WORKERS COMPENSATION APPEAL TRIBUNAL. Personal Information CASE ID Personal Information. Personal Information DECISION #186

Transcription

1 WORKERS COMPENSATION APPEAL TRIBUNAL BETWEEN: Personal Information CASE ID Personal Information AND: APPELLANT Personal Information AND: RESPONDENT WORKERS COMPENSATION BOARD OF PRINCE EDWARD ISLAND RESPONDENT DECISION #186 Appellant Respondent Respondent Worker, as represented by Maureen Peters, Worker Advisor Austin MacDonald, representing the Employer Brian Waddell, Solicitor representing the Workers Compensation Board Place and Date of Hearing October 23, 2013 Quality Inn and Suites Downtown 150 Euston Street Charlottetown, Prince Edward Island Date of Decision January 23, 2014

2 WCAT Decision #186 Page 1 of 11 Facts and Background 1. The Appellant is appealing decision IR#12-61 of the Internal Reconsideration Officer ( IRO ) dated November 28, 2012, which upheld a decision of the Workers Compensation Board ( Board ). [Appellant s Appeal Record - Tab 1] 2. The Appellant ( Worker ) has been employed in the construction industry for almost 20 years. On May 18, 2011, the Appellant filed a Worker s Report, Form 6, with the Board. In this Form 6, the Appellant identified the injured area as being both shoulders and indicated that the condition had developed over a period of time. [Appellant s Appeal Record - Tab 3] 3. On June 8, 2011, the Board received a Physician s Report, Form 8, from the Appellant s family physician, Dr. R. Kelley. Although the Form was dated June 6, 2011, it listed the Appellant s visit date as February 16, The form also indicated that the Appellant was suffering from supraspinatus tear for which he was awaiting surgery. [Appellant s Appeal Record Tab 6] 4. On January 11, 2011, the Board requested copies of Dr. Kelley s relevant clinic notes for the time period of January 2008 to the present. These records were provided to the Board and included a copy of chart notes, MRI reports for both shoulders as well as two reports from orthopedic surgeon, Dr. G. Stewart Campbell, dated December 2, 2010 and May 9, 2011, respectively. [Appellant s Appeal Record Tabs 7 and 8] 5. In the clinical notes that were provided to the Board by Dr. Kelley, he indicated that the Appellant attended before him on or about February 10, 2010, for shoulder pain. The notes stated: Chronic (1-2 years) bilateral shoulder pain, LT worse then RT. Exacerbated by work activities (construction). No specific injury. [Appellant s Appeal Record Tab 8] On or shortly after that date, Dr. Kelley referred the Appellant to orthopedic surgeon, Dr. G. Stewart Campbell.

3 WCAT Decision #186 Page 2 of Dr. Campbell s report of May 9, 2011, which was prepared after the Appellant had obtained MRIs of both shoulders, indicated that: The right side shows a full-thickness tear involving the anterior supraspinatus tendon but co-existing with extensive partial tearing of the posterior supraspinatus tendon and the superior portions of the infraspinatus and subscapularis. [Appellant s Appeal Record- Tab 8] 7. Dr. Campbell scheduled an arthroscopic examination and subacromial decompression followed by arthroscopic versus open rotator cuff repair. [Appellant s Appeal Record Tab 8] 8. On July 6, 2011, the Board s Entitlement Officer informed the Appellant in writing that his claim would not be processed as the Worker s Report, Form 6, was received by the Board beyond the statutory limit of six (6) months in which to file a claim. The Entitlement Officer held that the date of the accident was February 16, 2010, as that was the date that Dr. Kelley initially diagnosed the Appellant with having a repetitive strain injury. [Appellant s Appeal Record Tab 9] 9. Following the foregoing decision, the Appellant s employer submitted a reconsideration request in support of the Appellant s position which was received by the Board on November 17, [Appellant s Appeal Record Tab 13] 10. The Board s IRO reviewed the employer s request and determined that the Appellant s claim had not been properly adjudicated. The IRO dismissed the Request for Reconsideration by letter dated March 14, 2012, and the matter was returned to the Board s Client Services for adjudication based on the diagnosis of a bilator rotator cuff tear rather than a repetitive strain injury. [Appellant s Appeal Record Tab 17]

