Appeals Commission for Alberta Workers’ Compensation · Analysis – Issue 1 [15] Was the worker...

Decision No.: 2016-0438

Appeals Commission for Alberta Workers’ Compensation

Docket No.: AC0013-15-70 Decision No.: 2016-0438

Introduction

[1] On January 29, 1976, the worker suffered a back injury as a result of a lifting incident at work (the 1976 claim). The Workers’ Compensation Board (WCB) accepted responsibility for a L4-5 disc herniation and its November 12, 1976 surgical repair.

[2] On August 17, 1979, the worker suffered a back injury as a result of a fall at work (the 1979 claim). The WCB ultimately accepted responsibility for a L5-S1 disc herniation and its April 1991 surgical repair.

[3] On October 1, 2015, the Dispute Resolution and Decision Review Body (DRDRB) decided the following with respect to the worker’s 1976 claim:

[3.1] The worker was not entitled to a home maintenance allowance (HMA) from January 29, 1976 to August 16, 1979.

[3.2] The worker was not entitled to a housekeeping allowance (HKA) from January 29, 1976 to August 16, 1979.

[4] On November 25, 2015, the DRDRB decided the following with respect to the 1979 claim:

[4.1] The worker was not entitled to an HMA from August 17, 1979 to December 30, 1999.

[4.2] The worker was not entitled to an HKA from August 17, 1979 to November 30, 2013.

[4.3] Documentation submitted by the worker did not meet the criteria for new evidence with respect to the worker’s entitlement to an earnings loss supplement (ELS) from August 17, 1979 to December 31, 1985.

[5] The worker appealed both DRDRB decisions to the Appeals Commission.

Preliminary Matters

[6] At the outset of the hearing, the worker and his representative withdrew the appeal of the October 1, 2015 DRDRB decision concerning the 1976 claim and entitlement to a home maintenance and housekeeping allowances.

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[7] With respect to the November 25, 2015 DRDRB decision concerning the 1979 claim, the worker and his representative indicated the request for an HMA was for the period December 1, 1992 to December 30, 1999. Prior to December 1, 1992 the worker lived in an apartment and was not responsible for home maintenance.

[8] At the hearing, the worker submitted a 33-page document that included pictures of his home and a list of people who have worked on it since 1992. The panel identified this document as Exhibit A.

[9] At the hearing, the worker indicated his mother was the sole registered owner of the home until the late 1990’s or early 2000’s. He was uncertain when he became a registered owner but volunteered that he might have documentation at home concerning this matter.

[10] The panel asked the worker to forward this information to the Appeals Commission.

[11] On June 20, 2016, the worker’s representative forwarded copies of the certificates of title showing the following:

[11.1] The worker’s mother was sole owner of the home from November 18, 1992 to January 23, 2001.

[11.2] The worker became a registered owner on January 24, 2001.

Issues

[12] Issue 1: Was the worker entitled to a housekeeping allowance from August 17, 1979 to November 30, 2013?

[13] Issue 2: Was the worker entitled to a home maintenance allowance from December 1, 1992 to December 31, 1999?

[14] Issue 3: Is there new evidence in relation to the decision to deny an economic loss supplement from August 17, 1979 to December 31, 1985?

Analysis – Issue 1

[15] Was the worker entitled to a housekeeping allowance from August 16, 1979 to November 30, 2013?

Legislation and Policy

[16] The worker requested this benefit in 2015. The WCB authorized an HKA retroactive to December 1, 2013.

[17] One of the reasons the DRDRB denied the worker’s request for a retroactive HKA was that this benefit only came into effect on December 1, 2013.

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[18] For the reasons that follow, we find the relevant policy is the policy in place at the time the DRDRB made the decision concerning the worker’s request for an HKA:

[18.1] The Court of Appeal in Alberta (Workers’ Compensation Board) vs Alberta Workers’ Appeals Commission, 2005 ABCA 235 (Can LII) held that it was not unreasonable for the Appeals Commission to apply the policy in effect on the date the WCB made the decision concerning the worker’s request.

