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Highlights of the 2011 Cases

This paper reviews some of the many legal, factual and medical issues which the Tribunal considered in 2011.

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 November 26, 2002, and Schedule 41 of the Budget Measures and Interim Appropriation Act, 2007, effective July 1, 2007. In 2010, the Board adopted Interim Work Reintegration policies which apply to decisions made on or after December 1, 2010. These interim policies were replaced by the 2011 Work Reintegration Policies which apply to all decisions made on or after July 15, 2011. Since Tribunal decisions discussed in this review have not 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. LOE and NEL appeals represent a large portion of the Tribunal's caseload.

LOE benefits are reviewable on "material change of 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 entitlement is 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 permanent impairment. Similar review provisions were also made applicable to future economic loss (FEL) benefits under the pre-1997 Act. Subsequent amendments in 2007 expanded the circumstances in which LOE and FEL benefits can be reviewed.

A number of decisions have considered the term "significant deterioration" in the 2002 amendments to section 44. In 2011, Decision No. 1129/10R, 2011 ONWSIAT 2880, reviewed this caselaw and agreed with Decision No. 2383/09, 2010 ONWSIAT 2753, that section 44(2.1)(c) provides a "gateway" requirement that must be met before wage loss issues may be directly addressed; however, Decision No. 1129/10R also agreed with cases which have found that what constitutes a "significant deterioration" for the purposes of section 44 depends on the individual facts of the case. In accordance with Board policy, this must be evaluated based on evidence of a measurable change in objective clinical findings, along with other medical evidence. While "significant deterioration" has the same meaning in both section 47(9), with respect to referrals for NEL redeterminations, and section 44(2.1)(c), the evidence that is available for the purposes of each determination will differ. The determination under section 44(2.1)(c) is made when the results of the NEL redetermination and NEL reassessment report are available and there may be other new evidence. The fact that the NEL reassessment has resulted in a NEL increase of some small degree, such as 1%, is not conclusive of whether there has been a "significant deterioration." The analysis cannot be based solely on numbers. The determination must consider the context of section 44(2.1)(c) and the significance of the deterioration for wage loss issues.

Decision No. 1691/11, 2011 ONWSIAT 2330, is one of the first appeals to consider the 2007 statutory amendments allowing review in a broader range of circumstances. The worker was employed at modified work at no wage loss until he was laid off due to a plant closure. The permanent lay-off occurred three months after the 72-month "locked in" date for LOE benefits. The Vice-Chair found that denial of LOE benefits was not justifiable in the circumstances. While LOE entitlement was deemed to be zero at 72 months, the worker's LOE entitlement could be reviewed, since under section 44(2.1)(g), the Board may review LOE benefits after 72 months if the worker and employer are co-operating in ESRTW.

Difficult adjudicative issues may arise where a worker's employment is terminated following a workplace accident, since the Tribunal must determine whether the resulting loss of earnings flows from the compensable injury or the termination. While a few cases have applied common law principles of employment law, several 2011 decisions affirmed the line of cases which hold that the central question is whether the compensable injury played a role in the termination in the worker's employment. Although this may involve an examination of the circumstances of the dismissal, common law principles of wrongful dismissal should not be incorporated. In Decisions No. 153/11, 2011 ONWSIAT 565, and 195/11, 2011 ONWSIAT 1287, the worker's termination was found to be an intervening event that broke the chain of causation between the accident and the worker's loss of earnings after the termination. In Decision No. 3/11, 2011 ONWSIAT 51, on the other hand, a review of the circumstances surrounding the worker's termination indicated that his conduct was not so egregious as to warrant dismissal. While the employer stated that the worker's employment was terminated due to absenteeism, it was likely that the worker was fired for a combination of reasons, including his compensable injury. Accordingly, the compensable injury played a role in the termination and the worker was entitled to LOE benefits.

Turning to NEL awards, an issue which has arisen in some NEL appeals is whether the finding of the degree of permanent impairment must be based on the report of the NEL roster physician. Decision No. 1789/10R, 2011 ONWSIAT 428, clarified that while the report of the NEL assessor should be given considerable weight, other information on file should also be considered.

The WSIA introduced limits on entitlement for mental stress. Section 13(4) provides that a worker is not entitled to benefits from 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; however, 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 on traumatic mental stress. During 2011, the Tribunal continued to consider mental stress claims under the WSIA and Board policy. For example, in Decision No. 951/11, 2011 ONWSIAT 1748, an electrician claimed for traumatic mental stress when he was exposed to smoke from a burning cable and dust from a fire extinguisher. The claim was denied as the electrical fire in question was not unexpected in the worker's line of work as an electrician. The event was also not objectively traumatic as it was a minor fire, the fire department was not called and the worker was not present during the fire. The examples of unexpected traumatic events in Board policy differ in nature and degree from the facts in this case.

