Public Decisions | The Appeal Commission

Decision #67/99 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on March 9, 1999, at the request of a union representative, acting on behalf of the claimant. The Panel discussed this appeal on March 9, 1999.

Issue

Whether the claim is acceptable.

Decision

That the claim is not acceptable.

Background

On July 30, 1997, the claimant filed a compensation claim for time loss benefits at two hours per shift for the period April 26, 1995, to May 15, 1995. In a letter attached to the application form, the claimant stated that the decision to file a new claim stemmed from the Workers Compensation Board's (WCB's) unwillingness to consider her 2 hour time loss in association with Claim No. 9405 4873/3D. The following is a brief background in relation to Claim No. 9405 4873/3D:

During the course of her employment as a mail clerk on November 25, 1994, the claimant injured her lower back. The claim was accepted as a WCB responsibility and benefits were paid to April 25, 1995, at which time the WCB determined that the claimant was fit to perform the modified duties provided by her employer on a full time basis.

On May 19, 1995, the claimant was examined by a WCB medical advisor regarding her medical status. Based on examination findings, primary adjudication confirmed that the claimant had sufficiently recovered from the effects of the compensable accident to allow her to return to full duty employment. On May 3, 1996, the Review Office confirmed there was no basis to extend wage loss benefits, at two hours per shift, during the period April 26 through May 15, 1995.

With the assistance of her union representative, the claimant appealed the Review Office's decision to the Appeal Commission and eventually an oral hearing took place on August 15, 1996. The majority of the Appeal Panel determined that the claimant was not entitled to wage loss benefits at two hours per shift during the period April 26, 1995, through to May 15, 1995. See Appeal Panel Decision No. 180/96.

In a letter, dated October 10, 1996, the union representative, in light of the Appeal Panel's decision, requested the WCB to adjudicate as a new issue the time loss between April 26, 1995, and May 15, 1995, as an aggravation. In subsequent letters, dated October 18, 1996, and November 8, 1996, Claims Services stated its view that the Appeal Panel's decision could not be altered and that there was no basis to extend wage loss benefits through to May 15, 1995. Claims Services further indicated that the Appeal Panel appeared to suggest that had the claimant stayed within the modified duties being provided rather than performing activities on her own initiative, that were outside of her restrictions, then she would have been able to work a full shift.

In a letter, dated December 6, 1996 to the WCB's Corporate Secretary, the union representative requested a reconsideration of the Appeal Panel's decision under section 60.9 of the Workers Compensation Act (the Act). The union representative described the Appeal Panel's decision as being patently unreasonable and a specific contradiction in the reasons for the decision was addressed. The union representative also noted that the issue was being presented to the WCB's Fair Practice Office for review. The request for reconsideration was filed based on the time limits imposed in WCB policy 21.10.10.

On July 14, 1997, the WCB's General Counsel & Acting Corporate Secretary wrote to the union representative stating that an error within the meaning of policy 21.10.10 had not been identified and the matter would not be forwarded to the Board of Directors for consideration.

With respect to the present claim, primary adjudication wrote to the claimant on January 20, 1998. Primary adjudication stated there was no evidence on file to support that a new accident or aggravation had occurred. On August 10, 1998, the union representative appealed this decision to Review Office.

On December 4, 1998, the Review Office determined that the claim for compensation was not acceptable. After reviewing the hearing transcript and the arguments presented at the hearing and arguments presented under the current claim, including a submission from the employer, Review Office concluded that the worker had not sustained a new injury by accident arising out of and in the course of her employment.

The Review Office noted that in order to satisfy the definition of an accident a worker must be injured. The medical evidence taken into consideration was that submitted under Claim 9405 4873. The Review Office stated it was clear from the treating physician's account that he was treating the worker for her November 25, 1994, back injury and not for what could be considered a new accident injury. The Review Office also took note of comments brought forward by the employer that the claimant at no time reported sustaining a new accident or injury on the job to account for her claimed time loss. The Review Office concluded that the requirements of Section 17 of the Act had never been fulfilled. The evidence presented did not substantiate the worker's contention that she could not work the additional two hours per shift between April 25th and May 15, 1995, because she had sustained a new accident.

On January 19, 1999, the union representative appealed the Review Office's decision to the Appeal Commission. An oral hearing was held on March 9, 1999.

Reasons

The eligibility for compensation benefits by federal employees is governed by the Government Employees Compensation Act (GECA) and the Government Employees Compensation Regulations (GECR) which are both administered by agreement in Manitoba by the Workers Compensation Board (WCB). In the GECA an accident is defined as "a wilful and an intentional act, not being the act of the employee, and a fortuitous event occasioned by a physical or natural cause."

According to Section 4(1) of the GECA, compensation shall be payable to

a) an employee who

(ii) is disabled by reason of an industrial disease due to the nature of the employment.

The GECR provide that, "an employee who is disabled by reason of a disease that is not an industrial disease but is due to the nature of his employment and peculiar to or characteristic of the particular process, trade or occupation in which he is employed at the time of the disease was contracted ...[is] entitled to receive compensation at the same rate as [he/she] would be entitled to receive under the Government Employees Compensation Act if the disease were an industrial disease ...".

