Workplace Health, Safety & Compensation Review Division

Transcription

1 Workplace Health, Safety & Compensation Review Division WHSCRD Case No: WHSCC Claim No: Decision Number: Lloyd Piercey Review Commissioner The Review Proceedings 1. The hearing into the review application was held at Hotel Gander on June 19, The worker participated in the hearing and was accompanied by his spouse, who attended as an observer. The worker was represented by Gerarda Gamberg, Appeals Officer with the Government Members Office, via teleconference. 2. The employer did not attend or participate in the hearing process. The Commission participated in the hearing and was represented by Kathy Fry, Hearings Officer, via teleconference. Introduction 3. In May 2002, the worker submitted a claim for industrial hearing loss. The worker stated he was exposed to hazardous noise while employed as a Heavy Equipment Operator from 1976 to the date of the application. In 2005, the Commission received additional information relative to the claim. 4. On April 1, 2008, the Extended Services Adjudicator advised the worker that his hearing loss was not in the compensable range and his request for compensation for hearing loss was denied. 5. On June 27, 2011, the worker s representative submitted an Audiogram dated June 15, 2011, asking that it be reviewed to determine if it warranted a change in the previous decision. On September 13, 2011, the Extended Services Adjudicator advised that the additional information had been reviewed, but the decision remained unchanged. Upon appeal, the Internal Review Specialist upheld the decision by the Extended Services Adjudicator that there was no entitlement for industrial hearing loss benefits. 6. On December 1, 2011, the worker s representative submitted a report dated November 16, 2011 from an ENT Specialist, and requested that it be reviewed. On December 19, 2011, the Extended Services Adjudicator advised that it was reviewed and the decision remained unchanged. Upon appeal, on February 17, 2012, the Internal Review Specialist upheld the decision by the Extended Services Adjudicator to deny the claim. This was subsequently 1

2 appealed to the Review Division and, on October 19, 2012, the Review Commissioner concluded that the November 16, 2011 report did not constitute new evidence to warrant a change in the September 13, 2011 decision to deny the worker s claim for industrial hearing loss. 7. On December 13, 2012, the worker s representative requested that the April 1, 2008 decision to deny the worker s claim be reopened in accordance with Section 64(a) and 64(c) of the Act. 8. On February 12, 2013, an Extended Services Adjudicator s decision advised that the original decision to deny the worker s claim for industrial hearing loss remained unchanged and that the only information open for appeal was whether the information presented in the December 13, 2012 letter was new information under Section 64 of the Act, to warrant a reopening of the claim. 9. On April 8, 2012, the Internal Review Specialist upheld the Extended Services Adjudicator s decision of February 12, Issue 10. The worker is requesting the Review Commissioner find the Commission erred in their decision to deny the reopening of his claim under Section 64 of the Act. Outcome 11. I find the Commission has arrived at a decision that is supported by the evidence and in accordance with the Act, regulations and policy. Legislation and Policy 12. 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 19(4) and 64 of the Act. Relevant Submissions and Positions 13. It is the position of the worker that the letter from the ENT Specialist, dated November 16, 2011, is new evidence that is of the quality to meet the criteria set out in Section 64 of the Act and, therefore, his claim should be reopened. 2

