Access to worker file, statutory (employer)
Costs of claim were transferred from accident employer to third party employer – Third party employer and accident employer both had standing in appeal and right of access to worker’s file.
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Decision No. 950/07I |
Crystal, M. (Christie, M., Broadbent, D.) |
Aggravation (preexisting condition)
Worker who suffered back injury had prior back symptoms but had not required health care for back condition for five years prior to accident and had not lost time due to back pain for nine years prior to accident – Worker did not have pre-existing impairment within meaning of Board policy on aggravation – Worker had entitlement without limitation.
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Decision No. 874/07 |
Noble, J. |
Assessment of employers (assessable payroll)
Gratuities paid by restaurant customers that were collected by the employer and distributed to the workers, and included in workers’ T4 slips, were correctly included in assessable earnings for calculation of the employer’s premiums.
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Decision No. 1971/06 |
Crystal, M. |
Assessment of employers (assessable payroll)
Employer was in business of retailing, selling and installing windows and doors – Employer hired subcontractors for installation – Based on applicable Board policy at the time, the employer correctly reported only 50% of payments made to subcontractors as insurable earnings.
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Decision No. 955/06 |
Martel, S. (Jago, D., Rao, F.) |
Board Directives and Guidelines (aggravation) (preexisting condition)
Worker who suffered back injury had prior back symptoms but had not required health care for back condition for five years prior to accident and had not lost time due to back pain for nine years prior to accident – Worker did not have pre-existing impairment within meaning of Board policy on aggravation – Worker had entitlement without limitation.
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Decision No. 874/07 |
Noble, J. |
Board Directives and Guidelines (class of employer) (process breakdown)
Process breakdown rule in Board policy regarding segregated payroll was reasonable in taking account of reality of business operation rather than narrowing it down and reducing it to its most basic component parts.
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Decision No. 911/07 |
Josefo, J. (Robb, J., Ferrari, M.) |
Board Directives and Guidelines (earnings basis) (recalculation)
Board policy provides for recalculation long-term earnings basis for workers in non-permanent or irregular work using earnings during 24 months prior to accident – Policy allows for shortening or lengthening period to simplify process of gathering earnings information – Preference should still be given to earnings for 24 months prior to accident.
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Decision No. 105/07 |
Silipo, T. |
Board Directives and Guidelines (executive officers)
Senior manager and employee of employer had significant autonomy and authority but did not have hiring and firing authority and were not directing minds of the corporation, and were found not to be executive officers.
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Decision No. 486/07 |
Keil, M. (Robb, J., Ferrari, M.) |
Board Directives and Guidelines (experience rating) (NEER)
Review of Board guidelines regarding exceptional circumstances for retroactive adjustment of NEER experience rating account.
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Decision No. 305/07 |
Smith, E. |
Board Directives and Guidelines (health care) (medical report) (payment for)
Board had discretion to reimburse worker for costs of obtaining medical reports in denied claim – Costs of obtaining reports should be treated as administrative costs by the Board and cannot be charged to the employer.
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Decision No. 1046/05 |
Smith, E. |
Board Directives and Guidelines (LOE) (worker earning at time of determination)
According to s. 44(2.3) of the Workplace Safety and Insurance Act, the Board may review loss of earnings payments within 30 days of completion of labour market re-entry plan – Worker obtained employment in suitable employment or business within 30 days – Loss of earnings benefits should be based on worker’s actual earnings.
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Decision No. 669/07 |
McClellan, R. (Wheeler, B., Crocker, J.) |
Cancer (lung)
Nickel miner with 60 pack year history of smoking developed lung cancer – Risk of developing lung cancer with that smoking history was equivalent of standard mortality ratio of 3000, compared to 102 for nickel mining – Worker did not have entitlement for lung cancer.
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Decision No. 499/07 |
Smith, E. (Robb, J., Briggs, R.) |
Class of employer (dual rates) (segregated payroll)
Process breakdown rule in Board policy regarding segregated payroll was reasonable in taking account of reality of business operation rather than narrowing it down and reducing it to its most basic component parts.
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Decision No. 911/07 |
Josefo, J. (Robb, J., Ferrari, M.) |
Earnings basis (concurrent employment)
Section 40(3) of the pre-1997 Workers’ Compensation Act, regarding concurrent employment, is a deeming provision requiring the decision-maker to deem the worker’s earnings from his employment with the accident employer – It is implicit that earnings from the concurrent employment must be taken into account in some manner.
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Decision No. 751/07 |
Crystal, M. (Wheeler, B., Jackson, F.) |
Earnings basis (escalation)
Board correctly based temporary benefits for a recurrence in 2002 of a 1974 injury on escalated pre-injury earnings, which were higher than the worker’s earnings at the time of the recurrence – Board correctly applied indexing factor for temporary benefits in calculation escalated pre-injury earnings.
