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Highlights of 2009 Cases

This section reviews some of the many legal, factual and medical issues which the Tribunal considered in 2009.

The Tribunal decides cases under four Acts. The Workplace Safety and Insurance Act, 1997 (WSIA) came into force on January 1, 1998. It establishes a system of workplace insurance for accidents occurring after 1997, and amends and continues the pre-1985, pre-1989andpre-1997 Workers’ Compensation Acts for prior injuries. The WSIA and pre-1997 Act have been amended several times, including amendments contained in the Government Efficiency Act, 2002 (GEA), effective January 26, 2002, and Schedule 41 of the Budget Measures and Interim Appropriation Act 2007, effective July 1, 2007.

Appeals Under the WSIA

The WSIA provides loss of earnings (LOE) benefits for workplace injuries, as well as non-economic loss (NEL) benefits for permanent impairments. LOE benefits are reviewable for a period of 72 months from the accident date on “material change of circumstances” or annually at the Board’s discretion. The amount of LOE benefits depends on the extent to which the worker can return to the workplace and replace pre-injury earnings. The WSIA emphasizes the need for co-operation by the workplace parties in facilitating the worker’s early and safe return to work (ESRTW). If ESRTW is not possible, the Board conducts a labour market re-entry (LMR) assessment and may offer an LMR plan to assist in identifying a suitable employment or business (SEB). The worker’s LOE benefits are assessed in light of this. Appeals in LOE and NEL cases form a large portion of the Tribunal’s caseload. This section will note a few of the issues considered in 2009 which affect entitlement to, or review of, LOE benefits.

Decision No. 1625/09, 2009 ONWSIAT 2623, considered how to assess loss of earnings where a worker has received LMR training in a new field but was not employed in the SEB at the final LOE review. The applicable Board policy provided for use of the wages of a fully experienced worker; however, Decision No. 1625/09 agreed with earlier decisions that this policy provision must be applied in a manner which allows consideration of the particular circumstances of the individual worker. Decision No. 1625/09 noted that the newer version of this policy appears to reflect the approach taken by Tribunal cases as it provides for use of entry level wages where workers are entering a new field.

When the WSIA was initially enacted, LOE benefits could not generally be reviewed after 72 months. In 2009, Decision No. 1211/08R, 2009 ONWSIAT 1084, 89 W.S.I.A.T.R. (online), considered the GEA amendment which allows review of LOE benefits when the worker suffers “a significant deterioration in his or her condition” which results in a redetermination of the degree of permanent impairment. The worker had two NEL awards, one for the right knee and one for the left knee. The worker’s NEL awards were redetermined when his right knee condition worsened, requiring replacement surgery. On the reassessment, it was found that the left knee condition had improved somewhat so that the combined NEL for both conditions remained the same. Decision No. 1211/08, 2008 ONWSIAT 1759, 86 W.S.I.A.T.R. (online), had previously found that the significant deterioration in the right knee condition allowed the Board to review the worker’s LOE benefits after final review under the GEA amendment. This was affirmed on reconsideration. Decision No. 1211/08R agreed with the original Vice-Chair that the relevant “condition” is the condition which is under consideration for the purposes of LOE benefits. A review which addressed only the cumulative whole person NEL rating would be inadequate in cases where the deterioration and specific impairment affected the worker’s loss of earnings. This did not preclude a review of LOE benefits when the relevant condition is the cumulative impairment for multiple injuries on a whole-person basis, as in Decision No. 595/08, 2008 ONWSIAT 2436, 86 W.S.I.A.T.R. (online). The word “condition” is broad enough to apply in both contexts.

Difficult adjudicative issues may arise where a worker is terminated following a workplace accident since the Tribunal must determine whether the resulting loss of earnings flows from the compensable injury or from the termination. Decisions No. 567/09, 2009 ONWSIAT 1829, 690/07, 2009 ONWSIAT 2087, 2797/07, 2009 ONWSIAT 207, and 1372/09, 2009 ONWSIAT 2788, considered the Act, policy and caselaw in this area in some detail. A test frequently used in Tribunal decisions is whether the employer’s reasons for terminating the worker are related to the workplace injury. Decision No. 2797/07 noted that a worker may continue to be entitled to LOE benefits when he is terminated for unrelated reasons, but the termination is not made in good faith or for rational reasons.

