Workplace Health, Safety & Compensation Review Division

Transcription

1 Workplace Health, Safety & Compensation Review Division WHSCRD Case No: WHSCC Claim No: Decision Number: Margaret Blackmore Review Commissioner The Review Proceedings 1. The hearing of into the review application was held at Corner Brook on August 24, The worker attended the hearing and was unrepresented. 2. Neither the employer nor the Commission attended or participated in the hearing process. Introduction 3. The worker indicates that he sustained an injury on May 7, On May , the worker submitted a Form 6, Worker s Report of Injury, which states that he experienced a sharp pain in his right groin while working on May 7, On the Form 7, Employer s Report of Injury, the employer states that the worker reported to the employer that he was experiencing right groin problems relating to using new buttons, one on either side of a paper roll. 4. A Form 8/10, Physician s Report, dated May 28, 2102, indicates that the worker is reporting mild pain in the right groin and provides a diagnosis of muscle strain. The Physiotherapist Report dated June 4, 2012 indicates that the worker reports that for a certain task at work he has to increase twisting on Rt. leg and gives a diagnosis of repetitive strain, muscle strain. The Chiropractor s Report also gives a diagnosis of repetitive strain. 5. On September 14, 2012 and September 19, 2012, a Physiotherapist conducted an Adjudication Summary Report which included an onsite assessment, and a video of the tasks performed by the worker. 6. The Commission s Occupational Therapy Consultant reviewed the claim and concluded that the video did not show a pivoting action or even a push-off with the lower extremity. She concluded that she had difficulty associating the worker s right groin symptoms to his job tasks as described. 1

2 7. On October 19, 2012 the Intake Adjudicator reviewed the worker s claim concluding that the there was insufficient evidence to support your right groin strain is causally related to your work activities while working as a Wrapline Operator, either as the result of any specific incident or injury, or as a result of repetitive twisting or pivoting. The Internal Review decision dated December 13, 2012 upheld that decision. Issue 8. The worker seeks a review of an Internal Review decision of the Commission dated December 13, 2012 and asks that I find that the Commission erred in denying his claim for compensation for his right groin injury. Outcome 9. The Commission has erred in the application of Policy EN-19: Arising Out of and in the Course of Employment and Section 43(1) of the Act. The Commission also erred by failing to complete a balanced analysis of the evidence required by s. 60 of the Act. The decision of the Commission dated October 11, 2012 is overturned. 10. The claim is remitted to the Commission for the appropriate analysis as required under Policy EN-19: Arising Out of and in the Course of Employment, Section 43(1) of the Act, Section 60 of the Act, and Section 61 of the Act, as applicable. The Commission is directed to provide the worker with another decision that outlines the analysis, reasons and outcome of the review. Legislation and Policy 11. 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) 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 2

3 (e) 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) (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. 3

4 12. Other relevant sections which I considered are Sections 43(1), 60, and 61 of the Act, as well as Policy EN-19: Arising Out of and in the Course of Employment. Relevant Submissions and Positions 13. The worker attended the hearing and made submissions on his own behalf. He argued that the main reason the Commission was denying his claim was because of the video which showed what was required in his job. He indicated that a Physiotherapist came to his workplace and did a full review of him completing the tasks, and that the Commission should look at that report. He stated that the video was not of him working, but of someone else. He said that the way he does the job, is likely not the same as the person in video. He also indicated that video of the job was likely well below the actual working pace at the job. He did acknowledge that he had not seen the video. 14. The worker gave an overview of his job description and the tasks that he is required to complete. He indicated that the company introduced a new method at the crimping station by adding two buttons to that station. The worker says that this means that he is required to pivot to activate the crimper by pushing the buttons which are located at opposite ends of the rolls. He also indicated that he has to pivot to grab a label to put on the outer head, and then pivot to grab a label to put on the bilge of the roll. The buttons have added at least two pivots on the right foot. The worker indicated that nine out of ten times the pivot is always a right hand pivot. The worker stated that the amount of twisting done at his job is unbelievable. 15. The worker noted that the Commission states that they could not see any pivoting on the video, but that the video is not him doing his job, it is a video of other persons. Also, he argued that the pace of the video is slowed down. The worker stated that the Physiotherapist who did the onsite assessment viewed him specifically. The worker argues that the Commission s Consultant did not. He says that it is his understanding that the video shows two men doing the job at a reduced pace. The worker also indicated that nobody ever videotaped him doing his job. 16. The worker noted that the Commission states that his groin injury is not related to work. However, he argued that his shift started at 7:00 pm, and he had no pain whatsoever at that point. Then at approximately 3:00 am, he had severe pain in his right groin to his knee which caused him to drop to his knees. The worker argued that he was eight hours into his shift when the pain occurred, and asks how one could say it did not happen at work? The worker stated that he reported the injury instantly, within ten minutes of it happening. The worker argued that the pivoting he is required to do at his job has led to this injury. 4