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Decision No. 1977/06 |
Martel, S. |
Earnings basis (long-term)
Board policy provides for recalculation long-term earnings basis for workers in non-permanent or irregular work using earnings during 24 months prior to accident – Policy allows for shortening or lengthening period to simplify process of gathering earnings information – Preference should still be given to earnings for 24 months prior to accident.
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Decision No. 105/07 |
Silipo, T. |
Earnings basis (recurrences)
Board correctly based temporary benefits for a recurrence in 2002 of a 1974 injury on escalated pre-injury earnings, which were higher than the worker’s earnings at the time of the recurrence – Board correctly applied indexing factor for temporary benefits in calculation escalated pre-injury earnings.
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Decision No. 1977/06 |
Martel, S. |
Earnings basis (recurrences) (FEL)
Divergence in Tribunal decision-making regarding earnings basis for future economic loss in case of recurrence, should be resolved by basing benefits on earnings at time of original injury.
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Decision No. 701/04R |
Keil, M. (Young, B., Jackson, F.) |
Earnings basis (student)
Nineteen-year-old worker was completing three credits needed for completion of high school diploma, and had conditional acceptance to college – Worker was a student within the meaning of the Workplace Safety and Insurance Act, and was entitled to calculation of earnings basis having regard to s. 16 of O. Reg. 175/98.
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Decision No. 187/07 |
Kenny, M. |
Earnings basis (tips)
Gratuities paid by restaurant customers that were collected by the employer and distributed to the workers, and included in workers’ T4 slips, were correctly included in assessable earnings for calculation of the employer’s premiums.
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Decision No. 1971/06 |
Crystal, M. |
Employer (sufficient connection to Ontario)
Truck driver had accident in Ontario – Driver and driver’s employer were non-residents of Ontario – Considering regularity and length of driver’s visits to Ontario and fact that employer had Ontario commercial vehicle operators registration certificate, there was sufficient connection to Ontario to be covered by Ontario workplace insurance legislation.
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Decision No. 334/07 |
Nairn, R. |
Estoppel
Worker was estopped from raising issue of suitability of modified work, as same issue involving same parties had been dealt with by Grievance Settlement Board.
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Decision No. 1523/02I3 |
Sutherland, S. (Jago, D., Hodgkiss, P.) |
Evidence (epidemiological)
Nickel miner with 60 pack year history of smoking developed lung cancer – Risk of developing lung cancer with that smoking history was equivalent of standard mortality ratio of 3000, compared to 102 for nickel mining – Worker did not have entitlement for lung cancer.
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Decision No. 499/07 |
Smith, E. (Robb, J., Briggs, R.) |
Executive officers
Senior manager and employee of employer had significant autonomy and authority but did not have hiring and firing authority and were not directing minds of the corporation, and were found not to be executive officers.
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Decision No. 486/07 |
Keil, M. (Robb, J., Ferrari, M.) |
Experience rating (NEER) (three year window)
Review of Board guidelines regarding exceptional circumstances for retroactive adjustment of NEER experience rating account.
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Decision No. 305/07 |
Smith, E. |
Future economic loss {FEL} (review) (after sixty months)
Board redetermined degree of permanent impairment – Permanent worsening date was prior to November 26, 2002, but Board decision to increase NEL award was made after November 26, 2002 – Worker was entitled to review of FEL award more than 60 months after the initial FEL determination.
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Decision No. 102/07 |
Lang, J. (Tracey, E., Briggs, R.) |
Jurisdiction, Board (class of employer)
Process breakdown rule in Board policy regarding segregated payroll was reasonable in taking account of reality of business operation rather than narrowing it down and reducing it to its most basic component parts.
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Decision No. 911/07 |
Josefo, J. (Robb, J., Ferrari, M.) |
Jurisdiction, Tribunal (appealable issue)
Board had discretion to reimburse worker for costs of obtaining medical reports in denied claim – Costs of obtaining reports should be treated as administrative costs by the Board and cannot be charged to the employer.
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Decision No. 1046/05 |
Smith, E. |
Jurisdiction, Tribunal (Board implicitly dealt with issue)
Tribunal has jurisdiction to consider issues that flow from its findings on an initial presenting issue, which would have needed to be addressed by the Board if its primary rulings had been different.
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Decision No. 708/07 |
Smith, E. |
Labour market re-entry {LMR} (cooperation)
Labour market re-entry services were terminated due to lack of co-operation – Loss of earnings benefits should be based on suitable employment or business that worker was capable of attaining without retraining.
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Decision No. 425/06 |
Moore, J. (Christie, M., Grande, A.) |
Labour market re-entry {LMR} (expenses) (tools or equipment)
Skidder operator was entitled to reimbursement for the cost of a winch that reduced the impact of the injury on the worker and significantly increased his post-accident level of productivity to the level he enjoyed before the workplace accident.
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Decision No. 2134/06 |
Alexander, B. (Young, B., Briggs, R.) |
Labour market re-entry {LMR} (workplace modifications)
Skidder operator was entitled to reimbursement for the cost of a winch that reduced the impact of the injury on the worker and significantly increased his post-accident level of productivity to the level he enjoyed before the workplace accident.
