WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20100182
OBJECTION BY: Worker
EMPLOYER: No longer in business
HEARING DATE: November 26, 2010
ATTENDEES: Worker, Worker Representative
ISSUE
The worker’s representative, on behalf of the worker, has appealed the case manager’s decision dated February 1, 2010. The case manager has concluded that the worker is not entitled to an additional full loss of earnings benefits under Claim XXXXX134.
HOW THE ISSUE ARISES
Claim XXXXX134:
A claim has been established with an accident date of November 19, 1992 for this underground miner. The history is documented as the worker pulling a pump approximately 50 feet and injured his right elbow and right leg. He was diagnosed with epicondylitis on the right side and a calf muscle tear.
Claim XXXXX251:
A claim has been established with an accident date of April 26, 1993 for this underground miner who experienced a gradual onset of white hand phenomenon.
The diagnosis on record is that of bilateral carpal tunnel syndrome. The clinical documentation did not reveal any evidence of vasospastic disorder.
The record indicates that the worker continued work as a driller to approximately June 1996.
Claim XXXXX741:
The worker claimed a gradual onset of bilateral pain in the elbows. An accident date has been assigned of August 27, 1996. The worker has been provided non-economic loss (NEL) awards in the above claims to recognize the permanent impairments stemming from the occupational injuries.
Under Claim XXXXX134, a 9 per cent award has been provided for the right elbow.
Under Claim XXXXX741, a 10 per cent award has been provided for the left elbow and under Claim 251, a 13 per cent NEL award has been provided for the bilateral carpal tunnel syndrome.
It has been concluded that the worker is not capable of returning to his pre‑accident employment and the worker had been provided with a 100 per cent future economic loss (FEL) award from December 1, 2001 through to October 1, 2025 payable out of claim 203.
The worker’s representative has claimed additional entitlement, in particular either partial or full loss of earnings under Claim XXXXX134.
The worker’s representative submits that the Operational Policy does not preclude the payment of multiple benefits under multiple claims.
The case manager has concluded that the worker is not entitled to additional benefits in light of the full award being provided under Claim XXXXX251.
The worker’s representative, on behalf of the worker, has appealed this decision and this issue is now before the appeals resolution officer for further consideration.
AUTHORITY
The appeals resolution officer will consider the worker’s representative’s appeal in light of Operational Policy Documents;
18-03-02; Payment and Reviewing LOE Benefits (Prior to Final Review),
18-04-07; Blending FEL Benefits with Other Benefits
EXHIBITS
The worker’s representative provided a copy of the Workplace Safety and Insurance Appeals Tribunal (WSIAT) decision 1358/08. The above was accepted for the record by the appeals resolution officer.
ASSESSMENT OF THE EVIDENCE
The worker provided oral testimony under oath. The worker’s representative made oral submissions on behalf of the worker.
The worker confirmed his date of birth is September 22, 1960. The worker states that his educational background is illiterate. He confirmed he resided in town for approximately 35 years and has an employment history of underground mining. The worker states he is certified as a shotcrete nozzle man.
He states his last day of work was in approximately the year 2000. He states he continued to work with the accident employer, until the mine closed down. He then relocated to another town and secured employment on contract with another mining company.
He states he was laid off as a result of his ongoing difficulties.
He states he worked for approximately three months underground and then returned to surface but was not able to continue with the machine operation.
He states he had so much pain in his arms he could not breathe. He also confirms that he would be normally right hand dominant but as a result of the right hand onset of difficulties, he used his left hand more and more.
He states that he returned to employment with another employer and again was laid off and did work as a tire repair individual for approximately 1.5 months. He said since his last day worked, he has not sought any additional employment because the pension being off of him.
He states his present condition depends on the weather and what he does.
He does confirm receiving Employment Insurance benefits following the layoffs from his employer but is unable to confirm if they were sick benefits or normal regular benefits.
He states that he does have tenant who will do the chores such as grass and snow and he is able to occasionally help with cleaning about the house. He states he regularly ingests medication to combat the discomfort that he is in, so uses analgesic rub and body massage on a regular basis.
