Workers’ Compensation Matters


 

 

Contact dermatitis: significant partial loss of earnings award

 

Our client was a bindery worker who developed chronic contact dermatitis due to a reaction to chemicals in the printing industry.  The Board initially determined that she was entitled to a permanent partial disability award equal to only 5% of total disability.  The Board also denied her entitlement to a loss of earnings award, as it determined that she would be able to adapt to the occupations of a general office clerk, bookkeeper, accounting clerk, inventory clerk, and data entry clerk.  Through our efforts, she was successful on appeal at WCAT, and is now entitled to a partial loss of earnings pension to reflect the significant barriers that she will face in employment due to her age and medical condition. 

 


 

 

Multiple leg fractures: 100% loss of earnings award

 

Our client was a drywall installer and fell when a scaffold collapsed.  He suffered a comminuted left calcaneal fracture and a comminuted fracture of the left tibia and fibula with resulting surgeries.  The Board initially granted a permanent partial disability award equal to 28.15% of total disability, but denied a loss of earnings award.  The Board determined that our client could return to work as a dispatcher or radio operator.  Through our efforts, he was successful on appeal at WCAT.  The Board has now recognized that our client has a significant physical impairment such that he is incapable of returning to work in any capacity.  Our client is receiving a 100% loss of earnings pension.

 


 

 

Post-Traumatic Stress Disorder: 100% loss of earnings award

 

Our client was a plasterer who fell off scaffolding onto the concrete floor of a parkade while spraying the roof of the parkade with insulation.  He sustained a concussion, post-traumatic stress disorder, and multiple soft tissue injuries.  The Board initially granted a permanent partial disability award equal to 50.80% of total disability.  With our assistance, the Board has since recognized that our client is competitively unemployable as a result of the permanent injuries sustained under his claim.  He is now receiving a 100% loss of earnings pension.

 


 

 

Low back and knee injury: 100% loss of earnings award

 

Our client was employed as a stock person who suffered a low back and right knee injury at work.  The Board initially determined that she was entitled to a permanent partial disability award equal to just 2.5% of total disability.  The Board also denied her entitlement to a loss of earnings award, as it determined that she would be able to adapt to the occupations of a canvasser and door to door salesperson.  Through our efforts, she was successful on appeal at the Review Division, who directed the Board to conduct a loss of earnings assessment.  The Board has since recognized that she is competitively unemployable.  Our client is now entitled to a 100% loss of earnings pension. 

 


 

 

Thumb amputation, Pain Disorder, Major Depressive Disorder: 100% loss of earnings award

 

Our client was a butcher who sustained a right thumb tip amputation when his hand slipped while operating a band saw.  The Board initially determined that he was entitled to a permanent partial disability award equal to just 5% of total disability.  Through our efforts, the Board has since recognized that he also developed severe permanent Pain Disorder and Major Depressive Disorder as a result of his work injury.  The Board has now determined that he is competitively unemployable and entitled to a 100% loss of earnings pension.

 


 

 

Right knee and left shoulder injuries: significant partial loss of earnings award; pension to terminate at age 70

 

Our client was a chef who fell and sustained severe injuries to her right knee and left shoulder.  The Board accepted her injuries under separate claims.  Under our client’s right knee claim, the Board initially denied a loss of earnings assessment, as it believed that she was still able to perform her job duties as a chef.  Through our efforts, she was successful on appeal at WCAT.  The Board has now determined that she is entitled to a partial loss of earnings pension, on the basis that her limitations and restrictions only allow her to perform modified part-time duties.  Under our client’s left shoulder claim, the Board initially determined that she would be entitled to a permanent partial disability award equal to 21.22% of total disability.  The Board also initially determined that her pension would terminate at age 65.  Through our efforts, she was successful on appeal at WCAT.  The Board has now determined that she is entitled to an increased pension award due to the combined effect of her right knee and left shoulder disabilities.  The Board has also accepted that her pension is to terminate at age 70.

 


 

 

“Low back sprain”: acceptance of L5-S1 disc herniation and subsequent surgery

 

Our client was a police officer who injured his back during a fitness test.  Medical evidence indicated that he suffered a disc herniation.  The Board initially only accepted his claim for a low back sprain.  Through our efforts, he was successful on appeal at WCAT.  The Board has since accepted his claim for a right-sided L5-S1 disc herniation and subsequent L5-S1 discectomy.  He was provided with a permanent partial disability award to recognize this condition.  A few years later, our client suffered another injury when his police car spun out on ice and hit a light pole.  The Board initially only accepted his claim for a permanent aggravation of his L5-S1 disc pathology, and denied acceptance of a permanent chronic pain condition.  With our assistance, he was successful on appeal at the Review Division, and the Board has since increased his permanent partial disability award to reflect the acceptance of his chronic pain.

 


 

 

Low back injury: 100% loss of earnings award

 

Our client was employed as an office worker, and suffered a back injury (sacroiliac strain) while lifting a heavy object.  Despite the fact that this worker experienced debilitating back pain, the Board determined that she should be capable of working full-time in an office.  On her claim, our firm pursued a full loss of earnings award.  At WCAT, the Panel agreed that the jobs identified by the Board were physically unsuitable for our client.  She was found to be competitively unemployable as a result of her injuries, and now receives a 100% loss of earnings award.

 


 

 

Carpal tunnel syndrome, Complex Regional Pain Syndrome: 100% loss of earnings award

 

Our client worked as a helper/dishwasher, and as a result of his work duties over time, he developed carpal tunnel syndrome and complex regional pain syndrome.  The Board initially deemed our client able to return to work in his pre-injury occupation.  After our firm appealed this decision, the Board then deemed our client able to work as a ticket taker or parking lot attendant.  We proceeded to WCAT, where the Panel found that due to his hand disability, our client was not able to pursue any of the occupations selected by the Board.  WCAT directed the Board to further investigate the extent of our client’s benefits.  As a result, our client was granted a full loss of earnings award.

 


 

 

Acceptance of claim for right knee injury

 

Our client sustained a right knee injury while working as a rebar installer.  Initially, his claim was denied entirely.  The Board pointed to a previous snowboarding accident, and attributed our client’s knee complaints to this activity instead of his job duties.  In response, our firm initiated several appeals.  In 2009, WCAT varied the Board’s findings and accepted a right knee injury under the worker’s claim.  In 2011, WCAT also accepted aggravation of a pre-existing meniscus tear in the worker’s knee.  Our client was granted wage loss benefits, and his claim was referred to the Disability Awards Department for a pension evaluation.

 


 

 

Multiple fractures, Post-Traumatic Stress Disorder: 100% loss of earnings award, Personal Care Allowance

 

Our client, a tree faller, sustained multiple injuries as a result of a serious workplace accident. His claim was accepted for neck and back fractures, a head injury resulting in cognitive difficulties, inner ear damage resulting in vertigo, chronic pain, and post-traumatic stress disorder.  He required morphine medication to manage his pain, and experienced memory loss and hearing problems.  Despite these extensive conditions, the Board estimated that our client ought to be able to work in part-time positions as a retail sales clerk, gas station attendant, or delivery driver.  Our appeal to WCAT was successful.  According to the Panel, it was hard to imagine that this worker could perform any kind of job, and he was granted a 100% loss of earnings award.  Our firm then secured a Personal Care Allowance, in recognition of his need for assistance with the activities of daily living.

 


 

 

Arm and shoulder chronic pain: 100% loss of earnings award

 

While working as a housekeeping aide, our client fell and injured her arm and shoulder.  As a result, she suffered from chronic pain and was unable to use her right arm for work above shoulder level, or for lifting more than 5 pounds.  The Board initially determined that she was able to return to work as a housekeeper.  After our successful appeal to WCAT, the Board was directed to further investigate our client’s ability to return to the workforce.  The Board granted her only a partial loss of earnings award, on the basis that she could work as a cashier or as an assembler.  At WCAT, our firm obtained a 100% loss of earnings award.  The Panel found that due to her physical disability, chronic pain, age, and English language limitations, she was unable to pursue any type of occupation.

 


 

 

Aggravation of pre-existing degenerative disc disease: significant partial loss of earnings award

 

Our client worked as a loader operator, and after a workplace accident, his claim was accepted for a permanent aggravation of a pre-existing degenerative disc disease.  He was awarded a 2.5% permanent partial disability award for chronic pain.  After his injury, he was only able to work for his spouse’s business, and he was unable to undertake the training offered by the Vocational Rehabilitation department for an office position.  Nonetheless, the Board determined that his loss of earnings award would be calculated based on the wages he could earn as an office worker.  After our WCAT hearing, the Panel determined that our client was simply unqualified for the positions determined by the Board.  We were successful in obtaining a loss of earnings award based on the actual wages that our client earned at his spouse’s business.

 


 

 

Chronic Benign Positional Vertigo: 100% loss of earnings award, Independence and Home Maintenance Allowance

 

Our client was a bus driver who suffered from chronic benign positional vertigo after a component in her hydraulic seat exploded.  She was unable to return to work as a bus driver, and the Board initially granted her a 10% permanent partial disability award.  Our firm pursued a 100% loss of earnings award, and it was granted at the WCAT level, where the Panel concluded that the worker’s dizziness, hearing loss, and lack of transferable skills prevented her from obtaining a job in any of the occupations suggested by the Board.  Subsequently, our office also obtained an Independence and Home Maintenance Allowance, paid to disabled workers who cannot maintain a home or property.

 


 

 

Torn supraspinatus tendon: pension payable to age 75

 

Our client was an electrician employed by a municipality.  He developed numbness and pain in his left arm and shoulder while installing wires in lamp posts.  The Board initially accepted his claim for a torn supraspinatus tendon only.  Our office assisted him in an appeal, and the Board subsequently accepted that he had also sustained injuries to his left wrist and biceps.  The Board then determined that our client was entitled to a permanent partial disability award, payable only to the age of 65.  Our office successfully appealed this decision to WCAT on his behalf.  Our client is now entitled to receive his pension until he turns 75 years old.

 


 

 

Right shoulder and neck chronic pain: 100% loss of earnings award

 

Our client was a nursery worker who developed right shoulder and neck pain due to her work duties.  Her claim was initially denied by the Board.  We appealed this decision to the Review Division, and her claim was later accepted for soft-tissue injuries to the neck and right shoulder.   Through our efforts at two subsequent WCAT appeals, the Board also eventually accepted an aggravation of a pre-existing right shoulder impingement syndrome, an aggravation of a pre-existing degenerative disc disease in the cervical spine, chronic pain, Major Depressive Disorder, and Pain Disorder.  In addition, the Board initially determined that our client was only entitled to a permanent partial disability award equal to 5% of total disability.  We appealed this decision, and now the Board has acknowledged that our client is competitively unemployable.  She is currently in receipt of a 100% loss of earnings award.

 


 

 

Lumbar sprain: pension payable to age 70

 

Our client was employed as a finishing carpenter when he injured his back at work.  At the time of his injury, he was 52 years old.  The Board initially accepted his claim for a right lumbar sprain.  Our firm assisted him in appealing this decision, and the Board subsequently also accepted his claim for an aggravation of pre-existing spinal stenosis, with L4-5 nerve root irritation.  The Board then determined that our client was entitled to a permanent partial disability award, payable only to age 65.  Our firm successfully appealed this decision to WCAT.  Our client’s entitlement to a permanent partial disability award will now continue until age 70.

 


 

 

Chronic pain: 100% loss of earnings award

 

Our client was employed as an airport baggage screener when she slipped and fell while walking through a construction site at work.  The Board granted her a permanent partial disability award equal to just 2.5% of total disability, and denied her entitlement to a loss of earnings assessment.  Our firm appealed this decision letter and assisted our client in obtaining medical evidence in support of her appeal.  Our firm also requested that the Board accept psychological conditions under her claim as compensable consequences of her workplace injury.  Through our efforts, the Board has now accepted Major Depressive Disorder under her claim, and granted a 100% loss of earnings award.

 


 

 

Multiple fractures: Acceptance of psychological conditions, 100% loss of earnings award

 

Our client was a painter who fell from a ladder and sustained multiple injuries, including rib fractures, an arm fracture, and a concussion.  The Board initially determined that he was entitled to a permanent partial disability award equal to 9.14%, and denied a loss of earnings assessment.  Through our efforts, the Board later accepted depression under his claim as a compensable consequence of his work injury.  Flowing from this decision, his permanent partial disability award was increased by 30% to take into account his psychological condition.  We then assisted our client in obtaining supportive medical evidence from his treating physicians, and represented him at a WCAT oral hearing.  Our appeal was successful.  WCAT determined that our client’s permanent partial disability award ought to be increased to 60%, rather than just 30%, for his psychological condition.  WCAT also determined that he is entitled to three separate chronic pain awards, rather than just one, as the Board had previously determined.  Finally, WCAT determined that our client is entitled to a 100% loss of earnings award. 

 


 

 

Back injury: reopening of claim, referral to pain program, acceptance of psychological conditions

 

Our client was a welder who injured his back at work.  The Board accepted his claim for a lumbar strain, an L2-3 disc herniation, bilateral L2-3 discectomies, and chronic pain.  Several years after his original injury, our client’s condition deteriorated, and our firm assisted him in pursuing a re-opening of his claim for further wage loss benefits, treatment at a pain program, and acceptance of his psychological conditions.  The Board initially denied all three of our requests.  Our firm appealed this decision to WCAT, and assisted our client in obtaining supportive medical evidence from his treating physician.  We also successfully represented our client at his oral hearing.  WCAT allowed our appeal, and reopened our client’s claim for further wage loss benefits, determined that our client is entitled to a referral to a pain program, and accepted our client’s psychological conditions as compensable consequences of his original injury. 

 


 

 

Survivor’s benefits: effective date of increase in permanent partial disability award

 

Our client’s late husband was a rod mill operator and heavy-duty mechanic.  His claim was accepted for asbestos-related pleural lung disease and asbestosis as an occupational disease.  The Board initially determined that he was entitled to a permanent partial disability award equal to 80% of total disability.  Our client’s late husband then passed away as a result of his asbestos-related lung disease.  We were successful in appealing the Board’s decision to the Review Division, who found that our client’s late husband’s award ought to be increased to 100% of total disability.  The Review Division determined the effective date of this increase to be November 5, 2009, when his deteriorating condition was first observed by a Board staff member.  We appealed the Review Division’s decision to WCAT, and assisted our client in obtaining supportive medical reports that showed a gradual deterioration in her late husband’s condition prior to November 5, 2009.  We were successful in our appeal, and WCAT determined that the effective date of the increase in his award ought to be July 9, 2009, rather than November 5, 2009. 

 


 

 

Carpal tunnel syndrome, multiple injuries, psychological conditions: 100% loss of earnings award

 

Our client was employed as a forestry worker.  His claim was accepted in 1988 for bilateral carpal tunnel syndrome, as a result of using a chain saw while planting and spacing trees.  The Board initially determined that our client’s 1988 injury had resolved, and he was therefore not entitled to a permanent partial disability award.  We assisted our client in obtaining medical evidence to be used in support of his appeal, and successfully represented our client at WCAT.  He is now entitled to a referral to the Disability Awards Department to assess his eligibility for a permanent partial disability award under his 1988 claim.

 

Our client then injured himself again in 2009 when his air gun kicked back, causing his body to twist awkwardly.  The Board initially accepted our client’s claim for soft tissue injuries to his right knee, both elbows, and both wrists, but denied acceptance of an aggravation of his pre-existing psychological conditions. We successfully appealed this decision to the Review Division.  The Board has now accepted our client’s Generalized Anxiety Disorder and Alcohol Abuse Disorder under his claim.  In addition, the Board has since recognized that our client is competitively unemployable as a result of his 2009 work injury, and is entitled to a 100% loss of earnings award. 

 


 

 

Aggravation of pre-existing back condition: 100% loss of earnings award

 

Our client was an auto body technician who sustained a low back injury.  He underwent an L4-5 decompression and fusion surgery.  The Board accepted his claim for a permanent aggravation of pre-existing L4-5 spondylolisthesis with right L5 nerve root irritation, and chronic pain.  The Board then determined that our client was entitled to a permanent partial disability award equal to 8.22% of total disability, and denied a loss of earnings assessment.  We assisted our client in obtaining medical evidence to be used in support of his appeal of this decision, and successfully represented him at his WCAT oral hearing.  The WCAT Panel concluded that our client is competitively unemployable and is entitled to a 100% loss of earnings award.

 


 

 

Left ankle injury: acceptance of osteochondral lesion and surgery as compensable consequences

 

Our client was an aircraft inspector.  He injured his left ankle at work while descending a ladder.  The Board initially accepted his claim for a left ankle sprain/strain.  Our client returned to work, but his condition worsened over the years.  He ultimately developed an osteochondral (“OCD”) lesion of the talar dome, which required surgery.  The Board declined to accept our client’s OCD lesion and surgery as part of his claim.  Our firm successfully appealed this decision and represented our client at his WCAT oral hearing.  We also assisted him in obtaining supportive medical evidence to be used in his appeal.  Through our efforts, WCAT directed the Board to accept our client’s OCD lesion and surgery as compensable consequences of his original injury. 

