WORKERS COMPENSATION APPEAL TRIBUNAL. EMPLOYER CASE ID # [personal information] WORKERS COMPENSATION BOARD OF PRINCE EDWARD ISLAND DECISION #124

Transcription

1 WORKERS COMPENSATION APPEAL TRIBUNAL BETWEEN: EMPLOYER CASE ID # [personal information] APPELLANT AND: WORKERS COMPENSATION BOARD OF PRINCE EDWARD ISLAND RESPONDENT DECISION #124 Appellant Respondent Laurie Young of DMC representing the Employer Brian Waddell, Solicitor representing the Workers Compensation Board Place and Date of Hearing October 22, 2009 Cox & Palmer, Charlottetown, Prince Edward Island Date of Decision December 7, 2009

2 1 Facts/Background 1. This appeal is an appeal by the Employer of Internal Reconsideration Decision IR-09-41, dated June 18, 2009, which denied the Appellant s request for reconsideration. 2. For the record, although the Employer, as represented by Laurie Young, Disability Management Consultant with DMC, originated the appeal, they chose not to be physically present at the oral hearing, instead opting to participate by teleconference. 3. With the Board s concurrence, the hearing proceeded as requested by the Employer. 4. The Appellant filed a Notice of Appeal dated June 22, 2009, wherein the Appellant appealed the Workers Compensation Board s ( Board ) decision of IR on the basis of the Board s failure to grant the following relief: (a) The denial of cost relief to the Appellant for the period of November 10, 2008 to February 16, 2009; and (b) The determination that non-cooperation would not be implemented on an employee s claim. 5. The Employee in question was employed with the Appellant as a line worker. The employee ( Worker ) filed a Worker s Report Form 6 dated June 11, 2008, wherein she indicated that she was injured at the Appellant s place of employment on May 28, 2008, and the description of her injuries were noted as repetitious use of dexterial hand causing severe pain, swelling and numbness. [Appeal Record Tab 7]

3 2 6. The Worker s claim was accepted by the Board effective May 29, 2008, with the accepted diagnosis as left wrist tendonitis. [Appeal Record Tab 28] 7. On May 29, 2008, the Worker did seek medical attention, and she was diagnosed with left wrist tendonitis and was advised against repetitive activities. [Appeal Record Tab 5] 8. The Worker returned to work on June 3, 2008, but was put off work for a week on June 10, The Worker did return to work on June 17, 2008, but only was able to work for 4 hours before experiencing pain in her arm and thumb. She attended the local emergency department on the same date and was placed off work for 3 weeks and was diagnosed with tendonitis of the left wrist. [Appeal Record Tab 11 and 18] 9. The Worker commenced physiotherapy on June 19, The first report of the physiotherapist to the Board dated June 20, 2008, indicated that the Worker was not able to work. [Appeal Record Tab 17] 10. The Appellant s representative wrote to the Worker s physiotherapist on June 19, 2008, advising that the Employer had modified work available to accommodate the Worker s left wrist restrictions, and requested that the physiotherapist indicate whether a return to work in modified capacity was supported by the physiotherapist. [Appeal Record Tab 14] There does not appear to be a response to that letter by the physiotherapist. 11. On June 23, 2008, the Worker reported pain in her right arm which apparently was aggravated because of her compensating for her left hand injury. [Appeal Record Tab 18]

