Apportionment (occupational disease)
Board policy provides for exclusion of seven specific long latency diseases from NEER experience rating – Policy was based on Board Minute that excluded long latency diseases from experience rating – Worker’s condition was of type addressed in the Minute but was not specifically in the list of seven diseases in the Board policy – In circumstances, and considering merits and justice of case, claim should be excluded from employer’s NEER rating. |
Decision No. 1926/06 |
Smith, E. (Stewart, G., Broadbent, D.) |
Assessment of employers (retroactivity)
In implementing decision to reclassify portion of employer’s payroll, Board correctly recalculated not only the premiums for the transferred employees, but also the employer’s NEER experience rating charges based on the new classifications. |
Decision No. 573/05 |
Smith, E. |
Benefits (deductions)
Worker received $44,000 from employer as result of settlement of grievance regarding long-term disability benefits – Board correctly deducted amount of settlement from retroactive benefits payable to worker, in accordance with s. 45(1) of the pre-1997 Workers’ Compensation Act – Settlement arose out of same facts giving rise to claim, and was a payment in respect of a work-related accident – Settlement did not constitute waiver of benefits – Worker did not waive workers’ compensation benefits. |
Decision No. 2455/06 |
Moore, J. |
Board Directives and Guidelines (earnings basis) (non-permanent or irregular employment)
Construction worker was injured on fourth day of employment – It was intended that worker would work regular hours and would be employed all year – In circumstances, worker was in permanent employment, and there was no basis to change long-term earnings basis from short-term basis. |
Decision No. 215/07 |
Parmar, J. |
Board Directives and Guidelines (earnings basis) (unemployment insurance benefits)
Worker was injured in October 1996 – Version of Board policy as it existed at time of accident was applicable – That policy did not bar inclusion of employment insurance benefits in calculation of earnings basis under s. 40(1)(b) of the pre-1997 Workers’ Compensation Act – Tribunal is required to apply Board policy but has jurisdiction to interpret meaning of working found in policy – Not all provisions in policy package sent by Board to Tribunal are relevant to any particular appeal – Decision not to apply provisions in a policy simply means that provisions were not relevant, based on findings in particular case. |
Decision No. 878/06R |
Smith, E. |
Board Directives and Guidelines (health care) (dental aid) (denture replacement)
Board policy provides for discretion with respect to future replacement costs when worker paid portion of original costs – In circumstances, worker paid original cost for additional extractions of other previously compromised teeth and Board paid for denture – Worker was entitled to reimbursement for cost of later replacement of denture. |
Decision No. 2005/06 |
Smith, E. |
Board Directives and Guidelines (training) (unpaid placement)
Worker participated in a training program that included a placement – Worker was injured while on the placement – Worker had entitlement for accident – Worker was a learner within the definition of worker in the pre-1997 Workers’ Compensation Act – Employer was employer with whom she was placed. |
Decision No. 2197/00 |
Cook, B. (Wheeler, B., Crocker, J.) |
Board policies (applicability of Board policy)
Worker was injured in October 1996 – Version of Board policy as it existed at time of accident was applicable – That policy did not bar inclusion of employment insurance benefits in calculation of earnings basis under s. 40(1)(b) of the pre-1997 Workers’ Compensation Act – Tribunal is required to apply Board policy but has jurisdiction to interpret meaning of working found in policy – Not all provisions in policy package sent by Board to Tribunal are relevant to any particular appeal – Decision not to apply provisions in a policy simply means that provisions were not relevant, based on findings in particular case. |
Decision No. 878/06R |
Smith, E. |
Board policies (interpretation)
Worker was injured in October 1996 – Version of Board policy as it existed at time of accident was applicable – That policy did not bar inclusion of employment insurance benefits in calculation of earnings basis under s. 40(1)(b) of the pre-1997 Workers’ Compensation Act – Tribunal is required to apply Board policy but has jurisdiction to interpret meaning of working found in policy – Not all provisions in policy package sent by Board to Tribunal are relevant to any particular appeal – Decision not to apply provisions in a policy simply means that provisions were not relevant, based on findings in particular case. |
Decision No. 878/06R |
Smith, E. |
Class of employer
In implementing decision to reclassify portion of employer’s payroll, Board correctly recalculated not only the premiums for the transferred employees, but also the employer’s NEER experience rating charges based on the new classifications. |
