Workplace Health, Safety & Compensation Review Division

Transcription

1 Workplace Health, Safety & Compensation Review Division WHSCRD Case No: WHSCC Claim No(s): and Decision Number: Lloyd Piercey Review Commissioner The Review Proceedings 1. The hearing of the review application was held at the Glynmill Inn in Corner Brook, NL on August 27, The worker attended the hearing and represented himself. 2. The Commission was represented by Kathy Fry, Hearings Officer. 3. The employer did not participate in the hearing process. Introduction 4. On November 1, 2013 the worker filed a claim for a work related injury to his neck, which he contends occurred over an extended period of time. At that time, he was working as a Refiner Operator. 5. The Form 6, Worker s Report of Injury, attributed the injury to the wearing of a hard hat and having to constantly look down to avoid falling or tripping on the uneven floor surface in his workplace. This was further confirmed by the worker in a completed Non-Specific Incident Report. 6. On December 19, 2013 the employer filed a Form 7, Employer s Report of Injury, noting that it had received, on October 13, 2013, a report from the worker s family physician that stated the worker was experiencing pain and irritation in his neck, and that the worker attributed this to the wearing of a hard hat and walking on concrete floors at his place of work. On October 2, 2013 the Commission had received a Form 8/10 from the worker s family physician stating the same. 7. On March 4, 2014, after consulting with the Commission s Occupational Therapy Consultant, the Intake Adjudicator found that the evidence did not support that the worker s symptoms were related to workplace activities. 8. The worker appealed the March 4, 2014 decision by the Intake Adjudicator. Subsequent to this appeal, the Internal Review Specialist, on May 16, 2014, upheld the decision by the Intake Adjudicator. 1

2 9. It is the May 16, 2014 decision by the Internal Review Specialist that is before the Review Division. Issue 10. The worker is requesting that I find the Commission erred in denying his claim for compensation benefits in relation to his neck injury. Outcome 11. I find the issue cannot be resolved until the relevance of the Job Site Analysis (JSA) can be confirmed as fair and appropriate, and accurately documents the worker s tasks and duties as a First Operator. The Commission is directed to make a new decision which confirms the tasks of the worker in that position, in order to accurately determine if the duties are of a repetitive nature and could have caused the worker s neck symptoms. Legislation and Policy 12. The jurisdiction of a 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. 13. Other relevant sections considered are Sections 2(1), 19(1), 43(1), 60(1) and 61 of the Act, along with Policy EN-19: Arising Out of and in the Course of Employment and Policy EN- 20: Weighing Evidence. Relevant Submissions and Positions 14. The worker notes that he worked as a First Operator in a large area of his workplace that presented challenges with overhead obstacles, low ceilings, uneven floors, and stairs. He states that he wore a hard hat 100% of the time when working in this environment. 3

4 15. The worker states that he started training as a Refiner Operator, TMP in late September He notes that approximately two weeks into the program his pain increased dramatically, brought on, he feels, by spending at least four hours per shift walking and climbing throughout the plant, and looking up while observing pipes, valves and tracing lines. 16. The worker advises that his pain continued to worsen and, in early October, he sought medical attention for his neck pain. At that time, he states that he also reported his neck problems to his employer and the Commission. 17. The worker notes that a JSA for the First Operator TMP was referenced by the Commission in a review of his claim. The worker testified that he had checked into the date the JSA was completed for this position as being He contends that it does not reflect the duties that have changed over time and which he now has to perform in that position. 18. The worker acknowledges that there was no single event or incident that caused his neck problems. The symptoms have developed over time, and, he submits, it is due to the wearing of the hard hat and the up and down movement of his neck when observing overhead, or looking at the floor. 19. I note that the worker was accompanied by a union representative who was also a coworker. He testifies as to the working conditions and the duties performed by the worker. He also notes that the JSA performed 15 years ago would not accurately reflect the tasks required of a First Operator TMP today. 20. Ms. Fry notes that the worker, on his Form 6, Worker s Report of Injury, and in a telephone conversation with the Intake Adjudicator, states that his neck symptoms were due to repetitive strain, more particularly due to wearing a hard hat and repeatedly glancing down at the floor. However, Ms. Fry points out that the employer reported that all employees find themselves in similar circumstances and there has never been a reported problem like that indicated by this worker. 21. Ms. Fry references a review completed by the Commission s Occupational Therapy Consultant, dated February 27, 2014, in which she concluded that the worker s neck symptoms were not related to the wearing of a hard hat, nor the neck flexion required when looking at the ground. 22. Ms. Fry submits that the evidence does not support the worker s position that his neck problems are related to his workplace activities. Analysis 23. I note that the Case Description identified two different issues before the Review Commissioner at the August 27, 2014 hearing for this worker. More specifically, the following were identified: 4

