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: Keith Barry Review Commissioner The Review Proceedings 1. The hearing of the review application was held at the Workplace Health, Safety & Compensation Review Division office in Mount Pearl, NL on October 8, The worker participated in the hearing and was represented by Tom Osborne, MHA. 2. The employer attended the hearing and was represented by Nicole Bailey, who did not participate in the hearing process. 3. The Commission did not attend or participate in the hearing process. Introduction 4. The worker sustained a compensable injury to her neck and right shoulder on August 13, 2013, which was diagnosed as a muscular injury. The worker was taken off work and began physiotherapy treatment. However, her progress was slow. 5. On November 21, 2013, the worker was contacted by her case manager to discuss a referral for a functional assessment to assist with return to work planning. She advised her case manager at that time that two weeks earlier she had a fall, fractured her left wrist and had been referred to an orthopaedic specialist as she may require surgery. 6. The case manager advised the worker that as this non-work related injury was preventing her from participating in rehabilitation for her work injury, wage loss benefits would be suspended until she was able to participate in such rehabilitation. This was confirmed in a written decision dated December The worker appealed this decision and was later advised, in an internal review decision dated March 19, 2014 that her appeal was denied. The worker appealed to the Review Division. 1

2 Issue 8. The worker is requesting that I find that the Commission erred in its decision of March 19, 2014 to temporarily suspend her wage loss benefits, effective November 21, 2013, as a noncompensable issue (fracture of her left wrist) was interfering with her rehabilitation for the work related injury to her right shoulder and neck. Outcome 9. It is my finding that the Commission acted correctly in accordance with the Act and Policies and did not err in its decision of March 19, 2014 to temporarily suspend her wage loss benefits, effective November 21, 2013 as a non-compensable issue was interfering with her rehabilitation for the work related injury to her right shoulder and neck. With respect, the review is denied. Legislation and Policy 10. 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. 2

3 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) (b) notify the person seeking the review and the commission of the time and place set for the review; and 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. 11. Also relevant and considered in this case are Sections 19(1), 54(1) & 74(1) of the Act, along with Policy EN-17: Interruptions and Delays in Work Injury Recovery and Policy EN-20: Weighing Evidence. 3

4 Relevant Submissions and Positions 12. Mr. Osborne began his presentation with a reference to Section 74(1) of the Act, which states: Where injury to a worker results in loss of earnings beyond the day of the injury, the Commission shall estimate the effect of the injury on the loss of earning capacity resulting from the injury and shall ensure compensation to the worker on the basis of the estimated loss. Mr. Osborne s focus was on the word shall as in shall estimate the effect of the injury and shall ensure compensation. He pointed out that the use of the word shall places a responsibility on the Commission to estimate the effect of the injury on the loss of earnings and ensure that the worker is compensated on the basis of the extended loss. 13. Mr. Osborne referenced Policy EN-17: Interruptions and Delays in Work Injury Recovery, which states in part: II. Intervening Non-Work-Injury Factors as the Dominant Cause of Lost Earning Capacity There will be situations where an intervening factor not associated with the work injury interferes with medical treatment or assessment for the work injury and/or becomes the dominant cause of loss of earning capacity. A dominant cause is one that with or without the presence of the work injury would have caused loss of earning capacity. Such non-work injury factors may affect earnings loss temporarily or permanently. In those kinds of case the following guidelines apply: ii) When a Non-Work Injury Factor Becomes the Dominant Cause of Lost Earning Capacity and Recovery from the Work Injury is Not Imminent Depending on the individual circumstances of the case, if an injured worker is not at or near full recovery when a non-work related disability becomes the dominant cause of loss of earnings capacity, compensation may be suspended, terminated or reduced. For example, where a worker in the acute phase of a work injury or the early stages of treatment or assessment, is involved in a non-work motor vehicle resulting in injuries that cause loss of earnings capacity. The decision which must be made regarding compensation entitlement shall be made in consultation with the Commission s Medical Officer and the worker s health care provider(s), and the following guidelines apply: a) Non-Work-Injury Factor is the Dominant Cause of Lost Earning Capacity and Temporarily Interrupts Recovery from the Work Injury: 4

