WORKERS COMPENSATION BOARD OF PRINCE EDWARD ISLAND DECISION #49. Worker Advisor, representing the Worker

Transcription

1 WORKERS COMPENSATION BOARD APPEAL TRIBUNAL CASE I.D. [personal information] BETWEEN: WORKER APPELLANT AND: WORKERS COMPENSATION BOARD OF PRINCE EDWARD ISLAND RESPONDENT DECISION #49 Shawn Shea Worker Advisor, representing the Worker John K. Mitchell Place and Date of Hearing Solicitor representing the Workers Compensation Board Best Western Charlottetown, Prince Edward Island February 3, 2006 Date of Decision February 15, 2007

2 - 1 - STATEMENT OF FACTS AND BACKGROUND 1. The Worker, a relatively young man, was employed with a [personal information] (hereinafter called the shop ) for [personal information] years prior to his injury. 2. He filed his claim for compensation on [personal information], 2003 after having an onset of left - upper extremity symptoms on [personal information], He initially claimed that he woke in the middle of the night, on [personal information], 2003, with pain in his left arm, extending from his neck, over his anterior left shoulder, down his medial arm, to his elbow. He indicated that the pain in his elbow was similar to the sensation of hitting his funny bone. 4. His left - upper extremity symptoms progressively got worse at work. 5. This was acknowledged by his employer who also suggested that the Worker should go get medical attention. 6. The Worker did not seek medical attention immediately despite his employer s suggestion, hoping his symptoms would resolve. 7. By [personal information], 2003, he went to see Dr. Kelly and got some medications. 8. Two days later, he informed his employer on [personal information], 2003 he had to seek medical attention again for his problems; and, he went to the Emergency Department of the QEH. 9. On that date, he filled out a WCB Worker s Report of Accident. 10. He did not submit his Worker s Report to the WCB until [personal information], His reason as stated is because both he and his attending physicians initially were uncertain as to the origin of his problems. 12. His physician did not complete the Physician s Initial Report until [personal information], 2003 and did not fill out progress reports for the worker s first four visits, which began on [personal information], 2003, until [personal information], On [personal information], 2003, he was given medical leave from work by his attending physician. 14. He does readily admit that, in his case, he did not have the usual WCB standard for injury through a specific event/trauma.

3 2 15. It was not until the initial battery of medical consults and testing were completed that his family physician, Dr. B. Kelly (Consult - [personal information], 2003), informed the Worker his mechanism of injury resulted from an employment repetitive strain and this involved such work tasks as pulling on levers. Thereafter, with his new awareness of employment related RSI, he filed for compensation with the WCB. 16. Based on an electromyography ( EMG ) report dated [personal information], 2003, Dr. Hutchings made a diagnosis of carpal tunnel syndrome ( CTS ) of the left wrist, he wrote: There is evidence of mild neurogenic dysfunction in the left upper extremity. There is mild dysfunction affecting the motor and sensory fibers of the median nerve at the level of the wrist. The underlying pathology is at least in part segmental demyelination. In the appropriate clinical setting these findings support a diagnosis of carpal tunnel syndrome. There is also dysfunction affecting the motor fibers of the radial nerve. 17. An MRI of the cervical spine dated [personal information], 2003 came back negative. 18. On [personal information], 2003, Dr. Kelly diagnosed the Worker as suffering from cervical strain/shoulder strain on the basis of objective findings of a tender trapezius, restricted range of motion of the neck and left shoulder, and negative MRI and EMG reports. 19. In the Employer s report dated [personal information], 2003, it indicates that it had not been informed of the Worker s injury and that the details of the injury were unknown. 20. The Worker stated that there was no specific time, date or incident associated with his injury. He claimed, however, that his symptoms were caused by his work activities, more particularly, the repetitive bending of metal sheets. 21. On December 16, 2003, he clarified that the reason for the discrepancy between the Worker s and Employer s reports was that the employer adamantly denied that he had informed it of his injuries on [personal information], 2003 and that it did not believe his injuries were related to his work duties. 22. There were two worksite analysis conducted. The first on [personal information], 2004 by a Board Occupational Therapist ( OT ). The OT focussed on the impact of the work duties on the Worker s left wrist because of the CTS diagnosis. The Worker informed the OT that he was involved in all aspects of [personal information]. He stated that he typically worked 10 hours per day, 5 days per week, with two breaks in addition to a lunch break. The OT noted that [personal information], operating them with his dominant right hand while using his left hand to [personal information]. 23. In the course of the first worksite analysis, the OT observed the Worker performing his two

