WORKERS’ COMPENSATIONAPPEAL TRIBUNAL

Case I.D. [ personal information]

BETWEEN:

WORKERAPPELLANT

AND:

WORKERS’ COMPENSATION BOARDOF PRINCE EDWARD ISLAND

RESPONDENT

DECISION #16

Worker Representing Himself

John K. Mitchell, Q.C. Solicitor for the Respondent

Place and Date of Hearing Linkletter Inn & Convention Centre 311 Market StreetSummerside, P.E.I.

July 3, 2002

Date of Decision July 26, 2002

STATEMENT OF FACTS AND BACKGROUND

The Appellant was employed with [personal information] in a full-time, 40 hour per week,

[personal information] position. He began working with [personal information] on [personal

information].

The Appellant slipped and fell on some ice at his work place on July 14, 1998. There were

no witnesses to the event. He reported the injury to his employer on July 15, 1998, at 2:00

a.m.

The physician’s initial report of injury dated July 15th, 1998, indicated that the Appellant fell

on his wrist and sustained a tenderness and slight swelling. He was diagnosed with a mild

sprain/strain injury.

The Appellant’s claim for workers’ compensation benefits was approved effective July 15,

1998, with an initial diagnosis of mild left wrist sprain.

According to a July 29, 1998 memo to the file, the Case Manager wrote:

I spoke with [Case Worker]. [The Worker’s] lay off days were from the 15th

to the 19th. He returned on the 19th and only worked a couple of hours, if

even that. He came in on Monday or Tuesday with a note from the doctor

saying he was off until July 27, 1998 and told them he was not interested

in doing alternate duties as he could not do it. No one was a witness to the

incident.

On August 4, 1998 the Case Manager wrote the Worker stating:

The doctor’s report on July 20, 1998 indicates that you state that you are

unable to perform your usual work tasks due to the cyst on your wrist.

I am aware that [The Employer] offers modified duties to their employees,

and they have stated this on the employer’s form. I would ask that you

please contact your employer and make arrangements for alternate work

as the doctor’s report does not indicate you can not participate in modified

tasking.

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On August 12th the Worker was examined by a specialist (Plastic Surgeon), Dr. Gary

McLean, whose report indicates a “mild soft tissue swelling” in his left hand/wrist.

In his report to Dr. Scott Cameron dated August 14, 1998 Dr. Gary McLean stated:

. . . He fell on his hand approximately three weeks ago and there has been

a reoccurrence of a volar wrist ganglion. Whether this accounts for his

discomfort, I am somewhat sceptical. I feel, basically, he has more of the

symptomatology of repetitive strain. . . . (Emphasis added)

Noting that the Worker had “some degree of symptomatic relief after the left wrist ganglion

was removed on October 30, 1996”, he scheduled the surgery to re-excise the cyst and

confirmed that he advised the Worker “that the chance of reoccurrence is high”.

The Worker shortly thereafter received some physiotherapy and the report from Ken

Arsenault, the Therapist, indicates that “physiotherapy is of minimal benefit at this time as

joint and muscle restrictions are negligible”.

The Case Manager, on August 17, 1998, notified the Worker that up to fifteen (15) physio

treatments were approved.

On August 18, 1998 the Physiotherapist employed by the Employer, in a note to whom it

may concern, indicated that the Worker came in with a doctor’s note (his family physician)

stating that he was off work due to a cyst in his left wrist. She reported observing “a definite

bump under an old surgery scar where he had a previous removal of the same problem”.

She reported having advised the Worker that the Employer had work available where he

would not have to use his left wrist to which he responded “not in my eyes”.

In his follow-up report to the Board dated December 11, 1998, Dr. Gary McLean, referred

to a similar job position [personal information]

He reported that:

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It would certainly relieve his discomfort and minimize the time loss from

work if he could obtain such a position. I will keep you posted with regards

to his clinical course.

About one week before this surgery the Case Manager confirmed to the Worker, by letter

dated December 11, 1998, that he had previously advised him to the effect that “you would

have to discuss the possibilities of alternate employment with your employer and they in turn

would determine if they can offer you alternate employment”. He further indicted that the

Board would, if required, “get involved in any alternate employment”.

In his follow up letter to the Board, dated January 4, 1999, Dr. Gary McLean referred to his

December 11, 1998 letter that he had written “on his [the Worker’s] behalf . . . stating that

he would be better off as a [personal information]

Upon a referral to another specialist, the Radiologist performed a Bone Scan on January 28,

1999 resulting in “no significant abnormality demonstrated”.

The Medical Progress Report to the Board by Dr. Scott Cameron, dated February 16, 1999

indicated, amongst other things, that while there were no objective signs of the presenting

symptoms, and that the presenting symptoms were not proportionate to the objective signs

there was however “a developing recurrence of the ganglion”. It is noted the report indicates

that the examination was two (2) weeks after the operation. This appears to be an error as

the operation was two (2) months (to the day) prior to this Report.

The Case Manager scheduled an appointment with Dr. Richard Wedge, the Board’s Medical

Advisor, for March 26, 1999.

On March 12, 1999 the Plastic Surgeon expressed his opinion that he did not feel that the

swelling was indicative of a reoccurrence of the ganglion.

