CASE ID # [personal information] WORKERS COMPENSATION APPEAL TRIBUNAL WORKERS COMPENSATION BOARD OF PRINCE EDWARD ISLAND DECISION #7

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1 C A N A D A CASE ID # [personal information] PROVINCE OF PRINCE EDWARD ISLAND WORKERS COMPENSATION APPEAL TRIBUNAL BETWEEN: WORKER APPELLANT AND: WORKERS COMPENSATION BOARD OF PRINCE EDWARD ISLAND RESPONDENT DECISION #7 Date of Hearing: June 6, 2000 DOUGLAS R. DRYSDALE JOHN K. MITCHELL, Q.C. Carr Stevenson & MacKay Stewart McKelvey Stirling Scales 50 Water Street 65 Grafton Street Charlottetown, PE C1A 7L1 Charlottetown, PE C1A 8B9 Solicitor for the Appellant Solicitor for the Respondent

2 C A N A D A CASE ID # [ personal information] PROVINCE OF PRINCE EDWARD ISLAND WORKERS COMPENSATION APPEAL TRIBUNAL BETWEEN: WORKER APPELLANT AND: WORKERS COMPENSATION BOARD OF PRINCE EDWARD ISLAND RESPONDENT DECISION #7 This is the decision of the Workers Compensation Appeal Tribunal (the Tribunal ) on an appeal by [the worker] on the decision of the Workers Compensation Board (the Board ) dated March 8, 1999, which decision confirmed an earlier decision to terminate the Appellant s benefits effective June 23, [The worker] was injured on July 15, 1996, while working on the [personal information]. He suffered a back injury (twisted his upper back) while [personal information]. At the time of the injury he had been working there for two years. [The worker s] claim for compensation benefits was accepted and benefits were paid pursuant to the Workers Compensation Act.

3 On June 23, 1997 Larry Phelan, Case Manager for [the worker] on behalf of the Board terminated his benefits. Pursuant to section 56 of the Act, [the worker] requested a reconsideration hearing, which was held before Terry Dunsford on June 11, The reconsideration hearing decision was not rendered until March 8, The reconsideration hearing confirmed the decision of Case Manager Larry Phelan that benefits were no longer payable after June 23, [The worker] returned back to work successfully and since June 29, 1998 has not suffered a loss of earning capacity as a result of actual employment. [The worker] and his lawyer, Douglas Drysdale, appeared before the tribunal appealing the decision of Terry Dunsford on numerous grounds and requesting that he be paid benefits for the period between the cessation of his benefits and his return to work the following year (June 23, 1997-June 29, 1998). Geoff Connolly appeared as the lawyer for the Board. The Appellant raises seven grounds of appeal in his Notice of Appeal and Memorandum of Argument: 1. That the Respondent erred by failing to properly determine the Appellant s loss of earning capacity, as required by Section 41 of the Act; 2. That the Respondent erred by terminating the workers compensation benefits as of June 23, 1997 payable to the Appellant without properly determining the Appellant s loss of earning capacity; 3. That the Respondent erred by failing to pay all wage loss benefits to which the Appellant was properly entitled, according to section 40 of the Act; 4. That the Respondent erred by making a decision on the appellant s capacity to earn without sufficient evidence, and by ignoring or giving

4 little or no weight to evidence relevant to the issue; 5. That the Respondent erred and violated the Appellant s right to fair hearing by considering evidence not made know to the Appellant, and by failing to permit the Appellant to challenge or speak to that evidence; 6. That the Respondent erred by failing to properly apply section 17 of the Act. At the hearing these the Appellant consolidated the grounds to the following four: 1. The Board did not pay for the loss of earning capacity experienced by the Appellant; 2. The decision of the Board was made without proper evidence and further failed to consider proper evidence; 3. The Board did not provide a fair hearing as the Appellant was not provided opportunity to question the additional information gathered; and 4. The Board did not properly apply section 17. The Respondent maintains that the loss from the injury terminated June 23, 1997, or alternatively, the claimant was not in a wage loss position as of June 23, In order to appreciate the sequence of events, it is of some assistance to review the following relevant timeline and make mention of the more pertinent documents:

