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Established in 1985, the Workplace Safety and Insurance Appeals Tribunal (WSIAT) is the final level of appeal to which workers and employers may bring disputes concerning workplace safety and insurance matters in Ontario. WSIAT has always been separate from and independent of the Workplace Safety and Insurance Board.

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  Decision 1173 16
7/5/2016
M. McKenzie

  • Causation (medical evidence) (standard of proof)
  • Hearing loss
  • Medical report (opinion of treating doctor preferred)

The worker appealed a decision of the Appeals Resolution Officer denying entitlement for noise-induced hearing loss. The Vice-Chair reviewed the recent Supreme Court of Canada decision in British Columbia (Workers' Compensation Appeal Tribunal) v. Fraser Health Authority, regarding the role of a specialized tribunal in making decisions respecting causation in an occupational disease claim. The Supreme Court noted that the benefit of doubt provision means that the applicable burden of proof is not the civil burden of balance of probabilities but a less stringent burden of proof. This contrasts sharply with scientific standards. The British Columbia WCAT had jurisdiction to determine questions of fact. While the tribunal may choose to draw from expert evidence put before it, the decision was for the tribunal to make. The Vice-Chair noted that the Supreme Court's description of the role of the British Columbia WCAT was consistent with Tribunal case law, noting that Decision No. 549/95I2 found that causation is a practical question that can best be answered by ordinary common sense and a robust and pragmatic approach to the evidence. In this case, there was consensus among the experts that the worker suffered from bilateral sensorineural hearing loss. However, there was no consensus as to whether test results were compatible with worker's workplace noise exposure. This case illustrated the difficulty in relying on any given expert opinion, particularly because none of the experts whose views were relied upon by the parties appears to have been in possession of all of the relevant facts. A nuanced understanding of the whole of the evidence was required in order to distill some very key points about the nature of the worker's hearing loss. The worker worked in a computer server room. The Vice-Chair placed considerable weight on a letter from the worker's supervisor stating that conversations at a normal level were not possible and that you needed to be close to another person and talk very loudly to be understood. The Vice-Chair referred to another Tribunal decisions indicating that, with 90 decibels of noise, it is difficult to communicate with someone next to you without talking loudly or yelling. The Vice-Chair gave reasons for preferring the opinion of the worker's treating specialist over that of the specialist retained by the employer. The Vice-Chair concluded that the worker had entitlement for noise-induced hearing loss. The appeal was allowed.