He referred to the numerous occasions during which he suggested, to the Board, that “some

effort be made on his behalf by Workers Compensation to obtain him a job as a [personal

information]

Dr. McLean did point out some evidence of “[personal information] .

-4-

In his March 26, 1999 report to Dr. Scott Cameron, Dr. Wedge confirmed that the Worker

“appears, at this time, to have a recurrence of a small lipoma under his surgical scar.” and

that the Worker’s “complaints are interspersed [personal information]

In his assessment, Dr. Wedge noted the findings of the out-patient nurse who examined the

Worker five (5) hours after his reported injury to the effect that she noted no swelling or

redness in the area of the Worker’s left wrist. He did note that there were no witnesses to the

accident involving a slip and/or fall on an icy and/or wet surface at the work-site.

Dr. Wedge noted that the Worker had [personal information].

The following appears in his report.

ASSESSMENT - [personal information] continues to have complaints of

left upper extremity pain centered on his left wrist surgery. He does not

have any clinical evidence today of a reduced left wrist function. The small

lipoma, which has occurred in the surgical space would not account for

any of his wrist pain. The small left sternocleidomastoid ganglion would

also not be related to his left wrist surgery.

He is currently frustrated regarding [personal information] and his

complaints of left wrist pain are interspersed with [personal information]

He is not interested in pursuing alternative employment and feels he will work

through [personal information] . He feels there is a conspiracy with his employers

to remove him and this will result in his refiling for W.C.B. benefits.

Dr. Wedge suggested an independent Functional Capacity Evaluation.

By letter dated April 21, 1999, the Case Manger advised the Worker that an appointment had

been made with a Neurologist, Dr. Gregg McLean in St. John, New Brunswick.

By a separate letter dated the same day, the Functional Capacity Evaluation was suggested

to the Worker by the Case Manger. It was carried out by Island Physiotherapy Inc. on May

19 & 20 of 1999.

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The Neurologist, Dr. Gregg MacLean, did not discover entrapment neuropathy. He did

indicate that “the wrist pain would appear to be on the basis of repetitive injury syndrome”.

He also concluded by stating: “I can’t see a benefit to reoperation”.

On June 11, 1999 the Board received the Functional Capacity Evaluation Report which

concluded that there was a job match for the Worker as a [personal information] .

The Case Worker set up a meeting for June 10, 1999 with the Worker, the Physiotherapist,

the Employer Representatives and himself to discuss the FCE Report. The Worker was

advised to show up for work at the Employer’s work site on June 16, 1999. He was advised

that his claim will close on that date; and, he was being cleared to return to work as per the

modified tasking work schedule.

Shortly after that meeting, the Case Manager wrote to the Worker confirming:

. . . you are a functional match for your employment position as a [personal

information] at [the Employer’s work-site].

. . . as you did not agree with being able to return to work at full hours,

your employer agreed to Modified Tasking of 8 hours - week 1, 10 hours -

week 2, and 12 hours in week 3.

On June 16th the Worker attended at the work-site, but only remained there for four (4) hours.

[personal information]

A memo, dated June 16, 1999 from the Safety Co-ordinator at the work site refers to the

Worker (on the morning of that date) seeking a change in his modified working hours. The

Worker apparently wanted them reduced.

The Worker maintains that he is unable to work due to his recurring cyst.

From a review of the materials (Record Volumes 1, 2 & 3 - Tabs 75 to 233) and upon there

being no dispute with the statement of facts as briefly summarized in the Respondent’s

Factum, the additional pertinent facts, we find, are succinctly set out in the Respondent’s

materials and are as follows:

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11. The Appellant’s workers’ compensation claim remained closed and his

recurrence claim for compensation benefits was denied. The Appellant’s case

worker, Larry Phelan, provided decision letters to the Appellant dated June

25, 1999, and July 13, 1999.

12. The Appellant issued a request for an internal reconsideration on July 21,

1999, for the purpose of overturning Mr. Phelan’s June 25, 1999 and July 13,

1999 decision to deny his claim request for a recurrence of his July 14, 1998

injury.

13. The Appellant continued to seek additional medical investigation and opinion

following June 16, 1999. Mr. Phelan continued to provide ongoing review

of the additional medical evidence submitted to the Appellant’s file record.

Mr. Phelan provided letters to the Appellant reaffirming his July 13, 1999

decision to deny compensation benefits through letters dated August 17, 1999

and December 3, 1999.

14. The Appellant requested an internal reconsideration and was provided a

hearing date of January 12, 2000. The hearing had been delayed due to the

ongoing new evidence being submitted to the Appellant’s file record which

required review, consideration and updated decisions by Mr. Phelan.

15. In addition to considering the testimony of the participants at the January 12,

2000 hearing, the internal reconsideration officer, Elaine MacEachern-Pierce,

considered evidence from all the documents in the Appellant’s claim file

record up to the hearing date of January 12, 2000. Ms. MacEachern-Pierce

found the Appellant was not entitled to compensation benefits after June 16,

1999.

16. The Appellant continued to seek and to be provided with ongoing medical

investigation. A further internal reconsideration was held on November 28,

2001. The purpose of that reconsideration was to review the medical

evidence which had accumulated sine the reconsideration hearing of January

12, 2000. Shawn Shea, the internal reconsideration officer for the November

28, 2001 hearing, also found the Appellant’s request for compensation

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benefits effective June 16, 1999, should be denied.

