Annual Report 2013

TABLED DOCUMENT 179-17(5) TABLED ON NOVEMBER 5, 2014

NORTHWEST TERRITORIES AND NUNAVUT WORKERS’ COMPENSATION APPEALS TRIBUNAL ANNUAL REPORT 2013

NORTHWEST TERRITORIES AND NUNAVUT WORKERS’ COMPENSATION APPEALS TRIBUNAL • ANNUAL REPORT 2013

Suite 1002 10th Floor Precambrian Building 4920 – 52nd Street Yellowknife, NT X1A 3T1 Phone: 867.669.4420 Toll Free: 888.777.8167 Fax: 867.766.4226

February 11, 2014

Honourable Jackson Lafferty NWT Minister Responsible for the WSCC

Honourable Keith Peterson NU Minister Responsible for the WSCC

Dear Honourable Ministers:

In accordance with the Workers’ Compensation Act, I am pleased to present the Northwest Territories & Nunavut Workers’ Compensation Appeal Tribunal’s 2013 Annual Report.

Sincerely,

Colin Baile Chairperson

WCAT 2013 Annual Report 2 NORTHWEST TERRITORIES AND NUNAVUT WORKERS’ COMPENSATION APPEALS TRIBUNAL • ANNUAL REPORT 2013

Table of Contents

Overview...... 4

Operations...... 4

Financial Operations...... 5

Tribunal Mandate And Procedural Authorities...... 5

Procedural Framework...... 6

Statistics...... 7

Decisions of 2013...... 9

Appendix...... 14

Contact...... 16

3 NORTHWEST TERRITORIES AND NUNAVUT WORKERS’ COMPENSATION APPEALS TRIBUNAL • ANNUAL REPORT 2013

Overview Overview Overview The Northwest Territories & Nunavut Workers’ Compensation Appeals Tribunal is an independent quasi- Thejudicial Northwest tribunal, Territories which hears & Nunavut appeals Workers’of decisions Compensation made by the Appeals Workers’ Tribunal Safety isand an Compensation independent qu asi- The length of time from filing to decision was an average of 131 days. Since 2008, the time for appeals Cojudicialmmission’s tribunal, (“WSCC” which hears or “the appeals Commission”) of decisions Review made Committee. by the Workers’ Both Workers Safety and and Compensation Employers may file has been reduced by 65%. Some of the appeal time can be attributed to regulatory requirements for such anCo mmission’sappeal. The (“WSCC” Tribunal ormay “the only Commission”) hear matters Review for which Committee. the Review Both Committee Workers hasand madeEmployers a decision. may file matters as notice of hearing and time for service. The Tribunal attempts to conduct hearings in the least anAppeals appeal. are The heard Tribunal by one may Tribunal only hear Member, matters however for which a panel the Review of three Committee may be struck has madeto hear a andecision. appeal. possible time, while ensuring the principals of fairness are applied. The Tribunal is responsible for AppealsThe Tribunal are heardmay confirm, by one Tribunalvary or reverse Member, any however decision a ofpanel the WSCC’sof three may Review be struck Committee. to hear While an appeal. the specific amounts of time in each appeal such as preparing the Appeal Package, setting of a hearing date, TheTribunal Tribunal may maymake confirm, its own varyprocedural or reverse rules, any it mustdecision follow of theand WSCC’s apply the Review Workers’ Committee. Compensation While Actthe and decision writing. Appellants are responsible for the time between receiving the Appeal Package and (theTribunal Act) mayof both make the its N orthwestown procedural Territories rules, and it Nunavut.must follow and apply the Workers’ Compensation Act filing the Certificate of Readiness, which is required in order to schedule a hearing. Up to 69% of the (theThe Act)workers’ of both compensation the Northwest system Territories provides and compulsory, Nunavut. no-fault mutual insurance for workers and overall time required for an appeal may be contributed to Appellants failing to return required forms in a employers.The workers’ One compensation of the corner system stones provides of this system compulsory, is the immunityno-fault mutual from action. insurance This formeans workers employers and timely manner. employers.and workers One cannot of the be corner sued as stones a result of thisof a system workplace is the accident. immunity There from are action. however This verymeans specific employers Outcomes for appeals have remained the same from last year. The reversal rate (appeals allowed or andcircumstances workers cannot where be such sued immunity as a result may of be a workplacechallenged. accident. Applications There from are anyhowever party veryto a specificcourt action allowed in part) is 50%. Over the past six years, the reversal rate has been between 36% and 55% with circumstancesmay apply to the where Tribunal such for immunity a determination may be challenged.of whether aA personpplications is immune from any from party actio to na undercourt actionthe Act. the average being 46%. may apply to the Tribunal for a determination of whether a person is immune from action under the Act. The Ministers from both the Northwest Territories and Nunavut, responsible for Workers’ Safety & For the sixth year, no judicial review applications of Tribunal decisions proceeded through the Courts. TheCompensation Ministers from Commission, both the Northwest appoint Tribunal Territories Members. and Nunavut, responsible for Workers’ Safety & Key Initiatives for the Coming Year Compensation Commission, appoint Tribunal Members. Tribunal Members and – Staff 2013 • A review will be undertaken next year to examine procedure models from other jurisdictions, Tribunal Members and – Staff 2013 which may further reduce the time for appeals to proceed. Colin Baile – Chairperson (Yellowknife) • The need to publish Tribunal decisions must be weighted against statutory and privacy requirements. The Tribunal will finalize the redaction requirements in order to allow decisions to MichaelColin Baile Chandl – Chairpersoner (Iqaluit) (Yellowknife) be published. LouisMichael Sebert Chandl (Forter (Iqaluit)Smith)

LouisCayley Sebert Thomas (Fort (Yellowknife) Smith) Financial Operations CayleyJoan Mercredi Thomas (Fort (Yellowknife) Smith) Financial Operations MariaJoan Mercredi Jobse – Registrar/General(Fort Smith) Manager Maria Jobse – Registrar/General Manager

In 2013, the Tribunal’s total expenditures were within 79% of the original authority of $471,284.

Operations Operations Operations Tribunal Mandate and Procedural Authorities

In 2013, sixteen appeals were received. This is more than double the number of appeals filed in 2012 Inand 2013, is the sixteen greatest appeals number were in the received. previous This 6 years. is more In thanaddition double to the the appeals number received,of appeals two filed Section in 2012 63 Both the Commission and the Appeals Tribunal are governed by the Workers’ Compensation Act of each andapplication is the greatests were filed. number in the previous 6 years. In addition to the appeals received, two Section 63 Territory. The Tribunal is ordinarily not bound by Commission decisions or opinions. The Tribunal must Ofapplication the hearingss were held filed. in 2013, more than 50% were documentary with less than half of all hearings being apply Commission policies where the Tribunal determines the policy applies to the circumstances of an Ofconducted the hearings in person held inor 2013,by vid eoconference.more than 50% Over were the documentary past several with years, less there than halfis a trendof all hearingstowards being appeal. conducteddocumentary in personhearings. or by videoconference. Over the past several years, there is a trend towards documentary hearings. The Appeals Tribunal is guided by the principles of administrative law, legislation, and court decisions. The majority of appeals continue to be made by Workers with only 11% filed by Employers. Within this framework, the Tribunal endeavors to maintain the balance between fairness and efficiency. 77%The majority of appeals of appealsare NWT continue matters to with be themade remaining by Workers 23% with originating only 11% from filed Nunavu by Employers.t matters. 77% of appeals are NWT matters with the remaining 23% originating from Nunavut matters. Appeals may be heard by documentary submissions, teleconference, videoconference, or in-person. Tribunal decisions are written. The Act requires decisions to be made within 90 days of receiving all the WCAT 2013 Annual Report 4 evidence. WCAT 2013 Annual Report 4

Tribunal decisions are final and conclusive. The Act provides for the Commission’s Governance Council to direct the Tribunal to rehear an appeal should the Governance Council determine the Tribunal has not properly applied Commission policy or failed to comply with the Act/Regulations. The Tribunal may reconsider a decision on the basis of new evidence. Appeals may be dismissed for delay of proceeding where the Tribunal determines procedural deadlines have not been met.