4 WCAT Decision #186 Page 3 of The Entitlement Officer requested a medical opinion from the Board s medical advisor, Dr. S. O Brien, as to whether or not a bilateral supraspinatus tear could be considered a repetitive strain injury. Dr. O Brien responded by written medical opinion dated April 18, 2012, wherein he stated that a bilateral shoulder supraspinatus tear could be reasonably related to repetitive work elevated duties. [Appellant s Appeal Record Tab 18] 12. The Entitlement Officer advised the Appellant by written decision dated June 15, 2012, that the Appellant s claim would not be accepted for adjudication, notwithstanding that the injury could have been caused by the Appellant s work duties. The date of the accident was held to have occurred on or before February 16, 2010, which was the date of the Appellant s visit to Dr. Kelly. The Entitlement Officer stated that the fact the actual diagnosis was not confirmed until after the MRI was performed on January 14, 2011, was not relevant as Policy POL-91 Repetitive Strain Injuries states that the date of the accident for repetitive strain injury shall be the earlier of the date of loss of earnings, the date first sought medical treatment for symptoms and clear link is documented or the date of diagnosis. In this case, the Board claimed that February 16, 2010, was the date on which the time period began running as it was the date the Appellant first sought treatment and the link or causation was made to his work. Thus the Board claimed that the Appellant was outside the six (6) month time limitation for filing of his claim. [Appellant s Appeal Record Tab 19] 13. On September 21, 2012, the Appellant submitted a Request for Internal Reconsideration. [Appellant s Appeal Record Tab 20] 14. The IRO issued Decision #12-61 on November 28, 2012, denying the Appellant s request to have his claim adjudicated. The IRO ruled that there was no medical evidence in the medical chart notes that the Appellant had a condition that met the definition of repetitive strain injury, and thus the Board s Policy POL-91-Repetitive Strain Injuries did not apply, to determine the date of the accident. In determining the date of the accident, the IRO ruled based on Dr. Kelley s notes of February 16, 2010, was the date when a link or casual connection was made between the Appellant s bilateral shoulder pain and his work. In Dr. Kelley s notes of February 16, 2010, he indicated that the Appellant s

5 WCAT Decision #186 Page 4 of 11 bilateral should pain was exacerbated by his work activities, and as such the IRO concluded that a conversation had taken place with the Appellant concerning his bilateral shoulder pain and his work activity. [Appellant s Appeal Record Tab 1] 15. Section 59(4) of the Workers Compensation Act, R.S.P.E.I. 1988, Cap. W-7.1 (the Act ), states that compensation is not payable unless the claim for compensation is made within six (6) months from the happening of the accident and the Worker s Report Form 6 was not received until May 19, 2011, the Board claimed that the Appellant was beyond the six (6) month time frame limitation in which to file a claim. [Appellant s Appeal Record Tab 1] 16. The Appellant appealed the decision of the IRO to this Tribunal by way of Notice of Appeal dated December 27, [Appellant s Appeal Record Tab 2] Issue Was the decision to deny the Appellant s claim based on the six (6) month timeframe limitation appropriate? Decision/Analysis 17. It should be noted that in addition to the Appellant and the Respondent Board filing Factums, the Employer Advisor also filed a Factum and Authorities, and the President of the Employer attended the hearing. 18. Section 59(4) of the Act specifies the time limitation for the filing of a claim: 59 (4) Compensation is not payable unless the claim for compensation is made within six months from the happening of the accident or, in case of death, within six months from the time of death. 19. In addition, the Board Policy POL-90- Timeframe Limitations for Claims, Filing and Invoicing states in paragraph 1: 1. A worker must submit a Worker s Report (Form 6) within six (6) months of the date of the work-related accident. 20. In this case the date of the happening of the accident must be determined.

6 WCAT Decision #186 Page 5 of Accident is defined in the Act as follows: (a) accident means, subject to subsection (1.1) a chance event occasioned by a physical or natural cause, and includes (i) a wilful and intentional act that is not the act of the worker, (ii) any (A) event arising out of, and in the course of, employment, or (B) thing that is done and the doing of which arises out of, and in the course of, employment, and (iii) an occupational disease, and as a result of which a worker is injured; 22. It is the Appellant s position and the Respondent Employer s position that the IRO erred in selecting February 16, 2010, as the date of the accident without applying Board Policy POL-91. The Appellant further argued that if injuries do not arise out of a specific accident or are not considered an occupational disease, then they must fall under the category of repetitive strain injuries. As such, the Appellant claims that Policy POL-91- Repetitive Strain Injuries is applicable to this case. Paragraph 6 of Policy POL-91 states: 6. The date of accident for repetitive strain injuries will be the earlier of: - the date a loss of earnings has occurred as a result of a repetitive strain injury; - the date the worker sought medical treatment for symptoms of a repetitive strain injury and a clear link is documented between symptoms of a repetitive strain injury and repetitive work tasks; or - the date of diagnosis of an injury which was determined to be caused by repetitive work tasks. 23. As the Appellant had not suffered a loss of earnings prior to the filing of the claim, the Appellant argued that the determination of the date of the accident must be made considering either the second /or third criteria as outlined in paragraph 6 of POL-91, i.e. the date the worker sought medical treatment for symptoms of a repetitive strain injury and a clear link is documented between symptoms of a repetitive strain injury and repetitive work tasks or the date of diagnosis of an injury which is determined to be caused by repetitive work tasks.

