Workplace Health, Safety & Compensation Review Division WHSCRD Case No: WorkplaceNL No: Decision Number: 16068 Christopher Pike Review Commissioner The Review Proceedings 1. This hearing took place on February 11, 2016 by way of a paper review at the request of the employer, and in accordance with Section 28(7) of the Act. 2. The employer made written submission through its representative, Rick Smolander, G.R. Smolander Professional Corporation. 3. WorkplaceNL made a written submission through its legal counsel, Krista Gillam. 4. The worker did not attend the hearing or participate in the hearing process. Introduction 5. On May 8, 2013 a worker reported the onset of right hand pain while employed as a machine operator. Time loss from work commenced on the day of injury. Medical attention was sought on May 13, 2013. The worker previously suffered another injury to his right hand in 2012 during employment with the same employer. 6. The employer s report of injury noted an objection to the claim. 7. The worker was diagnosed with muscle strain, repetitive strain, tendonitis and DeQuervain s tenosynovitis. This injury was not accepted as an aggravation of a preexisting non-compensable condition. Pain medication and physiotherapy were prescribed. A non-specific incident report noted the worker had been treated for similar problems in the past. 8. In relation to a previous claim for a right hand contusion injury, a secondary diagnosis of right handed carpal tunnel syndrome had been identified, and found to be noncompensable. The worker had surgical treatment for same in 2007 and 2012. 1
9. The initial August 6, 2013 intake adjudicator s decision denied the worker s claim. An internal review decision referred the matter back to review the job demands of the worker s position. 10. WorkplaceNL s occupational therapy consultant found the work duties could be reasonably related to the worker s then-current symptoms. 11. The claim was subsequently accepted in May 2014 for right hand repetitive strain, tendonitis and muscle strain. The employer appealed this decision, but it was later upheld by an internal review in August 2014. 12. On June 2, 2014 the employer requested the worker s file be reviewed to establish its entitlement to cost relief respecting the worker s current claim and his previous right hand injury history. A second request was filed on December 5, 2014. 13. A January 5, 2015 decision denied the employer s request for cost relief. The employer appealed with a submission outlining their position. 14. The March 4, 2015 internal review decision upheld the denial of the employer s request for cost relief. It is this decision the employer is appealing before the Review Commissioner. Issue 15. The employer requested a review of a decision of WorkplaceNL dated March 4, 2015. The employer requests I find WorkplaceNL erred in determining they are not entitled to cost relief under Policy ES-11: Second Injury Relief and Policy ES-12: Transfer of Injury Costs in relation to the worker s claim. Outcome 16. With respect, the employer s review request is denied. Legislation and Policy 17. The jurisdiction of a Review Commissioner is outlined in the Workplace Health, Safety and Compensation Act (the Act), Sections 26(1) and (2), 26.1 and 28. 18. Also relevant and considered in this case are Sections 19(1) and 19(4), as well as Policy ES 11: Second Injury Relief and Policy ES-12: Transfer of Injury Costs. Relevant Submissions and Positions 19. The employer made the following submission: 2
We note that the worker has had multiple episodes of compensable and noncompensable injuries to his right hand beginning with carpal tunnel surgery in May 2007. The worker subsequently lost time from work after aggravating his right hand condition in April 2009 as a result of raking at home. According to page 2 of the Medical Consultant s referral memorandum dated May 29, 2013, the worker stated that he has had ongoing symptoms since his previous injury, thereby establishing continuity and the presence of ongoing difficulty unrelated to [the 2012 claim]. The memorandum also notes that under claim number [previous claim], the worker lost a total of 32.2 weeks as a result of injuring his right hand when it became jammed between a roller and a piece of metal. The worker went on to have a second CTS surgery on October 22, 2012, and it is noted that the worker had been seeing his family physician continuously since that surgery. Again, this is clear and unequivocal evidence of ongoing difficulty unrelated to the accident of May 6, 2013. Furthermore, at page 3 of the memorandum dated July 16, 2014, the Medical Consultant concludes; Based on the currently available medical information I do not feel that his work activities are the primary reason for his present right-hand symptoms. Clearly then, the primary reason for the worker s difficulty is unrelated to [the current claim]. A second Medical Consultant s opinion was obtained on July 23, 2013, which noted that on May 8, 2013 a diagnosis of DeQuervain s tenosynovitis was offered, presumably by the family physician. This Medical Consultant concluded, in part, that; When worker initially presented note was made of pain to thenar eminence and to base of 4 th metatarsal dorsally. Hand weakness and decreased strength are also noted. Anatomically these do not correlate with a repetitive use of hand injury. Pain to the thenar eminence and base of thumb as in DeQuervain s is usually caused by repetitive rotational movements of the forearm as in using a screwdriver or by repetitive medial deviation of the wrist as in using a hammer. The worker s job description as provided does not indicate either of these events in a repetitive fashion. Nor does the job description indicate maneuvers likely to result in muscle strain, tendinitis or repetitive strain. And most importantly; 3
