WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS MANAGER RECONSIDERATION DECISION
decision number:
20150076
DECISION DATE:
June 26, 2015
OBJECTING PARTY:
Worker
REPRESENTED by:
Worker Representative
RESPONDENT:
Employer (not participating)
HEARING:
Reconsideration Hearing in Writing
HEARD by:
F. Broad, Appeals Manager
ISSUE
The Director, Service Delivery requests reconsideration of an Appeals Resolution Officer (ARO) decision dated January 14, 2014. The Director originally requested reconsideration from the ARO on the basis that her decision ordered payment of partial Loss of Earnings (LOE) benefits for a period for which there is no legislative authority to pay. Following receipt of the ARO’s response denying the reconsideration request, the Director requested a Manager reconsideration of the ARO decision. She again noted a failure on the part of the ARO to properly apply the Act or approved WSIB policy as the basis for her request.
BACKGROUND
The worker through her representative brought forward an operating area decision dated January 15, 2013 that denied entitlement for LOE benefits and a Work Transition (WT) assessment following a permanent layoff that occurred in 2004.
In her decision dated January 14, 2014 the ARO granted the worker’s objection in part. She concluded:
- The worker is not entitled to a Work Transition Assessment, as the results of the one done on January 9, 2013 remains appropriate.
- The worker is entitled to partial Loss of Earnings based on the suitable occupation of school crossing guard from September 17, 2007 and continuing, subject to the usual periodic LOE benefits review.
As noted earlier, the Service Delivery Director originally made a request to the ARO for reconsideration of her decision on the basis that she ordered payment of LOE benefits for a period for which there is no legislative authority to pay. She clarified that, in reaching her conclusion, the ARO had failed to properly apply the Act or approved WSIB policy, in particular, policy 18-03-06, Final LOE Benefit Review.
The ARO’s response to the reconsideration request is dated December 4, 2014. The ARO did not find grounds for reconsideration. While she acknowledged policy 18-03-06, she made reference to a different policy, Merits and Justice (policy 11-01-03) as the basis on which she concluded that the worker was entitled to LOE benefits for the period outlined in her decision.
In response to the ARO’s memorandum, the Service Delivery Director requested a Manager reconsideration of the ARO decision. She again noted a failure on the part of the ARO to properly apply the Act or approved WSIB policy as the basis for her request.
Following my review of the case, I agreed that the ARO appeared to have acted outside of the Act and approved WSIB policy in arriving at her conclusion with respect to the payment of LOE benefits. This was sufficient, in my view, to meet the threshold test for reconsideration of the ARO decision. As the interaction between the Director and the ARO introduced the Final LOE Benefit Review and Merits and Justice Policies into the discussion, I requested a response from both parties to these issues prior to rendering my reconsideration decision. A response was received from the worker representative; I did not receive a response from the employer representative.
Based on the reconsideration request received in this case and on reviewing the submission of the worker representative, this reconsideration decision is limited to the ARO’s conclusion the worker is entitled to partial LOE based on the suitable occupation (SO) of crossing guard from September 17, 2007 and continuing. More specifically, I agree with the ARO that the worker has entitlement to partial LOE benefits in this claim; I am reconsidering the date from which these benefits should be paid to her.
AUTHORITY
Section 44 of the Workplace Safety and Insurance Act (the Act)
The reconsideration will also be reviewed in light of Operational Policies:
18-03-06 Final LOE Benefit Review
11-01-03 Merits and Justice
ANALYSIS
Previous ARO decisions have detailed the entitlement in this claim; however, the following is noted:
- February 18,1999 accident date
- Entitlement is for right carpal tunnel syndrome (CTS)
- LOE paid from March 29, 2000 to April 20, 2000 following CTS surgery
- Worker performed modified duties following surgery until general layoff in
December 2004
72-month final LOE review date was February 18, 2005
3% Non-Economic Loss (NEL) benefit processed March 20, 2012 following a different ARO decision dated December 14, 2011 granting a NEL assessment
January 15, 2013 Case Manager (CM) decision denied entitlement for LOE benefits and WT services from the worker’s layoff in December 2004. This decision is the subject of the ARO decision dated January 14, 2014 currently being reconsidered.
The worker has several additional claims that are relevant to the issue under review in this claim. A brief summary of these claims follows.
Claim A
This claim was allowed for a compound fracture of the worker’s 3rd right finger following an accident on March 5, 1998. Entitlement was for health care benefits; a 7% NEL benefit was granted in 2000. An ARO decision dated September 24, 2007 denied entitlement to LMR services following the worker’s layoff in 2004.