WCAT 2013 Annual Report 5 4 NORTHWEST TERRITORIES AND NUNAVUT WORKERS’ COMPENSATION APPEALS TRIBUNAL • ANNUAL REPORT 2013

The length of time from filing to decision was an average of 131 days. Since 2008, the time for appeals has been reduced by 65%. Some of the appeal time can be attributed to regulatory requirements for such Thematters length as noticeof time of from hearing filing andto decision time for wasservice. an average The Tribunal of 131 attempts days. Since to conduct 2008, thehearings time for in appealsthe least haspossible been time, reduced while by ensuring 65%. Some the principals of the appeal of fairness time can are be applied. attributed The to Tribunal regulatory is responsible requirements for for such mattersspecific amountsas notice ofof timehearing in each and appealtime for such service. as preparing The Tribunal the Appealattempts Package, to conduct setting hearings of a hearingin the least date, andpossible decision time, writing. while ensuring Appellants the are principals responsible of fairness for the are time applied. between The receiving Tribunal the is responsibleAppeal Package for and filingspecific the amounts Certificate of oftime Readiness, in each appeal which suchis required as preparing in order the to Appealschedule Package, a hearing. setting Up to of 69% a hearing of the date, overalland decision time required writing. Appellantsfor an appeal are may responsible be contributed for the totime Appellants between failing receiving to return the Appeal required Package forms in and a timelyfiling the manner. Certificate of Readiness, which is required in order to schedule a hearing. Up to 69% of the Outcomesoverall time for required appeals for have an a remainedppeal may the be same contributed from last to Appellantsyear. The reversal failing to rate return (appeals required allowed forms or in a timelyallowed manner. in part) is 50%. Over the past six years, the reversal rate has been between 36% and 55% with Outcomesthe average for being appeals 46%. have remained the same from last year. The reversal rate (appeals allowed or Forallowed the sixthin part) year, is 50%.no judicial Over reviewthe past applications six years, the of Tribunalreversal decisionsrate has been proceeded between through 36% andthe Courts.55% with the average being 46%. Key Initiatives for the Coming Year For the sixth year, no judicial review applications of Tribunal decisions proceeded through the Courts. Key • Initiatives A review will for be undertaken the Coming Year next year to examine procedure models from other jurisdictions, which may further reduce the time for appeals to proceed. • AThe review need will to publishbe undertaken Tribunal next decisions year to must examine be weighted procedu againstre models statutory from other and privacyjurisdictions, whichrequirements. may further The reduceTribunal the will time finalize for appeals the redaction to proceed. requirements in order to allow decisions to • Thebe published. need to publish Tribunal decisions must be weighted against statutory and privacy requirements. The Tribunal will finalize the redaction requirements in order to allow decisions to be published.

Financial Operations Financial Operations Financial Operations In 2013, the Tribunal’s total expenditures were within 79% of the original authority of $471,284.

In 2013, the Tribunal’s total expenditures were within 79% of the original authority of $471,284.

TribunalTribunal Mandate Mandate and and Procedural Authorities

Tribunal Mandate and Procedural Authorities Procedural Both the Commission Authorities and the Appeals Tribunal are governed by the Workers’ Compensation Act of each Territory. The Tribunal is ordinarily not bound by Commission decisions or opinions. The Tribunal must applyBoth the Commission Commission policies and the where Appeals the Tribunal Tribunal determines are governed the bypolicy the appliesWorkers’ to Compensation the circumstances Act ofof eachan appeal.Territory. The Tribunal is ordinarily not bound by Commission decisions or opinions. The Tribunal must apply Commission policies where the Tribunal determines the policy applies to the circumstances of an appeal.The Appeals Tribunal is guided by the principles of administrative law, legislation, and court decisions. Within this framework, the Tribunal endeavors to maintain the balance between fairness and efficiency. The Appeals Tribunal is guided by the principles of administrative law, legislation, and court decisions. AppealsWithin this may framework, be heard theby documentaTribunal endeavorsry submissions, to maintain teleconference, the balance videoconference, between fairness or and in- person.efficiency. Tribunal decisions are written. The Act requires decisions to be made within 90 days of receiving all the Appealsevidence. may be heard by documentary submissions, teleconference, videoconference, or in-person. Tribunal decisions are written. The Act requires decisions to be made within 90 days of receiving all the evidence.Tribunal decisions are final and conclusive. The Act provides for the Commission’s Governance Council to direct the Tribunal to rehear an appeal should the Governance Council determine the Tribunal has not Tribunalproperly decisionsapplied Commission are final and policy conclusive. or failed The to comply Act provides with the for Act/Regulations. the Commission’s The Governance Tribunal may Council toreconsider direct the a Tribunaldecision to on rehear the basis an appeal of new shouldevidence. the AppealsGovernance may Councilbe dismissed determine for delay the Tribunal of proceeding has not properlywhere the applied Tribunal Commission determines policy procedural or failed deadlines to comply have with not the been Act/Regulations. met. The Tribunal may reconsider a decision on the basis of new evidence. Appeals may be dismissed for delay of proceeding whereWCAT the2013 Tribunal Annual determines Report procedural deadlines have not been met. 5

WCAT 2013 Annual Report 5 5 NORTHWEST TERRITORIES AND NUNAVUT WORKERS’ COMPENSATION APPEALS TRIBUNAL • ANNUAL REPORT 2013

ProceduralProcedural Framework Framework

Notice for Appeal is received

The Appeal is normally processed within 5 days ! ! ! AT requests a copy of the file from WSCC

The claims file is received from the WSCC within 7 to 30 days !

! Registrar reviews file and Appeals Package is prepared

The Appeals Package is ! prepared within 7 to 30 days !

Parties other than Appellant are ! Appeal Package and Certificate sent Certificate of Intention to of Readiness to Proceed are Participate sent to the Appellant

! ! If a party other than the appellant The Appellant is given 21 does not return the! completed ! days to return the Certificate of Intention to Certificate Participate form within 14 days, they receive no further notice in the appeal except for the final Appellant does not return Appellant returns ! decision. Certificate of Readiness Certificate of to Proceed within 21 days Readiness to Proceed! ! ! !

Appeal is not scheduled until Case is reviewed by Chair Certificate is received. and assigned to a Tribunal Member. Hearing is scheduled

The Appellant is reminded! every Hearing date is normally set 30 to 60 days of the need to ! within 5 days return the Certificate in order to set a hearing date. The Tribunal may dismiss the appeal for delay Parties informed of hearing date, ! if the Appellant does not reply. time, place

Parties are provided a minimum ! ! of 20 days notice of a hearing

Tribunal decisions are made within ! 90 days

WCAT 2013 Annual Report 6

Statistics

Please refer to the Appendix for specific data.

Two Section 63 applications were received in 2013. One was withdrawnNORTHWEST and TERRITORIES the other had AND not NUNAVUTbeen WORKERS’ COMPENSATION APPEALS TRIBUNAL • ANNUAL REPORT 2013 concluded. Statistics Please refer to the Appendix for specific data. Statistics

Two Section 63 applications were received in 2013. One was withdrawn and the other had not been Statistics concluded.

Please refer to the Appendix for specific data. StatisticsPlease refer to the Appendix for specific data.

Appeals and Requests for TwoPlease Section refer to63 the applicati Appendixons werefor specific received data. in 2013. One was withdrawn and the other had not been Reviews Received Two Section 63 applications were received in 2013. One was withdrawn and the other had not been concluded.