Pain to the dorsal base of the fourth metatarsal is consistent with CTS, so this is likely playing a role. We respectfully submit that this evidence clearly establishes two things. Firstly, there is continuity of symptoms and medical treatment of the right hand and wrist that predates this claim. In our submission, this in and of itself establishes the presence of a preexisting condition, no matter what the diagnosis or etiology of the worker s complaints. Secondly, there are on file not one but two medical opinions indicating that the worker s difficulty in May 2013 was unrelated to the workplace, but rather was related to pre-existing noncompensable CTS and possibly other prior right hand injuries. At a minimum, entitlement issues notwithstanding, these pre-existing conditions and symptoms have certainly acted to enhance and prolong the period of disability associated with this claim in addition to contributing to increased health care and other costs. We respectfully submit that it is on this basis that Second Injury Relief is warranted. 20. The employer asserts there is overwhelming evidence to demonstrate the worker s preexisting conditions enhanced and prolonged his recovery from the May 8, 2013 injury, which the employer characterized as minor. They say: This evidence was clearly described in detail in our January 13, 2015 submission, and while the Internal Review Decision lists that evidence in detail, it appears that our request for cost relief was denied because, as noted at the bottom of page 5 of the decision; I find it has been determined that [the worker s] right hand symptoms on May 8, 2013 were considered compensable as arising out of and in the course of his employment as a machine operator with [the employer], With all due respect, that analysis in no way shape or form addresses the overwhelming evidence described in our January 2015 submission. That evidence, which includes medical opinions from the Board s own internal Medical Consultants, confirmed that that the worker in fact has multiple compensable and noncompensable issues with respect to his upper extremities that have acted to enhance and prolong the degree and period of impairment. Furthermore, simply because something has been deemed compensable is not grounds for the denial of cost relief, as indeed cost relief is not applicable unless there is an allowed claim. 4
As such, with respect, we fail to follow the Internal Review Specialist s reasoning. Furthermore, our understanding is that entitlement was allowed for a soft tissue strain which would have healed in the average person within 8 to 12 weeks. The fact that this worker s condition did not resolve within that timeframe in accordance with accepted pathoanatomical norms is prima facie evidence that his multiple pre-existing conditions are in fact the cause of his ongoing impairment. If they are not, he would have got better. In our view, the experience rating costs associated with this claim should be adjusted accordingly. While it may be appropriate to assign some portion of the costs related to this claim to the employer s account, the evidence on file clearly establishes that the vast preponderance of the worker s difficulty has nothing to do with his employment, therefore, just because the threshold test for entitlement has been met is not grounds to deny cost relief, and the employer s accident cost record should be adjusted accordingly. 21. In the decision under review the internal review specialist made the following decision: I have now reviewed the Policies ES-11 and ES-12 in relation to your request for cost relief. Policy ES-11 notes that the purpose of Second Injury Relief is to provide an incentive for employers to hire injured workers and where certain circumstances exist, to redirect all or part of claim costs from the current employer to a general account. It is not intended to relieve employers of claims costs for injuries to their workers where it is appropriate for the employer to be responsible for those costs. It is not intended for relief for non-compensable disabilities, which are addressed by the Proportionment Policy EN-02. From my review of this policy, I do not find that the circumstances of this particular claim fall within the guidelines of this policy. I find it has been determined that [the worker s] right-hand symptoms on May 8, 2013 were considered compensable as arising out of and in the course of his employment as a Machine Operator with [the employer]. I have also reviewed Policy ES-12 - Transfer of the [sic] Injury Costs. This policy notes that Section 106 of the Act allows for the transfer of the costs of an injury from the experience account of one employer to that of another employer where it appears to the satisfaction of the Commission that a worker of an employer was injured or killed owing to the negligence of another employer and/or his or her worker. In my review of this policy, I do not find that the circumstances of this particular claim fall within the guidelines of this policy. 5
