WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1679/11

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1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1679/11 BEFORE: G. Dee : Vice-Chair M. Christie: Member representative of Employers M. Ferarri : Member representative of Workers HEARING: August 8, 2011 at Hamilton Oral DATE OF DECISION: December 20, 2011 NEUTRAL CITATION: 2011 ONWSIAT 2920 DECISION(S) UNDER APPEAL: WSIB Appeals Resolution Officer (ARO) decision dated August 7, 2009 APPEARANCES: For the worker: For the employer: Interpreter: M. Grimaldi, Office of the Worker Adviser Not participating N/A Workplace Safety and Insurance Appeals Tribunal Tribunal d appel de la sécurité professionnelle et de l assurance contre les accidents du travail 505 University Avenue 7 th Floor 505, avenue University, 7 e étage Toronto ON M5G 2P2 Toronto ON M5G 2P2

2 Decision No. 1679/11 REASONS (i) Issues [1] The worker seeks an earlier arrears date for an increase she received to the pension award she receives for a right hand impairment. The WSIB has set the arrears date for the increase at June 26, [2] The worker also seeks a subsection 147(4) pension supplement. She seeks this entitlement from the pension arrears date that is chosen. (ii) Background [3] The worker was injured in [4] The worker eventually received a 5% pension award for a right hand injury. This award was subsequently increased to 10% as a result of a redetermination that took place on July 20, [5] The arrears date for the pension increase was set by the Appeals Resolution Officer as June 26, [6] The worker s representative asserts that the arrears date should be set at an earlier date as the pension reassessment was granted due to the presence of triggering in the worker s fingers and the medical reports indicate that this triggering existed prior to June 26, The decision to grant the reassessment was based upon the opinion of WSIB doctor, Dr. Karr in Memo 88 of the WSIB file. [7] The worker s representative suggests two possible dates as the arrears date bearing in mind WSIB policy which he submits is to establish arrears dates for pension increases three months prior to the first medical evidence that documents the deterioration. [8] The worker s preferred date as an arrears date is three months prior to June 14, 2002, which is the date of a medical report from the worker s family physician, Dr. Yu, that first noted that the worker had now developed trigger right long finger. [9] However, recognizing that the preferred arrears date would back date the pension increase prior to the earlier pension exam of September 13, 2002, the worker s representative also suggested an alternative arrears date three months prior to the May 3, 2003 report of Dr. Bager and the May 5, 2003 report of Dr. Aubin. [10] The Panel does not accept either of the dates proposed by the worker but instead accepts May 3, 2003 as the appropriate arrears date for the increase in the worker s pension award for her right hand injury for reasons which will be outlined below. The effective date of the pension increase will therefore be May 3, [11] The worker s request for a subsection 147(4) supplement as of the time of the pension increase is based upon the submission that the worker should be considered unemployable as of that date at least partly as a result of the worker s workplace injury.

3 Page: 2 Decision No. 1679/11 [12] The worker s representative notes in particular the findings of Dr. Karr who conducted the pension examination that the worker was only capable of one handed activity at that time. [13] This limitation in combination with the worker s age, education, restricted work experience and language difficulties would, in the representative s submission render the worker unemployable. And, as the worker was unemployable at least in part due to her compensable injury, the worker it is submitted would be entitled to a subsection 147(4) supplement. [14] The Panel notes that the worker does not need to demonstrate that she was unemployable in order to obtain a subsection 147(4) supplement. It only needs to be accepted that the worker could not approximate her pre-injury earnings as per the test established in subsection 147(2) of the pre-1997 Worker s Compensation Act. [15] The existence of a deterioration in the worker s impairment rating is essential for the worker s argument in support of a subsection 147(4) supplement because the worker has previously requested and been denied a subsection 147(4) supplement and that denial was appealed unsuccessfully to the Appeals Tribunal in Decision No. 324/05. An application for reconsideration of that decision by the worker was also unsuccessful. [16] Amongst the findings in Decision 324/05 were the following: [30] In order to grant a section 147(4) supplementary benefit Board policy demands that a worker s wage loss be in part related to the compensable injury. Mr. Cooke submitted that the low threshold had been met in this case. With respect to the worker s request for supplementary benefits, we find that the evidence supports that the worker had retired from the work force in 1983 for reasons entirely unrelated to her compensable injury. [31] Notwithstanding the worker s testimony at the hearing that she retired primarily due to her wrist disability, it is clear from the documentation on record that the worker herself stated that her psychological problems after the birth of her second child had prevented her from returning to work. In his November 1991 report, Dr. Ansari recorded that the worker did not return to work because she was having children. [32] In addition, we took note that the worker testified that she returned to her regular employment sometime after her 1974 accident until she laid off for her maternity leave in It is difficult to accept that the worker s wage loss post-1983 was related to her wrist injury, even in light of her 5% retroactive pension award, when there is no evidence from 1974 to 1983 that she suffered an actual wage loss while performing her preaccident job. Indeed, there is no contemporary complaint or medical documentation that suggested that the worker could not perform her regular work. Thus, in our view the worker s wage loss in 1983 resulted solely from non-compensable reasons; no part of the wage loss could be attributed to the worker s permanent disability.. [38] In this case, we have determined the worker left her employment for noncompensable reasons and years later requested a section 147(4) supplementary benefit. According to Operational Policy Manual (OPM) Document No , the Board does not pay such benefits if the decision-maker cannot determine if a worker would benefit from an LMR plan and be entitled to a section 147(2) supplement because the worker refuses to participate or is uncooperative in an LMR plan or would benefit from an LMR plan but among other things has removed herself from the workforce. At the time of her departure from the workforce the worker was in her early thirties and would have likely benefited from LMR services had they been required upon a review of her

