- Consequences of injury (iatrogenic illness) (treatment) (surgery)
- Permanent impairment {NEL}
- Loss of earnings {LOE} (review) (after seventy-two months) (significant temporary deterioration)
- Bone graft (hip)
The worker was granted entitlement for a left shoulder injury, a labral tear. Repair of the labrum involved reconstruction of the posterior glenoid. That part of the procedure included a bone graft taken from bone harvested from the iliac crest of the worker's left hip. The worker was initially granted a 13% non-economic loss (NEL) benefit recognizing a permanent impairment of his left shoulder. The worker had ongoing symptoms from the bone donor site in his left hip. In a November 2013 decision the WSIB granted the worker initial entitlement for the left hip condition.
The issues under appeal were whether the worker's left hip impairment was a permanent impairment, and whether the worker was entitled to LOE benefits for a deterioration of his left shoulder condition leading to his left shoulder surgery on February 29, 2016. The Vice-Chair allowed the appeal.The worker's consulting doctor acknowledged that there may be residual pain from a bone harvesting site and, further, that if that pain is significant enough it could result in functional restrictions. The loss of bone, pain and restrictions all qualify as a "functional abnormality or loss" as required by the WSIA. The ongoing medical reporting, and in particular the worker's testimony, indicated that the condition had not improved and the worker was advised that it was not amenable to any treatment that might improve it. The worker had a permanent impairment of his left hip that was secondary to his work-related surgery. He was entitled to a NEL assessment for that permanent impairment. The Vice-Chair agreed that the worker suffered a significant deterioration in his shoulder condition permitting a review of his LOE benefits pursuant to WSIA section 44(2.1). The Vice-Chair noted that it had been an error of law for the WSIB to deny any additional LOE benefits on the basis that the worker was not working at the date of the "recurrence" on December 16, 2015. Numerous WSIAT decisions have granted full LOE benefits to workers who were not working but suffered a deterioration in their condition that resulted in a further impact on their ability to work (that is, a further loss of earning capacity), regardless of whether the worker was working at the time of the deterioration. Since the worker in this case was deemed to have some residual earning capacity as of December 16, 2015, in keeping with the fact that he was being paid only partial LOE benefits, he still had scope for further loss of that remaining earning capacity due to the further worsening of his condition. He did have a further deterioration, as the WSIB accepted, and as a result he had a further loss of earning capacity. The worker underwent a complete left shoulder arthroplasty (shoulder replacement) on February 29, 2016. Up to November 10, 2016 the worker was totally impaired from any type of work and engaged in cooperation with health care. In the brief period after his discharge from physiotherapy but before finding work, the worker was taking reasonable steps to mitigate his loss of earnings by looking for work. The Vice-Chair found that the worker was entitled to full LOE benefits from December 16, 2015 to December 6, 2016, the date he started new employment.