Workplace Health, Safety & Compensation Review Division WHSCRD Case No: 14049-02 WHSCC Claim No: 822812 Decision Number: 14173 Marlene A. Hickey Chief Review Commissioner The Review Proceedings 1. The hearing of the review application was held at the Workplace Health, Safety and Compensation Review Division office in Mount Pearl, NL on June 12, 2014. The worker participated in the hearing and was represented by Gerarda Gamberg, appeals officer with the Government Members Office. 2. Neither the employer nor the Commission attended or participated in the hearing. 3. The oral hearing in this matter was conducted by Review Commissioner Judy Manning on June 12, 2014. By the consent of the worker, the Chief Review Commissioner completed the review of the application by way of reference to the Case Description and the record of the hearing. Introduction 4. The worker was injured on May 7, 2010 and filed a claim with the Commission on May 17, 2010. 5. In his Form 6, Worker s Report of Injury, the worker indicated that he was injured when a box fell from above and landed on his head. He reported left-sided neck, shoulder, and head injuries. 6. The Commission received medical and physiotherapy reports and approved the worker s claim on May 25, 2010. The worker s injury was noted as to the neck and head. It acknowledged that the worker had a pre-existing history of whiplash. A Claim Note of that date indicated that further information would be requested on the worker s pre-existing health issues. 7. After several months, the worker s earnings loss benefit claim was subsequently closed and the worker returned to work elsewhere. 1
8. The worker s medical aid benefits continued following the end of the earnings loss benefit claim, and were reopened periodically over the next several years with respect to medical aid requests. 9. In April of 2013, the worker applied to have his earnings loss benefits reinstated on the basis of a recurrence. On May 8, 2013 the Commission issued a decision advising the worker that earnings loss benefits would be payable on his claim, effective April 22, 2013. 10. The Commission then further reviewed the question of the worker s pre-existing health issues, including a 2005 motor vehicle accident. 11. On August 28, 2013, the Commission sought the advice of one of its medical consultants as to whether the worker s present disability was as the result of a non-compensable dominant cause within the meaning of Policy EN-17: Interruptions and Delays in Work Recovery. 12. The Commission s medical consultant provided an opinion, and, on October 18, 2013, the worker s case manager advised the worker that his claim was closed under Policy EN-17: Interruptions and Delays in Work Recovery. The worker appealed. 13. On January 24, 2014, the internal review specialist upheld the case manager s decision and denied the worker s review. It is that internal review decision which is currently before me for review. Issue 14. The worker is requesting a review of a decision of the Commission dated January 24, 2014 and requests that I find the Commission erred in closing his claim effective October 10, 2013. Outcome 15. The decision of the Commission dated January 24, 2014 is set aside. The Commission has erred in the application of Policy EN-17: Interruptions and Delays in Work Injury Recovery. 16. The worker is entitled to appropriate retroactive earnings loss benefits to the date of termination, October 11, 2013. Legislation and Policy 17. 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 28 which state, in part: 2
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) (a.1) (b) (c) (d) (e) compensation benefits; rehabilitation and return to work services and benefits; an employer's assessment; the assignment of an employer to a particular class or group; an employer's merit or demerit rating; and the obligations of an employer and a worker under Part VI. (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. Application to a review commissioner 28.(1) A worker, dependent or an employer, either personally or through an agent acting on their behalf with written consent, may apply to the chief review commissioner for the review of a decision as referred to in subsection 26(1), within 30 days of receiving the written decision of the commission. (2) A review commissioner shall not review a decision under subsection (1) except in accordance with subsection 26(1). (4) A review commissioner to which a matter has been referred for review shall (a) (b) notify the person seeking the review and the commission of the time and place set for the review; and review the decision of the commission and determine whether it was in accordance with this Act, the regulations and policy. (4.1) Where a review commissioner determines that the decision of the commission was in accordance with this Act, the regulations and policy, he or she shall confirm the decision of the commission. 3
