Noteworthy Decisions
The following are summaries of recent Tribunal decisions that have been identified by the Tribunal as "noteworthy decisions". These are decisions which you may find of particular interest. They cover novel or unusual issues, different approaches to an issue, procedural points, contentious medical issues and conditions, etc.
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Summaries of Recent Noteworthy Decisions
Decision No. 2321 09 08-Jan-2010 E. Smith
- Future economic loss {FEL} (retroactivity)
- Future economic loss {FEL} (time periods) (extension)
- Temporary partial disability (retroactive adjudication)
| The worker suffered a low back injury in December 1990. He returned to work in April 1991 but stopped working again in December 1991. The Board denied further benefits at that time. In Decision No. 356/06, the Tribunal found that the worker had entitlement for further benefits for ongoing back problems. The Board then granted a 7% NEL award for permanent impairment, temporary partial difference benefits from 1991 to 2003, when the worker returned to his pre-accident work, and a FEL sustainability award at D1 which the Board determined to be in November 2007. The worker appealed a decision of the Appeals Resolution Officer confirming the D1 FEL date. The worker submitted that D1 should have been in December 1991, so that the final R2 FEL review would have been in December 1996 (when he had not returned to pre-accident work), and his locked-in R2 FEL based on minimum wage would have been paid to age 65. The ARO found that FEL benefits should be paid prospectively and not retroactively. This approach was within the discretion of the Board and was consistent with provisions of the Act and Board policy and also with Tribunal decisions. The Board paid temporary partial benefits under s. 37 from 1991 to 2003, using a calculation based on deemed SEB earnings. The fact that the worker would have received more benefits if the Board had paid FEL benefits retroactively to December 1991 was not an exceptional circumstance. The Act and Board policy should be applied consistently. There was no basis for the Vice-Chair to vary the determination of the Board. The appeal was dismissed. |
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| Neutral Citation: | 2010 ONWSIAT 51 |
Decision No. 36 10 08-Jan-2010 M. Faubert
- Second Injury and Enhancement Fund {SIEF} (preexisting condition)
| The worker suffered what he thought was a trivial leg injury but the leg became infected and required prolonged treatment. The employer appealed a decision of the Appeals Resolution Officer denying the employer SIEF relief. The employer submitted that there must have been a pre-existing condition because such a prolonged period of disability would not have resulted from a simple trivial cut. However, the Vice-Chair noted that speculation was not sufficient. Medical records contained no evidence of a pre-existing condition. The appeal was dismissed. |
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| Neutral Citation: | 2010 ONWSIAT 55 |
Decision No. 1294 05 07-Jan-2010 E. Smith - S. Sahay - A. Grande
- Cancer (skin)
- Firefighter
- Presumptions (occupational disease)
| The worker was a firefighter who was diagnosed with malignant melanoma in 2000. He died in 2005. Prior to working as a firefighter, he worked for a tire manufacturing company. The worker’s estate appealed a decision of the Appeals Resolution Officer denying entitlement for the melanoma, which the estate related to exposure as a firefighter or to exposure to lampblack with the tire manufacturing company. Epidemiological evidence did not establish a causal relationship between the worker’s workplace exposure and the malignant melanoma, either from exposure as a firefighter or from tire manufacturing. The Panel concluded that the worker’s cancer was not the result of workplace exposure. The Panel then considered whether the presumption in Schedule 3 or 4 was applicable to this case. Schedule 4 did not apply. Firefighting did not fall within the process of demolition in Column 2 of Schedule 4. There were changes to the wording of Schedule 3 in 2001. The worker was diagnosed with skin cancer in 2000. Accordingly, the version of Schedule 3 prior to 2001 was applicable. Column 1 of Schedule 3 refers to epitheliomatous cancer of ulceration of the skin due to tar, pitch, bitumen, mineral oil or paraffin in any compound, product of residue of any of these substances. The process in Column 2 is the handling or use of any of those products. Since Column 1 included the words “due to,” the issue of medical causation was incorporated into Column 1. The presumption did not apply to the question of medical causation under this wording. Rather, it applied only to any question arising with respect to the relationship between