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Highlights of 2010 Cases

This paper reviews some of the many legal, factual and medical issues which the Tribunal considered in 2010.

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 continues the pre-1985, pre-1989 and pre-1997 Workers’ Compensation Acts for prior injuries. The WSIA and the 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. In 2010, the Board adopted new Interim Work Reintegration policies which apply to all decisions made on or after December 1, 2010. These interim policies contain a number of new concepts, for example, suitable occupation (SO) replaces suitable employment or business (SEB). Since no Tribunal decisions have considered these new policies, this review uses the terms and concepts found in the policies in effect prior to December 1, 2010.

Appeals Under the WSIA

The WSIA provides for loss of earnings (LOE) benefits for workplace injuries, as well as non-economic loss (NEL) benefits for permanent impairment. 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 2010 which affect entitlement to, or review of, LOE and NEL benefits.

LOE benefits are reviewable on “material change in circumstances,” or annually at the Board’s discretion, for a period of 72 months from the accident date. The amount of LOE benefits depends on the extent to which the worker can return to the workplace and replace pre-injury earnings. If early and safe return to work (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.

When the WSIA was initially enacted, LOE benefits could not generally be reviewed after 72 months. Amendments to section 44 in 2002 provided for review after 72 months when a worker suffers “a significant deterioration in his or her condition” which results in redetermination of the degree of permanent impairment. Similar review provisions were also made applicable to future economic loss (FEL) benefits under the pre-1997 Act. During 2010, several decisions considered what constitutes a “significant deterioration” for the purposes of this amendment. Decisions No. 1129/10, 2010 ONWSIAT 1982, and 267/10, 2010 ONWSIAT 1775, indicate that each case must be determined on its own facts. In some cases, a 1% NEL award, combined with other evidence, might establish a “significant deterioration.”

Decision No. 727/10, 2009 ONWSIAT 1009, held that the words “significant deterioration” should be given the same meaning in both section 44(2.1) and in section 47(9) regarding NEL redeterminations. If a worker has a significant deterioration warranting a redetermination of his NEL award, the worker must also be found to have a significant deterioration warranting a reassessment of the LOE award (or FEL award under the pre-1997 Act), regardless of the minimal nature of the NEL increase. The fact that the NEL increased only slightly may be taken into consideration in determining the merits of the LOE review. Decision No. 2383/09, 2010 ONWSIAT 2753, generally agreed with this approach and set out a two-step analysis. The first step is to determine whether a statutory precondition for review of an otherwise final LOE decision has been met. This might be viewed as a “gateway test” to opening an LOE award after the final review date. This in turn raises two sub-issues: whether the worker has suffered a “significant deterioration” in his or her condition that resulted in a redetermination of the degree of permanent impairment and, if so, whether this occurred on or after November 26, 2002. If these questions are answered affirmatively, then the second step is to evaluate the evidence to determine whether the LOE award ought to be changed. The quantum of the NEL increase is one piece of evidence to consider in deciding whether the LOE award should be changed.

For the purposes of the 2002 amendments, an initial determination of a NEL award after the LOE lock-in date is not sufficient to authorize an LOE review. Only redetermination of a NEL award after 72 months can trigger an LOE review. See Decisions No. 2203/09, 2010 ONWSIAT 542, and 1021/09I, 2010 ONWSIAT 6. Both these decisions noted that subsequent legislative amendments might have addressed the facts of those cases. The subsequent amendments did not apply, however, since the facts in both cases occurred before the amendments came into force in July 2007.