Decision No. 1372/09 agreed with Decision No. 690/07 that an employer’s decision to terminate a worker cannot, in and of itself, result in the loss of LOE entitlement. These two cases asked whether the workplace injury continued to make a significant contribution to any continuing loss of earnings and, if so, to what extent the worker remained disadvantaged in his ability to match his pre-injury earnings. Decision No. 1372/09 held that common law principles of employment law should be considered in answering these questions. It applied the Supreme Court of Canada decision in McKinley v. BC Tel, 2001 SCC 38, [2001] 2 S.C.R. 161, which approved a contextual approach to wrongful dismissal. The SCC held that misconduct (such as serious misconduct, habitual neglect of duty and conduct prejudicial to the employer’s business) must be viewed in context, including length of service and discipline history, in deciding wrongful dismissal cases. Decision No. 1372/09 found that a similar balancing exercise should be applied in determining whether the circumstances giving rise to the injured worker’s termination severed the casual connection with the compensable injury.

The WSIA introduced limits on entitlement for mental stress claims. Section 13(4) provides that a worker is not entitled to benefits for mental stress except as provided in subsection (5). Section 13(5) provides for entitlement for mental stress that is an acute reaction to a “sudden and unexpected traumatic event arising out of and in the course of his or her employment”. The section goes on to specify that a worker is not entitled to benefits for mental stress caused by an employer’s decisions relating to employment. Tribunal decisions in 2009 continued to interpret these statutory provisions and related Board policy, particularly in the context of claims by workers, such as police officers, who are exposed to stressful situations frequently. For example, Decision No. 933/07R, 2009 ONWSIAT 117, 88 W.S.I.A.T.R. (online), considered a worker who was a communicator for a police department. She took 911 calls and co-ordinated responses to the calls and had direct contact to a number of traumatic events. The final triggering event occurred when she read the report of a hostage taking involving victims whom she knew. Decision No. 933/07R found that the worker fell within the Board’s policy on cumulative effect and that the Board’s policy on cumulative effect reflects the wording of section 13(5) of the WSIA. In contrast, Decision No. 570/09, 2009 ONWSIAT 829, 88 W.S.I.A.T.R. (online), found that a health care aide was not entitled to benefits for mental stress when she was telephoned at home and told that she was being suspended with pay for three days while her employer investigated allegations of fraud. Benefits for stress related to events caused by an employer’s decisions or actions related to the employment function are specifically prohibited by section 13 and Board policy.

Board Policy Under the WSIA

While the Tribunal has always considered Board policy, the WSIA expressly states that, if there is an applicable Board policy the Tribunal shall apply it when making a decision. Section 126 provides that the Board is to provide applicable policy and sets out a process for the Tribunal to refer policy back to the Board if the Tribunal concludes that the policy is inapplicable, unauthorized or inconsistent with the Act. During 2009, there were no section 126 referrals. There were, however, a number of cases interpreting Board policy, as well as a few requests by the Board to reconsider a decision in light of Board policy. While the Tribunal does consider Board reconsideration requests, the usual high threshold test for granting reconsideration applies.

As noted in previous Annual Reports, Board policy often changes over time. The rights and obligations of parties may vary significantly depending on which version of the policy applies. Tribunal cases had previously found that section 126 policy is similar to legislation and the presumption against retroactivity applies. Decision No. 396/08R, 2009 ONWSIAT 479, 88 W.S.I.A.T.R. (online), considered a Board reconsideration request that the original decision had incorrectly applied an earlier version of the policy for rating NEL awards rather than the 2004 policy, which provides that the Combined Values Chart is used when a worker is rated for a permanent impairment and has a pre-existing NEL award for a different body area. Decision No. 396/08R contains a thorough discussion of the law regarding retrospective application, retroactive application, immediate application and interference with vested rights. While the application of Board policy based on accident date may be appropriate in some circumstances, the question in this case did not turn on the accident date. Decision No. 396/08R found that the relevant fact for a NEL assessment is the date of maximum medical recovery (MMR). Since MMR was reached prior to 2004, the earlier policy applied. This policy had been interpreted in different ways. While Decision No. 396/08R preferred the interpretation which was consistent with the 2004 policy, the Tribunal has a high threshold for reconsideration. Since the original Vice-Chair had adopted a different interpretation which had been applied in other Tribunal decisions, the Board’s application to reconsider was denied.