Therefore, from my review of the file, the Commission s legislation and policy as well as your submission, I find that the decision of the Intake Adjudicator made on May 15, 2014 of claim acceptance for right-hand repetitive strain and tendinitis does not fall within the policies of cost relief. 22. WorkplaceNL s position is outlined in their brief as follows: 18. [The employer] argued that it is entitled to cost relief due to numerous compensable and non-compensable Injuries. However, in the list of injuries that are identified by [the employer], three of the injuries are the non-compensable carpel [sic] tunnel syndrome and the other injury is a compensable injury that originated with [the employer]: [The worker] suffered from carpel [sic] tunnel syndrome in May, 2007 and October, 2012. According to a case worksheet note dated July 16, 2013, it was determined that [the worker s] carpel [sic] tunnel syndrome is not a compensable injury. [The employer] claims that [the worker] aggravated his right hand as a result of raking at home in April, 2009. However, according to the record, [the employer] filed a Form 7 which indicated that [the worker] suffered an injury on April 24, 2009. A claim file was opened with claim # [ ] and the medical records indicate that [the worker] was diagnosed with right hand carpel [sic] tunnel syndrome. However, the claim was not adjudicated due to late reporting. The May 16, 2012 injury under [the 2012 claim] was accepted as a compensable injury. [The worker] injured his right hand when it jammed between a roller and a piece of metal in the course of his employment with [the employer]. 19. According to the policy, the purpose of Second Injury Relief is to provide an incentive for employers to hire injured workers and, where certain circumstances exist, to redirect all or part of the claims cost from the current employer to a general account. As stated in the policy, this policy is not intended for relief of non-compensable disabilities which are addressed by proportionment. It is also not available where a worker has a pre-existing disability related to a compensable injury that originated with that same employer. 20. It has not been established that [the worker] has pre-existing disabilities that impact his current injuries. However, even [if] this was established, the injuries listed by the employer are not injuries that would be covered under Policy ES-11 - Second Injury Relief for second injury relief since the injuries are either non-compensable injuries or a compensable injury that originated with [the employer]. Therefore, the second injury relief policy does not apply to [the worker s] claim, 6
21. [The employer] argues that [the worker s] claim was originally denied. However, WorkplaceNL submits that this is irrelevant to the current decision on cost relief. Since the original denial of the claim, an Adjudication Assessment was obtained by WorkplaceNL which explained [the worker s] job duties in detail A subsequent report was also obtained from WorkplaceNL s occupational therapy consultant which indicated that it was her opinion that the work would have been a significant contributor to [the worker s] problems, Entitlement to compensation benefits is not an issue that is before the Review Division. WorkplaceNL s intake adjudicator determined that [the worker] was entitled to compensation benefits and this decision was upheld by internal review on August 4, 2014. This decision was not appealed. 22. The Workplace Health, Safety and Compensation Act does not provide for cost relief to employers for non-compensable pre-exiting disabilities or pre-existing disabilities related to a compensable injury that originated with that same employer. WorkplaceNL s Board of Director s has not created a policy mechanism for the granting of such relief. Instead, non-compensable pre-existing injuries are addressed through the Proportionment Policy - EN-02. 23. In essence, what the employer is seeking is administrative cost relief for which there is no provision in the Act or policy. Administrative cost relief is the process of redirecting all or part of the cost of the claim from a specific employer s experience account to the collective liability thereby charging the cost to all assessed employers. 24. Administrative cost relief for individual employers is generally not available in Canadian workers compensation systems. The Workplace Health, Safety and Compensation Act does not provide for administrative cost relief and WorkplaceNL s Board of Directors has not created a policy mechanism for granting of such relief. 25. WorkplaceNL submits that it is clear that the only two policies on cost relief, namely, Second Injury Relief and Transfer of Injury Costs do not apply in this case. (case description citations omitted) 23. WorkplaceNL submits the decision made on March 4, 2015 complies with its policies and the provisions of the Act which govern the employer s request: Analysis 24. In determining if WorkplaceNL erred, I cannot suggest it should use different criteria than those found in the legislation and applicable policy; nor may I use some alternate set of criteria in my review. It is not my role to review the Act, regulations and policies. I can 7
only review whether WorkplaceNL followed these rules, and did so in a manner consistent with the Act. 25. In addition, my review jurisdiction is limited to reviewing the evidence available to WorkplaceNL at the time the decision under review was made. I cannot consider evidence, which was not available to WorkplaceNL when the decision now under review was made. 26. Section 60(1) of the Act requires me to weigh the evidence and make decisions based on the balance of probabilities. This is a degree of proof which requires me to establish an outcome is more probable than not. The Act also requires me to favour the worker when the evidence on both sides of an issue is equally balanced. 27. WorkplaceNL asserts the employer is, in essence, seeking a remedy, namely administrative cost relief, which is not available under the Act and for which WorkplaceNL s Board of Directors has not created a mechanism through the creation of a policy. WorkplaceNL further asserts that because Policy ES-11: Second Injury Relief and Policy ES-12: Transfer of Injury Costs do not apply to the employer s claim for relief, no entitlement exists. 