Two Section 63 applications were received in 2013. One was withdrawn and the other had not been This year saw an increase in Appeals and Requests for concluded. the number of appeals over Reviews Received last year and has been the greatest number in the This year saw an increase in

the number of appeals over past six years. Appeals and Requests for Reviews Received last year and has been the Reviews Received greatest number in the Appeals and Requests for past six years. This year saw an increase in ThisReviews year saw Received an increase in the number of appeals over Appeals Received the number of appeals over last year and has been the lastThis year year and saw has an beenincrease the in greatest number in the greatestthe number number of appeals in the over past six years. pastlast yearsix years. and has been the

greatest number in the

past six years.

Issues Appealed

Cons istent with previous years,

claims issues continue to form Issues Appealed

the majority of appeals, followed Issues Appealed

by pension issues. Consistent with previous years,

claims issues continue to form

the majority of appeals, followed Issues Issues Appealed Appealed by pension issues.

ConsIssues istentistent Appealedwithwith previousprevious years,years,

claims issues continue to form

thetheCons majoritymajorityistent with ofof appeals,appeals, previous followedfollowed years,

byclaims pension issues issues. continue to form

the majority of appeals, followed WCAT 2013 Annual Report 7 by pension issues.

WCAT 2013 Annual Report 7

Types of Hearings

Types of Hearings Types of Hearings TheWCAT majority 2013 ofAnnual hearings Report were 7 WCAT 2013 Annual Report 7 documentary. For the second The majority of hearings were year, no in-person hearings WCATdocumentary. 2013 Annual For the Report second 7 were conducted. year, no in-person hearings

were conducted.

Decisions Issued /

OuDecisions tcomes Issued /

Outcomes

Half of the Tribunal decisions

upheld the WSCC decision Half of the Tribunal decisions under appeal while the upheld the WSCC decision remaining Tribunal decisions under appeal while the overturned or varied the remaining Tribunal decisions WSCC decision under appeal. overturned or varied the

WSCC decision under appeal.

Appeals by Territory

Appeals by Territory By far the majority of appeals

resulted from NWT claims. By far the majority of appeals Apart from 2012, this has resulted from NWT claims. been the norm. Apart from 2012, this has

been the norm.

WCAT 2013 Annual Report 8 WCAT 2013 Annual Report 8

Types of Hearings

The majority of hearings were

documentary. For the second The majority of hearings were year, no in-person hearings Types of Hearings documentary. For the second were conducted. year, no in-person hearings Types of Hearings were conducted. The majority of hearings were

documentary. For the second The majority of hearings were year, no in-person hearings documentary. For the second were conducted. year, no in-person hearings

were conducted.

NORTHWEST TERRITORIES AND NUNAVUT WORKERS’ COMPENSATION APPEALS TRIBUNAL • ANNUAL REPORT 2013

Decisions Issued /

Decisions Issued / Outcomes

Ou tcomes

Half of the Tribunal decisions

Half of the Tribunal decisions upheld theDecisions WSCC Issued decision / Decisions Issued /

upheld the WSCC decision under appealOutcomes while the Outcomes Decisions Issued / under appeal while the remaining Tribunal decisions Outcomes remaining Tribunal decisions overturned or varied the Half of the Tribunal decisions

overturned or varied the WSCC decision under appeal. upheld the WSCC decision Half of the Tribunal decisions WSCC decision under appeal. under appeal while the upheld the WSCC decision remaining Tribunal decisions under appeal while the overturned or varied the remaining Tribunal decisions WSCC decision under appeal. overturned or varied the

WSCC decision under appeal.

Appeals by Territory

Appeals by Territory By far the majority of appeals

resulted from NWT claims. By far the majority of appeals resulted from NWT claims. Apart from 2012, this has Appeals by Territory

Apart from 2012, this has been the norm. Appeals by Territory Appeals by Territory been the norm. By far the majority of appeals

resulted from NWT claims. By far the majority of appeals Apart from 2012, this has resulted from NWT claims. been the norm. Apart from 2012, this has been the norm. WCAT 2013 Annual Report 8

WCAT 2013 Annual Report 8

Types of Appellant

2013 was historically consistent in that the Types of Types of Appellant majority of appeals were Appellant filed by Workers. 2013 was historically consistent in that the majority of appeals were filed by Workers.

Time from Filing to Decision

The past six years has Time from Filing to seen a steady reduction in the time needed to Decision complete appeals. The past six years has Note: this time includes that seen a steady reduction in attributed to the activities of the time needed to Appellants and WSCC, as complete appeals. well as the Tribunal. Note: this time includes that attributed to the activities of Appellants and WSCC, as well as the Tribunal.

WCAT 2013 Annual Report 9

Types of Appellant Types of Appellant

2013 was historically 2013 was historically consistent2013 was in historically that the consistent in that the majorityconsistent of appeals in that the were majority of appeals were filedmajority by Workers. of appeals were filed by Workers. filed by Workers.

NORTHWEST TERRITORIES AND NUNAVUT WORKERS’ COMPENSATION APPEALS TRIBUNAL • ANNUAL REPORT 2013

Time from Filing to Time from Filing to Decision Decision Decision

The past six years has The past six years has Average Days seen The apast steady six years reduction has in seen a steady reduction in Filing to theseen time a steadyneeded reduction to in the time needed to Decision completethe time appneededeals. to complete appeals. complete appeals.

Note: this time includes that Note: this time includes that attributedNote: this to time the activitiesincludes thatof attributed to the activities of Appellantsattributed andto the WSCC, activities as of Appellants and WSCC, as wellAppellants as the Tribunal and WSCC,. as well as the Tribunal.

Decisions of 2013

Appeals Tribunal hearings are conducted in camera. Because Tribunal decisions contain personal

Appealsinformation Tribunal such ashearings medical are and conducted financial ininformation, camera. Because they are Tribunal not made decisi public.ons The contain Tribunal personal is finalizing theWCAT procedural 2013 Annual and practice Report directives to allow for the publication of redacted decisions. The redacted9 informationWCAT 2013 such Annual as medical Report and financial information, they are not made public. The Tribunal is finalizing9 thedecisionsWCAT procedural 2013would andAnnual contain practice Report no identifyingdirectives toinformation allow for theabout publication the Worker of redacted or Employer. decisions. Redacted The versionsredacted9 of decisions wouldwill be containavailable no in identifying 2014 on the information Canadian about Legal the Information Worker or Institute’s Employer. free Redacted public website. versions of decisions will be available in 2014 on the Canadian Legal Information Institute’s free public website. The following are summaries of the Tribunal’s decisions made in 2013 by category. The following are summaries of the Tribunal’s decisions made in 2013 by category. Noteworthy Decisions Noteworthy Decisions Decision 11-009R Rehearing – Impairment v. Disability 1 WSCCDecision decision 11-009R reversed Rehearing – Impairment v. Disability 1 WorkerWSCC decisionappeal – Viareversed Written Submissions 1 TheWorker Employer appeal did – Via not Written participate Submissions The WSCCEmployer did did participate not participate The WSCC did participate The Appeals Tribunal originally heard this appeal in 2012. As provided for by section 131(1) of the TheWorkers’ Appeals Compensation Tribunal originally Act, the heard WSCC this Governance appeal in 2012. Council As provideddirected thefor byAppeals section Tribunal 131(1) toof rehearthe this appeal.Workers’ Compensation Act, the WSCC Governance Council directed the Appeals Tribunal to rehear this appeal. The Appeals Tribunal, in its original decision of this matter (11-009), considered the WSCC’s decision to Types of Thereduce Appeals the Worker’s Tribunal, pension in its original award decisionby 50% dueof this to prematter-existing (11-009) degenerative, considered changes. the WSC TheC’s Appeals decision to Appellant Tribunalreduce the found Worker’s there pensionto be a distinction award by between50% due “disability”to pre-existing and “impairment”.degenerative changes.While section The 42(1)Appeals of the ActTribunal states found “disability” there tois beto bea distinction determined between using an “disability” impairment and rating “impairment”. guide, the While WSCC section determined 42(1) of the the Worker’sAct states pension “disability” based is to upon be deter impairmentmined using rather an than impairment disability. rating The Appealsguide, the Tribunal WSCC considereddetermined the CommissionWorker’s pension Policies based 03.12, upon 06.03, impairment and its ratherImpairment than disability.Rating Guide. The Appeals Tribunal considered UponCommission being directed Policies to 03.12, rehear 06.03, the matter, and its theImpairment Appeals RatingTribunal Guide. struck a panel of three and reheard the appeal.Upon being The directedPanel considered to rehear thetwo matter,issues: the Appeals Tribunal struck a panel of three and reheard the appeal.1. Is The there Panel a difference considered between two issues: “impairment” and “disability” and its relevance; and 2.1. DiIs dthere the Appellanta difference Worker between have “impairment” a pre-existing and disability. “disability” and its relevance; and 2. Did the Appellant Worker have a pre-existing disability. The Panel found “disability” and “impairment” to be distinct and the WSCC used these two words Theinterchangeably Panel found in “disability” its policies, and correspondence, “impairment” to andbe distinct even its and submissions the WSCC to used the Appealsthese two Tribunal. words The interchangeablyAct provides for pensionsin its policies, to be correspondence, determined based and upon even “disabi its submissionslity”, however to thethe AppealsWSCC’s Tribunal.pension The 9 Actcalculations provides used for pensions only “impairment”. to be determined based upon “disability”, however the WSCC’s pension Thecalculations Panel also used found only the “impairment”. Worker may have had a pre-existing impairment but did not have a pre-existing disability.The Panel also found the Worker may have had a pre-existing impairment but did not have a pre-existing disability.The WSCC decision was again reversed. The WSCC decision was again reversed.