4 3 main tasks; [personal information]. The Worker felt this to be the most aggravating task, however, the OT noted that there were no high forces at the wrist involved with the task. 24. [Personal information], but this does vary according to what projects they are working on. Based on this information, the OT noted that the task would involve high forces. 25. The OT determined that it was unlikely that the Worker s CTS resulted from his work activities. While the OT noted that high forces were present for the task of [personal information], she concluded that the variety of tasks performed by the Worker allowed him sufficient time to recover from the strain of carrying out any individual task. She noted: Medical literature cites known risk factors such as high repetition, high forces and extreme postures as possible contributors to the development of repetitive strain injuries to the wrist. The above job was analysed with respect to these factors and it was noted that there are high forces associated with [personal information] at the start of a project. There does however, appear to be a good variety of tasks in which they are required to do while working on different projects that takes them from various work stations in the process of [personal information]. Therefore, my opinion is that there seems to be enough variety in the job duties that he is doing that would limit the amount of exposure time and help to decrease the risk for a repetitive strain type injury to the wrist. 26. The OT also commented that the sudden onset of the Worker s symptoms were inconsistent with a repetitive strain type injury, which develops over a period of time. She wrote: A review by the medical director was also completed and it was found that in terms of the clinical presentation, there seemed to be a sudden onset on [personal information], 2003, when the Worker woke up feeling pain and numbness in his left arm and shoulder area. This does not seem to be consistent with a repetitive strain type injury to the wrist where the symptoms would gradually worsen over a period of time. 27. In June 2004, the Worker modified his story, claiming that he first noted symptoms in his left elbow at least a week or two prior to [personal information], Although the Worker stopped working as of [personal information], 2003, his symptoms persisted. Some nine months later, Dr. Quartey s correspondence dated [personal information], 2004, indicates that it was apparent that the Worker was still experiencing pain. 29. On January 23, 2004, the Worker was approved for twenty days Temporary Earnings Loss benefits for a left shoulder strain injury, effective [personal information], The

5 4 claim was approved and adjudicated based upon the initial diagnosis of shoulder strain by Dr. Kelly, not the diagnosis of CTS. The Entitlement Officer later confirmed in an Inter Office Memorandum dated March 5, 2004, that if an updated, more definitive diagnosis is provided to this claim, it will be re-adjudicated based upon that new diagnosis. 30. In correspondence dated [personal information], 2004, Dr. Miller stated that based on the neurological assessments, there was objective evidence of nerve dysfunction. 31. On [personal information], 2004, Dr. Quartey concluded: Following evaluation of the above-named today, the diagnoses here are: Myofascial Pain Disorder left scapular region; Left Ulnar Nerve Dysfunction Left Carpal Tunnel Syndrome It is my opinion that these clinical problems were caused by work activities. Interventions will include prompt Physical Therapies and surgery for Carpal Tunnel Syndrome. 32. In more detailed correspondence dated [personal information], 2004, Dr. Quartey indicated that: Upon examination we find the patient who appears to be in moderate discomfort. He has exquisite tenderness involving the myofacial tissues in the upper scapular region on the left side superior-medially with pain radiation being reported down the upper arm. He has trigger points here in effect. A mild diffuse weakness of the left upper limb is noted but then this may be more on the basis of pain being experienced rather than motor deficits as he did report increased pain in the upper arm with muscle spasms there when being tested. He does have sensory impairment involving the median and ulnar nerve distributions on the left side. Tinel s sign with percussion of the ulnar nerve at the left elbow is positive as it is upon percussion of the median nerve at the left wrist. This patient then presents with the clinical features consistent with myofacial pain disorder of the left scapular region, left ulnar nerve dysfunction and left carpal tunnel syndrome. This diagnosis was based on his examination of the Worker. No new objective diagnostic

6 5 tests were carried out. 33. The Board Occupational Therapist conducted a second worksite analysis on [personal information], 2004, focussing on the Worker s left shoulder and elbow. During this assessment, the Worker claimed that he [personal information]. The Worker again stated that in the course of a day, he would handle up to [personal information]. She wrote: The worker indicated that typically for any of the projects they do, take down probably [personal information] The worker indicates he could be using up to [personal information]. 34. The OT made the following comments with respect to the nature of the tasks: Medical literature cites known risk factors such as high repetition, high forces and extreme postures as possible contributors to the development of repetitive strain injuries to the shoulder and elbow. The above job was again analysed with respect to these factors and it was noted that there are high forces associated with [personal information] at the start of a project as well as with lifting some of the [personal information] to the different work areas even [personal information]. There are also times when both the shoulders, particularly when using [personal information] and the elbow, are put into extreme postures during the two to three hours that the worker would be working at that particular machine, there would be periods of high repetition. As stated in my assessment dated [personal information], 2004, I had already looked at the wrist with respect to risk factors for a repetitive strain injury and it was found that there were no significant risk factors associated with this type of injury to the wrist. However, in looking at both the left shoulder and left elbow, particularly when using the brake, risk factors were seen with extreme postures, high forces as well as with times of high repetition. 35. The OT recommended that the file be reviewed by the Board Medical Director on the basis of several noted discrepancies with the case regarding: (1) the time of onset of the symptoms; (2) the persistence of symptoms well beyond the Appellant s final day of work; and (3) the fact of there being no definitive diagnosis. 36. While Dr. Carruthers, the Board s Medical Director, did not examine the worker, in his review of the file on June 30, 2004, he confirmed that there was still no clear diagnosis under the claim and that EMG studies did not support a diagnosis of ulnar nerve dysfunction. He concluded:

7 6 There is no clear diagnosis under this claim. There was sudden onset of neurological symptoms not related to trauma. The anatomical focus is in the ulnar nerve at the elbow. EMG studies do not support the worker as having evidence of ulnar nerve dysfunction. 37. The Entitlement Officer held a meeting on July 27, 2004, with the Employer in order to clarify the nature of the Worker s job as well as the incidents initiating his claim. The employer indicated that the Worker had been employed with them for several months per year from [personal information]. 38. The Worker spent the majority [personal information]. 39. The Employer reported that in early [personal information] 2003, he noticed the Worker rubbing his left arm, particular his left elbow. The Employer apparently knew that the Worker had been moving furniture by himself over the weekend and asked the Worker if he had hurt his arm at home or at work. The Worker denied having hurt his arm and claimed it was just sore. A few days later, the Employer noticed the Worker rubbing his arm and recommended that the Worker see someone, which the Worker then did. The Employer indicated that he only became aware that the Worker believed his problems were workrelated when he received a request for an Employer s Report from the WCB in [personal information] The Employer specified that 90% of the work is performed with the [personal information] worker s dominant hand, which in this case would be the Worker s right hand. He also indicated that [personal information]. 41. As the Employer s job description conflicted with the Worker s, the Entitlement Officer followed up with a worksite assessment of another similar worksite. The owner confirmed that the [personal information]. He indicated that [personal information]. 42. Based on this information, Dr. Carruthers reviewed the file and in a Medical Comment to File dated July 27, 2004, he states: Given this new information I find that there is no good support for evidence of left carpal tunnel syndrome nor left ulnar nerve dysfunction (as has been commented on before) as well as any evidence of involvement of the left scapular region. The original ergonomic assessment did not accurately reflect the true assessment of the work site given the information in the file. Therefore, it is my medical opinion within a reasonable degree of medical certainty that the worker s need to seek medical attention with reference to the anatomical areas considered under this claim are less likely associated with his work activity.

8 7 43. In a decision dated July 27, 2004, the Entitlement Officer denied the Worker s claim. The decision was based on, but not limited to, the following findings: No risk factors were present for carpal tunnel syndrome, EMG results indicated that the ulnar nerve was normal, The Worker s symptoms had not settled since the time he stopped working, [personal information], 2003, The existence of discrepancies with respect to the [personal information], The existence of discrepancies with respect to the Worker s onset of symptoms, Dr. Carruthers Medical Comment to File concluding that the Worker s symptoms were not work-related, and The fact that ulnar nerve dysfunction normally results from direct trauma, and not repetitive strain. 44. In an Inter Office Memorandum dated July 28, 2004, the OT indicated that the new information that [personal information]. She indicated that the risk factors for development of repetitive strain injury would not be present in either work task because: movement of the left shoulder and elbow when using the [personal information] would not be highly repetitive, and there would be sufficient recovery time per hour as the worker would be involved in other parts of the [personal information] throughout his shift. The IRO Decision The IRO, conducted a paper file review. She identified the central issue as: Is the Worker entitled to compensation benefits beyond the closure of his claim? The IRO denied the Worker s claim and held that the Entitlement Officer s Decision to do so was appropriate. In her claim summary, the IRO referred to several medical reports: A medical report from Dr. Kelly, dated [personal information], 2003, advised the Worker s subjective complaints were neck/upper back pain with radiation down left arm. Dr. Kelly reported the objective findings to be restricted neck and shoulder range of motion.... On [personal information], he was assessed by Dr. Hutchings. Dr Hutchings assessment concluded, Pain left arm. The differential here is an ulnar nerve lesion, early brachial

9 8 plexopathy, or prolapsed cervical disc with an early C-8 radiculopathy... he is very tender over the left ulnar nerve so this may be the problem, although I am not totally convinced. He prescribed Dilaudid for pain and ordered an EMG and nerve conduction studies and commented that he might order an MRI as well. The EMG report of [personal information], 2003 concluded, There is evidence of mild neurogenic dysfunction in the left upper extremity. There is mild dysfunction affecting the motor and sensory fibers of the median nerve at the level of the wrist. The underlying pathology is at least in part segmental demyelination. In appropriate clinical setting these findings support a diagnosis of carpal tunnel syndrome. There is also dysfunction affecting the motor fibers of the radial nerve. The worker saw Dr. Miller on [personal information], 2003 at the QEH for pain in the left shoulder that was radiating from his neck and extended to his finger. He reported numbness in his fingers. Dr. Miller felt the worker should have a neurological assessment and MRI. The Physician s Initial Report of Injury dated [personal information], 2003 indicated that objective findings were Tenderness trapezius. Restricted range of motion neck and left shoulder. Negative MRI of neck. Negative EMG. The report stated the diagnosis was cervical strain/shoulder strain. The IRO noted that the employer had stated on the Form #7 that worker had not reported this incident. The worker told the Entitlement Officer his employer was aware of his injury on [personal information], 2003 and he told the Entitlement Manager that his employer did not think his injury was work related. The IRO also reported that: In December 2003 the worker was approved for physiotherapy sessions for his left arm injury. An MRI Report of [personal information] 2003 advised Normal appearing cervical cord and exiting nerve roots. In [personal information] 2004, Dr. Kelly advised the worker was off work another six weeks. The Entitlement Manager spoke with the worker on January 13, During this conversation the worker advised there was no specific time, date or incident for his most recent WCB application for injury. He said his recent injury was caused by the repetitive [personal information] at his place of employment. A Pre-Adjudication Worksite Analysis for Progressive Injury Claims was done on [personal information], The worker advised the Occupational Therapist that on [personal