In 1993, the Board of Directors of the WCB instituted policy 44.05.10 in order to clarify and/or expand the definition of accident in the GECA. This particular policy provides:

"The following principles will apply when interpreting GECA. The definition of 'accident' in the GECA will be given a broad interpretation. Therefore:

2. The interpretation of 'accident' will encompass both accidental cause and accidental result. That is, the injury itself may be considered the 'accident'.

3. The gradual onset of a personal injury, including an injury resulting from a gradual process or repetitive injurious motion, will be considered an 'accident'."

As the background notes indicate, the claimant sustained a compensable injury in 1994 for which she received benefits over a period of time. This 1994 claim was the subject of an Appeal Panel hearing on August 15th, 1996. The claimant was seeking to extend wage loss benefits during the period of April 26th, through May 15th, 1995, by two (2) hours per shift. The majority found that there was no basis to extend the claimant's wage loss benefits by an additional two hours. Following this ruling, the claimant, through her union representative, requested that the Board of Directors review this decision (No. 180/96) pursuant to Section 60.9 of the Workers Compensation Act (the Act) on the grounds that the decision was patently unreasonable and that it contradicted itself. In her 1995 report of injury form filed with the WCB, the claimant outlined the following:

"I have exhausted all avenues to have this period of time loss accepted under claim 9405 4873/3D. It is clear to me, the Fair Practices Office and apparently the Appeal Panel that the work being performed April 26, 1995 was the source of aggravation which prevented working full eight hour shifts." "Since WCB is unwilling to consider this time loss associated with the 9405 4873/3D injury claim, I am submitting a new claim to cover this period of time loss." "The claim is being filed at this time, even though the injury occurred April 26, 1996 because of the process associated with claim 9405 4873/3D and associated time frames."

We find the claim is not acceptable. There is no evidence of an accident, as defined under the GECA, the GECR and/or WCB policy 44.05.10, to have ever occurred on or about April 26th, 1996, as alleged. The claimant testified at the hearing that she had worked the same number of hours on the day prior to the alleged accident date as she had on the days following. In other words, there was no reduction in hours worked. There being no accident, the claim is hereby dismissed.

The employer's representative most strenuously urged the Panel to find that the claimant had filed a frivolous appeal with the Appeal Commission. For reasons which will later become apparent, we elected not to make such a finding. There can be no doubt, however, the claimant erred in her judgment to file a new accident claim based solely on the reasons that were outlined in her report of injury form. It is readily apparent to us that the claimant's frustration with Appeal Panel decision 180/96 was fueled by the purely gratuitous determination on the part of the WCB's Fair Practices Advocate and the claimant's union representative that the decision was "patently unreasonable".

In a December 6th, 1996 letter to the WCB's Corporate Secretary, the claimant's union representative stated as follows:

"The majority of this appeal panel quite clearly are introducing and supporting the concept of fault in a no fault system.

This issue was presented to the WCB Fair Practice Office for review. In discussing this matter with Ms [the Fair Practices Advocate] December 6, 1996, there was agreement that the decision does not make sense, that it is patently unreasonable and introduces fault into a no fault system. Ms [the Fair Practices Advocate] intends to raise this issue with the Appeal Commission."

The Fair Practices Advocate then conducted a review and forwarded her report, dated April 17th, 1997, to the claimant's union representative. In that letter she stated:

"Appeal Commission decision #180/96 on [name of claimant] was reviewed following our discussion. The logic of the decision was unclear to me. It appears that the claimant is being penalized for attempting to mitigate the consequences of her injury by testing out her ability to return to her pre-accident duties."

What the Fair Practices Advocate and the claimant's union representative appear to have overlooked, in making these various comments, is the significance of Sections 60.3(7) and 60.91(3) of the Act. Section 60.3(7) declares that a decision of an Appeal Panel is deemed to be a decision of the WCB. The only exception to this particular section would be a determination by the Board of Directors to stay an Appeal Commission decision pursuant to Section 60.9 of the Act. As well, Section 60.91(3) of the Act is very explicit in its meaning, "Except as provided in this section, the appeal commission shall not reconsider any matter or rescind, alter or amend any decision or order previously made by it, or make any further or supplementary order." The effect of this section is that it makes the Panel's decision final.

While we respect both the Fair Practices Advocate's and the union representative's right to disagree with an Appeal Panel decision, the ultimate authority to determine that such decision has resulted in an error of law clearly rests with the Board of Directors of the WCB by virtue of Section 60.9 and whether such decision is "patently unreasonable" rests with the Court of Queen's Bench in accordance with its test for judicial review of a decision of an administrative tribunal protected by a privative clause.

General counsel for the WCB advised the union representative and the Fair Practices Advocate that in his opinion there had been no error and that the matter would not be forwarded to the Board for its consideration. In addition, we note that the claimant did not pursue the matter any further by making application to the Court of Queen's Bench for judicial review.

Had the circumstances of this case not been what they were, we would have had no hesitation in finding this appeal to be frivolous. In addition, we would have ordered the claimant to pay the maximum costs of $250.00.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
R. Frisken, Commissioner

Recording Secretary, B. Miller

R. W. MacNeil - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 29th day of April, 1999

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