 


 

 

Low back injury and depression: 100% loss of earnings award

 

Our client was a hotel housekeeper, who injured her lower back while attempting to open a sofa bed.  Her claim was accepted for an L4-5 disc herniation with temporary aggravation of her pre-existing degenerative disc disease, and depression.  The Board initially determined that she was entitled to a permanent partial disability award equal to 18.70% of total disability, and denied a loss of earnings assessment.  We appealed this decision to the Review Division, where an additional award equal to 2.5% of total disability was granted to recognize our client’s chronic pain condition.  We then successfully represented our client at WCAT, and her permanent partial disability award for depression was increased significantly from 15% to 40%, bringing her total award to 48.2% of total disability, with an age adaptability factor.  We were also successful in a separate WCAT appeal, in which the Panel determined that our client was entitled to a loss of earnings assessment.  Upon further investigations, the Board has now determined that our client’s physical and psychological impairments prevent her from competitively returning to the workforce.  She is now receiving a 100% loss of earnings award.

 


 

 

Laceration and fracture to finger: acceptance of carpal tunnel syndrome

 

Our client was a machinist.  He was injured at work when his left middle finger was caught between the wheel of a tension roller.  He underwent emergency treatment and surgery.  His claim was accepted for a laceration and fracture to his finger.  Our client then saw a specialist, who conducted EMG testing and diagnosed bilateral carpal tunnel syndrome (“CTS”), worse in the left hand, which he said was triggered by the left middle finger injury and surgery.  We pursued the acceptance of CTS under our client’s claim, on the basis that it was a compensable consequence of his work injury.  Our request was denied by both the Board and Review Division, and we appealed these decisions.  We assisted our client in obtaining supportive medical evidence, and successfully represented him at his WCAT oral hearing.  As a result of our efforts, WCAT allowed the appeal and determined that our client’s left-sided CTS arose out of and in the course of his employment. 

 


 

 

Injured at 65: 100% loss of earnings award, payable until age 72

 

Our client was a seasonal greenhouse labourer, who injured his neck and hip at work when he slipped and fell.  He was 65 years old at the time of his injury.  The Board initially determined that our client was entitled to a permanent partial disability award equal to 8.15%, payable until the age of 67, two years following the date of his injury.  We appealed this decision to the Review Division, and assisted our client in obtaining supportive medical evidence from his family doctor.  The Board has since determined that our client is competitively unemployable and entitled to a 100% loss of earnings award.  We also successfully represented our client at a WCAT oral hearing, disputing the termination date of his pension award.  The Panel determined that our client’s pension award should be paid until he is 72 years old, when he would have retired if not for his compensable workplace injuries. 

 


 

 

Acceptance of multiple knee and joint problems

 

Our client was employed as a construction labourer for over 20 years, and stopped working due to knee symptoms.  Although he was not involved in a specific work accident, he suffered from pain and severe swelling in his knee.  He was examined by several physicians, and was diagnosed with osteoarthritis and a type of tissue inflammation (bursitis).  Relying on a Medical Advisor’s opinion, the Board denied acceptance of our client’s conditions on the basis that they were caused by age-related degeneration, and not his work duties.  Our office appealed this decision to WCAT, where the Panel agreed that the repetitive kneeling required in our client’s occupation indeed caused osteoarthritis.  The WCAT Panel then directed the Board to adjudicate wage loss benefits and a permanent partial disability award for our client.

 


 

 

100% Loss of Earnings Award due to Spinal Disability

 

Before his injury, our client was employed as a forklift operator. He suffered a fall, which resulted in extensive back problems and severe pain. These conditions made it unsafe for our client to drive, as he was unable to properly perform shoulder checks, and was required to take pain medication with numerous side effects. Although the Board accepted that our client could not continue working as a forklift operator, his loss of earnings award was based on the finding that he could find employment as a truck driver. Our office appealed to the Review Division, arguing that the Board made a contradictory decision. Accepting that our client is unable to return to work as a forklift operator should also mean that he cannot perform the similar occupation of a truck driver. The appeal was allowed, and our client was awarded a partial loss of earnings award on the basis that he could work as an electronics assembler. Our office made a further appeal to WCAT, on the basis that our client is instead competitively unemployable. The Panel reviewed medical evidence which detailed our client’s limitations, and agreed with our submissions. He was granted a 100% loss of earnings award, which is equivalent to the amount of his wage loss benefits.

 


 

 

Permanent partial disability award payable beyond age 65

 

Our client, a machinist, suffered a work injury which resulted in a fracture to one of his fingers.  Under current legislation, a worker’s permanent partial disability award is payable to age 65, unless it can be proven that before the injury, the worker intended to continue working beyond this age.  Our client was satisfied with the amount of this disability pension, but he disputed the termination of this award upon reaching the age of 65.  The Board and the Review Division both dismissed our client’s position that he intended to remain at work, and delay his retirement.  In our appeal to WCAT, our team presented evidence with respect to our client’s financial obligations, outstanding debts, and relationship with the employer.  WCAT allowed our client’s appeal, and determined that his permanent partial disability award would be payable until age 70.

 


 

 

Child care worker: acceptance of aggravation of bilateral carpal tunnel syndrome

 

Our client was a child care worker who had previously been diagnosed with bilateral carpal tunnel syndrome (“CTS”).  She filed an application for compensation with the WCB, as her CTS had worsened due to her work activities and had become disabling.  The Board initially denied her claim.  We appealed this decision and assisted our client in obtaining supportive medical evidence.  We successfully represented her at her WCAT oral hearing.  The Board has now accepted our client’s claim for a significant aggravation of her bilateral CTS as a result of her work activities. 

 


 

 

Low back strain and disc herniations sustained while driving over railway tracks: acceptance of claim

 

Our client was a truck driver who injured his back while driving over a number of railway tracks.  The Board initially accepted his claim.  However, our client’s employer appealed to the Review Division, who reversed the Board’s decision and denied acceptance of the claim.  We assisted our client in obtaining supportive independent medical evidence, and successfully represented him at his WCAT oral hearing.  Our client’s claim has now been accepted for a low back strain and two disc herniations.  He is currently in receipt of wage loss benefits. 

 


 

 

Right upper arm injury: referral to the Disability Awards Department for assessment of permanent disability and entitlement to loss of earnings award

 

Our client was a spray finisher at a boatyard who had two WCB claims.  Under her first claim, she suffered a right hand injury, cellulitis, lymphadenitis, and a benign granular cell tumor when fiberglass slivers became embedded in her right hand while vacuuming a boat.  The Board initially determined that she did not sustain a permanent functional impairment as a result of her workplace injury, and denied a referral of her claim to the Disability Awards Department. 

 

Under her second claim, our client suffered a right shoulder strain and developed right rotator cuff tendonitis with impingement after picking up a wood panel.  The Board initially determined that she was entitled to a permanent partial disability award equal to just 2.5% of total disability for a chronic pain condition, and denied a loss of earnings award. 

 

We appealed the Board’s decisions under both claims, and assisted our client in obtaining independent, supportive medical evidence.  We also successfully represented her at her WCAT oral hearing.  WCAT allowed our appeals.  Under her first claim, WCAT determined that our client’s compensable injuries gave rise to a potential permanent disability, and directed the Board to refer her claim to the Disability Awards Department for an assessment.  Under her second claim, WCAT determined that our client suffered from other permanent conditions in addition to chronic pain, and directed the Board to re-refer her claim to the Disability Awards Department for an assessment.  WCAT also directed the Board to investigate our client’s entitlement to a loss of earnings award. 

 


 

 

Increased Permanent Partial Disability Pension Based on Chronic Back Pain and Lumbar Spine Injury

 

Our client, a tree faller, injured his back during a fall.  He was diagnosed with a disc bulge and nerve compression.  Although he initially experienced some improvement in his condition after undergoing surgery, he began to suffer pain in his lower back, which radiated to his leg and foot.  These symptoms increased with sitting, activity, and exposure to cold weather.  Although our client received a pension amount for his spinal disability, the Board denied him an additional award for his chronic pain. Both the Board and the Review Division contended that a certain amount of pain would be expected, given our client’s injuries, and that his condition was not serious enough to merit a separate award.  At WCAT, we argued that the Board was not in a position to speculate with respect to the level of pain experienced by our client.  WCAT concluded that our client’s pain was disproportionate to his injury, and awarded him the prescribed pension award for chronic pain.  In addition, WCAT also granted our client an increased award for his spinal nerve condition, and cold intolerance.

 


 

 

Increased Permanent Partial Disability Pension based on a Lumbar Spine Condition

 

Our client suffered a back injury during his employment as a product support technician.  He was diagnosed with a herniated disc, and underwent surgery.  He continued to experience pain extending from his lower back to his leg, as well as numbness in his foot.  As a result, he walked with a noticeable limp, and had difficulty with bearing weight on both his legs. The Board initially dismissed our client’s health complaints as exaggerated, and determined that the results of his Permanent Functional Impairment Evaluation were invalid.  However, on appeal to WCAT, it was determined that our client’s credibility was not an issue.  The Panel noted that he had fully participated in rehabilitation programs, and had even tried returning to work on several occasions.   Therefore, the Panel awarded our client an increased pension, based on chronic pain, lost range of motion, and any spinal impairment caused by surgery or scarring.

 


 

 

Right knee and lower back injuries, temporary aggravation of degenerative disc disease: referral to the Disability Awards Department

 

Our client was a cell operator who was injured at work when the machine he was operating stopped abruptly due to one of its wheels falling into a hole.  He was thrown forward, and sustained injuries to his right knee and lower back.  The Board initially accepted his claim for a right knee strain, low back strain, and temporary aggravation of his pre-existing degenerative disc disease at L5-S1.  The Board then deemed that our client’s conditions had fully resolved, and denied the payment of any further benefits.  We assisted our client in obtaining supportive independent medical evidence, and successfully represented him at his WCAT oral hearing.  WCAT determined that our client’s work injury resulted in a permanent aggravation of his pre-existing degenerative disc disease and consequent S1 radiculopathy.  WCAT directed the Board to refer our client to the Disability Awards Department for consideration of a permanent partial disability award. 

 


 

 

Denial of re-assessment of permanent functional impairment at WCAT: successful WCAT reconsideration application

 

Our client was a long-haul truck driver and forklift operator, who originally injured his back at work in 1995.  The Board accepted his claim for an L5-S1 disc herniation and subsequent surgeries, and determined that he was entitled to a permanent partial disability award equal to 8.97% of total disability.  Our client then experienced a flare-up of his back pain and suffered a fall in 2004, injuring his right hand and arm.  The Board accepted our client’s fall in 2004 as a compensable consequence of his original 1995 workplace injury, but found that his injuries were only soft tissue in nature, and declined to take any further action.

 

We assisted our client in appealing this decision on the basis that the 2004 fall permanently aggravated his compensable back condition and resulted in permanent injuries to his right hand and arm.  We pursued a referral to the Disability Awards Department to re-assess his permanent functional impairment.

 

Our appeal was denied at WCAT.  The Panel found that the evidence did not support an increase in our client’s permanent functional impairment.

 

We then prepared a reconsideration application of the WCAT decision, on the basis that it was patently unreasonable.  We also assisted our client in obtaining supportive new evidence.  Our reconsideration application was allowed.  The original WCAT decision will be reconsidered in light of the new evidence. 

 


 

 

Client missed the statutory appeal deadline: Extension of time application approved at WCAT

 

Our client was a hardwood floor installer.  He injured his right leg and ankle when he slipped while attempting to push a board into place.  The Board accepted his claim for a partial tear of the right Achilles tendon.  The Board then denied our client’s entitlement to a permanent partial disability award.  This decision was confirmed by the Review Division.  Our client filed an appeal of the Review Division decision to WCAT beyond the statutory due date.  WCAT required an application for an extension of time in order to proceed with the appeal.

 

Up until this time, our client was not represented by legal counsel.  He then retained the services of our firm to assist him with his application for an extension of time.

 

Our firm wrote a detailed written submission in support of our client’s application.  We were successful in convincing the Panel that special circumstances precluded our client from filing an appeal on time, and that an injustice would result if an extension were not granted.  Our client’s application was allowed, and we can now proceed with the appeal of the Review Division’s decision.

 


 

 

Shoulder injury – extent of compensable disability

 

Our client injured his shoulder during his work duties at a mill. The Board accepted his claim for a shoulder sprain/strain, but subsequent medical investigation revealed that he also suffered from a rotator cuff tear, with decreased range of motion and ongoing pain. Both the Board and the Review Division denied acceptance of these conditions. The Review Officer relied on opinions from a Board Medical Advisor, who believed that our client’s work injury resulted only in rotator cuff tendonitis with impingement, and chronic pain. Our office appealed to WCAT, and assisted our client in obtaining independent medical evidence regarding the full extent of his injuries. We argued that our client’s compensable disability was not limited to chronic pain alone, and that he was entitled to further wage loss and health care benefits. The WCAT Panel agreed that our client’s rotator cuff tear arose as a result of his work duties, granted him a referral to an orthopedic specialist, and directed the Board to investigate his entitlement to wage loss benefits and to a permanent partial disability award.

 


 

 

Reopening due to fall injuries

 

Our client was initially injured in 2007, when he fell off a barge at his job site. His claim was accepted for multiple soft tissue injuries and contusions to his arm, shoulder, neck, thighs, and forehead. Over the years, our client noted increased pain in his neck and shoulder, but his request for a reopening of his claim was denied by the Board. The Review Division confirmed this decision, and found that our client’s current symptoms were attributable to a cervical stenosis condition and not to his compensable disability, which had resolved within a year of his injury. At WCAT, our team relied on evidence from several medical practitioners, which indicated that after a period of improvement, our client’s symptoms subsequently flared, and rendered him unable to return to work. WCAT agreed, and found that there had been a recurrence of our client’s cervical spine conditions. His claim was reopened, and the Board is currently investigating his entitlement to further benefits.

 


 

 

Denial of claim: Worker missed the one-year deadline to file for compensation

 

In order to qualify for compensation, workers must file a claim with the Board within one year of the date of injury. When a worker fails to observe this deadline, the claim will only be addressed if there is evidence that special circumstances prevented the worker from filing a claim within one year. Our client submitted his claim for compensation in November 2010, in relation to an injury which occurred in October 2009. Both the Board and the Review Division denied his claim, and held that there were no special circumstances justifying the delay: he had consciously made a decision not to file a claim, even though he was aware that he sustained an injury. At WCAT, we provided evidence that our client was afraid he would be terminated from his employment if he made a claim for compensation in October 2009. Our client was also unaware of the one-year deadline to file a claim. The WCAT Panel determined that our client was credible, and that his personal and employment circumstances dissuaded him from making a timely application for compensation. As a result of the Panel’s findings, the Board has now been requested to investigate the merits of our client’s claim for compensation.

 


 

 

Acceptance of left shoulder symptoms as a result of right arm amputation

 

Our client suffered a work accident while employed as a mixer operator, and underwent amputation of his right arm. With time, he had to compensate for this injury by subjecting his left arm to more intensive use. He developed left shoulder pain, and was diagnosed with tendinopathy and bursitis. The Board and the Review Division denied acceptance of these conditions, stating that they were likely attributable to age, and would have developed regardless of our client’s prior injury. Our office appealed to WCAT, and obtained further medical evidence in support of our client’s position. The WCAT Panel gave little weight to the Board Medical Advisor, determined that our client was indeed overusing his left arm due to the effects of his right arm amputation, and accepted his left shoulder conditions as compensable.

 


 

 

Calculation of long-term wage rate and Employment Insurance Benefits

 

At the time of his injury, our client had worked for his employer for almost 5 years. A worker’s long-term wage rate is typically based on earnings in the 12 months prior to the injury. During this period, however, our client experienced some lay-offs due to recession in the construction industry. The Board and the Review Division found that in calculating his long-term wage rate, the periods in which our client received Employment Insurance should not be deducted, as the availability of his work had always varied. At WCAT, we argued that our client’s long-term wage rate ought to be increased. We provided evidence of our client’s historical earnings, which showed that he had never been laid off prior to the recession. The WCAT Panel determined that the 12-month period preceding our client’s injury constituted exceptional circumstances, and that the Board’s failure to deduct all the periods in which our client received Employment Insurance benefits created an inequitable result. His wage rate will be increased accordingly, and will reflect our client’s historical annual income.

