Workplace Health, Safety & Compensation Review Division WHSCRD Case No: WorkplaceNL No: Decision Number: 16081 Christopher Pike Review Commissioner The Review Proceedings 1. This hearing was held at the Review Division office in Mount Pearl, NL on February 17, 2016. The employer attended the hearing was represented by Laurie Young, DMC Consulting. 2. WorkplaceNL attended the hearing and was represented by Krista Gillam, LL.B. 3. The worker did not attend the hearing or participate in the hearing process. Introduction 4. On October 3, 2014 the worker injured his left elbow and upper back while employed as a laborer. His injury was diagnosed as a disc injury and muscle strain to the back and epicondylitis for the left elbow. A return to work commenced on October 7 with modified duties. The worker was laid-off due to lack of work on October 24, 2014. Treatment of the injuries continued. 5. An EMPOWER multidisciplinary assessment recommended continued physiotherapy and Clinic Based Occupational Rehabilitation (CBOR). 6. The worker participated in a CBOR program from January to March 2015. Functional gains were reported for his back, but minimal for his left arm. The onset of pain in the right shoulder was noted and related to compensation for the left arm during therapy sessions. 7. Chiropractic care was prescribed to treat both the elbow, low back and shoulder injuries on March 30, 2015. 8. On April 17, 2015 employer s representative requested cost relief for costs associated with the treatment of the worker s secondary right shoulder injury. 9. An ultrasound and MRI of the right and left shoulder showed the presence of tenosynovitis. 1
10. The September 9, 2015 case manager s decision denied the employer s request for cost relief. The employer appealed. 11. The October 20, 2015 internal review decision upheld the denial of cost relief. It is this decision the worker is appealing before the Review Commissioner. Issue 12. The employer requested a review of a decision made by WorkplaceNL dated October 20, 2015. The employer requested I find WorkplaceNL erred in determining they are not entitled to cost relief in relation to the worker s inability to participate in ongoing treatment, as a result of an injury he sustained while participating in his prescribed therapy program in treatment of the original workplace injury. Outcome 13. WorkplaceNL has erred by giving the word rehabilitation as used in Section 116 of the Act a meaning other than its plain meaning. The employer is entitled to second injury relief as claimed. Legislation and Policy 14. 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. 15. Also relevant and considered in this case is Section 116 of the Act, as well as Policy ES-11: Second Injury Relief and Policy EN-19: Arising Out of and in the Course of Employment. Relevant Submissions and Positions 16. On behalf of the employer, Ms. Young submitted a brief to supplement her presentation. 17. Ms. Young noted it is agreed between the employer and WorkplaceNL that the worker s original injuries and the secondary injury to his right shoulder are deemed to have arisen out of and in the course of his employment for the purposes of compensability in by Policy EN-19: Arising Out of and in the Course of Employment. 18. She noted the secondary injury occurred during his CBOR program, which she described as a medical rehabilitation program. Ms. Young acknowledged WorkplaceNL s position; that second injury relief is available only if the injury is incurred in the course of a labour market re-entry program, but asserted WorkplaceNL interpreted Policy ES-11: Second Injury Relief too narrowly in denying the requested relief because the Act does not differentiate between medical and vocational rehabilitation. 2
19. Ms. Young also referred me to two previous decisions of the Review Division involving similar claims. While acknowledging each case must be judged on its own merits, Ms. Young urged me to make a decision consistent with these prior decisions. 20. The following passage from Ms. Young s brief elaborates on these points: Section 116(1)(b) of the WHSC Act is clear in stating that Second Injury Relief is to be provided for employers to meet the cost of subsequent injuries resulting while a worker is participating in a rehabilitation program. In this case, [the worker] sustained a second injury, covered under the Act, while participating in active medical treatment for the compensable injury. It was a program to aid in the return to work process. While the WHSCC advises that the employer s request for cost relief is outside the parameters of Policy ES-11 as the injury did not occur while [the worker] was participating in the CBOR program, section 88 of the WHSC Act, under Section VI Return to Work and Rehabilitation does reference and explain rehabilitation. This legislative explanation certainly fits with the rehabilitation program [the worker] was participating in when he sustained the subsequent injury. Section 88 of the Act states that the WHSCC may take those measures and make those expenditures that it may in its discretion consider necessary or expedient to help in getting injured workers back to work; to help in lessening or removing a handicap resulting from a worker s injury; and to help in the rehabilitative measures of personal care and home care. The employer maintains that the spirit of the Act does not intend for employer s [sic] to be responsible for subsequent disabilities unrelated to the work injury that occur while participating in a rehabilitation or treatment program. Policy ES-11 states that