SUMMARY DECISION NO. 303/95R. Reconsideration (consideration of evidence).

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1 SUMMARY DECISION NO. 303/95R Reconsideration (consideration of evidence). The worker's application to reconsider Decision No. 303/95 was denied. The hearing panel considered the evidence and reached its conclusion based on the evidence. There was new evidence or submissions to cause the Panel to doubt the conclusions it reached at the original hearing. [10 pages] PANEL: Coke; Lebert; Donaldson DATE: 18/12/96 WCAT DECISIONS CONSIDERED: Decision No. 72R (1986), 18 W.C.A.T.R. 1 consd; Decision No. 72R2 (1986), 18 W.C.A.T.R. 26 consd; Decision No. 95R (1989), 11 W.C.A.T.R. 1 consd PRACTICE DIRECTIONS CONSIDERED: Reconsiderations (Ont. W.C.A.T., April 20, 1995) CROSS-REFERENCE: Decision No. 303/95

2 WORKERS COMPENSATION APPEALS TRIBUNAL DECISION NO. 303/95R [1] This reconsideration request was considered by a Tribunal Panel consisting of : R.A. Coke : Vice-Chair, J.J. Donaldson : Member representative of employers, R.J. Lebert : Member representative of workers. THE APPEAL PROCEEDINGS [2] The worker has requested that Decision No. 303/95 (November 14, 1995), be reconsidered. The worker s application for reconsideration was put into process by the Office of the Chair on June 21, The worker submits that the Panel erred in finding that the worker was not entitled to full temporary partial disability benefits for a period of just over two months, from August 13, 1991, to October 21, THE EVIDENCE [3] For the purpose of considering the worker s application for reconsideration, the Panel had the following evidence: Decision No. 303/95; the worker s reconsideration application, accompanying submissions and new evidence; the materials from the Tribunal s file respecting which were considered in arriving at Decision No. 303/95. THE NATURE OF THE CASE [4] On October 15, 1984, the worker was employed as a punch press operator in a parts manufacturing plant when she suffered a low back disablement with pain radiating to her right leg and numbness in her right foot. [5] On June 27, 1987, the Board awarded the worker a 10% permanent partial disability pension for her permanent impairment. [6] On June 18, 1991, the worker was employed as an assembler in the parts manufacturing plant when she stopped working due to increasing pain in her right lower back and flank area, which radiated down her right leg and foot. [7] In Decision No. 303/95, the Panel found that the nature of the worker s injury on June 18, 1991, was an acute aggravation of her chronic low back condition. 1

3 [8] The Board granted the worker: a) temporary total disability benefits from June 19, 1991, to August 2, 1991; and b) 50% of full temporary partial disability benefits from August 2, 1991, to August 30, [9] The Board denied the worker further temporary compensation benefits beyond August 30, [10] In Decision No. 303/95, the Panel determined that the worker was entitled to full temporary partial disability benefits for the further periods of: a) August 2, 1991, to August 13, 1991; and b) October 21, 1991, to January 27, [11] However, in Decision No. 303/95, the Panel determined that the worker was entitled only to 50% temporary partial disability benefits for the two month period between August 13, 1991, and October 21, 1991 ( the relevant period for the purpose of this reconsideration). [12] The worker is submitting that she is entitled to full temporary partial disability benefits over the relevant period of August 13, 1992, until October 21, THE PANEL S REASONS (i) Statutory requirements [13] Under section 70 of the Workers Compensation Act, R.S.O., 1990, c. W. 11 (the current Act ): 70 The Board may, at any time if it considers it advisable to do so, reconsider any decision... made by it and vary, amend or revoke such decision.... [14] Under section 90 of the current Act, the Tribunal: shall determine its own practice and procedure... [15] Together, these two provisions provide the Tribunal with the statutory authority under which both the substantive and procedural aspects of its reconsideration process have been established. (ii) The Tribunal s reconsideration process [16] The Tribunal s reconsideration process is described in the Appeal Tribunal s Practice Direction: Reconsiderations, as revised April 20, The Practice Direction states: The Workers Compensation Act, section 86(3), states that the Appeals Tribunal s decisions are final and conclusive. There is no further right of appeal. However, sections 92 and 70 give the Tribunal the discretion to reconsider a decision if the Tribunal thinks that it is advisable to do so. A reconsideration is different from an appeal. Under the Workers Compensation Act, a party generally has the right to appeal a Board decision to the Appeals Tribunal. However, a party must provide some good reason for a Tribunal decision to be reconsidered. A reconsideration involves two steps: 2