10 9 information], 2003, he awoke in the middle of the night with pain and numbness in his left hand. He said the symptoms continued to the point where he filled out a WCB report and reported this to his employer on [personal information], The Occupational Therapist assessed the worker s job duties and came to the following conclusion, Because there is no definitive diagnosis on the left arm, shoulder and neck area, as this is where the symptoms first occurred, it is difficult to comment on this. I tried to focus my analysis on the left wrist particularly, since there was a diagnosis of left carpal tunnel syndrome... my opinion is that there seems to be enough variety in the job duties that he is doing that would limit the amount of exposure time and help to decrease the risk for repetitive strain type injury to the wrist. On January 23, 2004, the worker was advised his claim for compensation benefits as a result of his left shoulder strain would be accepted effective [personal information], 2003, until [personal information], 2003, for a total of 20 days. It was noted that this was the diagnosis on file as per Dr. Kelly, [personal information], The worker saw Dr. Miller on [personal information], 2004, who stated in his report, My concern is that we have objective evidence of nerve dysfunction, exclusive of the cubital tunnel and carpal tunnel. In February 2004 the worker was advised by an Entitlement Officer that WCB would require a definite diagnosis before his claim could be re-adjudicated. A report from Dr. Quartey dated [personal information], 2004, provided the following diagnoses: Myofascial Pain Disorder left scapular region, Left Ulnar Nerve dysfunction, Left Carpal Tunnel Syndrome. The Entitlement Officer requested the Occupational Therapist determine whether the risk factors were present at the worker s place of employment for the new diagnoses on file. An OT assessment of the worker s duties was conducted on [personal information], 2004, at an alternate work location as the worker felt that he wasn t represented accurately at his place of work. The Entitlement Officer, Worker Advisor, Occupational Therapist, and Worker attended this work site assessment. The results of this assessment resulted in the following conclusions: In looking at both the left shoulder and left elbow, particularly when using [personal information],

11 10 risk factors were seen with extreme postures, high forces as well as with times of high repetition. However, there are noted discrepancies as to the clinical presentation of the symptoms as there seemed to originally be a sudden onset on [personal information], However, when speaking to the worker during this assessment, he indicated he was feeling discomfort particularly in his left elbow at least a week or two prior to his date. There is also some question as to whether or not he presents as a repetitive strain type injury as being off work since [personal information], 2003, symptoms have not seemed to have settled at all. A meeting was held on July 27, 2004, with the Entitlement Officer, the Manager of Intake and Entitlement and the worker s employer in order to get clarification on the nature of the worker s employment. The employer advised that 90% of the work is done with a person s dominant hand. The worker is right hand dominant. The employer said a [personal information]. The Entitlement Officer called the employer when the OT assessment of [personal information], 2004, was completed and [personal information]. A memo from Dr. Carruthers, Board Medical Director, dated July 27, 2004, stated, It is my medical opinion within a reasonable degree of medical certainty that the worker s need to seek medical attention with reference to the anatomical areas considered under this claim are less likely associated with his work activity. The worker received a decision dated July 27, 2004, advising his claim was denied. Specifically, the letter stated the issue as, To determine whether your myofascial pain disorder of the left scapular region, left ulnar nerve dysfunction and your left carpal tunnel syndrome are a result of a repetitive motion caused by the nature of your employment. The rational for the denial included the following key components: - No risk factor present for carpal tunnel syndrome. - EMG shows ulnar as normal. - Symptoms haven t settled down since being off work [personal information], Discrepancies noted with [personal information].

12 11 - Discrepancies noted with respect to onset of symptoms - acute versus progressive. - Dr. Carruthers medical comment to file. - Ulnar nerve dysfunction normally results from direct trauma, not repetitive strain. A memo from WCB Occupational Therapist dated July 28, 2004, stated that: given the new information provided by the employer in respect to the weights of metal and amount of metal sheets used, her conclusion in her latest RSIOT report would have been different. She stated given this new information, there would be sufficient recovery time per hour as he would be involved in other parts of the fabrication process throughout his shift. The IRO noted that the worker, in his request for reconsideration, stated his issues as: (i.) the worker felt Dr. Quartey s report on [personal information], 2004, was not taken into consideration. (ii.) the worker felt the Board Medical Director should not have made a comment about his claim without having ever met with him. In denying the worker s request, the IRO took particular note of the following: The worker filled out a Form 6 on [personal information], He stated that his injury was caused by [personal information]. His initial diagnosis was left shoulder strain. I will note at this point, there were a number of diagnosis made throughout the fall of 2003 with the final diagnosis made in [personal information] 2004 by Dr. Quartey. He diagnosed Myofascial Pain Disorder, Left Ulnar Nerve Dysfunction, and Left Carpal Tunnel Syndrome. Although the worker reported first having symptoms on [personal information], 2003, he did not seek medical attention until [personal information], at which time he was assessed by Dr. Hutchings who ordered an EMG. It should be noted that the worker did not file a Worker s Report of Accident until [personal information], 2003 after his appointment with Dr. Kelly on [personal information], The EMG reports of [personal information], 2003, indicated Left Carpal Tunnel Syndrome. As a result of the diagnosis of carpal tunnel syndrome (a repetitive strain injury), the WCB Occupational Therapist completed an occupational assessment of the worker s duties on [personal information], The Occupational Therapist felt it was unusual that there was a sudden onset of symptoms on [personal information], 2003, as this was not consistent with a repetitive strain injury to the wrist where the symptoms would usually worsen over a period of time. After completing the work