 


 

 

Left ankle injury: acceptance of osteochondral lesion and plantar fasciitis as compensable consequences

 

Our client was an aircraft inspector. He injured his left ankle at work while descending a ladder. The Board initially accepted his claim for a left ankle sprain/strain. Our client returned to work, but his condition worsened over the years. He ultimately developed an osteochondral (“OCD”) lesion of the talar dome, which required surgery. The Board declined to accept our client’s OCD lesion and surgery as part of his claim. Our firm successfully appealed this decision and represented our client at his WCAT oral hearing. We also assisted him in obtaining supportive medical evidence to be used in his appeal. Through our efforts, WCAT directed the Board to accept our client’s OCD lesion and surgery as compensable consequences of his original injury.

 

Our client was then diagnosed with left plantar fasciitis. The Board refused to accept this condition as part of our client’s claim, relying on a Medical Advisor’s opinion that plantar fasciitis was a common degenerative condition. Our firm appealed this decision and represented our client at WCAT via written submissions. We also assisted him in obtaining supportive medical evidence to be used in his appeal. WCAT allowed our appeal, and accepted our client’s plantar fasciitis as a compensable consequence of his original injury.

 


 

 

Acceptance of claim for left Achilles tendon rupture

 

Our client was a community services coordinator. While participating in a work-related training exercise, he sustained a left Achilles tendon rupture. The Board initially denied the acceptance of our client’s claim on the basis that his left foot motion was not of causative significance in producing his injury. The Board also relied on a Board Medical Advisor’s opinion that our client’s injury was likely spontaneously brought about by medication use. We assisted our client in pursuing an appeal of the Board’s decision, and successfully represented him at WCAT. The WCAT Panel allowed the appeal and accepted our client’s claim for a left Achilles tendon rupture. The Board must now adjudicate our client’s entitlement to benefits for his work-related injury.

 


 

 

Acceptance of L4-5 disc herniation and aggravation of pre-existing lumbar condition

 

Our client was a countertop installer who injured himself while trying to transfer a laminate countertop from his truck to an elevator. The Board initially accepted our client’s claim for neck, upper back, and left shoulder injuries. However, the Board refused to accept our client’s L4-5 disc herniation and aggravation of his pre-existing lumbar condition as related to his workplace incident. We assisted our client in obtaining independent medical evidence and successfully represented him at his WCAT oral hearing. The WCAT Panel accepted our client’s L4-5 disc herniation and aggravation of his pre-existing lumbar condition, and directed the Board to refer his claim to the Disability Awards Department for consideration of a pension award.

 


 

 

Board denies acceptance of claim for bilateral plantar fasciitis: successful WCAT reconsideration application

 

Our client was employed as an aircraft groomer. When she began wearing steel-toed footwear to work, she developed pain in both of her feet. She was eventually diagnosed with bilateral plantar fasciitis, and filed a WCB claim for compensation. The Board denied her application for benefits, on the basis that her bilateral plantar fasciitis could not reasonably be attributed to the nature of her employment activities. Our firm represented her at her WCAT oral hearing, but the appeal was denied. We then proceeded to request a reconsideration of the WCAT decision on the basis that it contained jurisdictional defects. Our reconsideration application was allowed, and the WCAT decision was found to be patently unreasonable and set aside as void. We now have the opportunity to argue our client’s case anew, and are currently waiting for WCAT to continue with the processing of the appeal.

 


 

 

Acceptance of additional permanent conditions, entitlement to new decisions regarding an increased permanent functional impairment award and a loss of earnings assessment

 

Our client was a framer who was injured at work when his table saw slipped and lacerated his right thigh. The Board initially accepted chronic pain as his only permanent condition, and granted him a permanent functional impairment award equal to just 2.5% of total disability. The Board also denied a loss of earnings assessment, on the basis that our client could return to his pre-injury employment. Our firm assisted him in obtaining supportive medical evidence and represented him at his WCAT oral hearing. We were successful in the appeal. WCAT accepted additional permanent conditions under our client’s claim, including a division of the medial cutaneous nerve of the thigh, a division of the saphenous nerve, a division of the intra-patellar patellar nerve, and a partial division of the Sartorius muscle. WCAT directed the Board to issue a new decision regarding our client’s entitlement to an increased permanent functional impairment award to reflect the acceptance of these new conditions. WCAT also directed the Board to issue a new decision regarding our client’s entitlement to a loss of earnings award.

 


 

 

Acceptance of neck injuries, back injuries, psychological condition

 

Our client, a carpenter’s helper, suffered trauma when he struck his head against a structure at the job site. Although his claim was accepted for a concussion and post-traumatic headaches, our client also suffered from pain along his neck and upper back, which manifested on a constant basis and interfered with his sleep. As a result of his injuries, our client also experienced psychological symptoms such as irritability, low mood, and anxiety. He required counseling, and his neck and back complaints were documented in several consultation reports. Nevertheless, these conditions were denied both at the Board level and at the Review Division level. Our office appealed to WCAT, and assisted our client in gathering further medical evidence. The Panel allowed the appeal, and found that our client’s neck and back condition, as well as his psychological symptoms, arose as a result of his work accident and warrant further compensation. The Panel found that medical evidence since the date of his injury indicates that our client sustained spinal trauma, and that his psychological condition resulted from his chronic headache pain.

 


 

 

Left upper arm fracture: increased pension award

 

Our client was a fishing boat deckhand who was injured at work when a boom hit his left arm. The Board accepted his claim for a left arm fracture and a right thigh contusion. The Board then determined that our client was entitled to a permanent functional impairment award equal to 7.28% of total disability for loss of range of motion in his left arm. We assisted our client in appealing this decision and obtaining independent medical evidence in support of his appeal. We successfully represented him at his WCAT oral hearing. The Panel allowed our appeal and granted an increase in our client’s permanent functional impairment award to recognize the chronic pain, cold intolerance, and loss of strength in his left arm.

 


 

 

Acceptance of depression as a permanent condition

 

During the course of her employment at a poultry processing plant, out client developed shoulder tendinitis and chronic pain. As a result, she also began to experience psychological symptoms, and was diagnosed with depression and anxiety two years after her injury. Although the Board accepted these psychological conditions under our client’s claim, it did so on a temporary basis only, effectively denying her entitlement to a permanent partial disability award. The Review Division confirmed the Board’s decision, relying on the fact that our client was able to return to work for a brief period of time after her injury. On appeal to WCAT, the Panel disagreed with the Review Division’s findings. The Panel determined that our client’s condition manifests in a pattern of remission and recurrence, and that coupled with her physical disability, her depression resulted in the failure of our client’s attempt to return to work. Medical practitioners indicated that she would have a lifelong risk of relapse, and based on this evidence, the Panel determined that our client’s depression warrants an evaluation for a permanent partial disability award.

 


 

 

Acceptance of additional conditions, reimbursement for health care benefits, and acceptance of surgery

 

Our client was a grocery supermarket assistant manager, who injured his back while lifting a wooden pallet. The Board initially accepted his claim for a lumbar strain, an L5-S1 disc herniation and S1 radiculopathy. He was granted a permanent partial disability award equal to 13.25% of total disability.

 

Our client then pursued further diagnostic investigations and possible treatments privately, which culminated in surgery. The investigations also revealed additional back conditions, including an L4-5 annular tear and disc herniation, L4-5 foraminal stenosis, bilateral L5-S1 foraminal stenosis and degenerative change, and an L5-S1 annular tear and disc herniation. The Board denied reimbursement for the diagnostic procedures and surgery. The Board also denied acceptance of the additional conditions. We assisted our client in appealing these decisions to WCAT, obtaining supportive medical evidence, and representing him at his WCAT oral hearing. The Panel accepted all of the additional conditions under our client’s claim and allowed reimbursement for the diagnostic procedures and surgery.

 


 

 

Claim allowed: aggravation of pre-existing wrist injuries

 

Our client was employed as a truck driver for a local municipality. He had worked in this capacity for over 20 years, and frequently had to handle chains and secure heavy equipment. He began to experience wrist pain, followed by a severe flare-up of symptoms when his job duties changed. The Board initially denied his claim for a wrist condition, but our office was successful on appeal to the Review Division. The Review Officer varied the Board’s decision, and determined that our client suffered aggravation of a pre-existing wrist fracture after handling a new ratcheting system. Our client’s employer appealed the Review Division’s decision, arguing that his job duties were not sufficiently demanding to cause a work injury. We successfully defended our client at WCAT, where we argued that the repetitive twisting motions and heavy lifting he performed as a truck driver aggravated his wrist condition. The Panel agreed, and determined that our client’s claim ought to be allowed. We are currently awaiting Board adjudication of our client’s entitlement to benefits.

 


 

 

Right shoulder injury, Major Depressive Disorder: 100% loss of earnings award

 

Our client was a care aid who injured her right shoulder at work. Her claim was accepted for a right arm, neck and shoulder strain/sprain, right subacromial decompression and debridement of a SLAP lesion, adhesive capsulitis, and Major Depressive Disorder. The Board initially determined that our client was entitled to a permanent functional impairment (“PFI”) award equal to 33.40% of total disability. The Board also denied our client a loss of earnings (“LOE”) assessment, on the basis that she should be able to adapt to the occupation of a Medical Office Assistant. We assisted our client in appealing this decision to the Review Division, and prepared a written submission in support of our appeal. The Review Division varied the Board’s decision and increased our client’s award to 50.91% of total disability. The Review Division also referred the LOE issue back to the Board for further investigations. The Board subsequently issued a new decision letter, once more denying our client an LOE assessment. We assisted our client in appealing this decision to the Review Division again, and prepared a written submission in support of our appeal. The Review Division was persuaded by our arguments, and determined that our client is entitled to a 100% LOE award.

 


 

 

Increase in permanent functional impairment award for psychological conditions, multiple chronic pain awards

 

Our client was a truck driver who was injured at work in a motor vehicle accident. The Board accepted his claim for a left hip fracture, left femur and tibia fractures, right ankle and foot fractures, left thigh injuries, Adjustment Disorder, and chronic pain in his left hip and both legs. The Board then determined that our client was entitled to a permanent functional impairment award equal to 25% of total disability for his Adjustment Disorder, which it considered to be “mild.” The Board also provided an award equal to 2.5% of total disability for the chronic pain in his left hip. We assisted our client in appealing this decision on the basis that our client’s psychological condition merited a higher award, as it should not have been considered “mild.” It was also our position that additional chronic pain awards were warranted, for both of our client’s legs. We successfully represented our client at his WCAT oral hearing. The WCAT Panel determined that our client’s psychological condition was better categorized as “moderate”, and granted a 5% increase in his award (total 30% for his psychological condition). The WCAT Panel also accepted that our client suffered from chronic pain in both of his legs, and granted a 5% increase in his award (total 7.5% for three separate chronic pain awards – left hip, left leg, and right leg).

 


 

 

Right hand fractures: Increased Permanent Partial Disability Award for Loss of Grip Strength

 

Our client was employed as a parks and recreation maintenance worker for a municipality. He suffered a right hand injury while attempting to clear a clogged mower chute, and after his condition stabilized, the Board granted him a permanent partial disability award of 15% of total disability. Our office appealed to the Review Division and to WCAT, where we argued that our client’s pension ought to be increased in recognition of his cold intolerance, numbness/loss of sensation, and loss of grip strength. The WCAT Panel allowed our request for an increase due to loss of grip strength. The Panel found that our client’s condition met the criteria for such an award, as his decreased grip strength was explained by the pathology of his accepted injury, and was not attributable only to chronic pain. The Panel awarded our client a 3% increase of total disability, bringing his permanent partial disability award to a total of 17%.

 


 

 

Successful reconsideration of WCAT decision: Acceptance of back, shoulder, and wrist injuries

 

Our client sustained a back injury in the late 1990s, when the vehicle he was driving struck a concrete ramp. His claim was accepted for an L5-S1 disc herniation and several surgeries. Years later in 2004, our client suffered a second fall which aggravated his back condition. He approached the Board for acceptance of additional spinal disc injuries, and an increase in his disability pension. He was unsuccessful, with a WCAT decision confirming that his new disc herniations were attributable to degenerative changes, and not to his original back injury. Our office prepared a reconsideration application for this decision, and assisted our client in obtaining new medical evidence regarding the cause of his current back condition. The reconsideration was allowed, and WCAT conducted a second oral hearing. Based on evidence from our client and a new medical report, the Panel concluded that the original WCAT decision was patently unreasonable. The Panel found that our client’s 2004 fall resulted in compensable aggravation of degenerative disc disease, a compensable right shoulder injury, and a compensable right wrist injury. We are currently waiting for the Board’s Disability Awards Department to determine our client’s entitlement to a disability pension.

 


 

 

Increased Permanent Partial Disability Award for Adjustment Disorder

 

Our client was employed as a labourer at a nursery. On the date of her injury, she rode in an all-terrain vehicle as a passenger. The vehicle overturned into a ditch, and our client suffered a mild traumatic brain injury, a skull fracture, and multiple rib fractures. She also developed psychological conditions as a result of the accident, and was eventually diagnosed with Adjustment Disorder. The Board granted her a pension award of 10% of total disability for this condition, and its determination was confirmed at the Review Division. At our appeal to WCAT, we argued that our client’s permanent partial disability ought to be increased, as she suffered from a moderate, rather than a mild level of psychological impairment. The WCAT Panel agreed. Although our client’s residual symptoms did not appear severe, they nevertheless impaired her ability to perform activities under time constraints, retain information, and make decisions. In recognition of these symptoms, WCAT increased our client’s psychological pension award from 10% to 20% of total disability.

 


 

 

Post-Traumatic Stress Disorder and Major Depressive Disorder: increase in psychological permanent functional impairment award from 15% to 45% of total disability

 

Our client was a welder who suffered burns to his hands during a workplace fire. He also witnessed another worker being severely burned. The Board accepted our client’s claim for Post-Traumatic Stress Disorder (“PTSD”) and Major Depressive Disorder (“MDD”), and determined that our client was entitled to a permanent functional impairment award equal to 15% of total disability. We assisted our client in appealing this decision and obtaining independent, supportive medical evidence from a psychologist. We successfully represented him at his WCAT oral hearing. The Panel allowed our appeal, and found that our client’s award ought to be increased from 15% to 45% of total disability, to recognize the severity of his psychological conditions.

 


 

 

Reopening of claim for a re-referral to the Disability Awards Department for a pension reassessment

 

Our client was a millwright who suffered a right wrist fracture in a fall at work. The Board determined that our client was entitled to a permanent functional impairment award equal to 11.60% of total disability. Several years following his permanent functional impairment evaluation, our client experienced a worsening of his compensable right wrist symptoms, including reduced range of motion, reduced grip strength, loss of sensation, and cold intolerance. Our office assisted him in pursuing a reopening of his claim, and successfully represented him at his WCAT appeal. We also assisted him in obtaining supportive medical evidence. WCAT allowed our appeal, and found that our client is entitled to a reopening of his claim for a re-referral to the Disability Awards Department for a pension reassessment.

 


 

 

Acceptance of claim for bilateral plantar fasciitis as an occupational disease

 

Our client was a cabin service worker who cleaned airplanes. She was required to wear steel-toed shoes at work, and she eventually developed bilateral plantar fasciitis. She filed a claim for compensation, on the basis that her condition arose from her employment. The Board initially denied her claim, relying on an opinion from a Board Medical Advisor. This Medical Advisor opined that there were insufficient occupational risk factors that could have caused our client’s bilateral plantar fasciitis. The Medical Advisor also opined that the condition could have arisen due to our client’s age. We assisted our client in appealing the Board’s decision and obtaining supportive independent medical evidence. We also successfully represented her at her WCAT oral hearing. WCAT determined that our client’s bilateral plantar fasciitis arose due to the nature of her appointment, and allowed the acceptance of her claim.

 


 

 

Increase in partial loss of earnings award

 

Our client was an industrial instrument technician who injured his back while bending over to pick up a wrench. The Board accepted our client’s claim for an L4-5 disc herniation with impingement of the left L4 nerve root, adjustment disorder with depressed mood, and chronic pain. The Board also granted our client a partial loss of earnings award, on the basis that he would be able to adapt to the occupation of an electronics assembler while maximizing his earnings at $17.69 per hour. We assisted our client in appealing this decision and obtaining supportive medical evidence. We also successfully represented our client at his WCAT oral hearing. WCAT allowed an increase in our client’s partial loss of earnings award, as the Panel determined that he would likely be limited to earning $13.00 per hour on a part-time basis in the long-term, due to his compensable conditions.

 


 

 

Crush injury to left foot, chronic pain: 100% loss of earnings award

 

Our client was a tree-faller who suffered a crush injury to his left foot while at work. The Board initially determined that he was entitled to a partial loss of earnings award, based on a deemed ability to maximize his post-injury earnings as an Electronics Assembler. We assisted our client in appealing this decision and obtaining supportive medical evidence. We also successfully represented him at his WCAT oral hearing, and argued that he was competitively unemployable due to the combination of his accepted physical limitations, age, lack of English skills, and lack of experience outside the forestry industry. The Panel was persuaded by our arguments and the medical evidence, and allowed the appeal. Our client is now entitled to a 100% loss of earnings award.

