WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 967/14 BEFORE: R. Nairn: Vice-Chair HEARING: May 12, 2014 at Toronto Written DATE OF DECISION: August 29, 2014 NEUTRAL CITATION: 2014 ONWSIAT 1844 DECISION UNDER APPEAL: WSIB Appeals Resolution Officer ( ARO ) decision dated March 27, 2013 APPEARANCES: For the worker: For the employer: Interpreter: Did not participate Human Resources Supervisor 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
Decision No. 967/14 REASONS (i) Introduction [1] At the time of the accident under consideration here, the worker was employed as a general labourer in the accident employer s window and door manufacturing business. Born in 1980, the worker started with the employer in 2006. [2] On approximately December 4, 2009, the worker reported experiencing an onset of discomfort in her hands, fingers, wrists, elbows and shoulder which she related to the repetitive nature of her employment duties. She sought medical attention and the Health Professional s Report (Form 8) of December 8, 2009 (completed by Dr. R. Steen) provided a diagnosis of bilateral carpal tunnel. [3] As noted in Memo #2 of December 10, 2009, the WSIB (the Board ) recognized the bilateral carpal tunnel syndrome ( CTS ) as compensable. Information on file indicates that initially, the claim was allowed for health care benefits only as the worker continued to perform modified duties with full-time hours. [4] On approximately May 6, 2010, the worker was assessed at the Board s Hand Specialty Program. In the report which followed that assessment, Dr. J. Bain (plastic surgeon) concluded: We agree that she does have carpal tunnel syndrome and will need to be maintained on work modifications currently limiting lifting, gripping, and repetitive grasping of the bilateral hand and upper extremity. We talked about treatment options for carpal tunnel including steroid injection and surgical decompression, neither of which she was anxious to consider at the current stage in her pregnancy. We also encouraged her to ensure she gets appropriate glucose screening, both as a result of diabetes risk during pregnancy, but also just a general diabetic risk factor for carpal tunnel. She will continue splinting as previously directed. [5] An Employer s Progress Report (Form 42) dated September 21, 2010, notes that the worker's leave for sick, maternity/parental began on July 12, 2010. [6] In Memo #14 of July 14, 2010, a Board Adjudicator noted the following after a conversation with the worker's physiotherapist: This worker was assessed at the hand clinic in May/10 and recommendations were made for steroid injections or carpal tunnel surgery. The worker was pregnant at the time and not willing to pursue the above options. I have advised physio that the worker will have to return to her family doctor at this time to review her treatment options prior to returning to physio. [7] According to Memo #16 the worker returned from her pregnancy/parental leave on October 3, 2011. [8] The worker was assessed at the Board s Hand and Wrist Specialty Program on November 14, 2011. In the report which followed that assessment, Dr. Bain indicated in part: Recommendations
Page: 2 Decision No. 967/14 SURGERY The client requires bilateral carpal tunnel compressions in a staged fashion. The procedure risks and complications, expected outcome, and time off work were all discussed with the client today. We will proceed with the right, more symptomatic side first. Follow-up The client will require follow-up after the surgery as well as to plan her return to work. CURRENT FUNCTIONAL STATUS AND WORK RESTRICTIONS [The worker] should continue on with the current modified work. After surgery, she will need to be off work for a period of time estimated between two and six weeks per side. [9] On December 20, 2011, the worker had surgery performed by Dr. Bain. He performed a 1. right carpal tunnel decompression 2. right median nerve block. [10] On July 5, 2012, the worker had a left carpal tunnel release performed by Dr. Bain. According to Memo #45, the worker returned to work on August 13, 2013. Both the right and left CTS surgery were recognized as compensable by the Board and the worker received loss of earnings ( LOE ) benefits. [11] Subsequently, the employer applied for Second Injury and Enhancement Fund ( SIEF ) relief from the costs of this worker s claim. In Memo #29 of March 20, 2012, a Case Manager noted: ACCIDENT HISTORY /SEVERITY: Entitlement was accepted for bilateral carpal tunnel syndrome as directly related to the [work] performed that requires repetitive movement of her hands, with the use of a hammer, screwdriver etc. Based on this information, I am accepting the accident history is of a moderate severity as it would be expected to cause a disabling injury. PRE-EXISTING CONDITION: I have reviewed the information on file. I am satisfied that there is no objective evidence this worker has a pre-existing condition that has enhanced or prolonged her recovery. I note the worker has gone through two pregnancies, and she indicates the symptoms subsided when off on maternity leave. I also note she has hypothyroidism, but as indicated in the medical, this condition is controlled with medication (synthroid). DURATION: LOE benefits were allowed from December 8, 2009 to December 9, 2009. Benefits were reinstated from December 20, 2011 to February 6, 2012 while recovering from carpal tunnel release. RECOMMENDATION: Based on the above information, I am unable to grant SIEF in this claim. The case manager has accepted the carpal tunnel syndrome as directly related to the job performed. As outlined in a memo from the case manager the worker had carpal tunnel syndrome symptoms prior to pregnancy and indicates in a statement that her symptoms subsided while on maternity leave, thus indicating the repetitive work is the predominant factor. The worker recovered within the expected recovery period for this type of injury returning to work within six weeks. [12] The Case Manager reviewed the issue of SIEF relief again in Memo #31 of May 18, 2012, but confirmed the denial as no pre-existing condition has enhanced the injury or prolonged the recovery. The Case Manager issued a decision dated May 22, 2012, confirming the denial of SIEF relief.