Section 123(2) limits the Tribunal's jurisdiction with respect to certain matters. Decision No. 964/11, 2011 ONWSIAT 1317, found that under section 123(2) paragraph 4 and section 62(2) and (3), the Tribunal does not have jurisdiction to consider the worker's appeal regarding the payment of his LOE benefits as a lump sum. Similarly, the Tribunal does not have jurisdiction to hear appeals from Board decisions assigning benefit payments to the repayment of welfare benefits. Decision No. 88/10, 2011 ONWSIAT 827, found that this was explicitly excluded by section 123(2) paragraph 3 and section 64. Under section 123(2) the Tribunal also does not have jurisdiction to consider overpayment issues in claims with injuries arising after 1997. Decision No. 959/11, 2011 ONWSIAT 1356, agreed with earlier decisions that the Tribunal retains jurisdiction to consider entitlement to benefits that have resulted in an overpayment and the mathematical calculation of an overpayment; however, concepts such as detrimental reliance, "merits and justice" and manifest unfairness, cannot be used to assume jurisdiction over a matter that has been excluded from the Tribunal's jurisdiction by legislation.

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. In 2011, there was one potential section 126 referral; however, the matter was resolved based on further information from the Board. Policy issues may also arise if the Board asks the Tribunal to reconsider a decision in light of a Board policy or if it is necessary for the Tribunal to interpret Board policy in order to resolve an appeal.

Decision No. 483/11I, 2011 ONWSIAT 1231, identified a concern that the Board policy on traumatic mental stress might be interpreted in a manner which was inconsistent with the Act and asked the Board for submissions. While the worker met the requirements in section 13(5) of the WSIA, since she had developed depression as an acute reaction to a sudden and unexpected traumatic event, the Tribunal was concerned that aspects of the Board's mental stress policy appeared to require an actual or implied threat of physical harm. It was also not clear whether the policy authorized entitlement for psychological conditions other than post-traumatic stress disorder. The Board responded that traumatic mental stress claims will be compensable when they arise out of and in the course of employment and meet Board policy requirements that the event be clearly and precisely identifiable, objectively traumatic and unexpected in the normal or daily course of the worker's employment or work environment. Although generally there will be an actual or implied threat to a person's physical well-being or integrity, this is not a requirement. Board policy also does not place any restrictions on the nature of the psychological condition as long as there is an Axis I diagnosis in accordance with the DSM IV by a psychiatrist or a psychologist. Decision No. 483/11, 2011 ONWSIAT 2257, accepted the Board's interpretation of the policy, which was in accord with earlier Tribunal cases and the Act. Accordingly, the worker had entitlement as she met both the statutory and policy requirements for traumatic mental stress.

The Tribunal received a Board request to reconsider Decision No. 2384/09I, 2011 ONWSIAT 1150, on the grounds that it directed a review of a final FEL award, contrary to the Act. After reviewing Tribunal caselaw and Board policy on how to offset CPP benefits from FEL awards, the Tribunal denied the request in Decision No. 2384/09IR, 2011 ONWSIAT 1884. The amended policy on the CPP offset states that it applies to all FEL benefits payable for periods "on or after January 1, 2004, for accidents from January 2, 1990 to December 31, 1997." Rather than being an unauthorized review of a final FEL award, the original disposition was an application of the amended Board policy with respect to the CPP offset.

Board policy often changes over time. The rights and obligations of parties may vary significantly depending on which version of a policy applies. Tribunal cases have previously found that section 126 policy is similar to legislation and the presumption against retroactivity applies. Decision No. 676/09I, 2011 ONWSIAT 903, provides a good example of this in the context of an employer appeal regarding whether short-term disability payments should be treated as insurable earnings for the years 2000 to 2007. The employer's short-term disability plan was administered by an insurance company which paid the appropriate benefits and issued T4A slips to the workers. In 2000 to 2003, Board policy provided that taxable benefits are included in assessable payroll. The short-term disability benefits were taxable in the hands of the workers and, under this policy, were insurable earnings between 2000 and 2003. The policy applicable in 2004 to 2007 clearly excluded sick benefits paid directly by a private insurance company. While the Board auditor had concerns, there were legitimate business reasons for the insurance company to administer the plan. Based on the clear wording of the applicable policy, short-term disability payments were not insurable earnings between 2004 and 2007.