5 If a non-work-injury factor is the dominant cause of lost earning capacity and temporarily interrupts treatment/assessment or programming for the work injury, compensation may be suspended but reinstated as soon as the worker is able to resume medical treatment/assessment or return-to-work programming. Mr. Osborne s focus with this section of policy was on the word may, as in may be suspended. He noted that the use of the word may is permissive in that it provides the Commission with the latitude to either suspend, terminate or reduce compensation. 14. Mr. Osborne referenced the March 19, 2014 decision, specifically the following statement provided by the Internal Review Specialist: The Commission s legislation only provides for payment of wage loss benefits where the wage loss is due to the work injury. In cases where an intervening factor causes a delay in treatment and rehabilitation for the work injury, there is no entitlement to wage loss benefits until treatment/rehabilitation can resume... Mr. Osborne submitted that this afforded the Commission the same latitude in circumstances such as the worker s case It s not carved in stone. 15. Mr. Osborne noted that the Commission denied the worker s request for continued physiotherapy, as recommended by the worker s treating physician in a Form 8/10 dated December 4, 2013, Continuing with physio 2x/wk. He also referenced additional 8/10 reports dated January 14, 2014 and February 5, 2014, where the physician noted under Treatment Plan, physiotherapy. 16. Mr. Osborne questioned why the Commission refused to approve continuing physiotherapy for the worker when they have no issue covering her medication expenses. He believed that this was all the more problematic since the physiotherapy was recommended by her physician and it was obviously in her best interest. He noted that had the worker continued with her physiotherapy after suspension, her recovery period would have been shorter and her lost wages would have been reduced. 17. Mr. Osborne also made inference that if the worker had not suffered a compensable injury to her right shoulder, then it was very probable that her left wrist injury would have been less severe. To support this opinion, Mr. Osborne referenced a Form 8/10 report dated February 21, 2014, wherein the treating physician stated in part: Patient sustained fall on (L) hand. Felt that may have better been able to catch had she not had the (R) shoulder injury Mr. Osborne noted that had the worker been able to catch herself with her dominant, stronger right hand, perhaps the injury would have been less severe and not interrupted her rehabilitation. 5

6 18. The Commission s position was contained in the internal review decision dated March 19, In her decision, the internal review specialist also references the various relevant legislation and policy, specifically, Section 74(1) and Policy EN-17: Interruptions and Delays in Work Injury Recovery, already noted earlier and need not be reproduced. 19. The internal review specialist pointed out that in the worker s particular case, the case manager s determination to suspend the worker s compensation benefits was in accordance with Policy EN-17: Interruptions and Delays in Work Injury Recovery. This was due to the fact that in the case manager s opinion, the fracture to the worker s left wrist was causing an interruption in the scheduling of her Functional Assessment (FA), which was to assist in her return to work programming. 20. The internal review specialist noted that medical documentation (i.e. x-ray report, etc.) confirmed that the worker had indeed fractured her left wrist requiring that it be placed in a cast with the possibility of surgery. The internal review specialist also pointed out that the wrist fracture was a non-related factor. As a result, the internal review specialist determined that the case manager had appropriately determined that there would be a temporary suspension of the worker s benefits until she was able to resume her assessment/rehabilitation. Analysis 21. I find, after listening to Mr. Osborne s presentation, that his primary arguments were twofold, namely: 1) The Commission s decision to discontinue the worker s ongoing physiotherapy was detrimental to the worker s recovery. He felt that had the worker continued with her physiotherapy after her suspension, her recovery period would have been shorter and as a consequence, her wage loss would have been reduced. 2) There was an indirect correlation between the worker s compensable injury and her non-work related wrist fracture, which the Commission failed to consider. He inferred that, had the worker not suffered her compensable injury to her right shoulder, she possibly could have broken her fall with her dominant, stronger hand, instead of relying only on her weaker left hand. 22. The Commission s primary argument for suspending the worker s compensation benefits was because the decision was in accordance with legislation and policies. 23. My role as a Review Commissioner is to review the decision of the Commission and determine if the Commission, in making that decision, acted in accordance with the Act, regulations and policies. The issue here appears to be whether an intervening condition has prolonged a disability which otherwise could have been treated and eliminated earlier. There is no evidence to suggest that the worker did anything that could be considered a failure on her part to act reasonably in mitigating her injury. As a result, I find that the Commission 6

7 was correct to adjudicate this claim under Policy EN-17: Interruptions and Delays in Work Injury Recovery as opposed to Section 54.1, Mitigation of Injury. 24. I reference a Claim Note dated November 27, 2013 wherein the worker s case manager reports: [The worker s physician] returned my call; she confirmed that this worker did fracture her wrist. She will send over the x-ray report. The worker was seen by [the physician] on Nov 21 and was given a new cast. [The physician] notes the worker has a severe fracture that may require surgery; reassessment in 3 weeks. I asked [the treating physician] in her opinion if this wrist fracture impedes this worker s ability to participate in her rehab for her work related injury as next step would be a functional assessment. She confirmed this and said that worker cannot do much with wrist fracture. As such, this claim for wage loss benefits is suspended until such time that the worker received clearance to resume her rehab for compensable shoulder injury 25. I find that this clearly supports the internal review specialist s opinion, as stated in her March 19, 2014 decision, that the worker s non-compensable left wrist injury was the dominant cause of the worker s loss of earnings. The internal review specialist pointed out that this was delaying the worker s ability to participate in her recommended functional assessment. I concur with the internal review specialist s assessment that this situation was covered in Policy EN-17: Interruptions and Delays in Work Injury Recovery, specifically part ii(a) of the Policy, which states: ii) When a Non-Work Injury Factor Becomes the Dominant Cause of Lost Earning Capacity and Recovery from the Work Injury is Not Imminent Depending on the individual circumstances of the case, if an injured worker is not at or near full recovery when a non-work related disability becomes the dominant cause of loss of earnings capacity, compensation may be suspended, terminated or reduced. For example, where a worker in the acute phase of a work injury or the early stages of treatment or assessment, is involved in a non-work motor vehicle resulting in injuries that cause loss of earnings capacity. The decision which must be made regarding compensation entitlement shall be made in consultation with the Commission s Medical Officer and the worker s health care provider(s), and the following guidelines apply: a) Non-Work-Injury Factor is the Dominant Cause of Lost Earning Capacity and Temporarily Interrupts Recovery from the Work Injury: If a non-work-injury factor is the dominant cause of lost earning capacity and temporarily interrupts treatment/assessment or programming for the work injury, compensation may be suspended but reinstated as soon as the worker is able to resume medical treatment/assessment or return-to-work programming. 7