the substances used and the medical condition. Thus, the question of whether the cancer is due to those substances must be based on the balance of probabilities. The Panel found that the cancer was not the result of the worker’s workplace exposure. The Panel noted that it was not clear that Schedule 3 would have applied even after the 2001 amendments because the general work of firefighting is not a process within the meaning of Column 2. Regarding lampblack, the worker was not working in a process that involved the handling or use of tar, pitch, bitumen, mineral oil or paraffin. Therefore, Schedule 3 did not apply, under either version of the Schedule. Even if the worker had been working in a process within the terms of Column 2, and PAHs became attached to the lampblack, Schedule 3 did not apply because it only applied if the PAHs were a compound, product or residue of the item listed. Attached lampblack was still not a compound, product or residue of lampblack itself. The appeal was dismissed. |
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| Neutral Citation: | 2010 ONWSIAT 32 |
Decision No. 1021 09 I 05-Jan-2010 A. Patterson - E. Tracey - D. Broadbent
- Charter of Rights
- Loss of earnings {LOE} (review) (after seventy-two months)
| The worker suffered a knee injury in July 1998. In September 2005, he underwent knee replacement surgery. The worker appealed a decision of the Appeals Resolution Officer denying LOE benefits for the surgery and recovery period. The Board denied the benefits because the surgery occurred after the final 72-month LOE review. The worker submitted that he was entitled to the review under s. 44(2.1)(c) of the WSIA. The Panel found that s. 44(2.1)(c) did not apply because there was no redetermination of the degree of permanent impairment. The worker’s knee was assessed but the assessment did not result in an increase in the worker’s NEL rating. The worker also submitted that he was entitled to the review under s. 44(2.1)(f), which allows a review if the worker suffers a significant temporary deterioration. However, the Panel noted that s. 44(21.)(f) did not apply because s. 44(2.9) provides that s. 44(2.1)(f) applies only is a worker is suffering a temporary deterioration on or after July 1, 2007. The Panel concluded, based on the provisions of the WSIA, that the worker was not entitled to further LOE benefits. The worker submitted that the provisions of s. 43 were contrary to the Canadian Charter of Rights and Freedoms and the Ontario Human Rights Code. The hearing will reconvene to consider that issue. |
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| Neutral Citation: | 2010 ONWSIAT 8 |
Decision No. 2010 09 31-Dec-2009 R. McClellan - E. Tracey - M. Ferrari
- In the course of employment (working at home)
| The worker was a health care aide. She suffered a right shoulder injury at work in May 2006. The employer provided the worker with a modified work assignment, working 31.5 hours per week in her own home on the employer’s homestudy project. On July 4, 2006, the worker was at home working on the project, when she took a break to go to the washroom. On her way back from the washroom, she slipped and fell, suffering a left shoulder injury. The worker appealed a decision of the Appeals Resolution Officer denying entitlement for the left shoulder injury. The employer submitted that the accident at home took place out of regular 9 am to 5 pm work hours and that, accordingly, the worker was not in the course of employment at the time of the accident. However, the Panel found that flexible hours were reasonable considering the nature of the homestudy project and the worker’s right shoulder condition. The employer submitted that it would be unreasonable to impose a burden of 24-hours-per-day liability on the employer for accidents. The Panel stated that it was not proposing 24-hour liability. Rather, entitlement for workers working at home should be adjudicated on the basis of the nature of the activity at the time of the accident. Accordingly, a worker would not have entitlement for an accident while cooking supper or taking out the garbage but would have entitlement for an accident while performing a work-related activity. In this case, the worker was working on the homestudy project, when she took a washroom break, which was reasonably incidental to employment. The worker had entitlement for the home accident. The appeal was allowed. |
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| Neutral Citation: | 2009 ONWSIAT 3036 |
Decision No. 2082 07 31-Dec-2009 S. Ryan - B. Wheeler - D. Broadbent
- Smoking (second-hand smoke)
- Cancer (tonsil)