Decision No. 1672/04, 2009 ONWSIAT 150, 88 W.S.I.A.T.R. (online), considered the effect of Board policy on prior Tribunal caselaw regarding how the statutory definition of “accident” should be interpreted. The Tribunal is now required to apply Board policy. Current Board policy defines an accident in the nature of a “chance event” as an identifiable event which causes an injury and states that the injury itself is not a chance event. A “disablement” is defined as a condition that emerges gradually over time or is an unexpected result of work duties. Given these policy definitions, the view in some earlier cases that the injury itself can constitute the “accident” without identification of an external injuring process, is no longer open to the Tribunal. More recent Tribunal decisions have interpreted a “chance event” more broadly. In order to be consistent with the Act, Decision No. 1672/04 reasoned that the “disablement” definition in Board policy must refer to an unexpected result of work duties that is not otherwise a chance event. “Disablement” may refer to injuries that occur over a short period of work duties, such as a shift, but in the absence of a discrete triggering event.

The interpretation and application of the Board’s interest policy continued to be an issue in Tribunal cases. According to Board policy, the Board pays interest for claims registered prior to 1990 if the delayed benefits were granted at the appeal level. Where interest is payable, it is only payable from January 6, 1989. Decision No. 15/09, 2009 ONWSIAT 539, 88 W.S.I.A.T.R. (online), discussed the differences between claims for interest where an award was made at the operating level, rather than the appeal level, and claims for interest before January 6, 1989. Under the statutory merits and justice provision, Tribunal decisions have awarded interest where a very significant error and a significant injustice were corrected at the operating level. Regarding payment of interest prior to 1989, however, Board policy does not anticipate that any interest is payable. While the statutory direction to decide on the merits and justice still applies, it should not be used to circumvent Board policy. Particularly exceptional circumstances are required for a worker to receive interest which is not generally available. Tribunal decisions have found that particularly exceptional circumstances might exist in cases where a family lost significant income replacement benefits, as distinct from situations where an individual was deprived of a portion of benefits for a period of time. In Decision No. 15/09, the worker had lost a portion of his pension for a period of time. Interest should be paid retroactive to January 6, 1989 since a significant injustice had been corrected at the operating level; however, the error and injustice were not of such significance as to warrant payment of interest prior to January 1, 1989.

Decision No. 2157/08, 2009 ONWSIAT 912, 89 W.S.I.A.T.R. (online), considered amendments to the Board’s interest policy which state that interest is not payable except on a list of specified benefits. It agreed with Decision No. 230/06R2, 2008 ONWSIAT 3135, 87 W.S.I.A.T.R. (online), previously discussed in the 2008 Annual Report, that the amended Board policy provides for a closed list and that interest is only payable in other circumstances under the merits and justice provision of the Act. While LMR benefits were not on the list, the Vice-Chair found that there were exceptional circumstances. The worker had been denied any entitlement for approximately five years and was on his own to retrain and find alternative employment. He had also been diligent in pursuing his claim and was not responsible for any of the delays in adjudication.

Decision No. 652/09, 2009 ONWSIAT 820, 88 W.S.I.A.T.R. (online), considered an amendment to Board policy on how the 10% retirement contribution under section 44(1) of the pre-1997 Act should be calculated. The 2007 Annual Report noted that Decision No. 1878/04R, 2007 ONWSIAT 2503, 83 W.S.I.A.T.R. (online), had denied the Board’s request to reconsider Decision No. 1878/04, 2006 ONWSIAT 2768, 83 W.S.I.A.T.R. (online), on the grounds that section 44(1) directed the Board to set aside 10% of FEL amounts actually paid to the worker rather than 10% of the amount prior to the CPP offset, as held in Decision No. 1878/04. The reconsideration Vice-Chair found that there was no Board policy specifically dealing with the issue and that the statute could be interpreted either way. The amended Board policy now specifically provides that 10% of every payment should be interpreted as 10% of FEL benefits after the CPP offset. The policy also states that it applies to all decisions made on or after August 1, 2003. Decision No. 652/09 found that the amended policy was consistent with the pre-1997 Act. While there is a presumption against retroactivity, which applies to Board policy changes, the amendment was not a change in policy; rather it was a clarification by the Board in response to the inconsistency in interpretation found in Decisions No. 1878/04 and 1878/04R.

