Workplace Health, Safety & Compensation Review Division

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1 Workplace Health, Safety & Compensation Review Division WHSCRD Case No: WHSCC Claim No: Decision Number: Marlene A. Hickey Chief Review Commissioner The Review Proceedings 1. The hearing of the review application was held at the Review Division office in Mount Pearl, NL on April 30, The worker and his representative, Martin Beausoleil, both attended the hearing via teleconference. 2. Neither the Commission nor the accident employer attended or participated in the hearing process. Introduction 3. On May 6, 2009 the worker injured his neck while employed as a truck driver. The diagnosis was disc injury with inflammation. Physiotherapy was prescribed. A brief return to work was unsuccessful. Wage loss benefits were approved. Medical investigation and treatment continued. 4. On October 12, 2009 the Commission s medical consultant reviewed the file and noted that additional medical information was required prior to making a decision on the application of proportionment. 5. In December 2010 and January 2011 the Commission received medical files pertaining to a number of previous neck injuries sustained by the worker. 6. On February 4, 2011 the Commission s medical consultant reviewed the file for proportionment and concluded the May 2009 work injury was minor and the pre-existing neck condition was moderate. 7. A May 4, 2011 case manager s decision informed the worker any future extended earnings loss benefit entitlement would be proportioned by 75%. The worker appealed. The July 25, 2011 internal review decision upheld this decision. The worker appealed through to the Review Division. 8. The December 9, 2013 Review Division Decision No referred the matter back to the Commission to re-examine the evidence in relation to the establishment of the proportionment factors. 1

2 9. On January 15 and 31, 2014 the Commission s medical consultant reviewed the file with respect to the assignment of proportionment factors. 10. The February 19, 2014 case manager s decision informed the worker that, upon review, there would be no change in the proportionment of his claim. The worker appealed. 11. The May 1, 2014 internal review decision referred the matter back to the case manager to complete a more detailed analysis on the proportioning of the claim. 12. On May 14, 2014 the Commission s medical consultant again reviewed the file. 13. A May 22, 2014 decision in response to the May 1, 2014 internal review decision concluded there would be no change in the proportionment factors on the claim. The worker appealed. 14. On June 4, 2014 the worker s representative submitted correspondence in support of the worker s position. 15. The August 25, 2014 internal review decision upheld the May 22, 2014 decision. It is this decision the worker is appealing before the Review Division. Issue 16. The worker is requesting a review of a decision of the Commission dated August 25, The worker is requesting I find the Commission erred in applying a 75% proportioning factor against his claim. Outcome 18. The decision of the Commission dated August 25, 2014 is set aside. The worker s proportionment rating for the pre-existing condition is confirmed as moderate, however, the claim is remitted to the Commission for a compliant review of the rating for the work injury in accordance with Policy EN-02: Proportionment and its definitions for the ratings. 19. As the proportionment issue has not yet been concluded, the worker is entitled to receive full wage loss benefits, without proportionment, retroactive to the date on which his entitlement to extended earnings loss benefits were initially proportioned. Full benefits are to continue until a compliant proportionment decision is made. 2

3 Legislation and Policy 20. The jurisdiction of the Chief 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: 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) notify the person seeking the review and the commission of the time and place set for the review; and 3

4 (b) 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. (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. 21. Other relevant sections considered are Sections 43.1 and 60(1) of the Act, as well as Policy EN-02: Proportionment. Relevant Submissions and Positions 22. Mr. Beausoleil begins his submission by asking the worker to respond to a number of questions. The worker subsequently confirmed many of the factual details on the claim with respect to his pre-injury employment and the history of his pre-existing neck problems. This includes an outline of the nature of the pre-existing condition, its symptoms and treatments prior to the recent workplace injury in May, The worker confirms that he had only experienced minor neck problems in the past. Though there were several incidents of injury, he states the neck pain he experienced was liveable and he had not lost any time from work since his recovery in 2005 from an injury in Ontario. 24. With the accident employer, the worker states he had also not lost any time from work during the one year employment he had with them. He had not required any accommodations or modified work. He worked without any problems. It was not until this recent injury that the problems with his neck became so severe that he has been left unable to work. 25. The worker describes the mechanism of injury and explains how he incurred the injury when he struck his forehead off a truck side mirror which caused him to tip his head back sharply. The worker states at the time he actually fell to the ground following the impact and further struck his head and neck when he hit the ground. This injury, he states, has left him with considerable restrictions unlike anything he had experienced prior to this injury. 4

