DECISION Lloyd Piercey. Review Commissioner

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1 WORKPLACE HEALTH, SAFETY & COMPENSATION REVIEW DIVISION 6 Mt. Carson Ave., Dorset Building Mt. Pearl, NL A1N 3K4 DECISION Lloyd Piercey Review Commissioner May 2013

2 WORKPLACE HEALTH, SAFETY & COMPENSATION REVIEW DIVISION DECISION Review Proceedings WHSCRD Case No.: WHSCC Claim No.: Review Commissioner: Decisions Under Review: Lloyd Piercey Workplace Health, Safety and Compensation Commission decision dated August 15, Date & Place of Hearing: March 22, 2013 Boardroom Gander Hotel Gander, NL Attendances at Hearing: Worker Present Worker s Representative Gerarda Gamberg, Appeals Officer, Government Members Office (via teleconference) Employer s Representatives Randy Waterman & Gail Huang Observer Steve Willar, LL.B., WHSCRD Issues Under Review 1. The worker is requesting the Review Commissioner find that the medical information contained in the Workplace Safety and Insurance Board (WSIB) decision dated January 26, 2012,* is sufficient to warrant a reopening of his claim. *The report was written on January 9, 2012 and dated as received by the Commission as January 26, The parties agreed to the use of the file materials for the purpose of this review. 1

3 Case Summary The worker submitted a Form 6 Worker s Report of Injury dated October 31, The worker indicated that on August 15, 2005, while working as a Cook, he sustained a right shoulder injury. At that time, the employer submitted the injury could not be confirmed. In a decision by the Intake Adjudicator, dated November 7, 2006, the worker s initial claim was denied. However, upon appeal by the worker, the Internal Review Division, in a decision dated December 8, 2006, referred the issue back to the Intake Adjudicator for further review. Subsequent to this, the Intake Adjudicator reviewed the claim and, on January 2, 2007, determined that the worker s right shoulder symptoms were not related to his work activities. The worker appealed the January 2, 2007 decision, but the additional information submitted did not change the decision. Following an appeal by the worker, the Internal Review Division, on February 24, 2009, rendered a decision that upheld the January 2, 2007 decision. The worker further appealed to WHSCRD and on December 17, 2009, the Chief Review Commissioner upheld the Commission s decision to deny the claim. In late 2010, the worker filed with the Workplace Safety & Insurance Board (WSIB) of Ontario for a recurrence of his May 1997 injury. The request was denied on February 17, 2011, and the denial was upheld in a January 9, 2012 WSIB Appeals Branch decision. The WSIB decision concluded that the 1997 injury(ies) could not be responsible for the worker s current symptoms. On January 25, 2012, the worker s representative submitted the January 9, 2012 WSIB decision as evidence to be considered in their request to reopen the worker s 2006 WHSCC claim of injury. On June 20, 2012, the Intake Adjudicator s review found the Ontario decision did not bring forth evidence which would warrant a reopening of the original decision to deny the claim. The worker appealed and his representative submitted a letter in support of the appeal dated August 2, The August 15, 2012 Internal Review Specialist s decision upheld the Intake Adjudicator s denial. It is this decision the worker is appealing at the Review Division. Relevant Legislation and Policy The jurisdiction of the Review Commissioner is outlined in the Workplace Health, Safety and Compensation Act (the Act), Sections 26(1) and (2) and Also relevant and considered in this case are Sections 60 and 64. Positions Considered Worker s Position: Ms. Gamberg, the worker s representative, gave a brief history of the worker s injury, including the Ontario injury and the injury that occurred in Newfoundland and Labrador. She noted that the Ontario injury involved the worker s left shoulder and happened in Ms. Gamberg stated that the WSIB later accepted a repetitive strain injury to his right shoulder as reasonably related to the original left 2