28. However, if the Act provides for the relief claimed, WorkplaceNL cannot rely on one of its policies to deny the employer s request for the same. A Policy cannot be used to fetter WorkplaceNL s discretion to address the employer s request if the Act authorizes the exercise of that discretion. 29. I note the Act does not expressly include or expressly exclude the possibility of granting administrative cost relief, but I further note the Review Division found the Act implicitly provides for such relief in Decision 14087 on the basis that under Section 19(1) WorkplaceNL has exclusive jurisdiction to examine, hear and determine matters and questions arising under this Act and a matter or thing in respect of which a power, authority or distinction is conferred upon the commission, and the commission has exclusive jurisdiction to determine 30. While I note that cost relief is not a matter enumerated in Section 19(1), I find (as did Chief Review Commissioner Hickey in Decision 14087) this list is to be read inclusively. I find the employer s request for administrative cost relief is a matter arising under the Act which WorkplaceNL has exclusive jurisdiction to determine. 31. Upon reviewing the Act and the body of WorkplaceNL s published policies, I have found no mandatory provision which addresses the type of situation which the employer argues here, but I find, (again, as did Chief Review Commissioner Hickey in Decision 14087) that WorkplaceNL has the residual authority to consider the employer s request, according to its own merits and justice under Section 19(4) of the Act which reads: The decisions of the commission shall be upon the real merits and justice of the case and it is not bound to follow strict legal precedent. 8
32. However, this does not mean WorkplaceNL automatically has to consider cost relief upon every request by an employer. WorkplaceNL has a jurisdiction under the Act to consider a request on a claim-specific basis, and to determine whether the request is in accordance with the overall intent of the Act, despite the absence of a specific provision. Section 19(4) contains a general direction to consider each case on its own justice and merits, but it also gives WorkplaceNL discretion to consider relaxing policies and time limits where the strict enforcement would defeat a claim which would likely succeed on its merits. However, it does not create a right to administrative cost relief. It allows WorkplaceNL to consider it as the circumstances require. The circumstances require where there would be an unfairness which is not intended by the Act. Therefore, the larger intent of the Act is particularly important. 33. I note in this case that the employer s request was not specifically articulated on the basis of some broader argument of unfairness to be remedied under Section 19(4). I will return to this later, but I note that the employer s argument was advanced on the grounds of some error under one of WorkplaceNL s existing policies on cost relief. I am therefore satisfied WorkplaceNL correctly limited their consideration of the employer s request for relief to Policy ES-11: Second Injury Relief and Policy ES-12 - Transfer of Injury Costs and the sections of the Act they support. 34. WorkplaceNL s policies exist to guide decision makers to conclusions which are compliant with the Act, so I must consider whether one of Policy ES-11: Second Injury Relief or Policy ES-12: Transfer of Injury Costs can be applied to do so. 35. Policy ES-12: Transfer of Injury Costs is intended to provide guidance when relief is sought by one employer to transfer claims costs to another who is negligently responsible for a worker injury. The background statement to the Policy reads: Section 106 of the Act allows for the transfer of the costs of an injury from the experience account of one employer to that of another employer where it appears to the satisfaction of WorkplaceNL that a worker of an employer was injured or killed owing to the negligence of another employer and/or his or her worker. 36. I find the facts of the worker s claim underlying the employer s request for administrative claim cost relief do not support the application of Policy ES-12: Transfer of Injury Costs because there is no other employer involved in the compensable injuries which the worker suffered. The earlier compensable injury was with the same employer. I therefore find WorkplaceNL correctly declined to rely on Policy ES-12: Transfer of Injury Costs to grant the requested cost relief. 37. With respect to second injury cost relief, the general policy behind Policy ES-11: Second Injury Relief is stated as follows: The purpose of Second Injury Relief is to provide an incentive for employers to hire injured workers, and where certain circumstances exist, to redirect all or a part of claims costs from the current employer to a general account. It is not intended to relieve employers of claims costs for injuries 9