5 26. The extent of the worker s problems include continuous neck pain, headaches, decreased range of motion, difficulty tilting his head back to drink, and right arm pain and numbness which is something he had never experienced from his other injuries. He also has considerable problems with pain in his shoulders, trouble sleeping, muscle spasms etc. The worker states he takes a lot of medication and this has also affected him as he now has problems with his stomach. He has not been able to return to work since the 2009 injury. 27. The worker believes that had he not been injured in 2009 he would have continued working without any problems. 28. Mr. Beausoleil states the facts of this case are not in dispute. Rather, it is the application of Policy EN-02: Proportionment which is an issue. He submits that the Commission has inappropriately applied the Policy in its determination that the worker s benefits should be proportioned by 75%. 29. The fact that the worker has pre-existing C-spine problems is also not disputed. The evidence, however, Mr. Beausoleil argues, confirms that the worker did not have any problems since January 2006 with his C-spine, and problems did not occur until the worker s recent injury on May 9, Mr. Beausoleil noted Decision No of the Review Division and argued that many of the concerns noted in that review with respect to the analysis applied to determine the ratings are also concerns in this case. There is a lack of analysis, he submits, as to why a rating of minor for the work injury and a moderate rating to the pre-existing condition, in light of the criteria outlined in the rating definitions. Mr. Beausoleil also noted Review Division Decision No and Decision No as also relevant to this claim. 31. This claim, Mr. Beausoleil argues, has been confused by the Commission, as it has been referred back to the same medical consultant who simply recycled his opinions over and over. The rationale for the opinions, he submits, is still not clear. 32. There is no evidence to suggest that the worker was symptomatic prior to the May 2009 injury. There is also no evidence, Mr. Beausoleil submits, the worker had to seek any medical treatment for his pre-existing condition. Considering that the work injury was the trigger that put the worker off work and not the pre-existing condition, how then, he questions, can the work injury be considered as minor. 33. Mr. Beausoleil reviewed the definitions for the ratings and noted that the work injury has caused a permanent loss of earning capacity as the worker went on to the labour market reentry process and also received a permanent functional impairment award for the permanent impairment resulting from the injury. This, he submits, limits the worker s ability to earn at the pre-injury level, therefore, a major rating is more applicable or, at a minimum, a moderate rating for the work injury. 34. In addition, Mr. Beausoleil argues new symptoms have arisen since the work injury which were not previously part of the pre-existing condition. The worker now experiences right arm pain and numbness, which he had not experienced prior to the May, 2009 injury. The work injury has worsened the pre-existing condition and this feature of the injury has not 5

6 been factored into the Commission s rating assignment and Mr. Beausoleil argues it must be if the worker is to be compensated for the effects of the work injury. 35. The work injury was a significant injury according to Mr. Beausoleil and should never have been rated as a minor injury initially by the Commission. He questions, to what extent has this premature determination affected the worker s entitlement. The work injury is much more than minor when you consider the worker can no longer work and earn, it has worsened the worker s pre-existing condition, it has caused him to apply and be awarded Canada Pension Plan disability benefits, there is permanent impairment which is recognized by the Commission and the worker continues to experience symptoms which, prior to the work injury did not impair his ability to work. 36. Mr. Beausoleil refers to several documents in the file as evidence to support his position in relation to the severity of the worker s symptoms and the worker s condition prior to and since the work injury. 37. Reference is also made to a previous decision on this claim made by the Review Division on December 9, Mr. Beausoleil submits the Review Commissioner, at that time, had concerns with the Commission s analysis and noted the following in Decision No : Upon examination of the Medical Consultant s opinion, as can be seen above, there were relatively few findings made from the file evidence which were presented to explain his conclusion. In fact, I feel it is fair to state that there is a conclusion, but the decision does not disclose the analysis on the core issue. The opinion, as expressed, is without much in the way of rationale to support it, except the phrase contained in brackets, which states (but was it symptomatic). This seems to indicate that the Medical Consultant had some misgiving about the rating provided on the pre-existing condition, however, based upon its brevity, it is difficult to conclude what was meant. Nevertheless, was its presence meant to convey some indication that in the absence of prior symptoms produced by the pre-existing condition, the chosen factor (moderate) should be different? This is impossible to tell. I do note the file evidence does show the worker s pre-existing conditions were symptomatic, however, after initial recovery, he returned to full-time employment. In the three categories used, the reference is to the degree the injury of pre-existing condition affected the ability to earn. Consequently, the presence or absence of symptoms prior to the compensable injury is not the full measure of the severity to be attributed to the condition; it is how each factor affects (meaning how they would have been expected to affect) the ability to earn, in the absence of the other factor, that is to be measured. Mr. Beausoleil submits the required analysis has still not yet been completed despite the referral by the Review Commissioner to do so. 38. In summary Mr. Beausoleil relies on Decision No to support his position, that the Commission s analysis is inadequate with respect to his application of the Policy EN-02: Proportionment and that the rating has been incorrectly applied. Mr. Beausoleil requests that the work injury be rated as major and the pre-existing as minor or alternatively that the both ratings be established at moderate. 6