4 shoulder injury. Ms. Gamberg stated that the worker was employed as a Cook/Food Service Worker when, on August 15, 2005, he reported a right shoulder injury to his employer. Ms. Gamberg referenced the document from the WSIB dated January 9, 2012, which stated that the medical evidence confirms the 1997 repetitive strain injury is not the cause of the worker s present diagnosis. It also stated that trauma can cause right shoulder pain due to impingement syndrome, with a partial rotator cuff tear. Ms. Gamberg stated that the worker incurred a left shoulder injury in Ontario and it was not until he was working in Newfoundland and Labrador, in 2005, did he have right shoulder problems. She referenced a letter from Dr. Russell, Orthopedic Surgeon, dated April 12, 2007, in which it is noted that the worker advised the doctor that it is his right shoulder that is the new injury. Ms. Gamberg stated that surgery was agreed to, at that time, on the right shoulder. Ms. Gamberg referenced Sections 60 and 61 of the Act dealing with presumption and stated that the Commission has failed to show that the injury occurred other than in the manner claimed by the worker. Ms. Gamberg submitted that the worker s right shoulder was fine in 1997, and it was not until 2005 that the right shoulder problems were experienced by the worker. Ms. Gamberg submitted that Section 64 of the Act provides the Commission with the discretion and authority to reopen the claim. She contends that the WSIB document is sufficient to warrant a reopening of the claim as new evidence. The worker read a prepared statement to the Review Commissioner. He gave his account of the incident on August 15, 2005, when he hurt his right shoulder. He indicated that he reported the injury to his supervisor, and agreed to finish his shift but that there was no report written up on the matter. The worker stated that the next day he called his family physician, Dr. Forward, but it was two weeks before he could get an appointment and, when he did, he received a cortisone shot for his right shoulder. The worker stated that, following a visit to the family physician in the first week of December 2005, he was given a note for two months off work. The worker noted that after the two months was up, Dr. Forward had retired and he saw Dr. Kamel. The worker stated that he was directed by the employer s Human Resources personnel to apply for compensation in Ontario, since he had the original injury there in He noted WSIB denied his claim because of late reporting. The worker referenced a number of visits he had with Dr. Russell, noting symptoms and diagnosis over that period of time. The worker stated that the Commission indicated that his right shoulder problems could be related to playing sports, particularly floor hockey. However, he submitted that he never participated in any sports while employed at the time of the injury in Employer s Position: The employer s representative stated that the issue that had to be considered was that of new evidence and the presentation by the worker was not relevant. The employer submitted that the letter from WSIB did not provide any new information and did not warrant a reopening of the worker s claim. 3

5 Furthermore, it is not the role of WSIB to decide on the action of a workers compensation claim in Newfoundland and Labrador. The employer s representative stated that it had provided all requested information to the Commission. The employer reiterated that it agreed with previous decisions by the Case Manager, and the Internal Review Specialist, that there was insufficient evidence to reopen the claim. Commission s Position The Commission referenced Section 64 of the Act as being relevant to the issue. The Internal Review Specialist referenced the Breen decision from the Newfoundland Court of Appeal and noted that it gave direction to decision makers, relative to Section 64. The Internal Review Specialist stated that the Intake Adjudicator, in her decision dated June 20, 2012, had reviewed and considered the evidence submitted by the worker s representative, specifically the denial from the WSIB in Ontario, that the worker s claim that his right shoulder symptoms were as a result of a recurrence of the 1997 workplace injury in that province. The Internal Review Specialist noted that, because the WSIB indicated that trauma can cause right shoulder pain due to impingement syndrome with partial rotator cuff, the worker is now submitting this report as new evidence. The Internal Review Specialist made the following points: Previous decisions by the Intake Adjudicator, Internal Review Specialist and the WHSCRD had denied his claim for right shoulder symptoms because the alleged incident dated August 15, 2005, could not be confirmed. Consideration was given to a repetitive strain injury, but the symptoms were not considered a result of the worker s duties as a Cook. The WSIB did not consider the worker s symptoms as an aggravation of the previous 1997 Ontario injury. The Internal Review Specialist concluded that there was nothing in the decision from the WSIB, denying recurrence that would impact on the previous decision and warrant a reopening of the worker s claim. Ms. Fry, the Commission s representative at the hearing, referenced a letter dated August 2, 2012, addressed to the Commission from Mr. John Reardon. She disagreed with his position that, because the WSIB denied the worker s claim, it follows that the Commission is responsible to approve the claim. Ms. Fry referenced Section 64 of the Act, noting that the claim could be opened if new evidence is presented, but in this case, there is no evidence to warrant that the Commission revisit the claim. She noted that the Internal Review Specialist had reviewed the file thoroughly and arrived at a reasonable decision. 4

