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  Decision 1334 17
3/20/2018
K. Jepson

  • Intervening causes
  • Mediation
  • Loss of earnings {LOE} (employability)
  • Jurisdiction, Tribunal (binding nature of determination) (previous Tribunal decision)

A personal support worker suffered a hip injury in September 2009, when she slipped and fell. The Board terminated benefits on February 2010, finding that the worker was capable of returning to modified work. In Decision No. 1476/13, the Tribunal found that the worker had entitlement for chronic pain disability, and that she was entitled to full LOE benefits from February 2010 until the date of a non-compensable motor vehicle accident in October 2010. Determination of benefits after October 2010 was remitted back to the Board.
The Board subsequently granted the worker a 30% NEL award for chronic pain disability, and LOE benefits after October 2010 based on ability to work part-time at minimum wage. The worker now appealed, claiming that she was unemployable and has been unemployable since before the motor vehicle accident in October 2010, and that, accordingly, she was entitled to ongoing full LOE benefits after October 2010.
The Vice-Chair noted that Decision No. 1476/13 was mediated resolution of that appeal. As provided in the Tribunal practice direction on Mediation, a mediated agreement can be accepted and incorporated into a decision of the Tribunal. The agreed disposition must be in accordance with the Act and Board policy, and findings of fact on which the disposition is based must be supported by the evidence. Thus, the findings and conclusions in Decision No. 1476/13 are binding in the same way as a decision resulting from a hearing.
Findings of fact in prior Tribunal decisions are binding in subsequent appeals. Findings of fact are not necessarily restricted to a particular past time period; they can, depending on the circumstances, have ongoing relevance to other periods of time under consideration.
Decision No. 1476/13 found that the worker was unemployable as a result of the degree of her impairment and that the level of impairment continued up to the date of the motor vehicle accident in October 2010. The Vice-Chair in this decision was bound by those findings of fact. The Vice-Chair was also bound by the granting of entitlement for chronic pain disability. One necessary criterion for chronic pain disability entitlement under Board policy is that the pain complaints, though not explained by organic causes, are nevertheless genuine.
The Vice-Chair found that the motor vehicle accident was not an intervening cause that broke the chain of causation in relation to the worker's condition. Decision No. 1476/13 found that the worker was unemployable and entitled to full LOE benefits prior to the motor vehicle accident. To find that the motor vehicle accident was an intervening cause would have to be so significant that it overwhelmed any ongoing causal effect of the compensable accident. The motor vehicle accident in this case was not an event of such significance. The worker would not have been unemployable as a result of the motor vehicle accident alone. It was not an overly serious accident. The only confirmed injuries were soft tissue strains. These were superimposed on the compensable chronic pain condition. The motor vehicle accident simply exacerbated further the already substantial chronic pain impairment.
Board Operational Policy Manual, Document No. 15-06-08, on adjusting benefits due to post-accident, non-work-related changes in circumstances, provides that full benefits are maintained if post-accident change is not affecting or impeding treatment of the work-related injury. The Vice-Chair interpreted the impeded treatment to refer to treatment that may result in improvement of the compensable condition and possible return to work. Since the worker in this case was deemed to have reached MMR for her chronic pain disability by October 2010, there was no ongoing treatment that was expected to provide any improvement in her compensable condition. Applying that provision of the policy, the worker's full benefits would normally be maintained.
As stated earlier, the Vice-Chair was bound by the findings in the previous decision that the worker was unemployable immediately before the motor vehicle accident. There was no medical evidence of improvement of the compensable condition after the motor vehicle accident. She remained at least as impaired as she was prior to that event. Accordingly, the worker was entitled to ongoing full LOE benefits.
The appeal was allowed.