Décisions récentes dignes d'attention (version anglaise)
Suivent les sommaires de décisions récentes du Tribunal que le Tribunal a identifiées comme étant des « décisions dignes d'attention ». Il s'agit de décisions pouvant présenter un intérêt particulier. Elles portent sur des questions nouvelles ou inhabituelles, sur différentes approches relatives à une question, sur des points de procédure ainsi que sur des questions médicales et des états pathologiques contentieux, etc.
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Sommaires de décisions récentes dignes d'attention
Decision No. 1472 05 R 23-Jun-2010 E. Smith
- Causation
- Reconsideration (error of law)
- Standard of proof
| The worker appealed a decision of the Appeals Resolution Officer denying benefits for hearing loss. In Decision No. 1472/05, the Vice-Chair found that the worker met the exposure criteria in Board policy. However, the Board found that the pattern of hearing loss was not consistent with noise-induced hearing loss. The worker had coronary artery bypass surgery, and the medical reports suggested that the artery disease may have contributed to the hearing loss. The Vice-Chair noted that an indivisible injury may not be apportioned but distinct, divisible injuries may be apportioned. As noted in Athey v. Leonati, separation of distinct, divisible injuries is not truly apportionment. The Vice-Chair agreed with the estimates of hearing loss of a Board doctor and found that the worker did not have sufficient noise-induced hearing loss. The worker applied for reconsideration of Decision No. 1472/05. A new medical report submitted by the worker did not indicate an error in the prior finding that there was an insufficient level of noise-induced hearing loss for entitlement. The worker submitted that the original decision did not properly apply the significant contributing factor test. The Vice-Chair found that the worker was essentially trying to re-argue the case. In any event, the Vice-Chair reviewed the application of the significant contributing factor test. The Supreme Court of Canada decision in Athey stands for the proposition that an indivisible injury with multi-factorial causes cannot be apportioned. That is because the person would not have suffered the injury but for the compensable cause. In the view of the Vice-Chair, Athey does not take the position that the tortfeasor (or, in this case, the Board) is responsible for an injury that would have occurred irrespective of the workplace injuring process. In the case of divisible injuries, the significant contributing factor test applies separately to each component of injury and not to the impairment as a whole. When sufficient evidence exists that a distinction can be made with reasonable certainty between the effects of the injury caused by work and the injury caused by non-compensable factors, and when the non-compensable injury would have occurred irrespective of the compensable injury, the material contribution test in Athey does not apply to render the condition compensable. Recently, the Supreme Court of Canada decision in Resurfice Corp. v. Hanke addressed the principles of Athey. Resurfice confirms use of the “but for” test in civil litigation. Tribunal decision have adopted the “significant contributing factor” test, based on Athey and not the “but for” test per se. However, the Vice-Chair was of the view that Resurfice may be important in the workplace insurance context because it confirms that, except in specific circumstances of cases of narrow facts involving evidentiary difficulties, the results of the two tests will be the same. This interpretation is further supported by the decision of the Ontario Court of Appeal in Monks v. ING Insurance. In light of Resurfice, the “but for” test remains an important and useful test in appropriate circumstances in workplace insurance law. Workplace insurance is a no-fault system, so the questions to be decided are different than in civil litigation. None the less, the analysis in these civil cases is relevant. Resurfice supports the proposition that, when there is sufficient evidence to make a finding about what would have occurred but for the workplace accident, a “but for”analysis can provide relevant information about how the “significant contributing factor” test properly applies. In Decision No. 1472/05, there was an evidentiary basis for determining what component of hearing loss was attributable to noise and what was not due to noise. The Vice-Chair found that the workplace exposure was not a significant contributing factor in the component of hearing loss that was not due to noise, and that the component that was due to noise did not meet the threshold in Board policy. The hearing loss that was not attributable to noise would have occurred in the absence of, or but for, the workplace exposure. That component was not compensable. The application to reconsider was denied. |
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| Neutral Citation: | 2010 ONWSIAT 1496 |
Decision No. 392 10 18-Jun-2010 M. Faubert
- Right to sue (insurance contract)
