WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1242/15

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1242/15 BEFORE: J. B. Lang : Vice-Chair M. Christie : Member Representative of Employers M. Ferrari : Member Representative of Workers HEARING: June 11, 2015 at Kitchener Oral DATE OF DECISION: October 7, 2015 NEUTRAL CITATION: 2015 ONWSIAT 2242 DECISION UNDER APPEAL: WSIB Appeals Resolution Officer (ARO) dated February 21, 2013 APPEARANCES: For the worker: For the employer: Interpreter: T. Cook, Paralegal S. McEwen, Office of the Employer Adviser 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. 1242/15 REASONS (i) Introduction [1] The worker appeals a decision of M. Palmieri, an Appeals Resolution Officer (ARO) with the Workplace Safety and Insurance Board (the Board ). In that decision, dated February 21, 2013, the ARO found that the worker had fully recovered from his workplace accident with no evidence of a permanent impairment. The ARO, therefore, denied the worker s requests for full Loss of Earnings (LOE) from February 24, 2011 and for a Non-Economic Loss (NEL) assessment for a permanent impairment. [2] The ARO rendered his decision on the basis of the written record, without an oral hearing. (ii) Issues [3] The issues, as described in the Hearing Ready Letter dated February 24, 2014, are: 1. Whether the worker is entitled to ongoing benefits for his left knee, right shoulder, and right quadriceps for injuries resulting from a workplace accident on December 2, Whether the worker is entitled to a NEL assessment for a permanent impairment to his left knee, low back, right shoulder and right quadriceps. 3. Whether the worker is entitled to LOE benefits from February 24, (iii) Background [4] The worker, who was 55 years of age at the time of the hearing, is employed as a truck driver. He began working for the accident employer on September 18, The worker was employed driving a transport truck making long haul deliveries in Canada and the United States. [5] On December 2, 2009, while placing a tarpaulin over a load of steel on a flatbed trailer, the wind caught the tarpaulin. In trying to hold on to the tarpaulin, the worker twisted his low back, both knees and right shoulder. [6] The accident occurred in Illinois near the border with Michigan. The worker was taken to hospital by ambulance in Michigan where he was prescribed pain medication and crutches. The accident employer arranged for another driver to continue on the worker s route and drove the worker back to Ontario. [7] The worker attended at the Emergency Department of his local hospital on December 7, 2009 where he was treated for pain in his knees, low back and right shoulder. Dr. Christopher Donald, the worker s family physician, also provided treatment. In a ruling dated January 12, 2010 the Board allowed the worker s claim for his left knee, low back and right shoulder and paid Loss of Earnings benefits while the worker was off work awaiting an MRI exam. The worker returned to work on February 11, 2010 performing modified duties at four hours per day until March 15, 2010 when the employer was no longer able to provide modified work.

3 Page: 2 Decision No. 1242/15 [8] An MRI of the worker s left knee, performed on January 24, 2010 suggested that the worker had a partial meniscectomy of the medial meniscus with a tear in the posterior horn of the meniscus and a lateral meniscus tear. The MRI also revealed moderate advanced chondromalacia in the medial and patellofemoral compartments of the knee. The exam results also revealed that the worker s anterior cruciate ligament (ACL) had been previously reconstructed. [9] The Board referred the worker to its Knee and Hip Specialty Clinic where he was examined by a team of health care professionals on April 14, Dr. John Cameron, an orthopaedic surgeon, diagnosed quadriceps tendonitis in the right knee and medial compartment arthritis in the left knee which appeared to become symptomatic as a result of the workplace accident. The team recommended further physiotherapy for the left knee. [10] Dr. Thomas Hupel, an orthopaedic surgeon, assessed the injuries to the worker s knees on September 2, Dr. Hupel diagnosed a tear of the medial meniscus in the left knee and recommended surgical intervention. On January 27, 2011, Dr. Hupel performed an arthroscopy and extensive debridement of the worker s left knee. After a post-operative examination on February 24, 2011, Dr. Hupel reported that the worker had a well-functioning knee after ACL reconstruction in 1990 but that he became symptomatic with left knee pain following the December 2, 2009 accident. Dr. Hupel also noted in this report that the osteoarthritis in the worker s left knee was likely related to his 1990 injury. Dr. Hupel recommended that the worker participate in further physiotherapy treatment and he prescribed a custom made knee brace. [11] In a ruling dated February 22, 2011, the Case Manager allowed benefits related to the January 27, 2011 arthroscopic surgery. The Case Manager allowed LOE benefits from January 27, 2011 until February 24, 2011 the normal healing time for this type of surgery. The Case Manager found that the accident