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.
Cliquer sur "full text" pour voir la décision en 
format PDF.
Sommaires de décisions récentes dignes d'attention
Decision No. 544 11 I 05-Dec-2011 R. McCutcheon
- Estoppel
- Jurisdiction, Board (decision of Tribunal)
- Jurisdiction, Tribunal (binding nature of determination)
- Jurisdiction, Tribunal (final decision of Board)
| The worker was struck and knocked down by a tire in December 2001. The worker appealed a decision of the Appeals Resolution Officer denying entitlement for hip disability and basing LOE benefits on deemed earnings in the identified SEB. In Decision No. 1365/05, the Tribunal found that the worker also suffered a hip injury when he was knocked down, but that he was not entitled to additional benefits. The SEB identified for the worker was still appropriate. The Board correctly based benefits on deemed earnings. An application to reconsider Decision No. 1365/05 was denied in Decision No. 1365/05R. The Board increased the worker's NEL award to reflect the hip impairment. However, the original decision decided that the worker was capable of performing the identified SEB even with the hip impairment and that, taking into account both the back and hip impairments, the worker was not entitled to additional LOE benefits. The worker pursued additional LOE benefits at the Board. The Board initially declined jurisdiction on the grounds that the issue had been decided by the Tribunal. Eventually, the Board decided to revisit the issue, leading to a decision of the Appeals Resolution Officer in 2008 granting full LOE benefits after July 2006. The worker now appealed the decision of the ARO, seeking entitlement to full LOE benefits from 2001. In this decision, the Vice-Chair considered the question of how to proceed in light of Decisions No. 1365/05 and 1365/05R. The Vice-Chair considered previous Tribunal decisions and noted that some decisions have analyzed the issue with reference to estoppel and some with reference to the Tribunal's jurisdiction. In this case, the Vice-Chair considered both lines of analysis. With the jurisdictional approach, the Vice-Chair found that a reconsideration request is necessary to address the worker's claim for LOE benefits, as the Tribunal does not have the authority to make a ruling that is contradictory to a previous Tribunal decision, except in the context of a reconsideration request. Decisions No. 1365/05 and 1365/05R considered the full scope of the worker's entitlement for the back and hip, and concluded that the worker was not entitled to an increase in LOE benefits in 2002. The Tribunal may only revisit this issue by way of reconsideration. The increased NEL award did not undermine the Tribunal's authority. The Vice-Chair noted that s. 43 of the WSIA does not indicate, explicitly or implicitly, that the quantum of a NEL award is a benchmark to consider in determining a worker's LOE benefits. A worker is entitled to benefits for loss of earnings arising from an injury, based on the amount a worker is able to earn in suitable employment. The Tribunal's jurisdiction is not affected by a subsequent increase in a worker's NEL award. Using the estoppel approach, the Vice-Chair found that the elements of estoppel were met in this case. The issue of LOE benefits if the very issue in Decision No. 1365/05. That issue was decided in a final decision of the Tribunal. That decision is not reviewable except upon reconsideration or application for judicial review. The Tribunal has jurisdiction to consider final decisions of the Board. The ARO decision on appeal is a final decision of the Board. Thus, the Vice-Chair concluded that this case will proceed both as a reconsideration of Decisions No. 1365/05 and 1365/05R and as an appeal from the 2008 ARO decision. |
| View Full Decision Text |
| References: | Act Citation Other Case Reference |
| Neutral Citation: | 2011 ONWSIAT 2783 |
Decision No. 1587 11 23-Nov-2011 R. Nairn
- Board Directives and Guidelines (SIEF) (severity of accident)
- Second Injury and Enhancement Fund {SIEF} (severity of accident)
| The Board granted the worker entitlement for right rotator cuff tendonitis on a disablement basis. The employer appealed a decision of the Appeals Resolution granting the employer only 25% SIEF relief. It was accepted that the worker had a pre-existing shoulder condition of minor medical significance. The employer submitted that the accident was of moderate severity and that, accordingly, it was entitled to 50% SIEF relief. Board policy defines an accident of minor severity as expected to cause non-disabling or minor disabling injury and an accident of moderate severity as expected to cause disabling injury. The employer argued that work would not have been assigned if it would be expected to cause injury. The Vice-Chair noted that Board policy states that the severity of the accident is evaluated in terms of the accident history (mechanics, position and environment) as well as the definitions. The worker's duties required repetitive and forceful flexion with use of torches and pneumatic tools. The Vice-Chair was satisfied that, in the circumstances, the severity of the accident was properly rated as moderate. Based on an accident of moderate severity and a pre-existing condition of minor medical significance, the employer was entitled to 25% SIEF relief. The appeal was dismissed. |