4 3 12. The Worker was referred to an occupational therapist on the same date, and by memorandum dated June 27, 2008, Cathy Callaghan, Occupational Therapist reported to the Board that with respect to the repetitive strain injury to the Worker s left wrist and thumb, she was familiar with the Worker s job with the Appellant, and indicated that it was highly repetitive work. In addition, she reported that the type of work that the Worker was performing is well known as an awkward repetitive job within the industry and that the Worker was left hand dominant. [Appeal Record Tab 26] 13. Dr. B. Holland, by medical reported dated July 2, 2008, noted that the Worker had bilateral wrist pain and confirmed that the Worker was not capable of working in any capacity at that time. [Appeal Record Tab 32] 14. A physiotherapist report dated July 7, 2008, reported that the Worker continued to report pain and swelling at the base of her thumb as well as similar symptoms in the right thumb/forearm, and this report also noted that she was not able to return to work. [Appeal Record Tab 40] 15. On July 14, 2008, the Appellant filed a Notice of Request for Internal Reconsideration with respect to the Board s decision to approve the Worker for benefits, and this request was dismissed by Internal Reconsideration Decision IR dated September 28, [Appeal Record Tabs 48 and 85] 16. Due to the fact that the Worker did not have a family doctor, during the course of her treatment the Board received numerous medical reports from various doctors stating that she was unable to work, and on September 9, 2008, Dr. G. Johnston diagnosed her with DeQuervain s Tendonitis. [Appeal Record Tab 78] 17. By correspondence dated September 22, 2008, the Worker requested that the Board provide coverage for her right wrist/hand as well as her left wrist/hand.

5 4 This request does not appear to have been accepted by the Board. [Appeal Record Tab 83] 18. The Worker consulted with Dr. John Campbell, Orthopedic Surgeon, on September 19, In addition, the Appellant s representative wrote to Dr. John Campbell on October 14, 2008, to see if the Worker could participate in modified duties, as the Appellant s representative felt that the Worker s claim was for her left hand only and thus she should be able to participate in modified duties. In an undated report received by the Board on November 25, 2008, Dr. John Campbell did indicate that he thought that the Worker could participate in the modified work duties as described by the Appellant s representative in the letter of October 14, [Appeal Record Tab 99] 19. However, by letter dated October 30, 2008, Dr. John Campbell reported that the Worker was having ongoing issues with bilateral pain, and stated that the Worker indicated to him that she would be unable to do the modified work as proposed by the Appellant. [Appeal Record Tab 117] 20. The Worker was referred to Dr. Thomas Loane of Halifax, Nova Scotia for an Independent Medical Examination which was held on November 24, By Report dated November 24, 2008, Dr. Loane reported that it would be premature for her to return to any form of repetitive work using her hands: As she is left hand dominant, I think that it would be unlikely that she could perform right hand activities without at least using the left hand as a helper hand. Given her guarding and pain intensities, I think it is premature to do this.... I believe her presentation is consistent with bilateral DeQuervain s tenosynovities of the wrist which is work related. [Appeal Record Tab 132, page 8]

6 5 21. The Appellant does not accept the independent report of Dr. Loane, but relies on Dr. John Campbell s response to the Appellant s letter of October 14, 2008, [Appeal Record Tab 99] where Dr. John Campbell at that time thought that the Worker could perform the proposed modified duties. 22. The Board argues that there were several reports filed in support of the Employee s medical condition, namely, Dr. John Campbell s report of October 30, [Appeal Record Tab 117], the Independent Medical Report of Dr. Thomas Loane [Appeal Record Tab 132], and the report of Dr. John Campbell to the Board dated January 12, In that last report Dr. Campbell stated that he did not think the Worker could return to her work at the Appellant s place of employment and that surgery would probably be an option for the Worker. [Appeal Record Tab 148] 23. The Appellant argues that as of November 10, 2008, the Worker should have been able to return to work on a modified work plan, and thus the Appellant should receive the benefit of cost relief for the period of November 10, 2008, to the date of final determination on February 16, Secondly, the Appellant argues that the Worker notified the Board on February 16, 2009, that she was leaving for [personal information] on February 17, 2009, to return to [personal information] and thus she wished to have her claim closed effective that date. As a result, the Appellant claims that the Worker must have been exploring other avenues of employment prior to February 16, The Appellant also claims that as the Worker did not participate in the recommended recovery and rehabilitation plan and failed to provide full and accurate information to the Employer and the Board, that there should be a finding of noncooperation rendered on the Worker s claim.

