NOVA SCOTIA WORKERS COMPENSATION APPEALS TRIBUNAL

Transcription

1 NOVA SCOTIA WORKERS COMPENSATION APPEALS TRIBUNAL Appellant: [X] (Worker) Participants entitled to respond to this appeal: [X] (Employer) and The Workers Compensation Board of Nova Scotia (Board) APPEAL DECISION Representatives: Form of Appeal: WCB Claim Nos.: [X] Oral hearing, held on December 16, 2010, at Sydney, NS [X] Date of Decision: January 31, 2011 Decision: The appeal of the March 15, 2010 Board Hearing Officer decision is allowed in part, according to the reasons of Appeal Commissioner Glen Johnson.

2 2 CLAIM HISTORY AND APPEAL PROCEEDINGS: This is an appeal from a March 15, 2010 Hearing Officer decision. The Hearing Officer allowed the Worker s appeal in part, by backdating the Worker s extended earnings replacement benefit [ EERB ] respecting industrial bronchitis to May 21, 2009, as opposed to August 31, The complex claim history and appeal proceedings have been set out in the numerous previous decisions rendered in the administration of this matter. I will set out only those portions of the claim history and appeal proceedings most relevant to this decision. The Worker was awarded a permanent medical impairment [ PMI ] rating of 15 percent respecting industrial bronchitis, effective June 27, The PMI rating was later increased to 25 percent, effective June 18, Decision AD (October 22, 2008, NSWCAT) directed the backdating of the increase to June 27, The Appeal Commissioner made this direction, notwithstanding that the 2007 pulmonary function studies showed an improvement from 2002, because the American Medical Association s Guides to the Evaluation of Permanent Impairment - Fourth Edition [ AMA Guides ] mandated a PMI rating of 25 percent. The Board decision-makers initially denied the Worker the award of an EERB because they found he was non-cooperative with a vocational rehabilitation [ VR ] program. However, a July 30, 2003 Hearing Officer decision found that the Worker was not noncooperative with the VR program. The Hearing Officer also directed that the Board consider the Worker s entitlement to additional benefits due to his compensable lung disease. In implementing the Hearing Officer s direction, the Board decision-makers then denied the Worker an EERB because he was unable to take part in the VR program due to noncompensable depression. This approach eventually resulted in a series of decisions focused on whether the Worker s depression were compensable. A January 26, 2004 Adjudicator decision awarded the Worker temporary earnings replacement benefits [ TERB ] from September 22, 1997 to January 4, An April 3, 2009 Hearing Officer decision directed that the Board front line decision-maker determine whether the Worker was entitled to an EERB due in part or fully to the Worker s compensable loss of lung function. In the same vein, an August 31, 2009 Hearing Officer decision directed that the Board determine the Worker s entitlement to benefits in the light of his compensable industrial bronchitis, and suggested that the Board consider the Worker s request for a backdating of benefits to This decision contains personal inform ation and m ay be published. For this reason, I have not referred to the participants by nam e.

3 3 A December 11, 2009 Case Manager decision found that the Worker was entitled to a full EERB, effective August 31, 2009, the date of the Hearing Officer decision which found the Worker was capable of a return to work program. The Worker appealed the Case Manager decision by means of a Notice of Appeal to Hearing Officer dated December 18, That appeal requested a backdating of EERB to 1999, and gave rise to the March 15, 2010 Hearing Officer decision which forms the subject matter of this appeal. This appeal was commenced by the Worker s counsel s filing of a Notice of Appeal dated March 29, 2010 with the Workers Compensation Appeals Tribunal [the Tribunal ]. Therein, the issue on appeal is described as Effective date of Worker s Extended Earnings Replacement Benefit. This appeal proceeded by way of oral hearing, held at Sydney, Nova Scotia, on December 16, Both the Worker and the Employer were represented by legal counsel. Counsel filed voluminous materials and made extensive submissions. The Worker was the sole individual to provide testimony. ISSUE AND OUTCOME: At issue is whether the Worker is entitled to a backdating of his EERB to January 4, The Worker s appeal is allowed in part, for the reasons below. The Worker is entitled to the backdating of his EERB to June 27, 2002, the effective date of his PMI rating respecting industrial bronchitis. The Board should assess the Worker s entitlement to TERB for the period from January 4, 1999 to June 27, ANALYSIS: I have reviewed the materials in the Board and Tribunal files. In addition, I reviewed the recording of the oral hearing. I will set out only those portions of the testimony, evidence and submissions most relevant to my reasoning and conclusion. These reasons presuppose a familiarity with the previous decisions rendered in the administration of this matter. Relevant Board Polices Policy states: Policy Statement 1. Where a worker is temporarily unable to fulfil the obligations of a Vocational Rehabilitation (VR) program due to circumstances which, in the