7 39. The position of the Commission is outlined in the Commission s decision dated August 25, The internal review specialist notes the relevant legislation and policy and outlines the relevant evidence. She also notes the opinions of the medical consultant of January 31, 2014 and May 14, With respect to the pre-existing condition rating, the internal review specialist states the following: I have reviewed your case and I have considered the evidence. I find it must be determined whether proportionment is applicable in your case or in essence does the evidence support a non-compensable factor is at play which is having an impact on your ability to work and earn. If the evidence support same, and the commission does have the authority under section 43.1 and Policy EN-02 to determine appropriate rating regarding the work injury and the proportioning factor and adjust compensation entitlement accordingly. As I have outlined in the medical documentation it is clear your findings on diagnostic imaging which confirm you have non-compensable issues involving your C-spine. These have been clearly identified. In considering the proportionment factor, in your case, the non-compensable issues, the case manager has applied a rating of moderate I find this rating to be appropriate. It is clear the evidence support that you did experience issues with your pre-existing difficulties prior to the work injury of May This is supported by the medical documentation on file as well as the previous injuries in Ontario. In your favor is the fact that following these injuries you did in fact return to work. However, I find the evidence supports the proportioning factor to be moderate and it is defined in the policy as not being expected to limit a worker s ability to earn at the pre-injury level. Even though this is a more serious injury or factor, permanent disability is not anticipated 40. For the rating for the work injury, the internal review specialist provides the following in her reasoning: With regard to your work injury in the province of Newfoundland, you report that you were walking quite briskly hitting the mirror on a truck resulting in a whiplash type injury to your neck. The initial medical report on file indicates that you hyper extended your neck. You were assessed by [Orthopedic Surgeon] on July 9, From a neurological standpoint he did not find any significant evidence of any neurogenic dysfunction, spinal cord pathology, herniation, or nerve root irritation. The Commission s Medical Consultant reviewed your file and on reviewing the incident which has been described by yourself and your employer as a whiplash type of injury he still regarded as being a minor incident. On a cervical spine whiplash rating, he would say on a scale of 1 to 4 with 1 being the lowest, this would be a 1. 7

