Workplace Health, Safety & Compensation Review Division

Transcription

1 Workplace Health, Safety & Compensation Review Division WHSCRD Case No: WHSCC Claim No: Decision Number: Gordon Murphy Review Commissioner The Review Proceedings 1. The hearing into the review application was held at the Workplace Health, Safety and Compensation Review Division office in Mount Pearl, NL on August 18, The worker attended the hearing and was unrepresented. 2. Neither the employer nor the Commission attended or participated in the hearing process. Introduction 3. On June 25, 2012 the worker submitted a claim for injury to her eyes, which she related to a workstation change while employed as a customer service representative. The diagnosis was dry eye syndrome. The claim was accepted. Following prescribed medical treatment, occupational therapy assessment and a workstation review, the worker returned to the preinjury position in October The worker s treating physician recommended she take daily 15 minute breaks to apply warm compresses to her eyes and to administer prescribed eye medication. 5. On April 24, 2013 the employer confirmed the worker s 15 minute medical treatment breaks were covered by the employer through to December 12, On May 16, 2013 the case manager informed the worker she was entitled to extended earnings loss benefits to cover the 1.25 hours of wages lost per week associated with the administration of the daily eye care regime, effective retroactively to December 13, On April 30, 2014 the worker submitted information for the tax year 2012, at the Commission s request, in preparation for the annual review and the calculation of her extended earnings loss benefit entitlement. 1

2 8. On May 30, 2014 the case manager advised the worker that, following the annual review of her claim, she was no longer entitled to extended earnings loss benefits as her documented income exceeded her pre-injury income. The worker appealed to the Commission s internal review division. 9. On August 18, 2014 the internal review specialist upheld the May 30, 2014 decision of the case manager. The worker appealed to the Review Division. Issue 10. The worker is requesting a review of the decision of the internal review specialist dated August 18, 2014 and is requesting I find the Commission erred in finding that she is no longer entitled to extended earnings loss benefits. The worker is seeking wage loss benefits to cover time lost associated with completing 15 minutes of eye care per shift. Outcome 11. It is my finding that the Commission acted in accordance with the Act and policies and did not err in finding that the worker is no longer entitled to extended earnings loss benefits, in respect of time lost associated with completing fifteen minutes of eye care per shift. With respect, the review is denied. Legislation and Policy 12. 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 Other relevant sections considered are Sections 19(1), 60(1), 74(1), 74.1 and 80 of the Act, along with Policy EL-01: Earnings Loss: Benefit Calculation. Relevant Submissions and Positions 14. The worker testified that in June 2012, as a result of a physical relocation of her workstation, she was diagnosed with a condition called dry eye syndrome, which has been determined to be chronic in nature and is incurable. As part of her treatment regime, the worker stated her treating physician has prescribed that she apply warm compresses to her eyes and take prescribed eye medication four times per day. This process consumes approximately 15 minutes per treatment. She has been able to limit her treatments to one per day during her working hours, with a further treatment immediately following the end of her workday. The other two treatments occur after work hours. 15. The worker stated that, while she does receive a break during her workday, she does not feel she should have to use that break time to take her eye treatment, since her eye condition was 2

3 caused by her working conditions. She indicated her claim for a work-related injury was accepted by the Commission and she is entitled to the five, 15 minute treatment breaks per week for a total of one hour and fifteen minutes, which is not being paid by her employer, but should be paid by the Commission through her work-related injury. 16. The worker indicated she is working in a production-oriented environment with her employer and the one hour and fifteen minutes affects her production quotas and, thus, negatively reflects on her, even though her employer is aware of her work-related injury claim. 17. The worker submitted that, in response to her queries to the Commission, with respect to the amount of extended earnings loss benefits she was to receive, her case manager provided a response, in a May 16, 2013 letter, detailing her entitlement for the one hour and fifteen minutes of lost time during her work week. The worker indicated she received a clarification letter dated May 21, 2014, advising her that the benefits she was to receive would be reviewed and, should her demonstrated earnings in a period exceed her pre-injury earnings, her entitlement may be affected. The worker noted that a further letter on May 30, 2014 from the client services assistant advised that, since her gross weekly wage amount for 2012 exceeded the amount she was capable of earning, pre-injury, indexed by the Consumer Price Index (CPI), she was not entitled to a weekly extended earnings loss amount because, essentially, she had not incurred a weekly wage loss. 18. The worker stated she strongly disagreed with the Commission s decision. She stated she had not been informed in any of the Commission s correspondence that she may not be entitled to wage loss benefits if her income exceeded her pre-injury earnings. The worker further submitted that she had been informed by a Commission staff member that, while the calculations processed by the Commission appeared to be unfair, the Commission did not have the facility or authority to select any other means of calculation. 19. The worker contended that the Commission had the authority to pay the employer the appropriate amount of earnings loss benefits, which could, in turn, pass those funds along to her. She suggested she should not be the one to suffer any loss of pay as a result of a workrelated injury. The worker indicated she has the probability of working for another five to eight years and, during that period, she felt she should not suffer a wage loss in these circumstances. She requested, therefore, the Commission s decision be overturned, such that she be compensated for wages she has lost, and continues to lose, as a result of her workrelated injury. 20. In his August 18, 2014 decision, the internal review specialist stated, in part: I will continue to review your case with respect to the annual review which has been completed. In cases where EEL benefits are paid to a worker, Section 74.1 of the Act indicates that a periodic review may be conducted Entitlement to EEL benefits may increase or decrease if it is shown that the worker s earnings capacity or medical condition has changed. In reviewing your case, I note your pre-injury earnings were indexed by the Consumer Price Index (CPI). This totaled a gross weekly wage of These earnings were then compared to your actual earnings. With respect your 3