| The worker was diagnosed with squamous cell carcinoma of the left tonsil in 1989. The worker appealed a decision of the Appeals Resolution Officer denying entitlement for the cancer. The worker related the cancer to second-hand smoke while travelling to and from the employer’s work site on an employer bus between March 1975 and May 1976. Medical experts who reviewed the history of this case found a causal relationship unlikely. There was a lack of epidemiological evidence supporting a specific association between exposure to second-hand smoke and squamous cell carcinoma of the tonsil. The worker’s exposure was not particularly high or of long duration. The Standard Incidence Ratio (SIR) was only about 121. The Vice-Chair concluded that the worker’s cancer was not related to workplace exposure. The appeal was dismissed. |
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| Neutral Citation: | 2009 ONWSIAT 3035 |
Decision No. 2432 08 30-Dec-2009 J. Bigras
- Arising out of employment
- Disablement (nature of work)
- Board Directives and Guidelines (disablement) (specific incident)
| A bus driver appealed a decision of the Appeals Resolution Officer denying entitlement for a shoulder strain. The worker had been a bus driver for over 20 years. She was five feet three inches tall, and had to jump to adjust a mirror that was seven and a half feet above the floor, and tap the mirror with her right hand. The shoulder injury occurred in the course of employment. However, there was no chance event that occurred. Accordingly, the case had to be determined under the disablement branch of the definition of accident. Board policy provides that a disablement may include a condition that emerges over time or an unexpected result of a work activity. In this case, the right shoulder injury was an unexpected result of her work activity in jumping to tap the mirror. Accordingly, the accident also arose out of employment. The appeal was allowed. |
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| Neutral Citation: | 2009 ONWSIAT 3026 |
Decision No. 2081 03 22-Dec-2009 R. Nairn - B. Wheeler - R. Lebert
- Jurisdiction, Board (class of employer)
- Class of employer (manufacturing) (electronic parts)
- Class of employer (manufacturing) (motor vehicle electrical parts)
| The employer was originally classified in Rate Group 468 for electronic parts. In 1994, the Board reclassified the employer into Rate Group 421 for motor vehicle electrical parts. In Decision No. 499/00I, the Tribunal found that the best fit for the employer was in Rate Group 468 for the period from 1993 to 1997. The question of classification after that date was returned to the Board. Effective 1998, the Board amended Rate Group 468 to exclude items manufactured for the motor vehicle industry. The Board again reclassified the employer into Rate Group 421 as of 1998. The employer submitted that the Board did not have authority to make such an amendment to Rate Group without appropriate approval from the Board’s board of directors. Considering the provisions in ss. 118(1), 118(2), 159(2) and 183(2) of the WSIA, the Board has a duty to maintain the insurance fund in a viable position and bears the responsibility for making its best efforts to classify employers without imposing a burden on them. The Board has exclusive jurisdiction to design a classification scheme and place employers within the various classification units. The Tribunal’s role is not to attempt to re-write or modify the classification unit descriptions but to determine which of the classification units is the best fit for a particular employer. As a general proposition, it was clearly open to the Board to amend its description of Rate Group 468. Neither the statute nor the regulations specifically addresses how the Board is to design and amend the classification scheme. As a result, the Board has the discretion to amend or modify the classification scheme to ensure that business activities are correctly classified. Given that Rate Group now specifically excludes items manufactured for the motor vehicle industry, which is the essential character of the employer’s business in this case, the best fit for the employer is Rate Group 421. The employer suggested that the amendment by the Board of its policy to add the exclusion was an intrusion into the federal sphere by creating a greater tax on the employer. However, the Panel agreed with the recent trend in jurisprudence to characterize the Board premiums as an insurance premium rather than a tax. The appeal was dismissed. |
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| Neutral Citation: | 2009 ONWSIAT 2985 |
Decision No. 1746 09 22-Dec-2009 R. Nairn - E. Tracey - A. Grande
- Class of employer (ancillary operation)
- Class of employer (associated employers)
- Class of employer (construction of buildings) (home building operations)
- Class of employer (construction project management)