Decision 12-006 Entitlement – Test for Causation DecisionWSCC decision 12-006 reversedEntitlement – Test for Causation 2 WSCCWorker decisionappeal – Documentaryreversed 2 WorkerThe Employer appeal did – Documentary not participate The EmployerWSCC did did not not participate participate The WSCC did not participate

WCAT 2013 Annual Report 10 WCAT 2013 Annual Report 10

Decisions of 2013 Decisions of 2013

Appeals Tribunal hearings are conducted in camera. Because Tribunal decisions contain personal information such as medical and financial information, they are not made public. The Tribunal is finalizing Appealsthe procedural Tribunal and hearings practice are directives conducted to allow in camera. for the Because publication Tribunal of redacted decisi onsdecisions. contain The personal redacted informationdecisions would such containas medical no identifying and financial information information, about they the are Worker not made or Employer. public. The Redacted Tribunal versions is finalizing of thedecisions procedural will be and available practice in directives 2014 on theto allow Canadian for the Legal publication Information of redacted Institute’s decisions. free public The website. redacted decisions would contain no identifying information about the Worker or Employer. Redacted versions of decisionsThe following will beare available summaries in 2014 of the on Tribunal’s the Canadian decisions Legal made Information in 2013 Institute’s by category. free public website.

TheNoteworthy following are Decisionssummaries of the Tribunal’s decisions made in 2013 by category.

Noteworthy Decisions Decision 11-009R Rehearing – Impairment v. Disability WSCC decision reversed 1 DecisionWorker appeal 11-009R – Via WrittenRehearing Submissions – Impairment v. Disability 1 WSCCThe Employer decision did reversed not participate WorkerThe WSCC appeal did –participate Via Written Submissions The Employer did not participate The AppealsThe WSCC Tribunal did originally participate heard this appeal in 2012. As provided for by section 131(1) of the Workers’ Compensation Act, the WSCC Governance Council directed the Appeals Tribunal to rehear this Theappeal. Appeals Tribunal originally heard this appeal in 2012. As provided for by section 131(1) of the Workers’ Compensation Act, the WSCC Governance Council directed the Appeals Tribunal to rehear this appeal.The Appeals Tribunal, in its original decision of this matter (11-009), considered the WSCC’s decision to reduce the Worker’s pension award by 50% due to pre-existing degenerative changes. The Appeals TheTribunal Appeals found Tribunal, there to in be its a originaldistinction decision between of this “disability” matter (11 and-009) “impairment”., considered While the sectionWSCC’s 42(1) decision of the to reduceAct states the “disability”Worker’s pension is to be awarddetermined by 50% using due an to impairment pre-existing rating degenerative guide, the changes. WSCC determinedThe Appeals the TribunalWorker’s found pension there based to be upon a distinction impairment between rather “disability” than disability. and “impairment”.The Appeals TribunalWhile section considered 42(1) of the NORTHWESTActCommission TERRITORIES states “disability” Policies AND is03.12,NUNAVUT to be 06.03, deter WORKERS’mined and its using Impairment COMPENSATION an impairment Rating APPEALS Guide.rating guide, TRIBUNAL the WSCC • ANNUAL determined REPORT the 2013 Worker’sUpon being pension directed based to rehear upon impairmentthe matter, therather Appeals than disability. Tribunal struckThe Appeals a panel Tribunal of three consideredand reheard the Commissionappeal. The PanelPolicies considered 03.12, 06.03, two issues:and its Impairment Rating Guide. Upon1. beingIs there directed a difference to rehear between the matter, “impairment” the Appeals and Tribunal“disability” struck and ait spanel relevance; of three and and reheard the appeal.2. DiThed the Panel Appellant considered Worker two have issues: a pre -existing disability. 1. Is there a difference between “impairment” and “disability” and its relevance; and The2. Panel Did foundthe Appellant “disability” Worker and “impairment”have a pre-existing to be distinct disability. and the WSCC used these two words interchangeably in its policies, correspondence, and even its submissions to the Appeals Tribunal. The TheAct providesPanel found for pensions “disability” to and be determined“impairment” based to be upon distinct “disabi and lity”,the WSCChowever used the theseWSCC’s two pension words interchangeablycalculations used in only its policies, “impairment”. correspondence, and even its submissions to the Appeals Tribunal. The ActThe provides Panel also for foundpensions the Workerto be determined may have based had a uponpre-existing “disabi lity”,impairment however but the did WSCC’s not have pension a pre-existing calculationsdisability. used only “impairment”. The PanelWSCC also decision found was the Workeragain reversed. may have had a pre-existing impairment but did not have a pre-existing disability. The WSCC decision was again reversed. Decision 12-006 Entitlement – Test for Causation WSCC decision reversed 2 DecisionWorker appeal 12-006 – DocumentaryEntitlement – Test for Causation 2 WSCCThe Employer decision did reversed not participate 2 WorkerThe WSCC appeal did –not Documentary participate The Employer did not participate The WSCC did not participate WCAT 2013 Annual Report 10 The Appellant Worker injured his back when he fell off a ladder. His claim was denied. WCAT 2013 Annual Report 10 The issue before the Appeal Tribunal was: Is the Appellant entitled to compensation for a personal injury arising out of and during the course of employment? Section 13(2) of the Workers’ Compensation Act (“the Act”) directs when a disease appears to have more than one cause, the disease is compensable if the cause(s) that arose out of and during the course of employment contributed in a material way. The Act defines disease as: "disease" means an unhealthy condition of the body or mind; "disease" means an unhealthy condition of the body or mind; Commission Policy 03.03 elaborates by stating that employment circumstances must make “a significant contribution to the occurrence of the injury” and “the link should be direct and/or objectively verifiable”. The Appeals Tribunal found the use of the phrase “contributed in a material way” in section 13(2) of the Act establishes the causation test as “materially contributed” rather than “but for”. Cases considered were the Supreme Court of Canada case of Athey v. Leonati, [1996] 3 S.C.R. 458 in which the Court stated: “ A contributing factor is material if it falls outside the de minimis range.” Other cases also considered were: Workers’ Compensation Appeal Board v. Penney (1980), 38 N.S.R. (2d) 623 (S.C.A.D.), Ferneyhough v. Workers’ Compensation Board (N.S.) et al., 2000 NSCA 121(CanLII) W.S.I.A.T. Decision No. 549/95I2 (1998), CanLII 18125 Causation can be established if the ‘cause’ was more than a negligible contributing factor to the disease.

