Workplace Health, Safety & Compensation Review Division

Transcription

1 Workplace Health, Safety & Compensation Review Division WHSCRD Case No: WHSCC Claim No: Decision Number: Lloyd Piercey Review Commissioner The Review Proceedings 1. The hearing of the review application was held at Hotel Gander in Gander, NL, on November 21, The worker attended the hearing and was represented by Mel Strong, Appeals Officer with the Government Members Office, who participated via teleconference. 2. Neither the employer nor the Commission attended or participated in the hearing process. Introduction 3. On October 16, 2009, the worker sustained a right arm injury while employed as a Cashier/Food Worker. 4. In April, 2010, following an assessment by a Multidisciplinary EMPOWER Team, an Early and Safe Return to Work (ESRTW) program was recommended for the worker. 5. On April 12, 2010, because the worker did not participate in the ESRTW program, the Case Manager rendered a decision advising of a finding of non-cooperation. 6. The worker appealed the Case Manager s decision and, upon appeal, the Internal Review Specialist, on July 13, 2010, upheld the April 12, 2010 decision by the Case Manager. 7. On March 22, 2012, Mr. Reardon, Office of the Workers Advisor, requested a review of the claim under Section 64 of the Act. He submitted information from the worker s Anesthesiologist and an April 21, 2010 report from a Neurologist. 8. On April 30, 2012, the Case Manager in her decision, advised the worker that the new evidence did not support that the worker was unable to participate in the ESRTW program and the April 12, 2010 decision remained unchanged. This was subsequently upheld by the Internal Review Specialist, and the Review Division in a Decision dated April 8,

2 9. On April 25, 2013, Mr. Reardon submitted correspondence to the Commission, seeking a further review of the claim. He provided a medical report from the worker s Anesthesiologist, dated April 16, 2013, submitting that it confirmed that the worker s condition was much worse than originally thought. 10. On May 24, 2013, the Case Manager advised the worker that she had reviewed the new information and under Section 64 of the Act, it did not warrant a reconsideration of the April 12, 2010 decision that found the worker to be non-cooperative. That decision by the Case Manager was upheld by the Internal Review Specialist on July 12, Issue 11. The worker is requesting a review of the decision by the Commission dated July 12, 2013 that determined that the medical report dated April 16, 2013 is not of the quality to overturn a decision by the Commission to find the worker in a non-cooperation situation. Outcome 12. I uphold the decision by the Internal Review Specialist on July 12, 2013 that concluded that the April 16, 2013 report from the worker s Anesthesiologist, when viewed against the strength and weakness of the existing information, does not justify a re-examination of the whole case. 13. I find the Commission has arrived at a decision that is supported by the evidence and in accordance with the Act, Regulations and policy. The review is denied. Legislation and Policy 14. The jurisdiction of the Review Commissioner as outlined in the Workplace Health, Safety and Compensation Act (the Act), Sections 26(1) and (2), 26.1 and 28(4.2)(b) which states, in part: Review by review commissioner 26(1) Upon receiving an application under subsection 28(1) a review commissioner may review a decision of the commission to determine if the commission, in making that decision, acted in accordance with this Act, the regulations and policy established by the commission under subsection 5(1) as they apply to (a) compensation benefits; (a.1) rehabilitation and return to work services and benefits; (b) an employer s assessment; (c) the assignment of an employer to a particular class or group; 2