| View Full Decision Text |
| References: | Act Citation Other Case Reference |
| Neutral Citation: | 2011 ONWSIAT 2711 |
Decision No. 2049 11 22-Nov-2011 S. Martel
- Second Injury and Enhancement Fund {SIEF} (severity of accident)
- Second Injury and Enhancement Fund {SIEF} (preexisting condition) (normal condition)
| A home support worker suffered a low back injury in a compensable motor vehicle accident. The employer appealed a decision of the Appeals Resolution denying the employer SIEF relief. The accident occurred when the worker was driving 70-80 kilometres per hour, lost control of her car on black ice and slid into a ditch. She suffered a burst fracture of the L1 vertebra, and was in hospital for nine days. The Vice-Chair concluded that the accident was of major severity, expected to cause serious disability and probable permanent disability. There was evidence of minor cervical degenerative disc disease only. Even if the worker also had minor degenerative changes throughout her spine, such findings would have been in keeping with her age and would not necessarily have contributed to prolongation or enhancement of the claim. Several Tribunal decisions have held that degenerative change typical of a worker's age does not, in and of itself, represent a pre-existing condition for the purposes of the Board's SIEF policy. The Vice-Chair concluded that the worker did not have a pre-existing condition that enhanced or prolonged her disability. There was evidence of a minor pre-existing emotional condition. Based on an accident of major severity and a pre-existing condition of minor medical significance, the employer was not entitled to SIEF relief. The appeal was dismissed. |
| View Full Decision Text |
| References: | Act Citation Other Case Reference |
| Neutral Citation: | 2011 ONWSIAT 2696 |
Decision No. 2184 11 22-Nov-2011 M. Crystal - M. Christie - K. Hoskin
- Loss of earnings {LOE} (retirement) (early)
| The worker suffered a knee injury in July 2005. He returned to modified work in April 2007. On October 17, 2007, the worker accepted an early retirement package from the employer to retire at the end of 2007. The decision to accept the package was irrevocable. The empolyer appealed a decision of the Appeals Resolution Officer granting the worker LOE benefits from January 2008 to June 2008, and from February 2009 to June 2009. In a related decision (Decision No. 1874/11), the Panel deals with the worker's appeal of the ARO decision denying LOE benefits from June 2008 to February 2009, and after June 2009. Taking an early retirement package is not, in and of itself, a bar to receipt of ongoing benefits. It is necessary to look at the reasons for which the worker accepted the package. However, even if the reasons include difficulties associated with the compensable injury, the inquiry is not at an end. The appropriate test for ongoing entitlement to LOE benefits upon taking early retirement is whether, at the effective date of the retirement, the worker was capable of performing any type of employment and, in particular, whether by taking early retirement, the worker effectively declined to perform suitable worker that was available with the accident employer. Where a worker declines suitable work, a subsequent loss of earnings cannot be considered to be a result of the injury within s. 43(1) of the WSIA. The worker elected to take early retirement on October 17, 2007. The relevant date for determination of whether suitable work was available to the worker was the date the worker made the irrevocable decision to retire on October 17, 2007. On that date, the worker was being provided with suitable work. (Even if the work was not suitable, the employer would have provided other work that was suitable.) The worker was experiencing some pain and discomfort related to the compensable injury, and the decision to retire was related to the compensable injury. None the less, the work provided by the employer was suitable. Accordingly, the worker was not entitled to LOE benefits subsequent to his retirement. The employer's appeal was allowed. |
| View Full Decision Text |
| References: | Act Citation Other Case Reference |
| Neutral Citation: | 2011 ONWSIAT 2698 |
Decision No. 1874 11 22-Nov-2011 M. Crystal - M. Christie - K. Hoskin