5 Internal Review decision dated April 3, 2014 and the issue stated that the worker was requesting the Review Commissioner find the Commission erred in denying his request for clinic based physiotherapy treatments. Internal Review decision dated May 16, 2014 and the worker was requesting that the Review Commissioner find the Commission erred in denying his claim for compensation benefits in relation to his neck injury. 24. Relative to issue No. 1 and the April 3, 2014 decision to deny him physiotherapy treatments, the worker advised the Review Commissioner that it was never his intention to pursue an appeal on this matter. After same discussion and clarification, it was mutually agreed between the worker and the Commission s representative that the hearing would only deal with the issue relative to the Internal Review decision dated May 16, 2014, and the denial by the Commission to accept the worker s claim for compensation benefits, relative to his neck injury. 25. It is the position of the worker that the duties that he has to perform as a First Operator, particularly that he has to wear a hard hat while performing the duties, has caused undue stress on his neck and led to his neck symptoms. 26. The Commission submits that there is no evidence in the file to support the worker s contention that wearing a hard hat, and constantly having to look up and down while performing his duties in the workplace, has caused the problem the worker now indicates he experiences with his neck. 27. In my review of the file information, specifically the decision by the Intake Adjudicator dated March 4, 2014, and the decision by the Internal Review Specialist, dated May 16, 2014, I find there is considerable weight placed on the opinion of the Commission s Occupational Therapy Consultant. 28. I note also that Ms. Fry, in her submission to the Review Commissioner on August 27, 2014, wrote: Therefore, the Commission found that while the worker felt that it arose out of his employment, there was nothing in the employment relationship that could be seen as causative in nature for this. Therefore, the presumption is not afford to the worker, and therefore, after examining very specifically his job duties very carefully by occupational therapist, have shown that the contrary is shown 29. I note that the opinion of the Occupational Therapy Consultant is stated in the Claim Notes dated February 17, 2014: This 45 year old.employee developed neck pain at the base on his neck in October He has since moved to another position with no ongoing problems. As you noted he feels it is related to wearing a hard hat all day long and constantly looking down at the ground to avoid tripping on uneven and slippery surfaces. 5

6 I feel it is highly unlikely that he developed neck pain from this as a hard hat weighs only 14 ounces. Additionally, the neck flexion required to view the ground for safe ambulation would not be significant or end range and he does not need to walk around the worksite for the full shift based on the job description on file. 30. In reviewing the opinion of the Occupational Therapy Consultant, it is evident that the worker s job description that was provided by the employer, as noted in the Claim Notes dated February 25, 2014, was used in the review by the Occupational Therapy Consultant. Actually, I find there is no reference made by the Occupational Therapy Consultant to indicate that she had considered any other evidence in the worker s file to support why she arrived at the decision that there was no link between the workplace activities and the worker s neck symptoms. 31. The worker, in his testimony, noted that the JSA provided by the employer, and referenced by the Commission as being relative to the First Operator position, was done 15 years ago and the duties had changed considerably since then. This was supported by the worker s coworker who attended the hearing and spoke to this matter. I have reviewed the worker s file and find that the JSA provided by the employer, and used by the Commission, particularly the Occupational Therapy Consultant, was performed on March 26, Considering the testimony of the worker and his co-worker, it is not unreasonable to conclude that the duties of First Operator position in 1999 are not the same in This is supported by the fact that resources dedicated to this position have gone from two people to one person today. 32. I note that the worker had questioned the Case Manager on the validity of the JSA that he considered outdated. The Claim Notes dated March 21, 2014 state, in part: The worker also questioned when the JSA was done, I gave him the date of the JSA but I advised him that his claim was not denied because of the job duties that were listed in the JSA. I advised him that his claim would have been denied even without the JSA; he indicated that his neck symptoms were form [sic] wearing a hard hat all day and walking on uneven and slippery surfaces. 33. I find a contradiction in the response from the Case Manager who stated I advised him that his claim was not denied because of the job duties that were listed in the JSA. In my review of the file information, I find little evidence to indicate that anything other than the JSA was objectively assessed by the Occupational Therapy Consultant and, as I stated earlier, the Commission has placed significant weight on the Occupational Therapy Consultant s report. 34. In reviewing the position arrived at by the Commission on this matter, I find the worker has merit in his argument that the JSA may be outdated. To provide an opinion, the Consultants have to make certain assumptions about the worker s activities, and I accept that the position description may be stale, and possibly no longer applicable, based on the uncontradicted testimony provided at the hearing. 35. Relative to the value of the JSA, the Internal Review Specialist wrote on May 16, 2014: 6