Decision No. 734/10, 2010 ONWSIAT 1187, is one of the first appeals to consider the 2007 amendments. Section 44(2.1)(g) allows the Board to review LOE benefits if the worker and employer are co-operating in early and safe return to work when the 72 months expires. The LOE benefits can then be reviewed “up to” 24 months after the 72 months expires. Decision No. 734/10 applied Board policy that parties are co-operating in ESRTW if the employment relationship between the parties has been maintained and they are actively attempting to identify suitable employment. In considering whether to conduct a review after the 72-month period, consideration is given to factors such as whether job suitability or sustainability concerns existed prior to the 72-month period and whether the job was highly accommodated. Decision No. 734/10 agreed with Decision No. 1641/08, 2008 ONWSIAT 2412, that the words “up to” 24 months mean that benefits can be reviewed at any time during the 24-month period and on more than one occasion.
Other interesting 2010 decisions considered provisions in the WSIA which deal with various limitations or unusual circumstances. An issue that has arisen previously is whether contributions of a worker’s employer to a union’s health and welfare and pension multi-employer benefit plans should be included in a worker’s earnings basis for the purposes of calculating an LOE award. Decisions No. 855/03, 2005 ONWSIAT 2490, 2118/01, 2002 ONWSIAT 475, and 2118/01R, 2003 ONWSIAT 1325, previously found that employer contributions to such plans were not earnings. While Decision No. 855/03 was upheld by the Court of Appeal in 2008 ONCA 719 (leave to appeal refused [2008] S.C.C.A. No. 541), the earlier decisions did not consider the legislative history of section 25 of the WSIA, which deals with multi-employer benefit plans. The legislative history was argued in Decision No. 2158/08, 2010 ONWSIAT 398, but the Tribunal concluded that it did not support the worker’s submission. Further, the legislation itself overrides any other publications. Decision No. 2158/08 agreed with the analysis in Decisions No. 855/03, 2118/01 and 2118/01R and noted that there had been ample time to amend the legislation if the Legislature disagreed with this interpretation.

The WSIA contains limitations on benefits for older workers. A worker who is 63 years of age or older on the date of injury is entitled to LOE benefits from when the loss of earnings begins until two years after the date of the injury. Applying section 43(1)(c), Decision No. 1418/10, 2010 ONWSIAT 1840, found that an older worker who suffers a compensable injury but does not suffer any loss of earnings until over two years after the date of injury, is not entitled to benefits. Since section 43(1)(c) is unambiguous, the statutory merits and justice provision does not permit a departure from the legislation, nor can the worker rely on a mistaken statement by a Board claims adjudicator to create a right to benefits outside the parameters of the WSIA.

The WSIA also 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 worker is not entitled to benefits for mental stress caused by an employer’s decisions relating to employment. The Board has also adopted policy which includes the concept of the “cumulative effect” of traumatic incidents for workers who may be exposed to traumatic situations due to the nature of the employment.
Decision No. 1848/10, 2010 ONWSIAT 2471, held that “harassment” under Board policy includes physical violence or a threat of physical violence. A worker’s subjective belief that a traumatic event occurred is not sufficient. See Decision No. 293/10, 2010 ONWSIAT 524. A worker will be entitled to benefits for mental stress, however, when it is reasonable for him or her to interpret statements made by a co-worker and subcontractor as being threats of physical violence. See Decision No. 728/10, 2010 ONWSIAT 2310. Decision No. 728/10 is also an example of entitlement for delayed acute reaction, which is recognized in Board policy.

An issue which has arisen a number of times at the Tribunal is how section 13(5) and Board policy apply to workers who, because of the nature of their employment, are frequently exposed to situations which an average worker would find stressful. Several 2010 decisions have emphasized that the cumulative effect provisions of the policy do not eliminate the requirement in section 13(5) that the triggering event be unexpected. See Decisions No. 2363/09, 2010 ONWSIAT 1365,and 218/10, 2010 ONWSIAT 387. Board policy also does not contemplate that the term “cumulative” means that a number of events, which are not objectively traumatic on an individual basis, can be considered cumulatively traumatic.

Decision No. 665/10I, 2010 ONWSIAT 1283, held that the two requirements – that an event be both objectively traumatic and unexpected in the normal of course of a worker’s employment – had to be considered in concert. The “average worker test” for stress should be considered in the context of the particular job which the worker is performing; otherwise, what is expected or unexpected in a particular workplace will lose its significance. At the end of 2010, Decision No. 665/10I was adjourned to enable the worker to bring a Charter challenge.