- Loss of earnings {LOE} (retirement) (early)
| The worker suffered a knee injury in July 2005. He returned to modified work in April 2007. On October 17, 2007, the worker accepted an early retirement package from the employer to retire at the end of 2007. The decision to accept the package was irrevocable. The worker appealed a decision of the Appeals Resolution Officer denying LOE benefits from June 2008 to February 2009, and after June 2009. In a related decision (Decision No. 2184/11), the Panel deals with the employer's appeal of the ARO decision granting LOE benefits from January 2008 to June 2008, and from February 2009 to June 2009. Taking an early retirement package is not, in and of itself, a bar to receipt of ongoing benefits. It is necessary to look at the reasons for which the worker accepted the package. However, even if the reasons include difficulties associated with the compensable injury, the inquiry is not at an end. The appropriate test for ongoing entitlement to LOE benefits upon taking early retirement is whether, at the effective date of the retirement, the worker was capable of performing any type of employment and, in particular, whether by taking early retirement, the worker effectively declined to perform suitable worker that was available with the accident employer. Where a worker declines suitable work, a subsequent loss of earnings cannot be considered to be a result of the injury within s. 43(1) of the WSIA. The worker elected to take early retirement on October 17, 2007. The relevant date for determination of whether suitable work was available to the worker was the date the worker made the irrevocable decision to retire on October 17, 2007. On that date, the worker was being provided with suitable work. (Even if the work was not suitable, the employer would have provided other work that was suitable.) The worker was experiencing some pain and discomfort related to the compensable injury, and the decision to retire was related to the compensable injury. None the less, the work provided by the employer was suitable. Accordingly, the worker was not entitled to LOE benefits subsequent to his retirement. The worker's appeal was dismissed. |
| View Full Decision Text |
| References: | Act Citation Other Case Reference |
| Neutral Citation: | 2011 ONWSIAT 2697 |
Decision No. 1492 11 21-Nov-2011 R. Nairn
- Suitable employment (sustainability)
| The worker was an assembler who was granted entitlement for carpal tunnel syndrome. The employer provided modified work. After a visit from an ergonomist, the Board determined that the modified work was not sustainable, and provided the worker was an LMR assessment. The employer appealed. The nature of the employer's business was that it performed between 400 and 500 short-term contracts per year. Most of these jobs were completed in a couple of days. Virtually all the tasks the worker was performing were suitable for her restrictions. The focus in this case should not have been on the particular job when the ergonomist visited, which was very short-term, but on the tasks involved, which were the same on all of the contracts. Although the specific contract would have been completed in a couple of days, it would have been followed by other jobs with the same tasks. The Vice-Chair was satisfied that the modified work offered by the employer was both physically suitable and sustainable. The worker should not have been provided with LMR services. The cost of those services should not be charged to the employer. The appeal was allowed. |
| View Full Decision Text |
| References: | Act Citation Other Case Reference |
| Neutral Citation: | 2011 ONWSIAT 2686 |
Decision No. 1488 11 18-Nov-2011 W. Sutton
- Permanent impairment {NEL} (degree of impairment) (white finger disease)
| The Board granted the worker with bilateral hand-arm vibration syndrome (HAVS) of the upper and lower extremities a NEL award of 16%, being the combined value of a 10% rating for the upper extremities and a 6% rating for the lower extremities. The worker appealed a decision of the Appeals Resolution Officer denying an increase in the NEL award. The Vice-Chair distinguished Decision No. 2205/09 regarding determination of the rating schedule, on the grounds that the Board now has an applicable policy, Operational Policy Manual, Document No. 16-01-09, regarding determination of impairment due to HAVS. HAVS potentially affects three separate body systems: vascular, neurological and musculoskeletal. The impairments of these systems are considered to proceed independently, and not all of these components are necessarily found in each case. In this case, there was only a vascular component. The Vice-Chair found that the upper extremity impairment appropriately fell within Class 2, as determined by the Board. Medical testing identified