employer was able to provide suitable modified work as of February 25, [12] In a subsequent ruling, dated April 1, 2011, the Case Manager, after reviewing the medical information in the worker s file, found that the worker s low back condition had resolved by June 21, 2010 and that his right knee quadriceps injury had resolved by July 14, The Case Manager noted that the injury to the worker s right shoulder was under review. The initial diagnosis for this area of injury was a shoulder strain but an MRI, performed on November 21, 2010, revealed a possible tear of the supraspinatus tendon. In a ruling dated June 3, 2011, the Case Manager found that, in the absence of any evidence of a pre-existing injury to the worker s right shoulder, the labral tear which was revealed in the MRI scan was compatible with the workplace accident. [13] Dr. Herrick, a Senior Medical Consultant with the Board, reviewed the worker s file on June 6, He concluded that the medical evidence suggested that the ACL tear of the ligament in the worker s left knee did not result from the December 2, 2009 accident. He found that the worker twisted his right leg in the workplace accident and there was no indication of a left knee injury. He, therefore, concluded that any ongoing symptoms in the worker s left knee were related to his pre-existing condition. [14] In a ruling dated June 7, 2011, the Case Manger accepted Dr. Herrick s opinion and found that any ongoing problems with the worker s left knee were related to his prior injury and surgery in The Case Manager terminated benefits related to the surgical repair of the meniscal tear of the worker s left knee.

4 Page: 3 Decision No. 1242/15 [15] Dr. Hupel examined the worker on July 5, 2011 with respect to his left knee and right shoulder injuries. Dr. Hupel noted that the worker s complaints of left knee pain were out of proportion to any clinical findings. He also noted that the worker had degenerative changes in his knee and concluded that he was not a good candidate for reconstructive surgery. Dr. Hupel reviewed the MRI report of the worker s right shoulder and concluded that there was no evidence of a rotator cuff tear and that the worker s reported symptoms were not consistent with a labral tear. Dr. Hupel did not recommend surgical intervention for the worker s right shoulder condition. [16] In a ruling dated July 29, 2011, the Case Manager found, on the basis of Dr. Hupel s report, that the worker s right shoulder labral tear is likely the result of degenerative changes and not the result of a traumatic incident. Consequently, the Case Manger denied any further entitlement for the worker s right shoulder injury. [17] As noted above, the ARO, in his decision dated February 21, 2013, upheld the Board s rulings regarding the worker s claim. He found that the Board had allowed entitlement for a left knee, right shoulder and low back strain resulting from the workplace accident of December 2, 2009 and that the Board had provided benefits which included benefits associated with the surgical repair of the meniscus tendon in the worker s left knee. The ARO found that additional medical documentation revealed that the worker suffered from extensive degenerative changes to his left knee as well as a surgical repair of the ACL ligament in The ARO also found that the labral tear in the worker s right shoulder was likely the result of degenerative changes and not a result of the workplace accident. The ARO accepted the findings of the Board s Medical Consultant that the worker had fully recovered from the effects of the December 2, 2009 accident and that he had not suffered any permanent impairment as a result of that accident. The ARO also found that the accident employer had provided suitable modified work and that the worker, therefore was not entitled to LOE benefits beyond February 24, (iv) Law and policy [18] The date of accident for this appeal is December 2, As a consequence, the Workplace Safety and Insurance Act, 1997 applies to this appeal. Pursuant to section 126 of the Act, the Board has identified Policy Package #1 (Revision #9) Initial Entitlement; Policy Package #107 (Revision #9) Aggravation Basis/SIEF; Policy Package #223 (Revision #9) LOE Benefits benefits from December 1, 2010 to July 14, 2011; Policy Package #261 (Revision #9) NEL Entitlement and Policy Package #300 (Revision #9) Decision Making/Benefit of Doubt/Merits and Justice as applying to the subject matter of this appeal. [19] The Panel has considered these policies in its adjudication of this appeal. (v) Preliminary matter [20] At the commencement of the hearing the Employer s Representative advised the Panel that the worker had initiated an appeal at the Board with respect to a second claim he had made while employed with the accident employer. The Date of Accident for this second claim is August 6, The Employer s Representative noted that, in a letter to the Board dated May 15, 2015, the Worker s Representative stated that the worker was temporarily withdrawing his appeal. It was her understanding that the worker has returned the matter to the Operations Division of the Board while he seeks additional medical information.