4 Page: 3 Decision No. 1679/11 file. More importantly, the worker testified that she has not looked for any work since her layoff in In the end, we do not extend entitlement to supplementary benefits to a worker who removed herself from the workforce for reasons not related to her compensable condition and who testified that she has not made any attempt to return to work. [17] The Panel in this appeal cannot alter the findings made by the earlier Panel in Decision No. 324/05. However, the finding that the worker s condition had deteriorated from the condition as it was determined to be in Decision 324/05 provides for the possibility that the Panel in this appeal could reach a different conclusion than the earlier Panel regarding whether the worker s workplace injury made a sufficient contribution to her wage loss after the accepted date of deterioration and that a subsection 147(4) supplement might be paid as of that time. [18] The WSIB denied the worker s request for a subsection 147(4) supplement from the accepted date of deterioration of the worker s pension award. The worker s appeal to the ARO level within the WSIB was denied in a decision dated August 7, [19] The worker now appeals to the Appeals Tribunal. (iii) The Law [20] As the worker s injury occurred in 1974, the worker s claim is governed by the provisions of the pre-1985 Workers Compensation Act. [21] The Act was amended in 1989 to add the supplement provisions that are now found in section 147 of the pre-1997 Worker s Compensation Act which read as follows: 147(1) In this section, "amount awarded for permanent partial disability" means the amount awarded for permanent partial disability under, (a) subsection 43(1) of the pre-1985 Act, with respect to a pre-1985 injury, and (b) subsection 45(1) of the pre-1989 Act, with respect to a pre-1989 injury; "worker" means a worker who is permanently disabled as a result of a pre-1985 injury or a pre-1989 injury. (2) Subject to subsections (9) and (10), the Board shall give a supplement to a worker who, in the opinion of the Board, is likely to benefit from a vocational rehabilitation program which could help to increase the worker's earning capacity to such an extent that the sum of the worker's earning capacity after vocational rehabilitation and the amount awarded for permanent partial disability approximates the worker's average or net average earnings, as the case may be, before the worker's injury. (3) A supplement under subsection (2) is payable for the period during which the worker participates in a Board-approved vocational rehabilitation program. (4) Subject to subsections (8), (9) and (10), the Board shall give a supplement to a worker, (a) who, in the opinion of the Board, is not likely to benefit from a vocational rehabilitation program in the manner described in subsection (2); or (b) whose earning capacity after a vocational rehabilitation program is not increased to the extent described in subsection (2) in the opinion of the Board.