[18.2] As indicated we rely on the legislation and policy in effect on November 25, 2015, the date the DRDRB refused the worker’s request for a retroactive HMA.

[19] Section 89 of the Workers’ Compensation Act, RSA 2000, c W-15 (WCA) indicates that the WCB shall take whatever measures it considers necessary to assist a worker injured in an accident and entitled to compensation to return to work and to lessen or eliminate any handicap resulting from that injury. Measures may include physical, social and psychological services.

[20] WCB Policy 04-10, Part I provides as follows:

“WCB may provide home services to eligible workers who, because of their compensable injuries, need some assistance in maintaining their home.

This policy is effective December 1, 2013, except when noted otherwise in a specific policy section(s).

INTERPRETATION

1.0 Home Services

Home services may include short- or long-term assistance with exterior or interior maintenance, including housekeeping, and short-term assistance with self-care.

In all cases, WCB will first determine whether the injured worker can perform the necessary tasks independently with the help of training and/or assistive devices. If not, WCB will consider eligibility for:

x Short-term Home Assistance

OR, one or both of

x Home Maintenance Allowance Level 1

x Housekeeping Allowance

See also Policy 04-07 for home services available for workers with severe injuries.

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2.0 Eligible Workers

Workers may be eligible for home services if they have functional restrictions due to serious compensable injuries that prevent them from performing necessary self-care or normal home maintenance tasks. Serious injuries include such injuries as rotator cuff tears, ruptured discs, severe ankle/wrist fractures, severe knee injuries (for example, torn ACL [anterior cruciate ligament]), and any other injuries of similar severity. It would not include most soft tissue injuries unless the injury is of unusual severity.

Specific eligibility criteria for each type of home service benefit are contained within the relevant policy application.

Please see Part II for additional information . . . .”

[21] Part II, Application 3 of Policy 04-10 provides as follows:

“APPLICATION 3: HOUSEKEEPING ALLOWANCE

1. What is a housekeeping allowance?

A housekeeping allowance is a benefit paid under [section] 89 of the WCA that is intended to optimize or maintain an injured worker's independence by offsetting the cost of obtaining outside help for housekeeping tasks that the worker is no longer able to do because of the compensable injury.

2. Who is eligible for a housekeeping allowance?

Workers with serious permanent compensable disabilities (see Part I, 2.0) which prevent them from performing heavy housekeeping tasks such as washing walls, washing windows, cleaning behind appliances, etc., may be eligible for a housekeeping allowance.

WCB first considers whether assistive aids and/or training would enable the worker to complete the housekeeping tasks him or herself. If so, WCB will provide the aids and/or training, rather than a housekeeping allowance.

NOTE: This allowance is intended for workers whose injuries, although serious, are not severe. For services for workers with severe injuries, see Policy 04-07.

3. What is the allowance based on and how is it paid?

The allowance is based on typical costs for heavy housekeeping services such as washing walls, washing windows, cleaning behind appliances, etc. As these tasks are usually not required every month, the allowance is based on average annual costs. The costs are prorated over a 12-month period and paid to the worker as a monthly allowance, so that the worker can make his/her own arrangements for the necessary housekeeping (see Addendum B).

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The allowance does not include general housekeeping that the worker is able to do for him or herself..

5. When is this policy application effective?

This policy application (Application 3 – Housekeeping Allowance) is effective December 1, 2013, and applies to all decisions made on or after that date, except when noted otherwise in a specific policy section(s).”

Questions to Answer

[22] In order to decide this issue of appeal, we must answer the following questions:

[22.1] Did the work accident result in a permanent compensable injury that was serious? If so,

[22.2] Did the worker’s serious permanent disabilities prevent him from performing heavy housekeeping tasks such as washing walls and windows and cleaning behind appliances during the period in question?