4 [sic] actual earnings, I reference Revenue Canada information for the taxation year In this, it is noted your T4 earnings were It is also noted you had other employment income, which you have explained was selfemployment. This totaled... The total amount of income to consider is When this is divided by 52 weeks, it yields a gross weekly wage of As you can see, this amount is in excess of your pre-injury earnings indexed. This is evidence to support you have demonstrated the ability to earn in excess of your pre-injury earnings indexed and therefore the CSA is correct to advise you do not have any further entitlement to EEL benefits., from my review of your case, I am satisfied the evidence supports there is no further entitlement to EEL benefits. I support the decision of the CSA Analysis 21. The worker in this case has been employed as a customer service representative, working in a production oriented environment. In June 2012 she was physically relocated to a new workstation. Within days of this relocation, the worker began to experience problems with her eyes, resulting from the positioning of air vents and fluorescent lighting. Since she had not experienced this condition previously, the worker sought medical attention. She was diagnosed with dry eye syndrome, a chronic condition that affects the tear glands in the eyes, which, without medical treatment, causes the eyes to become dry, very uncomfortable and even painful. 22. Pursuant to the medical diagnosis of dry eye syndrome, the worker filed a claim to the Commission on June 25, 2012 alleging her eye condition was causal to her work environment. The worker s claim was accepted on August 28, The prescribed treatment for the worker s condition was that she apply warm compresses to her eyes and administer prescribed eye medications four times per day. This treatment modality, which consumes approximately 15 minutes per treatment, is utilized once during the workday, requiring a 15 minute break from her job duties, once immediately following the workday and twice after work hours. The 15 minute break per day totals 1.25 hours per week of lost time from the worker s job duties. 24. The employer agreed to compensate the worker for the 1.25 hours per week on injury on duty leave up to December 12, On May 16, 2013 the Commission agreed to compensate the worker for the 1.25 hours per week as extended earnings loss benefits, in accordance with Sections 74(1) and 74.1 of the Act. However, since the worker continued to be compensated by the employer for the remaining hours of her shifts, she would only be entitled to the difference between what the employer was compensating her for and her entitlement from her extended earnings loss benefits, which is 80% of her net earnings. 25. The point of contention in this matter arises from a letter dated May 21, 2014 from the worker s case manager, which states, part: 4

5 I reference the initial May 16, 2013 Extended Earnings Loss (EEL) decision and will be providing further clarification of that letter. If you refer to page 2 of that letter, reference is made to your entitlement to EEL benefits for the lost time related to eye care. In that paragraph there is an indication that this benefit is payable until age 65 or until the circumstances of the medical condition change, at which point entitlement will be reviewed. Further to this, it appears that an oversight was made and this paragraph should also have included an indication that benefits would be reviewed should your capacity or demonstrated earnings exceed the indexed earnings that were considered in the initial decision. If your capacity to earn or demonstrated earnings exceeds the indexed earnings, then your entitlement would be determined accordingly 26. This was followed up with a letter dated May 30, 2014 from the client services assistant, which noted that, since the worker s 2012 gross weekly earnings amount exceeded the amount she was capable of earning, pre-injury, which included the Consumer Price Index percentage, effective May 28, 2014, she was no longer entitled to extended earnings loss benefits. 27. The worker had earned an extra $2,500 through self-employment in 2012, which, combined with her regular employment earnings, resulted in earnings in excess of her indexed preinjury earnings. The worker maintains that she had not been informed appropriately with respect to the circumstances of her total earnings and its possible effects on her extended earnings loss benefits in the May 16, 2013 letter. Had she been appropriately informed, she would not have worked and earned the self-employment earnings. She maintains that the Commission erred in not informing her and she should not be penalized for that error. 28. I note that Section 19(1) of the Act confers on the Commission the exclusive jurisdiction to determine matters related to whether an injury was work-related, the degree of impairment, the permanence of the injury and the degree of earnings capacity of the injured worker. 29. I note that Section 74(1) of the Act provides for the payment of compensation to an injured worker based on the loss of earning capacity resulting from the injury Further, Section 74.1(1) and (2) of the Act state: (1) Extended earnings loss benefits being paid to a worker may be reviewed periodically by the commission. (1.1) Where a worker is in receipt of extended earnings loss benefits, the Consumer Price Index for Canada as published by Statistics Canada shall be applied annually to his or her estimated annual earnings resulting from the injury and the benefits shall be recalculated in accordance with subsection 74(2). (2) Notwithstanding subsection (1.1), the extended earnings loss benefits being paid to a worker shall not be increased under subsection (1.1) by applying the Consumer Price Index for Canada until the time that 5