vasospastic disease bilaterally on cooling the worker's fingers to 3 degrees Celsius. Class 2 evaluates exposure at temperatures lower than 4 degrees, whereas Class 3 evaluates exposures at less than 10 degrees. Thus, the medical evidence clearly positioned the impairment within Class 2. The NEL assessor noted that there was no information regarding impact on activities of daily living. The worker now provided detail with regard to limitations on activities of daily living, including cessation of lawn mowing and of outdoor winter activities. Considering this new information, it was reasonable to increase the award for the upper extremities by 5% and for the lower extremities by 5%. Translating the new ratings into whole person awards and combining the values of the whole person awards results in increases to 13% for the upper extremities and 8% for the lower extremities, which are combined for a total NEL award of 20%. The appeal was allowed. |
| View Full Decision Text |
| References: | Act Citation Other Case Reference |
| Neutral Citation: | 2011 ONWSIAT 2664 |
Decision No. 1892 11 16-Nov-2011 R. McCutcheon
- Assessment of employers (retroactivity)
- Registration of employers
| The employer began carrying on business in 2006. In 2009, through an information sharing agreement with the Canada Revenue Agency, the Board became aware that the employer was carrying on business in a Schedule 1 industry and advised the employer that it was required to register for workplace insurance coverage with the Board. In 2010, the Board assessed the employer for premiums retroactive to January 1, 2007. The employer appealed, submitting that the retroactivity should be only to January 1, 2008. Board Operational Policy Manual, Document No. 14-02-06, regarding employer premium adjustments, stipulates that failure to register with the Board is a debt owed for prior premiums not paid and, therefore, does not involve adjusting an employer's premium. The Vice-Chair interpreted this to mean that the general two-year retroactivity rule for employer premium adjustments does not apply where the employer has failed to register. Document No. 14-02-06 must be read in conjunction with the policies that apply to registration, specifically Document No. 14-02-02, regarding registration, and Document No. 14-02-15, regarding voluntary registration. Pursuant to s. 75 of the WSIA and Board policy, an employer must register with the Board within 10 days of becoming an employer. The policies do not set any limit on the retroactivity of premiums for failure to register. Since the employer began carrying on business in early 2006, the Board had the authority to charge premiums from that time. The Board chose to make the registration effective from January 1, 2007. Document No. 14-02-06 refers to a potential five-year period of retroactivity for failure to make full disclosure. There was an alleged lack of full disclosure in this case. However, the Board did not apply that provision to the employer. The Board identified January 1, 2007, as the effective date for registration in its first correspondence with the employer in 2009, which was before the alleged lack of disclosure which occurred in 2010. The employer submitted that there were exceptional circumstances warranting a limitation of the retroactivity. It submitted that it was a small employer and was unaware of the obligation to register. However, the Vice-Chair noted that the Board had already applied discretion to limit the retroactivity to January 1, 2007, rather that the date in early 2006 when the employer began its operations. Further, employers are required to comply with the law, including the requirements of the WSIA. The Vice-Chair also rejected the employer's submission about the financial burden of the retroactive assessment. This had been addressed by the Board in allowing the employer to pay the arrears in $100 monthly installments. In addition, the Vice-Chair rejected the employer's submission about not receiving correspondence from the Board in 2009, which was sent to an outdated address. The Vice-Chair referred to the employer's obligation to register in 2006, long before the date of the correspondence in 2009, and the fact that the outdated address was still on file in the employer's Corporate Profile with the Ministry of Government Services. The appeal was dismissed. |
| View Full Decision Text |
| References: | Act Citation Other Case Reference |
| Neutral Citation: | 2011 ONWSIAT 2643 |
Decision No. 512 06 02-Nov-2011 T. Silipo - M. Christie - F. Jackson
- Loss of earnings {LOE} (older worker)
- Charter of Rights (equality rights) (discrimination) (age)