6 Ms. Fry referenced WHSCRD Decision No dated December 17, 2009, wherein the Chief Review Commissioner upheld the decision by the Commission that the evidence did not support that the worker s symptoms arose out of and in the course of his employment as a Cook/Food Service Worker in Reasoning and Conclusions It is the worker s contention that the right shoulder problems he is experiencing are the result of his employment as a Cook and the incident that occurred in the workplace, on August 15, 2005, when he was carrying out duties in that job. His claim had been denied, but he now submits that a letter from WSIB is new evidence that is of sufficient quality to warrant a reopening of his claim. It is the employer s position that the previous decisions made by the Commission, to deny the worker s claim was reasonable and correct, based on the evidence. Furthermore, the employer submits that there is nothing in the January 9, 2012 letter from WSIB that would be considered new evidence to warrant the Commission reopen the claim. The Commission stated that the worker s claim had been given due consideration in previous decisions and contends that the January 9, 2012 letter from WSIB contains nothing more, and when weighed against the strengths and weaknesses of the worker s claim, does not warrant a reopening of the claim. In arriving at a decision on the issue before me, I have reviewed the file information and considered the testimony and submissions, as well as the relevant legislation and policy. I point out that, as the Review Commissioner, it is not my role to re-adjudicate the decision by the Commission. I am mandated to review the file and arrive at a decision on the issue before me, which is: The worker is requesting that the Review Commissioner find the medical information contained in the Workplace Safety and Insurance Board (WSIB) decision dated January 26, 2012 is sufficient to warrant a reopening of his claim. I should clarify that the WSIB document in question was written by the WSIB on January 9, 2012 and dated as received by the Commission on January 26, Notwithstanding, in my review of the worker s file, I find there are a number of factors that are significant in my decision. They include: The worker is claiming that an injury occurred in the workplace on August 15, 2005, but he did not file a Form 6 Worker s Report of Injury until October 31, The employer stated that it was not made aware of the alleged incident on August 15, 2005, and there is no paperwork to confirm same. There have been several previous decisions that have denied the worker s claim for right shoulder symptoms because the alleged workplace accident could not be confirmed. These decisions include: 5

7 (a) Intake Adjudicator s decision of December 17, (b) Internal Review Specialist s decision of February 24, (c) Chief Review Commissioner s Decision of December 17, Ms. Fry had submitted that the worker s claim was assessed and considered on the basis of various criteria on a number of occasions. In my review of the file, I find that to be the case. The information indicates that the claim was considered for a repetitive strain injury, but was denied due to the limited time the worker was employed in the Cook position. The file also indicates, as noted in the Internal Review Specialist s August 15, 2012 decision, that the worker s claim was considered for an aggravation of the 1997 injury, but was again denied. Mr. John Reardon, Office of the Workers Advisor, wrote to the Commission in a letter dated August 2, 2012, objecting to the June 20, 2012 decision by the Intake Adjudicator to deny the reopening of the worker s claim, on the basis that the January 9, 2012 letter from WSIB was not new evidence. Mr. Reardon stated that the worker s claim should not fall through the cracks of two systems. He goes on to quote from the letter from WSIB, and it is this which the worker submits is new evidence of the quality to warrant a reopening of the claim: Subsequent to the 2005 injury, the worker was diagnosed with impingement syndrome with a partial tear of the rotator cuff. I note that tears can be caused by acute trauma, particularly in younger individuals. In April 2007, the worker required right shoulder surgery. I find relevant the medical report dated April 12, 2007 that stated the worker reported his right shoulder injury as a new incident and secondary to overuse of the shoulder in his occupation I have reviewed the April 12, 2007 document referred to in the WSIB letter and find that it has already been considered by the Commission. In that report, Dr. Russell indicated that impingement signs remain positive, but I find there is no indication by Dr. Russell that the current symptoms, experienced by the worker, were linked to the workplace. Furthermore, the issue of the left shoulder and right shoulder symptoms, and when and where either may have occurred, is addressed by the worker himself and not confirmed by any evidence in the report by Dr. Russell on April 12, With respect to the reference to the symptoms being the result of the overuse of the shoulder in the worker s occupation, I have reviewed the report from the Commission s Occupational Therapy Consultant dated November 25, 2008, and I find that has already been addressed in the past by the Commission. The Occupational Therapy Consultant wrote: [The worker] worked in 4 different positions with [the employer] which ranged from Light to Medium degree of strenuousness. 3 of the 4 positions required only minor upper level reaching and one occasional. Repeated handling tasks over many years could reasonably result in an RSI type injury to the upper extremities. I would not expect this over a period of several months where a worker rotated among 4 different jobs/work areas on a part time schedule. [The worker] has a pre-existing problem with his right shoulder. He reported that his symptoms were worse with work tasks, as I would expect, but these work demands would likely not result in a partial bursal tear and degeneration in the glenoid joint of his right shoulder problem over this short exposure to work 6

