Workplace Health, Safety & Compensation Review Division

Transcription

1 Workplace Health, Safety & Compensation Review Division WHSCRD Case No: WHSCC Claim No: Decision Number: Christopher Pike Review Commissioner The Review Proceedings 1. The hearing of the review application was held at the Review Division office in Mount Pearl, NL on August 24, The worker represented herself at the hearing. 2. The Commission was represented by Kathy Fry, Hearings Officer. The accident employer did not attend or participate in the hearing process. Introduction 3. On December 22, 2005 the worker injured her right shoulder while employed as a housekeeper. A soft tissue injury and tendonitis was diagnosed. Time loss from work commenced on January 24, The claim was accepted for wage loss benefits. Treatments included surgery, physiotherapy and clinic-based occupational therapy. The worker also underwent a pain management assessment and a targeted functional assessment. 4. On June 17, 2009 the worker was assessed for a permanent functional impairment award. Addendums were made to the permanent functional impairment assessment on September 8 and 29, The worker s permanent functional impairment was subsequently rated to be 8%. 5. On July 18, 2009 the Commission s medical consultant then reviewed the file to establish if a proportionment factor should be applied. 6. On July 22, 2009 the case manager informed the worker of her entitlement to partial wage loss benefits, less a 50% proportionment factor, in relation to her pre-existing, noncompensable conditions of fibromyalgia, back pain and carpal tunnel syndrome. 7. The worker filed a request for internal review of this decision on August 21, On September 1, 2009 the worker nominated a representative who submitted supplementary correspondence in relation to the worker s August 21, 2009 appeal request. 1

2 9. On October 1, 2009 the internal review division upheld the July 22, 2009 decision regarding the proportionment of the worker s wage loss benefits. The worker did not seek further review of this decision by the Review Division. 10. On January 14, 2014 the worker nominated a new representative. On July 2, 2014 the worker s new representative submitted correspondence requesting the Commission review and reopen the matter of the application of proportionment as established in the July 22, 2009 Case Manager s decision and upheld in the final decision of October 1, On July 24, 2014 the case manager found that the July 2, 2014 submission did not present new information to warrant a reopening of the originating decision of July 22, 2009 to proportion the worker s wage loss benefits. 12. The worker s representative filed an appeal of this decision in a letter dated September 3, On October 8, 2014 the internal review division decision upheld the Case Manager s July 24, 2014 decision. It is this decision the worker is appealing before the Review Division. Issue 14. The worker is requesting a review of an internal review decision of the Commission dated October 8, 2014 and is asking that I find the Commission erred in determining that the information provided in her representative s July 2, 2014 correspondence is not of the nature or quality to reopen the July 22, 2009 decision to apply a 50% proportioning factor to her wage loss benefits. Outcome 15. The October 8, 2014 internal review decision is upheld because the worker has not submitted any evidence to support her request to reopen her claim. The Commission was correct to conclude that the reopening application did not meet the requirements of Section 64 of the Act. With respect, the review is denied. Legislation and Policy 16. The jurisdiction of the Review Commissioner is outlined in the Workplace Health, Safety and Compensation Act (the Act), Sections 26(1) and (2), 26.1 and 28. Also considered is Section 19(4) of the Act. 17. Section 64 of the Act is also relevant to this appeal. It reads: 64. The commission may reopen, rehear, predetermine, review or readjust a claim, decision or adjustment, where 2

3 (a) an injury has proven more serious or less serious than it was considered to be; (b) new evidence relating to the claim, decision or adjustment has been presented to it; (c) a change has occurred in the condition of an injured worker or in the number, circumstances or condition of dependents or otherwise; or (d) a worker is not following medically prescribed treatment. Relevant Submissions and Positions 18. The worker s argument was contained in the written presentation submitted by her representative. The correspondence submitted by her representative dated July 2, 2014 asking for a review of the October 1, 2009 decision lays out the following as demonstrating a denial of natural justice as the basis of this appeal: I am asking this issue be reviewed as an Exceptional Circumstance and with a view to the decision in Batstone v WHSCC, where Justice Osborn said: Rule is ultra vires. The timeliness of applications for judicial review should, absent authority to the contrary, be assessed against a standard of reasonableness on a case by case basis. The issue of timeliness of the application would generally be one factor to be considered by the court when deciding whether or not to grant a discretionary remedy. In exceptional circumstances, the issue of timeliness may appropriately be determined on a preliminary question Natural justice is based on two fundamental rules, one of which can be articulated as: the accused or a person directly affected by a decision shall not be condemned unless given full chance to prepare and submit his or her case and rebuttal to the opposing party's arguments. These principles apply to decisions of all governmental agencies and tribunals, and judgments of all courts, which may be declared to be of having no effect (ultra vires) if found in contravention or natural justice. On September 1, 2009, [the worker s representative], filed an Internal Review appeal at WHSCC concerning a proportionment factor being applied to [the worker s] EEI benefits. On October 1, 2009, [ ], Internal Review Specialist, issued an Internal Review decision on this matter. Unfortunately for [the worker], the issue is referenced on page two of an Internal Review decision that was clearly intended to deal with entitlement to EEL benefits. It appears that this 3