| The worker was injured in February 2001. The Board granted the worker LOE benefits until he reached age 65 in May 2002. In Decision No. 512/06I, the Vice-Chair granted the worker LOE benefits until February 2003 (two years after the date of the injury) in accordance with s. 43(1)(c) of the WSIA. The worker an issue under s. 15(1) of the Charter of Rights, claiming that s. 43(1)(c) contravened the Charter in that it discriminated on the basis of age by limiting LOE benefits of workers who are over 63 years of age on the date of the injury. The hearing reconvened with a tripartite panel to consider the Charter issue. The majority of the Panel considered the historical context and found that workplace insurance law operates primarily as an insurance scheme, while acknowledging that it operates under the aegis of the provincial government for the public good and can be distinguished from the for-profit underpinnings of private insurance. There may not be a mandatory retirement age but 90% of workers retire by age 65. This is an age when they become eligible for other source of income, such as CPP. Insurance schemes are premised on actuarial probabilities, and these probabilities underpin the WSIA in limiting benefits after age 65. There is a two-part test in analyzing s. 15: 1) whether the law creates a distinction based on an enumerated or analogous ground; 2) whether the distinction creates a disadvantage by perpetuation prejudice or stereotyping. The majority of the Panel found that s. 43(1)(c) does create a distinction under the enumerated ground of age in s. 15 of the Charter. However, it did not violate the second part of the test. The two-year limit on benefits will not serve every individual but did not disadvantage the group as a whole. The two years of benefits reflects an appreciating for and understanding of older workers who continue to work past the expected retirement age of 65. It provides a not insubstantial bridge of two years, that allows 24 months to reach MMR, to make arrangements for segueing to retirement and allows 24 months for the worker to effect a return to work (which is successful in nearly 90% of cases). Insurance schemes must establish criteria and some of those will be based on age. Viewed contextually, the two-year limit does not perpetuate prejudice or negatively stereotype the individual. The limitation was effective in meeting the actual needs of the group as a whole and is consistent with the over-arching aims of the legislation. The majority concluded that there was no violation of s. 15 of the Charter. Even is s. 43(1)(c) did violate s. 15, it would still constitute a reasonable limit under s. 1 of the Charter. The objective of the legislation was pressing and substantial. The limitation on benefits was rationally connected to the aim of ensuring that benefits are paid for wage loss and not as a retirement subsidy. Almost 90% of workers age 63 or older return to work within the two-year period, so that s. 43(1)(c) is demonstrably proportional to the needs of almost 90% of those affected by it. The majority concluded that s. 43(1)(c) did not violate s. 15 of the Charter. The Vice-Chair, dissenting, found that workplace insurance was an insurance scheme for employers but a social benefits program for workers. Section 43(1)(c) made a formal distinction based on age that failed to take into account the worker's disadvantaged position in society as an older worker. The section led to an arbitrary limitation of benefits and was, accordingly, discriminatory. The Vice-Chair noted that some other provinces have a less arbitrary system that allows for the possibility to determine, on a case-by-case basis, that a worker would have worked beyond the two-year period. In addition, the Vice-Chair found that s. 43(1)(c) was not saved by s. 1 of the Charter, in that there were less arbitrary measures to limit entitlement, such as in those other provinces. The Vice-Chair found that the worker would have continued working until age 71, and would have granted LOE benefits until the worker reached that age. |
| View Full Decision Text |
| References: | Act Citation Other Case Reference |
| Neutral Citation: | 2011 ONWSIAT 2525 |
Decision No. 143 11 07-Nov-2011 E. Smith
- Cancer (lung)
- Evidence (expert)
- Exposure (synergy)
- Mining (nickel)