Other Decisions

Decision 13-004 Recovery of Overpayment Both WSCC decisions were upheld 3 Worker Appeal - Via Teleconference The Employer did not participate The WSCC did not participate

Two Review Committee decisions were addressed at this hearing. The Appellant was injured when he slipped on ice-covered stairs. Compensation benefits were paid on the basis the Appellant was a permanent, full-time employee. Some time later, the Commission adjusted the Appellant’s entitlement calculations. The Commission changed the status of the Appellant’s entitlement criterion from “permanent, full-time” to “seasonal, full time”. This change resulted in the Commission’s determination the Appellant received monetary compensation benefits in excess of his entitlement. The Commission sought the repayment of benefits from the Appellant in excess of $48,000. The issues before the Appeals Tribunal were: 10 Was the Commission’s decision to recover an overpayment made to the Appellant appropriate? And, Was the Appellant a permanent or non-permanent employee of the Employer? It was determined several errors were made by the Commission, the Employer, and the Appellant during the management of this claim. The Employer, a large national construction company, did not inform the Appellant of the exact terms of employment. The Commission failed to determine the terms of the Appellant’s employment at the commencement of this claim. The Commission also erred at least twice in the calculations of the alleged over-payment. The Act provides for no remedy where the Commission makes such errors. The Appellant was found to have been employed on a non-permanent, full time basis. The Commission’s ability to recover overpayments is discretionary and the Commission acted within its authority under section 142(3) of the Act and Commission Policy 04.01.

WCAT 2013 Annual Report 11 The Appellant Worker injured his back when he fell off a ladder. His claim was denied. The issueAppellant before Worker the Appeal injured Tribuna his backl was: when he fell off a ladder. His claim was denied. IsThe the issue Appellant before entitled the Appeal to compensation Tribunal was: for a personal injury arising out of and during the course of Isemployment? the Appellant entitled to compensation for a personal injury arising out of and during the course of employment?Section 13(2) of the Workers’ Compensation Act (“the Act”) directs when a disease appears to have Sectionmore than 13(2) one of cause, the Workers’ the disease Compensation is compensable Act (“the if the Act”) cause(s) directs that when arose a disease out of andappears during to thehave morecourse than of employment one cause, thecontributed disease inis compensablea material way if. the cause(s) that arose out of and during the courseThe Act of defines employment disease contributed as: "disease" in a means material an wayunhealthy. condition of the body or mind; "disease" means Thean unhealthy Act defines condition disease of as:the "disease"body or mind; means an unhealthy condition of the body or mind; "disease" means anCommission unhealthy Policycondition 03.03 of the elaborates body or mind;by stating that employment circumstances must make “a significant Commissioncontribution to Policy the occurrence 03.03 elaborates of the injuryby stating” and that“the employmentlink should be circumstances direct and/or mustobjectively make verifiable“a significant”. contributionThe Appeals to Tribunal the occurrence found the of use the ofinjury the” phrase and “the “contributed link should in be a directmaterial and/or way” objectively in section verifiable13(2) of the”. ActThe establishes Appeals Tribunal the causation found the test use as of “materially the phrase contributed” “contributed rather in a materialthan “but way” for”. inCases section considered 13(2) of thewere theAct Supremeestablishes Court the causationof Canada test case as of “materially Athey v. Leonati contributed”, [1996] rather 3 S.C.R. than 458“but infor”. whic Casesh the c Courtonsidered stated: were “the A contributingSupreme Court factor of Canada is material case ifof itAthey falls v.outside Leonati the, [1996] de minimis 3 S.C.R. range.” 458 in Otherwhich ctheases Court also stated: considered“ A contributing were: factor is material if it falls outside the de minimis range.” Other cases also consideredWorkers’ Compensation were: Appeal Board v. Penney (1980), 38 N.S.R. (2d) 623 (S.C.A.D.), Ferneyhough v. Workers’ Compensation Board (N.S.) et al., 2000 NSCA 121(CanLII) NORTHWESTWorkers’ TERRITORIES Compensation AND NUNAVUT Appeal BoardWORKERS’ v. Penney COMPENSATION (1980), 38 APPEALSN.S.R. (2d) TRIBUNAL 623 (S.C.A.D.), • ANNUAL REPORT 2013 W.S.I.A.T.Ferneyhough Decision v. Workers’ No. 549/95I2 Compensation (1998), BoardCanLII (N.S.) 18125 et al., 2000 NSCA 121(CanLII) W.S.I.A.T. Causation Decisioncan be established No. 549/95I2 if the (1998), ‘cause’ CanLII was more18125 than a negligible contributing factor to the disease.Causation can be established if the ‘cause’ was more than a negligible contributing factor to the disease. Other Decisions Other Decisions Decision 13-004 Recovery of Overpayment BothDecision WSCC 13- decisions004 Recovery were upheld of Ove rpayment 33 BothWorker WSCC Appeal decisions - Via Teleconference were upheld 3 WorkerThe Employer Appeal did - Via not Teleconference participate The EmployerWSCC did did not not participate participate The WSCC did not participate Two Review Committee decisions were addressed at this hearing. The Appellant was injured when he Twoslipped Review on ice Committee-covered stairs. decisions Compensation were addressed benefits at werethis hearing. paid on Thethe basisAppellant the Appellant was injured was when a he permanent,slipped on ice full-cover-time edemployee. stairs. Compensation Some time later, benefits the Commission were paid on adjusted the basis the the Appellant’s Appellant entitlementwas a calculations.permanent, full The-time Commission employee. changed Some time the later,status the of Commissionthe Appellant’s adjusted entitlement the Appellant’s criterion from entitlement calculations.“permanent, fullThe-time” Commission to “seasonal, changed full time”. the status This ofchange the Appellant’s resulted in entitlement the Commission’s criterion determination from “permanent,the Appellant full received-time” to monetary “seasonal, compensation full time”. This benefits change in resultedexcess of in histhe entitlement. Commission’s The determination Commission thesought Appellant the repayment received ofmonetary benefits compensationfrom the Appellant benefits in excess in excess of $48,000. of his entitlement. The Commission soughtThe issues the repaymentbefore the Appealsof benefits Tribunal from t hewere: Appellant in excess of $48,000. TheWas issuesthe Commission’s before the Appeals decision Tribunal to recover were: an overpayment made to the Appellant appropriate? And, Was the Commission’sAppellant a permanent decision orto nonrecover-permanent an overpayment employee made of the to Employer? the Appellant appropriate? And, WasIt wa sthe determined Appellant severala permanent errors or were non made-permanent by the employeeCommission of the, the Employer? Employer, and the Appellant during Itthe wa managements determined of several this claim. errors The were Employer, made by a thelarge Commission national construction, the Employer, company, and the did Appellant not inform during the Appellantthe management of the exact of this term claim.s of Theemployment. Employer, The a large Commission national constructionfailed to determine company, the termdid nots of inform the the Appellant’sAppellant of employment the exact term at sthe of commencementemployment. The of Commission this claim. The failed Commission to determine also the erred term ats leastof the twice in theAppellant’s calculations employment of the alleged at the overcommencement-payment. The of Actthis providesclaim. The for Commission no remedy where also erred the Commission at least twice in makesthe calculations such errors. of the alleged over-payment. The Act provides for no remedy where the Commission Themakes Appellant such errors. was found to have been employed on a non-permanent, full time basis. The Commission’s abilityThe Appellant to recover was overpayments found to have is beendiscretionary employed and on the a non Commission-permanent, acted full timewithin basis. its authority The Commission’s under abilitysection to 142(3) recover of overpaymentsthe Act and Commission is discretionary Policy and 04.01 the. Commission acted within its authority under section 142(3) of the Act and Commission Policy 04.01. WCAT 2013 Annual Report 11 WCAT 2013 Annual Report 11