Claim B
A WSIAT decision dated October 19, 2012 allowed entitlement for left hand/wrist tenosynovitis and tendonitis noting that modified duties performed following the worker’s CTS surgery were a factor in the development of the left hand/wrist problems. WSIAT set the accident date as September 18, 2002 and allowed a recurrence in May 2004 although the worker lost no time from work for this condition and continued to perform her job duties until her general layoff in December 2004.
Following the WSIAT decision, the CM determined that a combination of restrictions from the impairments in her claims as well as other non-compensable impairments did not render the worker totally impaired. The worker was entitled to partial LOE based on a direct entry SO of crossing guard, a job she could have performed when permanently laid off. While the CM determined the worker recovered from her left hand/wrist problems by March 2006, an ARO decision dated May 30, 2013 extended entitlement to partial LOE from December 11, 2004 to September 17, 2007 with no continuing entitlement or permanent impairment. In the ARO’s view, the progressively deteriorating symptoms the worker was experiencing were not attributable to the repetitive work she performed.
The Worker Representative’s Submission
The worker representative letter dated May 14, 2015 submits that the ARO’s decision was correct and supported by portions of Section 44 of the Act not referenced in my reconsideration threshold decision as well as by other Board policies and administrative guidelines. In support of his position, he argued the following:
- The decision not to provide an LMR assessment or assistance to the worker at the time of her termination from employment disregarded polices applicable to the worker’s situation that were not acted upon in an appropriate fashion.
- A narrow interpretation of section 44(2)(1) of the Act is not consistent with other subsections of section 44. Subsections 2.8 and 2.12 allow for a retroactive payment of LOE benefits in this case as directed by the ARO.
- With respect to Merits and Justice Policy 11-01-03, the Act is to be consistently and equally applied in all cases. The WSIAT decision rendered in claim B confirmed that the job performed by the worker at the time of her termination was unsuitable. This allowed for LOE benefits to be paid in the claim under reconsideration after the 72 month period had expired and retroactively to the time of layoff.
With regard to the argument that the WSIB did not provide an LMR assessment to the worker at the time of her termination from employment, I do not find this to be the case. As noted earlier, this issue was addressed under one of the worker’s prior claims, claim A. The worker requested LMR services under this claim and the issue was considered at the operating level and services denied. An ARO decision dated September 24, 2007 confirmed the worker had no entitlement to LMR services under this claim.
Following receipt of the WSIAT decision under claim B, a Work Transition Specialist completed a Gap Assessment to identify a Suitable Occupation (SO) for the worker. The SO of crossing guard was used to pay partial LOE benefits to the worker from the date of her termination in December 2004. The duration of these benefits was the subject of an ARO decision as noted above. Benefits were extended to September 17, 2007 when it was determined that the worker had recovered from her left hand/wrist problems with the progressively deteriorating symptoms she was experiencing not attributable to the repetitive work she performed.
The worker representative has argued that a broader reading of section 44 of the Act allows for the payment of LOE benefits back to September 17, 2007. He cites subsections 2.8 and 2.12 in this regard.
Although the representative does not reference WSIB Policy 18-03-06, Final LOE Benefit Review, it is relevant to the discussion around section 44 of the Act. The purpose of policy
18-03-06 is to outline when and how the final LOE benefit review is conducted. The policy also outlines when and how exceptional cases that fall outside of the 72-month window may be reviewed. While a number of sections of the Act are referenced in this policy, section 44 is particularly relevant to the issue at hand.
Policy 18-03-06 and section 44(2) of the Act note that, “the Board shall not review the (loss of earnings) payments more than 72 months after the date of the worker’s injury.” The subsection that follows (2.1) then notes seven exceptions under which the WSIB may review LOE payments more than 72 months after the date of injury. One of the exceptions, detailed in subsection 2.1(d), notes that LOE payments may be reviewed if, “after the 72-month period expires, the worker suffers a significant deterioration in his or her condition that results in a determination of a permanent impairment under section 47.” A further subsection of section 44 clarifies that the WSIB may review LOE benefits within 24 months after the date on which the WSIB determines the degree of permanent impairment under section 47.
Relevant to this discussion is an earlier ARO decision in this claim dated December 14, 2011 that granted the worker entitlement to a NEL assessment for quantification of her permanent impairment for ongoing right wrist problems resulting from her carpal tunnel syndrome. Following the ARO decision, the worker underwent a NEL assessment and was granted a 3% NEL award for right CTS on March 20, 2012.