Turning to NEL awards, Decision No. 672/10, 2010 ONWSIAT 1818,is the first Tribunal decision to consider section 47(13), which provides that a worker is deemed not to have a permanent impairment if the degree of permanent impairment is determined to be zero. In Decision No. 672/10, the worker received a 0% NEL award after a prior pension award was deducted. This resulted in the worker being deemed not to have a permanent impairment pursuant to section 47(13). Accordingly, the worker was no longer entitled to LOE benefits. Decision No. 672/10 distinguished Decision No. 1881/99, 2000 ONWSIAT 187, which found that a worker with a 0% NEL award still had a permanent impairment. Decision No. 1881/99 was decided under the pre-1997 Act which did not have a provision similar to section 47(13) of the WSIA.

Finally, Decision No. 2023/10, 2010 ONWSIAT 2677, held that the Tribunal does not have jurisdiction to hear an appeal from a Board request that a worker undergo a second NEL assessment pursuant to section 47(8) of the WSIA. Section 123(1) gives the Tribunal jurisdiction over “final decisions” over benefits. While the second NEL assessment could ultimately affect the NEL award, it is not a final decision on that benefit.

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 a policy back to the Board if the Tribunal concludes that the policy is inapplicable, unauthorized or inconsistent with the Act. During 2010, there were no section 126 referrals. There were also no requests by the Board that the Tribunal reconsider a decision in light of a Board policy. There were, however, a number of Tribunal cases interpreting Board policy.

Decision No. 2023/10, 2010 ONWSIAT 2677, rejected a request for a section 126 referral of the Board’s policy that a Board request for a second NEL assessment is not appealable. While Decision No. 2023/10 agreed with earlier decisions that the Board cannot limit the Tribunal’s jurisdiction by policy, the Tribunal found that it did not have jurisdiction over the matter since the request did not constitute a final decision with respect to benefits for the purposes of section 123(1) of the WSIA.

Board policy can change over time. The rights and obligations of parties may vary significantly depending on which version of a policy applies. Tribunal cases in 2010 continued to hold that section 126 policy is similar to legislation and the presumption against retroactivity applies. In Decision No. 2424/09I, 2010 ONWISAT 418, the Panel agreed with Decision No. 1647/04, 2005 ONWSIAT 2178, that OPM Document No. 15-02-02, which states that it applies to claims for stress covered by the pre-1997 Act, as well as the WSIA, should not be applied retroactively to pre-1997 Act injuries. The policy was implemented on April 25, 2002. Prior to this, there was no Board policy on gradual onset stress injuries under the pre-1997 legislation. The policy appears to amend, retroactively, the pre-1997 Act by adopting limitations on entitlement only found in the WSIA. There is nothing in the WSIA explicitly authorizing the retroactive application of Board policy to the pre-1997 Act and no compelling reason why Board policy should be given retroactive effect by necessary implication.

In interpreting Board policy, the Tribunal will consider the intent of the policy as well as the relevant statutory provisions. For example, Decision No. 301/10, 2010 ONWSIAT 1918, upheld the Board’s policy under section 48(7) of the WSIA governing dependency benefits to spouses. While the statutory provision does not specifically require financial dependency, Board policy does. The statutory provision needs to be read as a logical whole. The requirement of financial dependence in Board policy reflects the manner in which the Board has interpreted the statutory discretion and is in harmony with the WSIA. And see Decision No. 1229/10, 2010 ONWSIAT 1615, where the Tribunal considered provisions in the Interpretation Act that, unless the context otherwise requires, a month means a calendar month and a year means a calendar year, in interpreting Board policy on long-term average earnings.

Finally, the Tribunal may be called on to consider challenges to Board policy under the Ontario Human Rights Code and the Canadian Charter of Rights and Freedoms. The WSIA provisions on stress and the Board’s mental stress policy are the subject of a challenge under the Human Rights Code and the Charter in Decision No. 141/08I, 2009 ONWSIAT 2648. Proceedings in Decision No. 141/08I were ongoing at the end of 2010. Another Charter challenge to those provisions is being pursued in Decision No. 665/10I, 2010 ONWSIAT 1283, as discussed above.