In interpreting specific Board policy, the Tribunal will consider the governing statutory provisions. For example, the Board's policy on psychotraumatic disability states that a psychotraumatic disability is expected to be temporary. Decision No. 1926/11, 2011 ONWSIAT 2552, held that this statement must be read in the context of the Act. The Act only provides for a NEL award for permanent impairment, not for temporary impairment or impairments which are not at maximum medical recovery (MMR). The Tribunal recognized that it may be reasonable for the Board to pay a provisional NEL award 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 under its reconsideration powers. This was not the case in Decision No. 1926/11, however, and a provisional NEL could not be granted.

Finally, Decision No. 2506/10I, 2010 ONWSIAT 2981, considered the application of a Board Adjudicative Advice document on NEL ratings for a splenectomy. While Adjudicative Advice documents are not "policies" for the purposes of section 126, they provide useful guidance and may be considered.

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 previously is whether the Tribunal has jurisdiction where a worker has received statutory accident benefits (SABs) under the Insurance Act but no court action has been commenced. Decision No. 897/09, 2011 ONWSIAT 1441, agreed with more recent cases that the Tribunal has jurisdiction. The worker had pleaded guilty to the criminal offence of dangerous driving causing death and was in receipt of SABs. The Tribunal granted the insurer's application that the worker was entitled to claim benefits under the WSIA since the worker was in the course of employment at the time of the accident.

Tribunal cases have recognized that negligent medical treatment is a foreseeable consequence of a compensable injury. In Decision No. 2450/10, 2011 ONWSIAT 69, the worker sued a doctor for negligent treatment provided in a hospital. Since the doctor was not employed by the hospital, the right of action against the doctor was not removed. Decision No. 2450/10 rejected an alternative argument by the doctor that the action should not proceed until the worker reimbursed the Board for any benefits received. The Tribunal does not have jurisdiction to make such an order under sections 123(2) and 30 of the WSIA. In any event, there was no justification for requiring reimbursement. This was a matter between the Board and the plaintiff.

When a right to sue is removed, section 31(4) provides that the worker may file a claim for benefits within six months of the Tribunal's determination. In Decision No. 1396/11, 2011 ONWSIAT 1714, the parties asked the Tribunal to direct the Board to extend the six-month period if the worker was unable to file the claim within the six-month period; however, the Tribunal does not have jurisdiction to make such an order. The worker must apply to the Board for a time extension under section 31(5), with the usual right of appeal to the Tribunal from the Board decision.

Employer Issues

Appeals involving employer issues such as Second Injury and Enhancement Fund (SIEF) relief, classifications, transfers of cost, and adjustments of experience rating accounts, continue to form a significant part of the Tribunal's caseload.

The Tribunal frequently considers SIEF appeals. Board policy provides for mandatory 100% SIEF relief when a prior non-work-related condition is the cause of the accident, the wearing of an artificial appliance is the cause of the accident or the worker is injured during labour market re-entry (LMR). The SIEF policy also contains a chart which addresses more common situations where less than 100% relief may be granted based on the severity of the accident and the medical significance of the pre-existing condition.

In Decision No. 2573/10, 2010 ONWSIAT 2982, the employer submitted that it was entitled to 100% SIEF relief because the worker's artificial appliance caused the accident. The Board had found that the knee condition, for which the worker wore the brace, contributed significantly to the compensable injury but did not "cause" the injury. This raised the question of causation under the SIEF policy. Decision No. 526/08, 2008 ONWSIAT 866, had previously found that "cause" under the SIEF policy meant the precipitating or triggering cause in the context of a prior non-work-related condition. Decision No. 2573/10 found that this did not apply to artificial appliances since it was unlikely that the wearing of an artificial appliance would ever be a triggering event. Rather, SIEF relief is available if the artificial appliance is a prominent significant contributing factor to the accident. Since the medical evidence indicated that the knee brace was prominent in contributing to the compensable injury, the employer was entitled to 100% SIEF relief.

Many SIEF appeals consider arguments about whether a pre-existing condition prolongs or enhances a work-related disability. Decision No. 1568/11, 2011 ONWSIAT 2102, held that evidence of degenerative changes typical of a worker's age does not, in and of itself, represent a pre-existing condition for the purposes of the SIEF policy. The evidence did not indicate that the worker's pre-existing degenerative disc disease prolonged or enhanced the work-related disability. Similarly, Decision No. 1312/11, 2011 ONWSIAT 1609, noted that some degenerative change is relatively common after age 20-25. The fact that minor degenerative changes were noted on the MRI of a 28-year-old did not mean that the worker was more vulnerable than a normal person. In Decision No. 1404/11, 2011 ONWSIAT 2419, on the other hand, there was documented evidence that the worker's pre-existing osteoporosis greatly increased the worker's risk of fracture and had led to a previous facture. The pre-existing condition was found to be major. Board policy defines the severity of accident in terms of the extent to which it is expected to be disabling. The Tribunal has generally interpreted "disability" to refer to a loss of earning capacity. Accordingly, Decision No. 1404/11 interpreted "disabling injury" in the SIEF policy to refer to the extent to which an accident would be expected to make the worker unable to work or to perform other tasks of daily living. The question is whether the accident would be expected to cause disabling injury, rather than whether it would be expected to produce the precise injury sustained by the worker. Based on a moderate accident and a major pre-existing condition, the employer was entitled to 75% SIEF relief.