7 You have also pointed out that the jobsite analysis used by the Occupational Therapist for First Operator was 15 years old and job duties have changed. Your correspondence does not provide any evidence of how the jobsite analysis is no longer relevant or that it provides an incorrect analysis of the duties of First Operator I find it is incumbent on the Commission, with the resources available to it, to determine if the JSA completed 15 years ago is still relevant. To defer that responsibility entirely to the worker is not contemplated by the Act. Under the Act, the Commission also has a certain level of responsibility to investigate the claim when certain relevant matters are identified or challenged by the worker during the claims investigation process. I do not perceive it to be my role to direct how much further investigation is necessary in engaging the worker s argument, or the form that the inquiries take, but in this case, it would appear that a minimal level of clarification would have identified what the basis of the worker s position was. The worker was able to provide an easily understandable basis for his position at the hearing. 36. Policy EN-20: Weighing Evidence, states, in part: The standard of proof for decisions made under the Act is the balance of probabilities -- a degree of proof which is more probable than not. 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. Decision makers must weigh conflicting evidence to determine whether it weighs more toward one possibility than another. Where the evidence weighs more in one direction then that shall determine the issue. 37. Policy EN-20 also contains certain factors to be taken into account when weighing medical evidence. It states: 2. When addressing conflicting medical evidence, decision makers will not automatically prefer the medical evidence of one category of physicians or practitioners over that of another. Decision makers shall consider the following criteria in deciding what weight to give to such evidence: a. the expertise of the individual providing the opinion, b. the correctness of the facts relied upon by the provider of the opinion, c. any issues of bias or objectivity with the opinion, d. subjective versus objective medical evidence, and e. the findings of any relevant scientific studies referenced by a qualified medical practitioner. 7

8 38. I accept that the Occupational Therapist would have some advantage of expertise in identifying the specific mechanisms associated with workplace injuries. Also, I do not perceive that there is any issue with objectivity or bias, nor does there appear to be any significant issue with respect to subjectivity or objectivity of evidence. However, I do believe that there may be an issue with the correctness of the facts relied upon. The correctness of the assumptions necessarily affects any analysis which could be provided. So while the Occupational Therapist does have expertise in this area, and has presumably relied upon studies and research in reaching her conclusion, it appears that a key component of the worker s argument and evidence has not been addressed. Accordingly, I do not accord the decisive weight to the opinion that the Commission does. I find that, in order to provide a compliant opinion, the Commission must address the issue of the 15 year old JSA, and verify if the duties today are different, and if so, could have produced the neck symptoms. 39. There is no reference in the opinion of the Occupational Therapy Consultant, nor is it acknowledged by either the Intake Adjudicator or the Internal Review Specialist, that the duties of the First Operator today may have changed since 1999 when the JSA was completed for this position. This is particularly significant since, at the time of the Internal Review Specialist s decision on May 16, 2014, the worker had already raised his concerns with the Case Manager, as is documented in the Claim Notes dated March 21, Also, the opinion seems to focus heavily on the weight of the hat and ambulation requirements, but it appears that climbing and looking upward to observe pipes and valves is part of the position as well. It is difficult to see if, or how, these issues were addressed, whether they would be considered end range, and what effect they may have had on the opinion, had they been taken into account. 40. My jurisdiction is limited to determining whether the Commission, in making its decision, acted in accordance with the Act, regulations and policy. Furthermore, I am not in a position to determine whether a different outcome would have followed had the worker s evidence been taken into account. That matter would appear to be appropriate for further investigation, but that function is reserved to the Commission under Section 19 of the Act. 41. I believe that the following passage from Porter v. Workers Compensation Review Division (Nfld.) applies to this situation, and requires that the matter be remitted to the Commission for a determination based on all the evidence: [39] It seems to me that, implicit in the direction that the Commission decide in accordance with the Act, Regulations and policy, is the requirement that, on review of a Commission decision, the review commissioner must consider all the relevant evidence placed before him or her, and must be satisfied that, in reaching his determination, the Commission had available to it, and at least considered, such relevant evidence. While it may well be within the Commission's authority to reject (e.g.) medical evidence, a fair determination as contemplated by the Act requires that the evidence be carefully considered and assessed in accordance with s. 60(1). [40] The Commissioner's conclusion cannot be supported. By failing to satisfy himself that the Commission considered all relevant evidence - even if that meant referring the matter back to the Commission - the Commissioner failed to 8

9 complete the task entrusted to him. He was reviewing a decision made on incomplete information and compounded the difficulties by drawing his own conclusions which misstated the evidence before him. Decision 42. I find the issue cannot be resolved until the relevance of the Job Site Analysis (JSA) can be confirmed as fair and appropriate, and accurately documents the worker s tasks and duties as a First Operator. The Commission is directed to make a new decision which confirms the tasks of the worker in that position, in order to accurately determine if the duties are of a repetitive nature and could have caused the worker s neck symptoms. Referred back to WHSCC Lloyd Piercey Review Commissioner September 30, 2014 Date 9