Decision No. 573/05 |
Smith, E. |
Construction
Construction worker was injured on fourth day of employment – It was intended that worker would work regular hours and would be employed all year – In circumstances, worker was in permanent employment, and there was no basis to change long-term earnings basis from short-term basis. |
Decision No. 215/07 |
Parmar, J. |
Death (maintenance of claim by estate)
Common law spouse was not a spouse within meaning of Succession Law Reform Act – In circumstances, common law spouse did not have authority to bring appeal on behalf of worker’s estate unless she obtained certificate of appointment as the estate trustee. |
Decision No. 2352/06I |
Martel, S. (Seguin, J., Besner, D.) |
Disablement (nature of work)
Medical literature indicated that there was insufficient evidence to establish a relationship between manual labour and Dupuytren’s contracture. |
Decision No. 2404/05 |
Gehrke, L. |
Dupuytren's contracture
Medical literature indicated that there was insufficient evidence to establish a relationship between manual labour and Dupuytren’s contracture. |
Decision No. 2404/05 |
Gehrke, L. |
Earnings basis (long-term)
Construction worker was injured on fourth day of employment – It was intended that worker would work regular hours and would be employed all year – In circumstances, worker was in permanent employment, and there was no basis to change long-term earnings basis from short-term basis. |
Decision No. 215/07 |
Parmar, J. |
Earnings basis (overtime)
Overtime worked by worker on day of accident should be included in determination of whether worker worked overtime in each of four weeks prior to accident. |
Decision No. 1521/06 |
Kenny, M. |
Election (deemed)
Worker who suffers accident under circumstances in which worker may be entitled to bring action against a third party, is required to elect whether to claim benefits or bring action – There may be circumstances in which it is appropriate to deem a worker to have made an election but mere fact of receipt of workers’ compensation benefits is not determinative of whether worker should be deemed to have elected to claim benefits. |
Decision No. 1782/04 |
McCutcheon, R. (Robb, J., Hodgkiss, P.) |
Employer (construction)
Interdependence of integration of business activities is not conclusive of an employment relationship – In circumstances, installers used by subcontractor had to perform the installations personally, but were still found to be independent operators and not workers of the subcontractor. |
Decision No. 382/06 |
Smith, E. (Christie, M., Hodgkiss, P.) |
Employment (retirement) (mandatory)
Under s. 43(1)(c) of Workplace Safety and Insurance Act, 1997, a 63 year-old worker is entitled to benefits for up to two years after injury – Worker is only entitled to benefits for two full years if none of other subsections of s. 43(1) come into play and end benefits earlier – In circumstances, employer had policy of mandatory retirement at age 65 but worker likely would have found employment with a different employer and continued working past age 65 – Worker was entitled to benefits for two full years. |
Decision No. 512/06I |
Silipo, T. |
Experience rating (NEER)
Board policy provides for exclusion of seven specific long latency diseases from NEER experience rating – Policy was based on Board Minute that excluded long latency diseases from experience rating – Worker’s condition was of type addressed in the Minute but was not specifically in the list of seven diseases in the Board policy – In circumstances, and considering merits and justice of case, claim should be excluded from employer’s NEER rating. |
Decision No. 1926/06 |
Smith, E. (Stewart, G., Broadbent, D.) |
Experience rating (NEER) (three year window)
In implementing decision to reclassify portion of employer’s payroll, Board correctly recalculated not only the premiums for the transferred employees, but also the employer’s NEER experience rating charges based on the new classifications. |
Decision No. 573/05 |
Smith, E. |
Health care (dental aid)
Board policy provides for discretion with respect to future replacement costs when worker paid portion of original costs – In circumstances, worker paid original cost for additional extractions of other previously compromised teeth and Board paid for denture – Worker was entitled to reimbursement for cost of later replacement of denture. |
Decision No. 2005/06 |
Smith, E. |
Hepatitis
Hospital porter had entitlement for hepatitis C. |
Decision No. 1903/01R2 |
Smith, E. |
Hospital employment (porter)
Hospital porter had entitlement for hepatitis C. |
Decision No. 1903/01R2 |
Smith, E. |
Independent operator (construction)
Interdependence of integration of business activities is not conclusive of an employment relationship – In circumstances, installers used by subcontractor had to perform the installations personally, but were still found to be independent operators and not workers of the subcontractor. |