4 4 opinion of the Board, are unrelated to the worker's compensable condition and are genuinely beyond the worker's control, benefits may be continued where: a) the interruption is of sufficiently short duration as to not have a significant impact on the VR program; or b) the worker is able to undertake other activities consistent with the VR program during the interruption period. The pertinent portions of Policy R1 state: "cause other than injury" means any aspect of the physical condition of an individual worker which, due to its nature or severity, could be reasonably expected to have a significant impact on the duration and/or the degree of a worker s loss of earnings or permanent impairment resulting from a compensable injury..... non-compensable factor means any condition unrelated to a compensable injury which may affect recovery and/or the extent of impairment/loss of earnings. A non-compensable factor may exist prior to a compensable injury or it may develop post-injury. This includes causes other than the injury and pre-existing diseases or disabilities; Extended Earnings Replacement Benefit (EERB) 5.1 Where the worker is experiencing an on-going loss of earnings as a result of the permanent impairment remaining after the compensable injury, the WCB will determine what proportion of the loss of earnings can be attributed to the compensable injury and what proportion can be attributed to a non-compensable factor(s). EERBs will only be paid for the on-going loss of earnings resulting from the compensable injury. 5.2 Where the WCB determines that a non-compensable factor was only a latent weakness or susceptibility and there is no evidence: (a) that it had any impact on the worker s pre-injury earning capacity; or (b) that it would have progressed to produce loss of earning capacity without the occurrence of the compensable injury, it will be considered that the entire extended loss of earnings can be attributed to the compensable injury and EERBs will be paid without apportionment under Section 10(5) of the Act.

5 5 Submissions I will succinctly set out the participants positions below. The Worker s counsel argued that the administration of the Worker s claim has been mishandled because of the failure to properly apply the July 30, 2003 Hearing Officer decision, which found that the Worker was not non-cooperative with VR. The Hearing Officer also directed that the Board assess the Worker s entitlement to benefits flowing from the compensable industrial bronchitis. Unfortunately, the Board wrongfully asserted that EERB could not be assessed because of the Worker s inability to take part in the VR program, owing to non-compensable depression. This gave rise to a series of decisions focused on whether the Worker s depression were compensable, and a failure to assess the Worker s entitlement to benefits owing to his compensable industrial bronchitis. In essence, the Worker s counsel argued that the Worker s entitlement to an EERB should have been assessed in relation to his compensable industrial bronchitis, with reference to Policy R1 to address the role of the possibly non-compensable depression. I asked the Worker s counsel whether he believed I possessed the jurisdiction to award EERB for the time frame prior to the effective date of the PMI rating. He replied that he had not considered the jurisdiction issue. The Employer s counsel argued that the determination of EERB had been properly delayed until such time as the Worker was found to be capable of taking part in a VR program. In response to my question concerning whether this could give rise to a worker being permanently denied an EERB assessment owing to the inability to take part in a VR program, she argued that the roughly six-year delay in the determination of EERB in this appeal was consistent with the wording of Policy The Employer s counsel further argued that it was the Worker s choice to pursue a Board decision that his depression was compensable, as opposed to focusing on addressing his depression such that he would be capable of taking part in a VR program. She indicated that individuals can treat depression, so that they can function. If the Worker had taken part in the VR program at an earlier time, and had been assessed for EERB at an earlier time, it is possible that the award of a full EERB may not have been appropriate. With respect to Policy R1, she argued that cause other than injury refers only to physical conditions, not to depression. However, in questioning, counsel acknowledged that non-compensable factor could contemplate something other than a physical condition. The Employer s counsel argued that I did not possess the jurisdiction to backdate the Worker s EERB prior to June 27, 2002.

6 6 Reasoning I am in substantial agreement with the position of the Worker s counsel, in this appeal. I find that Policy was misapplied in this instance. The Policy contemplates only a temporary inability to take part in a VR program. It does not contemplate a lengthy, protracted inability to take part in VR program. Otherwise, a worker could be deprived of an assessment for EERB for a lengthy period of time because of a non-compensable inability to take part in a VR program. Indeed, taken to an extreme conclusion, the interpretation proposed by the Employer s counsel could result in a worker being permanently deprived of an EERB assessment because of a non-compensable inability to take part in a VR program. I do not believe it is the intent of Policy to deprive a worker of an assessment for EERB for a lengthy or indefinite period of time. In the circumstances of this appeal, the appropriate course would have been to assess the Worker s entitlement to EERB in connection with the compensable industrial bronchitis. The role, if any, of the non-compensable depression should have been assessed through Policy R1, section 5. I do not believe that the Employer s counsel s argument respecting the definition of cause other than injury is well-founded. The section of the apportionment policy respecting EERB uses the wording non-compensable factor which includes, but which is broader than, cause other than injury. Thus, an EERB can be determined even if a noncompensable depression plays a possible role in causing a worker s earnings loss, because such a non-compensable depression falls within the ambit of non-compensable factor. In this situation, the Worker s respiratory test results improved between 2002 and If the Worker were entitled to a full EERB based on the 2007 test results, it stands to reason he was previously fully impaired in terms of earnings capacity given the more serious 2002 test results. In this connection, the Worker should not be penalized because his earnings loss was not determined based on the situation in 2002, given that it was the Board s misapplication of Board Policy which deprived the Worker of an earnings loss determination at that time. In short, if the Worker is presently entitled to a full EERB, it should be inferred that he was entitled to a full EERB on June 27, The matter on appeal relates to the Worker s EERB. EERB is a form of permanent benefit, and the Worker s PMI rating became effective only on June 27, Consequently, I do not possess the jurisdiction to award EERB prior to June 27, The Board should assess the Worker s entitlement to TERB for the period from January 4, 1999 to June 27, 2002.

7 7 CONCLUSION: The Worker s appeal is allowed in part, for the reasons above. The Worker is entitled to the backdating of his EERB to June 27, 2002, the effective date of his PMI rating respecting industrial bronchitis. The Board should assess the Worker s entitlement to TERB for the period from January 4, 1999 to June 27, ST DATED AT HALIFAX, NOVA SCOTIA, THIS 31 DAY OF JANUARY Glen Johnson Appeal Commissioner