| A construction management company appealed a decision of the Appeals Resolution Officer finding that its business activity was ancillary to a home building company and, therefore, classifying the management company in Rate Group 764 for home building operations. The owner of the management company and the construction company were brother and sister. As such, pursuant to s. 11 of O. Reg. 175/98, the two companies were associated. It still remained to be determined whether the operation of the management company was ancillary to the business activity of the construction company under s. 6 of the regulation. The Board found that the management company came with s. 6(3) para. 11 for administration related to the construction company’s operations. The Panel reviewed the operations of the two companies and found that they were separate legal entities, that the management company hired and paid for its own workers, that there was no relationship between the two companies other than the fact that the owners were brother and sister, that the intention was for the management company to be independent and that the management company could offer its services to others. The panel also noted that the owner of the management company was trained and had worked as a chartered accountant for a number of years, and that her goal was to establish her own consulting business and not merely to be part of her brother’s construction company. The Panel concluded that the business activity of the management company was not incidental to that of the construction company. The management company should classified on its own. There were possible classifications in Rate Group 958 for management consulting services and Rate Group 723 for construction project management. The Panel found that the best fit for the management company was in Rate Group 958. The appeal was allowed. |
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| Neutral Citation: | 2009 ONWSIAT 2991 |
Decision No. 2130 09 22-Dec-2009 S. Netten - M. Trudeau - R. Briggs
- Intervening causes
- Labour market re-entry {LMR} (eligibility) (lay-off)
- Loss of earnings {LOE} (retirement) (early)
| The worker suffered a repetitive strain injury in May 2006. The employer provided suitable modified work. The worker resigned in November 2006 for personal reasons. In December 2007, the realized that he made a mistake in resigning, and requested re-employment. The employer refused. The worker appealed a decision of the Appeals Resolution Officer denying LOE benefits or LMR services after December 2007. When a worker voluntarily resigns from suitable employment, the loss of earnings results from the resignation and not from the injury. In effect, the resignation constitutes and intervening event that breaks the chain of causation between the injury and the loss of earnings. Thus, the worker is not entitled to LOE benefits because the loss of earnings is not a result of the injury, as required by s. 43(1) of the WSIA. As found in Decision No. 2520/08I, a disentitlement to LOE benefits under s. 43(1) does not always have to be permanent. Entitlement may be granted subsequently when the worker has a continuing impairment affecting the worker’s ability to earn and the intervening event is no longer a significant factor in the loss of earnings. The Vice-Chair expanded on that test in Decision No. 2520/08I by adding that there has been a material change in circumstances such that the intervening event is no longer a significant factor in the loss of earnings. Further entitlement could be allowed, for example, when a non-compensable illness resolved, when there was deterioration in the worker’s condition such that the worker could not have continued in the previous position, or where the previous position was discontinued. In this case, the Panel found that the worker’s resignation continued to be the overwhelming factor in his loss of earnings. The refusal to re-employ the worker in December 2007 did not constitute a material change in circumstances. An employer was not obliged to maintain suitable work for an employee who has resigned. It is sufficient that the employer had suitable work available on an ongoing basis at the time of the resignation in November 2006. The worker was not entitled to further LOE benefits. Section 42(1) requires the Board to provide an LMR assessment if it is unlikely that the worker will be re-employed because of the nature of the injury, if the employer has been unable to arrange appropriate work or if the employer is not co-operating with ERSTW. The worker did not qualify under any of the three criteria. First, the worker was not re-employed because he has resigned, not because of the nature of the injury. Secondly, the employer had arranged appropriate work. Thirdly, ESRTW obligations did not survive the unequivocal termination of the employment relationship for reasons unrelated to the compensable injury. The worker was not entitled to LMR services. The appeal was dismissed. |