 


 

 

Depression: Effective Date of Wage Loss Benefits

 

Our client was employed as a framer, and on the date of his injury, he fell from a scaffolding and landed on the concrete below. His claim was accepted for a left wrist fracture, a left pelvic fracture, and chronic pain in the left wrist and back. His physical conditions were deemed to have reached plateau, and wage loss benefits were terminated in November 2008. As a result of his accident, our client also began to presents with psychological symptoms, and the Board accepted his claim for Major Depressive Disorder, Pain Disorder, and Adjustment Disorder. His claim was reopened as of February 2009, the date that he was hospitalized for severe depressive symptoms. We argued that our client’s psychological condition became disabling much earlier, however, and pursued an earlier effective date for his wage loss benefits. We were successful at WCAT. The Panel determined that before the effective date of February 2009, our client already suffered from severe psychological symptoms. He had expressed suicidal ideation, thoughts of harm to others, and was under active treatment from health practitioners. The Panel therefore determined that our client is entitled to wage loss benefits as of November 2008, the date that benefits in relation to his physical conditions were terminated.

 


 

 

Acceptance of degenerative arthritis of the lumbar spine

 

Our client worked as a millwright, and injured his ankle and shin during a fall. He later suffered a second accident in 2002, while recovering from surgery to treat his work injuries. His claim was ultimately accepted for permanent aggravation of osteoarthritis in his left ankle, a left shoulder rotator cuff tear, chronic pain, and an overuse injury in his right shoulder. As a result of these extensive problems, our client also developed a back condition over the years. Walking with an antalgic gait meant that he put increased weight through his right leg and back, which led to an acceleration of degenerative changes in the spine. The Board recognized this issue, and granted our client a permanent functional impairment award of 2.5% for chronic pain. However, the evidence suggested that chronic pain was not the accurate diagnosis for our client’s problems. We pursued acceptance of a spinal condition under his claim, arguing that his symptoms are in fact a consequence of his original ankle injury. At WCAT, we submitted medical evidence which explained that the limping and abnormal gait attributable to the ankle injury distorted our client’s body mechanics, which ultimately resulted in lumbar degenerative arthritis. The WCAT Panel placed significant weight on this evidence, and accepted this condition as a compensable consequence of our client’s 1996 ankle injury.

 


 

 

Further wage loss benefits and acceptance of a right medial meniscus tear

 

Our client was a dishwasher at a catering service. She slipped at work, injuring her right knee. The Board initially accepted our client’s claim for a right knee contusion and traumatic pre-patellar bursitis. The Board then considered these conditions to have resolved, and concluded her entitlement to wage loss benefits. The Board also denied acceptance of a right medial meniscus tear. We assisted our client in appealing the Board’s decision and obtaining independent supportive medical evidence. We also successfully represented her at a WCAT oral hearing. The Panel allowed our appeal, and determined that our client is entitled to further wage loss benefits and the acceptance of a right medial meniscus tear under her claim.

 


 

 

Acceptance of psychological condition: Major Depressive Disorder

 

Our client injured his back in 1995, and his WCB claim was accepted for an L5-S1 disc herniation, chronic pain, and Pain Disorder. By 1999, our client also began to experience psychological symptoms. These complaints never resolved over the years, with reports of ongoing depression in 2004, 2007, 2008, and 2010. The Board dismissed these symptoms as part of our client’s Pain Disorder, for which he had already been compensated. On appeal to the Review Division, we argued that our client suffers from a psychological condition distinct from Pain Disorder. At WCAT, we presented evidence which confirmed that our client meets the diagnostic criteria for Major Depressive Disorder, and we argued that this condition warrants a separate permanent functional impairment award. The WCAT Panel agreed, noting that our client’s psychological condition has not changed since 2007. Major Depressive Disorder has now been accepted as a compensable consequence of our client’s 1995 injury, and he is currently awaiting a Board decision regarding his entitlement to a pension award.

 


 

 

Acceptance of permanent shoulder (tendinitis) aggravation injury

 

Our client was a longtime keypunch operator and administrative clerk. Her claim was initially accepted for right shoulder tendinitis, which was considered an overuse injury. When she returned to work the tendinitis was not completely resolved. A subsequent incident lifting a heavy basket at work resulted in a diagnosis of acute right shoulder tendinitis. The Board accepted her claim for temporary aggravation of recurrent tendinitis and began paying temporary disability benefits.

 

After assessment, the Board determined that her condition had stabilized and the injury would not result in a permanent functional impairment. The Board ceased to pay temporary disability benefits and did not make a referral to the Disability Awards Department. Our office successfully appealed this decision at WCAT. Our client’s permanent aggravation injury has been accepted and she is now entitled to consideration for a permanent award.

 


 

 

Right hand crush injury: award increased

 

Our client was a machine operator whose right hand was crushed in a work injury. His claim was accepted and he received an award for 2.94% of total disability for permanent loss of function in his right middle finger. He completed an occupational rehabilitation program and returned to work with modifications to his duties. However, our client began to experience deceased grip strength, numbness and discomfort in cold weather. He appealed the initial decision for an increased permanent functional impairment award.

 

We argued that the initial total disability award did not represent the degree of impairment to the right hand. Our client was found to be entitled to an award for loss of pinch-grip strength, sensory loss, cold intolerance, and deformity. Through our efforts, our client was successful at WCAT.

 


 

 

Successful loss of earnings argument

 

Our client worked as a janitor when she injured her back. The Board initially found that she could return to her job, or adapt to work in another occupation, and would therefore not suffer a loss of earnings. The Board referred her case to Vocational Rehabilitation and they found she could adapt to the occupations of parking lot attendant or retail salesperson/sales clerk. We appealed this decision because our client has a hard time doing simple daily living tasks, and she has to rely on her family to help her. WCAT granted a loss of earnings assessment regarding her pension award. This followed a successful WCAT Reconsideration where a WCAT panel overturned a prior WCAT decision to deny a loss of earnings.

 


 

 

Right elbow epicondylitis and chronic pain: increased loss of earnings award

 

Our client was a carpenter who developed epicondylitis in his right elbow and suffered from chronic pain. The Board determined that our client was entitled to a loss of earnings award based on the difference between his pre-injury earnings and the average earnings of a retail salesperson. After a Request for Review, the Review Division found that our client could not adapt to the occupation of a retail salesperson, but could adapt to the occupation of soccer referee. Accordingly, the loss of earnings award was calculated on the basis of our client’s pre-injury earnings and a soccer referee’s estimated income of $420 per week.

 

We appealed the decision to WCAT and obtained an Independent Vocational Assessment. The Panel found that in accordance with our expert opinion and extensive research, our client was unlikely to earn $420 per week. Through our efforts, the panel awarded a loss of earnings assessment based on a new estimated income of $250 per week. As a result, our client enjoys an increased loss of earnings award.

 


 

 

Full loss of earnings award granted

 

Our client fractured his ankle while working as a planerman at a sawmill. He was granted an award of 12.49% of total disability, and a partial loss of earnings award. The Board decided the worker was employable, but could no longer earn the same amount of money as he did pre-injury. We appealed the board’s partial loss of earnings award because of our client’s limitation in finding work that would allow him to elevate his ankle. WCAT found our client to be competitively unemployable allowed the appeal. WCAT also found that he was entitled to a full loss of earnings award that is essentially equivalent to his pre-injury wage rate.

 


 

 

Loss of earnings assessment granted

 

Our client developed red cedar asthma while working as at a cedar sawmill. He was granted an award of 22% of total disability because of his decreased pulmonary function. Our client tried working several other jobs after, but found that his asthma precluded him from working anywhere because many different airborne irritants could set off an attack. The Board determined the worker only had a problem when exposed to red cedar dust and denied a loss of earnings assessment. We appealed this decision based on our client’s asthmatic condition being triggered by many airborne contaminants. WCAT granted the appeal, and granted our client a further loss of earnings assessment following a further investigation into his medical issue.

 


 

 

Loss of earnings assessment based on lumbar spine injury and chronic pain

 

Our client was a food production worker whose claim was accepted for an L5-S1 disc injury, with S1 nerve root irritation. After undergoing surgery, the Board determined that our client had a residual permanent functional impairment and was entitled to a permanent partial disability award of 13.4% of total disability for loss of range of motion in her lumbar spine and chronic pain. Our client was denied a loss of earnings assessment.

 

We appealed the decision to WCAT and obtained an independent Vocational Assessment. In our expert opinion, it was unlikely that our client would be restored to her pre-injury earnings through employment as a parking lot attendant. The Panel was persuaded. Through our efforts, the Panel awarded a loss of earnings assessment.

 


 

 

Permanent partial disability award: entitlement to a loss of earnings assessment granted

 

Our client was a drywall finisher who injured his right hip, right knee, lower leg, and low back when he slipped using a ladder. The Board also accepted our client’s right knee surgery, and later major depressive disorder and pain disorder, as a compensable consequence. Several of our client’s conditions were determined to be permanent and he was granted a permanent partial disability award of 5.42%. Our client pursued the issue of his entitlement to a loss of earnings assessment to WCAT.

 

The employer argued that our client was not entitled to a loss of earnings assessment because he has the skills to be employed. We argued that our client’s physical restrictions and limitations, as well as his limited English skills, prevent him from locating a job in the target occupation of security guard. Through our efforts, WCAT agreed that our client met the test for a loss of earnings assessment under Policy Item #40.00. As such, our client was determined to be entitled to a loss of earnings assessment.

 


 

 

Employer classification: significant refund for overpayment

 

Our client was an employer operating in the business of manufacturing and installing stone, marble, and granite countertops. The Board reclassified the employer as “Stone or Marble Cutting, Dressing, Shaping, or Lettering, or Stone or Marble Product Manufacture” effective January 1, 2009. Our client disagreed and appealed the decision to the Review Division, and then subsequently, the Worker’s Compensation Appeals Tribunal. The issues were whether or not the Board had correctly reclassified the employer and whether January 1, 2009 was the correct effective date for reclassification.

 

Through our efforts, our client was cleared of any fraud or misrepresentation allegations that resulted from a misunderstanding of the employer registration questionnaire. Further, WCAT agreed with our argument that the correct effective date for the reclassification was January 1, 2011. As a result, our client was issued a refund for the amount of their overpayment to the Board.

 


 

 

Lumbar strain and chronic pain: entitlement to a loss of earnings assessment

 

Our client was a labourer whose claim was accepted for lumbar strain and permanent chronic pain. Upon appeal at WCAT, we pursued two issues: acceptance of a permanent aggravation of his degenerative disc disease, and entitlement to an assessment for a loss of earnings pension.

 

We argued that the medical evidence supported a conclusion where our client’s back injury was aggravated by his attempts to return to work. We further argued that our client had been an active participant in the vocational rehabilitation process but evidence indicated that he could not physically do the delivery driver job. As such, he was entitled to a loss of earnings assessment. Through our expert advocacy, our client’s appeals were allowed. Our client has been referred for a loss of earnings assessment.

 


 

 

Eye laceration: increased permanent functional impairment award

 

Our client was employed as a truck driver who was injured when a third party threw a bottle out of their vehicle, which hit the windshield of his truck, causing glass to strike his face and left eye. WCB accepted the claim for a laceration causing corneal abrasion to the left eye. Our client disputes the Board’s granting of a permanent functional pension award of 2%. We argued that our client suffers from photosensitivity, has trouble driving at night, and must be careful with exposure to light outdoors during the day. Through our expert advocacy, WCAT agreed. Our client now enjoys an increased permanent functional impairment award.

 


 

 

Back injury, chronic pain, and subsequent psychological conditions: increased pension award

 

Our client’s claim was accepted for L5-S1 discectomy and fusion, as well as chronic pain. Through our efforts over the past six years, the worker’s award was increased due to appeal decisions, reopenings, and acceptance of additional conditions. These additional conditions included erectile dysfunction, urinary and bowel dysfunction, Major Depressive Disorder, and Pain Disorder. The Board determined that our client’s functional impairment was 69.9% total disability. Since our client was unable to return to his pre-injury job, the Board also granted a partial loss of earnings award.

 

Upon appeal to the Review Division, we argued that our client was competitively unemployable and ought to be entitled to a complete loss of earnings award. We further argued our client’s permanent disability award for psychological impairment ought to be increased. The Review Division agreed with our submissions. Our client now awaits assessment of his loss of earnings award and enjoys a permanent disability award for psychological impairment at 50%. Additionally, through our previous efforts, our client won his Canada Pension Plan appeal.

 


 

 

Appeal allowed: Board must issue new decision regarding a loss of earnings assessment

 

Our client worked as a truck driver and sustained injuries to his head and back when his truck slid down a ramp and flipped. The Board initially determined that he was entitled to a permanent partial disability award equal to only 2.5% of total disability for chronic pain. The Board also denied a loss of earnings assessment, and deemed him able to perform his job duties as a truck driver. Through our efforts, the Board also accepted that he had suffered an aggravation of a prior hernia repair and post-concussive headaches. We assisted our client in pursing an appeal of the Board’s decision denying a loss of earnings assessment, and successfully represented him at WCAT. The WCAT Panel allowed the appeal and determined that our client is unlikely to return to his pre-injury job and therefore is entitled to a loss of earnings assessment. The Board must now issue a new decision regarding our client’s entitlement to a loss of earnings award.

 


 

 

Lower back and hip injuries: Entitlement to a Permanent Disability Award

 

Our client was employed as a long-haul truck driver when he slipped and fell. The Board accepted a claim for injuries to our client’s lower back, left hip, left knee, and left buttock. Several months later, medical reports suggested that our client’s low back condition had improved, but his hip pain was increased due to uncomfortable seating at work. Despite ongoing pain, our client returned to work in his pre-injury occupation. The Board made a determination that our client’s compensable low back and left hip injuries had resolved completely. Our office pursued the appeal of the Board’s decision to WCAT. We argued that our client’s injuries had not resolved, and that those injuries ought to have been referred to the Board’s Disability Awards Department for consideration of our client’s entitlement to a permanent disability award. WCAT agreed with our reasoning.

 

The Panel found that our client had been left with actual or potential permanent disabilities as a result of his low back and left hip injuries. As a result, our client was entitled to a permanent disability award. The Panel further ordered the reimbursement of costs for obtaining a medical-legal report.

 


 

 

WCAT allows worker’s application for an extension of time to appeal Review Division decision

 

Our client was a machine molder and injured his back and shoulder in a lifting accident at work. The Board accepted his claim for a lower back strain and shoulder injury. The Board determined that he was able to return to his pre-accident injury employment and that he was not eligible for a loss of earnings assessment. This decision was confirmed by the Review Division. Our client filed an appeal of the Review Division decision to WCAT beyond the statutory due date.

 

In order to proceed with an appeal of the Review Division decision, WCAT required an application for an extension of time. We were retained by our client to assist with his application.

 

Our firm prepared a detailed written submission explaining that special circumstances precluded our client from filing an appeal on time, and that an injustice would result if the period of time for filing an appeal was not extended. Our written submissions were successful and WCAT allowed the application. We can now proceed with the appeal of the Review Division’s decision.

 


 

 

Increased permanent partial disability award for sensory loss, cold intolerance and reduced strength

 

Our client, a millwright, sustained serious injuries to his arm when it got caught in a conveyor belt. His claim was accepted for a crushed right arm injury. He underwent multiple surgeries and extensive rehabilitation. The Board initially determined that he was entitled to a permanent partial disability award equal to 30.79% of total disability. Our firm requested a review of this decision on the basis that his award ought to be increased to recognize sensory loss, reduced strength, cold intolerance and chronic pain. Through our efforts, the Review Division granted an increased award of 7.22% for sensory loss, but denied awards for chronic pain, reduced strength and cold intolerance. We appealed the Review Division’s decision to WCAT, and assisted out client in obtaining supportive medical evidence. We were successful in our appeal, and WCAT determined that our client was entitled to an additional award of 9% for loss of strength and 1% for cold intolerance.

 


 

 

Motor vehicle accident: WCAT reconsideration grants new appeal hearing

 

Our client was employed as a service technician and became injured in a work-related motor vehicle accident. The claim was accepted for strain to right thoracic area and low back, wounds and contusions to right chest, contusions to chin and jaw. However, our client’s left shoulder and groin problems were denied. Our office appealed this decision to the Workers’ Compensation Appeal Tribunal (“WCAT”). We requested orders to compel the attendance of two witnesses at the oral hearing, on the basis that their observation of our client’s difficulties performing work during the period following injury recovery would be relevant. The WCAT panel determined that the witnesses did not have the expertise to address the issue; as such they were not credible. However, WCAT denied our client’s appeal on the basis of evidence credibility.

 

Our office petitioned for a reconsideration of WCAT’s decision. We argued that our client was denied the full opportunity to present his case in relation to his left shoulder and groin problems stemming from his motor vehicle accident. In a new decision, WCAT decided that there was a breach of fairness and a contradiction between the previous panel’s actions and their line of reasoning. Through our efforts, our client’s appeal will be considered afresh.