8 I note that this is exactly what the case manager did, advising the worker in her December 3, 2013 decision that her wage loss benefits will be suspended until such time that you are able to resume your rehabilitation plan for your shoulder. I note that the worker s temporary earnings loss benefits were reinstated effective February 26, With respect to Mr. Osborne s argument that the Commission s decision not to continue with the worker s physiotherapy negatively affected the worker s period of suspension and resulting wage loss, I note that the worker s case manager recorded in a claim note dated January 22, 2014: Spoke with (physiotherapist) regarding PR extension received on January 15, (PR) has not seen (the worker) since December 9, The last PO expired in December with 7 treatments remaining (Emphasis mine) 27. I find this to be clear evidence that it was the worker who discontinued her physiotherapy and not the Commission. I find that had the worker utilized the remaining seven physiotherapy sessions after December 9, 2013, during the remaining period of suspension, then the effect of the Commission s decision to deny the request for additional physiotherapy treatments would have been significantly minimized. 28. I further note that one of the primary reasons for the length of the worker s suspension period was the worker s inability to forward to the Commission, the medical documentation they required to reinstate her claim in a timely fashion. I referenced a Claim Note dated January 23, 2014, wherein the case manager reported that she had spoken to the worker and advised her that medical documentation is needed to reinstate her claim. I note that in two subsequent Claim Notes, dated February 11, 2014 and February 26, 2014, the case manager reported asking the worker for the same medical documentation necessary to reinstate her claim. I note that this medical documentation was not received until March 7, 2014, as per the Claim Note dated the same day, which stated: 8/10 report received from [the treating physician] dated February 26/14 states that, [the ortho] has given clearance for [the worker] to return to her rehab plan for her shoulder injury. I spoke with [the worker] today; I advised her of the re-instatement and the plan is for her to re-start physiotherapy and referral for a functional assessment. I asked [the worker] to make appt with physio. She said her wrist is much better and she has a follow up appt with [the ortho] in 6 months. I informed her that her TEL benefits are re-instated effective Feb 26/14. She is appreciative of same. I note that the medical report clearing the worker to return to her rehabilitation program for the compensable injury was not dated until February 26, 2014, a total of thirty four days from the time of the original request. I find that the worker has to accept a certain amount of responsibility for this delay. 8

9 29. With respect to Mr. Osborne s argument that there was a correlation between the worker s compensable injury to her right shoulder and her non-compensable left wrist injury, I find that there is some logic to his view. 30. When weighing the evidence, however, on a balance of probabilities, the assignment of weight is influenced by the authority of the evidence, its basis, its origin, etc. What Mr. Osborne is inferring is that it is possible that the worker could have supported herself with her dominant right hand, thereby minimizing the injury to her left wrist, if not for her compensable injury to her right shoulder. This may be true, however, mere possibility is not the test for entitlement to compensation. The balance of probabilities is the test. 31. The fact remains that the worker did indeed suffer a work related injury to her right shoulder and that her claim for compensation was submitted and accepted by the Commission. The Commission s management of the worker s claim is governed by its legislation and policies. 32. I find that the evidence is clear that the fracture to the worker s left wrist, causing an interruption in the scheduling of her functional assessment, was definitely unrelated to her work. I note that the worker confirmed this in her request for internal review dated February 3, 2014, stating that, This injury has nothing to do with my workplace injury and should not be used as a reason to stop compensation benefits. Accordingly, I find that the Commission s decision to suspend the worker s benefits was correctly made in accordance with legislation and policy, specifically Policy EN-17: Delays and Interruptions in Work Injury Recovery. Decision 33. It is my finding that the Commission acted correctly in accordance with the Act and Policies and did not err in its decision of March 19, 2014 to temporarily suspend the worker s wage loss benefits, effective November 21, 2013, as a non-compensable issue was interfering with her rehabilitation for the work related injury to her right shoulder and neck. With respect, the review is denied. Review Denied Keith Barry Review Commissioner January 9, 2015 Date 9

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