7 6 25. On the other hand, the Board argued that there was no evidence on file that the Worker was non-cooperative in her treatment, return to work or that she deliberately misrepresented herself or her ability to work. Analysis Issue #1 Whether the Employer is entitled to cost relief for the period of November 10, 2008, to February 16, The Workers Compensation Act RSPEI 1988, Cap W-7.1 (as amended) (the Act ) provides a regime for compensation for injuries by accident caused to a worker arising out of and in the course of employment (section 6(1) of the Act). 27. In the appeal before this Tribunal, all of the medical evidence that was presented to the Board, namely, the reports from Dr. G. Johnston, Dr. John Campbell (and other doctors) and the independent medical report of Dr. Thomas Loane as well as the physiotherapy reports and the occupational therapy report strongly indicate that the injuries received by the Worker arose from her employment with the Appellant. In particular, the occupational therapist report dated June 27, 2008, indicates that the type of injury the Worker sustained was consistent with the job functions which she performed: I have seen this job many times in the past at various [personal information] plants and it involves holding a small [personal information] in your dominant hand and manipulating it with your wrist to [personal information] which is held with the nondominant hand. It is highly repetitive with sustained gripping forces to hold the [personal information] and awkward postures at the wrist to orient the [personal information] to pull out the [personal information]... Overall has [personal information] is well known an awkward repetitive job within this injury, and this worker is left hand dominant. [Appeal Record Tab 26]

8 7 28. Dr. Loane s independent medical report dated November 24, 2008, was even more definite. Dr. Loane indicated: [The worker] did not demonstrate any pain behaviours or signs of symptom magnification (p.5)... [the worker] provides a history consistent with a DeQuervain s tenosynovitis of both wrists more severe on the left. There may be some minor median nerve irritation secondary to the wrist swelling (p.6)... The description of the activities in which she was engaged in at the time are consistent with the type of activity that could produce this type of tendonitis (pp 6-7)... The presence of the bilateral symptoms is not unusual as the type of activity that she was doing at the time did involve forceful use of both wrists and hands (p.7)... At present, I think it is premature for her to return to any form of repetitive work using the hands. As she is left hand dominant, I think that it would be unlikely that she could perform right hand activities without at least using the left hand as a helper hand. Given her guarding and pain intensities, I think it is premature to do this.... I believe her presentation is consistent with bilateral DeQuervain s tenosynovities of the wrist which is work related. (p.8) [Appeal Record Tab 132] 29. From the report of Dr. Loane, it is apparent that he did consider whether the Worker would be able to use her right hand without using her left hand to assist her in work activities. His opinion was that she would be unable to do so, and thus, would not be able to participate in any modified work program which would involve use of either hand. 30. The Appellant placed great emphasis on the initial report of Dr. John Campbell [Appeal Record Tab 99] wherein he initially indicated that the Worker would be able to participate in a modified work program, but in a later report dated October 30, 2008 [Appeal Record Tab 117] he retreated from that opinion and stated that she would be unable to do the job. The Appellant argues that the October 30,

9 8 2008, opinion rendered by Dr. John Campbell is based solely on the Worker advising him that she would be unable to do the job and thus is not an independent opinion. The Appellant further argues that Dr. John Campbell and thus the Board made a decision on the Worker s ability to return to work solely on the basis of the Worker s views and opinions, as opposed to a medical opinion. 31. While Dr. John Campbell s opinion of October 30, 2008, may have been predicated on the views of the Worker, there can be no doubt that the independent medical examination performed by Dr. Loane clearly states that it was premature on November 24, 2008, to return to any form of repetitive work using the hands and given that she was left hand dominant, it would be highly unlikely that she would be able to perform right hand activities without at least using the left hand as a helper hand. Dr. Loane s report is supported by the physiotherapy reports, the occupational therapy report, as well as the January 12, 2009, medical report of Dr. John Campbell. [Appeal Record Tab 148] 32. Therefore, this Tribunal holds that on the basis of the medical evidence presented to the Board and filed with this appeal, there was certainly sufficient evidence to support the Board s position that the Worker was not able to return to work in the fall of It should also be noted that Dr. O Brien, the medical doctor for the Board, who initially stated that her injuries to her right hand were not related to workplace injury, did accept Dr. Loane s medical report and his opinion that the workplace activity probably created the pain in her right hand. [Appeal Record Tab 145] 34. Section 17 of the Act states: 17. Notwithstanding anything in this Act, on any application for compensation the decision shall be made in accordance with the real merits and justice of the case and where it is not practicable to determine an issue because the evidence for or against the issue