6 the amount of compensation being paid to that worker is equal to 80% of that worker s estimated annual earnings as adjusted by the application of the Consumer Price Index of Canada. 30. I also note that Policy EL-01: Earnings Loss: Benefit Calculation provides direction to the Commission with respect to the calculation of benefits arising out of a work-related injury. 31. As provided in the above-noted sections of the Act, the Commission, in May 2014, performed a regularly scheduled annual review of the worker s claim to determine continuing entitlement, and to determine if there was any further entitlement to her extended loss benefits. Following normal procedure, after receipt of the worker s annual earnings for 2012, the Commission used the following process to determine the worker s extended earnings loss rate: EXTENDED EARNINGS LOSS RATE CALCULATIONS 1. Pre-injury earnings indexed to 2013 Gross amount earned Net amount earned 2. Less Actual Earnings for 2012 Gross amount earned Net amount earned was greater than was greater than amount in No. 1 amount in No Net weekly wage loss $ % net weekly wage loss $ Weekly extended earnings loss rate $0.00 Effective Date: May 28, The principle behind the workers compensation system is to ensure the worker is not disadvantaged through a loss of earnings which the worker was accruing at the time of the injury. The Act sets out provisions associated with the calculation of earnings loss rates and associated policies guide the Commission in determining those earnings loss rates. In this case, the worker was clearly not disadvantaged as a result of her annual earnings. She, in fact, earned more in 2012 than she would have earned had she not incurred her injury, notwithstanding the fact a part of those earnings were from self-employment. 33. I acknowledge that the worker contends that the sole reason for her actual earnings in 2012 being in excess of her pre-injury earnings was due to the fact she earned an amount of selfemployment earnings. She indicates she would not have worked through self-employment had she known it would affect her extended earnings loss rate. However, the fact remains that her actual earnings were greater than her pre-injury earnings, even though those preinjury earnings were indexed by the Consumer Price Index rate. 6

7 34. The worker also suggested that, rather than take the action it did in determining she was no longer entitled to extended earnings loss benefits, the Commission should have found an inventive or unusual way to compensate her, even to the point of compensating her employer, who could, in turn, compensate her for the equivalent amount. 35. However, since the worker s injury was work-related and accepted as such by the Commission, the only mechanism for earnings compensation is that set out in the Act and regulations and the Commission does not possess the legal authority, in my view, to depart from the spirit and intent of the Act. 36. The internal review specialist in his decision of August 18, 2014 stated, part: In reviewing your case, I note your pre-injury earnings were indexed by the Consumer Price Index (CPI). This totaled a gross weekly wage of These earnings were then compared to your actual earnings. With respect your [sic] actual earnings, I reference Revenue Canada information for the taxation year In this, it is noted your T4 earnings were It is also noted you had other employment income, which you have explained was selfemployment. This totaled... The total amount of income to consider is... When this is divided by 52 weeks, it yields a gross weekly wage of... As you can see, this amount is in excess of your pre-injury earnings indexed. This is evidence to support you have demonstrated the ability to earn in excess of your pre-injury earnings indexed and therefore the CSA is correct to advise you do not have any further entitlement to EEL benefits., from my review of your case, I am satisfied the evidence supports there is no further entitlement to EEL benefits. I support the decision of the CSA 37. I have reviewed the evidence on the file and I have considered the evidence provided by the worker at the hearing. While I can understand and perhaps appreciate the frustration of the worker over the unfortunate condition of her eyes and its impact on her activities of daily living, and, while I can perhaps appreciate to a certain degree her frustration and disillusionment over the loss of her extended earnings loss benefits, I am unable to find that the Commission erred in this case. It is important to note that my role in this matter is to review the final decision of the Commission for compliance with the Act and applicable policies. As long as that decision is in compliance with the Act and policies, the decision will be confirmed. Conversely, if I find that the decision is not in compliance with the Act and policies, the decision will be considered to be in accordance with the Act and policies. 38. For the reasons outlined previously, I find that the Commission followed the provisions of the Act and policies in this case in determining the worker was no longer entitled, effective May 28, 2014, to further extended earnings loss benefits. Accordingly, I find the decision of the internal review specialist dated August 18, 2014 to be not in error. 7

8 Decision 39. It is my finding that the Commission acted in accordance with the Act and policies and did not err in finding that the worker is no longer entitled to extended earnings loss benefits, in respect of time lost associated with completing fifteen minutes of eye care per shift. With respect, the review is denied. Review Denied Gordon Murphy Review Commissioner August 24, 2015 Date 8