5 Page: 4 Decision No. 1242/15 [21] The area of injury in this second claim is the worker s right shoulder, knee and hand which overlaps the area of injury in the appeal that is before the Panel. The Employer s Representative submitted that the worker s claim with respect to his 2009 accident could have an impact on the 2012 accident. She submitted that in keeping with the Tribunal s preference for dealing with the entirety of a worker s appeals, the hearing should be adjourned until the worker has resolved his claim relating to the August 6, 2012 accident. [22] In response, the worker s representative submitted that the issue before the Panel deals with entitlement for a permanent impairment for left knee, low back and right shoulder in the period after Although it was possible that the outcome of the appeal before the Panel could have an impact on the worker s second claim, he emphasized that the second claim originated from a separate and distinct accident. [23] The Panel clarified with the parties that the only common area of injury in both claims was the worker s right shoulder. [24] After a brief caucus, the Panel decided that the issues in the worker s two claims were sufficiently distinct so that the Panel could proceed with the hearing on the issues as they were described in the Hearing Ready Letter. (vi) Testimony (a) The worker s testimony [25] In his sworn testimony, the worker described his work history. Following surgery on his left knee in 1990, he was not in the active workforce with his former wife being the primary income earner. In 2006 he began working as a cashier in a convenience store. He obtained his AZ driver s licence in 2007 and was hired by the accident employer in September 2009 as a long haul, flat bed, transport truck driver. He described the general job duties of this position which, in addition to driving 72 hours over a seven day week, included performing daily safety inspections of the truck and, for flatbed trailers, covering the load with a tarpaulin. [26] The worker testified that he had no problems with his left knee following his surgery in 1990 and that he never had a problem with his right shoulder prior to his workplace accident. He also testified that he had only the normal issues that a 47-year-old man would experience with his low back. [27] On December 2, 2009, the worker was engaged in securing tarpaulins over a load of ¾ inch steel pipe. Two tarpaulins were needed to cover the load; each weighed about 150 pounds. The load of pipes was piled about nine feet high on the flat bed. He was standing on the top of the load when the wind caught the tarpaulin. He grabbed a bungee cord attached to the tarpaulin with his right hand and was pulled off the load, landing on the bed of the trailer. He twisted his low back and left knee and strained his right shoulder in the fall. [28] The worker testified that he was off work until he returned to work performing modified duties in February 2010, initially working four hours a day. By June 2010 he was working his regular hours but he did not return to driving a flatbed trailer. He was assigned an enclosed trailer which meant he did not have to cover a load with tarpaulins and a tractor with automatic transmission. The worker also testified that since his December 2009 accident he has had to use a cane as an assist in walking.

6 Page: 5 Decision No. 1242/15 [29] The worker testified that following surgery on his left knee in January 2011 he attended physiotherapy and was prescribed a brace for his knee. He admitted that a couple of days prior to his scheduled surgery he had tested positive for cannabis. Although he could continue to drive a transport truck in Canada, he could not drive in the U.S. until he provided a clean urine test. [30] In response to questions from the employer s representative, the worker elaborated on some details of the Return to Work process in He also described in more detail the process involved in obtaining a clean drug test. He admitted that he was required to take monthly urine tests until 2012 and that he is still required to submit to random drug testing. He stated that he took a second test on May 20, 2011 which he passed and that he returned to work shortly thereafter. [31] The worker testified that his AZ licence expired in He reapplied in 2015 but did not pass the test for medical reasons. The worker stated that he applied for Ontario Disability Support Program (ODSP) benefits in March Initially his application was rejected but it was accepted, on appeal, in the winter of 2013/14. He also began to receive Canada Pension Plan Disability benefits in The worker testified that he did not return to work following his second accident in August [32] The Panel questioned the worker regarding an x-ray and CT scan which the worker s family doctor prescribed for his low back in March The worker stated that he had bruised his low back while working at the convenience store but that his family doctor had not referred him to a specialist for this condition. The Panel also sought further details on the treatment he had received for his injuries at the hospital in the United States. The worker testified that both his right and left legs were bandaged at the hospital. (b) Testimony of Mr. A.V. [33] Mr. A.V., a part owner of the accident employer, testified under oath. He had worked as a transport truck driver and had 12 years experience in driving both flat bed and enclosed trailers. He was the worker s direct supervisor and had picked the worker up in the United States and drove him home following the December 2, 2009 accident. In 2009, there were about 50 employees with the company; by 2011 the number had increased to about 70. Mr. A.V. took over responsibility for human resources at the accident employer in [34] Mr. A.V. described the job duties of a long haul transport truck driver and the difference between flat bed and enclosed trailers. He stated that the job duties associated with a flatbed trailer are significantly more physically demanding than with an enclosed van. He also testified that following his December 2009 accident, the worker was assigned a Volvo truck which had standard key start, automatic transmission, power steering, air ride seats and bunk beds in the back of the cab. He also described the pin to pin operation that the worker was assigned. This involved delivering or picking up a trailer. The driver is required to open the rear doors of the trailer, back into a loading dock, lower the front legs of the trailer, release the pin on the 5 th wheel and drive away. He had no responsibility for handling cargo. [35] Mr. A.V. testified that he had observed the worker using a cane while at work. Drivers were required to follow three point contact when climbing into the cab of their truck. He did not observe the worker to have any difficulty getting into his truck.