5 17. The Commission s position, as set out in the Internal Review decision dated December 13, 2012, is that there is no causal connection between the worker s right groin injury and his employment. The Commission s position is substantially based on the Report of the Occupational Therapy Consultant who stated that she had reviewed the video and that she did not see any pivoting action. Therefore, she had difficulty associating the worker s right groin symptoms to his job tasks as described. 18. The Internal Review Specialist indicates that he has also reviewed the video and he agrees that there is no pivoting motion or forceful pushing off with the right lower extremity. He states: I agree with the Consultant s comment that the walk from one side of the machine to another is at a slow sauntering pace. I did not observe any pivoting action when required to walk to the opposite side of the machine to operate/push the button. I did not see any forceful exertions or quick movements. 19. The Internal Review Specialist concludes that the evidence does not support that a right groin strain can be causally related to the work activities that you have described as a Wrapline Operator. Analysis 20. My role, in reviewing the decision of the Commission, is to determine whether the Commission acted in accordance with the Act and policies. In this case, the application of Policy EN-19: Arising Out of and in the Course of Employment and Section 43(1) of the Act are at issue. Also, central to this analysis is Section 61 of the Act which creates a presumption in favour of the worker, when determining whether an injury arose out of, and took place in the course of, employment. I must also consider Section 60 the Act to ensure that the Commission has complied with that section when weighing the evidence on file. 21. Section 43 of the Act states: (1) Compensation under this Act is payable (a) to a worker who suffers personal injury arising out of and in the course of employment, unless the injury is attributable solely to the serious and wilful misconduct of the worker; and (b) to the dependents of a worker who dies as a result of such an injury. (2) The commission shall pay compensation to a worker who is seriously and permanently disabled or impaired as a result of an injury arising out of and in the course of employment notwithstanding that the injury is attributable solely to the serious and wilful misconduct of the worker. 5

6 (3) The commission shall pay interest on compensation payable for loss of wages to a worker or the worker's dependents where the payment of that compensation is delayed, for more than 30 days, as a result of circumstances that are in the control of the commission. (4)The rate of interest paid under subsection (3) shall be calculated in accordance with the provisions of the Judgment Interest Act. 22. As indicated above, I am concerned with Section 43(1) of the Act and whether the worker s right groin symptoms are an injury arising out of and in the course of employment. The Commission has found that this is not the case, and the worker has appealed. To determine whether this worker s symptoms relate to an injury arising out of and in the course of employment, it is important to look at the definitions of those terms as provided by the Policy. 23. Policy EN-19: Arising Out of and in the Course of Employment states that arising out of refers to what caused the injury, and in the course of refers to the time and place of the injury and its connection to the employment. That Policy also provides a list of indicators that the Commission can use for guidance when determining this question. The list includes the following indicators: whether the injury occurred on the premises of the employer whether it occurred in the process of doing something for the benefit of the employer; whether it occurred in the course of action in response to instructions from the employer; whether it occurred in the course of using equipment or materials supplied by the employer; whether it occurred in the course of paid employment; whether the risk to which the worker was exposed was the same as the risk to which he/she is exposed in the normal course of production; whether the injury occurred during a time period for which the worker was being paid; and whether the injury was caused by some activity of the employer, a fellow worker, or a third party. 24. The Commission is required to engage in the two part analysis set out in the Act and the Policy. I see no evidence of this in the Occupational Therapy Consultant s report, the Case Manager s decision, or the Internal Review Specialist s decision. Neither the Case Manager nor the Internal Review Specialist answers the two questions separately. Though the Case Manager and the Internal Review Specialist reference the definitions, I see no analysis of how those definitions apply to the facts of this case. In terms of the phrase in the course of employment, I see no analysis of how the evidence fits with the definition of this phrase. There is certainly evidence that favours the worker in this part of the analysis, but the Commission does not acknowledge nor discuss it. 6