13 12 site assessment, the Occupational Therapist concluded,... my opinion is that there seems to be enough variety in the job duties that he was doing that would limit the amount of exposure time and help to decrease the risk of repetitive strain injury to the wrist. It was also noted that most of the worker s duties are done with his right hand and his condition involves his left hand/arm. At this point the evidence before the IRO strongly indicated that the worker did not suffer from Carpal Tunnel Syndrome of the worker s left hand. The IRO next reviewed the facts surrounding the time that the injury was said to have occurred. He stated: Although the worker advised the Entitlement Officer on several occasions that there was no specific incident and that he had a sudden onset of symptoms on [personal information], 2003, on [personal information], 2004, he advised he had symptoms approximately one week before the [personal information], 2003, onset of symptoms. Despite this new information from the worker there is evidence on the worker s file that indicates the worker had previously indicated on several occasions there was a sudden onset of symptoms, i.e., the emergency room report of [personal information] 2003; Dr. Miller and Dr. Hutchings reports that indicate a sudden onset of symptoms on [personal information], 2003; Occupational Therapy report of [personal information], 2004; and a [personal information], 2004, conversation with the Entitlement Manager. It should be noted that because the worker s original diagnosis in [personal information] 2003 was cervical/shoulder strain and this seemed consistent with his associated job duties, he was provided four weeks of benefits. A second occupational Therapy Assessment was completed on [personal information], It focussed on the worker s left shoulder and left elbow. This assessment was done at an alternate location that was similar to the worker s place of employment. The worker advised the Occupational Therapist that he [personal information] approximately [personal information]. The Occupational Therapist concluded after completing this second assessment that, In looking at both the left shoulder and left elbow, particularly when [personal information], risk factors were seen with extreme postures, high forces as well, with time of high repetition. However, there are noted discrepancies as the clinical presentation of symptoms, as there seems to originally be a sudden onset on [personal information]. However, when speaking with the worker during this assessment, he indicated he was feeling discomfort

14 13 particularly in his left elbow at least a week or two prior to this date. There is also some question as to whether or not he presents as a repetitive strain type injury. Since being off work since [personal information], 2003, symptoms have not seemed to have settled at all. In order to confirm the worker s job duties, a WCB Entitlement Officer arranged to meet with the worker s employer. The Manage of Intake and Entitlement attended this meeting as well. The employer advised that the [personal information]. This information was validated with the owner of another [personal information] who confirmed the [personal information] and said that although [personal information]. Because of these discrepancies in job duties, the Occupational Therapist who completed the assessment in [personal information] 2004 advised after reconsidering the revised job duties, the risk factors for repetitiveness based on the [personal information] would not be present for a repetitive strain injury. My decision was also influenced by information on file that indicates the worker experienced no trauma or incident at work and that ulnar nerve dysfunction, which he was eventually diagnosed with, usually results from direct trauma. THE NOTICE AND GROUNDS OF APPEAL From the worker s March 29, 2005, letter to the Appeal Tribunal setting out reasoning for appeal and quoting certain medical literature, we have gleaned from this correspondence that the worker s complaints/grounds of appeal are as illustrated in the statement of facts as appears in paragraph 2 of the respondent s factum which state: 2. The appeal is based on the following claims: (a) (b) the Appellant delayed reporting his injuries to the Workers Compensation Board ( WCB ) because he did not have a diagnosis; the Appellant s work position should have been assessed as having the risk factors for the development of repetitive strain injuries present; ) regardless of discrepancies as to the number of [personal information] by the Appellant in a day, his work duties still required him to [personal information];

15 14 (d) (e) (f) there does not have to be a trauma incident for ulnar nerve dysfunction to occur; Dr. Kelly, Dr. Miller and physiotherapist Rose Arsenault assessed the Appellant s injuries as being work-related; Dr. Quartey s report should be given more weight than Dr. Carruthers report because he examined the Appellant. THE LEGISLATION Section 1. (1)(a) accident means... a chance event occasioned by a physical or natural cause, and includes... any: (A) (B) event arising out of, and in the course of, employment, or thing that is done and the doing of which arises out of, and in the course of, employment, and... and as a result of which a worker is injured. 1.(1)(n) Impairment means a medically measurable permanent anatomical loss or disfigurement and includes, amputation, loss of vision, loss of hearing, impaired nerve function, scarring causing disfigurement, joint ankylosis, or joint fusion from surgery. 6(2) Where a worker is injured in an accident, wage loss benefits are payable for his or her loss of earning capacity resulting from the accident in respect of any working day after the day of the accident. 6(4) Where the accident arose out of the employment, unless the contrary is shown, it shall be presumed that it occurred in the course of the employment, unless the contrary is shown, it shall be presumed that it arose out of the employment. 17. 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. 1994, c.67, s (1) The Board may provide any worker entitled to compensation under this Part with medical aid, and every such worker is entitled to such prosthetic appliances and to such dental appliances and apparatus as may be necessary as a result of any accident, and to have the same kept in repair or replaced in the discretion of the Board, and to such corrective lenses