7 WCAT Decision #186 Page 6 of The Appellant argued that there was never an assessment of the Appellant s occupational risk factors by an occupational therapist, and that without such an assessment there was insufficient evidence on the file to make the required link between the Appellant s symptoms and his repetitive work tasks. 25. The Appellant relied upon Dr. Kelley s chart notes of February 16, 2010, where he wrote that the Appellant s pain was exacerbated by work activities and that there was no specific injury. Thus the Appellant argued that those notes must mean that there was a repetitive work task which caused the injury to the Appellant s shoulders, although an assessment of the Appellant s risk factors should have been performed. 26. Finally, the Appellant argued that the date on which he was diagnosed with an injury which was determined to be caused a repetitive work tasks was May 9, 2011, which was the date Dr. Campbell actually diagnosed the Appellant with bilateral rotator cuff tear. 27. The Respondent Board argued that the happening of the accident and the date of the work related accident was on or before February 16, 2010, and thus the Appellant was outside the six (6) month limitation period when he filed his Form 6 on May 18, The Board further argued that the Appellant s injury could not be considered as a repetitive strain injury; rather the Appellant s injury was a thing that is done in the doing of which arises out of, and in the course of employment and as a result of which the Appellant was injured. The Board claimed that, in addition to a specific injury and repetitive strain injury, there is a third category of injury which is gradual onset injury that is not necessarily a repetitive strain injury. 28. In this case, the Board argued that the Appellant s injury was a gradual onset injury, as there was no evidence on file that the Appellant had a condition which met the definition of repetitive strain injury as set forth in Board Policy POL-91, and in addition, there was no evidence on file that there was a specific event that caused the injury. 29. The Board claimed that the Appellant s family physician made a clear finding of a causal connection or link between the Appellant s bilateral shoulder pain and his work activities on February 16, On the basis of Dr. Kelley s notes, the Board argued that the

8 WCAT Decision #186 Page 7 of 11 Appellant s claim could have been accepted for compensation, as Dr. Kelley s chart notes of February 16, 2010, states that the pain is exacerbated by work activities. [Appellant s Appeal Record Tab 8] 30. The Board argued that the Appellant s accident is comprised of a series of actions or things that are done and the doing of which all occurred on or before February 16, Section 56 (17) of the Act states that this Tribunal is bound by both the Act and its Policies. Therefore, this Tribunal has no authority to extend the six (6) month limitation period. 32. It is clear that the six (6) month period for filing a claim is expressed in mandatory terms in the Act, and there are no provisions in the Act or the Board Policies for extending that time period. 33. The Prince Edward Island Court of Appeal in Dowling v. Workers Compensation Board [P.E.I.] 1994 CanLII 8689 stated that the Act is to be interpreted liberally to so as to provide compensation for work related injuries to as many as reasonably can be seemed to fall within its purview. However, the Prince Edward Island Court of Appeal in Doyle v. Prince Edward Island Workers Compensation Board and Another 2008 PESCAD 11 (CanLII) also stated: 25 if it is a procedural matter, the court has jurisdiction to consider whether the time should be extended. If it is a substantive law issue the court has no jurisdiction. I find that to be the case here. The Workers Compensation Act has made provision for the time period which the court cannot interfere. We have no jurisdiction to determine whether the time should be extended. Accordingly the Applicant cannot be granted an extension of time in which a leave to appeal. As a result the application must fail. 34. In Doyle, the issue concerned an extension of time in which the leave to appeal must be filed. However as stated above, it is clear that Section 59(4) of the Act is mandatory in its wording and provides no authority for this Tribunal to extend the time for filing of the Appellant s claim.

