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Established in 1985, the Workplace Safety and Insurance Appeals Tribunal (WSIAT) is the final level of appeal to which workers and employers may bring disputes concerning workplace safety and insurance matters in Ontario. WSIAT has always been separate from and independent of the Workplace Safety and Insurance Board.

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  Decision 656 17
7/27/2017
R. McCutcheon

  • Consequences of injury
  • Psychotraumatic disability
  • Standard of proof

The worker suffered bilateral shoulder disablement in May 2006. In Decision No. 2538/10, the Tribunal confirmed initial entitlement. The Board granted the worker a 24% NEL award for permanent impairment, later increased to 31%. The worker now appealed a decision of the Appeals Resolution Officer denying entitlement for psychotraumatic disability and denying entitlement for a neck injury during treatment in April 2012. Board policy allows entitlement for psychotraumatic disability that is shown to be related to extended disablement and non-medical socio-economic factors, the majority of which can be directly and clearly related to the work-related injury. The ARO stated that the standard of proof for "directly and clearly" required an absence of other potential contributing factors. The Vice-Chair stated that this was an unrealistic standard, in that the ARO was suggesting that there must be an absence of other even potential contributing factors. Even the language of the policy (that a majority of the factors can be related to the work injury) does not require evidence that the psychotraumatic disability is due solely to the workplace injury. The Vice-Chair also noted that the Tribunal applies the significant contribution test. The Vice-Chair concluded that both Tribunal case law and the Board policy call for consideration of whether the workplace injury made a significant contribution to the development of the psychological condition. On the evidence, the worker experienced an emotional reaction to the injury and to related socio-economic factors. The worker had entitlement for psychotraumatic disability. To the extent that the worker had an underlying neck condition, it was related to his job duties over many years. He sustained a specific injury during a work transition program that rendered the underlying condition symptomatic. The worker had entitlement for the neck condition. The appeal was allowed.