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| Neutral Citation: | 2009 ONWSIAT 2982 |
Decision No. 1046 09 22-Dec-2009 M. Crystal
- Early and safe return to work {ESRTW} (cooperation)
- Second Injury and Enhancement Fund {SIEF} (preexisting condition)
- Loss of earnings {LOE} (disabled by non-compensable condition)
| The worker suffered a shoulder injury in March 2006. The employer appealed a decision of the Appeals Resolution Officer denying the employer SIEF relief and granting the worker LOE benefits for one week in January 2007. On the evidence, the worker did not have a pre-existing condition that would make her more liable to develop a disability of greater severity than a normal person. The employer was not entitled to SIEF relief. By December 2006, the worker was working four hours per day in keeping with her ESRTW plan. The worker was off work for one week in January 2007 because she had the flu. The flu was clearly a non-compensable condition. During that week in January, she was unable to work the four hours per day. None the less, the Vice-Chair was satisfied that the worker was co-operating with ESRTW during that week to the extent of her ability to do so. Her inability to attend work was beyond her control and did not amount to a lack of co-operation with ESRTW. Board policy provides that workers are entitled to LOE benefits if they co-operate in ESRTW and continue to experience a loss of earnings. The worker continued to experience a loss of earnings during the period in question reflecting the four hours per day she was unable to work due to her compensable injury. The worker was entitled to LOE benefits. The appeal was dismissed. |
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| Neutral Citation: | 2009 ONWSIAT 2984 |
Decision No. 1606 09 21-Dec-2009 R. Nairn
- Health care (attendance allowance) (registration as employer)
| The worker suffered compensable injuries, for which the Board granted the worker a personal care allowance. The worker appealed a decision of the Appeals Resolution Officer denying reimbursement for certain costs. The worker’s wife was a nurse. The worker paid his wife to provide the personal care as a non-agency attendant. Board policy required the worker to register as an employer when in receipt of a personal care allowance. The policy notes that, as an employer, the worker is required to make remittances for CPP, EI and income tax, and that the Board reimburses the employer’s portion of the remittances. In 2006, the worker became award that, due to changes in the Employment Standards Act, his wife, as a part-time employee, was eligible to receive pay for public holidays. The worker obtained a ruling from an Employment Standards Officer, who determined that wife was entitled to public holiday pay and that the worker was required to submit payment of about $550 for the period in question. In addition, the worker also had to make some additional CPP payments because of the extra public holiday pay his wife was receiving. The worker requested reimbursement from the Board for these amounts. The Board denied the reimbursement because it took the view that the listing of CPP, EI and income tax in the Board policy was an exhaustive list of the expenses for which the Board will provide reimbursement. However, the Vice-Chair noted that the policy provides that the worker must register and make the appropriate remittances. The Vice-Chair found that CPP, EI and income tax are merely examples of some of the appropriate remittances which a worker must make to the federal and provincial governments and for which the Board will offer reimbursement. In support of this view, the Vice-Chair referred to a Board guide which refers to additional reimbursement for Employer Health Tax payments. Given the statutory requirement to pay for public holidays, the Vice-Chair found it appropriate to reimburse for these costs, just as it would reimburse for CPP, EI and income tax. The appeal was allowed. |
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| Neutral Citation: | 2009 ONWSIAT 2965 |
Decision No. 2214 09 18-Dec-2009 W. Sutton
- Merits and justice
- Non-economic loss {NEL} (lump sum)