 


 

 

Expedited WCAT decision: Acceptance of permanent shoulder condition and related surgery

 

Our client was a carpenter, and fell approximately six feet onto a concrete floor when scaffolding collapsed. He sustained injuries to his neck, back, shoulder and chest. The Board granted a permanent partial disability award equal to 2.5% of total disability for chronic pain, and denied a loss of earnings assessment.

 

As a result of his injuries, our client was scheduled for an upcoming surgery. The Board had not yet accepted the injuries related to the surgery under the claim. We assisted our client in obtaining an expedited interim decision from WCAT that accepts a permanent aggravation of his pre-existing shoulder condition, including bicipital tendinitis, degenerating acromioclavicular articulation and sub coracoids bursitis, and acceptance of the related surgery.

 

At WCAT, our office is also pursuing further wage loss benefits, acceptance of additional conditions, an increased permanent functional impairment award and entitlement to a loss of earnings assessment. These issues are still before the Panel.

 


 

 

Low back injury, surgery, chronic pain: reopening and possible increased pension award

 

Our client was a sawmill worker, who was injured in a work-related accident in 1990. During an attempt to return to work on light duties, our client was re-injured. The Board granted a permanent functional impairment (“PFI”) award equal to 7% for a back injury, disc surgery, sensory impairment, and chronic pain. The Board denied a loss of earnings award. Several years later, our client sought a reopening of her 1990 claim and a referral to Disability Awards for a reassessment of her PFI award. It was our position that our client’s compensable condition had significantly changed and worsened. The Board and the Review Division denied a reopening of our client’s claim.

 

Our client obtained several medical-legal reports in support of her appeal and we pursued the issue of reopening to the Workers’ Compensation Appeal Tribunal (“WCAT”). We represented our client at an oral hearing and argued that the permanent functional impairment had significantly increased. The Panel agreed and instructed the Board to conduct a new, full assessment of our client’s functional impairment. WCAT held that the claim ought to be reopened, and because the previous award was granted under former legislation, the loss of earnings award ought to be reassessed.

 


 

 

Right knee injury and surgery, recurrence of injury: reopening of claim

 

Our client sustained a right knee injury in 2003. His claim was accepted for a right knee torn medial meniscus and subsequent arthroscopic surgeries. In 2006, our client requested the reopening of his claim for right knee surgery. The Board denied the reopening. Upon appeal, the Review Division directed the Board to conduct further medical investigation. The Board again denied the reopening, and found that there had not been a significant change or recurrence of our client’s compensable 2003 injury.

 

Our office appealed this decision to the Workers’ Compensation Appeal Tribunal (“WCAT”). Our client obtained a medical-legal report in support of his appeal. At an oral hearing, we argued that our client’s claim ought to be reopened based on the additional evidence in the medical-legal report. The Panel agreed and found that the evidence supported a significant change or recurrence of the injury; the claim was reopened. The Board was directed to determine our client’s entitlement to any health care and/or wage loss benefits.

 


 

 

Left wrist injury; calculation of partial loss of earnings award on average net earnings

 

Our client was a production worker who slipped and fell. A claim for left wrist injury was accepted. The Board granted a permanent partial disability award equal to 7.62% of total disability. Our client returned to work in an alternate position. A previous Workers’ Compensation Appeal Tribunal (“WCAT”) Panel found that full-time work in the alternate position was not reasonably available given our client’s physical and non-physical limitations. The Board granted a partial Loss of Earnings (“LOE”) award, based on only one year of our client’s pre-injury earnings.

 

Our office appealed the Board’s calculation of the partial LOE award to WCAT. Through written submissions, we argued that our client’s LOE award ought to be based on the average of three years’ net earnings prior to injury. This would mitigate the fact our client’s shift hours, and thus earnings, varied greatly from year to year. It was our position that an average would best reflect the client’s earning potential; the Panel agreed. The Board was directed to recalculate our client’s partial LOE award based on an average of her actual earnings over three years. Our client now enjoys an increased partial LOE award.

 


 

 

Shoulder injury: WCAT reconsideration grants new appeal regarding increased permanent partial disability award payable beyond age 65

 

Our client was a self-employed truck driver. The claim was accepted for a shoulder injury and a permanent partial disability award payable to age 65 was granted. However, it was our client’s position that the pension award ought to be payable beyond age 65. Our office appealed this decision to the Workers’ Compensation Appeal Tribunal (“WCAT”). The Panel determined that the evidence did not establish our client’s intent to work beyond age 65 due to financial obligations.

 

Our office petitioned for a reconsideration of WCAT’s decision on the basis that the Panel overlooked or failed to consider significant evidence without explanation. We argued that our client’s oral testimony ought to be sufficient evidence of his intention to work beyond 65, especially given the nature of his employment and his financial situation. In a new decision, WCAT determined that there was a jurisdictional defect between the previous Panel’s actions and their reasoning. Through our efforts, our client’s appeal will be considered anew.

 


 

 

Lower back injury, L5-S1 disc herniation: loss of earnings award.

 

Our client was an automobile detailer who suffered an injured his lower back. He was granted a permanent partial disability award equal to 2.0% of total disability. Our client’s condition worsened, and his claim was reopened to accept an L5-S1 disc herniation and surgery. The disability award was increased to 15.1% of total disability. The Board initially denied our client’s entitlement to a loss of earnings pension based on the results of an assessment that concluded he could adapt to the occupation of an insurance agent. Our office appealed this decision to the Workers’ Compensation Appeal Tribunal (“WCAT”). WCAT found that the occupation of insurance agent was not suitable. The Board was directed to give a new decision, and they granted our client a 75% loss of earnings award. However, it was determined that our client could find work as a home-based telemarketer or appointment setter. Thus, the Board deducted the deemed earnings of a telemarketer from the loss of earnings award.

 

Upon appeal to WCAT, we argued that our client was not able to work as a telemarketer and that such work was not reasonably available. Therefore, our client should not have his loss of earnings award deducted. WCAT agreed and concluded that telemarketing work was not a viable option. Through our efforts, our client awaits an increased (100%) loss of earnings award.

 


 

 

Back injury: Acceptance of permanent conditions and Disability Awards Department referral.

 

Our client, a glazier, sustained an injury to his low back. The claim was accepted for a lumbar strain injury and temporary aggravation of pre-existing degenerative disc disease. The Board determined that there was no evidence of a permanent injury and therefore our client was not entitled to a pension award. Our office pursued an appeal of the Board’s decision to WCAT. We assisted our client in obtaining supportive medical evidence, and represented him at a WCAT oral hearing. We argued that our client’s back injuries were permanent, and that they ought to have been referred to the Board’s Disability Awards Department for consideration of a permanent disability award. The WCAT Panel agreed.

 

The Panel found that our client had suffered a permanent aggravation of his pre-existing degenerative disc disease, and referred his file to the Disability Awards Department for an assessment of his degree of impairment resulting from the permanent aggravation. The Board subsequently granted a functional permanent partial disability award equal to 12.95% of total disability.

 


 

 

Increased permanent partial disability award for swelling and loss of earnings assessment granted.

 

Our client, a quality control inspector, slipped on a wet floor and fractured her right ankle. The Board granted a permanent partial disability award of 3.83% for loss of range of motion in her ankle and chronic pain. The Board determined that our client could return to work as a cashier or retail sales clerk as the physical requirements of the positions were within her abilities and met her limitations. As her earnings as a cashier or retail sales clerk would exceed her pre-injury earnings, the Board denied a loss of earnings assessment.

 

We appealed the decision to WCAT on the basis that our client’s functional award ought to be increased to reflect swelling in her ankle, and that the occupational targets of cashier or retail sales clerk exceeded her physical limitations. The Panel was persuaded. Through our efforts, the Panel awarded an additional functional award of 1% of total disability to reflect swelling in her ankle and granted a loss of earnings assessment.

 


 

 

Loss of earnings assessment granted.

 

Our client was a stock services supervisor, and fell off a ladder when she was changing signage. She hit her head, and injured her left hip, knee, foot, and right thigh. The Board initially accepted her claim for multiple strains, and awarded a permanent partial disability pension award of 5% for chronic pain in her neck, lower back and hips. Through our efforts, the Board subsequently accepted a cervical disc bulge, and granted an increased permanent functional award of 10%. Given her permanent conditions, the Board accepted that she had physical limitations of not lifting or carrying more than 25 pounds, and limited squatting or bending. However, the Board also determined that she could return to her job, or adapt to work in a similar occupation, and would therefore not sustain a loss of earnings. Our office appealed this decision to WCAT. We argued that the requirements of her pre-injury job were beyond the accepted physical limitations, and that she was unable to return to work in her pre-injury occupation. WCAT agreed, and granted our client a loss of earnings assessment. The Board must now issue a new decision regarding our client’s entitlement to a loss of earnings award.

 


 

 

Increased permanent partial disability award for chronic pain and swelling.

 

Our client, a Medical Laboratory Assistant, sustained an injury to her left leg. The claim was accepted for permanent complex regional pain syndrome of her left lower extremity. The Board initially determined that she was entitled to a permanent partial disability award equal to 14.66% of total disability to compensate her for the permanent impairment of her left knee, left ankle, and left great toe, and the decreased motor function of her left lower extremity. Our firm appealed this decision to WCAT on the basis that her award ought to be increased to recognize chronic pain and swelling. We were successful in our appeal, and WCAT determined that our client was entitled to an additional award of 2.5% for chronic pain and 0.5% for swelling. We are currently pursuing the acceptance of additional conditions under the claim.

 


 

 

Shoulder injury: Acceptance of additional conditions, pension payable beyond age 65, and additional temporary wage loss benefits.

 

Our client was a construction laborer who injured his shoulder at work. The Board accepted his claim for a right rotator cuff strain and a small tear of the subscapularis tendon, permanent aggravation of non-symptomatic tendinosis of the bicep tendon, and right shoulder chronic pain. The Board denied acceptance of a C6-C7 disc herniation. In a second decision, the Board granted our client with a permanent functional impairment pension award of 16.88% for loss of range of motion (14.38%) and permanent chronic pain (2.5%) in his right shoulder plus 1.582% for age adaptability, payable to age 65. Our office appealed these decisions on the basis that the C6-C7 disc herniation was compensable under the claim, that our client was entitled to additional temporary wage loss benefits with respect to his shoulder injury, and that his pension ought to be payable beyond age 65.

 

We assisted our client in obtaining supportive medical evidence from an orthopedic specialist, and represented him at a WCAT oral hearing. Our appeal was successful. WCAT determined that our client’s C6-C7 disc herniation was compensable under his claim, that he was entitled to additional temporary wage loss benefits, and that his pension will be payable until age 67. The Panel also ordered full reimbursement for the orthopedic specialist’s medical-legal report.

 


 

 

Back injury: reopening of claim

 

Our client was a construction labourer who injured his back at work. The Board accepted his claim for an L5-S1 disc injury, and granted him a permanent functional impairment award of 14.5% of total disability. Several years after our client’s original injury, his condition deteriorated, and our firm assisted him in pursuing a reopening of his claim for further wage loss and health care benefits. The Board initially denied our request on the grounds that his current difficulties at the L4-5 level were not related to the injury accepted at the L5-S1 level. Our firm appealed this decision to WCAT, and assisted our client in obtaining a supportive medical-legal report from an orthopedic specialist, and successfully represented him at a WCAT oral hearing. WCAT determined that that our client’s claim should be reopened, and the Board should accept that there has been a worsening of the condition at L5-S1 and that this worsening is compensable. The Panel also ordered full reimbursement for the orthopedic specialist’s medical-legal report.

 


 

 

Back injury claim allowed by WCAT

 

Our client was employed as a truck driver and injured his back while lifting a 100 pound box. He was diagnosed with a lumbar strain and an L4-5 disc bulge. His application for compensation was denied by the Board. The Board reasoned that in his application for compensation, our client did not provide a specific incident which caused the injury and therefore, it would be speculative to conclude that his regular and accustomed job duties were the cause. The Review Division confirmed the Board’s decision. At WCAT, we assisted our client in obtaining supportive evidence, including a letter from his employer verifying our client’s report of injury, and a medical report from his family physician. We argued that our client’s work duties on the date of injury were of causative significance to his lumbar strain and the L4-5 disc bulge. The Panel agreed, and determined that our client’s claim ought to be allowed. The Board will now assess our client’s entitlement to a pension award for his accepted conditions.

 


 

 

Acceptance of psychological conditions and retroactive wage loss benefits.

 

Our client is a longshoreman who injured his back, neck and shoulder in an accident at work. The Board initially determined that he was entitled to a permanent partial disability award equal to 19% for a loss of function in the low back and chronic pain in the neck, left shoulder and thoracic spine. As a result of his traumatic work injury, our client developed Pain Disorder and Major Depressive Disorder. The Board initially denied acceptance of these psychological conditions. We appealed this decision to the Review Division which confirmed the Board’s decision denying Major Depressive Disorder, but found that the compensable injury has caused a Pain Disorder. We then appealed this decision to WCAT on the basis that Major Depressive Disorder ought to also be accepted. The Employer participated in the appeal and argued that neither condition should be accepted under the claim.

 

We assisted our client in obtaining a supportive medical-legal report from a psychologist, and represented him at a WCAT oral hearing. We argued that the Review Officer’s acceptance of Pain Disorder was correct, and that Major Depressive Disorder should also be accepted as a consequence of the compensable injury. The Employer’s appeal was denied, and our appeal was successful. WCAT concluded that Pain Disorder and Major Depressive Disorder are compensable under the claim, and that our client was entitled to a reopening of his claim for retroactive wage loss benefits in relation to these conditions. The Panel also ordered reimbursement for the psychologist’s medical-legal report. Our client will now be referred to the Disability Awards department for an assessment of a permanent disability award for his psychological conditions.

 


 

 

Increased permanent partial disability award for numbness and pension payable to age 70.

 

Our client, a computer technician, injured his lower back at work when attempting to lift a heavy printer. The Board granted a permanent partial disability award of 13.5% for loss of range of motion and chronic pain, payable to age 65. Our office appealed this decision on the basis that an additional award recognizing numbness in the right leg and foot was warranted. We also argued that his pension ought to be paid to age 70 which is when our client had planned to retire. We were successful in our appeal. WCAT determined that our client was entitled to an additional award for numbness, and that his pension will be payable to age 70.

 


 

 

Increased Psychological Pension Award

 

Our client, a machine operator in a plastic factory, injured his neck at work. The Board accepted his claim for a C4-5 disc protrusion, discectomy and fusion at C4-5. He was granted a permanent partial disability award of 5% for his cervical spine injury. Following the injury, our client experienced depressive symptoms, and was diagnosed with Major Depressive Disorder, Adjustment Disorder, and Pain Disorder. Through our efforts, the Board accepted these psychological conditions as compensable consequences of his work injury. Based on the Board’s conclusion that our client had minor residual psychological symptoms and was at little or no increased risk of decompensation if he returned to work, he was granted a psychological pension award of only 5% of total disability.

 

We appealed this decision to WCAT. We assisted our client in obtaining a supportive medical-legal report from a psychologist, and represented him at a WCAT oral hearing. We argued that our client’s prognosis for improvement was poor and that the Board had highly underestimated his psychological impairment. The Panel agreed, and found that an award equal to 25% of total disability was more appropriate. Our client was reimbursed for the psychologist’s medical-legal report.

 


 

 

Acceptance of pre-existing eye cataract condition

 

Our client was a truck driver who suffered a left eye injury while strapping down a load. The Board accepted his claim for a blunt left eye trauma. The Board then determined that our client recovered from the compensable injury as there was no evidence to indicate he had been left with a permanent functional impairment of the left eye, and concluded his entitlement to wage loss benefits. We assisted our client in appealing the Board’s decision and obtaining supportive medical evidence. We also successfully represented him at a WCAT oral hearing. The Panel allowed our appeal, and determined that the work injury caused an aggravation of our client’s pre-existing left eye cataract condition, and that he is entitled to further wage loss benefits.

 


 

 

Psychological conditions: increased pension award

 

Our client, a custodian and cook, suffered a right knee injury at work. The Board accepted the claim, and granted a permanent functional impairment award equal to 2.5% of total disability for chronic pain. Due to her injury, our client experienced a steady deterioration of her mood. Through our efforts, the Board accepted Pain Disorder and Major Depressive Disorder, and granted an additional award of 30% to recognize permanent psychological impairment. On appeal to the Review Division, we argued that this award did not adequately compensate our client for the effects of her compensable psychological conditions as she persistently experienced low mood, hopelessness, suicidal ideation and social isolation. It was our position that our client’s level of impairment was in the 50% to 60% range. The Review Division allowed our appeal, and granted an increased the award to 40%.

