WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 531/12R

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1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 531/12R BEFORE: R. McCutcheon: Vice-Chair HEARING: May 19, 2016 at Toronto Written Post-hearing activity completed on August 26, 2016 DATE OF DECISION: December 14, 2016 NEUTRAL CITATION: 2016 ONWSIAT 3426 DECISION UNDER APPEAL: Worker request for reconsideration of Decision No. 531/12 dated March 11, 2015 APPEARANCES: For the worker: For the employer: Interpreter: Self-represented Not participating Not applicable Workplace Safety and Insurance Appeals Tribunal Tribunal d appel de la sécurité professionnelle et de l assurance contre les accidents du travail 505 University Avenue 7 th Floor 505, avenue University, 7 e étage Toronto ON M5G 2P2 Toronto ON M5G 2P2

2 Decision No. 531/12R REASONS (i) Introduction to the reconsideration proceedings [1] The worker requests a reconsideration of Decision No. 531/12. That decision addressed the worker s entitlement to benefits arising from several workplace accident claims that occurred during the course of her employment as a cashier in a retail environment. This issue in this appeal is whether the worker s request meets the threshold test for a reconsideration. Pursuant to the Tribunal s general practice, the employer was not asked make to submissions at this stage. [2] Decision No. 531/12 allowed the worker s appeal in part as follows: 1. Entitlement is granted for a disablement soft tissue injury of the right upper extremity (including the wrist, forearm, and shoulder) under Claim #2 (ARO DeRose, March 18, 2014). The nature and duration of benefits flowing from this decision will be returned to the WSIB for further adjudication, subject to the usual rights of appeal. 2. Initial entitlement is granted for a neck condition under Claim #4 (ARO Shepherd, August 12, 2011). The nature and duration of benefits flowing from this decision will be returned to the WSIB for further adjudication, subject to the usual rights of appeal. 3. Initial entitlement is granted on an aggravation basis for low back and upper torso pain attributed to prolonged standing, under Claim #6 (ARO DeRose, March 19, 2014). The nature and duration of benefits flowing from this decision will be returned to the WSIB for further adjudication, subject to the usual rights of appeal. 4. Entitlement is granted for fibromyalgia and CPD under Claim #7, effective from 2002 (ARO Shepherd, August 12, 2011). The nature and duration of benefits flowing from this decision will be returned to the WSIB for further adjudication, subject to the usual rights of appeal. 5. Initial entitlement is denied for the low back and right shoulder under Claim #8 (ARO Shepherd, August 12, 2011). 6. The worker is granted LOE benefits from September 2002 to December 9, 2002, under Claim #5 (ARO Shepherd, August 12, 2011). 7. Permanent impairment assessment for the left toe is denied under Claim #5 (ARO Shepherd, August 12, 2011). [3] This request for reconsideration appears to have been initiated with the worker s correspondence dated March 26, 2015, which was addressed to the Tribunal, the Ontario Ombudsman, the employer, and the employer's representative. In that letter, the worker states that the outcome was not resolved the way it should have. The worker alleges that unspecified agencies have conspired to ensure that only corporations and insurance companies achieve the outcomes they desire. She refers to grandfather laws, established before She concludes by stating that all of her injuries were the direct result of the abuse laid out by [the accident employer], the accident that occurred in 1996, verbal and physical abuse which followed from 1997 through 2000 [4] The worker went on to send several additional letters to the Tribunal and various parties. The following is a partial summary of correspondence received from the worker:

3 Page: 2 Decision No. 531/12R In a letter dated April 4, 2015 and addressed to the same parties, the worker states: During the year of 1997, as noted on paper, I was putting in full time hours and just came in shy of that format. The obvious was that I lost regular time and as well as overtime. I exhausted my sick leave and vacation time on my injuries, in, of which was due to CPD. This is what preludes Fibromyalgia. [ ] I will be ordering a complete copy of the law books, from WSIB, Past and Present, to research all facts and offer the results to the Ombudsman s office to assure that WSIAT is honorable conspires with any company, for it is the responsibility of the company to pay out their debts. Secondary injuries, as stated by various doctors observations and presently, my doctors to date, state how I have overexerted my left arm, (shoulder, elbow tendonitis, and wrist and hand), to compensate for the damages in my right arm. These also have to be accepted, with no exceptions to the rule. Both hands swell and this was noted. My damages to my left foot, was accepted, which was a result of my tremors, so too does this have to be accepted as secondary, for I also have a claim As for my hip, Dr. s have stated how issues arose, from having been corralled in a stall, including Dr. Reynolds who mentioned the condition of hip, hands, tremors, etc., in addition to fibromyalgia. Funny thing when one conspires to protect an agency that does not warrant such treatment. Attached to that letter are partial copies of the following WSIB policies: Entitlement to Health Care; Merit Adjusted Premium Program; Schedule 2 Security Requirement; Benefit of Doubt; No Lost Time; Benefit Dollar Amounts Accidents from In a letter dated April 18, 2015, the worker described her damages, including her hands, tremors, weakness, numbness the back. She attached information from the Internet on topics including herniated disk, back pain, pinched nerve. In a letter dated April 22, 2015, the worker provided pay stubs from 1996 and 1997 with reference to an accident in December The worker states her position that her chronic pain disability (CPD) started in 1996, not The worker states that the injuries to her hands occurred prior to the accident of December 1996 and that she is overexerting her left hand to compensate for the right. The worker describes symptoms of swollen hands and burning pain. The worker relies on medical articles from the Internet in support of her argument that the back was not addressed correctly and that tremors and numbness are secondary from the accident. She requests review of the law, including entitlement to health care. She makes reference to the rules established, although it is unclear what rules she is relying upon. June 3, 2015: The worker requests that all damages be compensated back to December of June 16, 2015: The worker asserts, among other things, that both arms are compensable. She also refers to delays by the WSIB. The worker refers to a cheque issued by the WSIB for non-economic loss (NEL) for CPD and fibromyalgia. In her submission, the WSIAT is just as guilty, for they too, continue to insult by stating that CPD started in 2002, however CPD started immediately once the accident occurred in December 1996.

4 Page: 3 Decision No. 531/12R June 25, 2015: This correspondence contains excerpts from the Workers Compensation Act, R.S.O. 1990, c. W.11. June 25, 2015: This correspondence describes the worker s dismissal from employment and alleges that the employer coerced her to sign a document. There are a number of unclear references, but the worker does request loss of earnings (LOE) from December 1996 to a future date. July 6, 2015: The worker request copies of the audio recording of the Tribunal hearing on October 22 and 23, The worker refers to being coerced to sign a piece of paper and her right to long term disability benefits. She attaches a copy of a document from the Government of Canada website, Public Servants Disclosure Protection Act and an Internet article on Bullying and Cyberbullying from the website of the Royal Canadian Mounted Police (RCMP). The worker provides her comments on the audio recording of the WSIAT hearings on March 27, 2014, October 22, 2014, and October 23, She concludes by questioning how it is possible that an individual like myself would quit voluntarily and yet continue fighting for my claims, for a period of 18 years. She alleges that they bullied me for 14 years, how could anyone believe they were honourable in the end. She repeats her claim for LOE from 1996 for the abuse and bullying tactics of both parties. She further suggests making them pay for purposely crippling me, both physically and financially. July 27, 2015: The worker filed a complaint with the RCMP. August 6, 2015: Correspondence addressed to D. Levac, MPP. August 14, 2015: Reprisal Complaint Form filed with the Integrity Commission of Canada. August 14, 2015: Reprisal Complaint Form filed with the Integrity Commissioner of Ontario. September 1, 2015: WSIB Intent to Object Form, in which the worker has scratched out WSIB and replaced it with WSIAT and her WSIAT file number. This Form indicates that the worker disagrees with a decision dated August 14, 2015, claiming that NEL/LOE and secondary injuries coverage was not as should be; soft tissue upper back, should be bone on bone, and not part of [claim number]; injuries r [sic] separate, not fibromyalgia or others. The worker refers to the 1996 accident and proof contained in a 1996 Daytimer. September 1, 2015: In correspondence dated September 1, 2015, the worker refers to Board policy document no The worker attached several medical documents to this correspondence. September 6, 2015: Correspondence to the Fair Practices Commission. September 9, 2015: Appeal WSIAT Addendum 2. The worker states that she was told the term total impairment is the required term to use to have all the NEL, SIEF, and LOE addressed as she felt it should have been done in the first place. She states that fibromyalgia is a secondary injury and her primary injuries were not