(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 (a) (b) make a decision which is in accordance with this Act, regulations and policy; or 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. 18. Also, relevant and considered in this case are Sections 2(1), 43, 43.1, 60, and 74 of the Act, along with Policy EN-02: Proportionment, and Policy EN-17: Interruptions and Delays in Work Recovery. Relevant Submissions and Positions 19. Ms. Gamberg, on behalf of the worker, described the mechanism of injury on May 7, 2010. The worker also described the incident and stated he was bending over at the waist to push a pallet of crab boxes weighing approximately 35 lbs. each through the freezer doorway when the top box caught in the door frame, striking him on the head resulting in an injury to his head, neck and back. 20. At the time, the worker indicated he just sat for a few moments as he was seeing stars and shortly thereafter, he returned to his duties. The next day, he stated he immediately sought medical treatment as he was barely able to move that morning. He stated he was off work for three days and then returned on modified duties putting bags on boxes. This required him to stand all day and he indicated he relied on pain killers throughout this time. He finished his employment in August, 2010 when the plant closed for the season and subsequently acquired a position at a local hardware store where he worked up to the time of his recurrence. 21. Ms. Gamberg referred to Decision No. 13054 by Review Commissioner Peckford from March 2013, quoting from Workers Compensation in Canada, Second Edition, Terence G. Ison: Disabilities commonly result from the interaction of multiple causes. If an employment event, exposure or other circumstance had causative significance, a claim is not barred because other factors unrelated to the employment were also causative. The test is: would the worker be suffering from the disability but for the employment event, exposure or circumstance? '...it is not necessary that the worker's employment be the most significant factor in her ongoing condition; it is sufficient that the employment was a significant contributing factor'.... If the employment contributed in a material degree to the disablement or death, it is compensable. 4
22. Ms. Gamberg also referred to Workers Compensation in Canada, Second Edition, by Terence G. Ison, Chapter 5.4.1, which discusses pre-existing causal factors as follows: Where a worker is disabled from work following an injury that arose out of and in the course of employment, compensation is payable whether the employment was the sole cause of the disablement, or whether other factors, such as weaknesses of the body, were contributory. If the worker was employed with his other limitations or disabilities prior to the injury, the subsequent disability is attributable to the injury and compensable as such. Similarly, where an employment event aggravates a pre-existing noncompensable disability, the aggravation is a compensable injury, and the worker is entitled to compensation for as long as the aggravation causes an absence from work. 23. Ms. Gamberg submitted the worker was capable of working following his recovery from the 2005 motor vehicle accident and this is confirmed by his Canada Pension Plan Statement of Contributions, which records pensionable earnings from 2008 to 2012 inclusive, as contrasted with an absence of pensionable earnings for the worker from 2005 to 2007. 24. Ms. Gamberg referred to Subsections 60, 73(1) and 73(2) of the Act, and Policy EN-20: Weighing Evidence and submitted the Commission has failed to apply the spirit and intent of the Act as required. She submits the evidence favors the position of the worker, as the worker was capable of working for three years, prior to the 2010 workplace injury notwithstanding the effects of the 2005 motor vehicle accident. 25. The Commission s position is outlined in the internal review decision dated January 24, 2014. The internal review specialist outlines the background information on the claim and notes the submission of the Workers Advisor in relation to the worker s claim for compensation. The internal review specialist also referred to some of the medical reporting on the claim, as well as the opinions of the Commission s medical consultant with respect to the compensable injury and the pre-existing condition. 26. The internal review specialist concluded as follows: [The worker], Section 60 of the Act requires decision makers to assess the weight of relevant evidence when determining an issue. Commission Policy EN-20 provides direction to decision makers when weighing conflicting evidence to determine whether it weighs more toward one possibility than another. Where the evidence weighs more in one direction than another, then that shall determine the issue. Policy EN-17 indicated that if a non work injury factor is the dominant cause of lost earnings capacity permanently then compensation benefits shall be terminated. In the Case Manager s October 18, 2013 decision the [sic] she noted that an MRI completed on August 7, 2013 revealed multi-level DDD other cervical spine with foraminal stenosis at C3-4, C4-5, C5-6, C6-7 and C7-T1. The Case Manager noted that the MRI revealed the presents of multi-level DDD of your cervical spine which was confirmed to be present and consistent with the March 9, 2007 CT scan report that predated your work injury. Acknowledging that the work 5