Decision No. 1657/07, 2009 ONWSIAT 2737, rejected a challenge under the Charter and the Code to Operational Policy Manual Document No. 18-05-05, which provides that a worker’s NEL award will be reduced in accordance with the Combined Values Chart in the American Medical Association Guides to the Evaluation of Permanent Impairment (3rd edition, revised) (AMA Guides) when the worker has a prior NEL award. In 2010, Decision No. 1529/04, 2010 ONWSIAT 1526, reached a similar conclusion, although for somewhat different reasons.

After reviewing relevant Supreme Court of Canada decisions, Decision No. 1529/04 found that, to establish a violation of the Charter, a party must show that the policy creates a distinction based upon an enumerated or analogous ground and that the distinction is discriminatory in that it perpetuates disadvantage or stereotyping. The relevant broader, social, political and legal context should be considered in analyzing these issues.

After discussing how to select an appropriate comparator group, Decision No. 1529/04 accepted the comparator group suggested by the worker, which consisted of workers eligible for a NEL award with no prior disability. Decision No. 1529/04 concluded that the distinction in Board policy was not based on the enumerated ground of “disability” but, rather, on a neutral and rationally defensible policy goal of assessing permanent impairment in accordance with the AMA Guides, which are the prescribed rating schedule. One of the principles of the AMA Guides is that each person begins from a whole of 100% and a person cannot be found to have an impairment of greater than 100%. Decision No. 1529/04 concluded that the distinction was also not discriminatory as it did not perpetuate prejudice or stereotyping.

Decision No. 1529/04 also found that there was no violation of the Human Rights Code. The test under the Code is whether the complainant has established a prima facie case demonstrating that the service creates a distinction based on a prohibited ground and, if so, whether the respondent has established that the distinction does not create a disadvantage perpetuating prejudice or stereotyping. Since the Code definition of “disability” includes workplace injuries, the appropriate comparator group for the Code analysis was workers eligible for a NEL award with prior non-work-related disabilities. Board policy does not reduce NEL awards for workers with prior non-work-related disabilities. While there was a prima facie case demonstrating a distinction based on a prohibited ground, the policy did not create a disadvantage by perpetuating prejudice or stereotyping. Rather, the distinction reflects the limits of the Board’s authority and jurisdiction over workplace injuries and the workplace insurance scheme as a whole.

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, more recent decisions have found that the Tribunal has jurisdiction, but for somewhat different reasons. Decision No. 107/10, 2010 ONWSIAT 1073, is consistent with the more recent cases in holding that the Tribunal has jurisdiction. After reviewing the caselaw, Decision No. 107/10 agreed with Decision No. 1362/06I, 2006 ONWSIAT 2253, that “plaintiff” in section 31(1)(c) includes a claimant for statutory accident benefits.

Decisions No. 392/10, 2010 ONWSIAT 1469, and 518/10, 2010 ONWSIAT 2254, considered the interaction between workplace insurance and other types of insurance. Tribunal decisions have recognized that there may be causes of action that are inter-related with the facts of a workplace insurance claim but which are not actions with respect to the parties’ fault as it relates to the accident giving rise to the claim for workplace insurance. Applying this distinction, Decision No. 518/10 found that the WSIA did not remove the Attorney General’s right to sue a building owner for breach of a contractual obligation to include the Attorney General as a name insured in the insurance policy with respect to the premises. Damages from this breach would not arise because of any negligent acts of the building owner which led to the workplace accident. Rather, they would arise because of the owner’s failure to maintain the required insurance.