Submissions

[23] The worker’s representative made the following summarized submissions with respect to entitlement to an HKA from August 17, 1979 to March 1992:

[23.1] As the following medical reporting demonstrates the compensable injury resulted in disability that would have prevented the worker from performing heavy housekeeping from the date of accident onwards.

[23.2] On October 11, 1979, a treating specialist reported that the worker complained of fatigue and discomfort in his legs since the August 17, 1979 fall at work.

[23.3] On October 26, 1979, a physiotherapist reported the worker complained of symptoms of weak and tired legs. On examination she found several neurological signs in the worker’s legs including left-sided loss of strength, muscle wasting and the absence of an ankle jerk.

[23.4] On October 30, 1979, a treating specialist reported that the worker complained of weak legs particularly when bending forward. The weakness was reported to occur after three hours of work. Difficulty bending would affect the worker’s ability to wash walls and baseboards.

[23.5] On February 21, 1980, a treating specialist reported that the worker complained of weakness in both legs.

[23.6] In 1990, a WCB pension adjudicator indicated that there was enough evidence on the file of ongoing low back problems to support changing the effective date for the worker’s pension to May 1, 1980.

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[23.7] A June 8, 1990 independent medical examination (IME) report indicated that the worker had to quit working as a drywaller in 1986 because of worsening low back and leg pain. The worker reported that activities involving bending increased his back discomfort.

[23.8] On November 7, 1991, a neurosurgeon reported that the worker should seek employment that did not involve repetitive bending. This restriction would make it difficult for the worker to wash walls and baseboards.

[23.9] On November 18 1991, the family physician reported that the worker had been a patient since July 1990. He indicated the worker’s symptoms included low back pain, bilateral leg weakness, muscle wasting and reduced lumbar range of motion. The family physician’s report supports an HKA for the period July 1990 to November 18, 1991.

[23.10] A March 1992 rehabilitation report indicated the worker could perform two hours/day of light lifting tasks which indicates he would not be fit for heavy housekeeping or moving appliances.

[24] The worker’s representative indicated that the following medical evidence supported entitlement to HKAs and HMAs from 1992 to 2000:

[24.1] The May 22, 1992 rehabilitation discharge report indicated that the worker’s condition had improved. However, a February 11, 1993 IME report confirmed that the within two months of his discharge from the program, the worker suffered a setback. The IME specialist reported that the worker had ongoing mechanical type back pain as well as distal lower limb weakness that he attributed to the past back injury.

[24.2] On September 27, 1994, a treating specialist reported that the worker complained of increasing back pain after shovelling snow. The specialist prescribed Tylenol 3, which demonstrates the severity of the worker’s symptoms after performing home maintenance.

[24.3] An October 25, 1994 physiotherapy report indicated the worker demonstrated decreased lumbar movement in all directions, which supports the need for assistance with home maintenance and housekeeping.

[24.4] On January 15, 1996, a WCB medical consultant indicated that the worker’s permanent work restrictions included sedentary duties with a mix of some light duties and the ability to take frequent breaks from sitting.

[24.5] On August 21, 1996, the worker’s WCB case manager accepted compensable work restrictions described as no heavy lifting or twisting.

[24.6] A November 7, 1996 physiotherapy report indicated the worker was fit for light work with no repetitive lifting.

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[25] The worker’s representative indicated the following medical evidence supported an HKA from 2000 to November 30, 2013:

[25.1] On January 26, 2001 and May 27, 2001, the family physician reported that the worker was not capable of any work. It follows from this report that the worker could not perform heavy housekeeping.

[25.2] During the August 18, 2001 marked life disruption assessment the worker reported that his symptoms were aggravated by activity such as vacuuming lawn work and bending over. Later in the report the psychologist indicated:

“. . . [The worker] denied any decreased involvement in housework and stated that he performs this on a sporadic basis. He is able to care for various household duties, including mowing the lawn, but no other gardening. He does cooking, vacuuming and laundry. . . .”

[25.3] An April 24, 2002 IME report recorded that the worker reported his symptoms were made worse by vacuuming.