Page: 3 Decision No. 967/14 [13] In late 2012, the employer contacted the Board asking to have the worker's claim status changed from active to inactive. In a decision dated November 28, 2012, an Experience Rating Advisor advised: You have indicated in your letter that the employee elected not to have carpal tunnel surgery following the diagnosis of her injury due to her being pregnant. The employee waited until after her maternity leave was over and was back at work to have the surgery. Loss of earnings benefits were granted for the pay period. Since the benefits were issued in the year of review, the claim type code was changed from inactive to active for the year 2012. The determination of a claims active/inactive status under NEER is based upon current years accident cost record. An active claim is a pension, compensation or labour market re-entry over $0 is processed in the current year. This active/inactive role is defined and applied consistently to all NEER employers and we are obliged to follow this procedure. The WSIB operational policy 13-02-02 states that a claim is inactive in a given calendar year if the claim has no benefits, or if the only benefits in that year are health care. Any amount for any other type of benefit paid in a current year activates a claim. In this case, benefits were processed in the NEER review, and there is no provision to retroactively adjust a firm s NEER assessment for this situation. Therefore, your request cannot be considered. [14] The employer objected to the conclusions of the Experience Rating Advisor and the matter was eventually referred to an Appeals Resolution Officer ( ARO ). In a decision dated March 27, 2013, the ARO denied the employer's appeal and concluded: The evidence on record indicates the worker delayed [her] surgery after [her] 2009 workplace incident due to a pregnancy. The Case Manager determined [she was] eligible for LOE benefits as assessments of [her] left wrist showed a worsening of the injury resulting from the original workplace incident, and a recurrence resulting from [her] 2012 surgery was accepted. In accordance with OPM document 13-02-02 NEER, a claim is inactive if it draws no benefits or only health care benefits, and is active for any amount of any other type of benefit paid on a claim. In other words, if a claim draws benefits other than health care during a particular calendar year the policy provides that it is considered active during that year. I find the worker s entitlement for [her] 2012 surgery was accepted as a recurrence, and as such LOE benefits were granted under the claim for the year 2012. Therefore I find LOE benefits were paid under [this claim] in the year 2012, and in accordance with OPM document 13-02-02, I find the worker s claim type is to remain active for the year 2012 as benefits other than health care were paid under the claim in 2012. (ii) Issue on appeal [15] The issue to be determined in this case is whether, for the purposes of the employer's NEER experience rating record, the claim type ought to be changed from active to inactive for the year 2012.