Decision No. 392/10 considered the interaction between benefits under the WSIA and long-term disability benefits under a group insurance plan. The worker sought to sue his employer for long-term disability benefits under his employer’s group insurance plan after entitlement to LOE benefits was denied. The Tribunal concluded that the claim against the employer was, fundamentally, for or by reason of a compensable accident. In assessing a claim by a worker against an employer, it is not appropriate to become embroiled in issues of characterization of the claim. The claim against the employer was essentially for damages in connection with injuries sustained in the compensable accident. Treating the matter as a claim for enforcement of contractual rights under a policy of insurance would defeat the purpose of the WSIA and expose an employer to action whenever a worker wanted to pursue additional benefits after workplace insurance benefits were terminated.

The Tribunal also considered how the right to sue provisions applied to complicated fact situations. In Decision No. 1806/09, 2010 ONWSIAT 1752, the issue was whether a worker could sue a hospital resident for negligent treatment received for a compensable injury. Decision No. 1806/09 found that negligent medical treatment is a foreseeable consequence of a workplace injury. Accordingly, the WSIA barred the action against the resident provided the resident was a worker in the course of her employment with a Schedule 1 employer. The resident’s status as a worker required careful analysis because the resident was a medical student at a university who had been assigned to the hospital. Funding for the position was provided by the Ministry of Health. The terms of remuneration were governed by an agreement between the Professional Association of Interns and Residents of Ontario and the Counsel of Academic Hospitals of Ontario. The remuneration was paid through the Toronto Hospitals Post-Graduate Payroll Association. Decision No. 1806/09 found that the arrangement fell within the statutory provisions of the WSIA regarding training agencies. The medical school was a training agency for the purposes of section 69 and the hospital was the placement host. Section 69 reflected a clear intention that the placement host be a deemed employer of a trainee participating in a training program. Accordingly, the right to sue was removed against the resident.

Decision No. 2258/08, 2010 ONWSIAT 703, considered whether the WSIA removed a plaintiff’s right of action against a restaurant for negligently serving alcohol to a co-worker. The plaintiff was subsequently injured when the co-worker was involved in a car accident while driving under the influence. Decision No. 2258/08 distinguished Tribunal cases where the defendants who had allegedly been improperly served alcohol were not in the course of their employment. In this case, the plaintiff’s injuries were attributable to the co-worker, who was in the course of employment at the time he was served the alcohol and at the time of the accident. The workers of the restaurant were also in the course of their employment at the relevant time. Accordingly, the WSIA applied to remove the right of action against the restaurant.

Decision No. 2501/09, 2010 ONWSIAT 972, considered whether a worker could sue a co-worker who drove into her in the employer’s parking lot. The co-worker was convicted of assault causing bodily harm. The Tribunal has ruled on several occasions that it is required to give full effect to a criminal conviction. The conviction meant that the co-worker intended to assault the plaintiff when he drove the truck into her. The Tribunal has also consistently ruled in recent years that a worker who commits a criminal offence is not acting in the course of employment. Accordingly, while WSIA removed the right of action against the employer, the worker could sue her co-worker.

Employer Issues

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

Decision No. 2574/07, 2010 ONWSIAT 2079, addressed the question of whether a charity which provides support services to mentally disabled clients is exempt from mandatory coverage under section 5 of Ontario Regulation 175/98. Section 5 provides an exemption for business activities otherwise subject to mandatory coverage which are not done as a “business or trade or for profit or gain.” Decision No. 2574/07 contains a comprehensive review of the Board’s practice, Tribunal decisions and statutory amendments. Prior to 1978, the Board consistently applied section 5 to exempt all not-for-profit organizations from coverage. From 1975, the Board began to look more closely at the specific activities carried out by the not-for-profit organizations. In 1993, the classification system was revised from an “end use” system to a system based on the concept of “business activity.” A new definition of “business activity” was introduced and is currently found in section 1 of Ontario Regulation 175/98. It defines business activity broadly as an operation that relates to the production of a product or the provision of a service. There is nothing in the definition indicating that not-for-profit activities are excluded. The broad interpretation of the term “business” which has been adopted in more recent Tribunal decisions should be adopted. The charity was not exempt under section 5 since it was providing services.