5 Page: 4 Decision No. 1679/11 (5) A supplement under subsection (4) for a worker described in clause (4)(a) becomes payable as of the later of, (a) the 26th day of July, 1989; or (b) the day the Board determines the worker has a permanent disability. (6) A supplement under subsection (4) for a worker described in clause (4)(b) becomes payable as of the latest of, (a) the 26th day of July, 1989; (b) the day the Board determines the worker has a permanent disability; or (c) the day the worker ceases to participate in a vocational rehabilitation program. (7) A supplement under subsection (4) shall continue until the worker becomes eligible for old age security benefits. (8) The amount of a supplement under subsection (4) shall not exceed the amount of a full monthly pension for old age security under section 3 of the Old Age Security Act (Canada), including amendments thereto. (9) The amount of a supplement under this section for a worker with a pre-1985 injury shall be calculated so that the sum of the supplement, the amount awarded for permanent partial disability and 75 per cent of the worker's average earnings, if any, after the injury equals 75 per cent of the worker's pre-injury average earnings. (10) The amount of a supplement under this section for a worker with a pre-1989 injury shall be calculated so that the sum of the supplement, the amount awarded for permanent partial disability and 90 per cent of the worker's net average earnings, if any, after the injury equals 90 per cent of the worker's pre-injury net average earnings. (11) In calculating the amount of a supplement under this section, the Board shall have regard to the effect of inflation on the worker's pre-injury earning rate and to any payments the worker receives under the Canada Pension Plan or the Quebec Pension Plan with respect to a disability arising from the injury. (12) A supplement under this section shall be a monthly or other periodic payment. (13) The Board shall review a supplement given under subsection (4) in the twenty-fourth month following the award and in the sixtieth month following the award and recalculate the amount of the supplement in accordance with subsections (9) and (10). [22] The Appeals Tribunal s jurisdiction to determine this appeal is provided for by the Workplace Safety and Insurance Act (the WSIA). As a result of the provisions of section 126 of the WSIA, the Appeals Tribunal must apply WSIB policy when determining appeals from WSIB decisions in accordance with that section. [23] WSIB policy governing the payment of subsection 147(4) pension supplements is found in WSIB Operational Policy Manual (OPM) Document No (03-Mar-2008). The relevant portions of that policy to this appeal read as follows: In many cases, both work-related and non-work-related impairments exist in a claim. To consider a worker for a s. 147 supplement, the decision maker must ensure that the worker s wage loss is at least partially related to the work injury. The WSIB pays s.147(4) supplements to workers

6 Page: 5 Decision No. 1679/11 who have a wage loss but are not eligible for a s.147(2) supplement, or whose earning capacity, after participating in an LMR plan and receiving a supplement under s.147(2), did not increase to the extent that the worker's total potential earning capacity approximated the escalated pre-injury earnings. The WSIB does not pay s.147(4) supplements if the decision-maker cannot determine if a worker would benefit from an LMR plan and be entitled to a section 147(2) supplement because the worker refuses to participate in an LMR plan is uncooperative in an LMR plan, or would benefit from an LMR plan but o has left the country o is incarcerated, or o has removed him/herself from the workforce. [24] The abbreviation LMR within the WSIB policy stands for Labour Market Re-entry. An LMR plan is essentially a vocational rehabilitation plan. [25] OPM Document No further provides that: To approximate" means "to come reasonably close to." No mathematical standard is applied to determine if a worker approximates the escalated pre-injury earnings. The decision-maker must be satisfied that the total potential earning capacity after completion of the LMR plan approximates the worker's pre-injury earnings. [26] WSIB policy on the determination of pension arrears dates is found in OPM Document No and states as follows: If a permanent disability award is increased after reassessment, the increase dates from: * three months prior to the date of the request, or * an earlier date if supported by clinical evidence. [27] In workers compensation proceedings the standard of proof required is proof on the balance of probabilities. See for example Decisions No. 1386/03; 1915/06; 226/07; and 583/07. [28] In dealing with matters of proof the Tribunal must also apply the benefit of the doubt principle. The provisions found in subsection 124 (2) of the WSIA that provides as follows: (2) If, in connection with a claim for benefits under the insurance plan, it is not practicable to decide an issue because the evidence for or against it is approximately equal in weight, the issue shall be resolved in favour of the person claiming benefits. [29] While there was not a benefit of the doubt provision in the pre-1985 Act, Tribunal case law has held that it is correct to consider this principle in pre-1985 cases as it was in Board policy prior to this dated. See Decision No. 2I. [30] The Tribunal must also decide matters on the merits and justice of a case under the provisions of subsection 124(1) of the WSIA.