He states he tries to remain as active as possible at the local fitness centre by using the hot tub and facilities.
He states he will see his family physician once every two weeks for ongoing medication. He states he is only able to get approximately two to three hours of non-restorative sleep on a regular basis.
He states he is able to drive short distances, approximately 80 kilometres. He is not in any active treatment at the present time.
The worker’s representative submits that the Operational Policy Document 18-04-07 allows for the payment of loss of earnings benefits irrespective of any other payment being made in any other claim.
He states the worker’s claims should be held stand alone and a determination made if there is, in fact, a wage loss resulting from the injury or occupational disability.
He notes the worker was an underground miner all his life and is illiterate and has experienced permanent impairments stemming from his occupation and suggests that the worker is in receipt of a NEL award for various impairments and therefore should be entitled to benefits flowing if it can be found the worker experienced a wage loss as a result of the compensable impairment.
He cites Memo 53 in Claim XXXXX251 noting the WSIB’s medical advisor indicated that the worker’s conditions of carpal tunnel syndrome and bilateral epicondylitis were equally disabling to the worker. He suggests it was a wage loss due to the onset of epicondylitis and therefore the worker should be entitled to either full or partial loss of earnings benefits in recognition of the disability.
He suggests that he is not requesting 300 per cent level benefits as understood by the case manager but submits that the law requires the WSIB to rule on the worker’s entitlement to benefits if it can be demonstrated the wage loss did occur.
He submits regardless of the full payment being made under Claim XXXXX251, the worker is entitled to loss of earnings benefits in recognition of the wage loss he experiences as a result of the compensable injury.
He also submits that the Operational Policy notes that the payment of loss of earnings must be made independently or it can be paid concurrently with any other form of benefit.
He also suggests that there are instances where multiple Section 147(4) supplementary benefits are being processed to a worker under multiple claims.
The worker’s representative has suggested that the worker has experienced a wage loss as a result of the various compensable impairments.
The substantive issue must be deliberated upon with two fundamental concepts being observed. Firstly, a Non Economic Loss (NEL) award is provided to compensate for a physical injury arising from an occupational injury. In short, the physical damage resulting from the accident, as defined by the Act.
Secondly, economic loss, or reduction of wages or inability to earn by virtue of being unemployable, is defined as the disability which results from the physical impairment. FEL or LOE benefits are paid to compensate for monetary loss.
These two concepts form the basis of a dual award system where impairment and disability are treated separately, and quite rightly processed for different reasons as they function to compensate an individual for different outcomes culminating from a workplace accident.
Of particular note is the onset of the difficulties occurring in the right elbow which began on November 19, 1992. The evidence indicates that the worker did return to his regular employment and was authorized to do so on January 4, 1993.
Notwithstanding the permanent impairment, the worker did continue in his work as an underground miner as evidenced in Claim XXXXX251. The evidence on record indicates that the worker was classified as a miner/driller at the time of the onset of the bilateral white hand condition. Once again it has been determined that the worker has experienced bilateral carpal tunnel syndrome as a result of his workplace duties with an accident date of April 26, 1993.
Clearly the worker was able to continue in his regular form of employment through to April 26, 1993 and therefore did not experience any wage loss which could be considered to be compensable.
Under Claim XXXXX134, the evidence supports that the worker did return to his pre‑accident employment and did not experience a wage loss and therefore would not be entitled to loss of earnings benefits stemming from this particular accident.
The third claim on record with an accident date of August 27, 1996 does document an onset of bilateral elbow conditions and a permanent impairment for the left elbow has been awarded under this particular claim.
The worker had ceased his employment with the accident employer by this time as the mine had shut down.
The worker testified to returning to employment with another mining firm and was subsequently laid off and then recalled.
It would appear that the worker did continue in his regular occupation following the closure of the mine.