Subsequent to his out-patient visit to the Prince County Hospital on June 16, 1999 (after he

had left work on that date), the Worker, at his own request, was again assessed by Gary

McLean. In his June 29, 1999 report to the Board, Dr. McLean states:

He was last seen on March 10 in the clinic although he had some slight left

volar wrist thickening, certainly this causing no degree of functional

impairment or significant discomfort. The present working diagnosis is

that of repetitive strain syndrome.

As is often the case with a patient who has seen numerous physicians and

has in depth investigations, there are a number of slight discrepancies

between physicians but basically the overall message is the same.

I have little to offer [The Worker] in terms of further investigations. The

longer he stays away from work, I feel the more difficult it will be to return.

There is some question as to whether he is seeking a new family physician.

[He] was extremely motivated to be assessed by Dr. Muzumdar at the QEH.

As he has no family physician, I have agreed to refer him and an

appointment has been made July 22 at 10:30. I will forward a copy of this

letter to Dr. Muzumdar. This referral was with the proviso that he not

remain off work until this time.

On July 13, 1999 the Case Manger in his decision to deny compensation and to consider the

case as closed wrote:

The Functional Capacity Evaluation report and the reports from your

family physician, Dr. Scott Cameron, and Dr. Gary McLean advise you

should remain at work. I am therefore advising you that this office is

denying your claim for compensation and your case will remain closed.

(Emphasis added)

-8-

In the July 22, 1999 report from Dr. Muzumdar’s Clinic, it is indicated that Dr. Muzumdar

had previously treated the Worker for another (back) injury. On the occasion of this visit the

Worker was:

. . . complaining of a four or five year history of left wrist pain . . .

The Report indicated that there will be no follow-up unless Dr. Gary McLean so requested

same.

By letter dated August 17, 1999 the Case Manager, after reviewing Dr. Muzumdar’s Report,

confirmed to the Worker that:

Dr. Muzumdar advises it is important for you not to undergo further

medical investigations as this will likely further complicate your chronic

pain syndrome. He suggest, as well, that you attempt to cope with your

pain and look to return to the work force. He suggests that you have an

assessment at a tertiary pain facility for treatment of your chronic pain

syndrome.

After reviewing the report from Dr. Muzumdar, this office is prepared to

refer you to a pain management clinic. However, it is the opinion of this

Board office the Functional Capacity Evaluation you participated in is an

accurate objective measurement of your physical abilities, which confirms

you are appropriate to return to you injury employment as a [personal

information]. Given this information this office is not prepared to reinstate

your Temporary Earnings Loss benefits and your claim will remain closed.

In Dr. Gary McLean’s chart note dated August 19, 1999 he refers to the Worker’s apparent

agitation over the content of Dr. McLean’s report to the Board. The note states:

Although I had not agreed to place him off work, he did not feel I should

have stated this is the letter to the Workman’s Compensation Board.

I understand that his family physician, Dr. Scott Cameron, is referring him

on to Dr. Bill Stanish for his assessment and treatment.

-9-

In his October 14, 1999 report to the Board, Dr. William Stanish, a specialist in pain

management (and Professor of Surgery at Dalhousie University) concluded:

[The worker] is employable. The suggestion of a return to the workplace

at [The Employer] clearly causes enormous stress and anxiety with [him].

(Emphasis added)

I feel he has the physical ability and aptitude to be retained, particularly in

any task but I would not suggest any heavy labouring chores.

I definitely feel that [The Worker] can return to gainful employment after

proper retraining. This can be done without risk to himself or his

colleagues.

The Vocational Evaluation performed on November 18, 1999 by the same Clinic concludes:

This gentleman, although restricted from jobs requiring [personal

information] is definitely employable and would benefit most from

returning to gainful employment as soon as possible. Based on the medical

information and his description, it would appear that he would be able to

pursue alternate [personal information] positions as long as [personal

information] . (Emphasis added)

At the request of the Worker, an Internal Reconsideration hearing was held on January 12,

2000. The Case Manger’s decision not to reopen the case and/or reinstate wage loss benefits

was upheld.

The IRO held that the Worker “left his place of employment by choice and that he refused

to continue with an ease-back program arranged in his interest.”

The Board subsequently arranged for the Worker to participate in five pain management

sessions at the Atlantic Pain Management Clinic starting on February 14, 2000.

The Worker continued to seek medical treatment, and on January 28, 2002 the Plastic

Surgeon, Dr. Gary McLean in his report to Dr. Jacoby stated:

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[The Worker] does have a left volar wrist ganglion, which has been excised

by me on two previous occasions. Today on clinical examination there is

a slight reoccurrence. It was reinforced to him that this was unrelated to

his repetitive strain symptomatology. (Emphasis added)

The Worker next sought and obtained a medical opinion from Dr. Douglas Cameron, who

reported that he was asked to “review the Worker’s medical problems”.

Dr. (Douglas) Cameron’s first written medical opinion is dated February 2, 2000, more than

a year and one half after the incident at the work-site giving rise to this claim. He concluded

that the Worker “is not presently employable”. He noted, and found favour with the

suggestions from the two McLean Doctors that the Worker be retrained “but nothing was

forthcoming and [personal information] .

It is not clear from Dr. Cameron’s letter if he had the benefit of all of the medical opinions

provided by the numerous medical specialist whose general consensus was that the Worker

was indeed employable.