| The worker was a surface worker at a nickel mine from 1936 until he retired in 1975. He was diagnosed with lung cancer in November 2005 and died in January 2006. The worker's estate appealed a decision of the Appeals Resolution Officer denying entitlement. The worker provided a letter from a doctor at the Occupational Health Centres for Ontario Workers (OHCOW) which expressed the opinion that the workplace exposure likely contributed to the worker's lung cancer. However, the doctor did not review the exposures or the epidemiology. Rather, in forming his opinion, he relied on a report from an individual who had an M.Sc. in occupational health but had not yet written the examinations to become certified as an occupational hygienist. Thus, the Vice-Chair found that the doctor's letter could only be relied on the extent that the report on which it was based was reliable. The Vice-Chair did not rely on the report as being a report of an expert witness. In areas involving professional qualification, a specific formal qualification is required in order to recognize a person as an expert witness, in the absence of exceptional circumstances. The evidence of the report may be relevant to factual findings about exposure but the Vice-Chair could not give weight to opinions about risk of the exposure. The worker performed numerous different jobs over the years. The only job that fell within the latency period for development of lung cancer was that as a maintenance mechanic. The worker only performed that job for two years and only had possible incidental exposure to asbestos. That was well short of the requirements of Board policy. The estate suggested that there were possible synergistic effects of the worker's exposures. The Vice-Chair noted that consideration of synergistic effects is generally limited to situations when the exposures occur in the same time period and may therefore operate interactively. However, in this case, the exposures were not concurrent. The Vice-Chair was not aware of evidence that a long past exposure to one carcinogenetic would cause a synergistic effect in conjunction with a different exposure that occurs later in time. The appeal was dismissed. |
| View Full Decision Text |
| References: | Act Citation Other Case Reference |
| Neutral Citation: | 2011 ONWSIAT 2570 |
Decision No. 1926 11 04-Nov-2011 E. Smith
- Maximal medical rehabilitation
- Permanent impairment {NEL} (psychotraumatic disability)
| The worker's right leg was amputated after a compensable motor vehicle accident in 2004. The Board granted the worker a 29% NEL award for permanent organic impairment. Entitlement was expanded to include disfigurement and left leg injury resulting from overuse. The NEL award was increased to 47%. The worker appealed a decision of the Appeals Resolution Officer denying a NEL award for psychotraumatic disability. Board Operational Policy Manual, Document No. 15-04-02, states that psychotraumatic disability is considered to be a temporary condition, and that only in exceptional circumstances is this type of impairment accepted as a permanent impairment. Section 2(1) of the WSIA provides that a permanent impairment is an impairment that continues after a worker reaches maximum medical recovery. The Vice-Chair was of the view that, in order to be entitled to an assessment for permanent psychotraumatic disability, there must be evidence to support a finding of permanent impairment based on a DSM IV diagnosis and that the worker is at MMR. In 2005, the worker was diagnosed with post-traumatic stress disorder with mild depression and mild anxiety, and a GAF of 60 at the top of the moderately impaired range. At that time, the worker had a level of symptoms sufficient to constitute a psychotraumatic impairment. The question was whether he was an MMR at that time and whether the impairment was permanent. In 2007, he was diagnosed with adjustment disorder mixed with anxiety and depressive mood. The diagnosis did not include PSTD at that date. This suggested that the worker's symptoms had improved and were no longer sufficient to meet the criteria for PSTD. In 2008, there was no DSM IV diagnosis of PTSD. This was consistent with the 2007 report of improved symptoms. The worker was also missing appointments at that time. This indicated that the worker did not feel a critical need for the psychological services, and was further evidence of improvement in his condition. By the time of the ARO decision, the worker had some remaining psychotraumatic symptoms. His symptoms did not entirely resolve. However, the fact that he was prescribed medication for depression is not enough to support a permanent award. His symptoms were improving and were expected to continue to improve. The symptoms were insufficient to support a DSM IV diagnosis and the worker was not at MMR. The worker was not entitled to a NEL award for psychotraumatic disability. The worker was also not entitled to a provisional award. There is no provision in the WSIA allowing payment of a NEL benefit for a temporary impairment. It may be reasonable for the Board to pay a provisional NEL benefit to a worker who is at MMR and has a permanent impairment when there remains a significant possibility of improvement and the Board wishes to reserve the right to review the NEL award under its powers of reconsideration. That was not the situation in this case. The appeal was dismissed. |
| View Full Decision Text |
| References: | Act Citation Other Case Reference |
| Neutral Citation: | 2011 ONWSIAT 2552 |
[Retour]