[25.4] On December 7, 2009 an IME specialist diagnosed the worker with post- operative arachnoiditis. (The panel understands that “arachnoiditis” is a type of chronic pain caused by inflammation in the spinal canal.)

Evidence and Findings

[26] The worker provided the following evidence at the hearing:

[26.1] He and his mother were partners in the house. Initially it was registered in his mother’s name but he provided the down payment from one of the lump sum payments he received from the WCB.

[26.2] He tried to help around the house with sweeping and vacuuming. Whenever he tried to do something more ambitious he would load up on painkillers.

[26.3] He bought a snow blower and a self-propelled lawn mower. He continues to cut the lawn.

[26.4] Over the years he occasionally paid for a neighbour to assist with snow removal.

[26.5] His mother loved to garden. They hired someone to prepare the ground in the spring and fall. Because of his back he could not help with gardening.

[26.6] He has hired people to trim the trees, paint the windows and clean inside the house on occasion. No one came to the house on a regular basis. Rather, he or his mother would hire someone based on how the house looked. His brother tries to tidy the inside of the house on occasion.

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[26.7] When his mother was alive relatives came in twice a year to do a major housecleaning.

[26.8] He pays everyone who assists him, even his brother.

[26.9] Since 1992 he has hired people to paint, stucco the garage, install a garage furnace, plant sod, create a garden, lay cement pads, install hardwood floors and clean the house. But for his back injury, he would have helped with some of these tasks.

[26.10] In 1996, he tried to finish the basement but had to quit after four days because of increasing back pain. The basement remains unfinished to this day.

[26.11] He never washes the windows or walls. The walls in the house are covered with primer so there is no point in washing them. He cannot afford to pay someone to paint. He did hire someone to paint his bedroom but it cost $400.00, which he thought was a lot.

[26.12] His mother passed away in 2003. He finds it very expensive to live on his own.

[26.13] He no longer cares how things look in the house. It is a mess. Next year when he turns 65, the WCB will reduce his monthly payments. At that point he will likely lose the house and be out on the street.

[27] We acknowledge that a L5-S1 disc herniation meets the definition of a serious injury under Policy 04-10.

[28] We find the worker was not entitled to an HKA prior to May 22, 1992. We find that medical evidence prior to this date did support permanent disability that would have prevented the worker from performing heavy housekeeping. This finding is supported by the following evidence and analysis:

[28.1] Reporting following the accident does not support that the compensable injury prevented the worker from performing heavy housekeeping. Information on the appeal record indicates that the worker continued to work as a drywaller several years after the accident:

x On August 23, 1979, a treating specialist indicated that the worker was managing his work “all right”.

x On October 15, 1979, the same specialist wrote that the worker was symptomatic but continued to work.

x On June 8, 1990, a specialist reported that the worker indicated his back condition gradually worsened to the point that he quit work four years earlier.

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x We note in his July 1991 letter to the WCB, the worker estimated for the period 1979 to August 1986 he experienced a 25 percent loss in salary as a result of his back injury. This letter indicates the worker was still capable of some work as a drywaller up to August 1986.

x At the hearing, the worker indicated he lost wages after 1979. He worked sparingly from 1981 through 1985 doing lighter drywalling duties such as sanding and sweeping.

[28.2] We find the worker’s ability to work as a drywaller from 1979 to 1986, although diminished based on his evidence, indicates he did not require assistance with heavy housekeeping. At the hearing, the worker explained that drywalling was very heavy work. It involved lifting heavy pieces of drywall over your head, work standing on stilts or crouching for low level work and dumping pails of drywall cement into hoppers.