5 Page: 4 Decision No. 531/12R addressed as a total impairment. She refers to back injuries, medical reports, and how the company harassed her. September 9, 2015: The worker refers to grievances filed with the employer and a dispute regarding modified duties. The worker appears to take issue with a decision of the WSIB that her disability is based on fibromyalgia. She also refers to carpal tunnel syndrome, pressure in her upper back, and swelling of the left hand to compensate for the right. Attachments include a Complaint and Grievance Form filed in August 2002 and and memoranda from the employer. September 18, 2015: In correspondence addressed to the employer's representative, the WSIB Implementation officer, the Ontario Ombudsman, and WSIAT, the worker states that she contests the ruling which stated that she was not totally impaired. September 28, 2015: The worker responded to correspondence from Tribunal counsel dated September 22, The worker attached a letter from the Case Manager of the WSIB dated September 22, That decision acknowledges the worker s objection to the NEL assessment being conducted under the claim for fibromyalgia, rather than all of her separate injury claims. The Case Manager cites the decision of the implementation team that the body of the WSIAT decision accepts that the other specific injuries did not result in permanent organic injuries in these areas themselves. The Case Manager noted that the initial diagnosis for the neck was a myofascial strain only and later x-rays revealed significant degenerative disc disease which is not specific to any injury. October 15, 2015: The worker makes a number of statements, including that boxes fell on her back in December 1996, she received care from Dr. Hakim and lost time in the first week. She refers to the benefit of the doubt provision of the WSIA. October 31, 2015: The worker asserts again that boxes fell on her back while saving a young man during an accident in December November 9, 2015: The worker gives her interpretation of terms used in various medical reports, such as degenerative, erosion, and breakdown, and implies that her degenerative conditions are related to a workplace injury, presumably the 1996 injury for which entitlement was denied. She includes a table of calculations of her benefits. May 16, 2016: In this correspondence, the worker asserts that the Tribunal should correct the errors in her claims, including secondary facts and payouts. She repeats that her daytimer proves that she was injured in December She attaches a report from Dr. J.S. Dhillon, dated July 28, 2016, which indicated that the worker has had chronic neuropathic pain since August 4, 2016: The worker has made complaints to the Law Society of Upper Canada against all lawyers with the WSIAT, WSIB, the employer, and the employer s counsel. August 15, 2016: This correspondence is addressed to the Civil Intake Clerk of the Hamilton Superior Court of Justice.

6 Page: 5 Decision No. 531/12R (ii) The reconsideration test [5] The Workplace Safety and Insurance Act and the Workers Compensation Act provide that the Appeals Tribunal s decisions shall be final. However, section 129 of the Workplace Safety and Insurance Act and sections 70 and 92 of the Workers Compensation Act provide that the Tribunal may reconsider its decisions "at any time if it considers it advisable to do so". Because of the need for finality in the appeal process, the Tribunal has developed a high standard of review, or threshold test, which it applies when it is asked to reconsider a decision. [6] Generally, the Tribunal must find that there is a significant defect in the administrative process or content of the decision which, if corrected, would probably change the result of the original decision. The error and its effects must be significant enough to outweigh the general importance of decisions being final and the prejudice to any party of the decision being re-opened. The threshold test has been discussed in some detail in Decision Nos. 72R (1986), 18 W.C.A.T.R. 1; 72R2 (1986), 18 W.C.A.T.R. 26; 95R (1989), 11 W.C.A.T.R. 1; and 850/87R (1990), 14 W.C.A.T.R. 1. [7] As discussed in Decision No. 871/02R2, one of the fundamental concepts which guides the entire Tribunal process is a duty of fairness. The Tribunal has gone to considerable lengths, in spite of limited resources, to promote a fair process. The threshold test and the role of the reconsideration process must be understood in the context of the Tribunal s processes generally. Most parties have the option of an oral hearing, which is a hearing de novo at the Tribunal. This is very unusual at the final level of appeal within any adjudicative system. The Tribunal invests considerable resources in preparing cases for hearing and assisting parties to identify the issues in dispute so that parties can in turn be fully prepared for the hearing. The reconsideration process should not be so generally available that it undermines the important role of the original hearing or the finality of decisions which are reached after a fair hearing process. [8] Because of limited resources, the Tribunal must also carefully balance its processes to ensure that parties awaiting their first hearing are not penalized because of the expenditure of scarce resources on reconsideration requests. [9] It is instructive to refer to Decision No. 871/02R2 s analysis of the threshold test that a reconsideration request must meet and the reasons for this: Section 123 of the Workplace Safety and Insurance Act provides that a decision of the Appeals Tribunal under the Act is final. While the Appeals Tribunal does have the discretionary power to reconsider its decision under section 129 of the Act, this remedy is an exceptional one. Because the integrity of the appeal process and the finality of Tribunal decisions are important considerations in any reconsideration application, the standard of review or threshold which must be met in the reconsideration process is a high one. Although some representatives may advise their clients that a reconsideration application is merely a routine step in the WSI appeal process, this advice is wrong. The reconsideration process is a special remedy and the Tribunal s power to reconsider is invoked only in unusual circumstances; it is not intended as a routine process for any party or representative unhappy with a Vice-Chair or Panel decision. To treat reconsiderations as a routine, insignificant process would effectively undermine the statutory principle of finality, suggest that parties could routinely discount the original hearing process, and put successful parties at risk of multiple proceedings. To be successful on a reconsideration application, an applicant must discharge the onus to satisfy the Tribunal that an otherwise final decision should be reopened. Essentially, an applicant must:

7 Page: 6 Decision No. 531/12R (a) demonstrate that there was a fundamental error of law or process which, if corrected, would likely produce a different result, or (b) introduce substantial new evidence which was not available at the time of the original hearing and which would likely have resulted in a different decision had this substantial evidence been introduced at the original hearing. Any error and its resulting effects must be sufficiently significant to outweigh the importance of decisions being final and the prejudice to any party of the decision being re-opened. [emphasis in original] [10] The Divisional Court has reviewed and upheld the Tribunal s reconsideration process in Gowling v. Ontario Workplace Safety and Insurance Appeals Tribunal, [2004] O.J. No. 919 (Div.Ct). In particular, the Court found that: because a reconsideration is distinct from an appeal, a high threshold test is required to balance the interests of the Tribunal and other parties, and the original adjudicator is in the best position to evaluate the proceedings to address natural justice allegations. (iii) Analysis [11] The threshold test for a reconsideration request has not been met. As I understand the worker s correspondence, her complaints fall into the following main categories: 1. Allegations against the employer, including harassment, bullying, coercion, reprisals, and cover-ups. 2. Disputes with the WSIB s implementation of the original WSIAT decision, including the quantum of her NEL award, LOE benefits, and assessment of benefits for her organic injuries. 3. Her assertions regarding the appropriate interpretation of the medical evidence. 4. Her disagreement with the finding in Decision No. 531/12 that she did not sustain a personal injury in a workplace accident in or about December [12] With regard to the first category of allegations, the Tribunal only has jurisdiction under the WSIA and related legislation. The Tribunal does not have jurisdiction over these allegations of wrongdoing against the employer. As noted in the original decision (paragraph 17), workplace insurance is a no-fault system and it is usually unnecessary to consider blameworthiness or fault to determine initial entitlement. [13] Regarding the second issue, to the extent that the worker takes issue with the WSIB s implementation of Decision No. 531/12, she should file objections to those decisions through the appropriate channels. It is does not form the basis for a reconsideration of Decision No. 531/12. [14] The worker has made various assertions about the medical evidence, in particular, her apparently held belief that any evidence of degenerative change in her spine is related to her workplace injuries. Although she has relied upon information from the Internet, it is unclear that her treating health professionals have endorsed her assertions. In any event, however, regardless of the merits of these assertions, this does not reveal any defect in the original decision, which did not address the causation of the worker s degenerative conditions, except to the extent that she alleged that evidence of degenerative change in her spine was proof that she was injured at work in The alleged 1996 accident is addressed in more detail below.