Some five days later, the Plastic Surgeon, Dr. Gary McLean, who had previously operated

on the Worker (first in 1996 to remove the cyst) in his February 7, 2000 Report to the Board

stated”

Based on available knowledge, I am unable to categorically state that one

is related to the other. [The Worker] feels that he is unable to work as a

result of this reoccurrence of his ganglion and associated discomfort.

On February 22, 2000 the Board, after a meeting with the Worker, advised him in writing

that he has no ongoing entitlement from the Board at this point in time.

Not agreeing with that final decision the Worker advised that there will be more information

coming in from Dr. D. I. Cameron.

In her report, dated February 23, 2000, Dr. Sullivan advised that the Atlantic Pain Clinic was

not recommending any further intervention at this time - as it is “unlikely to have any

impact”.

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On March 15, 2000, Dr. Jacoby whose specialty is Plastic and Reconstructive Hand Surgery,

in his written report to the Board stated:

In summary, this patient has recurrent left volar wrist ganglion which he

feels is work related. I am unable to support him in that claim and feel that

this is a spontaneously originating ganglion which unfortunately recurred

on two occasions despite appropriate surgical management.

On March 22, 2000 the Worker advised the Case Worker that he was shifting from Dr. Scott

Cameron to Dr. D. I. Cameron effective immediately.

On March 29, 2002 the Board received a copy of correspondence from Dr. D I. Cameron in

which he sought the opinion of Dr. Wassim Salamoun, an ENT Surgeon. Reference was

made to the Worker’s neck and left wrist pain.

On April 12, 2000 the Worker requested that his case be heard by the Appeal Tribunal

because the Internal Reconsideration Officer had “denied my case in spite of further medical

evidence”.

On April 13, 2000 the Case Manger confirmed that he reviewed, as a result of receiving the

assessment from the Worker’s new family doctor, Dr. D. I. Cameron, the reports of the

psychologist, Dr. Sullivan and the plastic surgeon, Dr. Jacoby. The Case Manager advised

that the Worker’s claim will remain closed; and, advised the Worker on his right to appeal

to the Internal Reconsideration Officer.

On April 13, 2000 another specialist, Dr. Hutchings, wrote to the Worker’s new family

doctor confirming that he arranged a repeat of the Worker’s EMG and arranged a MRI scan.

On May 11, 2000 Dr. Doug Cameron wrote to the Board confirming that the neurologist

found some nerve damage “high up in his neck, left neck and arm”. He suggested that the

Worker “likely should be offered retraining”.

On May 13, 2002 there was an Internal Reconsideration Hearing; however, the IRO deferred

her decision because of new medical evidence that the Worker had obtained since the July

19, 1999 Decision of the Case Manager to close the file. The matter was then returned to the

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Case Manager for consideration for that reason and because new further medical information

was expected to be received from Dr. Doug Cameron and/or Dr. Hutchings.

On June 21, 2000 the Worker, according to the Case Manager’s comprehensive memo to the

file, indicated that at a meeting with the Worker on June 20, 2000 the Worker indicated that

the EMG report (to come from Dr. Hutchings) “would be enough to re-open his claim”.

There was also a reference to an injury several years earlier when the Worker was in

[personal information].

In July, arrangements were made by the Board to have Dr. Rosemary Marchant assess the

Worker. She is a specialist in Occupational Medicine.

In his September 3, 2000 letter to the [personal information] for the work-site, Dr. Doug

Cameron stated:

This leaves this poor [personal information] having been not correctly

investigated and treated and being rejected by Workers Compensation. I

have seen Workers behave badly, in fact I can often guess when it is going

to happen. I am surprised that this [personal information] is not all over the

employer for allowing what has happened to their [personal information]

On September 14, another specialist, Dr. K. McCarthy (Internal Medicine and

Rheumatology) concluded:

I do not think there is any association between the ganglion at his wrist

and the discomfort in his neck and arm. These are two separate entities..

. .I can think of no syndrome where a ganglion would cause any associated

symptoms.

Some eight (8) months prior to this, in May of 1999, the Worker was assessed by a

Neurologist, Dr. Gregg McLean. In his May 17, 1999 report to the Worker’s family

physician at that time, Dr. Scott Cameron, he concluded, “I can’t see a benefit to

reoperation”.

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Dr. McLean sent a copy of this report to the Board on November 6, 2000.

In his November 14, 2000 notes to the Worker’s file, Dr. Doug Cameron reports that the

Worker is well known to him. After a summary of some of the Worker’s medical treatments

and/or assessments from some of the many specialist who were involved, he concludes that

the Worker “can not go back to his previous occupation ([personal information] ”.

The Worker’s new family physician indicated in his letter to the [personal information]

(which is incorporated into this memo/chart note) that:

At [The Worker’s] agreement, I will sign whatever medical papers to allow

him a little more help from [personal information] .

On November 17th the Worker met with the Director of Client Services of the Board to

review why the Board was not paying his claim as, in the opinion of the Worker, “all the

information had been submitted to establish that he was unable to work because of his

accident”.

The Board employee, [personal information] , took the position that this was not the case;

and, that the Board would review the case when it received Dr. Marchant’s report.