 

We then appealed this decision WCAT. We assisted our client in obtaining a supportive medical-legal report from a psychologist, and represented her at a WCAT oral hearing. We argued that our client’s psychological impairment made it difficult for her to have any normal competitive vocational capacity and that she was at a high risk of decompensation due to an inadequate adaptation to her impairment. The Panel was persuaded by our arguments, and allowed our appeal. WCAT increased our client’s psychological pension award from 40% to 50% of total disability. The Panel also ordered reimbursement for the psychologist’s medical-legal report.

 


 

 

Loss of earnings assessment granted

 

Our client was a full-time grocery clerk who injured her left knee at work. She also worked part-time as a school crossing guard and lunchtime supervisor. The Board accepted an aggravation of pre-existing left knee osteoarthritis, with associated medial meniscus pathology, and left knee chronic pain as permanent conditions. The Board granted our client with a permanent functional impairment pension award of 4.6% of total disability, and determined that she was not entitled to a loss of earnings assessment. The Board also determined that our client could return to her pre-injury job as a grocery clerk in an accommodated position offered by the employer without sustaining a loss of earnings.

 

Our office appealed the decision, and argued that our client was unable to return to work as a grocery clerk on a full-time basis and was therefore entitled to an award on a loss of earnings basis. We also argued that she would no longer be able to work as a school crossing guard and lunchtime supervisor as these jobs required her to move quickly to respond to emergencies, and her injury interfered with her ability to meet that requirement. We assisted our client in obtaining a supportive medical-legal report from her family physician, and represented her at the WCAT oral hearing. Our appeal was successful. The Panel agreed that our client was only able to return to her job as a grocery clerk on a part-time basis, and was unable to return to her part-time jobs. The Panel calculated a potential loss of earnings of greater than 50%. WCAT granted our client a loss of earnings assessment, and reimbursement for the expense of obtaining the medical-legal report.

 


 

 

Back injury: increased pension award and loss of earnings assessment granted

 

Our client, a machine operator, injured his low back while lifting a 150-pound desk with a co-worker. The Board accepted the claim for a L4-5 disc herniation, L5 radiculopathy and chronic pain, and granted a permanent partial disability award of 5.065% for chronic pain (2.5%), reduced range of motion in the lumbar spine (2.25%) and the age adaptability factor (0.315%). In calculating the loss of range of motion award, the Board did not use the findings reported in the permanent functional impairment evaluation on the grounds that they were unreliable. The Board also denied a loss of earnings assessment on the basis that our client could adapt to a job as a security guard without sustaining a significant loss of earnings.

 

Our office appealed this decision to WCAT. We argued that the permanent functional impairment award ought to be increased to recognize sensory impairment and the full extent of the loss of range of motion, as found in the permanent functional impairment evaluation. We also argued that our client was entitled to a loss of earnings assessment because he could not suitably adapt to the occupation of a security guard due to his compensable conditions.

 

We assisted our client in obtaining supportive medical evidence from an orthopedic specialist, and successfully represented him at a WCAT oral hearing. The Panel determined that the range of motion findings reported in the permanent functional impairment evaluation report were reliable and ought to have been used to calculate the functional award, and that our client was entitled to an additional award to reflect his sensory impairment. The Panel found that our client is eligible for a loss of earnings assessment on the grounds that the occupation of security guard is not suitable because the physical requirements exceed his physical limitations. The Panel also ordered full reimbursement for the orthopedic specialist’s medical-legal report.

 


 

 

Low back injury: loss of earnings assessment granted, increased psychological impairment award, and physical impairment award to be assessed for loss of range of motion due to chronic pain

 

Our client, a janitor, slipped on a wet floor and injured his low back. The claim was accepted for the permanent conditions of L5-S1 discectomy with left sciatica, chronic pain, and Major Depressive Disorder. With respect to the low back condition, the Board granted an award of 2% to recognize a one level discectomy, 1.5% to recognize mild left S1 sensory impairment, and 2.5% for chronic pain. The Board denied a loss of range of motion award on the basis that the results from the Permanent Functional Impairment Evaluation were not reliable as it was difficult to obtain accurate measurements because of chronic pain. With respect to the Major Depressive Disorder, the Board granted an award of 20% of total disability. The Board also concluded that our client was not entitled to a loss of earnings assessment.

 

Our office appealed this decision to the Review Division on the basis that the functional award ought to be increased to recognize the full extent of his psychological and physical impairment, including the loss of range of motion findings in the Permanent Functional Impairment Evaluation, and that a loss of earnings assessment is warranted. The Review Division found that our client was entitled to a 10% increase to his psychological permanent functional award, and entitled to a loss of earnings assessment. The Review Division denied an increased physical permanent functional award.

 

Our office further appealed this decision to the WCAT on the grounds that it was erroneous to deny a functional impairment award based on a loss of range of motion in the presence of chronic pain symptoms. We were successful in our appeal. The Panel found that the Board had not properly assessed our client’s permanent partial disability award for his low back on a functional basis insofar as it related to the loss of range of motion findings. The Panel determined that the Board must reassess our client’s loss of function in his lumbar spine, and issue a new decision taking into account the loss of range of motion findings.

 


 

 

Thumb crush injury: increased permanent functional award and loss of earnings assessment granted

 

Our client sustained an injury to his thumb while employed as a safety officer in the construction industry. The Board accepted his claim for a left thumb crush injury and granted a permanent partial disability award of 14.111% of total disability for left thumb amputation and permanent impairment. Our client was left with functional limitations including tissue loss, impaired range of motion, grip strength, hypersensitivity, limited tool handling, and reduced capacity for fine motor tasks. The Board also determined that our client was not entitled to a loss of earnings assessment because he could adapt to the occupation of truck driver without a significant loss of earnings.

 

Nine years earlier, our client had a compensable low back injury and was granted a permanent partial disability award of 6% for permanent functional impairment in his low back. The Board accepted permanent limitations on extended stooping, ladder climbing, heavy or frequent lifting, static standing greater than 45 minutes, and sitting greater than 40 minutes.

 

On appeal to WCAT, we argued that our client’s functional award ought to be increased to reflect chronic pain and cold intolerance in his left thumb, and that the occupational target of truck driver exceeded his physical capabilities, given the limitations arising from his previous compensable low back injury. The Panel agreed, and found that our client’s permanent partial disability award should be increased by 2.5% for chronic pain, and by 1.0% for cold intolerance. The Panel also determined that our client’s physical limitations reduced his ability to obtain higher-paying truck driving positions, and therefore, the Board had over-estimated his earning capacity. The Panel determined that our client could not adapt to the occupation of truck driver without incurring a significant loss of earnings. The Board must now issue a new decision regarding our client’s entitlement to a loss of earnings award.

 


 

 

Left wrist injury: increased permanent partial disability award and consideration for loss of earnings award

 

Our client was a truck driver who injured his left wrist. The claim was accepted for left dorsal wrist syndrome and chronic pain and referred to the Disability Awards Department for consideration of a permanent partial disability award. The Board granted an award for loss of range or motion in the left wrist and forearm, but denied an award for chronic pain. The Board also denied a loss of earnings award. Our office appealed this decision to the Workers’ Compensation Appeal Tribunal (“WCAT”) on the basis that an increased disability award and a loss of earnings award are warranted. We obtained a medical-legal report from an orthopaedic surgeon. We represented our client at an oral hearing.

 

The Panel agreed with our arguments and granted additional awards for chronic pain and cold intolerance. The Board was directed to issue a new decision with respect to our client’s entitlement to a loss of earnings award. Further, the Panel was satisfied that it was reasonable to obtain the medical-legal report and ordered reimbursement for the full expense. Our client is now in receipt of an increased disability award and awaits a new decision regarding a loss of earnings award.

 


 

 

Acceptance of psychological condition and loss of earnings assessment granted

 

Our client, a bakery worker, injured his right elbow as a result of heavy lifting at work. The Board accepted his claim for chronic right elbow lateral epicondylitis; aggravation of pre-existing right elbow lateral epicondylitis; release and debridement surgery; and right elbow chronic pain. As a result of his injuries, our client developed depressive symptoms and was diagnosed with Adjustment Disorder with Depressed Mood. The Board determined that our client’s psychological diagnosis was not “directly related” to the compensable injury, and denied compensation. The Board granted our client with a permanent function impairment pension award of 4.23% of total disability for his physical impairment. Following his injury, our client was unable to return to his pre-injury job, and was retrained as a security guard. He secured a part-time position, earning $11.00 per hour. The Board denied a loss of earnings assessment on the basis that our client could restore his pre-injury earnings by working as a security guard at $17.26 per hour.

 

Our office appealed these decisions to WCAT, and assisted our client in obtaining a supportive medical-legal report from a psychologist. The Panel agreed with our submissions and found the expert evidence from the psychologist to be persuasive. The Panel concluded that our client’s psychological symptoms arose directly as a consequence of his right elbow injury, and accepted Adjustment Disorder with Depressed Mood as a compensable consequence of the workplace injury. Regarding the loss of earnings issue, the Panel agreed that that Board’s use of deemed earnings of $17.26 per hour was unreasonable and inconsistent with labour market information in the claim file. The Panel determined that the evidence supported that our client was sustaining a significant loss of earnings, and was therefore entitled to a loss of earnings assessment. The Panel also ordered reimbursement for the psychologist’s medical-legal report. The Board must now issue a new decision regarding a potential loss of earnings award, and refer the claim to the Disability Awards department for an assessment of a permanent disability award for our client’s psychological condition.

 


 

 

Finger amputation: Increased permanent functional impairment award for chronic pain and cold intolerance and pension payable to age 67

 

Our client, an ice maker, injured his right hand in a table saw accident resulting in lacerations to all fingers of his right hand and a ray amputation of his right index finger. The Board accepted his claim for multiple lacerated flexor tendons and digital nerves to the right middle, ring and little fingers requiring surgery, a ray amputation of the right index finger, and right hand chronic pain. The Board granted a permanent partial disability award of 14.39% for his right index finger ray amputation and loss of range of motion in his right middle, ring and little fingers, plus 2.302% for age adaptability, for a total functional pension of 16.692% payable to age 65.

 

Our office appealed this decision to the Review Division and argued that the permanent functional impairment award ought to be increased, and that our client’s pension ought to be paid beyond age 65. The Review Division granted an additional award of 1% for cold intolerance, and confirmed the Board’s decision in all other respects.

 

We appealed this decision to WCAT, and represented our client at an oral hearing. The employer participated in the appeal, and disputed the Review Division’s decision to grant an additional award of 1% for cold intolerance. The employer also argued that our client should not be entitled to an additional award for chronic pain, and that his pension should expire at age 65. We were successful in our appeal. The Panel denied the employer’s appeal, and confirmed the Review Division decision granting an additional 1% for cold intolerance. The Panel determined that our client suffered from permanent right hand chronic pain that was specific and disproportionate, thereby warranting an additional award of 2.5%. The Panel also determined that our client’s pension ought to be paid to age 67, as he intended to work to that age prior to his injury.

 


 

 

Mid-low back injury: increased permanent functional impairment award and consideration for loss of earnings award

 

Our client was a housekeeper who sustained a permanent aggravation of pre-existing lumbar degenerative disc disease with radiculopathy involving the right S1 nerve root, and chronic pain. There was a previous claim accepted for L5/S1 disc protrusion with radiculopathy. Our firm appealed two Review Division decisions denying a loss of earnings assessment and denying an increased permanent functional impairment (“PFI”) award. The Review Officer had determined that our client could adapt to suitable employment as a telemarketer or lottery kiosk worker. It was our position that our client was entitled to an award for chronic pain, in addition to loss of range of motion, loss of sensation, and to an award for loss of earnings. We also maintained that our client could not adapt to suitable employment due to age, experience, and permanent disability.

 

Our firm represented our client at a Workers’ Compensation Appeal Tribunal (“WCAT”) oral hearing. We obtained a supportive letter from the attending physician and a medical-legal report (“MLR”) from an orthopaedic surgeon, and submitted it as evidence. The WCAT Panel found in favour of our client, granting an increased award in recognition of sensory deficits and a loss of earnings award. The Panel reasoned that our client had diligently attempted to return to work, but as a result of the compensable condition, was competitively unemployable. Full reimbursement for the cost of the surgeon’s MLR and partial reimbursement for the physician’s letter was ordered. Our client now enjoys an increased PFI award and awaits calculation of a loss of earnings award.

 


 

 

Increased permanent functional impairment award

 

Our client was a roofer who fell and whose claim was accepted for multiple injuries. The Board granted a permanent functional impairment (“PFI”) award equal to 6.11% of total disability. Several years later, our client returned to work as a roofer in an accommodated position. Subsequently, the claim was reopened for surgery with respect to the compensable injuries. The Board found that our client had voluntarily reduced earnings in the years immediately preceding the surgery.

 

We proceeded to the Workers’ Compensation Appeal Tribunal (“WCAT”) on the basis that an increased PFI award was warranted. It was our position that our client was entitled to awards for cold intolerance and sensory deficits. The Panel agreed, in part, with our line of reasoning. The Board was directed to provide an increased PFI award and determine the compensability of any nerve or sensory deficits. As a result, our client enjoys an increased monthly pension award.

 


 

 

Low back injury: increased permanent partial disability award and entitlement to loss of earnings assessment

 

Our client was a drywall installer whose claim was accepted for a permanent low back injury. Medical evidence revealed minor disc bulges at L3-4, L4-5, and L5-S1. The Board granted a permanent partial disability award equal to 8.5% payable to age 65 for loss of range of motion in the lumbar spine. The Board also determined the worker was not entitled to a loss of earnings assessment because he was able to adapt to employment as a light duties cleaner. Our client continued to report back pain, radiating into his legs.

 

Our office appealed this decision on the basis that an increased award and a loss of earnings assessment are warranted. We obtained a medical-legal report from an orthopaedic surgeon. The medical-legal report documented our client’s ongoing disability, decreased range of motion, decreased sensation, numbness, and chronic pain. The orthopaedic surgeon opined that our client would not be able to return to work as a light duties cleaner. The Panel agreed with our argument. Our client was granted an increased disability award for sensory deficits including numbness and a loss of earnings assessment. The Panel also awarded full reimbursement for the costs of obtaining the medical-legal report from the orthopaedic surgeon.

 


 

 

Low back strain, disc herniation, chronic pain: Referral to the Disability Awards department for potential permanent disability award

 

Our client was a semi-trailer truck driver whose claim was accepted for a low back strain, with pain into the left leg; left-sided L5-S1 disc herniation; and permanent chronic pain. Our client was referred to the Disability Awards department for consideration of a permanent disability award in relation to chronic pain only. The Board determined that the low back strain and L5-S1 disc herniation had resolved and there was no further compensation entitlement.

 

We appealed the Board’s decision to the Workers’ Compensation Appeal Tribunal (“WCAT”) on the basis that the low back strain and L5-S1 disc herniation had not resolved. We referred our client to an orthopaedic surgeon for an Independent Medical Examination and Medical-Legal Report. The surgeon’s report was supportive and submitted to the WCAT Panel. At an oral hearing, we argued that our client’s back injuries had become permanent. Therefore, our client was entitled to an additional referral to the Disability Awards department for a potential increased permanent disability award. The Panel agreed and allowed our appeal. The Panel also ordered reimbursement for the full cost of obtaining the Medical-Legal Report and for lost wages incurred to attend the oral hearing.

 


 

 

Back injury: increased pension award, loss of earnings assessment granted, and pension payable to age 70.

 

Our client, a dishwasher, injured her back at work. The Board accepted her claim for permanent conditions relating to a compensable aggravation of pre-existing lumbar spine degeneration and chronic lumbar back pain, and granted a permanent partial disability award of 19.26% for loss of range of motion in the lumbar spine (10.5%), sensory impairment in the lumbar spine (7.5%), and age adaptability (1.26%). The Board denied an award for chronic pain, reasoning that our client’s chronic pain was an anticipated consequence of her physical impairment. The Board also determined that her pension would be paid to age 65, and denied her a loss of earnings assessment on the basis that she had the ability to adapt to the occupation of retail salesperson without incurring a significant loss of earnings.

 

On appeal to WCAT, we assisted our client in obtaining supportive medical evidence from an orthopedic specialist, and successfully represented her at a WCAT oral hearing. We argued for an additional chronic pain award of 2.5% on the basis that our client’s pain was non-specific and disproportionate, thereby meeting the Board’s criteria for a chronic pain award. We argued that our client’s pension ought to be paid to age 70, as she was in good health prior to her injury and had not planned on retiring at age 65. We also argued that the job of a retail salesperson was not suitable for our client as she had a standing tolerance of 5 minutes, walking tolerance of 25 minutes with the use of a cane, and a lifting tolerance of only 2 pounds. The Panel agreed with our submissions and allowed the appeal. Our client was awarded an additional award of 2.5% for chronic pain and is entitled to a loss of earnings assessment. She will also receive her WCB pension for an additional 5 years, until she reached age 70.