Decision 12-001 Modified Duties 4 WSCC decision was upheld 4 Employer Appeal - Documentary The Worker did not participate The WSCC did not participate

The Appellant Employer did not inform the Appeals Tribunal of its readiness to proceed with the hearing for 12 months after receiving the Appeals Package. The Worker injured his finger while employed at a remote camp. He required medical attention and was transported to Yellowknife. While in Yellowknife, the Worker was offered modified duties by the Employer. The Worker declined and returned to his home in southern Canada. He required additional medical care and was cleared for work about two weeks later. The issue before the Appeal Tribunal: Was the Worker entitled to Temporary Total Disability benefits in relation to his injury in light of declining modified duties offered by the Employer?

The Employer offered the Worker “modified duties” consisting of watching training and safety videos at its local office. It was found Commission Policy 04.14 does not address short-term modified duties. Using the Policy as a framework, any modified duties must be “meaningful” and not interfere with recuperation.

Decision 13-003 Harvester - Entitlement 5 WSCC decision reversed Worker appeal – Documentary The Employer did not participate 11 The WSCC did not participate

The Worker, was a Harvester who suffered a heart attack while tending to his trap line. The Worker met the criteria under Section 5 (1) of the Act and was deemed to be a worker within the meaning of the Act. The issue before the Appeals Tribunal was: Whether the Worker at the time of his death was working as a harvester within the meaning of the Act and Policies 03.03 and 03.05. The Worker was a traditional harvester and the issue under Policy 3.03 was whether the death of the Worker occurred at a time and place consistent with his employment. Policy 03.05 which deals with claims of harvesters, contemplates claims arising outside of actual trapping as it specifically includes travel to and from the area where the hunting, fishing, trapping or gathering are done. The Appeals Tribunal found the Worker’s location and circumstances at the time of his death did not remove him from coverage.

Decision 12-002 Suspension of Benefits 6 WSCC decision reversed in part Worker appeal – Via Teleconference The Employer did not participate The WSCC did not participate

The Appellant Worker was injured when machinery struck the truck he was in. The Worker later developed a pain disorder. The Worker’s health care provider asked WSCC for further investigations into the Worker’s continuing neck pain. The WSCC then suspended the Worker’s treatment and monetary benefits. The issues before the Tribunal were: 1) TTD compensation: WCAT 2013 Annual Report 12

Decision 12-001 Modified Duties WSCC decision was upheld 4 EmployerDecision 12Appeal-001 - DocumentaryModified Duties 4 TheWSCC Worker decision did not was participate upheld TheEmployer WSCC Appeal did not - Documentaryparticipate The Worker did not participate The AppellantThe WSCC Employer did not did participate not inform the Appeals Tribunal of its readiness to proceed with the hearing for 12 months after receiving the Appeals Package. The WorkerAppellant injured Employer his finger did not while inform employed the Appeals at a remote Tribunal camp. of its He readiness required to medical proceed attention with the and hearing was ftransportedor 12 months to afterYellowknife. receiving While the Appealsin Yellowknife, Package. the Worker was offered modified duties by the Employer.The Worker The injured Worker his declinedfinger while and employed returned toat hisa remote home camp.in southern He required Canada. medical He required attention additional and was medicaltransported care to and Yellowknife. was cleared While for inwork Yellowknife, about two the weeks Worker later. was offered modified duties by the TheEmployer. issue beforeThe Worker the Appeal declined Tribu andnal returned: to his home in southern Canada. He required additional NORTHWESTmedical TERRITORIES care and AND was NUNAVUT cleared for WORKERS’ work about COMPENSATION two weeks later. APPEALS TRIBUNAL • ANNUAL REPORT 2013 WasThe issuethe Worker before entitled the Appeal to Temporary Tribunal: Total Disability benefits in relation to his injury in light of declining modified duties offered by the Employer? Was the Worker entitled to Temporary Total Disability benefits in relation to his injury in light of declining Themodified Employer duties offered offered the by Workerthe Employer? “modified duties” consisting of watching training and safety videos at its local office. It was found Commission Policy 04.14 does not address short-term modified duties. Using Thethe Policy Employer as a offered framework, the Worker any modified “modified duties duties” must consisting be “meaningful” of watching and nottraining interfere and withsafety recuperation. videos at its local office. It was found Commission Policy 04.14 does not address short-term modified duties. Using the PolicyDecision as a framework, 13-003 anyHarvester modified duties- Entitlement must be “meaningful” and not interfere with recuperation. 55 WSCC decision reversed DecisionWorker appeal 13-003 – DocumentaryHarvester - Entitlement 5 TheWSCC Employer decision did reversed not participate TheWorker WSCC appeal did –not Documentary participate The Employer did not participate The WSCC did not participate The Worker, was a Harvester who suffered a heart attack while tending to his trap line. The Worker met the criteria under Section 5 (1) of the Act and was deemed to be a worker within the meaning of the Act. The issueWorker, before was thea Harvester Appeals whoTribunal suffered was: a heart attack while tending to his trap line. The Worker met the criteria under Section 5 (1) of the Act and was deemed to be a worker within the meaning of the Act. WhetherThe issue the before Worker the Appealsat the time Tribunal of his was: death was working as a harvester within the meaning of the Act and Policies 03.03 and 03.05. Whether the Worker at the time of his death was working as a harvester within the meaning of the Act andThe PoliciesWorker was03.03 a traditionaland 03.05. harvester and the issue under Policy 3.03 was whether the death of the Worker occurred at a time and place consistent with his employment. Policy 03.05 which deals with Theclaims Worker of harvesters was a traditional, contemplate harvesters claims and arising the issue outside under of Policyactual 3.03trapping was aswhether it specifically the death includes of the travelWorker to occurred and from at the a timearea andwhere place the consistenthunting, fishing, with his trapping employment. or gathering Policy are 03.05 done. which The deals Appeals with clTribunalaims of found harvesters the Worker’s, contemplate locations claims and circumstances arising outside at of the actual time trappingof his death as it did specifically not remove includes him from travelcoverage. to and from the area where the hunting, fishing, trapping or gathering are done. The Appeals Tribunal found the Worker’s location and circumstances at the time of his death did not remove him from coverage. Decision 12-002 Suspension of Benefits 6 WSCC decision reversed in part DecisionWorker ap 12peal-002 – Via TeleconferenceSuspension of Benefits 66 WSCCThe Employer decision did reversed not participate in part WorkerThe WSCC appeal did –not Via participate Teleconference The Employer did not participate The Appellant The WSCC Worker did wasnot participateinjured when machinery struck the truck he was in. The Worker later developed a pain disorder. The Worker’s health care provider asked WSCC for further investigations into Thethe Worker’s Appellant continuing Worker was neck injured pain. when The WSCC machinery then struck suspended the truck the heWorker’s was in. treatment The Worker and later monetary developedbenefits. a pain disorder. The Worker’s health care provider asked WSCC for further investigations into theThe Worker’s issues before continuing the Tribunal neck pain. were: The WSCC then suspended the Worker’s treatment and monetary benefits. The1) issues TTD before compensation: the Tribunal were: WCAT1) 2013TTD compensation:Annual Report 12 WCAT 2013a. AnnualWas it Report appropriate to refuse to authorize an MRI? 12 b. Was it appropriate to suspend the Appellant’s TTD compensation? 2) Calculation of TTD compensation: a. Was the Appellant’s compensation calculated correctly?