8 demands with [the employer]. The worker has admitted to playing floor hockey on a weekly basis which would be considered a moderate to high risk activity for shoulder problems. On August 2, 2012, Mr. Reardon wrote that the claim should be reopened. He stated that the January 9, 2012 report from WSIB, is sufficient to warrant a reopening of the decision to deny [the worker s] claim as the evidence (WSIB Appeals Resolution Decision) validates that [the worker s] ongoing shoulder problems are not related to the 1997 workplace Ontario injury. I find that it is not logical to conclude that because WSIB denied the worker s claim, then it was reasonable to conclude that the Commission had to approve the claim. The issue is whether the Commission should have reopened the claim based on the evidence addressed in the Ontario WSIB decision. A reopening under Section 64 requires some base of evidence. When a reopening is sought under Section 64(b), there must be some new evidence presented to the Commission. Under Subsections (a) and (c) there must also be some evidence that the worker s condition is now considered worse than it previously was, or that there has been a change in the worker s condition. But in any case, there must be some evidence which should persuade the Commission to reconsider its existing, final decision. Before proceeding, I note that Sections 60 and 61 were referred to as presumption clauses. It was argued that the Commission had not disproved the worker s theory of the injury. It should be noted that Section 60 is not a presumption clause. Section 61 is, but the presumption in Section 61 only applies once the claimant first establishes either that the injury occurred in the course of employment or that it arose out of employment. In this case, the Commission has already ruled (as upheld by WHSCRD) that the worker did not establish either. That is the question which the worker is trying to reopen at this stage. This decision concerns the Commission s decision to reopen under Section 64. Section 60 is relevant to this analysis, but I should clarify that Section 60 does not place a reverse onus on the Commission to disprove the worker s claim. It confirms that the balance of probabilities applies, and it assists the worker in cases where the evidence is equal. On this point, I reference Worker s Compensation Commission (Nfld.) v. Miller et al. (2001), 199 Nfld. & P.E.I.R. 186 (NFCA), which states; [10] The judge concluded that s. 60, properly interpreted, did not automatically create a presumption in favour of the injured worker. He described its effect as follows: Section 60(1) is clear. It does two things. Firstly, it dispenses with the necessity of a worker providing conclusive proof of a right to compensation. Secondly, it obliges the Commission to draw from the circumstances of the case, the evidence and medical opinions, reasonable inferences in favour of the worker. It is incorrect to describe Section 60(1) as presumption clause. I agree with this interpretation. It cannot have application where there is no direct evidence, or no circumstantial evidence from which a reasonable inference could be drawn, supporting the claim. If it did apply in such circumstances, it would have the effect of placing the burden on the Commission to disprove in every case the bare unsupported assertion that the injury arouse out of or in the course of the worker s employment. That would be an unreasonable and irrational interpretation of the provision, given the structure of the Act. 7

9 [11] Section 60 can nevertheless be of great benefit to a worker-claimant in a given case. It mandates that where the evidence is unclear or conflicting or is capable of supporting the claim but there is also evidence pointing in the other direction, the decision-maker must, if he or she is otherwise unable to resolve the matter, draw those inferences that are most favourable to the worker. That presupposes, however, that there is at least some evidence before the Commissioner reasonably capable of supporting such an inference. An inference is different from speculation. It must be grounded in some proven fact and established to be probable in the circumstances. (Emphasis added) Again, the issue under review is whether the evidence contained in the Ontario WSIB decision warrants a reopening of the claim in Newfoundland and Labrador. A reopening would have to be based on whether that evidence warrants the Commission revisiting its existing final decision. The difficulty here is that the evidence referenced in the Ontario WSIB decision was already considered by the Commission at the time it made its existing, final decision. In my review of the file and an analysis of the WSIB report dated January 9, 2012, I find there is nothing in it that would, or could, be considered new evidence, as per Section 64 of the Act, nor do I find that it meets the threshold as articulated by Breen. The Breen decision does not establish a very high standard of persuasiveness, but it permits the Commission to perform a preliminary screening of the reconsideration evidence in light of the existing decision. As stated above, there must be some new evidence for the Commission to consider. Otherwise, the Commission would simply be revisiting its final decision in the absence of any new facts. This is not the process set out in Section 64 of the Act. I find that the worker, in his reconsideration application, has not provided evidence to support that his right shoulder symptoms are linked to the workplace, particularly the alleged August 15, 2005 incident. The Commission did not commit an error in ruling the application did not meet the preliminary screening threshold established by Breen. I find that the Commission has arrived at its decision in accordance with the legislation and policy relative to the issue. Decision With respect, the review is denied. Review Denied Lloyd Piercey Review Commissioner May 3, 2013 Date /jmr 8

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