4 decision dealt with a number of Internal Review decisions that overlapped each other in this time period. In fact, it appeared at first glance that the issue had never been dealt with at Internal Review, and it was only after reviewing all decisions rendered around this time period that the decision was found. Of particular interest to note is that even though [the representative] had filed the Internal Review appeal she was never forwarded a copy of this very important decision. Consequently she was never afforded the opportunity to file an External Review appeal at the WHSCRD on the proportionment factor applied to EEL benefits. It is our contention that the decision concerning the proportionment factor applied to [the worker's] EEL benefits was not fairly applied, she was not afforded the opportunity to present a case at WHSCRD, and we therefore request the decision be reopened. The reopening request is based in part on the fact that the decision making processes did not apply the principles of natural justice that are inherent in the spirit and intent of the WHSC Act and WHSCC policies. The WHSCC has the discretionary decision-making jurisdiction and the authority to revisit a decision that has been previously made in accordance with Section 19 of the Act The jurisdictional authority provided in Section 19 of the Act permissively provides the authority to alter decisions previously made. It should, therefore, be inherent that the WHSCC's decision-making process is to apply the principles of real merits and justice of the claim. In summary, it is respectfully requested a decision be rendered within the spirit and intent of the WHSC Act and WHSCC policies to reopen the decision to proportion [the worker s] EEL benefits. It is our contention that these exceptional circumstances should trigger the application of Section 19.(3) of the Act and consequently result in the altering or rescinding of the decision determining that a proportionment factor would apply to [the worker s] EEL benefits Specifically, the worker asserts that the Commission, by not directly providing her representative with a copy of the October 1, 2009 internal review decision, denied her the opportunity to appeal that decision to the Review Division. 20. The worker s representative goes on to state that Section 19 of the Act gives me the inherent jurisdiction to apply the principles of real merits and justice to this claim, as directed by Section 19(4). 4

5 21. The Commission states in reply that the issue which the worker raises is not the result of anything it did or failed to do. They also state that even if the worker s assertions are accepted, no action of the Commission disadvantaged her. 22. The Commission also points out that the October 1, 2009 internal review decision includes an outline of the process for initiating an appeal. They also state the worker can be fixed with knowledge of the process for submitting an appeal to the Review Division because she had directed another representative to file an appeal of another internal review decision, made on September 1, Analysis 23. It is well established that the Review Division is limited to a review of a final decision of the Commission, and this review is for error. The Review Commissioner has no basis to intervene unless it is first demonstrated that the decision of the Commission under review fails to comply with the Act, regulations, and the policies. 24. Also, a Review Commissioner can only review the issue which the Commission determined in its decision, and once that issue is identified and stated for the purpose of the hearing, the Review Commissioner cannot review another issue which is not contained in the Commission s decision. 25. If a Review Commissioner does otherwise, he or she would exceed his or her jurisdiction and would be in error. The Review Commissioner does not have a general case management authority that extends beyond determining whether the Commission, in its decision under review, failed to follow the Act, regulations, and policies, with respect to the issue in the decision. 26. I accept the position advanced by the worker s representative that a Review Commissioner and the Review Division must ensure that it, and the Commission, deal with matters fairly and in accordance with the principles of natural justice. However, I am not satisfied that the Commission failed to act in accordance with those principles by failing to provide a copy of the October 1, 2009 decision directly to the worker s representative. In any case, I am not now reviewing the correctness of the Commission s 2009 decision, or entertaining a late filing request for a review of the 2009 decision. That is not the issue before me. The 2009 decision became final once it was not appealed to the Review Division, and the issue is presently closed. In order for that issue to be reopened, it must first be decided that the Commission erred in denying the worker s reopening application, and the file should have been reopened under Section 64. The worker filed a reopening application with the Commission, this is what the Commission ruled upon, and this was the issue before me as a Review Commissioner at the hearing. However, I do note in response to the worker s argument, the Commission states that the evidence demonstrates that the worker was advised in writing of her right to appeal the internal review decision and the means by which she might initiate that appeal. It can be reasonably inferred from the documents in the Case Description that the worker had some knowledge of the applicable appeal process because she had initiated an appeal with the guidance of a representative in the month immediately prior to the disputed decision of October