The worker has eventually developed a permanent condition which has precluded him from returning to his regular employment and has been appropriately compensated with full benefits through to October 1, 2025 due to bilateral carpal tunnel syndrome. With the determination of the worker’s inability to return to his regular employment, which would be subsequent to the recognition of the onset of the elbow difficulties, a decision must be made with respect to benefits.
Notwithstanding the suggestions provided by the worker’s representative, the evidence on record does not support that the worker did, in fact, experience a wage loss as a result of the initial right elbow condition and therefore the payment of any additional loss of earnings benefits is therefore precluded.
Although the worker presents with a myriad of symptoms in the bilateral upper extremities, the case manager has concluded that the bilateral elbow condition has indeed been the “straw to break the camel’s back” and precluded the worker from returning to his regular duties as a miner.
It would be irresponsible to provide benefits in excess of 100 per cent both to the employers of the province through the accident fund. One must be cognizant of the intent of the legislation and operational policy. It is a remedial in nature, which should not be interpreted to be an award system, as would be seem in civil proceedings.
It is based on measureable economic and physical loss and not award based on damages, using pre-accident earnings and physical impairment measures respectively.
The representative has suggested that multiple 147(4) awards can be paid, this is true as it can be established that successive injuries may have produced a wage loss, based on confirmed reduced pre-accident employment earnings for each claim. There can be any number of supplements paid using the section 147(4) (a) clause, but only one 147(4) (b) clause, which is provided when it is deemed unlikely that a worker will be able to return to gainful employment.
The Workplace Safety and Insurance Act is remedial legislation in nature and the worker has been provided with wage replacement benefits to the full level as a result of a compensable impairment.
Although the appeals resolution officer understands the worker’s representative’s suggestion that the claims be adjudicated on a stand-alone basis and this is required by law as every claim is adjudicated based on its own merits.
There is insufficient evidence available to suggest that the worker experienced a wage loss as a result of the initial onset of the compensable impairment outlined in Claim XXXXX134. Clearly the evidence does support that the worker was able to continue in his regular form of employment and does not experience any wage loss as a result of this particular injury.
The worker has experienced an inability to return to gainful employment and is being appropriately compensated through the payment of 100 per cent level benefits through to the year 2025 under Claim XXXXX251.
For similar reasons, the establishment of Claim XXXXX741 was performed retroactively to account for the worker’s development of symptoms on a permanent impairment over time. Clearly this did not preclude the worker in returning to employment with another mining firm and the appeals resolution officer is not satisfied that any additional benefits should be garnered out of Claim XXXXX741.
The fact that a new claim is established to compensate the worker for an additional compensable impairment, it does not automatically produce LOE benefits. The establishment of the claim would produce benefits to recognise the development of a workplace physical impairment, i.e. a NEL award.
While understanding the general contention offered by the representative there is little evidence available to suggest that the worker experienced a wage loss resulting from the gradual onset of these conditions. It must be keep in mind that any payment of LOE, FEL benefit is preformed when there is an established economic loss that can be linked to the compensable permanent impairment.
CONCLUSION
Having reviewed the evidence on record, heard the testimony provided by the worker and considered the submissions made by the representative, it is the judgement of the appeals resolution officer that;
There is insufficient evidence to suggest that the worker experienced a wage loss that should be compensated in the form of partial or full loss of earnings benefits under Claim XXXXX134.
The evidence indicates that the worker was capable of maintaining his regular employment and did not experience an economic loss as a result of the onset of right elbow condition.
Equally, there is insufficient evidence available that the worker experienced any wage loss directly attributable to the onset of bilateral elbow condition under Claim XXXXX741 with an accident date of April 27, 1996.
The worker has been appropriately provided full FEL benefits through to October 1, 2025 under Claim XXXXX251 and the appeals resolution officer confirms the payment and denies the worker’s representative’s request for additional payment of full or partial benefits under Claim XXXXX134 and Claim XXXXX741.
The worker’s representative’s appeal is denied.
Dated: December 9, 2010
N. J. Shruiff
Appeals Resolution Officer
Appeals Branch