 


 

 

Bilateral foot and heel fractures, chronic pain: Increased Permanent Functional Impairment and Loss of Earnings assessment

 

Our client was a roofer whose claim was accepted for left foot and heel fracture and surgery; left foot and heel chronic pain; right foot and heel fracture with surgery, right foot and heel chronic pain; and morphine dependency. The Board initially granted a permanent functional impairment (“PFI”) award for reduced feet and heel range of motion and for reduced sensation. The Board also denied our client’s entitlement to a loss of earnings (“LOE”) assessment. We obtained a supportive vocational assessment from a consultant. It was the consultant’s opinion that our client could not adapt to a job as a support technician due to lack of training and experience, lack of open positions, and a competitive employment market.

 

We appealed the Board’s decision and proceeded to the Workers’ Compensation Appeal Tribunal (“WCAT”). It was our position that our client was entitled to further awards for compensable chronic pain and cold intolerance, as well as an LOE assessment. The Panel agreed and granted an award of 2.5% for left foot chronic pain, a separate award of 2.5% for right foot chronic pain, and an award of 1.0% for cold intolerance. The Panel also relied on the opinion of the consultant and granted an LOE assessment. As a result, our client enjoys an increased PFI award and awaits the implementation of the LOE assessment.

 


 

 

Left foot amputation, left ankle fracture, chronic pain, and Adjustment Disorder: Increased psychological permanent functional impairment award, loss of earnings assessment, recalculated wage rate

 

Our client was employed on a farm and injured the left foot. The claim was accepted for amputation of the left foot, comminuted fracture of the left ankle, osteochondral fracture of the left talar dome, chronic pain, and Adjustment Disorder with anxiety and depression. The Board granted a permanent partial disability award equal to 58.10% for physical and psychological permanent functional impairment (“PFI”). Our client disagreed with the Board’s findings on the basis that an increased pension award for psychological PFI was warranted.

 

Our office appealed the Board’s decision to the Review Division and the Workers’ Compensation Appeal Tribunal (“WCAT”). It was our position that our client was entitled to an increased award and a loss of earnings assessment. Also, it was incorrect to recalculate the worker’s benefits on the basis of 75% of the pre-injury gross earnings. In support of our appeal, we obtained a medical-legal report from an independent psychologist.

 

The Panel agreed with our line of reasoning and accepted the evidence of the psychologist. An increased psychological PFI award was granted. The Panel also found the target occupation of light assembly work was unsuitable; therefore, a loss of earnings award was warranted. The Panel deemed that the Board did not have the authority to reconsider the worker’s wage rate. The worker’s benefits ought to be based on 100% of his wage rate. The cost of the psychologist’s report was reimbursed. As a result, our client enjoys an increased PFI award and a new loss of earnings award.

 


 

 

Right long biceps tendon tear and chronic pain: Increased PFI award and LOE assessment

 

Our client was a truck driver whose claim was accepted for two permanent injuries: the complete tear of the right long biceps tendon and chronic pain. The Board granted a permanent functional impairment (“PFI”) award equal to 7.0% of total disability. Our office appealed this decision on the basis that loss of range of motion awards for the right shoulder, elbow, and forearm, as well as a chronic pain award are warranted. The Board increased the PFI award to 14.58% of total disability. It was also determined that our client was not entitled to a loss of earnings (“LOE”) assessment because there was the ability to adapt to a position as a dispatcher or radio operator. We appealed the Board’s second decision to the Review Division and to the Workers’ Compensation Appeal Tribunal (“WCAT”).

 

The Panel acknowledged that there was difficulty assessing and testing our client’s injuries. However, given the weight of medical evidence from several physicians, the Panel granted an additional award for loss of strength in the right shoulder. The Panel also accepted our argument and our client’s testimony that there could not be successful adaptation to a dispatcher or radio operator position. As a result, our client enjoys an increased PFI award and awaits implementation of an LOE assessment.

 


 

 

Right hand chronic pain: Loss of earnings assessment

 

Our client was a fruit packer, who sustained a right hand injury. The claim was accepted for a soft tissue injury in the right hand and chronic pain. The Board assessed the worker a permanent functional impairment award equal to 2.5% in recognition of right hand chronic pain. The Board determined that our client could return to work as a Delivery and Courier Service Driver. Subsequently, the Board denied entitlement to a loss of earnings (“LOE”) assessment on the basis that our client could adapt to another suitable occupation. Our office appealed the Board’s decision to the Review Division, and then to the Workers’ Compensation Appeal Tribunal (“WCAT”).

 

We provided written submissions in support of our client’s appeal to WCAT. We argued that due to advanced age, language barrier, and lack of experience, our client was not a competitive candidate for Delivery and Courier Service Driver positions. There was no objective evidence that our client could adapt to this other occupation. The Panel agreed with us and granted an LOE assessment. Our client is now entitled to an assessment and a potential LOE award.

 


 

 

Right and left heel/ankle fractures, chronic pain: Increased Permanent Functional Impairment award and loss of earnings assessment

 

Our client was a roofer, who fell 10 feet off a roof. The claim was accepted for right and left heel, as well as right and left ankle fractures. The claim was later accepted for right and left foot chronic pain, and morphine druge dependence. The Board granted a permanent functional impairment ("PFI") award equal to 21.988% of total disability. However, the Board also denied a loss of earnings ("LOE") assessment on the basis that our client could retrain as a Computer Support Technician. We appealed the Board's decision to the Workers' Compensation Appeal Tribunal ("WCAT") on the basis that our client was entitled to an increased PFI award and an LOE assessment. We provided a referral to a private Vocational Rehabilitation Consultant and obtained a vocational assessment with respect to our client's inability to return to work.

 

At WCAT, the Panel accepted the medical evidence submitted by our office. The Panel also accepted evidence of the Vocational Rehabilitation Consultant and agreed that our client would have difficulty finding employment as a Computer Support Technician, due to his physical impairment and to his lack of experience. As a result, WCAT found our client entitled to an increased PFI award for cold intolerance and bilateral chronic foot pain, as well as an LOE assessment. Partial reimbursement for the costs of the vocational assessment was granted. Our client now enjoys a greater pension award and awaits the Board's implementation of the LOE assessment.

 


 

 

Chronic Pain, Major Depressive Disorder: 100% Loss of Earnings Award

 

Our client’s claim was accepted for chronic pain and Major Depressive Disorder. The Board granted a loss of function pension award equal to 19.45% of total disability. The Board also considered our client’s entitlement to a loss of earnings assessment. It was determined that our client was unable to return to work as an assembler or an inspector for industrial motors and transformers, and would therefore sustain a loss of earnings. The Board granted a partial loss of earnings award. Our office appealed this decision to the Workers’ Compensation Appeal Tribunal (“WCAT”), on the basis that a full loss of earnings award is warranted.

 

In order to increase the chances of success, our office obtained a supportive medical-legal report from a psychiatrist. We represented our client at an oral hearing and submitted evidence. We argued that our client is competitively unemployable and ought to be granted a 100% loss of earnings award. The WCAT Panel agreed with our line of reasoning. Our client now enjoys a 100% loss of earnings award. The Panel also granted reimbursement for the full cost of the psychiatrist’s report.

 


 

 

Pre-existing left hip, lumbar back strain, lacerations, bruises: Reconsideration of denial of loss of earnings assessment

 

Our client’s claim was accepted for permanent aggravation of pre-existing left hip pathology, lumbar back strain, lacerations, and bruises. Eventually, our client was able to return to work. The Board granted a loss of function pension award, but denied a loss of earnings assessment. The Board’s denial of a loss of earnings assessment was confirmed by the Workers’ Compensation Appeal Tribunal (“WCAT”).

 

Our office sought a reconsideration of WCAT’s decision. We researched and prepared an application on the basis that our client is entitled to a loss of earnings assessment. We submitted that the original WCAT Panel made a factual error when they reasoned that our client did not attempt to look for work in the target occupation. This error was significant enough to influence their final decision and make it unreasonable. The new WCAT Panel agreed with our argument and set aside the previous decision. Our client’s appeal will be reinstated and heard again.

 


 

 

Left hand amputation and left forearm chronic pain: Pension until age 75

 

Our client was a saw mill worker who suffered a left hand amputation. The claim was accepted and assessed for a permanent partial disability award equal to 69.518% of total disability, payable to age 65. Our office appealed this decision to the Workers’ Compensation Appeal Tribunal (“WCAT”), on the basis that the disability award ought to be paid beyond age 65.

 

We represented our client at an oral hearing and submitted evidence that he intended to work until age 75. In order for the WCAT Panel to accept the evidence, it had to be independently verifiable. The evidence included a letter from the employer and statements outlining financial obligations. Based on our arguments, the WCAT Panel agreed. There was sufficient evidence to conclude that our client intended to retire at age 75. As a result, our client’s permanent partial disability award will be paid until age 75.

 


 

 

Low back injury: Loss of earnings assessment

 

Our client was a labourer who was injured while working a food production facility. The claim was accepted for low back strain and bilateral L4-5 disc herniation. The back injury became permanent and was referred to the Disability Awards department. The Board granted a loss of function award equal to 21.28% of total disability. However, the Board denied a loss of earnings assessment on the basis that our client could adapt to another occupation. We appealed this decision to the Workers’ Compensation Appeal Tribunal (“WCAT”) and requested an oral hearing.

 

Our office referred our client to an orthopaedic surgeon for an Independent Medical Examination and Medical-Legal Report. A supportive medical report from a specialist would increase the chances of a successful appeal. At the oral hearing, we presented evidence and made submissions. The Panel found that our client’s injury prevented a return to the pre-injury work duties, which included prolonged standing and repetitive twisting and bending. The Panel also concluded that the other occupations identified by the Board were unsuitable. The Panel granted a loss of earnings assessment and full reimbursement for the orthopaedic surgeon’s report.

 


 

 

Adjustment Disorder: Referral to Disability Awards

 

Our client’s claim was accepted for a right forearm injury, chronic pain, and Adjustment Disorder. The Board determined that Adjustment Disorder had resolved and there was no evidence of a permanent condition. Our office appealed this decision to the Review Division and then to the Workers’ Compensation Appeal Tribunal (“WCAT”), on the basis that the psychological condition had not resolved. In order to increase our chances of success, we referred our client for an Independent Medical Examination and Medical-Legal Report with a psychologist.

 

Our office represented our client at an oral hearing. We presented evidence and argued that Adjustment Disorder had become permanent and that a permanent functional impairment award was warranted. The Panel agreed in part and found Adjustment Disorder to be a permanent psychological condition. Our client’s claim has been referred to Disability Awards for consideration of an increased permanent functional impairment award.

 


 

 

Colles fracture of the right wrist resulting from a fall: Eligible for an LOE assessment

 

Our client was a casino cashier who sustained a Colles fracture of the right wrist resulting from a fall in her workplace. The Board initially denied a loss of earnings assessment, stating that she would be able to return to work at her pre-injury occupation. We subsequently requested a review of this decision and were successful in arguing that the position of a casino cashier is no longer suitable for the worker. The issue was referred back to the Board, in order to formulate a new Vocational Rehabilitation (“VR”) plan, and to revisit whether the worker was entitled to a loss of earning assessment.

 

In a subsequent decision, the worker was advised that she was able to return to work in the National Occupational Category of “security guards and other related options” and was therefore deemed ineligible for a loss of earnings assessment. We requested a review of this decision and the Board’s decision was confirmed. We then appealed this decision to WCAT and successfully represented our client in an oral hearing. The Panel found that the targeted occupational goal was not suitable for the worker and our client was deemed eligible for a loss of earnings assessment.

 


 

 

Entitlement to a disability award beyond “chronic pain”

 

Our client was working as a municipal by-law enforcement officer who was rear-ended while driving to an inspection. She sustained diffuse soft tissue injuries of the mid-thoracic paraspinal muscles and the occipital, nec and trapezius muscles. The Board accepted cervical/back strain injuries, as well as a left shoulder strain/sprain injury and a left anterior chest wall strain/sprain. In subsequent decisions, the Board determined that she had developed chronic pain in her neck, mid-back and left shoulder as a compensable consequence of her workplace injury. The Review Division found that our client’s condition had resolved and that her chronic pain conditions had stabilized as permanent on December 15, 2011. We subsequently successfully represented our client in a WCAT oral hearing. The Panel accepted our arguments and found that our client’s condition did not resolve as of December 15, 2011. Rather, the Panel found that our client’s injuries stabilized as permanent as of December 7, 2011, and that our client had been left with an actual or potential permanent disability.

 


 

 

Lumber grader with injured right wrist and forearm: entitled to a loss of earnings assessment

 

Our client was employed as a lumber grader in a saw mill when he injured his right wrist and forearm. The Board determined that the targeted occupation of insurance sales was suitable for our client. The Board found that our client was not entitled to a loss of earnings assessment, as he was able to restore his earnings working as an insurance agent and broker. We requested a review of this decision and the Review Division confirmed the Board’s decision. We subsequently appealed the decision to WCAT and successfully represented our client in an oral hearing. The Panel accepted our arguments and found that our client was unable to adapt to the targeted occupation and restore his earnings. The Panel found that our client was eligible for a loss of earnings assessment.

 


 

 

Left shoulder tendinitis: termination of payments at 65. Pension payable to age 75.

 

Our client was self-employed as a truck driver when he injured his left shoulder in 2008. The Board assessed a permanent partial disability award equal to 21.58% which was to terminate at the age of 65. In October 2009, we requested a review of the termination age on the basis that our client would have continued to work past the age of 65. The review was denied on the basis that the evidence was insufficient to establish our client’s entitlement to pension benefits past the age of 65. We appealed this decision to WCAT.

 

We attended an oral hearing in support of our client’s appeal to WCAT. We argued that our client had no plans to retire at 65; he was fit and not in a financial position to retire. We further argued that given the entirety of the evidence we presented, it would be reasonable to extend pension benefits to the age of 75. The Panel agreed with us and our client will now receive pension benefits to the age of 75.

 


 

 

Low back pain caused by an L4-5 disc bulge: LOE assessment

 

In January 2009, our client was denied a loss of earning assessment when he was granted his original permanent partial disability (“PPD”) award. Under the Loss of Function calculation method, he was awarded 6.29% equal to his total disability. In February 2012, the Disability Awards Department advised our client that he was eligible for an increase in his PPD award to 7.70% as his permanent disability had worsened. However, they still found our client ineligible for a loss of earnings assessment. This decision was appealed to the Review Division and in September of 2012, the Review Division confirmed the decision of the Board.

 

Subsequently, the Review Division decision was appealed to WCAT and we attended an oral hearing in support of our client’s appeal. In this appeal, we illustrated that our client was not able to return to any suitable occupation due to the worsening of his condition, nor was he able to work when provided with accommodations. WCAT found that our client suffered a loss of earnings as a result of the injury and directed the Board to conduct a loss of earnings assessment.

 


 

 

Acceptance of a cognitive disorder under the claim

 

Our client sustained a left knee injury as a result of a workplace incident. The worker commenced a pain management treatment in hospital. As a result of a nursing error, our client received an incorrect dosage of medication resulting in a seizure. The Board accepted Adjustment Disorder as a result of the incident but denied any physical injuries. The Review Division upheld the Board’s decision and determined there was no evidence of a brain injury to which Cognitive Disorder could be attributed.

 

Our firm appealed this decision to the Workers’ Compensation Appeal Tribunal (“WCAT”). We argued that the medical evidence on file indicated that out client had suffered a head injury. We further argued that our client’s symptoms were consistent with a cognitive disorder that was separate from her other psychological conditions. The Panel agreed with our submissions and determined that our client developed a cognitive disorder as a compensable consequence of her workplace injury. We were also able to obtain reimbursement for the costs of the travel expenses our client incurred in order to attend the hearing. We also requested and obtained reimbursement of the lost wages due to our client missing work to attend the hearing.

 


 

 

Acceptance of left supraspinatus tendon tear and entitlement to a loss of earnings award

 

Our client worked as a delivery truck driver and sustained a left shoulder injury while lifting a heavy box up to his shoulder. His claim was accepted a left shoulder strain. The Board determined that the accepted condition had resolved and that the only permanent condition was left shoulder chronic pain. The Review Division upheld this decision.

 

Our firm appealed this decision to the Workers’ Compensation Appeal Tribunal (“WCAT”). We assisted the worker in obtaining supportive medical evidence and represented him at an oral hearing. We argued that the work injury caused our client’s rotator cuff tear and ought to be accepted under the claim. We also argued that our client was entitled to a loss of earnings assessment on the basis that the target occupation was not suitable or reasonably available. The Panel agreed with our submissions and determined that the worker’s left shoulder tear should be accepted as compensable under his claim. The Panel also held that the worker was entitled to be assessed for a loss of earnings award as the target occupation was not physically suitable or reasonably available to the worker. We were able to obtain full reimbursement of the medical-legal report for the client.