Second Injury Relief decisions can be made when an employer requests relief. Upon request, the WHSCC will determine when, and to what degree, Second Injury Relief may be provided. Decisions must be made considering the real merits and justice of each case. While the WHSCC argues that the legislation defines those situations whereby the WHSCC will provide cost relief as being only when a new work injury or recurrence of a previous work injury covered by the Act occurs, or while a worker is participating in LMR program, the employer argues that this is not accurate. Policy ES-11 may specifically reference a recurrence or an injury incurred while participating in LMR, however the WHSC Act does not define the situations where the WHSCC can provide cost relief. In fact, S. 116(1)(b) states that Second Injury Relief is to be provided for employers to meet the cost of subsequent injuries resulting while a worker is participating in a rehabilitation program The WHSCC revised its policy in 2002 as to how they now interpret the WHSC Act, however the Act has not changed or been revised regarding Second Injury Relief or rehabilitation; the revised WHSCC policy does not reflect the spirit and intent of the Act. The term arising out of and in the course of employment means the injury is caused by some hazard which results from the nature, conditions or obligations of the employment and the injury happens at a time and place, and in 3
circumstances consistent with and reasonably essential to the employment. The right shoulder injury incurred by [the worker] did not arise out of and in the course of employment. The employer maintains that there was no hazard resulting from the nature, conditions or obligations of [the worker s] employment to result in the second injury. The employer maintains that the legislation does not differentiate between medical rehabilitation and vocational rehabilitation. The employer maintains that the intent of the legislation is to provide for second injury relief for workers who are injured during a rehabilitation program, without qualification. To differentiate between medical and vocational rehabilitation would not be within the intent of the Act or Policy. While each case is to be judged on its own merits, it is worthy to reference WHSCRD Decision No. 05132, wherein the Review Commissioner reasoned, I find the intent of the legislation and policy is to provide for second injury relief for workers who are injured during a rehabilitation program, without qualification... Occupational rehabilitation performed at an Occupational Therapy clinic is in fact rehabilitation, in accordance with section 116(1) of the WHSC Act. We also reference decision #09209 wherein the Review Commissioner notes: As noted in the employer s evidence, the employer has no control over the CBOR program either whether it is used or its operation. One of the central principles of workers compensation is that the employer is responsible for all workplace activity. To ascribe costs to the employer directly for activities over which there is no control violates this principle In considering the Act, policy and the evidence presented, I find the Commission has erred in not considering the CBOR program a rehabilitation program a rehabilitation program eligible for Second Injury Relief. Consequently, costs flowing from an injury incurred during participation in such a program should b (sic) charged to the Second Injury Relief Fund. 21. On behalf of WorkplaceNL, Ms. Gillam submitted a brief to supplement her presentation. 22. Ms. Gillam noted Section 116(1) of the Act is permissive, meaning WorkplaceNL may address its enumerated issues. She noted WorkplaceNL has developed two policies under Section 116 of the Act, but only Policy ES-11: Second Injury Relief is relevant to the employer s request for second injury relief and referred me to the following passage from 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 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 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. 4
23. Ms. Gillam also referred me to Policy EN-19: Arising Out of and in the Course of Employment which provides that injuries incurred in the course of treatment are treated as compensable injuries. 24. The following passage from Ms. Gillam s brief elaborates on these points: 12. WorkplaceNL s case manager determined that [the worker s] shoulder injury was compensable in accordance with Policy EN-19, Arising out of and in the Course of Employment. The policy states that where a worker is undergoing compensable treatment for an injury, any further disablement or subsequent injury resulting from that treatment is compensable. Therefore, [the worker s] shoulder injury arose out of and in the course of employment. 13. According to Policy ES-11, Second Injury Relief will be given when a new work injury or recurrence of a previous work injury covered by the Act occurs while a worker is participating in a labour market re-entry program. It is also given where a worker has a recurrence of a preexisting disability related to an injury covered by the Act that did not originate with that employer. 14. A review of section 89.2 of the Act and Policy RE-12, Labour Market Reentry Overview, establishes that a Labour Market Re-Entry (LMR) Program is composed of the LMR assessment and the LMR plan. The LMR assessment considers the worker s capacity to work and earn, as demonstrated by the worker s transferable skills and functional abilities. After the LMR assessment, WorkplaceNL must determine whether a LMR plan is necessary to enhance a worker s transferable skills or, if necessary, to provide the worker with new job skills enabling him/her to re-enter the labour market in suitable employment. The LMR program is designed to ensure workers have the skills, knowledge and abilities to re-enter the labour market and reduce or eliminate their loss of earnings. 