| The worker suffered a low back injury in 1995. He suffered a neck and back injury in 2003. After the worker achieved MMR in 2005, the Board granted a 37% NEL award for the 2003 injury. In Decision No. 1535/06, released in July 2007, found that the worker was entitled to a 7% NEL award for the back injury suffered in the 1995 accident. As a result, the Board adjusted the NEL award for the 2003 injury to 32%. Based on this adjustment, the Board paid the value of the 32% NEL award, which was $10,400, as a lump sum. The worker appealed, requesting reinstatement of the NEL award as a monthly benefit. Section 46(3) of the WSIA provides for payment of a NEL award as a lump sum if the amount payable is less than the lump sum cut-off. If it is greater than the cut-off, the NEL award is paid monthly unless the worker elects to receive a lump sum. The value of the NEL award for the 2003 accident, when it was assessed after MMR in 2005, was above the cut-off. The worker did not elect to receive a lump sum. Accordingly, the worker was paid a monthly benefit. After the granting of the NEL award for the 1995 accident and the adjustment of the NEL award for the 2003 accident, the value of the NEL award for the 2003 accident was reduced to an amount below the cut-off. Accordingly, the Board paid it as a lump sum. The language of s. 46(3) is imperative. There is no discretion to pay monthly benefits if the value of the award is below the cut-off. Given the imperative language of the section, the merits and justice provisions did not apply, even though the worker may have been above the cut-off if the award for the 1995 accident had been granted first. The appeal was dismissed. |
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| Neutral Citation: | 2009 ONWSIAT 2951 |
Decision No. 1030 09 18-Dec-2009 S. Netten - M. Christie - D. Broadbent
- Chronic pain
- Apportionment (non-economic loss) (preexisting conditions)
| The worker suffered back and neck injuries in 1987 and 1989. In Decision No. 863/97, the Tribunal found that the worker had entitlement for chronic pain but that the pension for chronic pain should be reduced by half, based on a major pre-existing disability. The Board rated the worker’s pension for chronic pain at 20%, reduced it by half, and granted a 10% pension. In 1999, the worker suffered a back and head injury in a compensable accident. The Board assigned a 70% NEL rating for chronic pain but reduced the NEL award to 25% based on the prior pension and the major pre-existing disability. The Board also denied entitlement for temporomandibular joint dysfunction resulting from the 1999 accident. The worker appealed. On the evidence, the TMJ was not related to the 1999 accident. Where NEL entitlement relates to a condition for which a worker already has a permanent disability, Board policy requires that the pre-existing disability be factored out. For a pre-existing non-work-related impairment, the total impairment is reduced by the rating for the pre-existing impairment if measurable, or by a set percentage if not measurable. The percentage is 50% for a major pre-existing impairment. For a pre-existing condition for which a pension has been granted, the total impairment is reduced by the pension rating. The worker had received a 20% rating for chronic pain, which was reduced by half due to the major pre-existing condition, resulting in a 10% pension. At that point, the pre-existing disability was measurable. At the time of the 1999 accident, the worker had a 10% non-work-related disability and a 10% pre-existing pension. Thus, the 70% rating after the 1999 accident should be reduced by 20%, and the worker was entitled to a 50% NEL award to reflect the additional impairment resulting from the 1999 accident. The appeal was allowed in part. |
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| Neutral Citation: | 2009 ONWSIAT 2943 |
Decision No. 1774 09 17-Dec-2009 T. Mitchinson
- Loss of earnings {LOE} (review) (after seventy-two months)
| The worker suffered a back injury in 1991, for which she was granted a 30% NEL award for chronic pain. In Decision No. 313/03, the Tribunal increased the award for chronic pain to 40%. The worker suffered three further back injuries in May 2000, December 2000 and January 2003. The Board found that the worker had a permanent neck injury resulting from the May 2000 accident and that she reached maximum medical recovery in May 2003. The Board granted a 19% NEL award for the neck injury in 2007. The worker appealed a decision of the Appeals Resolution Officer denying LOE benefits after May 2003, including benefits beyond the final 72-month review in June 2006. On the evidence, the worker was not totally disabled after May 2003, despite recognition of the permanent neck impairment. She was not entitled to LOE benefits from May 2003 to the final LOE review in June 2006. The worker was also not entitled to review of LOE benefits after the final 72-month LOE review. Section 44(2.1)(c) allows review of LOE benefits after 72 months if the worker suffers a significant deterioration that results in redetermination of the degree of permanent impairment. The worker did not qualify for review under this section. There was no existing organic NEL award for the neck impairment prior to its being granted after the 72-month review. The language of s. 44(2.1)(c) is clear. There can be no review in the absence of a prior NEL award that has been increased as a result of a significant deterioration. The appeal was dismissed. |