 


 

 

Pension termination date: age 75

 

Our client worked as a cabinet maker. He owned and operated his own cabinet making business and sustained injuries to his right dominant hand while working. The Board accepted his right hand fracture and laceration injuries under the claim and awarded the worker with a 21.14% permanent partial disability award. The award was payable until age 65. The Review Division varied the Board’s decision in part and granted an additional 0.5% award for cold intolerance but upheld the pension termination date at 65.

 

Our firm appealed this decision to the Workers’ Compensation Appeal Tribunal (“WCAT”). We advised the worker as to which financial documents to obtain in support of his appeal and represented him at an oral hearing. We argued that due to our client’s financial burden, the young age of his children, and his enjoyment of his work, he would have worked until the age of 75. The Panel agreed with our submissions and held the evidence demonstrated our client’s intention to work until age 75.

 


 

 

Wage loss benefits, referral to the Disability Awards department, coverage of medications

 

Our client worked as a care-aide and sustained injuries to his lower back while he was trying to fix the sheets under a quadriplegic client. His claim was accepted for a lower back strain, chronic low back pain, pain disorder, and the aggravation of a pre-existing bipolar disorder. The Board determined that his aggravation of pre-existing bipolar disorder resolved by February 18, 2013, that he did not continue to experience the effects of the pain disorder, that he was no longer entitled to coverage of zopiclone or nabilone, and that he was entitled to a permanent partial disability award of 2.5% for chronic pain. The Review Division upheld the majority of the Board’s decision but determined the worker continued to experience symptoms due to his pain disorder and ordered a referral to the Disability Awards department for this condition.

 

Our firm appealed this decision to the Workers’ Compensation Appeal Tribunal (“WCAT”). We assisted the worker in obtaining supportive medical evidence and represented him at an oral hearing. Our firm also provided pre-hearing written submissions in support of the worker’s appeal. We argued that the worker’s pre-injury bipolar disorder has become permanent. We also argued that the nabilone and zopliclone were reasonably necessary for treatment for the accepted conditions on the worker’s claim. The Panel agreed with out submissions and determined that the worker’s condition had stabilized and accepted the aggravation of pre-existing bipolar disorder as permanent, that a referral to the Disability Award department was warranted, and that the worker is entitled to coverage of nabilone. We were able to obtain full reimbursement of the costs of the medical-legal report for our client.

 


 

 

Right knee sprain/strain, medial meniscal tear superimposed on degenerative changes in the knee, and chronic right knee pain: entitlement to a loss of earnings (“LOE”) assessment

 

Our client sustained a right knee injury in the course of his self-employment as a carpenter/construction worker. The Board accepted his claim for a right knee sprain/strain, a medial meniscal tear superimposed on degenerative changes in the knee, and right knee chronic pain. He was granted a permanent partial disability award calculated on a loss of function basis. Our client was denied an LOE assessment.

 

Our office appealed the Board’s decision to the Workers’ Compensation Appeal Tribunal (“WCAT”). We assisted the worker in obtaining supportive medical evidence and we represented him at a WCAT oral hearing. We argued that our client should be assessed for an LOE award due to the fact that he is unable to work as a retail salesperson. The Panel agreed with our submissions and determined that the worker is eligible for an LOE assessment.

 

The Panel also ordered the Board to reimburse our client for the cost of obtaining his medical-legal report and for travel expenses he incurred to attend the oral hearing.

 


 

 

Acceptance of left knee condition

 

Our client suffered an injury to his right knee when he slipped on some oil at work. Due to his relying more on his left knee after his right knee injury, our client began experiencing symptoms in his left knee. The Board determined that the aggravation of osteoarthritis in our client’s left knee was a natural progression of his condition and not connected to the compensable right knee injury. The Review Division upheld this decision.

 

Our firm appealed this decision to the Workers’ Compensation Appeal Tribunal. We assisted our client in obtaining supportive medical-legal evidence. We argued that the workers pre-existing condition was significantly aggravated and accelerated due to his compensable right knee injury. The Panel agreed with our submissions and determined that our client’s compensable right knee condition was of causative significance in his left knee condition. We were able to obtain full reimbursement of the cost of the medical-legal report obtained for the appeal.

 


 

 

Acceptance of bilateral trigger finger condition; entitlement to a loss of earnings assessment

 

Our client worked as a dental hygienist and sustained an injury to her right elbow while working with a challenging client. The Board determined that the worker’s bilateral trigger finger condition was not compensable under her claim. The Review Division upheld this decision. In a separate decision, the Board determined that as the worker could make earnings that would match or exceed her pre-injury earnings, she was not entitled to an LOE assessment. The Review Division confirmed this decision.

 

Our firm appealed this decision to the Workers’ Compensation Appeal Tribunal. We assisted the worker in obtaining supportive medical evidence and represented her at an oral hearing. We argued that our client’s bilateral trigger finger condition was caused by the nature of her employment and her repetitive work activities. We also argued that the target occupation identified by the Board was not physically suitable for our client, due to her compensable conditions. The Panel agreed with our submissions and determined that our client’s bilateral trigger finger condition was compensable under her claim. The Panel preferred our medical evidence over that of the Board. The Panel also determined that it would be very unlikely that our client would be able to restore her earnings in the target occupation. The Panel found that our client was entitled to an LOE assessment. We were also able to obtain reimbursement for the cost of the medical-legal report obtained for the appeal.

 


 

 

100% loss of earnings award granted

 

Our client worked as a supervisor at a rendering plant when he sustained injuries to his lower back. The Board accepted a lower back strain and that the worker was unable to return to his pre-injury occupation. The Board determined that despite numerous accepted limitations, the worker was able to return to work as a lot attendant/car jockey and maximize earnings and so was granted only a partial loss of earnings award. The Review Division upheld the Board’s decision.

 

Our firm appealed this decision to the Workers’ Compensation Appeal Tribunal (“WCAT”). We assisted the worker in obtaining supportive medical evidence and represented him at an oral hearing. We argued that the occupation of parking lot attendant was not physically suitable or reasonably available and that the worker was competitively unemployable. The Panel agreed with our submission and determined that the worker was competitively unemployable and entitled to 100% LOE award. We were able to obtain full reimbursement for the cost of the medical-legal report and travel expenses.

 


 

 

Acceptance of plantar fasciitis as a permanent condition; acceptance of CRPS

 

Our client worked as an airline technician and sustained injuries to left ankle when he missed a step on a ladder during a routine inspection of an aircraft. After previous appeals the Board accepted that left plantar fasciitis was a compensable consequence under the claim, however the Board deemed that the condition had resolved. The Board also determined that the worker did not meet the criteria for CRPS and as such denied the acceptance of CRPS under the claim. The Review Division upheld the Board’s decision.

 

Our firm appealed this decision to the Workers’ Compensation Appeal Tribunal (“WCAT”). We assisted the worker in obtaining supportive medical evidence and represented him at an oral hearing. We argued that the worker’s plantar fasciitis condition had become permanent and relied on the expert evidence obtained in support of the appeal. We also argued that the worker’s symptoms met the diagnostic criteria for CRPS and that CRPS should be accepted on the claim. The Panel agreed with our submissions and determined that the workers plantar fasciitis had not resolved and instead was permanent, and that the worker met the criteria for CRPS and accepted it as compensable under the claim. We were able to obtain full reimbursement of the cost of the medical-legal report obtained for the appeal.

 


 

 

2006 claim reopened in 2014

 

Our client worked as a marine mechanic and sustained an injury when he fell through a hole on the deck of a boat. His claim was initially accepted for an aggravation of an L5-S1 disc protrusion and other degenerative changes in the back, chronic low back pain, a right shoulder injury, a right knee injury, and eventually accepted for right shoulder chronic pain. Our client re-injured his back when attempting to pull himself out of bed. Our firm requested that WCB reopen his claim for wage loss entitlement. The Board issued a decision indirectly denying a reopening of our client’s claim. The Review Division upheld this decision on the basis that our client did not re-injure himself at work.

 

Our firm appealed this decision to the Workers' Compensation Appeal Tribunal (“WCAT”). We assisted the worker in obtaining a supportive medical-legal report and represented him at an oral hearing. We argued that our client should be entitled to a reopening of his claim on the basis that there was a significant change to his compensable back condition.

 

The Panel agreed with our submissions and determined that our client was entitled to a reopening of his claim and a reassessment of his disability. The Panel determined that although the re-injury did not occur at work, an exception in the Board’s policy applied as our client would not have fallen if it were not from his compensable right knee and shoulder injury. We also obtained full reimbursement for the medical-legal report obtained in support of the appeal.

 

 

 

 

Canada Pension Plan Disability Benefits


 

 

Physical and psychological conditions: CPPD application approved

 

Our client suffered from multiple physical and psychological problems.  Her application for CPP disability benefits was denied by Service Canada on the basis that her disability was not “severe and prolonged,” as she was working at the time of her application.  Our office assisted her in obtaining and providing substantial new medical evidence to Service Canada in support of her reconsideration application.  Her reconsideration application was subsequently approved, and she is now receiving a monthly CPP disability benefit. 

 


 

 

Torn rotator cuff, depression, anxiety: CPPD application approved

 

Our client worked for the BC provincial government.  She suffered a workplace accident while on a road construction site, resulting in a severely torn rotator cuff and related conditions, including cervical dystonia, chronic pain, depression, and anxiety.  Her application for CPP disability benefits was denied by Service Canada on the basis that not all treatments which may improve her medical conditions had been pursued. Our firm assisted her in obtaining new medical evidence from her treating physicians, and represented her at her Review Tribunal oral hearing.  Through our efforts, her appeal was allowed by the Review Tribunal, and she is now receiving a monthly CPP disability benefit.  

 


 

 

Back injury: CPPD application approved

 

Our client was a mill labourer who injured his back while trying to push a heavy load.  He suffered a large central disc herniation at L5-S1 and significant left lumbosacral radiculopathy.  He underwent extensive surgical treatment, including a bilateral endoscopic discectomy, a revision bilateral endoscopic discectomy, and a lumbosacral fusion.  He continues to experience chronic low back pain, left leg weakness, and bowel and bladder dysfunction.  Service Canada initially denied his application for CPP disability benefits on the basis that his disability was not “severe and prolonged.”  Our firm assisted him in obtaining new medical evidence from his treating physicians, and represented him at his Review Tribunal oral hearing.  Through our efforts, his appeal was allowed by the Review Tribunal, and he is now receiving a monthly CPP disability benefit. 

 


 

 

Foot injury, depression: CPPD application approved

 

Our client worked as a janitor.  He suffered a significant injury to his left foot, which resulted in chronic pain and depression.  His application for CPP disability benefits was denied by Service Canada, on the basis that his disability was not “severe and prolonged.”  Our firm represented him at his Review Tribunal oral hearing, but his appeal was denied.  Our firm then proceeded with a Pension Appeals Board (“PAB”) application, for which we were granted leave to appeal the Review Tribunal’s decision.  Our firm also assisted our client in obtaining and providing a substantial amount of new medical evidence from his treating physicians to the PAB.  Upon reviewing our PAB application and new medical evidence, Service Canada offered our client a settlement, and agreed that our client satisfied the CPP legislative requirements.  He is now in receipt of a monthly CPP disability benefit. 

 


 

 

Thumb and elbow injuries: CPPD application approved

 

Our client was a nurse who was injured at work when a combative patient grabbed and twisted her hands and arms.  She underwent extensive treatment, including physiotherapy, lateral epicondyle release, wrist splinting, and analgesic medications, but continued to suffer from chronic pain.  Her application for CPP disability benefits was denied by Service Canada, on the basis that her disability did not preclude her from performing alternate suitable work.  We assisted our client in obtaining supportive medical evidence from her family doctor, and successfully represented her at her Review Tribunal oral hearing.  The Review Tribunal allowed her appeal, and our client is now entitled to a monthly CPP disability benefit.

 

Our office also represented this client with regards to her WCB claim.  The Board initially determined that she was entitled to a permanent partial disability award equal to just 2.93% of total disability, and denied a loss of earnings assessment.  We assisted our client in appealing this decision to WCAT, and helped her obtain supportive medical evidence from her family doctor.  We successfully represented her at her oral hearing, and WCAT determined that she was entitled to a loss of earnings assessment.  The matter was referred back to the Board.  Upon further investigation, the Board found that our client is entitled to a significant partial loss of earnings award.  We are currently assisting her in pursuing a 100% loss of earnings award.  

 


 

 

Chronic back pain, Major Depressive Disorder: CPPD application approved

 

Our client was working as a truck mechanic when he suffered a back injury while moving a 300 pound tire off a vehicle.  He continued to suffer severe chronic back pain despite physiotherapy, injections, pain medications, and ultimately back surgery.  He also developed Major Depressive Disorder as a result of his chronic pain.  His application for CPP disability benefits was denied initially and on reconsideration, on the basis that he should be able to return to some kind of alternate work.  We successfully represented our client at his Review Tribunal oral hearing.  The Review Tribunal allowed his appeal, and found that he has a severe and prolonged disability and is unable to pursue any substantially gainful occupation.  Our client is now entitled to a monthly CPP disability benefit. 

 


 

 

Back pain: CPPD application approved

 

Our client worked as a mechanic in the oil industry, and suffered a back injury while moving a tire from a vehicle. He experienced back pain for over 10 years, and tried numerous treatments in the form of physiotherapy, injections, powerful painkillers, and ultimately, back fusion surgery. His application was denied on the grounds that he had undergone vocational retraining through WorkSafeBC, and that he should be able to return to some kind of alternative work. At the Review Tribunal, we argued that our client had exhausted all available treatment options, but that his symptoms nevertheless persisted. We submitted evidence that our client eventually developed depression, which further limited his ability to return to the workforce. The Review Tribunal agreed, and granted our client CPP disability benefits.

 


 

 

Myofascial pain syndrome: CPPD application approved

 

Our client was a 38-year-old office clerk who developed myofascial pain syndrome as a result of two motor vehicle accidents. She explored all treatment options, including Botox injections, trigger point injections, neuro-feedback, medication, massage therapy, physiotherapy, intramuscular stimulation, nerve blocks, and acupuncture. However, she continued to suffer from chronic pain in her neck, left shoulder, pelvis and lower back, headaches, and fatigue. Our client’s application for CPP disability benefits was denied by Service Canada on the basis that our client still maintained the capacity to do some type of work within her limitations. Service Canada’s position was that, even though the client tried unsuccessfully to return to work with her previous employer, she did not try to look for another more suitable job. We assisted our client in obtaining supportive medical evidence from her treating physicians and successfully represented her at her Review Tribunal oral hearing. The Review Tribunal allowed our appeal, and our client is now entitled to a retroactive lump sum payment and a monthly CPP disability benefit.

 


 

 

Osteoarthritis of the thoracic spine: CPPD application approved

 

Our client spent many years working as a longshoreman, and first began to experience back problems in 2002. His condition caused several absences from work, until he was ultimately no longer able to return. At the time of his application for CPP disability benefits, he experienced limitations with respect to walking, standing, and even sitting. He was unable to lift heavy weights, had a limited tolerance for driving, and also experienced recurrent muscle spasms. His entitlement to benefits was denied both at initial adjudication, and at the reconsideration stage. The Review Tribunal confirmed this decision. The adjudicators acknowledged that our client suffers from a spinal disability, but denied benefits on the basis that he made no attempts to retrain, and that he would still be capable to perform part-time, seasonal, or light duties. Our office appealed the Review Tribunal’s findings to the Pension Appeals Board, providing further medical evidence in support of our client’s position. Before an oral hearing could be scheduled, the Ministry offered our client a settlement, accepting his application for CPP disability benefits. The settlement included a retroactive payment dating back several years, as well as a monthly pension entitlement.

 


 

 

Chronic pain, fibromyalgia, headaches, dizziness: CPP disability pension

 

Our client (currently 31 years old) worked as a Nursing Unit Clerk and a Bank Teller, and injured her shoulder in a hard fall at home. Our client was diagnosed with chronic neck, shoulder, arm, and myofascial pain, as well as sensory deficits. Over time, our client had ongoing discomfort and lost range of motion in these regions. After involvement in a separate motor vehicle accident, our client’s soft tissue pain worsened and she also suffered from a concussion, dizziness, memory and balance problems. Our client was unable to perform work and daily activities.

 

It is our position that our client is entitled a CPP pension for her severe and prolonged disability. Initially, her application for a disability pension was denied. Our office pursued a reconsideration of the decision, and ultimately appealed the reconsideration decision to the Office of the Commissioner of Review Tribunals. Through our efforts and advocacy, our client was award a full disability pension.

 


 

 

Disclaimer:

The foregoing is a small sample of our successful WSBC/WCB and CPP Disability cases.  You should be aware that winning a WSBC/WCB or CPP case is not easy, quick, or cheap.  The foregoing cases (and most cases) require significant effort and months or years of legal work, and require the clients to incur significant legal fees, disbursements, and taxes that are in most cases not recoverable.  It is important to note that the results of each case will vary, and Gosal & Company does not offer any guarantee of case results.