[28.3] Other medical reporting following the accident indicates that the worker’s complaints of leg weakness were not supported by clinical examination or imaging studies. We interpret this evidence to mean that the worker’s injury did not immediately result in disability that prevented him from performing heavy housekeeping:

x On October 31, 1979, a neurologist reported that the worker demonstrated normal power in his lower extremities. The worker was able to perform 20 deep sitting squats and had a normal range of back motion.

x On February 1, 1980, an orthopaedic specialist reported that on examination the worker demonstrated a full range of painless back motion and a normal neurological assessment.

x On April 29, 1981, a neurologist reported that the worker’s range of lumbar motion was full and his straight leg raise, motor examination (bulk, power and tone), gait, reflexes and sensory examination were all normal. The specialist reported there was an absence of objective findings to explain the worker’s leg complaints.

[28.4] There is a gap in medical reporting after April 29, 1981 until 1986. At the hearing the worker indicated he worked on and off during this period and finally quit work in 1986. We find the absence of medical reporting from 1981 to 1986 does not support that the worker required assistance with heavy housekeeping.

[28.5] A December 7, 1989 computed tomography (CT) scan of the worker’s lumbar spine revealed no abnormalities.

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[29] We find the worker was entitled to an HKA effective May 22, 1992. As the following evidence demonstrates by May 22, 1992 the medical evidence supported permanent disability that would have prevented the worker from performing heavy housekeeping:

[29.1] On August 22, 1990, a specialist reported that the worker complained of increasing sciatica with recurring numbness to his right foot over the last 6 to 12 months. The specialist noted that a recent myelogram revealed a large right-sided disc protrusion at L5-S1 which was consistent with the worker’s clinical presentation.

[29.2] The worker underwent surgery on April 25, 1991.

[29.3] Following surgery, the medical reporting supported that the worker would be permanently restricted to sedentary to light duties with restrictions related to lifting, bending, twisting, pushing and pulling and the need to change positions as needed.

x On November 7, 1991, the worker underwent an IME by a neurologist who indicated the worker should seek work that did not involve repetitive bending and heavy lifting and would permit the worker to alternate positions. He recommended the worker attend a rehabilitation program and undergo a functional capacity evaluation (FCE) to improve his fitness and determine his precise work abilities.

x The worker attended a rehabilitation program from February 19, 1992 to May 22, 1992. The June 1992 discharge report indicated the worker was best suited to sedentary to light duties that combined standing, sitting and walking tasks. The worker was noted to have limitations with prolonged standing, bending and repetitive lifting.

[29.4] As of May 22, 1992, imaging studies confirmed a L5-S1 disc injury, for which, the worker had undergone back surgery and had completed a four month rehabilitation program. This medical information concluded the worker was best suited to sedentary to light duties. We find as of this date medical evidence supported permanent disability.

[30] Medical reporting after May 22, 1992 continued to support permanent disability with restrictions similar to those described in the June 1992 rehabilitation discharge report.

x On February 11, 1993, the worker underwent an IME by a neurosurgeon who reported that the worker’s permanent disability could be based on reduced range of motion, a surgical disc with residual symptoms and decreased strength and decreased sensation of the right lower extremity.

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x On January 15, 1996, a WCB medical consultant concluded that the worker could not return to his pre-accident employment and was best suited to sedentary to light level duties while avoiding forceful pulling, pushing and twisting and heavy lifting. In reaching this conclusion the medical consultant relied, in part, on the June 1992 rehabilitation discharge report.

[31] We rely on the worker’s evidence that he has paid individuals to assist with housekeeping. At the hearing he indicated that relatives, two women from the community and his brother have performed housekeeping services since he moved to his home in 1992.

Decision – Issue 1

[32] The worker is entitled to a housekeeping allowance effective May 22, 1992.

[33] This issue of appeal is granted in part. The November 25, 2015 Dispute Resolution and Decision Review Body decision is varied.


[34] Was the worker entitled to a home maintenance allowance from December 1, 1992 to December 31, 1999?


[35] In 2015, the worker requested an HMA retroactive to the accident date.

[36] On July 29, 2015, the WCB authorized an HMA retroactive to December 1, 2000 under Policy 04-10.

[37] On November 25, 2015, the DRDRB denied the worker’s request for a retroactive HMA in part because the HMA benefit only came into effect in January 2000. Prior to that the benefit was known as the Independence Allowance and was paid to permanently totally disabled workers. On February 9, 1983 the benefit was extended to workers other than those permanently totally disabled.