3 14. Ms. Gamberg referenced another Audiogram, dated November 8, 2005, that was completed on the worker and she stated that the Commission relied on this information in arriving at its decision. 15. Ms. Gamberg referenced an Audiogram that was completed in June, She stated that the Commission should use this report in its determination, since it is more recent. She noted that the testing results indicated that, if the numbers were combined and averaged, the worker would meet the criteria of hearing loss and entitlement. She submitted that under Section 19(4) of the Act, the Commission has the discretionary power to do this and to do so would reflect the real merits of the case. 16. Ms. Gamberg referenced the Meredith Report of 1913 that recommended the introduction of the Workers Compensation Act in Ontario and it was the basis of the Act in Newfoundland and Labrador. 17. Ms. Gamberg stated that the Commission has the authority to reopen a claim and it would be within the spirit and intent of the Act to do so, in this case. 18. The worker testified that he had worked for over 40 years in a noisy environment as a Heavy Equipment Operator. He attributed his hearing loss to the exposure to industrial noise in the workplace. 19. The Commission referenced Section 64 of the Act as being relevant to the issue. 20. The Internal Review Specialist noted that the Extended Services Adjudicator advised the worker that the June, 2011 Audiogram was received by the Commission and investigated to determine if the worker had continued exposure to industrial noise. It was confirmed that the worker s last exposure was in 2005, and the Commission reviewed the Audiogram that was closest to that time, which was in The Internal Review Specialist noted that the June 2011 Audiogram showed that the worker s hearing had deteriorated and the report from the ENT Specialist, dated November 2011, stated that the worker s hearing loss was due to industrial deafness. However, since the worker had not been exposed to industrial noise after 2005, the Commission must use the medical information closest to the confirmed work history and industrial noise exposure, which was the 2005 Audiogram. 22. The Internal Review Specialist stated that the Commission can only consider an Audiogram performed within five years of the worker s last exposure to hazardous noise in the workplace. 23. The Internal Review Specialist stated that the Audiology Report dated June 15, 2011 and the report from the ENT Specialist, dated November 16, 2011, had previously been reviewed by the Commission and it was concluded then that it did not constitute new information. 3

4 24. The Internal Review Specialist stated that the December 13, 2012 letter from the worker s representative did not contain new information that would warrant a reopening of the worker s claim under Section 64 of the Act. Consequently, the decision by the Extended Services Adjudicator dated February 12, 2013, was upheld. 25. Ms. Fry reviewed the decision by the Internal Review Specialist rendered on April 8, Ms. Fry noted that the worker had an Audiogram completed in 2005, which was received by the Commission in 2008, and reviewed for entitlement. It was accepted that the worker was exposed to industrial noise, but he did not meet the criteria for compensable benefits. She noted that there must be hearing loss of 25 decibels in each ear, separately, to qualify for hearing aids and 35 decibels to meet the criteria for a PFI entitlement. She stated that, in 2008, the Medical Consultant had reviewed the information and determined that the worker did not meet the criteria. 27. Ms. Fry referenced an Audiogram completed on the worker in June, 2011 that showed a greater hearing loss. However, the Commission did not accept the information because the worker had not worked since 2005 and was not further exposed to industrial noise. Therefore, the Commission concluded that the 2011 Audiogram was not valid to consider for hearing loss entitlement. 28. Ms. Fry noted that the Extended Services Adjudicator had reviewed the ENT Specialist s letter of November 16, 2011 in her decision dated December 19, The letter was again considered when the Internal Review Specialist upheld the Extended Services Adjudicator in her Internal Review on February 17, Ms. Fry referenced a Decision by Review Commissioner Budgell, dated October 19, 2012, in which he had determined that the letter from the ENT Specialist dated November 16, 2011, was not new evidence and he supported the Commission s similar determination. 30. Ms. Fry stated that the Internal Review Specialist, in the April 8, 2013 decision, reviewed the 2005 and the 2011 Audiograms. She submitted that the ENT Specialist s letter did not impact the April 1, 2008 decision, nor does it provide any rationale to warrant a reopening of that particular decision. Analysis 31. The file confirms that Mr. Reardon wrote to the Commission on December 13, 2012, requesting that the April 1, 2008 decision to deny the worker s claim for hearing loss benefits be reopened under Section 64 of the Act. Mr. Reardon submitted that the worker s condition had deteriorated and that was supported by a report from the ENT Specialist, dated November 16, In the February 12, 2013 decision, the Extended Services Adjudicator concluded that the worker had not been exposed to industrial noise since 2005 and the June 2011 Audiogram completed on the worker was not relevant to the claim, since it did not meet the criteria of Policy EN-12. The Extended Services Adjudicator noted that it was the opinion of the Commission that the ENT Specialist s letter of November 16, 2011 did not 4