Right to Sue Applications

The WSIA and earlier Acts are based on the “historic trade-off” in which workers gave up the right to sue in exchange for statutory no-fault benefits. The Tribunal has the exclusive jurisdiction to decide whether a worker’s right to sue has been removed by the Act. Right to sue applications may raise complicated issues, such as the interaction between the WSIA and other statutory schemes.

An issue which has arisen in previous years is whether the Tribunal has jurisdiction where the worker has received statutory accident benefits (SABs) under the Insurance Act but no court action has been commenced. The issue arises because section 31(1)(c) of the WSIA provides that an insurer can apply to the Tribunal to determine whether a “plaintiff” is entitled to claim benefits under the insurance plan. While some earlier cases found that there was no jurisdiction, two decisions considered more extensive submissions and found that the Tribunal has jurisdiction, but for somewhat different reasons. Decision No. 1362/06I, 2006 ONWSIAT 2253, 80 W.S.I.A.T.R. (online), concluded that “plaintiff” should be interpreted broadly to include a person who has claimed statutory accident benefits from an insurer, while Decision No. 14/06, 2007 ONWSIAT 339, 81 W.S.I.A.T.R. (online) relied on section 31(1)(a) which enables an insurer to apply to the Tribunal to determine whether the right to commence an action is taken away. In 2009, Decision No. 897/09I, 2009 ONWSIAT 2323, considered an application by a SABs insurer in circumstances where only section 31(1)(c) could apply. Decision No. 897/09I agreed with Decision No. 1362/06I that there is jurisdiction under section 31(1)(c) and that interpreting “plaintiff” narrowly would lead to strange and anomalous results. The legislative drafters could not have intended that disputes about compensation law should be decided by arbitrators at the Financial Services Commission (FSCO) rather than the Tribunal. Decision No. 897/09I also noted that this view is consistent with FSCO caselaw which indicates that the Tribunal has jurisdiction.

The WSIA contains restrictions on the Tribunal’s jurisdiction over appeals from certain Board decisions, including a worker’s election to claim benefits or sue. Decision No. 1062/09, 2009 ONWSIAT 1494, 89 W.S.I.A.T.R. (online), found that the Tribunal does not have the jurisdiction regarding the validity of a worker’s original election to claim benefits or the Board’s denial of a worker’s request to withdraw the original election and sue instead. The worker’s only remedy, if he wishes to challenge the Board’s decision regarding his request to withdraw his election, is an application for judicial review.

Employer Issues

Appeals involving employer issues such as classifications, transfers of costs and adjustments of experience rating accounts, continue to form a significant part of the Tribunal’s caseload.

Second Injury and Enhancement Fund (SIEF) relief is an issue which is frequently appealed to the Tribunal. Decision No. 464/09, 2009 ONWSIAT 590, 88 W.S.I.A.T.R. (online), found that smoking is not, in itself, a prior disability or condition which can be used as a basis for claiming SIEF relief. While the worker’s smoking habit may have contributed to her slow recovery from compensable surgery, the smoking was not a prior disability or condition under Board policy. In another interesting SIEF appeal, Decision No. 1487/09, 2009 ONWSIAT 1807, considered a claim for SIEF relief where the worker suffered from psychological problems. It agreed with Decision No. 431/89 (1989), 11 W.C.A.T.R. 355, that the evidentiary problems are greater in such cases and that Board policy provides a lower threshold for SIEF relief in cases involving non-organic conditions, thereby removing inequities that would result from the evidentiary problems. It is not necessary for there to have been diagnosis of a prior psychiatric illness. The question is whether there is evidence of prior psychic trauma which could be considered as evidence of vulnerability to psychological illness.