5 July 15, 1996 [the worker s] date of injury September 17, 1996 Medical Report provided by Dr. Jane Touchie (Appellant s family physician in NB) indicating Appellant unable to return to work at this time, with estimated date of return to pre-accident work as 96/12/01 October 1, 1996 Medical Report provided by Dr. Jane Touchie, indicating Appellant cannot return to pre-accident work, with no date filled in for date of return to pre-accident work, and current work capacity ranked as sedentary. November 26, 1996 Medical Report provided by Dr. Andrew Berkshire expressing concern about [the worker] returning to heavy work. March 1997 Medical Report from Dr. Mayerovich (on locum for Dr. Touchie) making no findings about work ability, but indicating there are no objective reasons not to perform a Functional Capacity Evaluation. March 1997 Functional Capacity Evaluation performed by Maureen Rogers, Physiotherapist, with her report listing numerous significant deficits but no finding as to ability to return to work. April 10, 1997 Medical Report provided by Dr. Jane Touchie indicating that the Appellant will never return to pre-accident work, and describes current work capacity as sedentary. June 23, 1997 Compensation terminated October 1, 1997 Appellant makes request for Reconsideration December 1997 Dr. Touchie provides opinion to [the worker s] lawyer indicating that [the worker] is not able to work at the present time and that [the worker s] current disability is caused by his July 1996 work related accident. March 24, 1998 Dr. Marchant (the Board s physician) concludes:

6 [The worker] has recovered from the soft tissue injury of July 15/96, and is fit for light level work based on his FCE (Mar31/Apr1/97), reflecting his present problems based on his non-work related illness June 11, 1998 Oral evidence presented to Terry Dunsford in reconsideration hearing. June 26, 1998 Letter from Terry Dunsford authorized six weeks of physiotherapy treatments regarding your ([the worker s]) ongoing back complaints. June 29, 1998 [the worker] returns back to work in New Brunswick as a supervisor of construction site. July 14, 1998 Letter from Terry Dunsford to [personal information] (the worker s new employer) confirming the Board s decision to authorize physiotherapy treatment, the purchase of an obus form and funding of the Return to Work program. July 16, 1998 Letter from Terry Dunsford to [the worker s] lawyer, confirming funding of Return to Work program, physiotherapy and obus form and notes that he left the issue as to whether or not [the worker] is functionally capable of doing these particular job duties up to his family physician to determine. Dunsford further advises that he will be gathering additional information from [personal information] before rendering the Board s decision on the Reconsideration Hearing. February 19, 1999 Maureen Rogers, Physiotherapist, finds that based on the FCE of 1997: The client rates in a sedentary category for his work abilities. He does not meet the requirements for the light category with respect to weight capacities, and tolerances for walking and standing. * *qualified with provided there has not been a significant change in the client s status

7 February 19, 1999 Memo to Terry Dunsford, Director of Client services from Keith Mullins, Vocational Counsellor responding to request for clarification of the process used to determine the above client s capacity to do suitable alternate employment in April 1997 provides listing of possible jobs suitable for [the worker]. March 8, 1999 Reconsideration Decision rendered April 6, 1999 Notice of Appeal Filed by [the worker] It should also be noted that [the worker] had a history of back problems and suffered from a degenerative disc condition. For the Board, Dr. Marchant determined that the Appellant was capable of performing light level duties. Dr. Marchant s opinion was based upon a review of the file. She did not interview or meet with the Appellant. Her opinion was sought after the request for the reconsideration hearing but before the oral hearing. The F.C.E. performed in 1997, was later interpreted by Maureen Rogers at the Board s request, who found the Appellant was capable of sedentary duties provided there was no significant change. Keith Mullins, vocational counsellor, found as well that based on the F.C.E. the Appellant was capable of performing jobs determined to be Limited or Sedentary in nature. Terry Dunsford requested clarification from both Maureen Rogers and Keith Mullins, after the Reconsideration Hearing but before rendering the decision. Dr. Touchie provided a number of reports with the last dated December 18, 1997 which stated the Appellant was unable to work as a result of the