[38] For the reason cited under the previous issue of appeal, we conclude that the relevant policy is the policy in effect at the time the DRDRB considered the worker’s request.

[39] Section 89 of the WCA indicates that the WCB shall take whatever measures it considers necessary to assist a worker injured in an accident and entitled to compensation to return to work and to lessen or eliminate any handicap resulting from that injury. Measures may include physical, social and psychological services.

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[40] WCB Policy 04-10, Part I dealing with serious injuries reads in part:

“2.0 Eligible Workers

Workers may be eligible for home services if they have functional restrictions due to serious compensable injuries that prevent them from performing necessary self-care or normal home maintenance tasks. Serious injuries include such injuries as rotator cuff tears, ruptured discs, severe ankle/wrist fractures, severe knee injuries (for example, torn ACL), and any other injuries of similar severity. It would not include most soft tissue injuries unless the injury is of unusual severity.

Specific eligibility criteria for each type of home service benefit are contained within the relevant policy application.”

[41] WCB Policy 04-10, Part II, Application 2 dealing with Level 1 HMA reads in part:

“2. Who is eligible for a Level 1 home maintenance allowance?

Workers are eligible for a Level 1 allowance if they have a permanent compensable injury that is serious (see Part I, 2.0) or severe (see Policy 04-07, Part I), which results in functional impairments that prevent the worker from performing home maintenance tasks such as lawn maintenance, snow removal, painting, etc., him or herself.

WCB first considers whether assistive aids and/or training would enable the worker to perform the maintenance tasks him or herself. If so, WCB will provide the aids and/or training, rather than a home maintenance allowance.

3. How is the Level 1 home maintenance allowance paid, and what is it based on?

The Level 1 home maintenance allowance is paid monthly. It is based on average labour costs over a five-year cycle for normal day-to-day maintenance tasks such as lawn maintenance, snow removal, interior painting, and fence painting. Material costs are not included, as the worker would have had those costs regardless of the work injury.”

Questions to Answer


[42.1] Did the work accident result in a permanent compensable injury that was serious or severe? If so,

[42.2] Did the worker’s injuries result in functional impairment that prevented the worker from performing maintenance tasks himself such as painting, lawn maintenance and snow removal during the period in question? If so,

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[42.3] Is there evidence that the worker incurred additional home maintenance costs during the period in question?

Submission

[43] The worker’s representative relied on the medical reporting cited under Issue 1 to support the request for an HMA from December 1, 1992.

[44] The panel understands that the worker’s evidence summarized under Issue 1 also applies to this issue of appeal.


[45] By letter dated July 29, 2015, the WCB authorized an HMA under Policy 04-10 retroactive to January 1, 2000.

[46] The worker and his mother shared responsibility for housekeeping and home maintenance duties. The worker provided the down payment for the house and at the hearing indicated he did as much work around the house as his back would permit. Over the years, he paid individuals to trim the trees, prepare the garden paint the exterior window trim and remove snow.

[47] For the reasons cited under Issue 1, we find as of May 22, 1992, the medical evidence supported that the work injuries had resulted in serious permanent disability that would have prevented the worker from performing home maintenance. The June 1992 rehabilitation discharge report indicated the worker was best suited to sedentary to light duties limitations related to bending, prolonged standing, and lifting.

[48] At the hearing, the worker indicated he paid anyone who assisted with home maintenance.

[49] We find the worker is entitled to an HMA retroactive to December 1, 1992.


[50] The worker is entitled to a home maintenance allowance from December 1, 1992 to December 31, 1999.

[51] This issue of appeal is granted. The November 25, 2015 Dispute Resolution and Decision Review Body decision is reversed.


[52] Is there new evidence in relation to the decision to deny an economic loss supplement from August 17, 1979 to December 31, 1985?