Page: 4 Decision No. 967/14 (iii) Submissions of the employer's representative [16] The employer agreed to have this appeal considered by means of written submissions. The employer's representative has provided submissions which have been reviewed and are included in Addendum No. 1. In those submissions, the employer's representative indicated in part: The claim listed above for [the worker] was inactive because she did not require any lost time; however she was receiving medical benefits for Physio Therapy. [The worker] was provided with transitional, modified duties while she was experiencing her pain. The decision was made for [the worker] to have CTS [surgery] in June of 2010. If [the worker] had had her surgery in the year when it was recommended to her, [the employer] would not have experienced such high projected future costs. See letter from [a Case Manager] dated June 5/2010. The decision to have the surgery was applied in 2011 and 2012, forcing the claim to go from inactive to active in a later year. The amount of time that lapsed pushed the claim into a higher calculation. Therefore we are requesting that the claim calculations that should have been used are the ones that would have been applied to the year that the decision was made, not from the year that the decision to have the surgery was applied. This policy does not address Leaves of Absences from work which then automatically puts the claim into active status in a later year. Thus creating a negative effect on the surcharge side for [the employer's] NEER statement. [17] The employer's representative also provided a copy of Tribunal Decision No.1698/97 and noted in part: So to link that decision to our case, [the worker] should have had her claim go from inactive to active in June of 2010. Not in 2011 and 2012. Since her personal reasons did not allow or her surgery to occur when it was recommended to her, [the employer] was heavily penalized with a surcharge and it is not acceptable. It is for the above listed reasons that we object to the NEER surcharge. [The worker s] claim was not accurately assessed and the incorrect multiplier was used. Had [the worker] not required a Leave of Absence her claim costs would have been much lower and [the employer] would likely not have had to endure such a high surcharge in September 2012. [18] As noted above, the employer s submissions also include a copy of a June 5, 2010, letter to the worker from her Case Manager in which she advised: I am writing this letter to confirm our conversation of June 5, 2010 in which we discussed return to work and recovery goals for your bilateral wrist injury. As you are dealing with a personal condition, we have agreed that your goal and ability to resume your regular job duties will be revisited in October 2011. We have also agreed that a full recovery from your injury will be determined by October 2011. During our conversation we developed the following plan to help achieve your goals: 1. RTW Plan Continue to work modified duties that include: Pulling orders, placing screens on shelves, paper runner duties and flung paper work This work is currently available to you and remains available to you until October 2010
Page: 5 Decision No. 967/14 2. Recovery Plan Continuous use of wrist brace Physiotherapy 6 weeks of treatment (01 Jun 2010 to 13 Jul 2010) Future cortisone injections Future CTS release Post-op treatment This plan has been created with your input and will be reviewed by myself on an ongoing basis during your recovery. Please continue to update your employer and myself regarding any changes in your progress and in the plan. In case of disagreement or difficulty with the implementation of your RTW plan, please contact me to discuss RTW services that may be available to assist you. I am also pleased to note that you are enjoying your modified duties that have been assigned to you. Most importantly that the duties assigned are not causing an increase in your bilateral wrist symptoms. (iv) Analysis [19] Since this worker was injured in 2009, the applicable legislation is the Workplace Safety and Insurance Act, 1997 (the WSIA ). [20] Pursuant to section 126 of the WSIA, the Tribunal is required to apply applicable Board policy. In this case, the Board has notified the Tribunal that one of the policies that applies to this appeal is Operational Policy Manual ( OPM ) Document No. 13-02-02 entitled NEER (New Experimental Experience Rating Plan). This policy indicates in part: Retrospective rating The WSIB s experience rating plans operate on the principle of retrospective rating. However, some types of claim costs are excluded from the experience rating calculations (e.g. See Excluded claims below). In the case of NEER and effective 2008, the WSIB reviews the claims costs for a given accident year on September 30 of the four following years. The recalculation of claims costs under NEER throughout the four-year review period takes into account any additional benefits or approved cost relief made on the claim. See policy 14-05-03, Second Injury and Enhancement Fund (SIEF); policy 14-05-01, Transfer of Costs; policy 14-05-02, Removal of Costs; policy 15-01-06, Third Party Motor Vehicle Accident Claim Costs. In certain circumstances the review period may be extended. See policy 13-02-07, Adjustments to NEER Refunds and Surcharges. If the employer s claims costs for a given accident year differ from the expected rate group average based on costs as of September 30 in the first year of review, the WSIB issues a refund or a surcharge for that accident year. If claims costs for that accident year change in the second through fourth year of review, the WSIB adjusts the refund or surcharge accordingly. For example, accidents occurring in 2008 have their costs reviewed for the first time on the basis of claims costs recorded up to and including September 30, 2009. Subsequent reviews of the 2008 claims costs, take place in 2010 through 2012.