8 injury of July 15, Obviously, there is inconsistency in reports throughout the history of the claim, with evidence of the Appellant s work ability ranging from non-existent to sedentary to light in nature. The Board did not to follow up with Dr. Touchie (family physician) after her report dated December 18, But yet in later correspondence to the Appellant s new employer, indicated that it would be up to [the worker s] physician to give him medical clearance to participate in those job functions. When the Appellant did return to work in June of 1998, the Board did approve him for the Return to Work Program, whereby the Board funds his initial return to work for 6 weeks at 100%, and authorized additional Physiotherapy payments and the purchase of an Obus Form. THE LAW The role of the Workers Compensation Appeal Tribunal is set out under section 56 of the Workers Compensation Act. There does not seem to be any contention as to the standard of review the tribunal must apply in order to determine whether or not the actions taken by the Board were correct. The test becomes one of being clearly wrong when questions of fact are concerned, as set out in the Shewan v. Abbotsford District No. 34 (1986) 70 B.C.L.R. (4 th ) B.C.C.A: the function of the appellate court is to review the record of the proceedings below and to ascertain whether there has been an error in principle. It can make any order that could have been made by the Tribunal from which the appeal is taken, or set aside the decision below, and direct a new hearing. It should not interfere with the findings of fact made below unless it be established that there was

9 some palpable and overriding error which affected the Tribunals assessments of the facts In short, the rule is that an appellate court will not interfere with the findings of the Tribunal unless they appear to be clearly wrong. Section 6 of the Workers Compensation Act sets out the entitlement of an injured worker to compensation: (1) Where, in any industry within the scope of this Part, personal injury by accident arising out of and in the course of employment is caused to a worker, the Board shall pay compensation by this Part out of the Accident Fund. There is no dispute that the injury as sustained by the Appellant resulted in a loss of earning capacity and was entitled to wage loss benefits. The dispute arises as to how long did this loss of earning capacity continue. When the injury results in a loss of earning capacity benefits remain payable until the loss of earning capacity ends, as determined by the Board, or the worker attains the age of 65 years (s. 40). Section 41(1) provides for the calculation of loss of earning capacity: (1) The loss of earning capacity of a worker is the difference between the worker s net average earnings before the accident; and the net average amount the Board determines the worker is capable of earning after the accident, which amount shall not be less than zero. The Board s position in the case, is that although [the worker] was not employed by June 23, 1997, he no longer suffered from a loss of earning capacity and was capable of making net average earnings equivalent to his pre-accident level and therefore his benefits should cease. In making this determination, the Board is obligated to carefully review the file and to apply the Act in a liberal manner pursuant to the Interpretation Act, S.P.E.I. 1981, c.18, s. 9, and as set out in Dowling v. Prince Edward Island (Workers Compensation Board), [1994] P.E.I.R. 46 (S.C.A.D.), at p. 47.

10 This would include application of Section 17 of the Workers Compensation Act, which provides: Notwithstanding anything in this Act, on any application for compensation the decision shall be made in accordance with the real merits and justice of the case and where it is not practicable to determine an issue because the evidence for or against the issue is approximately equal in weight, the issue shall be resolved in favour of the claimant. Upon a review of the evidence, the conflicting medical reports and the inconsistent approach of the Board in its handling of the claim are readily apparent. Unfortunately in a situation like this it will never be clear as to the actual day [the worker] was able to return to work, however, the Tribunal finds that the Board erred in its application of Section 17, and finds that the evidence of [the worker] ability to return to work was approximately equal in weight and as a result benefits are payable to [the worker] from the date of denial until his return to work. The Board had every opportunity to seek clarification from all the medical personnel involved, but chose only to follow up with its own consultants. The Appeal is allowed. Dated this 29th day of August, PAMELA J. WILLIAMS Vice-Chairperson Appeal Tribunal I CONCUR KEN MONTGOMERY (Employer Representative) NEIL MacFADYEN (Employee Representative)