The WSIA and earlier Acts allow costs to be transferred from a Schedule 1 accident employer to another Schedule 1 accident employer where the accident is due to the second employer’s negligence. Costs are apportioned based on the relative negligence of the employers and their workers. Decision No. 808/09, 2009 ONWSIAT 2397, considered whether there should be a cost transfer when the accident employer was an employment agency and its worker was injured when sent to a job with a recycling company. The recycling company was charged with five offences under the Occupational Health and Safety Act and pleaded guilty to one of the charges. Decision No. 808/09 found that the majority of the negligence was attributable to the recycling company and transferred 90% of the costs to that company. The employment agency had some responsibility as it had failed to provide the worker with general knowledge of his rights and obligations with respect to health and safety matters. In another cost transfer case, Decision No. 693/08, 2009 ONWSIAT 2565, considered an argument that 100% of the costs should be removed from an accident employer’s record where a worker was killed in a motor vehicle accident when he was not wearing a seat belt. The worker was not negligent in causing the accident; however, the extent of his injuries was at least partly related to his failure to wear a seat belt. Decision No. 693/08 found that the worker would have suffered significant injuries even if he had been wearing a seat belt, given the severity of the impact which caused the van to roll on to its side and eventually catch fire. Since the worker was found to be liable for only 10% contributory negligence, 90% of the costs of the claim should be removed from the accident employer’s record.

Decision No. 206/09, 2009 ONWSIAT 1368, 89 W.S.I.A.T.R. (online), is the first Tribunal decision to consider issues connected with registered deferred profit sharing plans (DPSPs). The employer had received an adjustment from the Board and was appealing for an increased period of retroactive adjustment because of negligent misrepresentation by the Board auditors that DPSPs should be included in insurable earnings. The Panel commented that the inclusion of DPSPs in insurable earnings was far from settled. There was, in any event, no negligent misrepresentation. The interpretation of the auditors was not unreasonable. All documents in existence at the time of the audits indicated that profit sharing plans were to be included in insurable earnings. There were no exceptional circumstances that would warrant a greater period of retroactivity.

Decision No. 1450/08, 2009 ONWSIAT 1865, considered a request for retroactive adjustment of a CAD-7 account to reflect SIEF relief. The employer had been switched from the CAD-7 Experience Rating Plan to the Merit Adjusted Premium Plan (MAPP) before the SIEF relief was granted. The Vice-Chair noted that changes to experience rating plans are not, in and of themselves, exceptional circumstances. Rather, they are part of the usual administration of the Accident Fund. The effective closing date of the CAD-7 plan was applied to all affected employers. The conversion from one plan to another may cause an advantage or a disadvantage to a particular employer. In this case, there were no exceptional circumstances warranting retroactive adjustment. The employer had delayed more than three and a half years before applying for SIEF relief.

Classifications are also frequently appealed to the Tribunal. Decision No. 2241/08, 2009 ONWSIAT 188, is an interesting example of the interpretation and application of Ontario Regulation 175/98. The issue was whether the employer should be classified in the rate group for trucking, rather than freight forwarding brokers. The Regulation provides that an employer is deemed to be directly carrying out a business activity when it contracts for another person to carry out an operation that would be a business activity if the employer carried out the operation. Decision No. 2241/08 interpreted this as intending to address the situation where an employer attempts to avoid paying premiums for a business activity by subcontracting it to others. The Board rate groups should be interpreted in a way that reflects this overall goal. To be classified in the trucking rate group, the broker must either use its own trucks and warehouses or use trucks and warehouses belonging to companies with which the employer has a standing association so as to negate its purported function as a middleman. If the evidence shows that a broker truly operates as a middleman who arranges for an independent trucking company to provide trucking services to an independent customer, the broker is properly classified as a broker.

Occupational Disease

Occupational disease cases, which involve workplace exposure to harmful processes or substances, raise some of the most complicated legal, medical and factual issues. Occupational diseases are compensable if they fall under the statutory definition of “occupational disease” or “disablement.”