| A worker fell on stairs at work in January 2006. The Board granted entitlement for the accident. However, he received no LOE benefits because he was able to continue working while obtaining physiotherapy. In December 2006, the worker’s employment was terminated, allegedly due to restructuring. The worker requested LOE benefits but this was denied by the Board on the grounds that the worker was performing regular work and there was no medical evidence to support a need for modified duties. The employer contracted with an insurer to provide long-term disability benefits. Sometime after the termination of his employment, the worker filed a claim with the insurer for long-term disability benefits. The claim was denied. The worker then commenced an action against his employer and the insurer. The employer applied to the Tribunal under s. 31 of the WSIA for a declaration that the worker’s right of action was taken away. This application raises issues regarding the interaction between workplace insurance benefits under the WSIA and long-term disability benefits under a group insurance plan, and an employer’s obligation to compensate a worker for long-term disability benefits for injuries for which benefits are payable under the WSIA. In this case, the injuries for which the worker seeks long-term disability benefits arose out of and in the course of the worker’s employment with the employer so as to entitle him to benefits under the WSIA. The worker is attempting to obtain disability insurance benefits in addition to any benefits awarded by the Board. The worker submitted that the case is not about an attempt to obtain workplace insurance benefits through other means but about the right of the parties to contract for benefits as part of their employment relationship. The Vice-Chair referred to s. 26(2) of the WSIA, which provides that entitlement to benefits under the WSIA is in lieu of all rights of action that a worker may have against the employer for or by reason of an accident happening to the worker while in the employment of the employer. This provision does not concern itself with the nature of the action. The Vice-Chair concluded that the claim against the employer as it relates to damages for the worker’s disability is at its heart for or by reason of an accident happening to the worker while in the employment of the employer. In assessing a claim by a worker against an employer, it is not appropriate to become embroiled in issues of characterization of the claim. In this case, the claim against the employer was essentially a claim for damages in connection with the injuries sustained in the compensable accident. The action against the employer cannot be reduced to a simple claim for enforcement of contractual rights under a policy of insurance. That would defeat the purpose of the WSIA and expose an employer to suit in any case in which a worker wants to pursue additional benefits after workplace insurance benefits are terminated. The right of action against the employer was taken away with respect to damages in connection with personal injuries suffered in the compensable accident. |
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| Neutral Citation: | 2010 ONWSIAT 1469 |
Decision No. 1507 09 17-Jun-2010 J. Parmar - B. Wheeler - J. Crocker
- Asthma
- Pleural plaque
- Medical opinion (respiratory impairment)
| The worker had compensable pleural plaques and early asbestosis. He also had non-compensable asthma. The Board denied the worker a NEL award for permanent impairment, finding that the worker’s pulmonary function limitations resulted from the non-compensable asthma. The worker appealed. The Panel reviewed a report from a Tribunal medical assessor. The assessor explained the difference between obstructive impairment and restrictive impairment. In obstructive impairment, there is a disproportionate reduction of maximal airflow from the lung in relation to the maximal volume that can be displaced, and is defined by reduced FEV1/FVC below 70% as the airway disease becomes more advanced. It implies airway narrowing during exhalation. In restrictive impairment, all the lung volumes are smaller than the lower limits of normal, and the primary criterion of diagnosis is reduction of FVC, TLC, RV and increased ratio of FEV1/FVC over 75%. The assessor went on to state that pleural plaques are usually asymptomatic, but in some persons with pleural plaques, there can be a mild restrictive defect. For persons suffering from asthma, the most common finding on lung function testing is an obstructive defect. In this case, a review of the medical evidence indicated that the worker’s respiratory impairment was obstructive (related to the non-compensable asthma) and not restrictive. Since the respiratory impairment was related to the non-compensable asthma and not to the compensable pleural plaques and early asbestosis, the worker did not have a compensable permanent impairment. The appeal was dismissed. |
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| Neutral Citation: | 2010 ONWSIAT 1447 |
Decision No. 1138 10 17-Jun-2010 J. Parmar
- Correctional officer