16 15 as may be necessary as a result of the injury, which corrective lenses may, in the discretion of the Board, be renewed from time to time. 18.(2) The medical aid is at all times subject to the supervision and control of the Board and shall be paid for by the Board out of the Accident Fund, and such amount as the Board may consider necessary therefore shall be included in the assessment levied upon the employers. 32.(1) Subject to sections 56 and 56.1, the Board has exclusive jurisdiction to examine into, hear, and determine, all matters and questions arising under this Act and as to any matter or thing in respect of which any power, authority, or discretion, is conferred upon the Board; and the action or decision of the Board thereon is final and conclusive and is not open to question or review in any court, and no proceedings by or before the Board shall be restrained by injunction. 32.(2) Without limiting the generality of subsection (1) the decisions and findings of the Board upon all questions of law and fact are final and conclusive, and in particular, the following shall be deemed to be questions of fact: (a) (b) (c) (d) (e) (f) whether any injury or death in respect of which compensation is claimed was caused by an accident within the meaning of this Part; the question whether any injury has arisen out of or in the course of an employment within the scope of this Part; the existence and degree of disability by reason of any injury; the permanence of disability by reason of any injury; the existence and degree of an impairment and whether it is the result of an accident; the amount of loss of earning capacity by reason of any injury. 49.(1) The Board may determine that a worker has suffered an impairment as the result of an accident. 49.(2) Where the Board determines that a worker referred to in subsection (1) has suffered an impairment, (a) the Board shall pay to the worker a lump sum impairment award calculated in accordance with the regulations; 56.(6) Following reconsideration, a person who has a direct interest in the matter may, in writing, appeal the decision to the Appeal Tribunal. (17) The Appeal Tribunal shall be bound by and shall fully implement the policies of the Board and the Appeal Tribunal, its chairperson and members are prohibited from enacting or attempting to enact or implement policies with respect to anything within the scope of this Part.

17 16 (20) The Appeal Tribunal has exclusive jurisdiction to hear and determine all matters and questions arising under this Part in respect of (a) appeals under subsection (6) (b) any matter referred to it by the Board. (21) The Appeal Tribunal has all the powers conferred on the Board by Section 26. (23) In hearing a matter under subsection (20), the Appeal Tribunal shall give the Board and all other parties who have a direct interest in the matter an opportunity to make representations, but shall not allow the presentation of new or additional evidence and it shall, pursuant to subsection (22), immediately refer a matter to the Board where there is new or additional evidence. (24) On hearing an appeal, the Appeal Tribunal may confirm, vary or reverse the decision appealed from and shall, on the written request of a person with a direct interest in the matter, provide a written summary of its reasons within 90 days of the completion of the hearing. ANALYSIS Jurisdiction At first glance the Board s argument, that the Act, Section 32 and Board Policy dictates that the Board has the last word on whether any injury is caused by a work related accident, has some merit. But, upon closer analysis we are not convinced that the Board has the last word on this matter. Our reasons are as follows: The Section 32 privative clause gives the Board exclusive jurisdiction over certain matters, including findings of fact, of which whether any injury was caused by an accident, is one of the questions referred to in that section. This privative cause is subject to section 56, from which the Appeal Tribunal derives its authority to hear and determine all matters and questions arising on appeals under sub-section (6) of Sec. 56. However, on an appeal to the Appeal Tribunal, the Tribunal can, and in our opinion should review any matter that could be the subject of an appeal under sub-section 6: any person who has a direct interest in the matter may appeal to the Appeal Tribunal. We do note that Section 56(17) states: The Appeal Tribunal shall be bound and shall fully implement the policies of the Board and the Appeal Tribunal, its chairperson and members are prohibited from enacting or attempting to enact or implement policies with respect to anything within the scope of this

