, and again on August 18, Dr. Tsang advised that the worker continued to complain of pain in the neck and right arm, extending down to the right hand throughout 2002, 2003, and 2004 to the present date. [25] An MRI of the right shoulder taken on April 27, 2006, showed evidence of mild tendinosis in the supraspinatus tendon without any tear, mild synovitis of the long head of the biceps tendon and moderate to severe degenerative changes at the AC joint. [26] The most recent report from Dr. Wong, dated May 1, 2006, reported on the April 2006 MRI. Dr. Wong stated:

6 Page: 5 Decision No. 1794/10 It is well known that heavy, forceful and repetitive work and cause degenerative changes joints. He now has a permanent injury in his right shoulder. The tendinosis has not subsided. He should avoid any heavy pushing, pulling and lifting as well as overhead work. [27] The Board files indicate that at no time was a Board medical consultant involved in the adjudication of the claim. (iv) The worker's testimony [28] The worker testified that following the accident to his right shoulder in 1996, he attempted to return to work, and to perform the clipper job offered by the employer. He stated that the job required him to put plastic clips into holes in rubber mats measuring approximately 3' x 1'. He described the job activities as follows: while standing at a waist-height table, the worker would reach into a box on the table, pick up clips from the box, and push them into the holes. He stated that the action of pushing the clips into the rubber mats caused an aggravation of his right upper extremity pain, causing the pain to extend from the upper arm down all the way into his fingers. The worker was unable to recall exactly how long he had worked, he thought only two days, and was unable to continue because the job was aggravating his right shoulder injury. [29] The worker stated that after the 1996 accident he was never able to return to heavy physical work and spent two years unsuccessfully trying to obtain suitable light-duty work. He stated that he had managed to obtain work as a security guard in 1998, at just over $7 an hour which was less than his pre-accident wage of $10.54 an hour. He stated the job was extremely light and required him to keep track of truck trailers entering the work yard. He stated that he worked 12 hours a day full time at 44 hours a week. The worker stated that he would have continued indefinitely at this job but that in 2002, his wife was severely injured in a motor vehicle accident which left her unable to care for their children, and the worker was required to leave the workforce in order to look after his wife and their children at home. [30] The worker stated that between 1996 and 2001 he did not think that he had seen any physicians, and that Dr. Sira had told him in September 1996 that there was nothing he could do for him. He stated that he self-medicated with over-the-counter painkillers and that his right shoulder pain persisted without resolution and continues to the present day. He stated that he is now medicated with Tylenol 3, Tevameloxicam, and Anthrophen for pain relief. He continues to see Dr. Tsang. [31] The worker stated that the pain starts at the centre of his spine just below the neck, and radiates into the side of the right shoulder and into the arm down to the fingers. [32] The worker testified that he had no right shoulder problems prior to the accident of June 1996, and no subsequent injuries to the right shoulder since that time. (v) Submissions of the worker s representative [33] Mr. Grisolia acknowledged that the worker was not a great historian that he had a number of non-compensable medical conditions that seem to have affected his memory. He stated that the medical evidence from Dr. Wong in 2002 and again in May 2006 should be considered