- In the course of employment (proceeding to and from work)
- In the course of employment (travelling) (emergency)
| The worker was a detachment guard. He was injured in April 2008 when he slipped on ice on his driveway as he was proceeding from his home to the detachment. The worker appealed a decision of the Appeals Resolution Officer denying entitlement for the accident. The nature of the worker’s job was to guard prisoners. He did not have regularly scheduled work hours. Rather, he would be called in by the employer as needed. This could occur any time of the day, any day of the week. During busy periods, he might be called in four or five times per week. During slow periods, a full week might pass without being called. The worker received the call to come in at 2 a.m. He accepted the call. He was injured when he left his house at 2:10 a.m. The circumstances of this case were not akin to an emergency situation. The worker was not responding to an emergency call. Rather, this was the regular system used by the employer for having the work of guarding prisoners performed. Board policy generally provides that workers are not in the course of employment while proceeding to and from work. There is an exception when the conditions of employment require a worker to drive a vehicle to and from work for the purpose of employment. The worker submitted that he came within this exception because he was paid for travel time and there was no other reasonable method of transportation to the detachment. The Vice-Chair found that it was not necessary to determine whether the worker would have been in the course of employment while travelling because the worker had not yet commenced travelling. The Vice-Chair was of the view that going to work and driving a vehicle to work begins once the worker leaves his property in his vehicle. Until that point, the risk of harm was not a risk inherent to his employment. Rather, it was the risk of any homeowner on his own property. That risk was not intended to be covered by workplace compensation legislation. The appeal was dismissed. |
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| Neutral Citation: | 2010 ONWSIAT 1442 |
Decision No. 1155 10 17-Jun-2010 R. Hartman
- Injuring process
- Arising out of employment (common activity)
- In the course of employment (reasonably incidental activity test) (personal needs)
| The worker felt dizzy and fell while in the washroom at work. The worker appealed a decision of the Appeals Resolution Officer denying entitlement. For work to cause an injury, there must be more than a temporal or geographical relationship. The worker’s injuring activity must also be work-related and there must be an objectively identifiable workplace injuring process. In this case, there was no employment nexus between the workplace and the incident in the washroom. There was no identifiable workplace injuring process. The Vice-Chair distinguished Decision No. 336/06, in which a work became dizzy and fell in a washroom, but where there was plausible evidence that drain cleaner being used by the employer may have caused the worker to faint. In this case, there was no such injuring process or chance event identified. The appeal was dismissed. |
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| Neutral Citation: | 2010 ONWSIAT 1458 |
Decision No. 1020 10 15-Jun-2010 J. Moore
- Worker (contract of service)
- Worker (test)
- Independent operator (auctioneer)
| The employer was in the business of selling used automobiles through auction. These sales were effected through the use of professional auctioneers. The employer appealed a decision of the Appeals Resolution finding that the auctioneers were workers of the employer rather than independent operators. The ARO found that the core of the employer’s business is auctioning vehicles and that auctioneers are an essential part of that business activity. The Vice-Chair found that the ARO failed to ask the essential question in determining the extent to which one business is integrated into another business. The organization test is properly approached from the aspect of the small enterprise (worker, independent operator) because it is always too easy from the aspect of the larger enterprise (employer) to assume that everything is arrange purely for the convenience of the larger enterprise. It must be considered whether the smaller enterprise is its own business or whether it is entirely subsumed in the broader activity of the larger enterprise. In this case, the auctioneers had a fully developed business through which they provided unique and essential skills developed entirely separately from the employer’s business. They offered these skills to the employer on an ongoing business but within the context of their own business undertaking. The employer did not exercise any control over the manner in which the auctioneers performed their professional service. The ARO also found that there was no investment by the auctioneers in the performance of their work. This view failed to look at the true nature of the auctioneers’ business. The employer was simply another customer of the auctioneer. The fact that there was no apparent capital investment overlooks the fact that each auctioneer was a professional with a longstanding and well-developed auctioneering business. The ARO also failed to place sufficient emphasis on the intent of the parties. A worker is defined in the WSIA as a person who has entitled into a contract of service. The implication is that the nature of the contract will be determinative. The intent of the parties must be given substantial weight when interpreting the nature of a contract. On the evidence, the Vice-Chair concluded that the auctioneers were independent operators. The appeal was allowed. |