15. [The worker] injured his shoulder while receiving treatment for his workplace injury. Since [the worker] was not participating in a [sic] LMR program when he was injured, Policy ES-11, Second Injury Relief, does not apply to this situation. Therefore, the cost relief that the employer is seeking does not fall within the policy. 16. Policy ES-11, Second Injury Relief, clearly specifies the situations upon which cost relief will be granted. Injuries that occur while a worker is participating in treatment is not one of the situations listed in the policy which would qualify for cost relief. The Board of Directors clearly specified that cost relief may be granted for injuries which occur during the LMR program. Therefore, it is reasonable to conclude that if the Board intended to grant cost relief for injuries suffered during treatment, it would have specified this in the policy. 5
25. The October 20, 2015 decision under review presents WorkplaceNL s decision thus: Essentially it is your contention that the employer should be granted cost relief. Your argument stems around the fact that the Legislation and Policy does not differentiate between medical rehabilitation and vocational rehabilitation. You indicate that the intent of the Legislation and Policy is to provide for second injury relief for workers who were injured during a rehabilitation program without qualification. You suggest it would not be within the intent of the Act or Policy to differentiate between medical and vocational rehabilitation. I disagree with your contention. The Legislation clearly states that second injury relief can be provided to employers to meet the cost of subsequent injuries resulting while the worker is participating in a rehabilitation program. The Legislation does not make any reference to medical rehabilitation. I find the intent of the Legislation was to provide cost relief when subsequent injures occur through vocational rehabilitation programs. This is further supported by the Policy. The Policy is very clear in that second injury relief will be given when a new work injury or a recurrence of a previous work injury occurs while a worker is participating in a Labour Market Re-entry (LMR) program. From my review of this Legislation and Policy, I do not find the intent would be to provide second injury relief while an individual suffers a subsequent injury while participating in medical rehabilitation; which is what has occurred in this case. Analysis 26. Section 26(1) of the Act directs a Review Commissioner to 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). It follows this direction that I do not have jurisdiction to address an issue which arises in the management of a claim, in distinction to the application of the Act, regulations and policies. 27. 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 only review whether WorkplaceNL followed these rules, and did so in a manner consistent with the Act. 28. Section 116(1) of the Act authorizes WorkplaceNL to create a reserve fund it uses to provide second injury relief. In part, the Section reads as follows: The commission may, in addition to the amount actually required in each class for the year, assess and collect from the employers in a class surcharges to be set aside as reserves 6
(b) by way of providing a reserve fund to be used to meet the part of the cost of claims of workers suffering enhanced disabilities, because of similar or other disabilities previously suffered, that in the opinion of the commission is the result of the previous disabilities, and to meet the cost of subsequent injuries resulting while a worker is participating in a rehabilitation program; 29. WorkplaceNL has issued Policy ES-11: Second Injury Relief to guide decision makers in considering employer requests for second injury relief. The Policy includes the following statement of general principle: 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 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. 30. The Policy provides further direction under the heading Specifics : 1. Injury or recurrence during a labour market re-entry program. Total relief will be provided where a worker suffers a new injury or a recurrence of a previous work injury covered by the Act while participating in a labour market re-entry program. All future costs attributable to the injury or recurrence will be transferred to the Second Injury Relief Account. (See Example 1 attached to this policy.) 31. The October 20, 2015 internal review decision found the legislature authorized the creation of the second injury relief fund and inferred the legislative intention was to include only vocational rehabilitation from the use of the phrase to meet the cost of subsequent injuries resulting while a worker is participating in a rehabilitation program in Section 116 of the Act. 32. I note Ms. Gillam did not address the interpretation of Section 116 of the Act advanced by the internal review specialist in the October 20, 2015 decision. In the presentation during the hearing before me, Ms. Gillam took a slightly different tack on behalf of WorkplaceNL and suggested its Board of Directors intended to limit cost relief to the situations outlined in Policy ES-11: Second Injury Relief; particular when the injury occurred in the course of a labour market re-entry program. In this way, she offered alternate reasoning for the decision under review. I am only able to review WorkplaceNL s decisions on the basis of the reasons published at the time they were released. It is perfectly legitimate to elaborate or extend the existing reasons when presenting an argument at a Review Division hearing. However, I hesitate to conclude WorkplaceNL s standing extends as far as presenting alternate reasons to justify the outcome. 33. Ms. Gillam may well have explained the intention of WorkplaceNL s Board with respect to second injury relief and Policy ES-11: Second Injury Relief. However, the basis of the decision under review is WorkplaceNL s assertion of the legislature s intention in enacting 7