Based on Section 44(2.1)(d), the decision of the ARO to grant entitlement for a NEL assessment opened the door for the loss of earnings benefits to be reviewed in this claim. However, this same section of the Act limits the date from which those benefits can be paid to December 14, 2011, the date of the ARO decision granting entitlement for a NEL assessment with the resulting determination of an permanent impairment under section 47. In this regard, I agree with the argument put forward by the Director that the ARO erred in her decision to grant LOE benefits back to September 19, 2007. There was no basis in policy or the Act to do so.
I do not find persuasive the representative’s argument that subsections 2.8 and 2.12 of section 44 allow for the payment of partial LOE benefits in this claim back to September 17, 2007 as determined by the ARO. The reference to July 1, 2007 simply notes the date from which the exceptions detailed in subsection 2.1 (and 2.1(d) in particular) may be considered. In other words, one cannot claim for an adjustment of LOE benefits post 72-month lock-in for a period of time prior to July 1, 2007.
As noted earlier in this decision, I agree with the ARO’s determination that the worker is entitled to partial LOE benefits based on the suitable occupation of school crossing guard. However, based on Policy 18-03-06 and section 44(2) of the Act, payment of LOE benefits cannot be authorized from September 17, 2007. Rather, they are effective from December 14, 2011.
In her response to the Director’s reconsideration request, the ARO acknowledged policy
18-03-06. However, she made reference to the Merits and Justice Policy 11-01-03 as the basis on which she concluded that the worker was entitled to LOE benefits for the period outlined in her decision. In her words, ‘it would be an unfair and unintended result to strictly apply WSIB OPM policy 18-03-06 and deny the worker benefits to which she is entitled because the WSIB administrative decision occurred outside of the window of time required by policy.”
The worker representative notes that the intent and spirit of the Act is not to disenfranchise individuals but to provide fair treatment and consistent and equal application in all cases. He appears to argue that, as the WSIAT decision allowed for LOE benefits to be paid under claim B, it should similarly allow for benefits to be considered under the claim under reconsideration after the 72-month period had elapsed and back to the date of the worker’s permanent layoff.
In the decision of January 14, 2014, the ARO accepted that the worker suffered a wage loss as a result of her CTS condition and was entitled to LOE benefits. However, LOE had already been paid under claim B from the date of the worker’s layoff until September 17, 2007, the date a different ARO determined that the accepted compensable conditions under that claim had resolved. The ARO thus found the worker entitled to LOE benefits from September 17, 2007, the date they ceased to be paid in the prior claim. She subsequently clarified in her reconsideration decision that she based her decision to pay benefits from this date on the merits and justice of the case.
While I appreciate that the ARO in her decision was trying to avoid what she believed was an unfair and unintended result for the worker, she misapplied the Merits and Justice Policy in her analysis of the facts in this case.
The intent of the Merits and Justice Policy is to ensure that decisions made by the WSIB are based on the merits and justice of the case and take into account:
- all facts and circumstances relating to the case
- the relevant WSIB policy or policies, and
- the relevant provision or provisions of the Workplace Safety and Insurance Act or the Workers' Compensation Act (the Act).
The policy goes on to clarify that deciding a case on its merits does not mean that relevant provisions of the Act or WSIB policies can be disregarded. They must be considered and cannot be ignored if they apply to a particular case. More importantly, with respect to the Act itself, the policy notes that the WSIB is “responsible for administering and implementing the Act. If there are specific directions within the Act that are relevant to the facts and circumstances of the case, decision-makers are legally bound to follow them with no exceptions.”
As has been noted earlier in this decision, the issue under reconsideration is the application of section 44 of the Act and Policy 18-03-06 to the period of time from which the worker is entitled to benefits in this claim. I have already ruled that benefits in this claim are effective from December 14, 2011. I find no basis for the application of the Merits and Justice Policy to this determination. I am, in the words of the policy, legally bound to follow the specific directions within the Act. The directions within section 44 of the Act are quite specific and directly relate to the facts and circumstances of the worker’s case before me. The worker is entitled to partial LOE benefits from December 14, 2011, the date of the ARO decision granting her entitlement for a NEL assessment with the resulting determination of a permanent impairment under section 47 of the Act.
CONCLUSION
I find that the worker is entitled to partial Loss of Earnings benefits based on the suitable occupation of crossing guard from December 14, 2011, not from September 17, 2007, and continuing, subject to the usual periodic LOE benefits review.
The Director’s reconsideration request is allowed.
DATED: June 26, 2015
F. Broad
Manager
Appeals Services Division