The Board has adopted a policy providing for a departure fee when an employer who is not compulsorily covered decides to give up voluntary coverage. Two decisions considered appeals by employers that they should be exempted from paying the departure fee. Decision No. 177/10, 2010 ONWSIAT 256, noted that it is well established that the Board has the authority to develop policy that establishes the principles that govern the maintenance of the insurance fund and, more specifically, that imposes departure fees on employers that terminate their coverage by application. Decision No. 1637/10, 2010 ONWSIAT 2301, noted that the merits and justice provision in the Act and Board policy is not to be applied so as to circumvent Board policy; rather, it is to be applied where circumstances are so exceptional that the strict application of the policy would lead to manifest unfairness or injustice. In neither Decision No. 1637/10 nor Decision No. 177/10 were there exceptional circumstances which would require that the employers be relieved of their obligation to pay the departure fees.

Decision No. 1075/10, 2010 ONWSIAT 1649, considered whether settlement of a number of provincial offences regarding certain workplace accidents affected the Board’s ability to make experience rating adjustments under section 83 of the WSIA. In an Agreed Statement of Facts, the employer admitted to committing 10 offences and agreed to a fine of $400,000 and a victim fine surcharge of $100,000. Subsequently the Board recalculated the employer’s CAD-7 adjustments to include the accidents subject to the Agreed Statement of Facts, resulting in an additional payment of $235,000. The Tribunal rejected the employer’s argument that the settlement was intended to resolve all issues pertaining to the claims. The Agreed Statement of Facts related to offences under section 152 of the WSIA. There was nothing in the agreement relating to experience rating adjustments under section 83. Further, it was reasonable for the Board to adjust the CAD-7 assessment to take into account accidents which had previously been concealed by the employer.

In Decision No. 2338/09, 2010 ONWSIAT 1064, the Tribunal allowed an employer’s appeal that it be relieved of retroactive payments. While the Tribunal accepted that the Board’s letters to the employer had been clear about having to contact the Board as soon as workers were hired, the employer had availed itself of an amnesty in 2002. According to the amnesty, employers contacting the Board voluntarily would only have to pay premiums to January 1 of the year of contact. The employer was entitled to the protection of the amnesty.

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 diseases may be covered by Board policy or statutory presumptions in the WSIA. If there is no statutory presumption, the usual civil standard of proof on the balance of probabilities applies. Under the WSIA, the benefit of doubt goes to the worker where the evidence on both sides is relatively equally balanced. Decisions released during 2010 illustrated the different approaches to adjudicating occupational disease claims, depending on whether there were applicable policies or statutory presumptions.

Decision No. 668/07, 2010 ONWSIAT 226, is an example of the application of Board policy. The worker worked in a nickel smelter from 1970 until he was diagnosed with laryngeal cancer 1993. He died in 2004. The Board has a 1989 policy on cancer in Ontario nickel workers and a newer 1999 policy. The policy was interpreted as requiring more than some exposure to nickel aerosol. Under the policy, the exposure must be associated with a process that produces nickel in aerosol dispersion similar to the processes of roasting and smelting. In this case there was very little evidence of exposure to nickel aerosol. While the worker also had exposure to airborne asbestos for a period between 1970 and 1974, he also did not meet the exposure requirement for asbestos.

Decisions No. 108/10, 2010 ONWSIAT 1236, and 2178/05, 2010 ONWSIAT 1106, are examples of cases governed by presumptions. Before a presumption can apply, the criteria which trigger the presumption must be established on the usual standard of proof. In Decision No. 108/10 the worker was a firefighter who died shortly after being diagnosed with cancer of the colon and pancreas at age 61. Ontario Regulation 253/07 deals with cancer risk in firefighters. It provides for a rebuttable presumption for certain cancer diagnoses. There is no presumption for cancer of the pancreas. For colon cancer, there is a presumption of work-relatedness if the worker was diagnosed before reaching 60 years and was employed as a full-time firefighter for a total of at least 10 years before being diagnosed. The presumption for colon cancer did not apply because the worker was already 61 when he was diagnosed. Accordingly, entitlement for both cancers had to be decided on their individual merits. The Regulation addresses situations that the Board has identified as most likely to reflect cases that result from excess risk identified with colon cancer. There was no evidence of any special risk to suggest that the worker’s colon cancer was a result of excess workplace risk even though he did not meet the requirements of the presumption. There was also no epidemiological evidence of a relationship between pancreatic cancer and firefighting.