Section 116 of the Act which authorizes the Board to grant second injury relief and particularly their use of the term rehabilitation. The section reads: (1) The commission may, in addition to the amount actually required in each class for the year, assess and collect from the employers in a class surcharges to be set aside as reserves (b) by way of providing a reserve fund to be used to meet the part of the cost of claims of workers suffering enhanced disabilities, because of similar or other disabilities previously suffered, that in the opinion of the commission is the result of the previous disabilities, and to meet the cost of subsequent injuries resulting while a worker is participating in a rehabilitation program; 34. The term rehabilitation is not defined Section 2 of the Act. Section 26(1)(a.1) allows the Review Division to review rehabilitation and return to work services and benefits, which suggests by use of the conjunctive, these concepts are related. Likewise, Section 5 allows WorkplaceNL to adopt policies and regulations relating to rehabilitation and return to work of inured workers. Pursuant to Section 45, WorkplaceNL can recover, by a subrogated action, amounts paid as medial expense, rehabilitation expenses, and other expenses. I find this establishes that the Legislature drew a distinction between medical and rehabilitation expenses when the Act was enacted. 35. This view is reinforced by the fact medical aid is covered in Part V of the Act and return to work and rehabilitation is covered in Part VI. Again the Legislature made a distinction between medical aid and rehabilitation in the sense those concepts are expressed in those parts of the Act. Additionally, early and safe return to work, re-employment obligations and labour market re-entry are all addressed in Part VI under the rubric of rehabilitation. 36. I note the series of WorkplaceNL policies with the RE designation establish a hierarchy in the return to work process. These policies and Section 89.2 set out a sequence which sees a worker move from return to work and then to labour market re-entry because it has been accepted this is the most effective way to reduce the costs of workplace injuries. The worker may receive rehabilitation services at any point during this process. 37. The term rehabilitation is not assigned a restricted meaning in the Act and the context in which it is used does not imply one. Clinic based occupational rehabilitation, by its title, is a form of occupational rehabilitation, so it is not clear to me why it is not considered rehabilitation for the purposes of the Act when employed at the return to work stage. It seems absurd that occupational rehabilitation at the labour market re-entry stage of a claim would be considered rehabilitation but occupational rehabilitation at an earlier stage of the claim is not. 38. The question in this case, as cast by WorkplaceNL in the internal review decision, is to discern the legislature s intention when it enacted Section 116 of the Act. One of the most well-entrenched canons of statutory interpretation is that the words of an Act are to be 8
read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. 39. I am satisfied the grammatical and ordinary meaning, as well as the entire context and scheme of the Act, the term rehabilitation is used in Section 116 the sense of restoring a worker to good health (medical rehabilitation) or restoring a worker to functional ability for suitable employment (vocational rehabilitation). Nothing in the language used by the legislature limits the use of rehabilitation to mean medical rehabilitation; only Policy ES- 11: Second Injury Relief does so. 40. I therefore conclude that while WorkplaceNL s decision complies with Policy ES-11: Second Injury Relief, it does not comply with the Act. Interpreting the concept of rehabilitation as being confined to rehabilitation during the labour market re-entry phase of a claim is not consistent with a proper interpretation of the Act. 41. Section 28(4.2) of the Act authorizes a Review Commissioner to set aside a decision and dispose of an issue in accordance with the Act, regulations and policies. I am satisfied this is an appropriate case to do so. WorkplaceNL erred in interpreting the word rehabilitation in Section 116 of the Act as meaning only vocational rehabilitation. For the reason outlined above, I am satisfied the legislature intended to include all methods of rehabilitation within the ambit of Section 116 of the Act when it was enacted. Decision 42. WorkplaceNL has erred by giving the word rehabilitation as used in Section 116 of the Act a meaning other than its plain meaning. The employer is entitled to second injury relief as claimed. Review Allowed Christopher Pike Review Commissioner CP/dho Date April 18, 2016 9