8 The Medical Consultant subsequently reviewed your file again. In a note entry dated August 22, 2014 he indicated that he had reviewed the claim again. He noted it is firmly established that your pre-existing condition was moderate as defined in the definition provided by the criteria in the preamble of policy EN-02. With respect to the mechanism of injury, walking into a wing mirror on a truck, did not result in loss of consciousness or concussion. He indicates this further allows him to further confirm his feeling that the incident can be classified as minor. From my review of the medical information on your file following the work injury, I would concur that the medical information does not indicate a loss of consciousness or concussion. The initial diagnosis was a neck strain. I find that with respect to the mechanism of injury, the injury would seem minor in nature having reviewed the Form 6, Form 7 and the medical report immediately following in the injury. Policy EN-02 defines minor as an injury that is not expected to limit a worker s ability to earn at the pre-injury level. I find that the incident as described would be considered as minor and in the absence of any pre-existing injuries or pre-existing condition of degenerative disc disease would not reasonably result in an inability to return to work at the pre-injury level 41. The internal review specialist concludes her decision as follows: I have reviewed your case and I have considered the evidence. As I have outlined, I find the evidence does support that proportionment should be applied in your case. I also find the Case Manager has made an appropriate determination in providing a rating of minor to your work injury and moderate to your non-compensable issues. When we reviewed the policy, particularly the table provided, these ratings do provide for a reduction to your EEL entitlement by 75%. I support the Case Manager s determination on this issue Analysis 42. My review of this issue will begin with the previous Decision of the Review Division provided in December, 2013 as it appears to be the starting point that subsequently led to the latest decision by the Commission which is under review. Decision No referred the matter of the proportionment ratings to the Commission. The following conclusions were provided at that time: In considering the totality of the above, I find: a. The medical opinion does not provide a rationale to explain the finding on the assignment of proportioning factors. This is especially important in this case because I also note that there was a previous medical opinion on file, which did not, or could not reach a conclusion on the proportioning factors to be assigned. Given the sparse 8

9 explanation, transparency in examining the evidence to support the findings is not present. b. The Internal Review Specialist accepts the Medical Consultant s opinion and implements it without satisfactory explanation and reasoning, based on findings. 43. The direction to the Commission on the remittal in relation to this issue was as follows: This decision is referred to the Commission with the direction to undertake a review of the evidence supporting its proportionment factors and provide a new decision, with rationale to support the ratings associated with the workplace injury and pre-existing condition. 44. The thrust of the Decision was to require the Commission to perform the proportionment rating analysis according to the definitions as they are found in the Policy, and according to the ratings table. The present degree of contribution by the pre-existing condition to the disability is not the issue. The definitions are applicable according to whether the work injury, and the proportioning factor, would be expected to have some effect on the worker s earning capacity. A conclusion, supported by reasons and findings, is required on those points, on the basis of probability as per Section 60(1). 45. Following receipt of this Decision, the Commission s medical consultant provided the following opinion on January 15, 2014: At your request I have reviewed this file noting that I had previously addressed the subject of the application of EN-02, Proportionment. In correspondence dated at which time I was of the opinion that a Moderate/Minor type of proportionment equation existed. I have reviewed this file again today and would reiterate that I am still of the opinion that the proportionment equation here should be Moderate/Minor. Moderate being the pre-existing condition which was moderate degenerative disc disease in the neck. This is reported on an MRI scan back in 2007 and on x-rays in March of Yet, despite this, this injured worker managed to drive a truck without apparent problems. There is a total recorded injury list of 3, one in 1978, one in 1992 and one in 2002 and the fourth, the subject of this claim, in August Again, based on the radiological and diagnostic imaging reports I would rate the degree of pre-existing degenerative disc disease in the C-spine as Moderate and on reviewing the incident which has been described by the worker and the worker s employer as whiplash type of injury I still regard this as being a Minor incident. I have, therefore, no reason to change my opinion on the proportionment equation in this instance and I feel my opinion is supported by the radiological and medical findings presented to me in this file 9