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| Neutral Citation: | 2010 ONWSIAT 1429 |
Decision No. 995 10 08-Jun-2010 R. McCutcheon
- Suitable employment
- Hearing (exclusion of witness)
- Statutory interpretation
- Loss of earnings {LOE} (deemed earnings)
- Labour market re-entry {LMR} (self-directed program)
| The worker suffered a compensable injury in June 2006. The worker appealed a decision of the Appeals Resolution Officer denying full LOE benefits after October 2006. In a preliminary matter, the Vice-Chair allowed the founder of the employer company to testify and remain throughout the hearing as a resource person to instruct counsel. This was in accordance with the Tribunal Practice Direction on Who May Attend the Hearing. The Board has an Adjudicative Advice document regarding Practice Guidelines for Ordering LOE Benefit Arrears. This Adjudicative Advice document is not binding Board policy but it has been recognized in Tribunal decisions as persuasive authority. The Vice-Chair found that it was relevant in the determination of the worker’s LOE benefits. Tribunal decisions have also confirmed the Tribunal’s authority to apply an approach analogous to the approach in determining full or partial temporary benefits under the pre-1997 Act. For the period from October 2006 to June 2007, the Vice-Chair found that the worker was not totally disabled and that he did not follow medical advice to attempt to return to work. The Board appropriately paid the worker partial LOE benefits based upon a graduated return to work plan and then properly reduced the benefits to zero. For the period from June 2007 to February 2009, the Board appropriately paid benefits based on deemed minimum wage earnings in a deemed SEB achievable without training. The employer terminated the worker’s employment as of June 2007. Partial LOE benefits are payable when a worker has not made reasonable efforts to secure employment or improve employability. The Vice-Chair identified factors to consider regarding what constitutes reasonable efforts, including: extent of compensable limitations; job search efforts; efforts to improve employability such as academic programs and job training; participation in health care; labour market conditions; personal and vocational characteristics of the worker. Based on evaluation of these factors, the Vice-Chair confirmed the decision of the Board. The worker relied on the Federal Court case of Villani to argue that the worker was competitively unemployable, citing a “real world” test to determine whether an applicant is entitled to benefits under the Canada Pension Plan. However, the Vice-Chair stated that it is necessary to be cautious in importing principles applied in the interpretation of other statutory schemes. The Vice-Chair noted that Villani turned on the interpretation of specific language of a provision in the Canada Pension Plan. The appeal was dismissed. |
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| Neutral Citation: | 2010 ONWSIAT 1370 |
Decision No. 2363 09 07-Jun-2010 T. Mitchinson - V. Phillips - J. Crocker
- Police
- Stress, mental
- Board Directives and Guidelines (stress, mental) (traumatic event)
- Board Directives and Guidelines (stress, mental) (cumulative trauma)
| The worker was a police officer since 1988. In 2001, she became a forensic identification specialist. In 2005, the worker submitted a claim for traumatic mental stress. The worker appealed a decision of the Appeals Resolution Officer denying entitlement. The worker submitted that her condition was related to the cumulative effect of six incidents. Three of the incidents were in 2001, when the worker was fingerprinting bodies in the morgue, one of the bodies was a 12-year-old boy, another was an elderly man and the third was badly decompose. There was an incident in 2002, when the worker went to the scene where a woman had been murdered by her husband. There was a fifth incident in the fall of 2004, when the worker went to a scene where two brothers had been in a fight and one killed the other. The sixth incident was later in the fall of 2004, when the worker attended a homicide in a bar. Section 13(4) of the WSIA is clear that, as a general rule, workers are not entitled benefits for mental stress. The exception is set out in s. 13(5). Section 13(5) does not directly deal with entitlement on the basis of cumulative effect of multiple traumatic events. The Board extended