8 Page: 7 Decision No. 531/12R [15] The worker raises new areas of injury, including the hip, which were not addressed in the original decision and do not support the reconsideration request. The worker also submitted a 2016 report from Dr. R. Lo, neurologist, which noted that the worker had a benign essential tremor for years. Dr. Lo notes that the worker was fixated on the degenerative disease in her neck. Dr. Lo concludes that the worker required no further investigation from a neurological point of view. The original decision did not address whether the worker had a tremor related to her compensable injuries and this does not support the reconsideration request. [16] Lastly, the worker attempts to re-argue the case regarding the denial of entitlement for an alleged workplace injury in December The issue was addressed in the original decision as follows: This claim was established in November 2010, when the worker notified the WSIB of an incident in November 1996 when shelving fell on a co-worker. The date of the incident is unclear since the worker submitted pages from her day timer which noted an incident in December The worker stated that she sustained injuries to low back, arms, and shoulder in this incident. The worker stated that there was no discomfort at that time but submitted a report in case problems arose. The WSIB denied this claim, finding that there was no evidence that injuries occurred due to an accident in November The worker described in her testimony an incident in which a shelving unit fell on a young co-worker in or about November The shelving unit did not fall on her. She and another co-worker were involved in lifting the shelf off of the co-worker. The Panel notes that there was a lengthy delay between this incident in 1996 and the worker s reporting of the incident approximately 14 years later. This delay alone suggests that the worker did not sustain an injury in this accident. As the Panel understands it, the worker believes that later diagnostic imaging reveals damage that was done to her spine in this incident. Our attention was not drawn to any medical opinion which directly supports this theory of the case. The worker appears to be relying upon the notion that a traumatic injury to the spine may cause post-traumatic degenerative changes that will not appear on diagnostic imaging for several years. Nevertheless, the initial injury must be a traumatic one: an insignificant injury that did not warrant any immediate medical treatment is not the type of trauma to the spine which is associated with changes in the spine. In this regard, the Panel refers to the Tribunal Discussion Paper on Back Pain, prepared for WSIAT by Dr. W.R. Harris and Dr. J.F.R. Fleming (March 1997, revised February 2003). The Discussion Paper states in part: Can an injury precipitate aging change? Rarely. However, a severe injury, such as a fall from a height (as opposed to a lifting strain) may result in the appearance (within a year) of narrowing of a single disc with bony overgrowth (spurs or osteophytes) at the adjacent vertebral margins. The Panel is not persuaded that the worker sustained any injury in this incident. Even if she did sustain an injury in that incident, it would not have been a severe injury analogous to that described in the Discussion Paper. If it had been such an injury, there would have been evidence of medical treatment at or about the time of the injury. There is no such evidence. Furthermore, the worker did not mention this incident to the WSIB for many years, despite frequent and ongoing communication with the WSIB during the relevant time period. In support of her position regarding this incident, the worker cited the WSIB investigation report of July That investigation was conducted in relation to the worker s claim for fibromyalgia, which the WSIB established as Claim #7. The WSIB investigator spoke to the employer Human Resources Manager, who stated that she was

9 Page: 8 Decision No. 531/12R advised by the adjudicator not to submit a Form 7. The worker takes the position that this establishes a conspiracy between the adjudicator and the employer. The Panel is unable to give effect to this argument, as the investigation was conducted in relation to the fibromyalgia claim, not the claim established for the incident of November The investigation took place in 2003, six years after the incident, but four years prior to the worker filing a claim for this incident in In advising the employer that a Form 7 was not required, it is evident that the claims adjudicator was referring to the fibromyalgia claim, not the incident of This is also consistent with the HR Manager s memorandum in the personnel file, dated May 30, The timing of the memorandum makes it clear that it was not related to the incident of November/December 1996, which was not reported to the WSIB until While the Panel accepts the worker s testimony that some type of incident occurred in November/December 1996, in which a shelf fell on a co-worker, there is insufficient evidence to find that the worker sustained any injury in this incident. [17] The worker submits the same evidence and arguments in support of this aspect of her reconsideration request, including her daytimer from December The daytimer shows that she worked from 1:30 p.m. to 10:30 p.m. on December 14, There is a note that shelving fell out. She worked from 11:00 a.m. to 6:30 p.m. on the following day, December 15, 1996, and then she worked 9:00 a.m. to 6:00 p.m. on December 16, This does not support her contention that she suffered an injury requiring immediate treatment. She was then was off on December 17, 18, and 19. She then returned to work on December 20, 21, 22, 23, and 24. Her daytimer indicates that she saw a Dr. Hokim or Hakim on December 17, but this does not prove that the appointment was related to an alleged workplace accident. There is no note from this doctor indicating that she sustained injuries in an accident at work. The worker had extensive communication with the WSIB in the intervening period, and did not notify the WSIB of an alleged 1996 accident until approximately [18] Furthermore, the worker has not pointed to any medical evidence from the time period following the alleged accident in December 1996 which indicates that she reported that she was injured when a rack of boxes fell on her at work. As noted in the original decision, the worker s claim for a gradual onset injury related to working long hours as a cashier, beginning in This further undermines her contention that she was injured in the incident of December [19] The worker has also made allegations against this Tribunal of conspiracies of various sorts. Her allegations in this regard are unsubstantiated and without merit. The worker was granted a full and fair hearing at the Tribunal, including three days of oral hearing, and the original decision allowed her appeal in many substantial respects, over the employer s objection. Reasons were provided for any issues on which she was not successful or partially successful. [20] Accordingly, I find that the Tribunal's threshold test for granting a reconsideration request has not been met.

10 Page: 9 Decision No. 531/12R DISPOSITION [21] The Tribunal s threshold test for granting a reconsideration request has not been met. DATED: December 14, 2016 SIGNED: R. McCutcheon