7 Page: 6 Decision No. 1242/15 [36] Mr. A.V. testified that the worker was suspended for three weeks on January 26, 2011 the day before his surgery because he had failed a drug test. He testified that the worker also failed one of his follow-up drug tests in which he tested positive for opiates. [37] He also testified that, following his return to work, the worker had an accident on August 6, 2012 while working in Florida. The accident employer considered that the worker had quit his employment following this incident. However, in an award dated August 14, 2014, an arbitrator appointed pursuant to the Canada Labour Code, found that the worker had not voluntarily quit his employment and ordered that he be reinstated. [38] In response to questions from the worker s representative, Mr. A.V. stated that he did not observe the worker walking with any apparent limp while working. In response to a question from the Panel, Mr. A.V. stated that over the past decade, three or four drivers with the employer have not passed a drug test. (vii) Submissions [39] The worker s representative submitted that the evidence establishes that the worker has suffered a permanent impairment to his left knee as a result of the December 2, 2009 workplace accident. The worker admits that he had a prior injury to his left knee in 1990 as a result of a motor vehicle accident and had a surgical repair of his ACL ligament. That injury had healed and the worker was essentially symptom free for 19 years prior to the date of accident. The worker s representative submitted that a pre-existing condition does not disentitle a worker from benefits under the Act, particularly since his condition was asymptomatic prior to the accident. In support of his submission, the worker s representative referred to Tribunal Decisions No. 1876/11, 2120/14 and 424/15. [40] The worker s representative took issue with the opinion provided by Dr. Herrick, a Senior Medical Consultant with the Board, dated June 6, Dr. Herrick concluded that the worker twisted his right knee in the December 2, 2009 accident and there was no indication of a left knee injury. The worker s representative noted that Dr. Herrick was not asked to give an opinion on whether the workplace accident aggravated the worker s pre-existing condition in his left knee. [41] In contrast, the worker s representative urged the Panel to give more weight to Dr. Hupel s report, dated February 24, Dr. Hupel noted that the worker had a well-functioning knee following surgery in 1990 but that his symptoms worsened after the December 2009 accident. Dr. Hupel was of the view that the workers prior ACL graft had been torn likely as a result of the workplace accident. [42] With respect to an injury to the worker s low back and the quadriceps muscles of his right leg, the worker s representative submitted that the worker had complained about these areas of injury following the workplace accident. He also submitted that the MRI, performed on June 17, 2011, revealed that the worker s low back condition was degenerating. [43] The employer s representative submitted that the ARO s decision dated February 21, 2013 should be upheld. She submitted that the evidence supported the ARO s conclusion that the worker had fully recovered from the injuries to his left knee, right shoulder, right quadriceps and low back sustained in the December 2, 2009 accident and that there was no evidence of a permanent impairment.