18 17 Part. In our opinion that, absent the commission of an error in law and/or error going to its jurisdiction, the Tribunal is not in any way restricted in its mandate in reviewing IRO decisions except for the requirements that it is bound by Board policy. The Standard of Review One of the first considerations to be undertaken is to examine the role of the Appeal Tribunal and the role of the final decision maker of the Workers Compensation Board of PEI, in this case the Internal Reconsideration Officer (IRO). As a prerequisite to this, one must first examine the overall authority of the Workers Compensation Act, especially its mandate, as well as the power, duties, obligations, and mandate of the IRO and the Appeal Tribunal, in their respective decision making functions in any given case. The Workers Compensation Board is charged with the responsibility of collecting revenues, and all things incidental thereto, including but not limited to establishing assessment rates to employers; and, investigating, processing and paying out claims to eligible workers who suffered work-related compensable injuries - provided that it does not commit an error appealable to this Tribunal or to the Supreme Court. The Province of PEI, having ultimate authority over the workers compensation scheme, has, through the Workers Compensation Act, provided for the adjudication of claims within the confines of the Act; and, thereafter to the Court of Appeal of this province in appropriate cases. Suffice to say, that within the confines of the Act, any interested party may apply to the IRO for a reconsideration of a Decision of the Case Entitlement Manager, (in the case of a claim for compensation) for a review of the Decision by the IRO, who makes a final Decision. The Act thereafter provides for an Appeal to an external agency, the Appeal Tribunal. The Province has delegated part of its mandate or responsibility to the Appeal Tribunal which is an external quasi-judicial administrative body consisting of a chair and two panel members, none of which on any given occasion have an interest in the hearing before the Appeal Tribunal except to the extent that one of the panel members represent all employers within the Province, one represents the employees and the chair is neutral. Some of the relevant sections of the Act are as follows: Section 17 states: Notwithstanding anything in this Act, on any application for compensation the decision shall be made in accordance with the real merits and justice of

19 18 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. 1994, c.67, s.17. Section 32.(1) states: Subject to sections 56 and 56.1, the Board has exclusive jurisdiction to examine into, hear, and determine, all matters and questions arising under this Act and as to any matter or thing in respect of which any power, authority, or discretion, is conferred upon the Board; and the action or decision of the Board thereon is final and conclusive and is not open to question or review in any court, and no proceedings by or before the Board shall be restrained by injunction. Section 32.(2): Without limiting the generality of subsection (1) the decisions and findings of the Board upon all questions of law and fact are final and conclusive, and in particular, the following shall be deemed to be questions of fact: (a) whether any injury or death in respect of which compensation is claimed was caused by an accident within the meaning of this Part; (b) the question whether any injury has arisen out of or in the course of an employment within the scope of this Part;.) the existence and degree of disability by reason of any injury; (d) the permanence of disability by reason of any injury; (e) the existence and degree of an impairment and whether it is the result of an accident; (f) the amount of loss of earning capacity by reason of any injury Section 56: (2) The decisions of the Board shall always be given upon the real merits and justice of the case, and it is not bound to follow strict legal precedent.

20 19 (6) Following reconsideration, a person who has a direct interest in the matter may, in writing, appeal the decision to the Appeal Tribunal. (17) The Appeal Tribunal shall be bound by and shall fully implement the policies of the Board and the Appeal Tribunal, its chairperson and members are prohibited from enacting or attempting to enact or implement policies with respect to anything within the scope of this Part. (20) The Appeal Tribunal has exclusive jurisdiction to hear and determine all matters and questions arising under this Part in respect of: (a) appeals under subsection (6): (21) The Appeal Tribunal has all the powers conferred on the Board by Section 26. (23) In hearing a matter under subsection (20), the Appeal Tribunal shall not allow the presentation of new or additional evidence and it shall, pursuant to subsection (22), immediately refer a matter to the Board where there is new or additional evidence. (24) On hearing an appeal, the Appeal Tribunal may confirm, vary or reverse the decision appealed from and shall, on the written request of a person with a direct interest in the matter, provide a written summary of its reasons within 90 days of the completion of the hearing. Section 56.2 (1) Subject to subsection (2), a person directly affected by a final decision of the Appeal Tribunal may appeal the decision to the Court of Appeal on a question of law or jurisdiction. The merits of each case, at the Board level, are to be determined by the Entitlement Officer, in the case of a workplace injury, and ultimately, by the IRO on a reconsideration of the claim. Pursuant to Board Policy, on a reconsideration, the hearing is often conducted by a paper file review. In this case there was a paper file review. Consequently, with no viva voce evidence involved, credibility is not an issue. The Act provides a right of appeal from a final Decision of the Appeal Tribunal on a question of law or jurisdiction, to the Supreme Court.

21 20 Notwithstanding this, in considering the appropriate standard of review from an IRO Decision to this Tribunal, we are of the opinion that the usual administrative law principles pertaining to the appropriate standard of review nevertheless apply in this and in all cases before this Tribunal. Accordingly, in determining the appropriate standard of review, we are guided by the ultimate Canadian Law on this matter as set out by the Supreme Court of Canada in Dr. Q v. College of Physicians and Surgeons of British Columbia (2003) D.L.R. (4 th ) 599. In that case the Supreme Court at Paragraph 21 held: 21. In every case where a statute delegates power to an administrative decision-maker, the reviewing judge must begin by determining the standard of review on the pragmatic and functional approach. In Pushpanathan, this Court unequivocally accepted the primacy of the pragmatic and functional approach to determining the standard of judicial review of administrative decisions. Bastarache J. affirmed that [t]he central inquiry in determining the standard of review exercisable by a court of law is the legislative intent of the statute creating the tribunal whose decision is being reviewed (para. 26). However, this approach also gives due regard to the consequences that flow from a grant of powers (Bibeault, at p. 1089) and, while safeguarding [t]he role of the superior courts in maintaining the rule of law (p. 1090), reinforces that this reviewing power should not be employed unnecessarily. In this way, the pragmatic and functional approach inquires into legislative intent, but does so against the backdrop of the courts constitutional duty to protect the rule of law the pragmatic and functional approach calls upon the court to weigh a series of factors in an effort to discern whether a particular issue before the administrative body should receive exacting review by a court, undergo significant searching or testing, or be left to the near exclusive determination of the decision-maker. These various postures of deference correspond, respectively, to the standards of correctness, reasonableness simpliciter, and patent unreasonableness For this reason, it is no longer sufficient to slot a particular issue into a pigeon hole of judicial review and, on this basis, demand correctness from the decision-maker. Nor is a reviewing court s interpretation of a privative clause or mechanism of review solely dispositive of a particular standard of review... The pragmatic and functional approach demands a more nuanced analysis based on consideration of a number of factors. This approach applies whenever a court reviews the decision of an administrative body.... (3) A Review of the Pragmatic and Functional Factors 26. In the pragmatic and functional approach, the standard of review is determined by