7 Page: 6 Decision No. 1794/10 determinative with respect to the presence of a permanent impairment in the right shoulder attributable to the nature of the worker's heavy, forceful, and repetitive work. [34] With respect to the suitability of the clipper job, Mr. Grisolia submitted that even though the ergonomist s report of 2003 had been done for a different worker with a different compensable condition, it did establish that there had been no modifications of the clipper job between 1996 and 2003, that the job had remained unsuitable without modifications, and that there was no evidence of modifications offered. He also noted that the physical demands analysis in the ergonomist s report noted that there was pushing/pulling required to insert plastic clips into the rubber pieces which was completed by finger and upper extremity involvement. There would also be static positioning which could well cause problems with the shoulder and neck. He submitted that based on these facts together with the worker's testimony that his attempts to perform the clipper job had aggravated his right shoulder injury, the clipper job was not suitable within the worker's medical restrictions and functional capabilities. [35] The remedy sought by Mr. Grisolia was temporary partial disability benefits from August 20, 1996 until December 1, 1998, and partial FEL benefits subsequent to May 30, Post-hearing medical evidence [36] Following the hearing, the Panel requested the assistance of the Medical Liaison Office to obtain additional medical evidence from the treating chiropractor Dr. Harry Kaufman, who treated the worker extensively between August 31, 2000 and November 23, The Panel also requested assistance in getting additional medical evidence, if possible from Dr. Sira. [37] In a report to the Tribunal dated December 21, 2010, chiropractor Dr. Kaufman stated that he treated the worker a total of 17 times from August 31, 2000 until November 23, 2000 for a left shoulder problem, [sic], identified as likely a frozen shoulder. He stated that this condition developed approximately two months prior to his first visit in August. Dr. Kaufman stated that he had no record of any discussion of a 1996 right shoulder injury, which he stated was an entirely separate accident. [38] In a memorandum dated April 1, 2011, Tribunal Counsel Office advised the Panel that Dr. Sira's office had advised the worker was last seen in 1998 and that the office no longer has his file. [39] In a letter dated April 21, 2011, Mr. Grisolia advised that he had no further submissions. (vi) Law and policy [40] 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. Thus the pre-1997 Act continues to apply, as amended by the WSIA. [41] The relevant section relating to NEL awards states as follows:

8 Page: 7 Decision No. 1794/10 42(1) A worker who suffers permanent impairment as a result of an injury is entitled to receive compensation for non-economic loss in addition to any other benefit receivable under this Act. [42] Compensation for future loss of earnings, FEL, is provided under section 43:... 43(1) A worker who suffers injury resulting in permanent impairment or resulting in temporary disability for twelve continuous months is entitled to compensation for future loss of earnings arising from the injury. (2) An injured worker ceases to be eligible for compensation for future loss of earnings when the worker reaches sixty-five years of age. (3) Subject to subsection (8), the amount of compensation payable to a worker for future loss of earnings arising from an injury is equal to 90 per cent of the difference between, (a) (b) the worker's net average earnings before the injury; and the net average earnings that the worker is likely to be able to earn after the injury in suitable and available employment. (4) In applying subsection (3) the following rules apply if the amount determined under clause (3)(b) is not zero and does not consist solely of payments described in clause (7)(b): 1. The net average earnings in clause (3)(a) shall be adjusted by applying the indexing factor described in subsection 148(1.3), for each January 1 since the day of the injury. 2. The amount of compensation calculated under subsection (3) shall be adjusted by, i. multiplying, for each January 1 since the day of the injury, by the sum of one plus the indexing factor described in subsection 148(1) expressed as a fraction, and ii. dividing, for each January 1 since the day of the injury, by the sum of one plus the indexing factor described in subsection 148(1.3) expressed as a fraction. (5) In applying subsection (3) the following rule applies if the amount determined under clause (3)(b) is zero or consists solely of payments described in clause (7)(b): 1. The net average earnings in clause (3)(a) shall be adjusted by applying the indexing factor described in subsection 148(1.3), for each January 1 since the day of the injury. (6) Subsections (4) and (5) apply in both an initial determination and in a review of a determination under subsection (13). (6.1) The amount of compensation payable under this section shall be adjusted on January 1 each year, (a) (b) if subsection (4) applied in the last calculation of compensation, by applying the indexing factor described in subsection 148(1) for each January 1 since the compensation was last determined or reviewed; if subsection (5) applied in the last calculation of compensation, by applying the indexing factor described in subsection 148(1.3) for each January 1 since the compensation was last determined or reviewed. (7) For the purposes of subsection (3), in determining the amount that a worker is likely to be able to earn in suitable and available employment, the Board shall have regard to, (a) the net average earnings, if any, of the worker at the time the Board determines compensation under this section;