8 Page: 7 Decision No. 1242/15 [44] She submitted that the medical evidence indicated that the worker had no rotator cuff tear of his right shoulder and that physiotherapy treatments had concluded in August She noted that the worker had complained about low back pain prior to the workplace accident. His family doctor had requisitioned an x-ray and CT scan of the worker s back in May 2008 which revealed that the worker was experiencing degenerative changes to his back. In her view, his low back complaints following the workplace accident had resolved by June 21, Similarly, his complaints about tenderness in the quadriceps of his right leg had resolved by July 30, [45] The employer s representative submitted that the Board was also correct in denying the worker LOE benefits beyond February 24, 2012 because his loss of earnings after that date were a direct result of his failed drug test and were not due to the workplace accident. [46] The employer s representative emphasized that the accident employer had worked diligently with the Board and the worker to provide modified work and to facilitate the worker s return to work. She noted Dr. Hupel s report, dated July 5, 2011, in which he stated that the worker s complaints of pain were out of proportion to any clinical findings. She also noted that Dr. Donald, the worker s family physician, had stated in a report dated June 13, 2011, that the worker was capable of returning to work if he was provided a truck with automatic transmission and assigned pin to pin work. [47] The employer s representative urged the Panel to uphold the ARO s decision. (viii) Findings and conclusions [48] For the reasons that follow, the Panel has decided to allow the worker s appeal, in part. (a) Ongoing entitlement for low back, right shoulder and right quadriceps [49] The Panel finds that the worker is not entitled to ongoing benefits for these areas of injury. [50] The Panel finds that there is no clear diagnosis in the medical evidence for a low back injury. We note that the worker complained of low back pain prior to the workplace accident and that his family doctor had requisitioned diagnostic imaging of his low back in May Although these scans revealed some minimal disc bulging at several levels of the worker s spine, there was no evidence of significant compromise of the spinal canal, nor was there evidence of impingement on nerve roots. The MRI of the worker s lumbar spine, conducted on June 17, 2011, revealed little change in the worker s condition. Soft tissue, alignment and facet joints were considered normal. Minimal lumbar spondylosis and spinal stenosis were noted at L4-5. [51] On the basis of this evidence, the Panel finds that the worker s back condition exhibits the normal degenerative changes of a person his age. Although we accept that the worker may have strained his low back in the workplace accident of December 2, 2009, we are in agreement with the Case Manager s finding that the worker s low back condition had resolved by June 20, 2010 without evidence of a permanent impairment. [52] The worker underwent an MRI scan of his right shoulder on November 21, That scan revealed that the worker did not have a rotator cuff tear but that he likely did have a labral tear with a large labral cyst. On the basis of this evidence, the Case Manager, in a ruling dated June 3, 2011, granted entitlement for the labrum tear of the right shoulder. However, after

9 Page: 8 Decision No. 1242/15 examining the worker on July 5, 2011, Dr. Hupel reviewed the MRI report. Dr. Hupel concluded that the symptoms the worker reported on examination were not consistent with a labral tear. Dr. Hupel also noted that labral tears in patients in the worker s age group are usually the result of degenerative conditions and not the result of trauma. Dr. Hupel also was of the opinion that the worker was not a candidate for surgery on his right shoulder. On the basis of Dr. Hupel s opinion, the Case Manager, in a ruling dated July 28, 2011, rescinded entitlement to benefits for the right shoulder. [53] The Panel notes that there has been no additional medical evidence presented with respect to the worker s right shoulder condition and its relationship to the workplace accident of December 2, As a consequence, the Panel finds that the best evidence that is before us is that of Dr. Hupel who was in a position to examine the worker as well as review the MRI report. The Panel therefore finds that the worker s right shoulder condition is not related to the workplace accident of December 2, The worker is not entitled to ongoing benefits for this condition. [54] Similarly, the Panel finds that the worker is not entitled to ongoing benefits for his right quadriceps. The initial reports of accident provided by the worker and attending physicians do not include a reference to an injury of the right leg, or more specifically the right quadriceps although there is reference to the right knee. Both of the worker s knees were assessed by a team of health care providers at the Board s Knee and Hip Specialty Clinic on April 14, The worker reported pain in his right knee above the suprapatellar which was aggravated when standing from a sitting position or climbing stairs. On the basis of these symptoms, Dr. John Cameron diagnosed the worker as having right quadriceps tendonitis. No specific treatment was proposed for this condition other than the physiotherapy that was provided as part of a work hardening program. In a Memo dated April 29, 2010, the Case Manager accepted that the worker s right quadriceps tendonitis was related to the workplace accident. In