The results of the MRI, according to Dr. Fowler’s (the Radiologist) November 27, 2002

Report indicated some minor deterioration which “probably is not of clinical significance”.

Dr. Doug Cameron wrote to the Board on December 3, 2000 and strongly expressed his

views on how poorly the Board handled the case. His feelings as expressed in part are as

follows:

I feel that WCB of P.E.I. has really missed the mark concerning this

[personal information] man and his job-related problem of ganglion cysts.

. . .

I feel this gentleman was and still is being abused. He was hurt in the

workplace. As a good worker, he accepted the opinion of the neurologist

(who missed the palsy in his left brachial plexus) and accepted the opinion

-14-

and the surgery (not once but twice) of a plastic surgeon. None of this stuff

made him any better and if WCB of P.E.I. had been doing their job (among

other things using the service [CCOHS] this poor man would have been

retrained and would happily be back to work and so helping to pay the dues

to WCB of P.E.I.

Life is not fun for this poor man. I feel WCB of P.E.I. should accept the

responsibility for having messed up this man’s life.

In that letter he referred to some medical literature on ganglion cysts as appears in materials

used by Canadian Centre for Occupational Health and Safety (CCOHS).

The Bone Scan of December 11, 2002 indicated very minimal activity in the sacroiliac joints

of “uncertain clinical significance”.

Then there is the Report of Dr. Marchant prepared January 9, 2001. The summary of the

Report of this specialist in Occupational Medicine indicates:

The FCE May 17/99 was better than those done in 1992 and 1993 and he

was fit for his job as [personal information]. There have been no abnormal

findings since then. There have been no reported new incidents. . . .

The pain complaint has occurred on and off since 1993. Without clinical

evidence of physical findings to support the findings of the EMG of April

13/00 then the findings are incidental. The MRI did not lend further

support. There is no clinical evidence of sensory loss, motor dysfunction

or weakness. Not since May/99 has there been any physical findings. . . .

(Emphasis added)

Therefore, with no physical findings, no medical continuity and an FCE

with fitness for pre-injury job attributing his current complaints to a work

related problem is very tenuous. (Emphasis added)

The Feb. 7/00 volar redial ganglion reoccurrence not related to a repetitive

strain injury. (Emphasis added)

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The final reoccurrence was while [The Worker] had been off work for quite

a while.

Much of the medical literature does not show any evidence of such

ganglions being work related.

I did not assess [The Worker], however, the file evidence shows no evidence

that there are any abnormal physical findings that would suggest a new

problem suggesting any change from the assessment of Oct 14/99 where he

was found fit to work.

Following this is the Report from Dr. Hutchings (January 17, 2001) wherein he states:

Assessment:

1. Pain left arm, etiology undetermined. At this stage I have not identified

any neurological causes for this patient’s pain. . . .

Based on all of this information, the case was once again reviewed in detail by the Case

Manager on January 25, 2001 who concluded that the Worker had, “recovered from the

injuries you received from your accident of July 14, 1998 and you are capable of returning

to work without a wage loss”.

In short, the claim was again denied.

The Worker was advised of his rights to seek an Internal Reconsideration Hearing.

A March 9, 2001 memo in the file indicates that the Worker at that time requested that he be

assigned a new Case Manager. He complained that a good deal of the medical information

in the file is “bogus” and some of the facts in Dr. Marchant’s Report are untrue.

On March 28, 2001 the Worker wrote to the Executive Director of the Board indicating his

mistrust in the Case Worker and strongly suggested that he was not truthful and that there

were irregularities in his handling of the Worker’s file.

On April 16, 2001 the Worker completed a request for internal consideration. In that request

he confirmed that:

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• his injury was not getting any better,

• his request for a meeting with the Case Worker to discuss the matter was

denied,

• he had written to the Chief Executive Officer of the Board indicting that he

wanted the meeting with the Case Worker to discuss the errors in his file.

In the March 9, 2001 memo to the file, reference was made to a discussion between the Team

Leader of Client Services, [personal information], and the Worker in which she confirmed

her discussions (re: the Worker’s request for another meeting) with the Case Manger, Mr.

Phelan. The Case Manger’s position was that the new medical reports had recently been

discussed with the Worker, whose language at that time was inappropriate.

On March 15, 2001, the Case Manger wrote the Worker directing him to the effect that all

future communications between him and the Worker be in writing, reference was made to

the recent telephone communication and, in Mr. Phelan’s opinion, the inability for them to

communicate effectively over the telephone.

Mr. Phelan’s decision to insist on written communication in the circumstances was warranted

and indeed the appropriate response to the deteriorating relationship between him and the

Worker.

By his letter of July 12, 2001 Shawn Shea, the IRO, requested that the Worker “forward

clarification of your issues”.

On July 14, 2001 the Worker was examined by another specialist, Dr. Parkhill, Plastic

Surgeon, who reported:

I am not sure that removing the ganglion would alleviate all of his

problems. He has full range of flexion and extension of his fingers and a

good range of motion of his wrist. He has no arthritic changes in his

digits. He has a good radial pulse. He has a mobile ganglion over the

flexor carpi radialis. My prognosis would be guarded for this gentleman,

but if the Board wishes me to proceed and remove this compound ganglion

of his left wrist, I would do so.