10 46. This opinion provides some further rationale on the recommended rating for the pre-existing condition, however, it does not discuss the expected effects of the pre-existing condition, or the work injury, on this particular worker s pre-injury earning capacity, had the other not occurred. The presence of moderate degenerative disc disease on diagnostic imaging does not, in and of itself, automatically prompt a rating of moderate according to the definitions in the Policy. The previously established rating of minor for the work injury was also maintained. Similarly, the classification of the injury as whiplash also does not, in and of itself, automatically prompt a rating of minor according to the definitions in the Policy. 47. I cannot determine what prompted a second memo from the medical consultant, however, another opinion by the same medical consultant was provided on January 31, It was obviously appropriate because the opinions to date had drawn conclusions that did not necessarily align with the questions posed by the Policy. The definitions of minor and moderate are quoted. The medical consultant quotes from the Policy and repeats that the worker had moderate degenerative osteoarthritis in his neck, confirmed by MRI and x-ray. He acknowledges that despite this, the worker was able to work. 48. As to the work injury, the medical consultant states that on reviewing the mechanism of injury walking into a wing mirror on a vehicle I would describe this is as minor. On a cervical spine whiplash rating, I would say on a scale of 1 to 4 1 being the lowest this would be a 1. I note no reference is made to the work injury beyond this, and no conclusion is expressed on the likelihood of effect on earnings capacity, on the balance of probabilities, otherwise. 49. The issue which required, and continues to require, full examination is whether the work injury and the pre-existing condition satisfy one of the criteria in the definitions and ratings tables. This was the only question the medical consultant was required to answer. There is nothing objectionable about a Commission medical consultant straying into expressing an opinion on the ultimate issue, however, the primary function of the medical consultant with respect to proportionment is not to supply the adjudicator with the conclusion, but to provide the medical insight the adjudicator lacks. 50. The actual determination of whether a work injury or a proportioning factor is minor, moderate or major depends on the application of the ratings table and definitions to the evidence on the claim. 51. On January 31, 2014 the worker is advised of the result of the review directed by Decision No There is no change in the ratings. The worker appealed. In an internal review decision, dated May 2, 2014 the Commission s internal review specialist concluded with the following: upon review of the February 19, 2014 analysis of the weight of evidence in accordance with Section 60 of the Legislation to support the reasoning for the Proportionment factors as directed by WHSCRD. Furthermore, there is no explanation provided by the Case Manager as to why the Medical Consultants opinion of October 2009, that did not support Proportionment was not considered in the Case Manager s original decision of May 4, 2011, and again in her decision of February 19,

11 52. The claim was referred back to the case manager for a detailed analysis and reasoning, as directed by Decision No In light of the reply from the case manager and the repetition of the opinion of the medical consultant, that was the appropriate direction at the time, in my view. 53. Following this, the same medical consultant reviews the file, reporting to the current case manager. A more detailed memo results. It once again concentrates on the evaluation of the changes at C4-C5 and C5-C6. It states that, once again, I go back to the nature of the injury and taking into account the meaning and purpose of Policy EN-02, I cannot, in fact, change the previously expressed opinion of mine regarding the proportionment on this issue He states that I would stress the point that, in my opinion, again, the incident was in fact minor. Also, he offers the comment that there is no relationship between the degenerative disc disease in the neck and the incident described in the mechanism of injury, which seems difficult to accept at face value, because there is no proportionment applicable if the work injury does not aggravate a pre-existing condition, disease, or disability. I must interpret this comment to mean that he does not believe that the work incident caused the underlying disease, versus aggravate it. However, there is still no conclusion, based on the balance of probabilities, as to how each of the conditions especially the work injury would be expected to affect the worker s pre-injury earning capacity in the absence of the injury. It concludes with the statement It is not my intent, therefore, to change the previously designated proportionment of incident minor and preexisting moderate. (emphasis mine) 54. Given these comments in the face of the previous direction(s), perhaps a review by a different medical consultant would have likely been appropriate. It needs to be recalled that it is not the opinion of the medical consultant which is the object of the proportionment review, and it is not the role of the medical consultant to designate a proportionment rating. The case manager determines the rating, with opinion provided by the medical consultant as far as is necessary to address the medical findings which bear on the definitions contained in the Policy. The objective of the proportionment review is to determine if the worker s overall injury warrants proportionment, on the basis set out in the Act and the Policy. Given the number of times that this question has cycled back to the same officials, and the number of times that the same analysis has been provided notwithstanding the directions, a fresh review of the medical evidence relative to the definitions is probably warranted at this point, as the general philosophy of the legislation is to avoid repetition of the appeals cycle whenever possible. In my view, this matter has already cycled back and forth to an unnecessary degree. 55. I state this because on August 20, 2014, the same medical consultant provides another opinion which still does not engage the question in the definitions and ratings table. There is no indication in the file as to why this opinion was further sought, i.e. no Claim Notes, I would assume it would be to address the deficiency in the previous opinion with respect to the lack of rationale around the rating of minor to the work injury. I note the opinion is as follows: I have again reviewed this file, addressing the particular subject of the mechanism of injury. This injured worker walked into the wing mirror of a truck, claiming he sustained a lower neck whiplash. The first treating physician was, who made the same type of observation, that he had 11