Decision No. 2178/05 considered the presumption created for Schedule 4 diseases and processes. The worker was exposed to asbestos in a repair and maintenance process in Ontario and there may also have been minimal exposure in Alberta. While the cause of death was listed as idiopathic pulmonary fibrosis, medical evidence indicated that the worker was also suffering from asbestosis and that asbestosis was a significant contributing factor to his death. Asbestosis is listed in Schedule 4; accordingly, there was an irrebuttable presumption that asbestosis was due to the nature of the worker’s employment as it was within one of the processes listed in Schedule 4.

Decision No. 772/09, 2010 ONWSIAT 1919, is a good example of a case where there is no applicable Board policy or statutory presumption. It considered an appeal for ocular histoplasmosis arising from exposure to pigeon droppings in the course of employment. There was evidence that 51% of the male population in the area would have tested positive for histoplasmosis by age 40, even absent workplace exposure; however, the worker’s job increased the risk of exposure. If there was a 51% chance that exposure would have happened in any event, there was a 49% chance that he would not have been exposed without the workplace exposure. While this would be insufficient for entitlement in civil litigation, the statutory benefit of doubt applied in workers’ compensation matters when the evidence was approximately equal in weight. There was also evidence of the possible effect of cumulative exposure, even if the worker had been exposed earlier.

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 continue to find 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 exceptions in the Law Society Act and By-Laws. In 2010, two decisions did not allow unlicensed representatives to appear before the Tribunal.

The exemption which is relied on most frequently at the Tribunal is that for relatives, neighbours and friends. Decision No. 2437/08I, 2010 ONWSIAT 1246, illustrates how such a claim is analyzed. The exemption in By-Law 4, section 30(1) paragraph 5 lists four criteria; one requirement is that the individual’s occupation not include the provision of legal services. All four criteria must be established for the exemption to apply. Decision No. 2437/08I rejected the representative’s argument that he was exempt because he was only providing advocacy services. Advocacy services constitute legal services within section 1(5) and (6) of the Law Society Act.

Decision No. 1222/10I, 2010 ONWSIAT 2155, considered the exemption for Canadian Registered Safety Professionals. Section 30(1) paragraph 7 of By-Law 4 exempts an individual i) whose profession or occupation is not the provision of legal services or the practice of law, ii) who provides legal services only occasionally, iii) who provides the legal services as ancillary to the carrying on of the person’s profession or occupation and iv) who is a CRSP. The word “occasionally” is not defined in the By-Law; however, the exemption for relatives, neighbours and friends in section 30(1) paragraph 5 was recently amended from “occasionally” to provide legal services in “not more than three matters per year.” After considering other sections in the By-Laws that refer to the occasional practice of law, Decision No. 1222/10I concluded that the representative was exempt since she had only acted in 12 matters over the past four years. The decision noted that each case must be considered on its own merits. The determination under section 30(1) paragraph 7 is time sensitive. If the facts change, the representative’s status may be called into question again.

Other Legal Issues

Decision No. 772/10, 2010 ONWSIAT 1344, considered the interaction between the employer’s obligation to re-employ a worker under section 41 of the WSIA and the settlement of a grievance which provided for financial incentives if the worker took early retirement. After accepting the settlement, the worker requested renegotiation of the settlement to permit him to return to work. When the employer refused to re-open the agreement, the worker argued that he had a right to withdraw his resignation under section 41(2) of the Public Service of Ontario Act, 2006, and that the obligation to re-employ should be reinstated. Decision No. 772/10 noted that the settlement was governed by the Labour Relations Act, not the Public Service of Ontario Act.In any event, the employer did not terminate the worker’s employment. Rather, the worker chose to retire after settlement of a lengthy grievance procedure. The fact that the worker may have had second thoughts about the settlement under a different Act should not impose a fresh obligation on the employer to re-employ under the WSIA.