related injury could have exacerbated your pre-existing symptoms for a short period, the Case Manager found that your ongoing symptoms and associated disability was not a result of the work injury, but the same symptoms as preexisted your injury. From my review, the mechanism of injury and the resulting diagnosis of muscle strain in your neck was of a short duration and you returned to your job as a Bagger in the fish plant. The recurrence of injury in 2012 was accepted due to the symptom continuity, however once the medical information from your pre-existing motor vehicle injury was received, the Case Manager completed a review. I have reviewed extensive medical reports and the report of the Commission s Medical Consultant who was of the opinion that your current disability is the same/similar to that which existed prior to your May 2010 injury. As such, your pre-existing motor vehicle accident and injury and subsequent medical problems are significantly impacting your current level of disability. The Consultant noted that it is more probable based on the evidence contained within your imaged file that your current symptoms and resulting disability are a continuation of the already established chronic pain syndrome secondary to the motor vehicle accident in 2005. Although your representative has indicated a more severe mechanism of injury, file evidence does not confirm this information. Although your representative has indicated that you have worked with the pre-existing DDD, however file evidence revealed longstanding problems affecting your level of disability and return to work efforts. The weight of the evidence does not indicate that the current symptoms and level of disability are related to the minor work incident of May 2010. Medical evidence indicates significant disability up to February 2010 and a well-established history of medical and functional problems which have impacted your ability to work. [The worker], I have reviewed the medical information on file, along with the submission of your representative, the opinion of the Commission s Medical Consultant, the remaining file evidence, and the decision of the Case Manager. The weight of evidence supports that the neck problems and resulting disability which you are experiencing are as a result of a preexisting condition that has been present since 2005 and pre-dates your original May 2010 work injury. On the balance of probabilities, I find that the Intake Adjudicator has appropriately applied legislation and policy in terminating your claim for compensation effective October 10, 2013 and indicating that there is no further entitlement to wage loss benefits or health care benefits. Analysis 27. My role, in reviewing the decision of the Commission, is to determine whether the Commission acted in accordance with the Act, Regulations and policies applicable to this worker s claim. In this case, the application of Policy EN-17: Interruptions and Delays in Work Injury Recovery is at issue. 6
28. I note this claim appears to have been managed as any other usual claim for earnings loss benefits in that the expected adjudication process commenced as normal. That process resulted in the following Claim Note being recorded on May 25, 2010 by the intake adjudicator. It states in part: Claim accepted for injury to neck/head sustained 10-05-06 when a 50 lb box of crab fell striking worker on the head as reported on F6/F7. Supporting medical reports and physio reports on file. Worker has a preexisting history of whiplash in 2007 due to an MVA; noted by doctor, employer and worker. Pre-existing information will be requested from worker and doctor for file. Worker lost three shifts and has since returned to work on ESRTW, lifting restrictions. Claim referred to case manager. (Emphasis mine) 29. This Note reflects the notation pre-existing information will be requested from worker and doctor for file. This is an acknowledgement that on this date of claim acceptance the Commission was aware the worker had a pre-existing condition. The claim was accepted and benefits were provided. These benefits for the most part were in relation to ongoing medical aid entitlement. For the initial injury, there was only three days lost time as the Early and Safe Return to Work programming took effect and the worker