Decision No. 382/06 |
Smith, E. (Christie, M., Hodgkiss, P.) |
Initial entitlement (previous right to sue application)
Right of action of worker’s wife against employer regarding worker’s fatal heart attack, was taken away in earlier decision – Decisions in right to sue cases based on assumption that facts as allege could be proven in subsequent trial – In circumstances, wife also not entitled to workplace insurance benefits. |
Decision No. 1670/06 |
Martel, S. |
Jurisdiction, Tribunal (right to sue) (statutory accident benefits)
Statutory accident benefits insurer had status to bring application for declaration under s. 31(1)(a) of the Workplace Safety and Insurance Act, 1997, that the right to commence an action was taken away. |
Decision No. 14/06 |
Moore, J. |
Labour market re-entry {LMR} (cooperation)
Worker who did not participate in ESRTW or LMR activities but was capable of working in some capacity was entitled to LOE benefits based on earnings achievable without training. |
Decision No. 2500/06 |
Silipo, T. |
Loss of earnings {LOE} (level of benefits)
Worker who did not participate in ESRTW or LMR activities but was capable of working in some capacity was entitled to LOE benefits based on earnings achievable without training. |
Decision No. 2500/06 |
Silipo, T. |
Loss of earnings {LOE} (older worker)
Under s. 43(1)(c) of Workplace Safety and Insurance Act, 1997, a 63 year-old worker is entitled to benefits for up to two years after injury – Worker is only entitled to benefits for two full years if none of other subsections of s. 43(1) come into play and end benefits earlier – In circumstances, employer had policy of mandatory retirement at age 65 but worker likely would have found employment with a different employer and continued working past age 65 – Worker was entitled to benefits for two full years. |
Decision No. 512/06I |
Silipo, T. |
Merits and justice
Board policy provides for exclusion of seven specific long latency diseases from NEER experience rating – Policy was based on Board Minute that excluded long latency diseases from experience rating – Worker’s condition was of type addressed in the Minute but was not specifically in the list of seven diseases in the Board policy – In circumstances, and considering merits and justice of case, claim should be excluded from employer’s NEER rating. |
Decision No. 1926/06 |
Smith, E. (Stewart, G., Broadbent, D.) |
Natural justice (procedural error) (full and fair hearing)
It is not improper for adjudicators to refer to decisions not referenced by parties so long as it can be fairly said that parties had the opportunity to reference such decisions had they wished to do so – In any event, in circumstances, decisions were not novel or unusual and did not represent a departure from the law in the area. |
Decision No. 2165/04R |
Josefo, J. |
Occupational disease
Worker had hearing loss sufficient for permanent disability award dating back to 1963 but was not entitled to pension at that time due to s. 116(1) of Workmen’s Compensation Act, R.S.O. 1960, c. 437, which was applicable at the time, and limited compensation for occupational disease to circumstances where worker was disabled from earning full wages at work at which he was employed – Worker was entitled to pension retroactive to 1970 when he left the employment that caused the hearing loss. |
Decision No. 126/07 |
Cook, B. |
Permanent disability (hearing loss)
Worker had hearing loss sufficient for permanent disability award dating back to 1963 but was not entitled to pension at that time due to s. 116(1) of Workmen’s Compensation Act, R.S.O. 1960, c. 437, which was applicable at the time, and limited compensation for occupational disease to circumstances where worker was disabled from earning full wages at work at which he was employed – Worker was entitled to pension retroactive to 1970 when he left the employment that caused the hearing loss. |
Decision No. 126/07 |
Cook, B. |
Permanent impairment {NEL} (rating schedule) (AMA Guides) (combined values)
Worker suffered injuries to shoulder, wrist and ankle as result of accident in 1998 – Board policy provided for use of Combined Values Chart in AMA Guides in such circumstances. |
Decision No. 1529/04I |
McCutcheon, R. (Donaldson, J., Beattie, D.) |
Permanent impairment {NEL} (rating schedule) (unlisted condition)
Board correctly determined NEL award for costochondritis, which is not listed in AMA Guides, by considering most analogous listed condition, which in the circumstances was intercostal neuralgia. |
Decision No. 2504/06 |
Smith, E. |
Procedure (reconsideration) (constitution of Panel)
Appellant does not have right to assignment of any particular vice-chair or panel – There was no defect in administrative process by failure to assign vice-chair who heard issue of SIEF to distinct issue of retroactive NEER adjustment. |
