WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20090057
OBJECTION BY: Employer
WORKER: Not Participating
HEARING DATE: Teleconference Hearing-August 28, 2009
ATTENDEES: Employer and Employer Representative
ISSUE
The employer objects to the allowance of Loss of Earnings (LOE) benefits from October 5, 2006 to February 6, 2007.
HOW THE ISSUE ARISES
On August 24, 2006, the worker got up from a seated position. She did not realize a cable was wrapped around her ankle and she fell onto her right side injuring her right knee and hip. She was diagnosed with a right knee sprain/hip bursitis. Entitlement was granted and benefits were paid in accordance with the medical evidence received. She returned to her pre-accident work on an accommodated basis and continued to do so until October 5, 2006. At this time, she laid off and benefits were paid. In October and November, 2006, there was some discussion with respect to returning to work and availability of suitable work with the employer. By December 2006 however, the Claims Adjudicator determined that although the job offered by the accident employer (Officer, Cost Accounting) was suitable, the worker was unable to participate in return to work efforts due to psychological problems, which she had developed. Treatment for her psychological condition was approved in an effort to expedite a return to work. Benefits therefore continued and the employer was advised in a letter of December 18, 2006. The worker began a treatment program in December, 2006 and by January, 2007 felt things were going well and she was in a position to accept the job offer after her program ended. Mediation was therefore arranged for February 5, 2007.
On February 2, 2007, the Claims Adjudicator spoke with the worker to discuss the return to work. The worker wanted to attend anxiety classes. At this time however, it was determined that the worker’s psychological problems were non-compensable. From a physical point of view, she was deemed capable of resuming work within her physical restrictions. The mediation took place. Although the worker did not return to work at the time, her benefits were closed as of February 6, 2007. She did eventually return to work in March, 2007 and worked until
May, 2007 but has not returned to work since. She did request ongoing entitlement to LOE benefits and entitlement for her psychological problems but both were denied in a letter of March 26, 2007. These issues are not currently being pursued by the worker.
The employer however objected to the payment of benefits from October 5, 2006 to
February 6, 2007 and the worker’s file was referred to the Appeals Branch for consideration.
AUTHORITY
18-03-02 – Payment of Loss of Earnings (LOE) Benefits
19-04-06 – Suitable Employment
17-03-04 – Health Care for Non-work-related Conditions
12-01-04 – Schedules 1 & 2
ASSESSMENT OF THE EVIDENCE
The worker and her representative chose not to participate in the teleconference hearing. As such, the employer’s representative simply made arguments in support of the employer’s appeal, which were made in conjunction with a package he submitted on August 12, 2009. He argued that the adjudicator has correctly recognized that there is a secondary psychiatric issue over and above the compensable knee injury. However, he goes on to indicate the condition is a sequela and they take exception to that. He noted Memo #35 more clearly indicates what the adjudicator was considering when making a determination on psychiatric entitlement; specifically the worker’s post-accident dealings with management. He noted his letter of November 27, 2006 outlined many performance issues but none had to do with the knee. The first issue is therefore that this type of compensation is not contemplated by legislation. He noted this worker is an employee of a federal employer and as such, is governed by the Government Employees Compensation Act (GECA). On this basis, there are certain issues that need to be considered. He referred to Section 4(1) of the document. He noted that under GECA, compensation must be paid for an injury that arises out of and in the course of employment. Something that arises secondary to the injury is therefore not compensable and does not incorporate the provincial schemes of compensation. If it is not a compensable condition or incident, GECA on its face does not allow for entitlement.
He noted there is case precedent for this and referenced in the decision provided by him in his submission of August 12, 2009 (Canada RCMP v. Rees 2005). He referenced paragraphs 28, 31 and 33 to support his argument and noted in particular that if the answer posed in paragraph 33 of the decision is no, and the worker’s psychological condition did not arise out of and in the course of the employment, then there is no right to apply the provincial policy. In this vein, he argued that this case does not qualify for entitlement as the psychological condition was found to be non-compensable. As an aside, he did note that the ‘Rees’ decision was appealed, but the right to appeal was refused. On the first issue therefore, once the adjudicator concluded there was no compensability for the psychiatric condition, that was the end of the enquiry and he could not go further and make any award to the worker as it was not compensable under GECA.
The second alternate argument is assuming that the adjudicator could use Board policy, he misapplied and misconstrued Board policy. He referenced policy 15-04-02 that explains the criteria for entitlement for psychotraumatic disability and argued that the worker did not meet the criteria required for acceptance. He noted the worker’s psychological problems have no link to the knee whatsoever. He argued the worker would have suffered the same reaction regardless of the leg injury and there is no connection to the injury itself. As such, if we turn to what the adjudicator concluded in the allowance letter, while the worker’s psychological problems came after the accident, there is no evidence to allow for the conclusion that they were a sequela of the accident. The condition arises out of the worker being challenged at work because of performance issues. After she returned to work, she was able to cope quite well but then a major error occurred on October 6th and this is what triggered the worker’s layoff at that time. He noted the adjudicator made an error in accepting psychiatric entitlement as none of the criteria are met on the facts of this case.