7 Page: 6 Decision No. 1679/11 [31] The merits and justice and benefit of the doubt provisions of the WSIA are also discussed in the WSIB s OPM Documents No and (iv) Analysis 1. Pension arrears [32] The Panel accepts an arrears date of May 3, 2003 for the increase in the worker s pension award. This is the date of the medical report prepared by Dr. Bagger that documented the locking of the worker s right middle finger and right index finger. [33] The worker s preferred date of March 14, 2002 is not accepted for two reasons. [34] First, allowing an arrears date that would be prior to the pension determination of September 13, 2002 would result in an effective overturning of the result of that September 13, 2002 decision despite the fact that no appeal of that decision was brought within the allowed timeframes. There is also no final decision (i.e. an ARO level decision or equivalent) in existence that would allow the Tribunal the jurisdiction to hear an appeal of the decision. [35] Second, the evidence of triggering in the worker s finger as of June 14, 2002, was not substantial. There is just a very brief report of that date from the family physician. This report is without detailed findings. Furthermore, the pension examination of September 13, 2002 was undertaken in full awareness of the June 14, 2002 report from the family doctor which is specifically mentioned by the pension assessor. The assessor conducted a detailed examination of the worker s hand that would appear to have not found any significant evidence of triggering at that time. The Panel accepts that signs of finger triggering in the right long finger may have started by September 13, 2002 but that the triggering was not well established at that time. [36] However, by the time of the reports of Drs. Bager and Aubin are received in May 2003, the triggering is clearly established and at that time affected not only the long finger but also the index finger as well. (In the 2007 assessment report of Dr. Karr that forms the basis for the 10% award, triggering was complained of in three fingers including the worker s index finger.) [37] On balance the Panel accepts that Dr. Bager s report of May 3, 2003 represents a fair date to establish as the date when clinical evidence supports that the worker s compensable condition had deteriorated. [38] The representative s request to backdate the pension increase to three month s prior to this date is not supported by WSIB policy. That policy which is quoted from above allows for the backdating of an increased pension from three months prior to the request for an increase or an earlier date if supported by clinical evidence. The policy does not provide for backdating the pension increase to three months prior to the existence of the clinical evidence. 2. The Subsection 147(4) supplement [39] A previous request for a subsection 147(4) supplement was dealt with by the Tribunal in Decision No. 324/05. That decision concluded as follows about the worker s wage loss:

8 Page: 7 Decision No. 1679/11 [40] And also: in our view the worker s wage loss in 1983 resulted solely from non-compensable reasons; no part of the wage loss could be attributed to the worker s permanent disability. In this case, we have determined the worker left her employment for non-compensable reasons and years later requested a section 147(4) supplementary benefit. According to Operational Policy manual (OPM) Document No , the Board does not pay such benefits if the decision-maker cannot determine if a worker would benefit from an LMR plan and be entitled to a section 147(2) supplement because the worker refuses to participate or is uncooperative in an LMR plan or would benefit from an LMR plan but among other things has removed herself from the workforce At the time of her departure from the workforce the worker was in her early thirties and would have likely benefits from LMR services had they been required upon a review of her file. More importantly, the worker testified that she has not looked for any work since her layoff in In the end, we do not extend entitlement to supplementary benefits to a worker who remove herself from the workforce for reasons not related to her compensable condition and who testified that she has not made any attempt to return to work. [41] The factual findings contained within these statements are binding upon this Panel. [42] That decision however specifically contemplates the possibility of pension supplementary entitlement being considered once again from the date of a reassessed pension award. Paragraphs 34 and 35 of that decision read as follows: [34] In Decision No. 1536/02 the worker went off work in The Vice-Chair accepted that the worker s decision to leave the workforce was entirely attributable to the worker s decision to take an early retirement and not even partly attributable to his work injury, as required by Board policy. However as of 2000, the Vice-Chair found that the worker s disability became so severe that the worker s wage loss was at least partially related to his work injury and thus allowed a supplementary benefit from October 2000 after finding the following: I also note that as of October 27, 2000, the worker was fifty-eight years old. Given his age and his chronic respiratory problems, as of that date, I find that the worker would be unlikely to benefit from a vocational rehabilitation program to the extent contemplated by section 147(2) of the Act. [35] Thus, Decision No. 1536/02 supports our interpretation with regard to the impact that leaving the workforce for non-compensable reasons has on a worker s entitlement to supplementary benefits. However, it also supports that entitlement should be extended when a worker s disability becomes severe enough that it could become a reason, at least partially, for the worker s wage loss. In the case before us, there is medical evidence that supports the worker s disability but does nothing to suggest as noted above that the worker was incapable of performing her old job until Dr. Aubin s letter of May 5, However, Dr. Aubin s letter has not as of the date of the hearing prompted the Board to reassess the worker s pension. If the worker s pension were increased above 5% as a result of the Board s reassessment it is at that time the worker could request the Board to revisit this issue from the effective date of the reassessed award. [43] The worker s circumstances have changed due to the deterioration of her condition which the Panel has accepted occurred on May 3, 2003 and which the WSIB has previously accepted occurred but later on June 26, (This Panel is relying on the report of Dr. Bager dated May 3, 2003 as the date of deterioration instead of the report of Dr. Aubin dated May 5, 2003).