Decisions No. 775/09I, 2010 ONWSIAT 413, and 775/09I2, 2010 ONWSIAT 2517, considered whether a former common-law spouse was entitled to death benefits under section 48 and whether she could represent the estate. Section 48 death benefits are payable where a “spouse” is cohabitating with the worker at the time of death. The former common-law spouse qualified as a “spouse” under the WSIA since she had adopted a child with the deceased and they had been living in a conjugal relationship for 13 years. In deciding whether the spouses where cohabiting at the time of death, the Panel applied Decision No. 2621/07, 2009 ONWSIAT 2098, and McEachern v. Fry Estate, [1993] O.J. No. 1731 (Gen. Div.). The parties’ intention should be given great weight. A common-law relationship ends when either party regards it as being ended and, by his or her conduct, demonstrates in a convincing matter that this is a settled intention. The evidence indicated that both parties intended that their relationship be at an end. Accordingly, the claimant was not entitled to a section 48 death benefits. The Panel next considered who should represent the estate in the ongoing proceedings. The worker had died without a will and, according to section 47 of the Ontario Succession Law Reform Act, the worker’s estate would go to the son. The son, however, was a minor and could not consent to the common-law spouse continuing the proceeding on behalf of the estate. Decision No. 775/09I directed that the Office of the Children’s Lawyer be asked whether it wished to participate in the hearing and/or whether it consented to the common law spouse continuing to represent the estate. Decision No. 775/09I2 confirmed that the Office of the Children’s Lawyer did not wish to participate and had no objection to the former common-law spouse continuing to represent the estate. The Children’s Lawyer indicated, however, that she might reconsider her involvement if the Tribunal determined that benefits are payable.

Decisions No. 442/07, 2010 ONWSIAT 436, and 2330/09, 2010 ONWSIAT 2575, gave further consideration to the effect of issue estoppel. It prevents a litigant from continuing to dispute an issue once it has been finally decided. The three prerequisites to issue estoppel are that the same question or issue has been previously decided, the decision was judicial and the parties to the decision or their privies are the same.

Prior Tribunal cases have applied the Supreme Court of Canada’s analysis in Danyluk v. Ainsworth Technologies Inc., [2001] 2 S.C.R. 460, which recognizes that there is a discretion to allow a matter to proceed even though the prerequisites to estoppel have been met. Discretion is exercised to ensure that the operation of issue estoppel promotes the orderly administration of justice, but not at the cost of real injustice in a particular case.

As the Tribunal’s inventory of decisions grows, there is an increasing potential for questions of issue estoppel to arise when a party appearing before the Tribunal has received a prior Tribunal decision. Decision No. 442/07 indicates the importance of carefully identifying which issues were previously decided. The appeal was allowed to proceed on all but one issue, which met the criteria for issue estoppel. With respect to the discretion to reopen a case, Decision No. 442/07 found that the Tribunal’s Practice Direction on Reconsiderations has the effect of structuring the discretion in which the estoppel rules apply with respect to a prior Tribunal decision. When the Tribunal reopens a matter, it does so under the reconsideration power and the threshold test must be met.

Finally, Decision No. 2330/09 is an example of how issue estoppel applies when there is a prior criminal conviction. It also contains a good discussion of when a worker’s actions will be sufficient to break the chain of causation between a workplace injury and loss of earnings subsequent to termination of employment. Decision No. 2330/09 applied previous Tribunal decisions which have held that it is not open to the Tribunal to go behind a criminal conviction. The worker had pleaded guilty to fraud for unauthorized use of the company calling card. This offence went to the root of the employment relationship and was a fundamental breach of trust. As such, the offence was an intervening event which broke the chain of causation between the workplace injury and loss of earnings after the worker was terminated from employment.

Posted: May 11, 2011

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