WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1435/14

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1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1435/14 BEFORE: S. Peckover: Vice-Chair HEARING: July 30, 2014 at Toronto Written DATE OF DECISION: August 11, 2014 NEUTRAL CITATION: 2014 ONWSIAT 1723 DECISION(S) UNDER APPEAL: WSIB Appeals Resolution Officer (ARO) decision dated March 19, 2013 APPEARANCES: For the worker: For the employer: Interpreter: Not Participating M. Purchase, Paralegal Not Required Workplace Safety and Insurance Appeals Tribunal Tribunal d appel de la sécurité professionnelle et de l assurance contre les accidents du travail 505 University Avenue 7 th Floor 505, avenue University, 7 e étage Toronto ON M5G 2P2 Toronto ON M5G 2P2

2 Decision No. 1435/14 REASONS (i) Introduction to the appeal proceedings [1] The employer appeals a decision of the ARO, which concluded that it was not entitled to have the costs of health care expenses, used to determine that the worker s medical condition was not compatible with the mechanism of injury, removed from its NEER and Accident Cost Statements. The ARO rendered a decision based upon the written record without an oral hearing. (ii) Issue [2] The issue in this case is whether the employer is entitled to removal of the health care costs of this claim from its NEER and Accident Cost Statements. (iii) Background [3] The following are the basic facts. [4] The worker, born in 1958, began working for the accident employer as a shuttle driver to and from the local airport in On March 4, 2011, he suffered a pulled left groin while lifting 12 suitcases weighing approximately 75 pounds each into his vehicle. Entitlement was allowed for the left groin strain, with initial entitlement for health care benefits only. [5] The worker suffered an aggravation of this injury in December 2011, again while lifting luggage. Entitlement was allowed for a left groin strain and possible left inguinal hernia. Loss of earnings (LOE) benefits were paid from March 21, 2012, as suitable work within the worker s restrictions was not available. [6] The worker underwent a prostate and scrotal ultrasound on April 16, 2012, which provided a diagnosis of bilateral epididymal cysts. A Board Medical Consultant reviewed this diagnosis, and found that it was incompatible with the mechanism of accident. Entitlement therefore was rescinded, although the worker was advised, in a letter dated May 29, 2012, that he did not have to repay the LOE benefits which he had received. [7] In a letter dated May 29, 2012 to Mr. Purchase, the Case Manager stated that the cost of all LOE benefits would be removed from the employer s Accident Cost Statement. However, the medical costs would remain. The costs included $40 for a Function Abilities Form; $500 for a Physician Case File Review; and approximately $100 for photocopies of records requested from two hospitals. [8] At the Appeals Branch, the ARO reviewed the relevant medical reports, and noted that Board Operational Policy Manual (OPM) Document No , Payment of Clinical Assessments/Reports Requested for Adjudication, stated that the Board paid for clinical assessments or reports used solely to adjudicate claims, and that these assessments/ reports were considered benefit expenses. The ARO thus found that the medical reports were requested by the Case Manager, and were both necessary and utilized in adjudicating the claim. Without these medical reports, the Case Manager would not have had the necessary information required to overturn the entitlement decision. The costs therefore were the responsibility of the claim, and were to remain on the employer s Accident Cost Statement. [9] The employer appeals from this decision.

3 Page: 2 Decision No. 1435/14 (iv) Law and policy [10] Since the worker was injured in 2010, the Workplace Safety and Insurance Act, 1997 (the WSIA ) is applicable to this appeal. All statutory references in this decision are to the WSIA, as amended, unless otherwise stated. [11] The Board s authority to establish the Second Injury and Enhancement Fund derives from section 98 of the WSIA, which states: 98. (1) The Board may establish a special reserve fund to meet losses that may arise from a disaster or other circumstance that, in the opinion of the Board, would unfairly burden the employers in any class. [12] Pursuant to section 126 of the WSIA, the Board stated that the following policy packages, Revision #9, would apply to the subject matter of this appeal: Package #92 Payment for Health Care Appointments/Reports; and Package #299 Decision Making/Merits and Justice. [13] I have considered these policies as necessary in deciding the issues in this appeal, including OPM Document No , entitled Payment of Clinical Assessments/Reports Requested for Adjudication. This policy provides in part: Policy The WSIB pays for requested clinical assessments or reports used solely to adjudicate claims. These assessments/reports are considered benefit expenses. Payment in denied claims If a claim is denied the WSIB may pay for the following The initial health care visit, not including treatment or procedures Consultation fees when workers are referred by their attending health professional and the consultation report is used to adjudicate the claim Diagnostic procedures for adjudication purposes X-rays taken at the time of the initial consultation, provided they are used for diagnostic purposes Hospital fees if workers are admitted to hospital at the WSIB s request to investigate a non-work-related condition Consultant s fees for examinations made at the WSIB s request Initial treatment if a worker does not have any other clinical coverage and at the time of treatment presents a WSIB Treatment Memorandum form signed by the employer Clinical investigation and/or emergency treatment authorized by the WSIB Unsolicited clinical reports when the information in the report is used for adjudicative purposes, and/or if a health professional is requested to submit a copy of a clinical report or a report expressing an opinion regarding prognosis. [Emphasis in original]