entitlement to multiple traumatic events in Board policy, but entitlement on that basis can only be considered in the context of the legislative framework in s. 13(5). Board policy outlines diagnostic requirements for claims based on cumulative effect; there must be an Axis 1 diagnosis in accordance with DSM-IV by a psychiatrist or psychologist. In this case, a psychotherapist conducted tests and provided a range of psychotherapies, but did not provide a clear diagnosis of post-traumatic stress disorder. The worker’s representative sought to address this deficiency by asking a psychologist to review the file. The psychologist provided the diagnosis, but only on the basis of a paper review of the file. The Panel found that this was not an adequate basis for the diagnosis. Thus, the worker did not meet the diagnostic requirements for entitlement. Even if the diagnostic requirements were met, the worker did not satisfy other requirements of the Board policy for entitlement. Board policy requires that there be an acute reaction to the most recent unexpected traumatic event. The Panel found that final incident in 2004 could not reasonably be considered a causing a final acute reaction to a series of sudden and traumatic events. The worker did not suffer an acute reaction in the fall of 2004. Board policy requires that the events be objectively traumatic. The Panel found that a police officer working the forensic identification unit would be accustomed to dealing with crime scene investigations, including murders, suicides and identification of corpses at the morgue. Even if the standard of an ordinary police officer were applied, the conclusion would be the same. The events were not objectively traumatic. The Panel noted that, even if the thin-skull doctrine were applicable, it would first be necessary to find that the events were objectively traumatic. In this case, the events were not objectively traumatic, so the thin-skull doctrine would not come into play. Board policy also requires that the events are unexpected in the normal course of the worker’s employment. The cumulative effect provisions of the policy expand entitlement to situations involving multiple, sudden and unexpected traumatic events, but in no way eliminate the requirement that the triggering event in question be unexpected. The events in this case were part of the worker’s normal course of employment and, therefore, not unexpected. The appeal was dismissed. |
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| Neutral Citation: | 2010 ONWSIAT 1365 |
Decision No. 772 10 04-Jun-2010 J. Moore
- Aggravation (preexisting condition)
- Continuing entitlement
- Re-employment (obligation to re-employ)
- Re-employment (retirement)
| The worker suffered a knee injury in October 2002. The worker appealed a decision of the Appeals Resolution Officer denying ongoing benefits. Alternatively, the worker claimed that the employer breached its re-employment obligations. The worker had a significant underlying pre-existing condition. The worker aggravated the pre-existing condition as a result of the compensable injury. Ongoing symptoms were related to the underlying non-compensable condition. The worker was not entitled to further LOE benefits or a NEL award. There was a labour relations issue with the employer that arose a number of years previously. In early 2002, there was a settlement of the grievance, which included an offer of financial incentives for the worker to take early retirement as of March 2003. The worker chose to accept the settlement. All the details were worked out prior to the accident, although the worker did not actually sign the settlement agreement until after the accident. The worker developed a concern about the impact of the accident on his ability to work after retirement. The worker requested renegotiation of the settlement to permit him to return to work. The employer refused to reopen the agreement. The worker submitted that he had a right to withdraw his resignation under s. 41(2) of the Public Service of Ontario Act, 2006, and that the employer’s obligation to re-employ the worker under s. 41 of the WSIA should be reinstated notwithstanding his retirement. The Vice-Chair noted that the worker’s resignation resulted from settlement of grievance proceedings, which were governed by the Labour Relations Act, not the Public Service of Ontario Act. Accordingly, s. 41 of the Public Service of Ontario Act was not applicable. In any event, the employer did not terminate the worker’s employment. The worker chose to retire after settlement of a lengthy grievance procedure, all the details of which were worked out prior to the accident. The fact that the worker may have had second thoughts about the settlement under a different Act cannot impose a fresh obligation on the employer to re-employ under the WSIA. The Vice-Chair concluded that the employer did not breach its re-employment obligations. The appeal was dismissed. |
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| Neutral Citation: | 2010 ONWSIAT 1344 |
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