The Appeals Tribunal found the request for an MRI should have been granted, as it fell squarely within the provisions of Commission Policy 04.09. Also noted was the failure to authorize the test likely did prolong the worker’s treatment for his pain disorder. The Commission’s decision on this issue was reversed. At some point in the management of this claim, the WSCC focused only on the physical aspect of the Worker’s condition, with no acknowledgement that he was being treated for a pain disorder. This action was found to be inconsistent with the WSCC policy on Claims Management, which states, “In all cases, the WSCC makes all possible efforts to consult with the worker’s treating health care providers to clarify the diagnosis, treatment plan and recovery period…” . The termination of benefits and lack of communication were inconsistent with the Worker’s doctors’ assessments and the earlier recommendations of a Medical Advisor who each felt “a strong psychological intervention approach in one final attempt to reverse the disorder” was the best treatment for the Worker. The Commission’s decision to suspend benefits was reversed. On the issue of the Worker’s benefit calculations,12 the Appeals Tribunal found the benefits had been properly calculated.

Decision 11-012 Termination of Benefits 7 WSCC decision was confirmed Worker appeal – Via Teleconference The Employer did not participate The WSCC did not participate

The Appellant Worker suffered lower back pain while unloading an appliance. The Worker was diagnosed with acute low back pain. There was a history of chronic back pain. The WSCC arranged for the Worker to be seen by an orthopedic specialist. The Worker did not attend the medical appointment because he was going on vacation despite his painful back. The WSCC terminated the Worker’s benefits in keeping with Commission Policy 04.01 which requires an injured Worker to “…cooperate fully in their recovery by taking measures to minimize their disability and enhance recovery, by cooperating with prescribed medical treatment…”. This requirement was found to be reasonable in assisting claimants to return to work in a safe and timely manner. The WSCC’s decision was upheld.

Decision 13-002 Termination of Benefits WSCC decision was confirmed 8 Worker appeal – Documentary The Employer did not participate The WSCC did not participate

The Appellant Worker suffered a lumbar strain in the workplace. The Worker continued to suffer pain after the estimated 2 to 6 week recovery period. Benefits were terminated as there was no evidence to show the Worker was unable to return to his pre-incident duties. The Worker had degenerative disc disease that was a pre-existing condition. The Appeals Tribunal found the WSCC applied its Policy 03.12 correctly. There was no evidence, despite several diagnostic tests, to show the Worker’s continuing symptoms were other than complications from the Worker’s pre-existing condition. WCAT 2013 Annual Report 13 a. Was it appropriate to refuse to authorize an MRI?

a.b. WasWas it it appropriate appropriate to to refuse suspend to authorize the Appellant’s an MRI? TTD compensation? 2) Calculation of TTD compensation: b.a. Was it appropriappropriateate to suspendrefuse to theauthorize Appellant’s an MRI? TTD compensation? a. Was the Appellant’s compensation calculated correctly? 2) Calculationb. Was of it appropriTTD compensation:ate to suspend the Appellant’s TTD compensation?

2) Calculationa. Was of the TTD Appellant’s compensation: compensation calculated correctly? The Appeals Tribunal found the request for an MRI should have been granted, as it fell squarely within the provisioa.ns Wasof Commission the Appellant’s Policy compensation 04.09. Also noted calculated was the correctly? failure to authorize the test likely did Theprolong Appeals the worker’sTribunal treatmentfound the requestfor his pain for andisorder. MRI should The Commission’s have been granted, decision as onit fell this squarely issue was within NORTHWEST TERRITORIES AND NUNAVUT WORKERS’ COMPENSATION APPEALS TRIBUNAL • ANNUAL REPORT 2013 thereversed. provisio ns of Commission Policy 04.09. Also noted was the failure to authorize the test likely did prolongThe Appeals the worker’s Tribunal treatment found the for request his pain for disorder. an MRI should The Commission’s have been granted, decision as on it thisfell squarelyissue was within reversed.theAt provisiosome pointns of in Commission the management Policy of 04.09. this claim, Also thenoted WSCC was thefocused failure only to authorize on the physical the test aspect likely didof the prolongWorker’s the condition, worker’s withtreatment no acknowledgement for his pain disorder. that heThe was Commission’s being treated decision for a pain on thisdisorder. issue Thiswas action reversed.Atwas some found point to inbe the inconsistent management with ofthe this WSCC claim, policy the WSCC on Claims focused Management, only on the which physical states, aspect “In allof cases,the Worker’sthe WSCC condition, makes allwith possible no acknowledgement efforts to consult that with he the was worker’s being treated treating for health a pain care disorder. providers This to action clarify wasAtthe some founddiagnosis, point to be in treatment inconsistentthe management plan with and the of recovery thisWSCC claim, period…”policy the WSCCon .Claims The f ocusedtermination Management, only ofon benefits the which physical states,and lackaspect “In of all of cases, the theWorker’scommunication WSCC condition, makes were all with possible inconsi no acknowledgementstent efforts with to theconsult Worker’s that with he the doctors’ was worker’s being assess treatedtreatingment for healths anda pain thecare disorder. earlier providers This to actionclarify thewasrecomme diagnosis, found ndatto be treatmentions inconsistent of a Medical plan withand Advisor therecovery WSCC who period…” policyeach felton . The Claims“a strong termination Management, psychological of benefits which intervention and states, lack “ ofInapproach all cases, in communicationtheone WSCC final attempt makes were toall reverseinconsipossiblestent the efforts disorder with to the consult” Worker’swas thewith best doctors’the treatmentworker’s assess treating forment the s Worker.health and the care The earlier providers Commission’s to clarify recommethedecision diagnosis, ndatto suspendions treatment of abenefits Medical plan andwas Advisor recovery reversed. who period…” each felt . “Thea strong termination psychological of benefits intervention and lack approach of in onecommunication final attempt were to reverse inconsi thestent disorder with the” was Worker’s the best doctors’ treatment assess for mentthe Worker.s and the The earlier Commission’s decisionrecommeOn the issuetondat suspend ionsof the of benefitsWorker’sa Medical was benefit Advisor reversed. calculations, who each felt the “Appealsa strong Tribunalpsychological found interventionthe benefits approachhad been in oneproperly final attempt calculated. to reverse the disorder” was the best treatment for the Worker. The Commission’s decisionOn the issue to suspend of the Worker’s benefits wasbenefit reversed. calculations, the Appeals Tribunal found the benefits had been properly calculated. On the issue of the Worker’s benefit calculations, the Appeals Tribunal found the benefits had been Decision 11-012 Termination of Benefits properly7 WSCCcalculated. decision was confirmed DecisionWorker appeal 11-012 – Via TerminationTeleconference of Benefits 77 WSCCThe Employer decision did was not confirmed participate WorkerDecisionThe WSCC appeal 11 -did012 – not Via participateTeleconferenceTermination of Benefits 7 TheWSCC Employer decision did was not participateconfirmed The Appellant TheWorker WSCC appealWorker did – notsuffered Via participate Teleconference lower back pain while unloading an appliance. The Worker was diagnosed The Employerwith acute did low not back participate pain. There was a history of chronic back pain. The WSCC arranged for Thethe AppellantWorker The WSCC to Worker be seen did sufferednot by participatean orthopedic lower back specialist. pain while The unloading Worker andid appliance. not attend The the Workermedical wasappointment diagnosedbecause he with was acute going low on back vacation pain. despiteThere was his painfula history back. of chronic The WSCC back painterminated. The WSCC the Worker’s arranged benefits for theThein keepingWorker Appellant towith beWorker Commission seen sufferedby an orthopedic Policy lower 04.01 back specialist. whichpain while requires The unloading Worker an injured didan notappliance. Worker attend to theThe “… medical cooperateWorker appointmentwas fully in their becausediagnosedrecovery he by with was taking acute going measures low on backvacation to pain. minimize despite There their hiswas painfuldisability a history back. andof chronicThe enhance WSCC back recovery, terminated pain. The by WSCCcooperatingthe Worker’s arranged with benefits for the Worker to be seen by an orthopedic specialist. The Worker did not attend the medical appointment inprescribed keeping with medical Commission treatment… Policy”. 04.01This requirement which requires was an found injured to be Worker reasonable to “… cooperatein assisting fully claimants in their to because he was going on vacation despite his painful back. The WSCC terminated the Worker’s benefits recoveryreturn to by work taking in a measures safe and totimely minimize manner. their disability and enhance recovery, by cooperating with in keeping with Commission Policy 04.01 which requires an injured Worker to “…cooperate fully in their prescribedThe WSCC’s medical decision treatment… was upheld.”. This requirement was found to be reasonable in assisting claimants to recoveryreturn to workby taking in a safemeasures and timely to minimize manner. their disability and enhance recovery, by cooperating with prescribedThe WSCC’s medical decision treatment… was upheld.”. This requirement was found to be reasonable in assisting claimants to return to work in a safe and timely manner. Decision 13-002 Termination of Benefits The8 WSCC’sWSCC decision decision was was upheld. confirmed DecisionWorker appeal 13-002 – DocumentaryTermination of Benefits WSCCThe Employer decision did was not confirmed participate 8 WorkerDecisionThe WSCC appeal 13 -did002 – not Documentary participateTermination of Benefits 8 WSCCThe Employer decision did was not participateconfirmed 8 WorkerThe WSCC appeal did –not Documentary participate The Appellant The Employer Worker did suffered not participate a lumbar strain in the workplace. The Worker continued to suffer pain after theThe estimated WSCC did 2 to not 6 weekparticipate recovery period. Benefits were terminated as there was no evidence to Theshow Appellant the Worker Worker was suffered unable toa lumbarreturn to strain his pre in -theincident workplace. duties. The The Worker Worker continued had degenerative to suffer discpain afterdisease the estimatedthat was a 2 pre to -6existing week recovery condition. period. The Appeals Benefits Tribunal were terminated found the as WSCC there appliedwas no evidenceits Policy 03.12to showThecorrectly. Appellant the Worker There Worker was nounablesuffered evidence, to a return lumbar despite to strainhis several pre in- incidentthe diagnostic workplace. duties. tests, The to Worker show thehadcontinued Worker’s degenerative to suffcontinuinger disc pain afterdsymptomsisease the thatestimated were was aother 2pre to- thanexisting6 week complications recoverycondition. period. The from Appeals theBenefits Worke Tribunal werer’s pre terminated found-existing the condition.asWSCC there applied was no its evidence Policy 03.12 to showcorrectly. the WorkerThere was was no unable evidence, to return despite to his several pre-incident diagnostic duties. tests, The to Workershow the had Worker’s degenerative continuing disc dsymptomsWCATisease 2013that were was Annual other a pre Reportthan-existing complications condition. fromThe Appealsthe Worke Tribunalr’s pre- foundexisting the condition. WSCC applied its Policy13 03.12 correctly. There was no evidence, despite several diagnostic tests, to show the Worker’s continuing symptomsWCAT 2013 were Annual other Report than complications from the Worker’s pre-existing condition. 13