was placed on modified duties with the pre-injury employer. This arrangement continued to the end of the worker s employment when the crab plant closed sometime in July or August, 2010. The actual dates in the file are somewhat conflicting; however, this is not critical. A Claim Note of August 25, 2010 confirms the claim to be closed at that time. 30. The worker experienced flare ups following the 2010 injury and several recurrences were accepted for medical aid generally. Though the worker s employment with the pre-injury employer had ended, the Commission continued to approve ongoing medical treatments such medications, physiotherapy and chiropractic care. This coverage was relatively extensive and continued during periods of further employment when the worker was employed by another employer for approximately a two year period. 31. The final and most recent recurrence was filed in April, 2013 and a Claim Note dated May 2, 2013 notes the recurrence was accepted. On May 22, 2013 a Claim Note reflects that the worker requires a priority neurosurgeon apt. Another Claim Note of May 22, 2013 records a request made for pre-existing medical relating to the motor vehicle accident of 2005. 32. The priority appointment was arranged and the neurosurgeon s consultation report is dated May 29, 2013 and advises the worker is to have an MRI scan completed. The worker is seen again, following the MRI scan, by the neurosurgeon on August 21, 2013. The MRI report is dated August 7, 2013 and on August 22, 2013 the case manager records its findings of multi-level degenerative changes and foraminal stenosis. 33. In June, 2013 efforts are made to identify possible return to work options with the new employer. Chiropractic care is approved in the interim pending the results of the consultation with the neurosurgeon and the MRI findings. 7
34. The MRI result confirms a degenerative, pre-existing condition to be present at this time. This is further confirmation to the Commission that there is a pre-existing condition. I note the following comments of the medical consultant in his memo of September 11, 2013: In my opinion, the ongoing symptoms are more likely related to the identified pre-existing multilevel degenerative changes and foraminal stenosis of the cervical spine. It is improbable that these changes resulted from the compensable injury as this type of pathology would generally take many years to develop. Certainly, the existence of degenerative changes has to be clinically correlated as these do not always result in significant symptoms. 35. At this point in the claim, there does not appear to be anything remarkable with respect to the Commission s application of the Act and policies since the acceptance of the claim in 2010. However, the nature of the management of the claim changes following receipt of the MRI report. 36. The case manager s next relevant Claim Note relates to the application Policy EN-17: Interruptions and Delays in Work Injury Recovery and refers to the medical consultant for an opinion. The medical consultant s opinion is requested on the following: [Medical Consultant], as a follow up to our meeting yesterday, please review the attached pre-existing medical reports on file and provide your medical opinion regarding the dominant cause of disability limiting this worker at this time. 37. The medical consultant engages in an extensive overview of the claim and states the following as his conclusion in his opinion of September 11, 2013: In summary, this now 58 year-old male Labourer reported a workplace injury in 2010 after being struck on the head with a box of crab that was falling from a pallet. The evidence on file supports a work related diagnosis of muscle strain/soft tissue injury involving the cervical and thoracic region. From the evidence on file I am unable to determine that the original work related injury resulted in any objective pathology affecting the above mentioned regions. This injury has occurred on a background of pre-existing multilevel degenerative changes of the cervical spine, as well as identified foraminal stenosis. Also, there is evidence of a significant Motor Vehicle Accident in 2005 with symptoms that were persistent and chronic from 2005 up to and including February 2010. I note that the work related injury occurred in May of 2010, which is only three months after the last family physician report regarding symptoms in relation to the Motor Vehicle Accident. The current pathology is the same/similar as the pathology identified when this worker was previously investigated for symptoms in relation to the Motor Vehicle Accident. There may be some slight worsening of the degenerative changes which is not unreasonable given the passage of time (i.e. age related). I am unable to determine that the current condition/symptoms are any different from what is well documented to have 8