12 suffered a whiplash from walking into the wing mirror of a truck. What is lacking here is sufficient information. One, did he walk into the wing mirror of the truck, and hit it with his head, his face, his neck or his upper thorax. Having reviewed my previous comments on this subject, I would suggest again that this mechanism of injury supports, in my opinion, a minor type of injury (emphasis mine) 56. In addition to the August 20, 2014 opinion, there is also a Claim Note dated August 22, 2014 which states: Dear I have further reviewed this claim it is firmly established that the preexisting condition was moderate as defined in the definition provided by the criteria in preamble of EN-02. The mechanism of injury eg walking into a wing mirror of a truck did not result in loss of consciousness or concussion as I am informed. This further allows me to affirm my original feeling that the incident can be classified as minor. (emphasis mine) 57. In this August 22, 2014 Claim Note, the medical consultant confirms the August 20, 2014 opinion and the analysis used in it, even though there is an acknowledgement that there is a lack of information on the mechanism of injury, as I note below. In any case, the mechanism of injury is not the only consideration in the definitions and ratings table. Undoubtedly, it is an important, if not essential, finding in determining what the expected effects of the work injury would have been in the absence of the pre-existing condition. However, the policy does not make the mechanism of injury the basis of the proportioning factor. The expected effects on earning capacity is the criteria, and I note the actual nature and extent of the work injury is not assessed for its expected effects on the worker s earning capacity in either opinion. 58. The Act permits the Commission to consider, and apply, proportionment according to Section 43.1 and its provisions. The Section does not contain the criteria for proportionment. The criteria are contained in Policy EN-02: Proportionment. The rationale of Decision No 13182, as expanded upon by Review Commissioner Peckford in Decision No , is to enforce the application of the contents of the Policy so that the inquiry in the definitions and ratings table does not become confused with other considerations not referenced in the Act and policy. Also, it confirms that it is the worker s benefits for loss of earnings capacity (i.e. for disability ) which are being proportioned, not the injury itself. This is why the policy ties the ratings back to the respective effects on pre-injury earning capacity. 59. Also, the opinion of a medical consultant is certainly required in a proportionment decision. The medical expertise of the consultant is required to interpret the evidence, and address it in terms of the requirements in the definitions and rating table. The weight the Commission can place on it depends on the support expressed to the conclusion by way of findings and explanation, and, also, whether it actually does address the contents of the policy. An opinion which is unsupported by findings, or which addresses an issue which is different than the one under review, is not entitled to significant weight. An adjudicator is not entitled to question or dispute the medical findings of the medical consultant, but it is within the role of the Commission s decision maker to require that the opinion address the correct 12

13 issue, with explanation. That is part of the process of ensuring the resulting decision is in accordance with Act, regulation and Policy. 60. This point is closely related to another principle in the policy, and which has been repeatedly emphasized. While the medical consultant is critical to the process by providing professional opinion and insight into questions which Commission adjudicators are not qualified to answer, the medical consultant does not actually make the decision. The consultant s opinion necessarily informs the decision, but it is not the decision. The decision makers make the decision, and the medical consultant is not expected to, or is it appropriate for the decision maker to defer the decision to the consultant. The medical consultant, as per Policy EN-20: Weighing Evidence, is entitled to speak to matters which require medical training and expertise, but the latitude to be shown to the medical consultant does not extend beyond this. The decision maker has to take more than the medical opinion into account, and that includes the function of interpreting and applying the Act and policies, which is a function reserved to the adjudicator. That includes a determination of whether more evidence is required, in addition to the opinions already obtained. That is a decision for the Commission s adjudicator to make. 61. This has a high degree of relevance to this claim because the matter has cycled back to the same case manager and same medical consultant repeatedly over a period of five years and I find that the policy has yet to be applied according to its terms. One gets the distinct sense even after Review Commissioner Peckford remitted the matter back with direction in 2013 and even after an earlier Commission internal review specialist referred the matter back due to non-compliance with Section 60(1) following this that the subsequent inquires became more concerned with the integrity of the previously expressed position of the medical consultant than whether the evidence was being linked to the actual question the Commission had to answer. 62. The determination of whether a work injury (or a proportioning factor, for that matter) is minor, moderate, or major, depends on the application of the ratings table and definitions to the evidence. The medical consultant is to provide the opinion on the question posed in the definitions and ratings table and let the adjudicator make the decision based on all the evidence. It is the role of the adjudicator, not the medical consultant, to determine how the intent of the Act and Policy affects the decision, as interpretation is the role of the adjudicator. The role of the medical consultant, who is an expert in his field, is to provide the needed expertise in interpreting and explaining the findings in advising the adjudicator. 63. The meaning and intent of the policy is for the adjudicator to determine, but the reality is that the Commission s decision cannot be based on anything other than the policy provisions and the Act. If it does not, it is not in accordance with the Act, regulations and Policy, and the adjudicator is responsible for ensuring this. 64. As I have noted above, the nature of the incident and the mechanism of the injury are highly relevant to the determination of what the worker s actual work injury is, and that, in time, is highly relevant to the expected effects as the worker s earning capacity. However, the work injury is not characterized as minor because the incident is understood to be minor. The injury is characterized as minor if, taking all the evidence into account, it is not expected to limit the worker s ability to earn at the pre-injury level in the absence of the 13