22 21 considering four contextual factors the presence or absence of a privative clause or statutory right of appeal; the expertise of the tribunal relative to that of the reviewing court on the issue in question; the purposes of the legislation and the provision in particular; and, the nature of the question law, fact, or mixed law and fact. The factors may overlap. (i.) The Presence or absence of a Privative Clause or Statutory Right of Appeal The Supreme Court held: 27. The first factor focuses generally on the statutory mechanism of review. A statute may afford a broad right of appeal to a superior court or provide for a certified question to be posed to the reviewing court, suggesting a more searching standard of review. A statute may be silent on the question of review; silence is neutral, and does not imply a high standard of scrutiny : Pushpanathan, supra, at para. 30. Finally, a statute may contain a privative clause, militating in favour of a more deferential posture. The stronger a privative clause, the more deference is generally due.(emphasis added) While the Act provides for a right of appeal in certain cases, i.e.- a question of law or jurisdiction (which is also a question of law) this coupled with the exclusive jurisdiction of the Board (Section 32(2) ) on all matters of fact and/or law, at first glance would support the proposition that significant deference should be afforded the decision maker ( the IRO in this case). Having said that, the clear wording of section 32 indicates that its exclusive jurisdiction on questions of fact and law is subject to the specific powers of the Appeal Tribunal to hear and determine all matters that come before it. In the present case, we are of the opinion that the wording in Section 32 and 56 must be given its ordinary and plain meaning. Accordingly, little or no deference is due to the Decision of the IRO in applying this factor. We noted that the privative clause purports to exclude the court from reviewing Decisions of the Board. As noted in Decision #37 of this Tribunal, the Act was amended prior to this case being initiated; and, two sections that severely restricted the power of the Appeal Tribunal to remedy wrongs that it felt were committed, were repealed. These were Section 56 (26) and 27. During the review of the Act at that time, there was no intention to change, amend, or delete Section 56 (20), the exclusive jurisdiction section (to hear and determine all matters) or the subject to provisions of section 32 (its powers being subject to those of the Appeal Tribunal as set out in Section 56.) In Driedger on the Construction of Statutes, 3 rd ed. (Toronto: Butterworths, 1994) at et

23 22 seq., 192, Ruth Sullivan, ed., the following is stated: Governing Principle. It is presumed that the provisions of legislation are meant to work together_ as parts of a functioning whole_ It is presumed that the body of legislation enacted by a legislature does not contain contradictions or inconsistencies, that each provision is capable of operating without coming into conflict with any other... Where the legislature perceives the possibility of conflict among provisions, it may provide its own solution by expressly indicating which provision is to prevail. Sections may begin with the words Subject to section _ or Notwithstanding section _ ; or the priority may be established in a separate declaratory provision. Accordingly, the absence of any legislative directive that the Section 32 privative clause is to apply to this Tribunal, coupled with the exclusive jurisdiction provisions of Section 56 empowering this Tribunal to hear and determine all matters that come before it including appeals, leads us to the conclusion that little or no deference is to be afforded the Decisions in cases where the Appeal Tribunal is exercising its statutory authority to determine the issue on the real merits and justice of the case - when the matter includes a claim for compensation. (Section 17). (ii.) The relative expertise of the Board and the Appeal Tribunal. As noted by the Supreme Court in the Dr. Q Case, expertise is a relative concept. A review of the legislation does not indicate that either the Board or this Tribunal is more expert than the courts in deciding the issue in this case. In fact, it could be stated that in a personal injury case, one would be hard pressed to conclude that the IRO would be more qualified to interpret written medical reports than the panel members would be, especially in the absence of any evidence that the IRO had any special medical training in that field. In addition, the issue - whether the worker suffered a compensable injury while engaged in some form of repetitive lifting, in this case is not one of those that would fall within the scope of some area of greater expertise than the IRO or the Appeal Tribunal members have. On the other hand, it is noted that the Board, on a daily basis, would likely become more familiar with some medical issues than the Chair or the regular panel members who represent employers and employees. We are not of the view, in any event, that the IRO is more adept in reviewing medical reports than the panel members from which the Appeal Tribunal is constituted.