9 WCAT Decision #186 Page 8 of Therefore, if one accepts the Board s position that the time for filing of the Worker s Report Form 6 began on February 16, 2010, then the Appellant was clearly out of time, and this Tribunal has no right to extend the time for filing a Form In order for the Appellant s appeal to succeed, this Tribunal must accept his argument that his injury is a form of repetitive strain injury such that Policy POL-91 would apply. In addition, this Tribunal would have to accept that the date of accident was not February 16, 2010, but rather the date of final diagnosis by Dr. Campbell being May 9, 2011, was the actual date of accident. 37. However the May 9, 2011 report of Dr. Campbell does not make any reference to any reference to the injury arising as a result of work place duties, whether such duties were repetitive in nature or not. Therefore the May 9, 2011 report cannot be considered as either: - the date the worker sought medical treatment for symptoms of a repetitive strain injury and a clear link is documented between symptoms of a repetitive strain injury and repetitive work tasks; or - the date of diagnosis of an injury which was determined to be caused by repetitive work tasks. 38. Dr. Campbell s initial report of December 2, 2010 referred to the Appellant performing a lot of overhead work and several years of gradually increasing bilateral shoulder pain, which was similar in wording to Dr. Kelley s chart notes of February 16, However, in both cases, neither doctor made reference to repetitive work duties. 39. In addition, the Worker s Report, Form 6 claimed that the Appellant s injury developed over a period of time. The additional information filed by the Appellant with his Form 6 referred to having sore shoulders over a number of years, but there was no indication in that form that the injury arose as a result of a repetitive strain from performing specific work duties. 40. Dr. Kelley in the Physician s Report dated June 6, 2011, does refer to repetitive strain/overhead manual work and provides a diagnosis of supraspinatus tear as demonstrated on the MRI. However he also refers to the February 16, 2010, date of

10 WCAT Decision #186 Page 9 of 11 examination. Thus if such a diagnosis was made on February 16, 2010, the Appellant is definitely outside the time limit for filing a claim with the Board. However it appears from the records that such a diagnosis was not made until May 9, 2011[Appellant s Appeal Record Tabs 6 and 8] 41. However, in this case, whether the diagnosis of supraspinatus tear was made in February 2010 or in May 2011 is irrelevant for determination of the date of accident for a repetitive strain injury. Para 6 of POL-91 Repetitive Strain Injuries states: 6. The date of accident for repetitive strain injuries will be the earlier of: - the date a loss of earnings has occurred as a result of a repetitive strain injury; - the date the worker sought medical treatment for symptoms of a repetitive strain injury and a clear link is documented between symptoms of a repetitive strain injury and repetitive work tasks; or - the date of diagnosis of an injury which was determined to be caused by repetitive work tasks. 42. In this case, even if we accept the Appellant s argument that the symptoms of the Appellant were caused by repetitive work tasks, February 16, 2010 would have to be deemed to be the date of the accident as that was the earliest date that the Appellant sought treatment for the symptoms and a link was documented between the symptoms and work. 43. In this case, this Tribunal rules that there was insufficient evidence to prove that the Appellant performed repetitive work tasks. However, while Policy POL-91 does not apply in this situation, the Board must consider whether causation was proven or a direct link was created between the Appellant s injury and his work related activities. 44. It is this Tribunal s position that Dr. Kelley s chart notes of February 16, 2010, provide the link or causation between the Appellant s work and his injury wherein he stated that the Appellant s pain was exacerbated by his work activities.

11 WCAT Decision #186 Page 10 of The fact that a final diagnosis was not made with respect to the Appellant s symptoms until much later does not extend the time for filing of a claim. The Appellant was aware on February 16, 2010, that he had an injury which was exacerbated by his work activities. He should have made a claim to the Board within six (6) months from that date. Delaying the filing of such a claim until an actual diagnosis was made in May 2011 unfortunately placed the Appellant outside the six (6) month time limit which is provided by the Act. 46. Section 59(4) of the Act clearly states that the claim must be made within six (6) months from the happening of the accident. In this case, the happening of the accident was when any thing that is done and the doing of which arises out of and in the course of employment and as a result if a worker is injured occured. In this case, the evidence before this Tribunal shows that an accident, as defined in the Act, arose on or before February 16, 2010, and thus the time period for filing the Worker s Report, Form 6 started on that date. 47. Therefore, this Tribunal rules that the Appellant did not file his Worker s Report, Form 6, within six (6) months of the date of the accident as required by Section 59(4) of the Act. Furthermore, this Tribunal rules that it has no jurisdiction or authority to extend the time period for filing of such a claim. 48. Therefore, the Appellant s appeal is denied. 49. This Tribunal would like to thank the parties including the Employer for their oral and written submissions.

12 WCAT Decision #186 Page 11 of 11 Dated this _23rd day of January, Wendy E. Reid, Q.C., Chair Workers Compensation Appeal Tribunal Concurred: Donald R. Turner, Employer Representative Gary L. Paynter, Worker Representative