Occupational disease cases often involve an analysis of epidemiological evidence and Board policy or practice. In 2009, for example, Decision No. 484/06, 2009 ONWSIAT 2785, considered the Board’s 2001 COPD (Chronic Obstructive Pulmonary Disease) Adjudicative Support Binder in upholding the Board’s decision to pay a NEL award for only a portion of a worker’s COPD on the grounds that only that portion was due to occupational dust exposure. The balance was due to smoking. The Panel reviewed previous decisions, including several more recent decisions such as Decision No. 865/92R4, 2006 ONWSIAT 569, 77 W.S.I.A.T.R. (online), which had found that apportionment is not appropriate in COPD cases because the non-compensable smoking and the workplace exposure interact to cause a single non-divisible injury. The Panel disagreed with Decision No. 865/94R4, noting that that decision did not have the benefit of the very thorough opinion from the Tribunal assessor. While the Supreme Court of Canada has established in cases such as Athey v. Leonati, [1996] 3 S.C.R. 458,that benefits cannot be apportioned in the case of indivisible injuries, the evidence established that the loss resulting from the smoking could be separated from the loss from the occupational exposure. Epidemiological evidence and medical opinion, while imprecise, are currently the best available evidence, not only with respect to whether the dust exposure has contributed to a worker’s COPD, but also with respect to how to measure what percentage of the COPD impairment results from smoking and what results from dust exposure. The Board’s COPD binder is not policy; however, it is a significant collection of information which is relevant and of assistance in analyzing the appeal. Decision No. 484/06 found that the formula in the COPD binder provides a fair and reasonable basis for measuring the relative contribution of the dust exposure and the smoking to the worker’s COPD.

Another 2009 case involving questions of apportionment was Decision No. 1166/07, 2009 ONWSIAT 430, 88 W.S.I.A.T.R. (online). The worker had died of mesothelioma and his estate claimed entitlement based on exposure to asbestos in Ontario. The worker was subsequently granted benefits for mesothelioma by Veterans Affairs Canada under the Pension Act based on exposure to asbestos while the worker was in the navy. Section 20(3) of the WSIA provides that if a worker is entitled to benefits under the WSIA relating to an accident and is also entitled to “compensation under the laws of another jurisdiction in respect of the accident,” the worker must elect to receive benefits under the insurance plan or to receive compensation under the laws of the other jurisdiction. Decision No. 1166/07 considered the law on causation and apportionment and clarified that the section 20(3) election is only required when a worker is entitled under two regimes in respect of the same accident. Apportionment, or more properly, attribution of injuries to different accidents, does not apply were there are two different accidents, with the second one aggravating the earlier injury. The election is only required were there is duplicate entitlement for the same accident. In this case, it was likely that only one of the exposures caused the mesothelioma so there was only one accident. Once the worker had the mesothelioma, further exposure would not have worsened his degree of impairment. Decision No. 1166/07 also found that the payments made under the Pension Act were, in substance, a form of workers’ compensation benefits payable under the laws of another jurisdiction. Accordingly, the worker had to elect whether to receive benefits under the WSIA or the Pension Act.

In Decision No. 1604/07, 2009 ONWSIAT 1504, 89 W.S.I.A.T.R. (online), the worker claimed for symptoms related to aluminum exposure due to work on a machine that cut aluminum sheets. On the evidence, the worker’s exposure was below the exposure levels set by the Ministry of Labour and, even if the worker had been exposed to more significant levels of aluminum dust, there was a lack of evidence demonstrating that the exposure was a significant contributing factor to the claimed neurological or other symptoms. The WSIA definition of “occupational disease,” however, includes a medical condition that requires preventative removal from the workplace. In this case, the worker was entitled to a limited period of benefits for preventative removal from the workplace while the matter was investigated.

A number of cases have considered the effects of smoking and occupational exposure. For example, in Decisions No. 1117/09, 2009 ONWSIAT 2327, and 2615/06, 2009 ONWSIAT 2154, the epidemiological evidence indicated that the relative risk of cancer from smoking was about 15, while that from exposure to diesel fumes was only 1.2 to 1.5. Entitlement was denied. In Decision No. 565/04, 2009 ONWSIAT 1253, 89 W.S.I.A.T.R. (online), however, the worker was an underground miner for 30 years as well as a smoker. He was diagnosed with cancer of the larynx. In finding that the workplace exposure was a significant contributing factor to the laryngeal cancer, the Panel noted that the SRI for individuals with 25 years in underground mining is 174, which was suggestive of a link to occupational exposure. The worker had more exposure than the average worker over the course of his 30 years of employment and the location of the cancer was more commonly associated with asbestos exposure.

