New entitlement levels after worker’s condition worsens

Initial workers’ compensation award was for aggravation of pre-existing condition; tribunal finds deterioration related to workplace injury, not underlying condition

An Ontario worker has won her case for a redetermination of workers’ compensation benefits after the province’s Workplace Safety and Insurance Appeals Tribunal found her injury’s deterioration was not due to an underlying condition and she had no chance of finding comparable modified work after her employer closed its doors.

The 64-year-old worker began her employment as a motor builder with a company that manufactured small motors in 1978. She worked with the company without any major problems for 20 years until December 1998, when she felt significant pain in her right shoulder. She hadn’t received medical treatment for any shoulder problems before this incident.

The worker believed the shoulder pain was the result of years of performing repetitive and strenuous tasks as part of her motor builder job duties — which included frequent and regular “hammering motors” — so she sought medical treatment and applied for workers’ compensation benefits. She was diagnosed with bursitis of the shoulder, calcification of the ligaments, and calcific rotator cuff degeneration and tendinitis.

The Ontario Workplace Safety and Insurance Board (WSIB) investigated the worker’s claim and interviewed some of her co-workers. The co-workers said they had experienced similar problems as a result of their repetitive work. The WSIB’s medical consultant also believed that the worker’s shoulder injury was compatible with her job duties, but cautioned that her rotator cuff diagnosis could be a sign of a longstanding condition — though it was of moderate magnitude.

Moderate pre-existing condition

The WSIB determined the worker’s injury was an exacerbation of a pre-existing, non-work-related condition, so she had some entitlement to benefits but was also fit for light, non-repetitive duties. The worker was evaluated at a WSIB regional evaluation centre, which diagnosed her with repetitive strain injury. It was determined it would be unlikely the worker could return to her full duties, but could probably continue with light duties and permanent restrictions on heavy, repetitive, or overhead use of her right arm. The WSIB granted the worker a five-per-cent non-economic loss award for her shoulder impairment.

The worker continued to work with light duties for the motor manufacturing company — such as cleaning shelves, applying labels, and cleaning items in trays — for several years until May 2009, when the plant closed.  Shortly thereafter, she sought increased treatment for her shoulder and in October she filed a workers’ compensation claim for a recurrence and worsening of her shoulder injury, as well as a redetermination of her non-economic loss award and loss of earnings due to the plant closure.

The WSIB found she suffered from a “significant temporary deterioration in her right shoulder condition” and granted benefits covering up to 12 weeks of physiotherapy, but declined to reconsider her loss of earnings or allow entitlement to health care benefits and treatment.

A WSIB case manager in April 2014 noted that “if the original impairment decision was based on an underlying condition and the most recent medical evidence shows the condition has worsened as a result of that underlying condition, no further non-economic loss benefits will be considered for payment.

The worker appealed, arguing her shoulder continued to deteriorate and she was entitled to more benefits for her impairment.

The tribunal noted that the Ontario Workplace Safety and Insurance Act provided that if a worker who has an impairment suffers a significant deterioration in her condition more than 12 months after the most recent determination of the level of her impairment, the worker can request a redetermination of that impairment. The WSIB’s policy manual document on redeterminations defines “significant deterioration” as “a marked degree of deterioration in the work-related impairment that is demonstrated by a measurable change in objective clinical findings.

The tribunal disagreed with the previous finding that the worker’s shoulder condition was due to the worsening of an underlying condition. The medical evidence indicated there was likely a pre-existing condition, but it was moderate and there was no suggestion this could limit the worker’s entitlement. In fact, the WSIB’s medical consultant found compatibility between the worker’s injury and her job duties and it was the job duties that aggravated the pre-existing condition. Further, the original workers’ compensation entitlement was for an exacerbation of the condition, said the tribunal, adding that the worker hadn’t received any medical treatment for her shoulder or missed work because of it before the compensable injury in December 1998.

The tribunal also found that there was no medical opinion stating that the worker’s right shoulder condition — which had clearly gotten worse in the decade-plus since the original workers’ compensation award — had deteriorated solely or primarily due to the progression of an underlying condition.

Similar modified work hard to find after plant closure

As for the worker’s loss of earnings, the tribunal found that she had been performing light duties and modified work since her initial injury and was still doing so when her employer closed the plant. As a result, the job she was performing was tailored to her employment with the motor manufacturing company and not available in the general labour market — which should have entitled her to a labour market re-entry assessment had entitlement been awarded. Without the assessment, the worker was unable to find comparable employment and now that she was 64 years old, there was no longer any point in providing her with a labour market re-entry assessment, said the tribunal.

The tribunal determined that the worker’s shoulder deterioration was more than a temporary one and she was entitled to a redetermination of her non-economic loss award for permanent impairment. In addition, she was entitled to full loss-of-earnings benefits from the plant closing because she couldn’t’ earn income in suitable employment, dating from October 2009 when she filed her claim until she reaches the age of 65, when Canada Pension Plan benefits kick in.

The tribunal also allowed entitlement for health care costs for treatment of the right shoulder only, if the worker could provide documentation that distinguishes such treatment from that for other non-compensable conditions.

For more information see:

Decision No. 2763/18, 2018 CarswellOnt 22349 (Ont. Workplace Safety and Insurance Appeals Trib.).

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