9 Page: 8 Decision No. 1794/10 (b) (c) (d) (e) (f) any disability payments the worker may receive for the injury under the Canada Pension Plan or the Quebec Pension Plan; the personal and vocational characteristics of the worker; the prospects for successful medical and vocational rehabilitation of the worker; what constitutes suitable and available employment for the worker; and such other factors as may be prescribed in the regulations. [43] Pursuant to sections 112 and 126 of WSIA, the Appeals Tribunal is required to apply any applicable Board policy when making decisions. Pursuant to WSIA section 126, the Board has identified certain policies applicable to this appeal. We have considered these policies as necessary in deciding this appeal. [44] Temporary total disability, according to Board Operational Policy Manual, (OPM) Document # , is defined in the following manner: Temporary total disability is the complete inability to earn full pre-accident wages for a limited period of time as a result of the physical and psychological effects of the injury and the necessity for medical treatment. A worker who is unemployable as a result of a combination of a work-related injury and a number of personal and vocational (noninjury-related) factors is not considered totally disabled. [45] Temporary partial disability is subsequently defined as: A reduction in the ability to earn full pre-accident wages for a limited period of time as a result of the labour market's inability to accommodate the worker with the remaining physical effects of the injury. This includes workers who are partially disabled but unemployable without medical and vocational rehabilitation services and those who are not in need of rehabilitation services to return to work. [46] Of interest is Board OPM Document # , Suitable Employment. Suitable employment is defined as any work that the worker has the necessary skills to perform (or is able to acquire the necessary skills to perform), and does not pose a health and safety risk to the worker or to co-workers, and if possible, restores the workers earnings. To evaluate the suitability of a job, consideration is given to the worker's functional abilities, degree of the worker's impairment and medical prognosis of injury, and the worker's aptitude for the job s tasks and duties. [47] There is no statutory mention of how one determines whether a second injury is related to the original work accident. Board OPM Document # on "Recurrences, addresses the procedure to follow in making such a determination. The policy states that a decision maker will recognize a recurrence when there is obvious medical compatibility or an appropriate combination of medical compatibility and continuity, and an absence of a new accident. It also goes on to set out in part, the following:

10 Page: 9 Decision No. 1794/10 Policy A worker is entitled to benefits for a recurrence of a work-related injury or disease. A recurrence may result from an insignificant new accident, or may arise when there is no new accident. To identify a recurrence, the WSIB must confirm that there is clinical compatibility between the original injury or disease and the current condition, or a combination of clinical compatibility and continuity. If a significant new work-related accident occurs, the WSIB establishes a new claim. Guidelines Recognizing a recurrence Clinical compatibility To establish clinical compatibility, a decision-maker compares the worker's current clinical condition to that following the initial accident. The decision-maker considers: whether the parts of the body affected now are the same as, or related to, those affected initially whether the body functions affected now are the same as those affected initially, and the degree to which body functions are affected now (as compared to the effect of the initial condition). Similar clinical conditions indicate that the current problem or problems may be a result of the original injury, whereas dissimilar or unrelated clinical conditions indicate that there is no compatibility, and therefore no recurrence. Continuity To establish continuity (i.e., a connection between the original clinical condition and the most recent problem or problems), the decision-maker considers whether the worker has: complained to supervisors, co-workers, or health care practitioners on an ongoing basis since the original injury demonstrated ongoing symptoms since the original injury required work restrictions or job modifications had ongoing treatment for the original condition, or experienced a lifestyle change since the original accident (e.g., has the worker become unable to participate in household duties, or social or recreational activities?). (vii) The Panel s conclusions [48] The worker in this case is claiming entitlement for a permanent impairment assessment and award for a permanent impairment in the right shoulder under the June 1996 accident claim. The worker is also claiming entitlement to temporary total disability benefits as well as FEL benefits from August 20, 1996 until December 1, 1998 and from May 30, 2002 and ongoing. A related issue is whether the modified work offered by the employer, identified as the clipper position, constituted suitable modified work within the meaning of the Act and Board policy.