In 2009, the Tribunal released its final decisions in the appeals of three co-workers for breast cancer related to workplace exposure to electro-magnetic fields (ELFs). Previous interim decisions had made findings of fact about the physical characteristics of the workplace and about each worker’s level of exposure to ELFs in the employer’s systems department. After considering expert evidence from a doctor on behalf of the worker, a doctor on behalf of the employer and a Tribunal medical assessor, as well as epidemiological evidence and the assessments of various international research bodies, Decisions No. 1778/03, 2009 ONWSIAT 1464, 89 W.S.I.A.T.R. (online), 1779/03, 2009 ONWSIAT 1465, and 1780/03, 2009 ONWSIAT 1469, concluded that the workplace exposure of all three workers was below any association with cancer. The Panel noted that, while the fact of a cluster is sufficient to raise the question of whether there is an occupational cause, it is not sufficient to answer the question. All of the scientific and other evidence must be considered. The workplace had been studied intensively and the Panel was satisfied that the exposure levels were insufficient to suggest a causal relationship. The Panel also expressed concern about deciding that the opinion of a single expert is weightier than the opinion of international bodies that represented the best experts in the field, when those bodies had considered an issue and expressed what was, in essence, a consensus view about the current state of epidemiology.

Paralegal Regulation

Since the 2007 amendments to the Law Society Act, which introduced paralegal regulation, the Tribunal has taken steps to ensure that paralegals who represent parties at the Tribunal meet the Law Society’s requirements.

Tribunal decisions are consistent in finding that the Tribunal has jurisdiction to engage in an inquiry regarding the status of an unlicensed paralegal who does not appear to be covered by one of the exemptions in the Law Society Act and By-laws. In 2009, three decisions did not allow unlicensed representatives to appear before the Tribunal. The most thorough discussion is contained in Decision No. 2268/08I, 2009 ONWSIAT 970, 89 W.S.I.A.T.R. (online), which considered the exemption for a “friend” under section 30(1) of By-law 4. To come within that exemption a person must meet four requirements: (1) the person’s profession or occupation does not include provision of legal services in the practice of law; (2) the person provides legal services only occasionally; (3) the person provides the legal services for a relative, friend or neighbour; (4) the person does not receive any compensation including a fee, gain or reward, direct or indirect, for the provision of legal services. Decision No. 2268/08I found that the representative did not meet at least the first two of these requirements. It was not necessary to make findings on the last two concerns since the exemption was only applicable if all four requirements were met; however, the Vice-Chair also had concerns about the other two requirements. While there were some elements of friendship, the representative had been involved with the worker in various business dealings. In addition, there were concerns about possible indirect compensation.

Decision No. 1956/09I, 2009 ONWSIAT 2454, did not allow a representative claiming to be exempt as a “friend” to appear. The representative had formerly worked as a representative. While he claimed that he was only finishing a number of open cases and he was not receiving any remuneration, it appeared that he took on this appeal after the licensing requirements were introduced. Further, and most importantly, questioning revealed serious concerns as to the relationship and friendship with the worker. The Vice-Chair concluded that the representative was attempting to use the exemption for friends to circumvent the paralegal licensing requirements. The hearing was adjourned to allow the worker to obtain a new representative.

In Decision No. 633/09, 2009 ONWSIAT 1118, 89 W.S.I.A.T.R. (online), the representative claimed to be exempt as an applicant to become a member of Canadian Registered Safety Professionals. While a member is exempt, the representative was only an applicant and had not yet taken her examinations. Accordingly, the representative was not allowed to appear.

In cases where concerns about a representative’s status are less serious and the Tribunal is satisfied that allowing the representative to assist the party would not bring the administration of justice into disrepute, the representative has been allowed to appear and the representative’s status has been referred to the Tribunal Chair for further investigation. See, for example, Decisions No. 1614/08R, 2009 ONWSIAT 2451, and 1694/08I, 2009 ONWSIAT 513. In cases such as Decision No. 644/09, 2009 ONWSIAT1623, 89 W.S.I.A.T.R. (online), where the Vice-Chair is satisfied that the representative meets the requirements for exemption, the hearing has been allowed to proceed with the unlicensed paralegal.