a report dated May 5, 2011, Dr. Hupel recommended that the worker receive more physiotherapy treatments to rebuild his quadriceps and noted that his quads are improving and that he expected that the worker would continue to recover with physiotherapy. In a report dated July 5, 2011, Dr. Hupel made no mention of the worker s right quadriceps condition although he did report to the Board on the condition of the worker s left knee and right shoulder. [55] The Panel was not directed to any additional medical evidence with respect to the worker s right quadriceps. [56] On the basis of the above evidence, the Panel finds that the tendonitis in the worker s right quadriceps had resolved following physiotherapy treatment. The worker is not entitled to ongoing benefits for this condition and there is no evidence of a permanent impairment for his right quadriceps. (b) Entitlement for left knee condition [57] For the reasons that follow, the Panel has decided to allow ongoing entitlement for the worker s left knee condition. [58] The rationale for the Board s denial of ongoing entitlement for the injury to the worker s left knee is centered on the June 6, 2011 report of Dr. Herrick, one of the Board s Senior Medical Consultants. After reviewing the worker s medical file, Dr. Herrick concluded that the worker twisted only his right knee in the workplace accident and that there was no indication of a left

10 Page: 9 Decision No. 1242/15 knee injury. Dr. Herrick was of the view that the chronically torn ACL in the worker s left knee was a pre-existing condition which had not been affected by the workplace accident. [59] Dr. Herrick s opinion is contradicted by that of Dr. Hupel who performed an arthroscopy and extensive debridement of the worker s left knee on January 27, In his operative report, Dr. Hupel stated that the worker s previous ACL graft was identified and was significantly frayed. In his clinical note, dated February 24, 2011, Dr. Hupel noted that the torn ACL graft, which he had noted in surgery, was likely from the injury sustained after the worker jumped off a truck. Dr. Hupel noted that the worker had a well-functioning knee following his ACL reconstruction in [60] The Panel has decided that it prefers the opinion of Dr. Hupel over that of Dr. Herrick. Dr. Hupel had treated the worker and had performed the surgery on his left knee and therefore, in our opinion, is in a better position to assess the nature of the worker s injury. The Panel also finds that the description of the accident provided by the worker both in his reports to the Board and in his testimony at the hearing supports a conclusion that the worker twisted his left knee in the course of the accident. [61] Although it is evident that the worker had a prior injury to his left knee in 1990 which required surgical reconstruction of his ACL ligament, it is also evident that the worker had a well-functioning knee for 19 years prior to the workplace accident. [62] The Panel therefore finds that the worker injured his left knee in the workplace accident of December 2, The surgical repair performed by Dr. Hupel on January 27, 2011 is related to this accident. Dr. Hupel also reported that the worker would not have a full recovery from his surgery. The Panel therefore finds that the worker has also suffered a permanent impairment to his left knee as a result of the workplace accident and is therefore entitled to permanent impairment assessment for that injury. This issue is referred back to the Board for further adjudication with the usual rights of appeal. (c) Entitlement to Loss of Earnings benefits beyond February 24, 2011 [63] In a ruling dated February 22, 2011, the Case Manger granted the worker entitlement to LOE benefits from the date of his surgery on January 27, 2011 to February 24, 2011, which is the normal healing time for recovery from this surgery. The worker did not return to work until June 2011 and is claiming LOE benefits until his return to work. [64] On January 26, 2011, the worker tested positive in a random drug test. As a consequence of the positive test, the worker was prohibited from driving in the United States until he had passed another drug test. The worker took another drug test on May 20, 2011 which he passed. Following this second drug test, the accident employer engaged in discussions about a return to work schedule. [65] Section 43 of the Act provides for the payment of LOE benefits if the loss of earnings is a result of the injury. The Panel is in agreement with the submissions of the employer s representative that in this instance, the worker s loss of earnings are not a result of his injury but rather are a result of having failed a drug test. The Panel, therefore, finds that the worker is not entitled to LOE benefits beyond February 24, 2011.

11 Page: 10 Decision No. 1242/15 DISPOSITION [66] The worker s appeal is allowed in part as follows: 1. The worker is not entitled to ongoing benefits for his low back. 2. The worker is not entitled to ongoing benefits for his right shoulder. 3. The worker is not entitled to ongoing benefits for his right quadriceps. 4. The worker is entitled to benefits for his left knee condition. The worker has suffered a permanent impairment to his left knee and is entitled to a permanent impairment assessment for this injury. 5. The worker is not entitled to LOE benefits beyond February 24, [67] The nature and extent of benefits for the worker s left knee injury will be returned to the Board for further adjudication, subject to the usual rights of appeal. DATED: October 7, 2015 SIGNED: J. B. Lang, M. Christie, M. Ferrari