been present between 2005 and 2010 which have been repeatedly documented to be persistent and chronic by the numerous health care professionals involved. To specifically address your question, in my opinion, it is more probable than not based on the evidence contained within the imaged file, that the current symptoms resulting in disability are a continuation of the already established chronic pain syndrome secondary to the MVA in 2005. It is possible that the work related injury of 2010 caused an exacerbation of symptoms for a short period. However, the current symptomatology is more in keeping with the original diagnosis of chronic pain syndrome that pre-dated the work related injuries of 2010. The ongoing symptoms are the same/similar as the symptoms reported prior to the original work related injury and the identified pathology is also the same/similar as it was prior to the work related injury. 38. The next relevant Claim Note on the file is dated October 11, 2013 with respect to the termination of the worker s benefits effective October 11, 2013 which is further addressed in the case manager s correspondence of October 18, 2013. I note the case manager concludes with the following: In reviewing the pre-existing medical documentation, it is clear that you sustained a significant cervical spine injury as a result of a motor vehicle accident in July 2005 and continued with ongoing problems up to February 22, 2010 and you were diagnosed with Chronic Pain Syndrome as a result of your pre-existing problems. As such, I place more weight on your preexisting problems as being causative of your ongoing symptoms and inability to return to work. The pre-existing medical documentation confirms you sustained significant injuries to your cervical spine as a result of a motor vehicle accident in 2005 with symptoms that were persistent and chronic from 2005 up to and including February 2010, and according to your doctor, are anticipated to be permanently impacting your functional abilities. [The worker], upon review of all the information currently on your file and weighing all file information, taking into consideration the Medical Consultant s comments, the evidence supports that your current symptomology is more in keeping with your original diagnosis of chronic pain syndrome that pre-dated your work-related injury of 2010. Your ongoing symptoms are the same/similar as the symptoms reported prior to the original work-related injury and the identified pathology is also the same/similar as it was prior to the work-related injury. As such, the evidence supports that the dominant cause of your ongoing lost earnings capacity at present, is your non-compensable problems as a result of significant injuries sustained in a motor vehicle accident you were involved in 2005. Therefore, your claim has been terminated and there will be no further entitlement to wage loss benefits or health care benefits, such as chiropractic treatment, medications, etc. effective October 10, 2013. 9
39. The internal review specialist subsequently becomes charged with reviewing this decision for compliance with the Act, regulations and policies. The focus of the internal review appears to be on the medical evidence relating to the worker s pre-existing condition and the mechanism of the May, 2010 injury rather than the issue of intervening factors as required by Policy EN-17: Interruptions and Delays in Work Injury Recovery. There is no dispute that a compensable injury occurred to the worker s cervical spine. As a result, this claim, though not expressly stated, appears to be appropriately accepted as an aggravation of a preexisting condition. There is no suggestion of another accident or incident since the May, 2010 injury, yet there is also no explanation of how this factors into the application of the Policy. Also missing is an explanation of why the return to work suite of policies was not considered, or an acknowledgement of Section 43.1 of the Act and its applicability to the claim at this point. As a result, it is difficult to detect how it could be concluded that Policy EN-17: Interruptions and Delays in Work Injury Recovery is at all applicable to this claim at this point. 40. I note the worker sustained a non-compensable cervical spine injury in the 2005 motor vehicle accident. I accept he was without an earning capacity for a period of time following this accident. I refer to the Canada Pension Plan Statement of Contributions and note there were no earnings for 2005, 2006 and 2007. Earnings are recorded for 2008, 2009, 2010, 2011 and 2012. Certainly this record demonstrates the worker did have some capacity to work and earn following his recovery from the 2005 accident and following the 2010 work injury. 