Miscellaneous

The WSIA and earlier Acts contain a statutory presumption that injuries occurring in the course of employment arise out of employment and vice-versa. The Tribunal’s interpretation of the standard of proof required to rebut this presumption has recently been considered in light of the Supreme Court of Canada decision in F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41, which held that there is only one standard of proof in civil law and that is the balance of probabilities. See Decisions No. 1672/04, 2009 ONWSIAT 150, 88 W.S.I.A.T.R. (online), and 1225/09, 2009 ONWSIAT 1964. Decision No. 1225/09 noted that Tribunal decisions have not necessarily imposed a higher standard of proof to rebut the presumption; rather they have found that in reversing the question the nature of inquiry changes, so that the evidence must demonstrate that it is probable that the accident did not arise out of employment.

The application of the Canadian Charter of Rights and Freedoms and the Ontario Human Rights Code arose in two cases in 2009. In Decision No. 141/08I, 2009 ONWSIAT 2648, the worker’s representative challenged the validity of section 13(4) and (5) of the WSIA, which limits entitlement for mental stress. Decision No. 141/08I, concluded that the worker’s claim for mental stress would have been allowed as an aggravation under the pre-1998 legislation but was not compensable under section 13(4) of the WSIA. The case will reconvene on the challenges raised under the Charter and Code, if the worker wishes to pursue these.

Decision No. 1657/07, 2009 ONWSIAT 2737, held that the reduction of the worker’s NEL award through the use of the Combined Values Chart (CVC) of the AMA Guides does not contravene the Charter or the Code. The worker had argued that the use of the CVC violated section 15 of the Charter and the Code because it discriminated against workers who suffer more than one workplace injury and discriminated against this worker on the basis of his prior disability. The Panel agreed with previous Tribunal cases that the Tribunal has the jurisdiction to apply the Charter and the Code. Decision No. 1657/07 reviewed caselaw from the Supreme Court of Canada on the test for determining whether there is a section 15 violation and concluded that the main focus is whether the discrimination perpetuates disadvantage and stereotyping. Given concerns expressed in recent Supreme Court of Canada cases about comparator groups, the Panel considered all comparator groups submitted by the parties. For the purposes of the analysis, the Panel accepted that there was differential treatment based on an enumerated ground. There was, however, no substantive discrimination. The Panel distinguished Nova Scotia (Workers’ Compensation Board) v. Martin, [2003] 2 S.C.R. 504, where the chronic pain provisions of the Nova Scotia legislation did not correspond to the needs and circumstances of workers with chronic pain, and where workers suffering from chronic pain were excluded from benefits available to other workers. In Decision No. 141/08I, the prior NEL award simply led to a somewhat smaller award for future NELs and did not limit entitlement to other benefits. A NEL award is a personalized assessment of the worker’s impairment under the AMA Guides and is rated on a holistic basis taking into account all permanent disabilities. The worker’s individual circumstances are therefore considered. The Panel concluded that use of the CVC is not unfair and does not affect the worker’s dignity. The AMA Guides’ philosophy is that physical impairments affect the whole person and that ratings should be combined to express an impairment of the whole person. In reducing a NEL rating through the CVC, the Board is not perpetuating prejudicial or stereotypical concepts of disability, but is ascribing a rating that reflects the physical or functional abnormality or loss of the impaired person on a whole-person approach.

Finally, Decision No. 2621/07, 2009 ONWSIAT 2098, addressed the issue of whether a common-law partner qualified as a “spouse” under the WSIA definition, which includes a person living in a conjugal relationship outside marriage. The Panel considered the criteria in Molodowich v. Penttinen (1980), 2 R.F.L. 276, which include arrangements for shelter; arrangements for sexual and personal behaviour; arrangements for domestic services; social activities; attitude and conduct of the community toward the couple; financial arrangements; and attitude and conduct of the couple concerning children. Court cases have also given considerable weight to the evidence of the parties’ intentions. The Panel found that evidence that the parties were careful to avoid establishing a formal or legal spousal arrangement indicated that they were not in a conjugal relationship under the WSIA.

Posted: March 24, 2010

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