14 pre-existing condition. The nature of the incident does not determine the effect on earning capacity. 65. The facts of this case highlight why this is a very real concern. The Commission s conclusion is influenced by the finding that the worker sustained a minor whiplash, which the medical consultant identifies as Grade I. However, this injury, was also addressed by the worker s neurosurgeon as part of his treatment of the worker. A report from the neurosurgeon dated September 16, 2009, approximately four months after the injury notes: for this type of an injury it can take considerably longer for things to settle and while there is no guarantee that it will settle I think there is a reasonable chance with continued physiotherapy I am satisfied here that there is recognition by the neurosurgeon that the worker s injury is, or at least may be, simply more than a minor one in terms of its effects. The fact that it may take considerably longer to heal suggests there may have been more than a straightforward whiplash type of injury. Superficially, it appears to contradict the opinion of the medical consultant, at least without the benefit of some further medical insight The point is that there is no demonstration in the Commission s decision how this information was weighed in the decision making process. I do note that neither of these physicians expressed an opinion directly on the effect on employment that would justify one rating versus another. 67. Also of concern is that while we have a firmly established rating of moderate for the proportioning factor, the worker s main argument was on the adequacy of the rating of the work injury. However, judging by the repeated response and the tenor of those responses, the minor rating was just as firmly entrenched. It is defended repeatedly, even in spite of the comment in the opinion of August 20, 2014 stating, What is lacking here is sufficient information 68. While I appreciate the medical consultant s candor in this regard, this comment should have been a signal that a decision on the classification of the work injury was premature if possibly relevant information was still lacking at the time. Section 60(1) requires that all relevant available information be taken into account, and this is an adjudicative principle more than a medical one. Here I emphasize that if there is a lack of information for the proper analysis of the nature and extent of the work injury, this weighs against the Commission being able to impose a proportionment rating. Not only did the opinions fail to fully engage the required question, the second to last one acknowledges that more information on the work injury should have been obtained. 69. Further, the worker has presented with additional symptoms that were not present prior to the work injury. I recognize it could be said that these may arise from the pre-existing condition, however, it can also be said to arise from the work injury s effect on the preexisting condition. I believe this must be factored into the decision making process and from my review I do not see how this was done. 70. Policy EN-02: Proportionment, I find, does not elaborate on the nature of a work injury and the features of it that input into the ratings determination. This is unlike the pre-existing condition as the policy contains very specific information with respect to how it is defined. The Policy states: 14