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In response to Mr. Shea’s request for a clarification of the issues as the Worker saw them,

the Board received a list of twenty-four (24) numbered statements, some of which refer to:

his wrist operations to date, false statements in the FCE, and in the letter in his file relating

to his departure from the work-site, untrue statements in the file regarding the direction (as

between his family physician and the first plastic surgeon (Dr. McLean) that he saw, a false

doctor’s progress statement, the Board ignoring Dr. Gregg McLean’s report, omission by the

Emergency Department in failing to accurately document the Worker’s account of the

accident, untrue statements in correspondence from the Employer, letter from the nurse (at

the work-site) being untruthful, omission in Dr. Wedge’s report and in Dr. Muzumdar’s

report, false and erroneous statements in the report/letter from the physiotherapist, the IRO

Decision of January 12th based on false statements and half truths, . . . All of which are “only

a fraction of the lies and mistruths” - according to the Worker.

The IRO subsequently advised the Worker that as many of these twenty-four (24) points

were “adjudicative in nature”, he was referring the matter back to the Client Services

Division for, amongst other things, investigation and clarification.

On October 4, 2001, in response to the directive from the IRO, the Client Services

Entitlement Manger, Mr. Mosher wrote in his decision that:

Since the closure of your case file on June 15, 1999, I note numerous

investigations from physicians, ie. Dr. William Stanish, Orthopaedic

Surgeon; Dr. Paul Jacoby, Plastic Surgeon; Dr. Rosemary Marchant,

Occupational Medicine Specialist; Dr. Gary MacLean, Plastic Surgeon;

Dr. Ashok Mazumdar, Physiatrist and Dr. D.I. Cameron, Family

Physician.

I have reviewed all the correspondence and letters from your former Case

Manager, Mr. Larry Phelan and note that in all the reviews it has been

determined you are physically fit to perform the regular work duties of a

forklift operator with your former employer, . . .

Your file has been reviewed each time new medical information was

submitted to your case file.

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Mr. Mosher then advised the Worker of the process in appealing his decision to the IRO.

On November 14, 2002 Mr. Morsher again wrote the Worker. In that letter be referred to the

issue as follows:

To determine whether you are entitled to Workers’ Compensation benefits

related to a ganglion cyst on your left wrist.

He referred to some theories that appear in published medical opinions; and, affirmed once

again his decision to deny compensation to the Worker. The Worker was advised again of

his right to a hearing by the IRO.

The issue, as identified by the IRO, was that the Board:

reopen your claim for earning loss and medical aid benefits. It is your

contention that you are disabled and cannot return to work due to your

work injury of July 14, 1998. You state there is evidence in your file which

supports you not able to work due to the work injury.

The IRO conducted the hearing on November 28, 2001. The nine (9) page report prepared

by the IRO indicates that submissions were made by both the Worker and his representative,

Dr. Doug I. Cameron.

This report indicates that the IRO carefully followed the procedure as set out in the Internal

Reconsideration Hearing Procedure and Process Review, which appears in the report that

forms part of the record.

The Worker’s physician made submissions, to the effect that, amongst other things, the

Worker was told by Dr. Slysz on October 6, 1996 that he would continue to have more

problems with his ganglion unless he changed his job duties with his employer from that of

a [personal information] , which was never done. In Dr. Cameron’s opinion the Worker “is

not employable as he cannot use his left arm”.

The report outlines, in detail, the several documents that the Worker relied upon (from his

file) and Section 17 (benefit of doubt) provision of the Act in support of his argument for a

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reopening of his file and payments for wage loss benefits.

In addition the report refers to Dr. Cameron’s submissions to the effect that the Board should

assist the Worker in vocational retraining as well as Dr. Cameron’s query as to why the

Board would not support the Worker to be retrained.

On the other side of this case, the report indicates that strong and compelling arguments were

presented by the employer’s representative who indicated that while the employer attempted

to address the 1996 (pre-injury) report of Dr. Slyz, the Worker “refused to work in an

alternate position . . . and did not at any time make application to other job postings as they

became available” at the work site.

The Employer’s representative suggested that because there was no new evidence, there

should not be another Internal Reconsideration Hearing; and submitted that the [personal

information]

References to the report indicate that the Worker felt that as the Board twice in the past had

paid for his cyst surgeries, it should continue to provide medical aid which may include

another surgery.

The IRO reviewed, according to his report, the more general question as elaborated upon by

Dr. Cameron as to:

whether the claim file evidence supports the Client Service Division’s

decision letters which closed [The Worker’s] claim for compensation

benefits.

On February 13, 2000 the IRO rendered his decision which denied the Worker’s request for

compensation benefits related to the ganglion on the Worker’s left wrist, because it could not

be related to his work place accident of July 1998.

A review of that decision indicates that the issue that the Case Workers dealt with

throughout, and the issue placed before the IRO was a question of fact - pure and simple.

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To put it another way, neither the Worker nor his representative disagreed with the central,

and in this Tribunal’s opinion, the only real issue in this case: was there an accident on July

14, 1998 at the work-site giving rise to wage loss benefits and/or medical aid in accordance

with the Workers Compensation Act?

In the most comprehensive decision that this Tribunal has seen to date from any IRO, it is

quite evident that the IRO not only captured the main thrust of the issue before him; but, he

also clearly applied the operative provisions of the Act in dealing with the issue. From his

review of Sections 6, 17 and 32, it is readily apparent that these provisions should have been

and in fact were considered and properly applied by the IRO. That been said, there is no

evidence of an error in law that would go to the jurisdiction of the IRO and thereby constitute

cause for overturning his Decision.