Policy 15-05-01 was also referenced and he noted there has to be again a direct causal link to the injury. On the first point that indicates workers sustaining secondary conditions that are causally linked to the work-related injury will derive benefits for the further aggravation of the work-related impairment, he argued that there is no chance of a further aggravation, as it would have to be limited to the knee. The first criterion of the policy is therefore not met. On the second point, he argued that while there was a new injury, the psychological condition is not compensable. Causality is not present and as such, he argued that this policy could not be triggered.
He also referenced policy 17-03-04 and in particular the section that deals with Post-January 2, 1990 accidents. He notes that the first bullet allows for benefits to be paid if the worker suffers from a non-work-related condition that delays, impedes, or prevents recovery from the work-related condition and it is this condition that was applied by the adjudicator to accept entitlement and to that extent, he may not be far wrong. The problem with that analysis is that the worker was at work and while physiotherapy was helping her, the psychological condition did not affect her ability to return to work and as such, he feels this aspect of the policy is not met. With respect to the second bullet, there was nothing to indicate the non work-related condition would increase or would likely increase the impairment. The only treatment that was being lost at the time was physiotherapy and this would not have increased the impairment. Furthermore, there is a conjunctive ‘and’ in the policy, meaning that all three bullets must be satisfied. The final bullet stipulates that if there is cost savings to the fund over the long term, treatment can be considered. However, Canada Post is not an accident fund employer and as such, there are zero cost savings as no monies are coming out of the Fund whatsoever. In this regard, he has provided policy 12-01-14 which deals with both Schedule I and II employers and noted the employer is not a Schedule II employer but is treated as if they were a Schedule II employer. As such, he argues that criteria 1 and 2 are not met but clearly, the third is not met. Since all three criteria are necessary to accept entitlement under this policy, the policy was incorrectly applied.
Turning back to GECA, they do not allow compensation to be accepted in cases such as this where the criteria under policy 17-03-04 are not met; it simply cannot occur. As such, he would ask that the decision be reversed and LOE benefits be denied from October 2006 to
February, 2007.
I have considered all of the evidence pertaining to this case, including the arguments made by the employer’s representative. In doing so, I would have to confirm the allowance of benefits from October 5, 2006 to December 12, 2006 inclusive. Benefits beyond this to February 6, 2007 would not be in order. The reasons are as follows:
It has been argued that GECA applies to this worker and since this worker is a Federal employee, this is correct. However, this does not mean that the provincial legislation, in particular, the Workplace Safety and Insurance Act does not apply to the worker as it would to other employees. Section 4(2) of GECA stipulates that the employee or the dependents referred to in subsection (1) are, notwithstanding the nature or class of the employment, entitled to receive compensation at the same rate and under the same conditions as are provided under the law of the province where the employee is usually employed …who are caused personal injuries in that province by accidents arising out of and in the course of their employment… Policy 12-01-04 also notes that federal government workers who are covered under GECA are entitled to the same benefits as any worker protected by the Workplace Safety and Insurance Act of Ontario (WSIA). Their claims are administered as if the federal government were a Schedule 2 employer. The provincial statue and policies would therefore apply to this worker as they would to a regular Schedule 2 employee. Statute and policy therefore guarantee that a federal government employee would have the same rights and entitlements as any other worker covered by the WSIA;
It has also been argued that when the worker laid off work on October 5, 2006, benefits should not have been paid as the worker from that point on was off for a non-compensable psychological condition. I do not however agree with this contention. At the time of the initial injury in August, 2006, the worker sustained injuries to her right knee and hip. Entitlement for these injuries was accepted. The claim file information notes that on September 27, 2006 right knee pain was reported. The worker had difficulty walking and needed a cane. The compensable injury therefore was indeed an ongoing issue for this worker. On October 2, 2006, the Physiotherapy Assessment Report also indicated that the worker was in need of physiotherapy for the right knee condition as a result of ongoing problems. A meniscal tear was suspected at this time. By the time the worker saw the doctor on October 5, 2006, she was authorized off work completely due to a work-related injury for four weeks. The form 26 from this date notes the worker was unable to work due to the pain severity and the limited mobility. She was authorized off work completely and was referred for physiotherapy treatment. Based on the medical information on file, I am therefore satisfied that as of October 5, 2006, the worker was unable to continue working as a result of her ongoing physical issues. Loss of Earnings benefits were therefore appropriately implemented on this date;