to their workers where it is appropriate for the employer to be responsible for those costs. 38. Policy ES-11 - Second Injury Relief then goes on to state: is not intended to grant relief for claims which are subject to proportioning under Policy EN-02 Proportionment; is available for injuries suffered during a labour market re-entry program; and is available for the recurrence of an injury which did not originate with the employer seeking relief. 39. I find the facts of the worker s claim underlying the employer s request for claim cost relief clearly do not support the application of these portions of Policy ES-11: Second Injury Relief because the worker s claim has not been proportioned; nor was he engaged in a labour market re-entry program, nor did he suffer a recurrence of an injury which originated with another employer. I therefore find WorkplaceNL correctly declined to rely on these portions of Policy ES-11: Second Injury Relief to grant the requested cost relief. 40. Policy ES-11: Second Injury Relief also provides for relief when, injury recovery period is extended or there are increased costs because of a preexisting disability or pre-existing impairment. The specific provisions, under the heading Injury superimposed on preexisting disability reads: Total or partial relief may be provided when a new disabling injury is superimposed on a previous injury covered by the Act involving loss of earning capacity. The two injuries must be medically compatible, i.e. related. The severity of the pre-existing disability and its impact on the earning capacity following the new injury will be considered when determining the degree of relief to be provided. Decisions on entitlement to earnings loss must also be made in accordance with Policy EN-02 Proportionment. (emphasis mine) 41. This portion of Policy ES-11: Second Injury Relief applies only when a pre-existing disability impacts the second injury. The word disability as used in the Act and in policies refers to a loss of earning capacity as a result of an injury. I find the evidence does not support the position the worker had lost earnings capacity prior to May 8, 2013. Furthermore, if there was a pre-existing disability covered by the Act, (i.e. a previous compensable injury resulting in earnings loss) the only previous injury was an injury with the same employer. I therefore find WorkplaceNL correctly declined to rely on this portion of Policy ES-11: Second Injury Relief to grant the requested cost relief. 10
42. Based on the foregoing, I am satisfied WorkplaceNL correctly applied Policy ES-11: Second Injury Relief and Policy ES-12 - Transfer of Injury Costs in their decision making process. There was no error under the policies. 43. As noted above, there was not a ground of error identified under the Act itself. In their submission, the employers asserted: While it may be appropriate to assign some portion of the costs related to this claim to the employer s account, the evidence on file clearly establishes that the vast preponderance of the worker s difficulty has nothing to do with his employment, therefore, just because the threshold test for entitlement has been met is not grounds to deny cost relief, and the employer s accident cost record should be adjusted accordingly. 44. This submission suggests an examination of the worker s medical condition should lead to a consideration of cost relief. Of course, if the worker s entitlement was correctly decided, the benefit decision would be in accordance with the Act, regulations, and policies, so there would have to be some other feature of the case which suggests the employer should be relieved from costs associated with the claim. 45. However, upon reviewing the matter, I do not perceive how WorkplaceNL could be said to have erred in denying cost relief. It does not offend the larger intent and scheme of the Act, which includes an experience rating, for costs to be associated with the account of an employer in whose employ the worker was injured. In fact, this is what the Act intends. 46. Much of the employer s cost relief submission was an indirect challenge to WorkplaceNL s decision on causation. The opportunity to challenge WorkplaceNL s findings on the cause of the injury was when WorkplaceNL reached its entitlement decision. That decision was made in May of 2014. It was upheld on internal review in August of 2014 and became final at that time, in the absence of a further review to the Review Division. Recourse was available to the Review Division at that time. The August 2014 decision settled the question on whether the worker s injury arose out of and in the course of employment, and what the nature of his injury was. WorkplaceNL did not accept the worker s injury on the basis that it was an aggravation of a pre-existing condition, and that finding is not properly in issue before me now. 47. What the employer seems to be arguing is that the claims costs should be abated because the presence of a non-compensable condition. Where a work injury aggravates a preexisting condition under Section 2(1), WorkplaceNL may consider proportionment of the worker s earnings loss benefit and permanent functional impairment award, under Section 43.1 of the Act. Under Policy EN-02: Proportionment, there is a proportioning factor on a claim where a non-compensable factor lengthens recovery or affects the extent of disability, which is in essence what the employer is arguing. 48. However, it has already been determined by WorkplaceNL that the injury is not an aggravation of a pre-existing condition, so this is a moot point. Had it decided otherwise, the extent of the worker s entitlement would have been controlled through proportionment. There is no necessary relationship between proportionment and cost 11
relief, as Policy ES-11: Second Injury Relief acknowledges. In this case, the worker was found to have a new injury in the course of employment with the employer, and it is not an error to associate the related claims costs to the employer s account. There is no need to apply Section 19(4) to relieve against an unintended or unfair result, as the outcome does not violate the intent of the Act as a whole. 49. Since there is no error on the part of WorkplaceNL under the Act, regulations, and policies, I cannot overturn its decision. Decision 50. With respect, the employer s review request is denied. Review Denied Christopher Pike Review Commissioner Date March 22, 2016 12