5 provide any new evidence to warrant a reopening of the worker s claim. I note that the February 12, 2013 decision by the Extended Services Adjudicator was upheld by the Internal Review Specialist on April 8, I point out that, in this instance, it is not my role to re-adjudicate the claim. The file information confirms that the merits of the claim have been considered and the original decision to deny the claim has been continually upheld by Internal and External reviews. I note that on October 19, 2012, Review Commissioner Budgell wrote: It is my finding that the Commission did not err in determining that the report submitted, dated November 16, 2011, did not constitute new evidence to warrant a change in the September 13, 2011 decision to deny the worker s claim for industrial hearing loss. 33. The report referenced by Review Commissioner Budgell is that of the ENT Specialist, dated November 16, In my review of the file, I find that the ENT Specialist s report has been assessed and considered in previous decisions. On December 19, 2011 the Extended Services Adjudicator wrote: I have reviewed [the ENT Specialist s] November 16, 2011 report, and have noted his opinion regarding [the worker s] hearing loss, however, as [the worker] has not been exposed to workplace noise after 2005, the worsening of his hearing is not related to workplace noise 34. I note that, on February 17, 2012, the Internal Review Specialist stated that Mr. Reardon had previously submitted the November 16, 2011 letter from the ENT Specialist and the Extended Services Adjudicator had reviewed it in her decision. The Internal Review Specialist goes on to state that the ENT Specialist, in referring to the worker s hearing loss, stated it was almost certainly due to industrial deafness. The Internal Review Specialist contended, however, that the ENT Specialist does not account for the increased hearing loss when the worker was not exposed to industrial noise since After reviewing and analyzing the file, particularly the December 13, 2012 correspondence from Mr. Reardon, I cannot find evidence to warrant a reopening of the worker s claim under Section 64 of the Act. 36. The test for reopening a claim is established by the Breen decision. I note that Breen makes the following statements: [41] under s. 64, there must be some preliminary examination and screening of suggested new entitlement evidence to determine whether its quality, viewed against the strengths and weaknesses of existing information, justifies a reexamination of the whole case. [42] Inasmuch as the Review Commissioner clearly stated the narrow issue, his remarks, though perhaps infelicitously expressed, can be taken as simply an analysis of the information before him, including the information that the Medical Advisory Committee initially had, for the purposes of determining 5

6 whether or not there was sufficient new evidence that would justify re-opening the claim. The threshold for the existence of new evidence is not a very high one. Although the evidence must not be fanciful or spurious, it clearly does not require a determination that the decision would necessarily have been different if that information had been available. That question must be reserved for the determination on the merits if the matter is in fact re-opened. (emphasis mine) 37. It is obvious that Breen did not intend that the Commission would be bound to accept each and every piece of evidence simply because an applicant demand it should. Furthermore, it is not bound to refer any matter for an extensive examination in each case. The Commission is given discretion under the Act in such matters. The Commission is permitted to conduct a preliminary screening to assess the new information and answer a much narrower question which is, as stated in Breen, whether the new information justifies a reexamination of the whole case. 38. I point out that the preliminary screening stage is quite different from considering a reopening based on the merits of the case. The file confirms that the claim has been thoroughly vetted on the merits of the claim and, at each stage of the decision making process, the claim has been denied. I am not re-adjudicating that determination. Notwithstanding, in this particular file, I find the Commission has given the evidence due diligence and the December 13, 2012 correspondence does not meet the new evidence threshold as articulated by Breen, albeit a low one. I find that Dr. Samuel s letter, in particular, has been given a thorough screening and has been considered in the decision to deny the reopening of the worker s hearing loss claim. Decision 39. I find the Commission has arrived at a decision that is supported by the evidence and in accordance with the Act, regulations and policy. 40. With respect, the review is denied. Review Denied Lloyd Piercey Review Commissioner August 23, 2013 Date 6