4 1. The Tribunal must decide whether it is advisable to re-open the decision. This is called the threshold test. 2. If the threshold test is met, the Tribunal must decide whether the previous decision should be changed and, if so, how it should be changed. This is called the decision on the merits. Because the power to reconsider is discretionary, a decision on the threshold test must be made on the facts of each request. Some examples of situations where the Tribunal might decide that it is advisable to re-open the decision are: significant new evidence is discovered which was not available at the original hearing; the decision overlooks an important piece of evidence (as opposed to rejecting the evidence or distinguishing it); the decision contains a clear error of law (for example, the decision does not apply the relevant sections of the Workers Compensation Act); the decision contains a jurisdictional error (for example, the Tribunal decided an issue which it did not have the legal authority to decide). The Tribunal will weigh the circumstances favouring the re-opening against the need for its decisions to be final and the prejudice to any party of the re-opening....the Tribunal Chair will assign the reconsideration request to a Reconsideration Panel. The Reconsideration Panel may be the same as the Hearing Panel.. If the Reconsideration Panel does not consider that the reconsideration request has any prospect of success, it will not seek submissions from any other party. The Reconsideration Panel will issue a decision explaining why the threshold test has not been met. [17] In Decision No. 95R, 11 W.C.A.T.R. 1, another panel of this Tribunal described the Tribunal s reconsideration process in detail, at pages 6-8:... [The reconsideration process] is a two-step process. The two-step nature of the process is both procedural and substantive. The normal process is as follows: The Procedure:... Step One: The Threshold Question The Panel considers the written submissions of the party requesting the reconsideration.... The onus is on the applicant to persuade the panel... If the panel feels that the applicant s submissions are not persuasive, it will deny the request for reconsideration... [This] means that the tribunal does not commit its resources to scheduling hearings in cases where the applicant has already had one hearing and does not have a persuasive case for requesting another one. If, however, the panel feels that the applicant s submissions are persuasive,... it will decide whether it is advisable to reconsider the decision. 3

5 The Substantive Considerations: The [current] Act provides that the Tribunal may reconsider a decision if it considers it advisable to do so. The Tribunal, therefore, has considerable discretion in deciding whether to reconsider. It is inevitable that a certain percentage of losing parties will feel that a decision is wrong. Similarly, a certain percentage of winning parties will inevitably feel that they should have received more. The Act, the expectations and rights of the parties, and the interests of the Tribunal s process, are such that the finality of Tribunal decisions is important. The Tribunal has, therefore, applied a high standard at the threshold stage and this has meant the Tribunal finds it advisable to reconsider only in unusual circumstances.... The Procedure: Step Two: The Reconsideration If a panel has decided that it is advisable to reconsider, there is a re-hearing and new decision. The reconsideration panel may decide to completely rehear the case and re-open all issues involved in deciding the appeal, or it may restrict the reconsideration to part of the decision. Depending on the circumstances, the rehearing may be conducted orally or in writing and a new panel may be appointed for the new hearing or the reconsideration panel may continue its involvement with the case. The Substantive Considerations: The reconsideration panel will decide a reconsideration as though they were hearing the appeal at first instance. They will re-decide the matter. In some cases, there will be a blurring of the line between the threshold stage and the reconsideration because, in assessing the strength of the arguments for the reconsideration request, panels do, at the threshold stage, review the facts and issues on which the decision was based (and this can be a serious, detailed review where the application raises important, well-reasoned points). Nonetheless, there are important procedural and substantive differences between the threshold stage and the reconsideration stage of the reconsideration process. (a) The Threshold test of advisability [18] In Decision No. 95R, the Panel also elaborated on the substantive threshold standard of whether or not the Tribunal will consider it advisable to reconsider a decision. That panel states, at pages 9-11: The Act requires that [the Tribunal]... find it to be advisable to reconsider [one of its decisions] before embarking on a reconsideration. This [provision recognizes]...that no one has a statutory right to have a decision reconsidered. It is a direction to the Tribunal to ask a preliminary (threshold) question before reconsidering any decision.... The Tribunal has developed a high standard of review at the threshold stage. It is a standard which must remain flexible because there are many different types of errors which parties may rely on in applying for reconsideration and the importance of the Tribunal s interest in finality and the integrity of its hearing process.... 4