By the end of October, 2006, the worker was at a point, physically, where she would have once again been able to return to accommodated work. There was however no accommodated job to return to. The worker attended a return to work meeting on October 27, 2006 and a return to work had been arranged for October 30, 2006. However, after the worker got home from the meeting, she received a call from the employer advising her not to come in as they were reconsidering their course of action. On November 2, 2006, the employer’s representative contacted the WSIB offices to indicate the job offer had been pulled and the employer was considering a different position. The worker contacted the Adjudicator on November 7, 2006 to indicate she had received a letter from the employer offering a different position. She was advised that an ergonomic assessment and Mediation services would be requested. The employer representative however contacted the adjudicator on November 15, 2006 to indicate the employer did not want to participate in Mediation as they felt the job offer of Administrative Assistant was suitable (this was a temporary position). On November 21, 2006, the employer again indicated they would decline mediation and would offer the worker an alternate job. On November 29, 2006, the employer representative advised the adjudicator that the temporary position of administrative assistant was no longer available and another job offer would be made. On December 4, 2006, it was noted the employer was looking for another job but in the meantime, they would offer the worker her pre-accident job as of December 5, 2006. A WSIB manager then spoke with the employer representative on December 4, 2006 and advised that mediation would be arranged but that the worker would remain off work until the job was confirmed and mediation took place. The MRI results at this time were still pending. A WSIB manager actually spoke with the employer’s representative on December 6, 2006 and it was at this time that a bona fide permanent position was offered to this worker;
During this time, the worker was awaiting MRI investigation to rule out any significant pathology in the right knee and continued with physiotherapy treatment. As the worker remained partially impaired from a physical point of view and there was really no bona fide job offer until December 6, 2006, benefits were correctly paid just based on the worker’s physical, compensable injuries;
The MRI for the right knee took place on December 4, 2006 and the results were negative. By this date, the worker’s physical problems were not a significant barrier in returning her to the work offered by the accident employer. The worker was contacted on December 11, 2006 and she indicated she had concerns over not having the proper skills to perform the job, but was very willing to participate in the mediation process. Given the employer’s actions in the past with respect to offering and then withdrawing job offers, I agree with the action taken that benefits were to continue until there was a mediation agreement;
By this time, the worker had also developed psychological problems. They did not however significantly interfere with return to work efforts until December 13, 2006, when it was decided that the worker would not be able to participate in early and safe return to work measures because of the psychological condition. The letter of December 18, 2006 is somewhat contradictory in that it indicates that the psychiatric condition is not a direct result of the work injury, but then indicated a causal link existed. Entitlement for the psychiatric condition was not actually accepted, as was indicated by the adjudicator in a memo of February 2, 2007. The issue of psychiatric entitlement is not before me and I will not comment upon it. I am therefore making this decision on the basis that the operating area decided to deny psychiatric entitlement;
Policy 17-03-04 stipulates that when there is a secondary non-work-related condition that develops subsequent to a compensable, work-related injury, treatment for the secondary condition can be accepted and benefits can be paid provided that:
The worker suffers from a non-work-related condition that delays, impedes or prevents recovery from the work-related condition;
The non-work-related condition will increase, or is likely to increase, the degree of the worker’s permanent impairment; and
A significant cost savings to the insurance fund is expected as a result of the treatment;
The mediation process was put off as per memo #40 dated December 13, 2006 as it was concluded the worker was unable to participate in early and safe return to work efforts because of the psychological condition and the treatment she was receiving for same. The question then becomes, “Were benefits appropriately considered under policy 17-03-04?”;
When considering the policy, it is noted that the worker did suffer from a non-work-related condition following the initial compensable accident. However, I am not satisfied that the psychiatric condition was responsible for either delaying, impeding or preventing recovery from the work-related condition. Despite the psychiatric condition, the worker was able to continue with physiotherapy treatment and investigations for the right knee condition. The right knee did improve and by January, 2007, there was a full range of motion reported. I am therefore not satisfied that treatment for the non-work-related condition was necessary to prevent a delay in the worker’s recovery from the compensable condition. By the same token, I am also not satisfied that treatment for the non-work-related condition was necessary to diminish the degree of the worker’s compensable impairment. Without even addressing the issue of the accident Fund therefore, I find that benefits were not appropriately paid under policy 17-03-04 as at least two of the three criteria were not met;
As of December 13, 2006, the worker was not able to participate in early and safe return to work measures and she remained off work because of what was determined to be a non-compensable, psychological condition. The worker was hospitalized at the end of December, 2006 as a result of this condition. She was then involved in a psychiatric treatment program that ran until February 1, 2007. In the meantime, the employer had offered the worker a job that was deemed to be appropriate. LOE benefits should therefore have been terminated as of December 13, 2006.
CONCLUSION
Based on the evidence outlined in this decision, while I am confirming the payment of LOE benefits from October 5, 2006 up to and including December 12, 2006, I am rescinding entitlement to LOE benefits from December 13, 2006 to February 6, 2007. As this decision has been made as a result of an appeal however, any overpayment created as a result is not recoverable.
The employer’s objection is granted in part.
DATED September 9, 2009
S. Marangoni
Appeals Resolution Officer
Appeals Branch