10 9 is approximately equal in weight, the issue shall be resolved in favour of the claimant. 35. In addition, Policy POL04-30 Weighing of Evidence states: 3. The standard of proof for decisions made under the Act is the balance of probabilities a degree of proof which is more probable than not. 4. Decision makers must assess and weigh all relevant evidence. Conflicting evidence must be weighed to determine whether it weighs more toward one possibility than another. Where the evidence weighs more in one direction then that shall determine the issue. 5. If the evidence is weighed in favour of the worker, the claim shall be allowed and compensation benefits provided. 36. It is the Tribunal s decision, that on the balance of probabilities, the Board was correct in holding that the Worker was not able to return to work between November 10, 2008, and the date of her claim closure on February 16, It is our view that the evidence before the Board and this Tribunal clearly supports that position. 37. On the balance of probabilities, the evidence which was on file with the Board, when considered in its totality, shows that it was more probable than not that the Worker was unable to work during the period of November 10, 2008 and February 16, Therefore, the Appellant is not entitled to cost relief for the period of November 10, 2008 and February 16, Issue #2: Whether there was evidence on file to confirm that the Worker did not cooperate with respect to the handling of her claim.

11 The Appellant argues that the Worker knowingly had the capacity to work and was planning to participate in active employment long before the closure of her claim with Board. The Appellant claims that as the Worker ended her employment relationship, did not participate in the recommended recovery and rehabilitation plan and failed to provide full and accurate information to the Employer and to the Board, a finding of non-cooperation should be rendered on the Worker s claim. 40. The Respondent argues that there was no evidence that the Worker was not cooperative in her return to work or that she misrepresented herself and her capacity to return to work. The Board argues that the Worker cooperated in all aspects with respect to appropriate medical treatments including attendance at various doctors and specialists, undergoing diagnostic imaging, an independent medical examination, physiotherapy and occupational therapy. In addition, the Board noted that the Worker managed to accomplish all of this without a regular family physician. 41. The Respondent also argued that one cannot retroactively go back and argue because the Worker obtained a job effective February 17, 2009, that she must have been able to work in the fall of 2008, as there is no evidence to support that. 42. It should also be noted that there was indication of the Worker s intention to return to [personal information] once her left wrist recovered as set forth in the inter-office memo dated October 23, [Appeal Record Tab 112] This intention to return to [personal information] was reiterated in the report of Dr. Thomas Loane [Appeal Record Tab 132]. Therefore, it does not appear that there was anything underhanded in the Worker s attempt to obtain a [personal information] position once she physically became able to do so.

12 On the evidence presented for this Tribunal, it is apparent that the Worker provided all information necessary and participated in every medical examination, testing or report requested by the Board. 44. Therefore, on the balance of probabilities, there is a lack of evidence before this Tribunal to support the Appellant s claim that the Worker did not cooperate with respect to the handling of the claim. The fact that the Worker was able to obtain employment that did not require repetitive use of her hand is not sufficient evidence that she was uncooperative in the handling of her claim with the Board. 45. Therefore, the Appellant s appeal is dismissed with respect to both issues. Dated this 7 th day of December, Wendy E. Reid, Q.C. Chair of the Workers Compensation Appeal Tribunal Concurred: Gary Paynter, Worker Representative Don Cudmore, Employer Representative