6 It not sufficient that a party simply thinks a decision is wrong... It is not sufficient that some other person or panel thinks the decision might be wrong. Generally, the panel reviewing the application must find there is a significant defect in the administrative process or content of the decision which, if corrected, would probably change the result of the original decision. [19] In Decision No. 72R, 18 W.C.A.T.R. 1, another panel of this Tribunal elaborated further on the nature of the threshold standard which must be before the Tribunal will undertake a reconsideration. That panel states, at pages 13-14:... the question which must decide the matter... is [whether there are] sufficient grounds for the Tribunal to do what amounts, in effect, to questioning its own decision and hearing and determining the matter again It is not sufficient that [a] panel be satisfied that it should have handled the procedure differently. The standard for the Tribunal undertaking a reconsideration on grounds must be high... [20] Later, the same Panel states, at page 16: There are, however, a number of... grounds that can be anticipated as the basis for the Tribunal to reconsider its decisions. Any list of such possible grounds would... include the following: (1) New evidence has come to light that was not available for the hearing; (2) The panel appears to have overlooked the existence of some obvious piece of evidence that is inconsistent with the decision reached; (3) The panel was wrong in its interpretation of the law. [21] Finally, in Decision No. 72R2, another panel provided other tests to be used by the Tribunal to determine whether or not it is advisable to reconsider a decision. That panel states, at page 44: (iii)... before the idea of granting a hearing for reconsideration should be considered any further... [the Panel must be satisfied that yes is the answer to the following questions]: 1. Is there reason to believe there is something wrong with the original decision? 2. Would the reasons given by the person wanting the reconsideration make the result different? The worker s submission [22] As set out in the Tribunal s Practice Direction, above, a panel appointed by the Chair of the Tribunal first must determine whether it is advisable to reconsider a previous Tribunal decision given the interest in the finality and the integrity of the Tribunal s hearing process. A party requesting a reconsideration of all or part of a Tribunal decision must, therefore, satisfy the Panel that there are grounds for a reconsideration. This standard is referred to in previous decisions of the Tribunal as the threshold test. [23] In the present case, the worker disagrees with that part of Decision No. 303/95 which concluded that for a period of just over two months, from August 13, 1991, to October 21, 1991, the worker was not entitled to full temporary partial disability benefits. The Panel s reasons for this part of its decision were that, over this relevant period, the worker was not available for a medical rehabilitation program 5

7 which would, in the Panel s opinion, have aided the worker in getting back to work and in lessening or removing any handicap resulting from the worker s injuries. [24] The worker submits that she was available for medical rehabilitation. In her submission, the worker states that she first attempted to obtain physiotherapy treatments for her back at the Wilcox Physiotherapy and Sports Injury Clinic, but was unable to attend because the Board denied her coverage for such treatment. [25] The worker consulted her family physician, Dr. Wilkens, about being denied such treatment. In turn, Dr. Wilkens wrote twice to the Board indicating that these treatments were needed for the worker s low back condition. [26] Eventually, the worker states, that she found another physiotherapy clinic which would treat her under the Ontario Hospital Insurance Plan (OHIP). That clinic was the Scarborough South Physiotherapy Centre. [27] The worker also notes that because the Board denied her physiotherapy treatment at the Wilcox and, initially, at the Scarborough South Physiotherapy Centres, she was required to take medication for her low back pain and pain radiating down her right leg over the relevant period. [28] This medication comprised: Novo-Triptyn 25 mg. prescribed August 13, 1991 Dolobid 500 mg. prescribed August 31, 1991 and October 21, 1991 Lectopam 3 mg. prescribed August 31, 1991; September 21, 1991; and October 21, All these prescriptions were provided to the worker by the worker s family physician, Dr. Wilkens, at different periods over the relevant period from August 13, 1991, to October 21, (iv) The Panel s reasons [29] The Panel has reviewed the worker s application, submission and the materials from the Tribunal s file respecting the worker s claim which were used in arriving at Decision No. 303/95. [30] In this respect, we note that the Panel made the following findings of fact in Decision No. 303/95: 1 The Canadian Pharmaceutical Association, Compendium of Pharmaceuticals and Specialists, 31st ed. (Canadian Pharmaceutical Association, Ottawa, 1996) provides the following definitions for this medication: novo-triptyline is defined as an anti-depressant ; dolobid is defined as a drug with analgesics and anti-inflammatory properties which provides relief from mild to moderate pain caused by musculoskeletal inflammation; lectopam is defined as a sedative which provides symptomatic relief from excessive anxiety. 6

