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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 556 20
8/11/2020
N. Perryman

  • Issue setting
  • Transfer of costs (Schedule 2 employer)
  • Apportionment (Schedule 2 employers)
  • Health care (attendance allowance) (arrears)

The Board found the severity of the worker's injuries arising from 1969 (Claim A) and 1990 (Claim B) compensable accidents, meant the worker was eligible for a Personal Care Allowance (PCA) assessment. The assessment, done when the worker was 77 years old, found various personal care assistance was warranted.
In 2017 the worker was granted a PCA with an arrears date ultimately determined to be February 6, 2006. That date corresponded to a third injury, a right shoulder injury that was allowed as a secondary condition under the 1969 claim. As well, it was when the worker's composite NEL rating met the 60% threshold for PCA.
The Board charged all the costs for the PCA and Independent Living Allowance (ILA) to Employer B. The representative for Employer B requested apportionment with Employer A. That request was denied.
Employer B appealed the two ARO decisions which denied apportionment between the employers and confirmed the arrears date.
As part of submissions for the Tribunal's hearing, the representative for Employer B submitted that in addition to the issues noted, the Tribunal ought to make a determination of which claim "triggered" the worker's status to "severely impaired." The representative for Employer A requested that the Tribunal provide a preliminary ruling determining whether apportionment is possible, his position being that if it were not possible, the arrears date would be moot. The representative for Employer B opposed those suggestions, submitting that the appeal should be adjudicated in its entirety.
The Office of the Vice-Chair Registrar determined the issue of which claim triggered the severely injured characterization was a sub-issue of the issues set out in the Hearing Ready Letter, and as such would be at the discretion of the Vice-Chair as to how to address the issue. The Vice-Chair determined that the sub-issue and issues would all be adjudicated together.
The Vice-Chair found that apportionment between two Schedule 2 employers is not possible. The issue of apportionment has been addressed in several prior Tribunal decisions where it has been confirmed that Schedule 2 employers are individually liable and apportionment is prohibited under the workers' compensation system. The only exception is occupational disease cases where specific provisions are set out in the legislation for Schedule 2 employers.
The Vice-Chair found that the 2006 accident, for which the worker was granted entitlement as a secondary condition in relation to compensable low back injury (Claim A), necessitated the worker's need for the ILA and PCA.. The Vice-Chair noted that Board policy is clear that all costs arising from secondary conditions are to be charged back to the original accident employer. However, in this case, only the PD was charged back to Employer A. The remaining costs arising from the worker's new disability, the ILA and PCA benefits were charged to Employer B.
The Vice-Chair found that was incorrect and that Employer A is responsible for all the costs flowing from the right shoulder injury, including the ILA and PCA.
The Vice-Chair confirmed that February 6, 2006 was the correct arrears date for the PCA.