7 25. I also do not see any analysis of the questions posed in Policy EN-19: Arising Out of and in the Course of Employment which are intended to give the Commission guidance in answering these two questions. Both the Case Manager and the Internal Review Specialist seem to rely solely on the Occupational Therapy Consultant s report, without regard for any other evidence. This is an error. It should be noted that the Consultant s report appears to be solely based on her observation of the video of persons, other than the worker, completing the job duties. She does not make any examination of the where, when, and circumstances of the worker s injury. 26. As the Commission did not engage in the analysis required by Section 43(1) of the Act or Policy EN-19: Arising Out of and in the Course of Employment, I find that the Commission has erred in this case. 27. Though I have already found that the Commission has erred, I will go further and say that the weight of evidence is clear that the worker s symptoms arose when he was at his place of work. When weighing the evidence on file, the Commission must consider Section 60 of the Act which states: 60(1) An issue related to a worker s entitlement to compensation shall be decided on a balance of probabilities and, where the evidence on each side of an issue is equally balanced, the issue shall be decided in favour of the worker. 28. I also note Policy EN-20: Weighing Evidence states that: Decision makers must assess and weigh all relevant evidence. This necessarily involves making judgments about the credibility, nature, and quality of that evidence as they determine the weight of evidence on either side of an issue. 29. There is certainly evidence that supports the fact that this injury arose in the course of employment. The worker has indicated that he was eight hours into a twelve hour shift when he first experienced the groin pain. He also indicates that he was performing his job duties when he first experienced pain. On his Form 6, Worker s Report of Injury, the worker noted that it was his right groin that was affected, and when answering the question, what occurred, the worker responded, Not sure. Sharp pain while working. In the Form 7, Employer s Report of Injury, the employer indicates its understanding of the injury and states: Using new buttons one either side of paper roll - goes to one side pivots hit button goes to other side pivot hit button feels pivot has affected (R) groin. The worker indicated that he reported the injury right away. 30. Therefore, in terms of the time, place and circumstances of the injury and its connection to the employment, it seems clear that the symptoms arose in the course of employment. When looking at the list of guidelines set out in Policy EN-19: Arising Out of and in the Course of Employment, the answer appears to be yes to the first seven questions. 7

8 31. If the evidence suggests, on the balance or probabilities, that the injury occurred in the course of employment, then the Commission is required to consider Section 61 of the Act which creates a presumption that the second part of the test has also been satisfied. The Commission makes no mention of Section 61 of the Act in either the Case Manager s decision, or the Internal Review decision. Section 61 of the Act states: Where the injury arose out of the employment, it shall be presumed, unless the contrary is shown, that it occurred in the course of the employment, and where the injury occurred in the course of the employment, it shall be presumed, unless the contrary is shown, that it arose out of the employment. 32. When looking at the second part of the Section 43(1) test, the Commission has to rebut the presumption that the injury arose out of the employment. The Commission appears to rely solely on the fact that there is no pivoting action visible on the video to deny this worker s claim. This is a video of two individuals, other than the worker, performing the worker s duties. This video led the Internal Review Specialist to conclude that: From my review of the video, I do not see any pivoting motion or forceful pushing off with the right lower extremity. I agree with the Consultant s comment that the walk from one side of the machine to another is at a slow sauntering pace. I did not observe any pivoting action when required to walk to the opposite side of the machine to operate/push the button. I did not see any forceful exertions or quick movements. I find the evidence does not support that a right groin strain can be causally related to the work activities that you have described as Wrapline Operator. 33. The Commission, however, does not deal with the evidence provided by the Physiotherapist, who completed the Adjudication Summary Report and onsite assessment. This Physiotherapist examined the worker while he was performing his duties at work. The Physiotherapist states in his report that the worker says that he completed his duties at a faster pace than other employees. The report states that the client indicates he does have high productivity; no other crews are able to match the output that he and his regular coworkers can achieve. It also states: It is felt that these factors suggest an increased work pace. The cycle being completed in shorter times, achieved by triggering the process more quickly, increases the walk speed and the force involved in directional change. The worker s practice of taking larger steps and incorporating more directional change by twisting the body is a behavioral factor, not controlled by the employer. If the employee took a sequence of steps to turn or delayed accelerating until facing the target, there is a reduced torsional force to the spine and hips. [The worker s] work practice is noted to be quick movements with larger torsional strains. There does appear to be a behavioral component to support the type of back injury reported. (emphasis mine) 8

9 34. Neither the Case Manager nor the Internal Review Specialist deals with how this finding of the Physiotherapist affects their observations of the video. By relying solely on the Report of the Commission s Consultant and the video evidence, and not dealing with the evidence of the Adjudication Summary Report, the Commission has failed to accord sufficient weight to the facts of the individual worker s case, and has failed to complete the balanced analysis as set out in Section 60 of the Act. Decision 35. The Commission has erred in the application of Policy EN-19: Arising Out of and in the Course of Employment and Section 43(1) of the Act. The Commission also erred by failing to complete a balanced analysis of the evidence required by s. 60 of the Act. The decision of the Commission dated October 11, 2012 is overturned. 36. The claim is remitted to the Commission for the appropriate analysis as required under Policy EN-19: Arising Out of and in the Course of Employment, Section 43(1) of the Act, Section 60 of the Act, and Section 61 of the Act, as applicable. The Commission is directed to provide the worker with another decision that outlines the analysis, reasons and outcome of the review. Referred to WHSCC Margaret Blackmore Review Commissioner October 11, 2013 Date 9