11 Page: 10 Decision No. 1794/10 1. Entitlement for the right shoulder [49] The worker sustained a compensable injury to the right shoulder on June 7, 1996, however, initial entitlement for the right shoulder injury was denied by Board decision makers in August 1996, on the grounds that the worker's right shoulder injury had not happened at work. Initial entitlement for the right shoulder injury was not awarded until Tribunal Decision No. 1165/05 dated July 14, In that decision, the Tribunal Panel accepted the credibility of the worker's testimony that he had injured his right shoulder on June 7, 1996 at work as a result of a lifting accident. [50] This Panel also finds the worker to be a credible witness. [51] Following the accident of June 7, 1996, the worker was terminated from employment by the accident employer on October 7, 1996, on the grounds that he was refusing to accept an offer of modified work. [52] A right shoulder sprain was diagnosed by the treating family physician Dr. Sira, on June 10, 1996, and on September 6, 1996, Dr. Sira reported that the worker was disabled for gainful employment. On September 20, 1996, Dr. Sira issued medical restrictions against lifting, carrying, pushing, pulling, over-the-shoulder work and overhead work. [53] There is no further reference to treatment for right shoulder problems until the worker complained to his new treating physician, Dr. Tsang, of right shoulder pain in July 2002 and again in August An MRI taken in 2006 has identified tendinosis in the supraspinatus tendon, mild synovitis in the long head of the biceps tendon and moderate to severe degenerative changes at the AC joint. [54] Despite the gap in medical treatment, the Panel accords significant weight to the two reports in the medical file from the treating physiatrist Dr. Roland Wong dated September 13, 2002 and May 1, The first report of September 2002, which was also relied upon by the Decision No. 1165/05 Panel, stated that the work performed by the worker in 1996 had the potential of injuring his right shoulder. It is now established as a result of Decision No. 1165/05 that a workplace accident on June 7, 1996 did, in fact, injure the worker's right shoulder. In his second report dated May 1, 2006, Dr. Roland Wong reported significant functional limitations in the worker's right shoulder, with a diagnosis of tendinosis, synovitis and severe degenerative changes at the AC joint. Dr. Wong stated that it is well known that any forceful and repetitive work can cause degenerative changes in joints and that the worker now had a permanent injury in his right shoulder, with ongoing tendinosis which had not subsided. The worker was incapable of heavy pushing, pulling and lifting, as well as overhead work. [55] It is acknowledged that there is a gap in medical treatment between 1996 and However, Board policy, as set out in Board OPM Document # , quoted above, does not require continuity of medical treatment if it can be established that there is compatibility between the original compensable injury and a subsequent impairment. In the case before us, the Panel regards the reports of Dr. Roland Wong as determinative and finds on the basis of the worker's evidence, as well as Dr. Wong's reports, that the worker has sustained a permanent injury in the right shoulder to which the compensable accident of June 7, 1996 was a significant contributing factor.