6 27. Considering the foregoing, and given the fact that a representative could not initiate an appeal without direction from the worker, I am satisfied that the failure to provide the worker s representative with a copy of the October 1, 2009 decision did not deny the worker her ability to prosecute an appeal of it. There may have been some communication issue between the worker and the representative, as the worker testified generally that there were interruptions in her representation over the years, but it was not established that there was an error on the part of the Commission at that time. 28. I note that the correctness or incorrectness of the 2009 decision does not, in and of itself, direct the outcome of a reopening application. The existing decision may, in fact, be correct at the time it was made, but the worker can still succeed in reopening the matter for a new decision if he or she presents evidence which satisfies Section 64, which states: The Commission may reopen, rehear, redetermine, review or readjust a claim, decision or adjustment, where (a) an injury has proven more serious or less serious than it was considered to be; (b) new evidence relating to the claim,decision or adjustment has been presented to it; (c) a change has occurred in the condition of an injured worker or in the number, circumstances or condition of dependents or otherwise; or (d) a worker is not following medically prescribed treatment. As long as the evidence brought forward by the worker meets one of the criteria in Section 64, the worker may be able to have the Commission reopen the claim for a new decision on the disputed issue, with that evidence included in those considerations. 29. However, there still must be evidence presented with the reopening application. A reopening application without any new evidence, or some other evidence that satisfies the section, is really a re-argument of the issue, based on the same evidence that already existed at the time of the final decision. In reality, this is an appeal or a review request, not a reopening application under Section 64. As found in the Breen decision, the new evidence on a reopening application must not be fanciful or spurious, and the threshold on a reopening application is not a very high one. However, Breen confirms that there does still have to be some evidence presented which is relevant to the disputed issue, which in this worker s case is proportionment. 30. The written submission presented by the worker s representative does not address the issues required by Section 64, but rather those factors which the Review Division should take into account to allow a late-filed application. However, that was not the issue before me. The issue was whether the Commission was in error in reviewing the reopening application the worker filed. 6

7 31. Also, in the course of her submissions, the worker spoke to her medical history since the October 1, 2009 decision was made, and most of her argument concerned the merits of her claim as she believed them to be. However, the merits of the proportionment decision were not before me. That issue was closed, and the preliminary issue before me was whether the worker s reopening application should have required the Commission to conduct a new review of the proportionment decision. It too failed to address Section 64 of the Act. 32. Section 64, as quoted above, outlines four circumstances in which a claim may be reopened. The worker has not submitted any evidence which would permit the Commission to conclude that one of those four circumstances in present. In the absence of some evidence that would pass the preliminary screening test discussed in the Breen decision, it was not demonstrated that the Commission misunderstood or misapplied the provisions of Section 64 of the Act, which is the only issue I could review. For that reason I find that the Commission has made no error and the review requested by the worker must be denied. 33. The worker urges me to find that Section 19(4) of the Act required the Commission to apply the principles of real merits and justice and reopen her claim on that basis. 34. In this instance, Section 64 of the Act, quoted above, limits the Commission s authority to reopen a decision to four instances; none of which is present in this case. The Act, therefore, limits any jurisdiction which the Commission might exercise under which Subsection 19(4) to apply the principles of real merits and justice. The purpose of the real merits and justice provision is to ensure that the intent of the Act is not defeated by the strict application of a Commission policy, or a technicality, or even a legal precedent where the legal precedent may not capture the individual worker s situation. 35. However, this does not mean that I can ignore the other provisions of the Act when considering the real merits and justice of this case under Subsection 19(4). Section 64 sets out the intent of the legislation regarding what is required on a reopening application, and the Breen decision has interpreted it as requiring that some evidence be tendered by the worker to support the request to reopen her claim. Considering these limitations and the fact that no such evidence has been tendered, I find that I have no jurisdiction to disturb the October 1, 2009 decision under Subsection 19(4). 36. I detected a disconnect between the requirements of Section 64 and the presentations put forward by the worker and her representative, so I believe there may have been confusion about the subject matter of reopening applications. I cannot help but wonder if the worker would have been better served to obtain new evidence, preferably medical evidence, from her treating providers, which addresses the basis of the Commission s existing proportionment decision. It may be more productive to submit that to the Commission as the basis of a Section 64 application, as this type of evidence may satisfy the Section if it is persuasive in nature. However, the Commission s present decision of October 8, 2014, which is all I can rule on, was in accordance with the Act, regulations, and policies. 7

8 Decision 37. The October 8, 2014 internal review decision is upheld because the worker has not submitted any evidence to support her request to reopen her claim. The Commission was correct to conclude that the reopening application did not meet the requirements of Section 64 of the Act. With respect, the review is denied. Review Denied Christopher Pike Review Commissioner September 8, 2015 Date 8