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Decision No. 2134/06 |
Alexander, B. (Young, B., Briggs, R.) |
Legal precedent (consistency)
Divergence in Tribunal decision-making regarding earnings basis for future economic loss in case of recurrence, should be resolved by basing benefits on earnings at time of original injury.
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Decision No. 701/04R |
Keil, M. (Young, B., Jackson, F.) |
Loss of earnings {LOE}
Nineteen-year-old worker was completing three credits needed for completion of high school diploma, and had conditional acceptance to college – Worker was a student within the meaning of the Workplace Safety and Insurance Act, and was entitled to calculation of earnings basis having regard to s. 16 of O. Reg. 175/98.
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Decision No. 187/07 |
Kenny, M. |
Loss of earnings {LOE} (cooperation)
Labour market re-entry services were terminated due to lack of co-operation – Loss of earnings benefits should be based on suitable employment or business that worker was capable of attaining without retraining.
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Decision No. 425/06 |
Moore, J. (Christie, M., Grande, A.) |
Loss of earnings {LOE} (deemed earnings)
According to s. 44(2.3) of the Workplace Safety and Insurance Act, the Board may review loss of earnings payments within 30 days of completion of labour market re-entry plan – Worker obtained employment in suitable employment or business within 30 days – Loss of earnings benefits should be based on worker’s actual earnings.
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Decision No. 669/07 |
McClellan, R. (Wheeler, B., Crocker, J.) |
Loss of earnings {LOE} (lay-off)
Injured worker was laid off by employer for economic reasons – Worker’s restrictions presented obstacle to finding alternate employment, and suitable work was not available in the general labour market –Worker was entitled to loss of earnings benefits for entire period of the lay-off.
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Decision No. 458/07 |
Moore, J. |
Loss of earnings {LOE} (review)
Board policy contemplates that final LOE review must occur before end of 72nd month after the accident, not exact 72-month anniversary of accident – In any event, in circumstances, benefits could be reviewed after 72 months because worker’s LMR plan had not been completed before the end of the 72-month period.
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Decision No. 2413/06 |
Cook, B. |
Loss of earnings {LOE} (review) (after seventy-two months)
According to s. 44(2.3) of the Workplace Safety and Insurance Act, the Board may review loss of earnings payments within 30 days of completion of labour market re-entry plan – Worker obtained employment in suitable employment or business within 30 days – Loss of earnings benefits should be based on worker’s actual earnings.
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Decision No. 669/07 |
McClellan, R. (Wheeler, B., Crocker, J.) |
Medical report (payment for)
Board had discretion to reimburse worker for costs of obtaining medical reports in denied claim – Costs of obtaining reports should be treated as administrative costs by the Board and cannot be charged to the employer.
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Decision No. 1046/05 |
Smith, E. |
Mining (nickel)
Nickel miner with 60 pack year history of smoking developed lung cancer – Risk of developing lung cancer with that smoking history was equivalent of standard mortality ratio of 3000, compared to 102 for nickel mining – Worker did not have entitlement for lung cancer.
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Decision No. 499/07 |
Smith, E. (Robb, J., Briggs, R.) |
Parties (of record) (transferee of costs)
Costs of claim were transferred from accident employer to third party employer – Third party employer and accident employer both had standing in appeal and right of access to worker’s file.
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Decision No. 950/07I |
Crystal, M. (Christie, M., Broadbent, D.) |
Pensions (equitable adjustment)
Worker, who was injured in 1944, was entitled to pension until legislative changes in 1975, based on equitable calculation of permanent disability award pursuant to s. 40(4) of the 1937 Workmen’s Compensation Act – After 1975, worker was entitled to supplementary benefits.
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Decision No. 592/06 |
Gehrke, L. |
Presumptions (entitlement)
Presumption applies only to question of whether there was a work-related accident, not to question of what injuries the accident caused.
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Decision No. 707/07 |
Smith, E. |
Recurrences (compensable injury)
Divergence in Tribunal decision-making regarding earnings basis for future economic loss in case of recurrence, should be resolved by basing benefits on earnings at time of original injury.
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Decision No. 701/04R |
Keil, M. (Young, B., Jackson, F.) |
Smoking
Nickel miner with 60 pack year history of smoking developed lung cancer – Risk of developing lung cancer with that smoking history was equivalent of standard mortality ratio of 3000, compared to 102 for nickel mining – Worker did not have entitlement for lung cancer.
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Decision No. 499/07 |
Smith, E. (Robb, J., Briggs, R.) |
Worker (sufficient connection to Ontario)
Truck driver had accident in Ontario – Driver and driver’s employer were non-residents of Ontario – Considering regularity and length of driver’s visits to Ontario and fact that employer had Ontario commercial vehicle operators registration certificate, there was sufficient connection to Ontario to be covered by Ontario workplace insurance legislation.
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Decision No. 334/07 |
Nairn, R. |