To say that the IRO considered all of the evidence, both the materials filed and the oral

presentations, would be an understatement. The Decision clearly demonstrates that he had

a good appreciation of all of the arguments on both sides of the issue and that he remained

focussed on the main issue.

It is evident that all participants took full advantage of the opportunity to present their

arguments as best they might.

The Decision includes a summary of all of the arguments as presented - most of which were

earlier referred to herein.

The IRO’s Decision indicates the [personal information]

The IRO indicated that the intent of his hearing was:

Specifically review the approximately two years of additional medical

evidence from the claim file record for this reconsideration case #[personal

information] from the previous Internal Reconsideration Hearing of

January 12, 2000, up to including that Hearing of November 28, 2001.

In reaching his Decision, the IRO stated that the collective evidence supported the finding

of the Case Manager to the effect that the claim was appropriately closed effective June 15,

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1999. Referring to Reports from several medical experts, and relying directly on many of

their opinions, most of which were set out earlier in this Decision; he could apparently not

disregard this overwhelming evidence in favour of that of the Worker’s lone soldier, Dr.

Cameron, his new family physician whose medical conclusion was to the effect that the

Worker is “unemployable” as a result of the July, 1998 accident.

LEGISLATION

The relevant sections of the Act are:

Section 6 (1) states:

Where, in any industry within the scope of this Part, personal injury by

accident arising out of and in the course of employment is caused to a

worker, the Board shall pay compensation as provided by this Part out of the

Accident Fund.

Section 17 states:

Notwithstanding anything in this Act, on any application for compensation

the decision shall be made in accordance with the real merits and justice of

the case and where it is not practicable to determine an issue because the

evidence for or against the issue is approximately equal in weight, the issue

shall be resolved in favour of the claimant.

Section 32(1) states:

Subject to section 56, the Board has exclusive jurisdiction to examine into,

hear, and determine, all matters and questions arising under this Act and as

to any matter or thing in respect of which any power, authority, or discretion,

is conferred upon the Board; and the action or decision of the Board thereon

is final and conclusive and is not open to question or review in any court, and

no proceedings by or before the Board shall be restrained by injunction.

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Section 32(2)

Without limiting the generality of subsection (1) the decisions and findings

of the Board upon all questions of law and fact are final and conclusive, and

in particular, the following shall be deemed to be questions of fact:

(a) whether any injury or death in respect of which compensation is claimed was

caused by an accident within the meaning of this Part;

(b) the question whether any injury has arisen out of or in the course of an

employment within the scope of this Part;

(c) the existence and degree of disability by reason of any injury;

(d) the permanence of disability by reason of any injury;

(e) the existence and degree of an impairment and whether it is the result of an

accident;

(f) the amount of loss of earning capacity by reason of any injury;

(g) the amount of average earnings.

Clearly the finding by the IRO that the Worker’s

most recent left wrist ganglion is not work related and is of minimal

consequence in restricting his ability to return to work, (Emphasis added)

is a question of fact.

Worthy of note is the fact that as the record clearly establishes, and as referred to in the

Decision of the IRO, the Worker was indeed encouraged to “maximise his physical

functional capabilities for a more positive potential return to work”.

In finding that the Worker chose not to participate in the employer-provided return-to-work

initiative through the modified tasking program, the IRO had, when coupled with the

substantial medical evidence from a wide range of physicians who are experts in their field

of medicine, ample evidence from which he could conclude that the Worker “opted to pursue

a course of disability versus ability”. Be that as it may, the ultimate issue as referred to

earlier was a question of fact; and, in the absence of a finding that the decision of the IRO

was unreasonable this Tribunal cannot overturn that Decision.

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THE LAW ON QUESTIONS OF FACT

This Tribunal has heard several cases where it was determined that the main issue was a

Question of Fact.

In some cases there may be a genuine issue as to whether or not the Decision of the Case

Manager and of the IRO involve a question of fact or a question of law.

For the purposes of this Appeal, no doubt whatsoever exists as to the nature of the issue

because the Act clearly identifies a category into which the issue in this case squarely fits.

Deemed to involve questions of fact according to Section 32 are:

Without limiting the generality of subsection (1) the decisions and findings

of the Board upon all questions of law and fact are final and conclusive, and

in particular, the following shall be deemed to be questions of fact:

(a) whether any injury or death in respect of which compensation is claimed was

caused by an accident within the meaning of this Part;

(b) the question whether any injury has arisen out of or in the course of an

employment within the scope of this Part;

(c) the existence and degree of disability by reason of any injury;

(d) the permanence of disability by reason of any injury;

(e) the existence and degree of an impairment and whether it is the result of an

accident;

(f) the amount of loss of earning capacity by reason of any injury;

(g) the amount of average earnings. (Emphasis added)

WHEN THEN CAN OR SHOULD THE APPEAL TRIBUNAL OVERTURN THE

DECISION OF THE INTERNAL RECONSIDERATION OFFICER ON AN ISSUE

INVOLVING A QUESTION OF FACT?

The Supreme Court of Canada, many years ago, set out some clear guiding principles for

those whose duty it is to sit in judgement of other decision makers when the issue to be

resolved involves a question of fact.