3 (d) (e) an employer s merit or demerit rating; and the obligations of an employer and a worker under Part IV. (2) An order or decision of a review commissioner is final and conclusive and is not open to question or review in a court of law and proceedings by or before a review commissioner shall not be restrained by injunction, prohibition or other process or proceedings in a court of law or be removable by certiorari or otherwise in a court of law. Review commissioner bound by policy 26.1 A review commissioner shall be bound by this Act, the regulations and policy. (4.2) Where a review commissioner determines that the decision of the commission was not in accordance with this Act, the regulations and policy, he or she shall identify how the decision of the commission was contrary to this Act, regulations and policy, specify the contravened provision, set aside the decision of the commission and (b) where it is appropriate to have a new decision from the commission, refer the matter to the commission for a new decision with or without direction on an appropriate remedy. 15. Also relevant and considered in this case are Sections 19(1), 19(3), 64(a), 64(b) and 64(c) of the Act. Relevant Submissions and Positions 16. Mr. Strong gave a history of the injury and the treatment provided. He notes that the worker did return to work for three days, but experienced a serious flare-up of her symptoms and had to go back to see her doctor. 17. Mr. Strong indicates that he had reviewed a number of Form 8/10s from the family physician and all advised that the worker was to remain off work. 18. Mr. Strong states that the frequency of the worker s visits to her doctor confirms the seriousness of her condition. 19. Mr. Strong references a report dated October 27, 2010 from her treating physician that noted the worker was receiving treatment for intravenous sympathetic block for the right arm. Mr. Strong references additional reports from the same physician dated November 15, 2010 and December 1, In the December 1, 2010 report, the worker s symptoms 3

4 are noted, and the physician offers an opinion that I think it would be unreasonable to deny this patient s claim given documentation, mechanism of injury and symptomatology stemming from that incident. 20. The worker testifies that she was receiving injections, but they provided her with little relief. In fact, she states, there has been a deterioration in her condition over time. 21. Mr. Strong references the medical report from the worker s Anesthesiologist, dated April 16, 2013, noting that this was the new piece of evidence under consideration, at this time. In it, he states, the physician indicates that the worker s symptoms would make her incapable of meaningful work on an ongoing basis. 22. Mr. Strong references letters to the Commission from Mr. Reardon, on behalf of the worker, dated March 22, 2012, May 24, 2012, April 25, 2013 and June 28, Mr. Strong states that the content of these pieces of correspondence notes the worker s position, relative to the issue being considered. 23. Mr. Strong references the Bulger case of March 2006, in which it is noted that the evidence provided by the physician, who has attended to the worker for a long period of time, cannot be overlooked in the decision making process. 24. Mr. Strong submits that the subjective evidence provided by the worker has not been given the weight it warrants. 25. The Internal Review Specialist notes that the Court of Appeal provided direction to the Commission with respect to the threshold for new evidence required by Section 64 of the Act. 26. The Internal Review Specialist notes that in the April 16, 2013 medical report from the worker s Anesthesiologist, he confirms the symptoms the worker currently experiences and this is not compatible with the worker s condition in April, 2010, when she was found in non-cooperation. Furthermore, it is not relevant to the April 12, 2010 decision that found the worker non-cooperative. 27. The Internal Review Specialist states that she agreed with the Case Manager that the April 16, 2013 medical report, while it is new medical evidence, it does not provide evidence that is of the quality to reopen the April 12, 2010 decision of a finding of non-cooperation. Analysis 28. The worker is requesting that her claim be reopened, and the decision dated April 12, 2010, to deny her claim on the basis of a finding of non-cooperation, be overturned. She submits that the letter from the Anesthesiologist dated April 16, 2013, confirms that she was unable to work in 2010, and her denial to participate in the April, 2010 ESRTW program was not unreasonable. 4