Decision No. 1679/06R |
Smith, E. |
Procedure (reconsideration) (multiple applications)
The reconsideration process is a special remedy, and the Tribunal’s power to reconsider is invoked only in unusual circumstances – It is not intended as a routine process for any party unhappy with a Tribunal decision – The process is not an opportunity to re-argue a case, review existing evidence or present the same evidence in a different form, and it is not designed to consider multiple reconsideration requests. |
Decision No. 871/02R2 |
Strachan, I. (Wheeler, B., Jackson, F.) |
Reconsideration (subsequent Tribunal decision)
It is not improper for adjudicators to refer to decisions not referenced by parties so long as it can be fairly said that parties had the opportunity to reference such decisions had they wished to do so – In any event, in circumstances, decisions were not novel or unusual and did not represent a departure from the law in the area. |
Decision No. 2165/04R |
Josefo, J. |
Right to sue
Plaintiff worker was truck driver who was injured on defendant’s premises while using defendant’s powered lift to unload truck – Lift was machinery or equipment that was supplied by defendant without also supplying workers to operate it but lift was not supplied on purchase or rental basis – Exception in s. 28(4) of Workplace Safety and Insurance Act, 1997, did not apply – Plaintiff’s right of action was taken away. |
Decision No. 1684/06 |
Cook, B. |
Right to sue
Worker who suffers accident under circumstances in which worker may be entitled to bring action against a third party, is required to elect whether to claim benefits or bring action – There may be circumstances in which it is appropriate to deem a worker to have made an election but mere fact of receipt of workers’ compensation benefits is not determinative of whether worker should be deemed to have elected to claim benefits. |
Decision No. 1782/04 |
McCutcheon, R. (Robb, J., Hodgkiss, P.) |
Right to sue (statutory accident benefits)
Statutory accident benefits insurer had status to bring application for declaration under s. 31(1)(a) of the Workplace Safety and Insurance Act, 1997, that the right to commence an action was taken away. |
Decision No. 14/06 |
Moore, J. |
Standing (insurer)
Statutory accident benefits insurer had status to bring application for declaration under s. 31(1)(a) of the Workplace Safety and Insurance Act, 1997, that the right to commence an action was taken away. |
Decision No. 14/06 |
Moore, J. |
Supplements, transitional provisions (multiple supplements)
Worker was injured in 1987 and 1989 – Board granted supplement under s. 147(4) of the pre-1997 Workers’ Compensation Act for the 1987 injury – Worker was entitled to second supplement for 1989 injury where 1989 injury eroded worker’s ability to approximate pre-1989 earnings. |
Decision No. 2058/05 |
Dimovski, J. (Sherwood, R., Grande, A.) |
Supplier of motor vehicle, machinery or equipment (purchase or rental basis)
Plaintiff worker was truck driver who was injured on defendant’s premises while using defendant’s powered lift to unload truck – Lift was machinery or equipment that was supplied by defendant without also supplying workers to operate it but lift was not supplied on purchase or rental basis – Exception in s. 28(4) of Workplace Safety and Insurance Act, 1997, did not apply – Plaintiff’s right of action was taken away. |
Decision No. 1684/06 |
Cook, B. |
Wages for day of accident
Overtime worked by worker on day of accident should be included in determination of whether worker worked overtime in each of four weeks prior to accident. |
Decision No. 1521/06 |
Kenny, M. |
Waiver (right to compensation) (settlement)
Worker received $44,000 from employer as result of settlement of grievance regarding long-term disability benefits – Board correctly deducted amount of settlement from retroactive benefits payable to worker, in accordance with s. 45(1) of the pre-1997 Workers’ Compensation Act – Settlement arose out of same facts giving rise to claim, and was a payment in respect of a work-related accident – Settlement did not constitute waiver of benefits – Worker did not waive workers’ compensation benefits. |
Decision No. 2455/06 |
Moore, J. |
Worker (contract of service)
Interdependence of integration of business activities is not conclusive of an employment relationship – In circumstances, installers used by subcontractor had to perform the installations personally, but were still found to be independent operators and not workers of the subcontractor. |
Decision No. 382/06 |
Smith, E. (Christie, M., Hodgkiss, P.) |
Worker (learner)
Worker participated in a training program that included a placement – Worker was injured while on the placement – Worker had entitlement for accident – Worker was a learner within the definition of worker in the pre-1997 Workers’ Compensation Act – Employer was employer with whom she was placed. |
Decision No. 2197/00 |
Cook, B. (Wheeler, B., Crocker, J.) |