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| Neutral Citation: | 2009 ONWSIAT 2928 |
Decision No. 1932 09 15-Dec-2009 J. Moore - E. Tracey - J. Crocker
- Police
- Stress, mental
- Telephone operator
- Board Directives and Guidelines (stress, mental) (traumatic event)
| The worker appealed a decision of the Appeals Resolution Officer denying entitlement for traumatic mental stress. The worker was a dispatcher for a police department. On February 10, 2007, a co-worker took a call from a person who was wanted by the police and wanted to turn himself in. The co-worker initiated a possible pick-up of the caller by a patrol car. Fifteen minutes later, the caller called again, this time speaking to the worker. The caller stated that he had not been picked up by a patrol car but still wanted to turn himself in. The caller said he would go to the nearest police station himself. The caller did not, in fact, turn himself in. One week later, he killed two men during an altercation. The worker was unaware that the killer was the caller to whom she had spoken until, on March 1, 2007, she was approached by a senior officer and informed that an investigation was being initiated regarding the call she took on February 10. After an internal investigation that lasted several months, the worker was exonerated. Board policy provides that a worker is entitled to benefits for traumatic mental stress that is an acute reaction to a sudden and unexpected traumatic event. A claimed traumatic event must be clearly and precisely identifiable, objectively traumatic and unexpected in the normal of the worker’s employment. The worker suffered a psychological reaction after March 1. The Panel was satisfied that what transpired on March 1 was a sudden and unexpected event that caused the worker to believe that her actions two weeks earlier had led to the deaths of two men. The triggering event was the implicit blame for the deaths of the two men. This was a clear and precisely identifiable event. The event was outside the normal course of employment and was objectively traumatic and unexpected. Further, the mental stress was not related to an employment decision to investigate the worker’s actions. Rather, its was the implication of the decision to investigate, that her actions may have led to the deaths of the two men, whether or not she had complied with protocol when taking the call. The worker had entitlement for traumatic mental stress. The appeal was allowed. |
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| Neutral Citation: | 2009 ONWSIAT 2891 |
Decision No. 707 09 IR 15-Dec-2009 J. Moore
- Jurisdiction, Tribunal (right to sue) (statutory accident benefits)
- Reconsideration (consideration of evidence)
- Right to sue (statutory accident benefits) (assignment of benefits)
| The plaintiff brought a civil action against the defendant regarding injuries suffered in a motor vehicle accident. In Decision No. 707/09I, the Vice-Chair found that both the plaintiff and the defendant were workers in the course of employment for Schedule 1 employers at the time of the accident. In this decision, the Vice-Chair dealt with an application by the Statutory Accident Benefits insurer from whom the plaintiff received benefits. The plaintiff filed a claim for workplace insurance benefits after the accident. Upon seeking SABs, the plaintiff signed an assignment of WSIB benefits, agreeing that, if he received benefits under the WSIA, he was obligated to pay back any SABs received. Because of a dispute between the plaintiff and the insurer, the plaintiff brought another action against the insurer. The insurer now brought this application to the Tribunal for a declaration that the plaintiff’s action against the insurer was barred by the WSIA, that the plaintiff was obligated to proceed through the WSIB process and that the insurer was entitled to repayment of monies paid to the plaintiff. The Vice-Chair found that the insurer was not entitled to any of the remedies requested. There was nothing in the WSIA to prevent a worker from commencing a legal action against a private insurer. Similarly, the Tribunal does not have jurisdiction to declare that the plaintiff was obligated to proceed through the WSIB. However, the Vice-Chair did find in Decision No. 707/09I that the plaintiff’s right of action in the motor vehicle accident claim was taken away and that the plaintiff was entitled to claim workplace insurance benefits. Based on those findings, the insurer is in a position to seek appropriate remedies under the Insurance Act. The insurer was not entitled to a declaration requiring the plaintiff to repay the SABs. The assignment signed by the plaintiff was a private contract which did not fall within the jurisdiction of the Tribunal. Further, the assignment was a matter that fell within the purview of s. 30 of the WSIA, regarding which the Tribunal did not have jurisdiction. The plaintiff also was requesting reconsideration of Decision No. 707/09I. The Vice-Chair denied the application. The Vice-Chair considered the evidence and came to a reasonable conclusion. |