4 Page: 3 Decision No. 1435/14 (v) Analysis [14] This issue has come before the Tribunal at least once before. In Decision No. 1046/05, a worker was reimbursed for the costs of medical documentation obtained in pursuing entitlement in a claim, although the claim ultimately was denied. The employer then was charged with the costs of those claims, presumably under the authority of OPM Document No In that case, the Vice-Chair issued an interim decision adjourning the appeal pending submissions from the Board, Tribunal Counsel Office, and the parties with respect to the issues before her. The Board s response was as follows, beginning at paragraph 53: (2) The position of the Board The Board responded to the Tribunal s request for clarification about how costs are charged to employers in a denied claim by letter dated July 22, Ms. S. Hewitt, the Board s policy analyst, responded that the $ cost was shown on the hearing loss claim and not the fibromyalgia claim. Because hearing loss claims are not subject to NEER, she states that this cost did not impact on the employer s experience rating. By memo dated September 2, 2005, I asked for further clarification from the Board, as it appeared to be an error for the Board to have allocated these costs to the hearing loss claim. The medical reports address the fibromyalgia claim. In a further letter dated November 7, 2005, Ms. Hewitt states: In a denied claim, claim costs may appear on an employer s cost statement. There is no policy or legislative authority for this Board practice No administrative costs appear on an employer s cost statement. Costs incurred by the Board to adjudicate claims, such as staff time, would be administrative costs. The Board was subsequently sent the submissions of the parties, including those of the Tribunal Counsel Office, and invited to make further submissions. It declined that opportunity. [Emphasis added] [15] The Vice-Chair in that decision then looked at the question of whether costs incurred for medical reporting in a denied claim were benefit costs, or administrative costs, and concluded as follows (paragraph 60 and following): (iv) Whether the payments are benefit costs or administrative costs However, I have also considered on what basis, if any, the costs of the reimbursement can be charged to the employer s account. This involves consideration of whether the costs are benefit costs or administrative costs. The Board denied the fibromyalgia claim. There is no appeal to the Tribunal from this decision at this date, and an application for an extension of time to appeal has been denied. Therefore I have considered the matter on the basis that the reports do not relate to a compensable accident. However, they were useful to the Board for the purposes of its adjudication that there was no compensable accident. I have considered the law, policy and Board practice, as it relates to this issue. (c) Conclusions: How the costs are to be charged I find that the costs of re-imbursement for medical reports, in a denied claim, are not benefit costs. They are administrative costs. They are not properly charged to the employer as benefit costs under either the hearing loss or fibromyalgia claim.

5 Page: 4 Decision No. 1435/14 I find that the Board erred in assigning these costs to the hearing loss claim. They related to the worker s fibromylgia [sic], not to his hearing loss. Further, they are also not benefit costs of the fibromyalgia claim, because benefits are not payable in that claim. Based on current adjudication, there was no compensable accident under that claim. Therefore, in my view, the amounts paid cannot be characterized as statutory benefits under the Act. There is no statutory authority for them to be charged as accident costs to the employer. As noted by [Tribunal Counsel] Ms. Shaw, sections 103(6), 103(8) and 103.1(2) of the pre-1997 Act authorize the Board to adjust premiums by reference to an employer s accident costs. Similarly, Board Policy Document Numbers and speak of experience rating being related to an employer s accident record. I agree with Ms. Shaw s submission that where there is no accident, the legislation and Board policy do not authorize costs pertaining to that denied claim to be allocated to an employer and reflected on its Accident Cost Statement or as benefit costs in its premiums. In my view, this finding is not inconsistent with OPM Document No : Payment of Medical Assessments/Reports Requested for Adjudication, despite the wording in that policy that: The WSIB pays for requested medical assessments or reports used solely to adjudicate claims. These assessment/reports are considered benefit expenses. The body of this policy goes on to address payments in denied claims. Therefore, the question arises whether the policy should be read to suggest that the payments made in denied claims are benefit costs. However I read the reference to benefit costs in the introductory words as intended to apply only to those situations in which there are benefit costs, i.e, to the case of allowed claims. I agree with the submissions of Ms. Shaw that policy cannot create authority in the Board that does not exist in the legislation. The alternative reading would be inconsistent with the legislation. I note also that my reading is consistent with the submissions that the Tribunal received from the Board. The Board informed the Tribunal that there is no law or policy authorizing the Board s practice of showing costs of denied claims on the employer s cost statement. In its response to the Tribunal s request for submissions, the Board did not assert that there is any authority in the Act or Board policy to treat these costs as benefit costs. Therefore I understand that the Board, also, does not interpret these words in OPM Document No as mandating the treatment of amounts paid in denied claims as benefits. If the Board did interpret this policy as authorizing or mandating that practice, it would have referred the Tribunal to it, instead of informing the Tribunal that there was no applicable policy. Therefore, while the Tribunal is required to apply Board policy under section 126 of the WSIA, this appeal does not raise any issue under that section. [Emphasis added] [16] I agree with that analysis, and adopt it in the claim before me. Accordingly, the costs of the medical documentation used to determine that the worker s difficulties were non-compensable in nature are administrative costs, rather than benefit costs. Where there is no accident, the legislation and Board policy do not authorize costs pertaining to that denied claim to be allocated to an employer and reflected on its Accident Cost Statement or as benefit costs in its premiums. These costs therefore are to be removed from the employer s NEER statement and its Accident Cost Statement, and the employer is to be placed in the position it would have been in had those costs not appeared there.

6 Page: 5 Decision No. 1435/14 DISPOSITION [17] The appeal is allowed. These costs are to be removed from the employer s NEER statement and its Accident Cost Statement, as they are administrative costs, rather than benefit costs. The employer is to be placed in the position it would have been in had those costs not appeared there. DATED: August 11, 2014 SIGNED: S. Peckover