41. At the time of the 2010 compensable neck injury, the worker was already dealing with a preexisting condition in his neck, the whiplash condition. The definition of injury is found in Section 2(1)(o) of the Act. The definition includes an aggravation of a pre-existing condition. A pre-existing condition, therefore, that is aggravated by a work injury is an injury under the Act and is compensable. 42. The manner in which claims are assessed for the effects of pre-existing conditions interacting with work injuries and disability is by way of Section 43.1 and Policy EN-02: Proportionment. If there is a compensable aggravation of a pre-existing condition, that preexisting condition cannot be characterized as among the intervening, non work-injury factors as described in Policy EN-17: Interruptions and Delays in Work Injury Recovery, particularly in the midst of active medical management and previous medical management of the claim as in this case. That is not the intended purpose of Policy EN-17: Interruptions and Delays in Work Injury Recovery. If the pre-existing, non-compensable condition is a component of the compensable injury, it cannot be considered as an unrelated or an intervening non-work injury factor. It is part of the compensable injury complex. 43. The Policy Statement of Policy EN-17: Interruptions and Delays in Work Injury Recovery provides the following: Section 74 of the Act directs the Commission to estimate the effect of a work injury on the loss of earning capacity resulting from the injury and to ensure compensation to the worker on the basis of that loss. When work injury recovery is interrupted or delayed for reasons unrelated to the work injury, however, or when intervening, non-work-injury factors are the dominant 10
cause of the loss of earning capacity, compensation may be suspended, reduced or terminated. (emphasis mine) 44. This Policy Statement contemplates that the other factors embraced by this Policy are separate issues which have no necessary relation to the compensable injury, and not the preexisting components of the compensable injury itself. This is evidenced by the examples noted in the Policy, such as a worker involved in a motor vehicle accident during a rehabilitation program following an injury. I note the Policy headings are: a. Interruptions and Delays Medical Treatment or Assessment b. Intervening Non-Work Injury Factors as the Dominant Cause of Lost Earning Capacity c. When a Non-Work-Injury Factor Becomes the Dominant Cause of Lost Earning Capacity and Recovery From the Work Injury Is Imminent d. When a Non-Work-Injury Factor becomes the Dominant Cause of Lost Earning Capacity and Recovery From the Work Injury is Not Imminent e. Non-Work-Injury Factor is the Dominant Cause of Lost Earning Capacity and Temporarily Interrupts Recovery from the Work Injury f. Non-Work-Injury Factor is the Dominant Cause of Lost Earning Capacity Permanently g. Pregnancy h. Extended Absence (Leaving the Locale) i. Personal Healthcare Factors 45. I note none of these headings capture or refer to the consideration of pre-existing conditions that have been aggravated by a compensable injury. The Policy generally is intended to achieve a different objective than the one obtained in this case. It is to address intervening factors which are not related in any way to the compensable injury and sever the connection between the worker s disability and the compensable injury. This claim should have continued on through the adjudication process, and the appropriate policies applied, if the evidence supported their application 46. Upon review of the internal review specialist s decision, I am not satisfied that he turned his mind to the appropriateness of Policy EN-17: Interruptions and Delays in Work Injury Recovery but rather took a very narrow view of the claim from the perspective of the impact of the motor vehicle accident in 2005 on the worker s current earning capacity. Unless the effect of the motor vehicle accident had no casual connection to the disabling injury, such an analysis is not typically performed under Policy EN-17: Interruptions and Delays in Work Injury Recovery, but rather under Policy EN-02: Proportionment, pursuant to the direction in Section 43.1, and as part of the Commission s overall authority to manage the claim as it deems appropriate. 47. By failing to detect that the case manager applied Policy EN-17: Interruptions and Delays in Work Injury Recovery incorrectly, and by failing to supply compliant reasoning despite the oversight by the case manager, the internal review specialist has erred in the review of this claim by upholding the case manager s decision on an erroneous rationale. 11
Decision 48. The decision of the Commission dated January 24, 2014 is set aside. The Commission has erred in the application of Policy EN-17: Interruptions and Delays in Work Injury Recovery. 49. The worker is entitled to appropriate retroactive earnings loss benefits to the date of termination, October 11, 2013. Review Allowed Marlene Hickey Chief Review Commissioner November 18, 2014 Date 12