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[53] Section 17(3) of the WCA reads:

“(3) The Board has authority to reconsider any matter that it has dealt with and to rescind or amend any decision or order previously made by it.”

[54] WCB Policy 01-08, Part I dealing with new evidence reads:

“WCB will consider any new evidence and, if appropriate, amend or rescind its previous decision. The effective date of the amended decision depends on the nature of the decision.

This policy is effective June 1, 2010, and applies to all decisions and administrative reviews on or after that date, except when noted otherwise in a specific policy section(s).

INTERPRETATION

1.0 New Evidence

New evidence is new information that may affect the outcome of a workers’ compensation decision. It must meet two basic criteria:

1. the evidence is material (relevant) to the issue in question

2. the evidence is substantive – it gives new information that was not previously available to the decision-maker and could affect the outcome of the decision

Information is not new evidence when it simply summarizes or reformats information that was considered by the decision-maker when the decision was made. For example, a medical report is not new evidence if it consists of the same clinical findings, by the same or another physician, already taken into account by the decision-maker. A medical report may be new evidence if, for example, new clinical findings lead to a change in diagnosis.

New evidence includes:

x health information

x work-relatedness

x fitness to work earnings information

x information about employer operations

x administrative review findings that identify previous errors or omissions

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x appeal findings

x various other relevant facts

The principles of fairness and natural justice generally require that WCB considers all relevant evidence, new or otherwise, when reviewing a decision. However, WCB expects that interested parties will make all reasonable efforts to provide all relevant information when the initial decision is made. If new evidence was reasonably available to the party at the time of the initial decision, WCB will take into consideration why the information was not provided at the time. Depending on the circumstances, WCB may decide not to accept the information as new evidence.”

Questions to Answer


[55.1] Is the new information relevant to the issue in question? If so,

[55.2] Is the new information substantive in that it gives new information that was not previously available to the decision maker and could affect the outcome of the decision?

Submissions

[56] The worker’s representative made the following summarized submissions:

[56.1] The WCB was wrong when it concluded there was no medical evidence concerning the worker’s back condition since the August 17, 1979 work accident. This finding constitutes an administrative error.

[56.2] Medical evidence on the worker’s claim includes:

x On October 5, 1979, the treating specialist reported the worker complained of tired legs since a fall at work.

x An October 11, 1979 physiotherapy report reported that the worker demonstrated neurological deficits and needed to see a neurologist.

x On October 31, 1979, the treating specialist reported that the worker complained of weakness in his legs when bending forward.

x On October 31, 1979, a neurologist reported that the worker indicated he had tired legs after working two or three hours and sometimes needed to stop work at noon.

x On February 21, 1980, a specialist reported that the worker complained of weakness in his legs that was worse at the end of the working day.

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[56.3] The WCB was wrong when it concluded there was no evidence on the file to confirm loss of income for the years in question. This constitutes an administrative error or omission.

[56.4] Reporting since the accident indicating the worker suffered a loss of earnings includes:

x A February 27, 1980 WCB memorandum indicated the worker had missed a considerable amount of work due to back pain.

x A December 3, 1987 letter from the worker indicated that he should have considered re-training in 1977.

x A December 11, 1990 WCB memorandum indicates the employer who hired the worker from 1981 through 1986 indicated he was aware that the worker had worked on and off because of back problems. A co-worker who worked with the worker during this time confirmed that the worker would have to stop work and he had turned down jobs because of his back pain.

x Information from Revenue Canada regarding any returns submitted from 1978 to 1986 is new information not on the claim file at the time of the original decision.

x Information from Revenue Canada showing Canada Pension Plan contributions from 1979 to 1987 is new information not on the claim file at the time of the original decision.

x The Information forwarded from Revenue Canada on August 26, 2015 for the taxation years 1981 to 1985 is new information not on the claim file at the time of the original decision.

[56.5] The April 2, 2014 Appeals Commission decision and findings constitute new evidence. The Appeals Commission found that the medical consultant’s January 15, 1996 report was new evidence.