5 29. I note that in correspondence to the Commission dated April 25, 2013, from Mr. Reardon, Office of the Workers Advisor, he references the April 16, 2013 letter from the worker s Anesthesiologist, submitting that its content confirms that the worker s injury has proven more serious than was initially considered. He went on to state, In light of this new evidence it is therefore requested a new decision be rendered in accordance with Section 64 of the Act. 30. I note that Section 64 of the Act states: The commission may reopen, rehear, redetermine, review or readjust a claim, decision or adjustment, where (a) (b) (c) an injury has proven more serious or less serious than it was considered to be; new evidence relating to the claim, decision or adjustment has been presented to it; a change has occurred in the condition of an injured worker 31. I point out that it is not my role, nor intention, to re-adjudicate this claim. I will confine my analysis to the issue, and that is whether the new medical report dated April 16, 2013, is of the quality to require the Commission to reopen the claim and reconsider the April 12, 2010 decision, as per Section 64 of the Act. 32. Under Section 64 of the Act, and as articulated in Workers Compensation Commission (Newfoundland) v Breen, 1997, relative to new evidence, the Commission is not obligated to accept every piece of new evidence simply because an applicant demands that it do so, nor is the Commission bound to refer every matter for an extensive examination in each case. The Commission can exercise discretion under the Act and it does not have to accept fanciful or spurious evidence. 33. The Commission s focus at the preliminary screening stage is intended only to determine if the new evidence would merit an examination of the full file. Whether or not the new evidence would necessarily lead to a different outcome would follow the reopening of the claim and the weight of the evidence when compared to that which already exists in the worker s file. 34. I note that the Internal Review Specialist, in her decision dated July 12, 2013, made the following points: The Case Manager, in her May 24, 2013 decision stated that she had reviewed the April 16, 2013 report from the Anesthesiologist, and noted that it was three years after the worker was found to be non-cooperative in April, The Case Manager noted that the report indicated that the worker s symptoms had increased in the recent weeks and her right arm had diminished functionally. 5

6 The Case Manager had concluded that the report represented functions that were current and not compatible with the functional abilities that were present in April, 2010 and on which her non-cooperation status was premised. 35. The issue that I must address is, specifically, if the April 16, medical report from the Anesthesiologist is of the quality to warrant a reopening of the whole claim. Furthermore, did the Commission give the new evidence the preliminary examination required, as articulated by Breen, and stated under Section 64 of the Act. 36. I note that the file evidence confirms that the worker had been cleared by her family physician in April, 2010 to return to work. Also, the EMPOWER report, at that time, assessed her as capable of returning to work. Relative to this determination, and due to the fact that the worker refused to participate in a Return to Work plan, she was found to be in a non-cooperation status by the Commission in April The April 16, 2013 medical report makes the following points: The physician had been seeing the worker for several years due to chronic pain a a result of a work related injury. Right arm symptoms have persisted on an ongoing basis. In recent weeks her symptoms have increased to the point that the worker has become increasingly clumsy. The Anesthesiologist stated that it was his view that the worker s level of disability would render her incapable of meaningful work on an ongoing basis. 38. I find, after reviewing the decision by the Case Manager and the Internal Review Specialist on July 12, 2013, that the Commission has met its obligation under Section 64 of the Act. As I have already indicated, the Commission s focus at the preliminary screening stage is intended only to determine if the new evidence would merit a re-examination of the file as a whole. Whether or not the new evidence would necessarily lead to a different outcome would follow the reopening of the claim and weighing the new information against that which already existed in the file. 39. However, in my review of this particular case, and after an examination of the April 16, 2013 medical report, I find it does not meet the threshold as articulated in Breen. I find the letter does not contain any new information that would warrant an overturning of the April 12, 2010 decision that found the worker to be non-cooperative. I accept the Commission s position that, while there may have been a deterioration in the worker s symptoms three years later, when the non-cooperation find was applied to the worker s claim, the worker was assessed as being capable of returning to work. In my review of the file information, particularly the EMPOWER report, I find this to be correct. 6

7 40. While Mr. Reardon submits that the April 16, 2013 decision confirms that the worker s injury is now more serious than originally thought, and under Section 64 of the Act, this would be grounds for a reopening of the worker s claim, I do not find that the evidence supports that position. Decision 41. I uphold the decision by the Internal Review Specialist on July 12, 2013 that concluded that the April 16, 2013 report from the worker s Anesthesiologist, when viewed against the strength and weakness of the existing information, does not justify a re-examination of the whole case. 42. I find the Commission has arrived at a decision that is supported by the evidence and in accordance with the Act, Regulations and policy. The review is denied. Review Denied Lloyd Piercey Review Commissioner January 31, 2014 Date 7