8 In October 1990, Dr. Wilkens, the worker s family physician, recommended that the worker continue to receive physiotherapy treatment at the Wilcox Physiotherapy Centre. After the Board denied the worker coverage for such treatment, Dr. Wilkens wrote to the Board on the worker s behalf indicating the medical need for such treatments to allow the worker to continue working even though her back was causing discomfort. The worker attended physiotherapy treatment sessions beginning December 13, The worker returned to work on January 27, 1992, but continued to receive physiotherapy treatments. [31] The Panel accepted this evidence in Decision No. 30/95, but determined that none of this evidence directly entitled the worker to full temporary partial disability benefits over the period in question, from August 13, 1991, to October 21, In this respect, no error which potentially would change the result of our original decision has been shown in the worker s application for reconsideration. More specifically, no new evidence has been brought to the Panel s attention which, in our view, constitutes either: a) significant new evidence which has been discovered which was not available at the original hearing; or b) important pieces of evidence which were overlooked by the Panel in reaching its decision. [32] To qualify for full temporary partial disability benefits over that period, the worker is required to satisfy the qualifying conditions in clause 41(1)(b)(i) of the Workers Compensation Act, R.S.O., 1980, c. 539 ( the pre-1985 Act). The clause states: 41(1) Where temporary partial disability results from the injury, the compensation payable shall be,... (b) where the worker does not return to work,... the same amount as would be payable if... [she] were temporarily totally disabled unless... [she], (i)... is not available for a medical... rehabilitation program which would, in the Board's opinion, aid in getting [her]... back to work and in lessening or removing any handicap result from [her]... injuries. [33] The basis for this Panel s finding that the worker was not entitled to full temporary partial benefits under clause 41(1)(b)(i) of the pre-1985 Act from August 13, 1991, until October 21, 1991, was that, over that time period, there was a medical rehabilitation program which would, in the Panel s opinion, aid the worker in lessening her handicap and returning to work, but for which the worker was not available. [34] The particular medical rehabilitation program was first set out by Dr. Michael Kliman, following this examination of the worker on August 1, Dr. Kliman wrote to the worker s family physician, Dr. Wilkens, on August 1, 1991: [The worker]... has likely had a simple lumbar strain. I don t think her right leg complaints represent significant sciatica. Her treatment should be a progressive program 7

9 of back exercises... I expect her back complaints to taper over the next short while. I would encourage her to return to activities over the next short while... (emphasis added) [35] On August 13, 1991, the worker saw her family physician, Dr. Wilkens. At that time, the worker believed herself unable to commence the program of medical rehabilitation (i.e. progressive back exercises and a return to activities over the next short while) recommended by Dr. Kliman. It is from this point in time that the Panel found that the worker was not available for a medical rehabilitation which would have, in the Panel s opinion, aided the worker in returning to work and in lessening any handicap resulting from her injuries. [36] The Panel based this finding on evidence that: the worker s medical condition remained unchanged from August 1, 1991, until October 21, 1991; the absence of any medical evidence that the worker risked further injury to her low back by commencing a program of exercises and gradually returning to activities; the fact that, after the worker was finally sent by her family physician to the Canadian Back Institute on October 21, 1991, the physiotherapist who examined the worker prescribed virtually the same rehabilitation program as Dr. Kliman. 2 the fact that, once the worker did commence such a program, i.e. at the Scarborough South Physiotherapy Centre, she was able to return to work approximately six weeks later, on January 27, [37] On the evidence before it, the Panel did not doubt that the worker continued to experience low back pain and discomfort over the relevant period from August 13, 1991, until October 21, The Panel also was aware that the worker continued to receive medication for her low back condition in the form of analgesics, anti-inflammatories, sedatives and anti-depressants over the relevant period. [38] Nevertheless, we have found no new evidence or reasons in the worker s submission to cause us to doubt that our finding that the worker failed to make herself available for a medical rehabilitation program which, in our view, would have assisted the worker in lessening the handicap from her injury and returning to work over the relevant period from August 13, 1991, to October 21, [39] In the language of Decision No. 72R, on the evidence before us, the Panel cannot find sufficient grounds for questioning its own decision and on which to decide that a re-hearing and new decision of this part of Decision No. 303/95 is warranted. [2] 2 The physiotherapist at the Canadian Back Institute recommended that the following program: [The worker] needs to begin an aggressive stretching program combined with strengthening and work conditioning activities to enable her to return to her job. I would anticipate a treatment regimen of 6-8 weeks... 8

10 [40] In the language of Decision No. 72R2, the Panel cannot find that there were sufficient errors in its procedures, in its consideration of the evidence or in its interpretation of the law to answer yes to the following questions: 1. Is there reason to believe there is something wrong with the original decision? 2. Would the reasons given by the person wanting the reconsideration make the result different? [41] In short, in the circumstances of this case, we find, on a balance of probabilities that it would not be advisable to reconsider Decision No. 303/95. THE DECISION [42] The worker s application for reconsideration is denied. DATED: December 18, 1996 SIGNED: R.A. Coke, J.J. Donaldson, R.J. Lebert 9

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