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| References: | Act Citation Other Case Reference |
| Style of Cause: | Simpson v. Barr |
| Neutral Citation: | 2009 ONWSIAT 2895 |
Decision No. 2435 09 14-Dec-2009 B. Doherty
- Loss of earnings {LOE} (self-employment)
| A machine operator suffered a back injury in February 2001. The worker appealed a decision of the Appeals Resolution Officer denying LOE benefits from October 2006 to March 2007. The worker wanted to work with children. The Board originally found that a SEB in child care was not appropriate for the worker. The worker opened her own day care business in October 2006. By March 2007, she had restored her pre-accident earnings. The ARO found that a SEB in child care was appropriate. The Vice-Chair found that the start-up phase of a new business was a reasonable component of a self-directed LMR plan. The plan was successful. The worker was entitled to LOE benefits during the period in question. The appeal was allowed. |
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| References: | Act Citation Other Case Reference |
| Neutral Citation: | 2009 ONWSIAT 2881 |
Decision No. 2018 09 09-Dec-2009 J. Josefo
- Farming
- Minor
- Right to sue
- Worker (contract of service) (family member)
| The plaintiff in a civil action was a 12-year-old boy who was injured in a motor vehicle accident while driving an all terrain vehicle across a road as he was travelling back from a remote farm field to the farm house. The plaintiff’s grandfather was the boss of the farm. The plaintiff brought the action against the driver of the other vehicle and against his grandfather. The insurer of the grandfather applied for a determination of whether the plaintiff’s right of action was taken away. The issue was whether the plaintiff was a worker of the grandfather. Evidence indicated that the plaintiff had displayed in interest and aptitude for farm work from an early age. The grandfather tried to encourage this and to instil values in his grandson. The plaintiff was performing work when he was out in the field. He was scuffling beans, a delicate operation which, if not performed correctly, could destroy part or even all of the crop in that field. The plaintiff was performing this work alone on the day in question, during summer vacation. The plaintiff was paid some monies while performing work on the farm. However, there was no intent to create an employment relationship. The grandfather wanted to teach the plaintiff about the business of farming, including the need to finish tasks in a timely fashion and the value of money. These are life lessons that parents and grandparents often teach their children and grandchildren. However, doing so does not convert a familial relationship into an employment relationship. The plaintiff was not a worker of the grandfather. His right of action was not taken away. |
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| References: | Act Citation Other Case Reference |
| Style of Cause: | Murray v. Bes |
| Neutral Citation: | 2009 ONWSIAT 2851 |
Decision No. 1449 09 08-Dec-2009 R. Nairn - B. Wheeler - J. Crocker
- Intervening causes
- Drug abuse
- Labour market re-entry {LMR} (cooperation) (disabled by non-compensable condition)
- Benefits (reduction or suspension) (cooperation)
| The worker suffered a back injury in 2000, for which he was granted a 21% NEL award. The worker’s LMR program was terminated in January 2006, due to non-co-operation. The worker appealed a decision of the Appeals Resolution Officer denying reinstatement of the LMR program. The worker’s participation in LMR was disrupted due to non-compensable substance abuse. The Panel agreed with Decision No. 2520/08I, and concluded that the worker’s difficulties did not constitute a complete bar to receipt of further assistance from the Board. The substance abuse constituted a non-compensable intervening condition that warranted suspension but not termination of entitlement to LMR assistance. There was evidence indicating that the worker has been able to get his substance abuse problems under control and that he has been attempting to get back to work. The worker continues to experience a loss of earnings related to his compensable injury. In the circumstances, the worker should be given another opportunity to receive LMR assistance. The appeal was allowed. |
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| References: | Act Citation Other Case Reference |
| Neutral Citation: | 2009 ONWSIAT 2836 |