12 Page: 11 Decision No. 1794/10 [56] The worker therefore has entitlement to a permanent assessment and award for the right shoulder condition under the June 1996 accident claim. 2. The suitability of the modified work on offer [57] It must be recalled that at the time of the claims decision of August 1996, the worker did not have entitlement for a permanent impairment in the right shoulder. In the decision set out in Board Memo #31, dated November 16, 2005, the Claims Adjudicator ruled that the clipper job had been assessed by the WSIB ergonomist and was deemed suitable for a right shoulder injury. However, this is not an accurate description of the ergonomist s report, which is contained in the Case Record. That ergonomic assessment was performed on October 23, 2003, but was conducted by the Board ergonomist for a completely different case involving a worker with a compensable back injury. The ergonomist s report made absolutely no reference to the suitability of the clipper job for a worker with a compensable shoulder injury. In fact, the physical demands analysis noted that the job required pushing and pulling to insert plastic clips into a rubber piece and was completed by finger/hand /upper extremity involvement, as well as lifting, lowering and carrying. The ergonomist noted that retrieval of rubber pieces required forward trunk flexion and extended forward reaching with what the ergonomist described as a "golfer s lift." The job also required static positioning. In our view, the job duties as described by the ergonomist are not compatible with the worker s right shoulder injury restrictions and we accept the testimony of the worker that the job duties aggravated his right shoulder condition, as corroborated by the reports from the attending family physician Dr. Sira in September The Panel therefore rejects the 2003 report of the ergonomist as validating the suitability of the clipper job. [58] The Panel further notes that in his December 2008 decision the ARO concluded that the worker s right shoulder injury had, in fact, resolved in 1996, without a permanent impairment. The Panel has already found that decision to be incorrect and that the worker had sustained a permanent impairment in the right shoulder as a result of the June 1996 accident with permanent medical restrictions. [59] Based on the evidence before us, the Panel concludes that the clipper job did not constitute suitable modified employment within the worker s medical restrictions and functional capabilities. 3. Entitlement to further compensation benefits including temporary total disability benefits and FEL benefits between August 30, 1996 and December 1, 1998, and subsequent to May 30, 2002 [60] To recapitulate, the Panel has determined that the worker sustained a permanent injury to his right shoulder as a result of the compensable injury of June 1996, with permanent medical restrictions issued in September 1996 by the family physician which effectively precluded a return to physical labour. Suitable modified work within the worker's medical restrictions was not available from the accident employer and the worker was denied initial entitlement for the right shoulder injury and subsequently, was denied entitlement for permanent impairment in the right shoulder. As a consequence, the injured worker was left on his own to seek and obtain light-duty work within his restrictions and capabilities. It is evident that the worker did undertake his own job search and successfully obtained light-duty employment as a security guard in December However, the security guard wage was significantly less than his pre-accident

13 Page: 12 Decision No. 1794/10 wage of $10.54 per hour. The worker is therefore entitled to benefits under section 37 of the pre Act as well as to FEL benefits under the provision of section 43 of the statute. [61] The Panel finds that the worker was participating in a self-directed program subsequent to August Under the terms of section 37(2)(b)(i) of the pre-1997 Workers Compensation Act, he is entitled to temporary total disability benefits from the time of his termination of benefits on August 20, 1996 until his return to work in December Following his return to work with a wage loss, the worker is entitled to temporary partial disability benefits under the provisions of section 37(2)(a), pending the determination by the Board of the quantum of the section 43 FEL benefits to which the worker is entitled. [62] In May 2002, the worker voluntarily left the workforce in order to care for his children after his wife was severely injured in a motor vehicle accident. The worker remains entitled to FEL benefits under the provisions of section 43(3)(b), based on the worker s deemed earnings from the suitable employment obtained as a security guard.

14 Page: 13 Decision No. 1794/10 DISPOSITION [63] The appeal is allowed. [64] The worker therefore has entitlement to a permanent assessment and award for the right shoulder condition under the June 1996 accident claim. [65] The modified work on offer from the accident employer, the clipper job, did not constitute suitable modified employment within the worker s medical restrictions and functional capabilities. Suitable modified work was not available from the employer as of August 26, [66] The worker was participating in a self-directed labour market re-entry subsequent to August Under the terms of section 37(2)(b)(i) of the pre-1997 Workers Compensation Act, he is entitled to temporary total disability benefits from the time of his termination of benefits on August 20, 1996 until his return to work in December [67] The worker is entitled to FEL benefits. [68] Following his return to work with a wage loss, the worker is entitled to temporary partial disability benefits under the provisions of section 37(2)(a), pending the determination by the Board of the quantum of section 43 FEL benefits to which the worker is entitled. DATED: November 1, 2011 SIGNED: R. McClellan, S. T. Sahay, M. Ferrari