15 For the purpose of this policy, a proportioning factor is any condition unrelated to a work injury which may affect recovery or the extent of disability. Proportioning factors may be known to exist prior to a work injury (usually because they caused symptoms), or they may develop post-injury. Examples of factors known to exist prior to a work injury include previous non-work injuries, active disease processes, or specific conditions for which medical assistance has been required. Examples of conditions which develop post-injury include new non-work accidents or injuries, the onset of disease processes which are not work related, or the onset of disease processes which would have, on the balance of probabilities, eventually manifested themselves but are activated or accelerated by the work injury. Where a worker has completed necessary medical treatments but his or her ability to return to the preinjury earning level is negatively affected by a proportioning factor, compensation entitlement may be adjusted to reflect the impact of the proportioning factor. The following Severity of Work Injury and Proportioning Factor table shall be used when making these determinations (see guidelines for use below): Severity Work Injury Minor Moderate Major Minor Moderate Major Minor Moderate Major of Severity of Proportioning Factor Minor Minor Minor Moderate Moderate Moderate Major Major Major Proportioning Factor 50% 25% 0% 75% 50% 25% 100% 75% 50% Percentage of Compensation Rate Payable 50% 75% 100% 25% 50% 75% 0 % 25% 50% 71. The following are outlined in the Policy for definitions of the ratings: Minor: is not expected to limit the worker s ability to earn at the preinjury level; Moderate: is not expected to limit the worker s ability to earn at the preinjury level. Even though this is a more serious injury or factor, permanent disability is not anticipated; Major: expected to cause long-term inability to earn at the preinjury level and possible permanent disability. 72. The thrust of the Policy is primarily on the pre-existing condition and how it is to be considered for the purposes of assessing its impact on earning capacity. Section 43.1, however, focus upon the loss of earnings attributable to the work injury. It states: 15

16 Proportionate compensation 43.1 Notwithstanding paragraph 2(1)(o), where a worker suffers personal injury arising out of and in the course of employment that (a) aggravates, activates or accelerates a condition, disease or disability existing prior to the injury; or (b) is aggravated, activated or accelerated by causes other than the injury, compensation is payable for the proportion of the loss of earnings or permanent impairment that the commission determines is attributable to the injury. 73. The intent of Section 43.1 is to establish the loss of earning capacity attributable to the injury, rather than the loss of earning capacity attributable to the pre-existing condition, which, to some extent, is what Policy EN-02: Proportionment appears to attempt to do. In this case, I find establishing the effect of the work injury on the worker s earning capacity requires more than a simple classification based on the nature of the incident or the mechanism of injury. It requires an assessment that includes a holistic view of the claim evidence. This is the approach I believe was also directed in Decision No I note also that the worker does not bear a burden of proof on this issue. The worker is not the one claiming that proportionment is a feature of his case, or that it should apply. The Commission is making that claim, and the Commission has to establish it. It is not for the worker to disprove that minor should apply versus moderate. The worker is objecting to it, and the Commission not only has to provide a decision that is responsive to the worker s argument, but where it is alleging that the evidence supports a certain conclusion under the Act, the absence of evidence on a material point may be fatal to the Commission s decision. The absence of evidence on a claim being made by the Commission does not call for a decision against the worker, under Section 60(1), or otherwise. Again, this is an adjudicative principle that it was incumbent upon the case manager to address, and the internal review decision also failed to detect it. 75. In summary, the internal review specialist in the August 25, 2014 decision relies heavily on the opinions of the medical consultant. There is no indication that she considered the expected effects of either the work injury or the proportioning factor in the absence of each other. This is inconsistent with the requirements of Policy EN-02: Proportionment. At this point, there is no such analysis. As a result, the Commission has erred in the application of Policy EN-02: Proportionment. Also, the decision was also made despite an acknowledgement that there was information lacking with respect to the nature of the incident which produced the work injury, which is an error under Section 60(1). 16

17 Decision 76. The decision of the Commission dated August 25, 2014 is set aside. The worker s proportionment rating for the pre-existing condition is confirmed as moderate, however, the claim is remitted to the Commission for a compliant review of the rating for the work injury in accordance with Policy EN-02: Proportionment and its definitions for the ratings. 77. As the proportionment issue has not yet been concluded, the worker is entitled to receive full wage loss benefits, without proportionment, retroactive to the date on which his entitlement to extended earnings loss benefits were initially proportioned. Full benefits are to continue until a compliant proportionment decision is made. Referred to WHSCC Marlene A. Hickey Chief Review Commissioner July 21, 2015 Date 17

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