9 Page: 8 Decision No. 1679/11 [44] As contemplated by the earlier Tribunal decision in this claim, this change of circumstances allowed the WSIB and not the Tribunal to reconsider the question of the worker s eligibility for a section 147(4) award. [45] The question to be addressed is whether the worker s change in circumstances are significant enough to warrant a change in the result concerning her entitlement to a subsection 147(4) award. [46] In reaching its decision in this claim, the Panel in finding that the worker s departure from employment in 1983 was unrelated to her compensable injury noted that the worker had performed her regular work from 1974 to See paragraph 32 of Decision No. 324/05. [47] In this appeal the worker s representative submits that due to the deterioration of her work-related impairment that she would no longer be able to work in her pre-injury employment as of May 2003 and that her wage loss from that time is at least partially related to her compensable accident. [48] The Panel does not accept this submission. [49] The worker left the workplace in 1983 for reasons unrelated to her work-related condition at a time when her compensable condition did not prohibit her from performing her pre-injury work. [50] Soon after leaving the workplace in 1983 the worker testified that she qualified for both Canada Pension Plan disability benefits and long term disability benefits from a plan available through the accident employer. The worker still received these disability benefits at the time of the appeal hearing in this matter. [51] At no point since leaving the accident employer in 1983 has the worker looked for alternative employment or attempted to return to work. She did not attempt a return to work prior to the deterioration of her condition or subsequent to the deterioration of her condition. [52] The Panel concludes that at the time of the deterioration of her condition that the worker was no longer an active participant in the labour market for reasons that were unrelated to her work-related injury. The fact that the worker s compensable condition has deteriorated to a point where that impairment by itself might prohibit her from performing her pre-injury employment would appear to be of no significance whatsoever in the worker s continuing non-participation in the labour market. There is no evidence at all that the worker, had her compensable condition not deteriorated would have contemplated a return to the active workforce. [53] Based on these findings the Panel concludes that the worker s wage loss as of 2003 is not even partially related to her workplace injury of 1974 and that pursuant to the provisions of WSIB policy that are quoted above, the worker is therefore not entitled to a subsection 147(4) supplement.

10 Page: 9 Decision No. 1679/11 [54] The worker s representative made submissions on the issue of the worker s entitlement to a subsection 147(4) supplement based upon previous WSIAT Decisions No. 1536/02 and 1030/08 where the deterioration of compensable conditions were considered in decisions dealing with entitlement to supplementary benefits. [55] In reaching the decision that it has, the Panel has considered these prior decisions of the Tribunal. [56] In Decision No. 1536/02 the worker had a compensable impairment but was laid off for employment related reasons. The Panel that initially denied a supplement (in Decision No. 137/96) found that the worker had voluntarily left the workforce at a time when he would have been able to remain at work. That same Panel also noted that it is our finding that the worker could have benefitted from assistance in finding alternate employment. In the decision that eventually allowed pension supplementary benefits in addition to noting the deterioration of the worker s condition, the Vice Chair also noted that the worker had attempted to return to work since his layoff by the accident employer. [57] The facts of this case are therefore different from the case that this Panel has to deal with. The worker in Decision 1536/02 was laid off from his employment and initially chose to retire when he could have continued to work. However, the worker eventually attempted to return to work prior to seeking subsection 147(4) benefits again. In the present appeal the worker appears to have been disabled from working for non-compensable reasons from the time of the initial layoff and has never attempted a return to work since leaving her employment. [58] In Decision No. 1030/08 the Panel found that the worker left work due to his compensable condition and that his wage loss was therefore at least partially related to his work injury. The decision also turns on a finding of whether or not the worker might have been able to approximate his pre-injury earnings had he co-operated in vocational rehabilitation services. There was also an issue of whether the worker s one-time failure to co-operate in vocational rehabilitation services would disqualify the worker from supplementary benefits forever. While that decision does deal with the worker s entitlement to a pension supplement following the deterioration of the worker s pension level, in most other respects the decision deals with factual circumstances that are much different than the present appeal. [59] Neither of the decisions that are relied upon by the worker s representative are inconsistent with the Panel s determination in this matter. [60] The worker in the present appeal left her employment with the accident employer in 1984 for reasons unrelated to her compensable injury. The worker has been in receipt of disability benefits from Canada Pension Plan and from a private disability insurer on a consistent basis since leaving her employment and the worker has at no point sought to return to the workforce. [61] The deterioration of the worker s compensable condition to the point where her compensable condition might on its own prevent her from participating in her pre-accident duties is of no meaningful significance to her present unemployed status.

11 Page: 10 Decision No. 1679/11 DISPOSITION [62] The worker s appeal is allowed in part. [63] The worker s pension increase is to start from May 3, 2003 instead of June 26, [64] The worker is not entitled to subsection 147(4) pension supplementary benefits. DATED: December 20, 2011 SIGNED: G. Dee, M. Christie, M. Ferrari