Page: 6 Decision No. 967/14 Issue of refunds and surcharges NEER refunds and surcharges are calculated late in each calendar year using claims cost data up to and including September30 of that same year. The data and the calculation of the refund or surcharge appear on the Firm Summary Statement for September 30. A refund amount, as calculated, is first applied to any outstanding balance; only the net (remaining) amount, if any, is issued as a refund directly to the employer. Past awards and projected future costs NEER bases its calculations on the lifetime cost of each claim. It breaks down the cost of a claim into 3 parts 1. actual past benefits up to the date of the calculation 2. projected future costs for the lifetime of the claim, and 3. overhead. Active and inactive claims Most claims under NEER are classified as either active or inactive. A claim is inactive in a given calendar year if the claim draws no benefits, or if the only benefits the claim draws in that year are health care benefits. Any amount for any other type of benefit paid on a claim renders that claim active. Because active claims are more likely to have future costs, more money is set aside for the projected future costs of these claims than for inactive claims. Employers can usually expect a higher surcharge or lower refund amount because of these active claims. [21] The section of the policy that is central to this appeal is that contained under the heading Active and Inactive Claims. A claim is considered to be inactive in a given calendar year if it draws no benefits or the only benefits it draws in that year are health care benefits. The policy indicates that any amount for any other type of benefit paid on a claim renders that claim active. [22] The interpretation of this particular portion of Board policy has been considered in a number of other Tribunal decisions. The issue which is usually adjudicated involves determining whether a claim drew benefits in a particular year. Decision No. 1698/97, provided by the employer, was one such example. In that decision, a Board decision released in 1996 granted the worker entitlement to benefits for a six week period in 1994. The Board determined that the decision in 1996 granting benefits, made the claim active in 1996 even though the benefits awarded were for a period in 1994. The Panel in Decision No. 1698/97 allowed the employer's appeal concluding that taking into account the real merits and justice of this case, we find that it is unreasonable for the Board to render this claim active during the year that the decision was made, rather than the year to which the decision applies. [23] As the result of the somewhat ambiguous policy language, some Tribunal decisions have concluded that a claim is active based upon when the benefits were actually paid (see for example Decision Nos. 1520/03, 721/01 and 2163/01). Other Tribunal decisions however, have concluded that a claim should be made active on the date to which the payment applies rather than on the later date the payment was actually made (see for example Decision Nos. 167/07 and 1181/12).
Page: 7 Decision No. 967/14 [24] In the case before me, the worker was granted LOE benefits with respect to surgery which was performed in 2012. The Board determined that the claim ought to be characterized as active for that year given that the worker was awarded benefits. As I understand it, the employer submits that the Board erred in that conclusion and that the LOE benefits paid in 2012 should actually have been charged in 2010, the year when it was first determined that surgery would be required but was postponed due to the worker's pregnancy. I was not referred to any Tribunal decisions dealing with similar fact situations. In my view however, the reasoning contained in decisions such as Decision Nos. 16/09 and 1181/12, is not applicable to the fact situation before me. In Decision No. 16/09, the Vice-Chair noted: In my opinion, the reasoning in those decisions is sound and applies to the present case. In my view, to have NEER costs determined by the year in which those costs were paid creates a substantial unpredictability and impreciseness to the system. Decision dates can vary significantly. The dates of entitlement to those benefits are not variable and unpredictable. It seems eminently logical that an employer s costs be determined by reference to the date on which there is entitlement to those benefits, not by reference to the date when that entitlement was actually decided. It seems, therefore, in principle to be inappropriate to have costs determined by reference to the date when benefit entitlement is determined rather than by reference to the actual dates of entitlement. [25] In this case, there is no issue of unpredictability or impreciseness. The worker underwent compensable CTS surgery in 2012 and received LOE benefits during her recovery. Board policy, which the Tribunal is required to apply, provides that when LOE benefits are paid on a claim, it becomes active for that particular year. The issue of whether the worker could have had the left sided CTS surgery earlier than 2012 is not a factor to be considered in the application of this particular policy. In this case, the worker had surgery in 2012 and was granted LOE benefits that year. In my view, the facts of this case are not sufficiently exceptional such that it would be manifestly unfair were Board policy to be applied and this claim to be considered active for the year 2012.
Page: 8 Decision No. 967/14 DISPOSITION [26] The employer's appeal is denied. DATED: August 29, 2014 SIGNED: R. Nairn