[57] By way of background:

[57.1] On May 22, 1992, a previous Appeals Commission panel decided the following:

x There was no relationship between the 1979 work accident and the need for surgery on April 24, 1991.

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x The worker had no back complaints between 1981 and November 9, 1989.

[57.2] On March 6, 1995, the Claim Services Review Committee (CSRC) (predecessor to DRDRB) considered the worker’s entitlement to an ELS from 1979 to 1985 on the 1976 claim. The CSRC held that it would only consider entitlement for the years 1979 and 1980 because of the May 22, 1992 Appeals Commission finding that the worker had no back complaints from 1981 to 1989. The CSRC decided there was no medical evidence to support a loss of earnings capacity for the years 1979 and 1980.

[57.3] On April 2, 2014, a threshold panel of the Appeals Commission decided the following:

x The medical consultant’s January 15, 1996 report indicating that full responsibility should be accepted for the April 1991 surgery was new fresh evidence for the purpose of adjudicating the worker’s claim.

x The May 22, 1992 decision of the Appeals Commission was rescinded.

x The WCB was to re-adjudicate the worker’s claim and entitlement to benefits taking into consideration the medical consultant’s January 15, 1996 report.

[57.4] On May 26, 2014, the WCB accepted responsibility for the L5-S1 disc herniation and April 1991 surgery on the 1979 claim.

[58] WCB policy indicates that new evidence includes administrative review findings that identify previous errors and omissions, appeal findings and various other relevant facts. We find the Appeals Commission 2014 decision and the case manager’s May 26, 2014 letter changing the level of responsibility on the 1979 claim satisfies the policy criteria for new evidence with respect to the worker’s entitlement to an ELS from August 17, 1979 to December 31, 1985. This finding is supported by the following evidence and analysis:

[58.1] In its March 6, 1995 decision, the CSRC relied on the May 22, 1992 Appeals Commission decision to restrict its review of entitlement to ELS benefits to the years 1979 and 1980. The Appeals Commission 2014 decision to rescind the May 22, 1992 decision meant the basis for the March 6, 1995 CSRC decision no longer existed. As a consequence, the April 2, 2014 Appeals Commission decision is new information since the 1995 CSRC that would likely affect the outcome of that decision.

[58.2] The WCB case manager’s May 26, 2014 decision to change the level of responsibility to include an L5-S1 disc herniation and the April 1991 surgery on the 1979 claim is new relevant information since the 1995 CSRC decision that would likely affect the outcome of that decision.

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(AB

WC

AC)



[59] We find there is new evidence in relation to the decision to deny an economic loss supplement from August 17, 1979 to December 31, 1985.


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Can

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2364

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WC

AC)


Decision Summary

[61] Issue 1: Was the worker entitled to a housekeeping allowance from August 17, 1979 to November 30, 2013?

[62] The worker is entitled to a housekeeping allowance effective May 22, 1992.

[63] This issue of appeal is granted in part. The November 25, 2015 Dispute Resolution and Decision Review Body decision is varied.

[64] Issue 2: Was the worker entitled to a home maintenance allowance from December 1, 1992 to December 31, 1999?

[65] The worker is entitled to a home maintenance allowance from December 1, 1992 to December 31, 1999.


[67] Issue 3: Is there new evidence in relation to the decision to deny an economic loss supplement from August 17, 1979 to December 31, 1985?

[68] We find there is new evidence in relation to the decision to deny an economic loss supplement from August 17, 1979 to December 31, 1985.


This decision is made with the full agreement of the hearing panel. Decision signed in Edmonton, Alberta on July 11, 2016. M. McAvoy Hearing Chair (on behalf of the panel) Hearing Panel: M. McAvoy – Hearing Chair P. Paquette – Commissioner P. Pellatt – Commissioner Typed by: imc/jeb DEC08D (20160301)

2016

Can

LII 4

2364

(AB

WC

AC)

Appeals Commission for Alberta Workers’ Compensation · Analysis – Issue 1 [15] Was the worker...

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