WCAT 2013 Annual Report 13

Decision 09-002R Reconsideration 99 Request for reconsideration was denied

The Appellant Worker sought a reconsideration of his 2010 appeal based upon new evidence. This was the Appellant’s second reconsideration request. A health care provider’s letter was submitted as new evidence. The Appeals Tribunal may reconsider a decision under Regulation 57(2)(d). The information provided by the Appellant was found to be submitted outside the requisite time period as well as failing to conceivably having affect on the outcome of the previous two decisions. The reconsideration request was denied.

13 Appendix

Issues Appealed 2008 2009 2010 2011 2012 2013 Claims 13 8 13 9 6 11 Pensions 2 6 2 4 0 4 Revenue/Employer 2 2 1 0 2 1 Rehabilitation 0 0 0 2 0 1 Total Received 17 16 16 15 8 17

Appeals Received

2008 2009 2010 2011 2012 2013

Appeals Received 14 13 14 13 7 16 Requests for 1 2 1 2 1 1 Rehearing Total Received 15 15 15 15 8 17

Types of Hearings 2008 2009 2010 2011 2012 2013 In-person 4 4 2 1 0 0 Video 0 2 3 2 2 0 Conference Telephone 2 6 2 4 5 3

Documentary 4 6 6 4 4 7

Total Hearings 13 18 12 9 9 12

Appeals by Territory

2008 2009 2010 2011 2012 2013 Northwest 1 13 11 10 11 11 Territories Nunavut 13 3 3 2 6 4

WCAT 2013 Annual Report 14 NORTHWEST TERRITORIES AND NUNAVUT WORKERS’ COMPENSATION APPEALS TRIBUNAL • ANNUAL REPORT 2013

Appendix

ISSUES APPEALED

2008 2009 2010 2011 2012 2013 Claims 13 8 13 9 6 11 Pensions 2 6 2 4 0 4 Revenue/Employer 2 2 1 0 2 1 Rehabilitation 0 0 0 2 0 1 Total Received 17 16 16 15 8 17

APPEALS RECEIVED

2008 2009 2010 2011 2012 2013 Appeals Received 14 13 14 13 7 16 Requests for Rehearing 1 2 1 2 1 1 Total Received 15 15 15 15 8 17

TYPES OF HEARINGS

2008 2009 2010 2011 2012 2013 In-person 4 4 2 1 0 0 Video Conference 3 2 2 0 0 2 Telephone 2 6 2 4 5 3 Documentary 4 6 6 4 4 7 Total Hearings 13 18 12 9 9 12

APPEALS BY TERRITORY

2008 2009 2010 2011 2012 2013 Northwest Territories 11 10 11 11 1 13 Nunavut 13 3 3 2 6 4

14 NORTHWEST TERRITORIES AND NUNAVUT WORKERS’ COMPENSATION APPEALS TRIBUNAL • ANNUAL REPORT 2013

TYPES OF APPELLANT

2008 2009 2010 2011 2012 2013 Workers 13 13 12 15 5 14 Employers 1 2 3 0 3 2 Dependent 1 0 0 0 0 1

AVERAGE DAYS FROM FILING TO DECISION

2008 2009 2010 2011 2012 2013 Average 380 298 187 181 176 131 Note: this time includes both that attributed to the activities of Appellants as well as the Tribunal

SECTION 63 APPLICATIONS

2008 2009 2010 2011 2012 2013 Count 2 0 0 1 0 2

OUTSTANDING APPEALS AT YEAR END

2008 2009 2010 2011 2012 2013 Count 14 12 15 10 8 14

DECISIONS ISSUES / OUTCOME

2008 2009 2010 2011 2012 2013 Reversed 4 8 4 6 4 3 Upheld 4 12 7 10 5 5 Varied 1 1 0 0 1 2 Cancelled by Appellant 0 0 0 3 0 1 Total 9 21 11 19 10 11

15 Contact

IN PERSON MAIL FAX Suite 1002 NWT & NU Workers’ Compensation (867) 766-4226 10th Floor Appeals Tribunal Toll-free 888-777-8166 Precambrian Building Suite 1002 4920-52nd Street 10th Floor Precambrian Building Yellowknife, NT 4920-52nd Street Yellowknife, NT X1A 3T1

TELEPHONE WEBSITE (867) 669-8354 www.appealstribunal.ca Toll-free 888-777-8167