The Appeal Court of this Province has, on numerous occasions, steadfastly remained on the

course charted by the highest Court in Canada.

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In Decision #2, Case ID [personal information], dated October 15, 1999, this Tribunal ruled

that as one of the main issues in that case involved a Question of Fact, the law in this

Province is as set out by the P.E.I. Court of Appeal and was applicable to the disposition of

that case. In that particular case the following is stated:

As the first issue involves Questions of Fact, it is helpful to consider what

power or authority this panel has in considering the matter before it.

In this regard, some guidance is found in the decision of the Appeal Division

of the Supreme Court of Prince Edward Island in Johnston v. Murchison

(1995), 127 Nfld. & P.E.I.R. 1 (P.E.I. S.C., A.D.) at pages 8 and 9. The

parameters of review on an Appeal are stated as follows:

1. That an appellate court should not interfere with the conclusions of fact

reached by a trial judge except in the event of a clear error on the face of the

reasons or conclusions of judgement;

2. The privileged position of the trial judge to assess evidence extends to the

evidence of expert witnesses as well as ordinary witnesses and the appellate

court should not reconsider the evidence of expert witnesses when the

conclusions reached by the trial judge could reasonably be supported by the

evidence of the expert witnesses;

3. The appellate court does not have jurisdiction to interfere with the trial judge’s

assessment of the evidence as a whole unless, again, in conducting the

assessment of the evidence on a whole, the trial judge made an error clear on

the face of the record or conclusions of the judgment appealed from;

4. Where the credibility of witnesses is not in issue, the appellate court may review

a trial judge’s finding of fact to determine if the findings were based on a failure

to consider relevant evidence or on a misapprehension of the evidence;

5. Findings of fact based on the credibility of witnesses are not to be disturbed

unless it is shown the trial judge made some palpable and overriding error

which affected his or her assessment of the facts;

6. The trial judge’s conclusion must be consistent with the evidence and that no

evidence essential to the outcome of the case be overlooked or ignored;

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7. An appellate court should not interfere unless it is certain that its difference of

opinion with the trial judge is as the result of an error. The appellate court must

be able to clearly identify the error made by the trial judge or it should not

interfere unless the trial judge’s finding of fact is so unreasonable that nothing

he or she could have gleaned from this privileged position could possibly lead

to the conclusion reached. (Emphases added)

These parameters, in fact, were a summation of the guidelines and/or principles

set out by the Supreme Court of Canada in Lapointe v. Hopital Le Gardeur

(1992) 1 S.C.R. 351 (S.C.C.)

In the Johnston case, the P.E.I. Appeals Division of the Supreme Court applied

the law as stated by the Supreme Court of Canada in Toneguzzo-Novell v. Burnaby

Hospital, (1994) 1 S.C.R. 114 (S.C.C.) at page 121

It is now well established that a Court of Appeal must not interfere with

a trial judge’s conclusions on matters of fact unless there is palpable or

overriding error. In principle, a Court of Appeal will only intervene if the

judge has made a manifest error, has ignored conclusive or relevant evidence,

has misunderstood the evidence, or has drawn erroneous conclusions from it

. . .

This panel therefore should not and cannot interfere with the decision of the

Board on matters of fact unless there is evidence of palpable or overriding error

on the part of the Board in its decision with respect to the issue(s) before it. In

the absence of evidence that the Board made a manifest error, ignored

conclusive or relevant evidence, mis-understood the evidence or has drawn

erroneous conclusions from it, this panel can not either overturn the decision

of the Board or substitute its view for that of the Board.

In Lambe v. Workers Compensation Board (PEI) Docket #Ad-0880, the Court of Appeal on

March 15, 2002, in dismissing a case involving how compensation should have been

assessed (under the old Act or new Act) which was a question of fact, held:

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STANDARD OF REVIEW

Applying the pragmatic and functional approach to determining a standard

of review to the discretionary decision of the IRO and in this respect, having

regard to the Board’s relative expertise in matters of workers compensation,

its central role in administering the legislation, the full privative clause in s-

s. 32(1) of the old Act with respect to questions of fact and the provision of

a statutory right of appeal on questions of law or jurisdiction, I am of the

view the decision of the IRO should be reviewed on the standard of

reasonableness. That is, unless it is demonstrated the IRO made a palpable

and overriding error in concluding the appellant should be compensated

under the provision of the new Act, this court should not intervene.

(Emphasis added)

DECISION

Applying these criterion and the test of reasonableness, in all of the circumstances, and

especially in the absence of any evidence of a palpable or overriding error by the Internal

Reconsideration Office, this panel can not overturn the Decision of the Internal

Reconsideration Officer or substitute its view for that of the Internal Reconsideration Officer.

Accordingly, the Appeal is dismissed.

Dated this 26th day of July, 2002.

_________________________________ ______________________________Allen J. MacPhee, Q.C. Jim BradleyChair of the Appeal Tribunal Tribunal Member

_________________________________Mike DesRochesTribunal Member

WORKERS’ COMPENSATION BOARDAPPEAL TRIBUNAL

BETWEEN:

WORKER

APPELLANT

AND:

WORKERS’ COMPENSATION BOARDOF PRINCE EDWARD ISLAND

RESPONDENT

DECISION #16