The Tribunal applies a "best fit" test in deciding which classification should apply to an employer. Decision No. 1428/08, 2011 ONWSIAT 1803, rejected an argument that an employer supplying a supermarket with meat which it sliced and packaged should be classified as a supermarket. A plain reading of the rate group indicated that supermarket was not the best fit for the employer. Section 10 of Regulation 175/98, which applies when an employer contracts out an operation, also did not apply. That section exists to prevent employers, in certain situations, from outsourcing various parts of their operations by deeming that employers are carrying out that activity directly. It cannot be used in the reverse to bring a party within the classification of another employer. Decision No. 1428/08 also rejected arguments that the employer was an agent of the supermarket or a dependent contractor, holding that it was not appropriate to import concepts of agency or tests used in determining whether an individual is a worker or an independent operator, into the employer classification system.

The question of how competitors are treated sometimes arises in classification appeals. Decision No. 601/11I, 2011 ONWSIAT 1090, considered an employer's request that the Tribunal obtain the classification of 10 competitors from the Board. While the Tribunal has the power to compel the production of documents in the same manner as a court, the framework for disclosure under the Freedom of Information and Protection of Privacy Act is relevant to consider in exercising the Tribunal's powers. The classification of competitors is potentially relevant, but the misclassification of a competitor does not override the determination of the best fit for an employer. A competitor's classification is not necessarily determinative or even persuasive, especially if the employer has not been audited and the classification is based on self-identification. Considering that the Board makes the classification of employers publicly available and that the Tribunal only wanted audited information, Decision No. 601/11I decided to obtain information about the employer's competitors from the Board.

When an employer ceases operations, issues about whether experience rating credits should be transferred may arise. Decision No. 1277/11, 2010 ONWSIAT 1961, considered a complex succession planning transaction in which an employer ceased operations at the end of one year and the workers began working for a new employer the next year. The new employer had the same ownership but different managers. Board policy on closure of accounts provides that an employer's account will not be closed where two or more corporations amalgamate or merge, or where shares of an employer are sold or transferred to another employer. Neither of those events took place. The circumstances were similar to an asset purchase. in which case there is a new business entity and a new account. Accordingly, the experience rating credits could not be transferred.

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."

In occupational disease cases it may be difficult to identify which workplace exposures might have contributed to a worker's condition. This, in turn, may create jurisdictional problems if a party tries to add exposures which were not considered by the Board. As Decision No. 760/10I, 2011 ONWSIAT 600, explains, the Tribunal only has jurisdiction over final Board decisions. Where the Tribunal has jurisdiction, the appeal is de novo and the Tribunal can accept evidence that was not before the Board. While in some cases it might be fair to find that all workplace exposures were part of the injuring process that were subject to the appeal, the Tribunal could not infer that all possible exposures were implicitly before the Board in Decision No. 760/10I. The appeal was placed in inactive status to allow the parties to return to the Board to obtain a final decision on the additional chemical exposures.

Occupational disease cases often require the Tribunal to analyze a variety of complicated medical, scientific and epidemiological evidence. For example, Decision No. 1659/09, 2011 ONWSIAT 615, considered a report from a Tribunal medical assessor with respect to the worker's bladder cancer and his exposure to organic solvents, paint aerosols and particulates in a manufacturer's paint shop. The assessor's report noted a growing body of literature concerning occupational exposure to paint and risk of bladder cancer. In assessing the roles played by smoking and the workplace exposure, the literature supported a role for each. The report also relied on a study that conducted a meta-analysis which concluded that occupational exposure as a painter was independently associated with the risk of bladder cancer. In granting entitlement, Decision No. 1659/09 found the meta-analysis to be persuasive and based on sound epidemiological studies.

In 2007, there were amendments to the WSIA regarding presumptions for firefighters. Ontario Regulation 253/07 provides that non-Hodgkin's lymphoma (NHL) is a prescribed disease for full-time firefighters who have worked as firefighters for at least 20 years before diagnosis. The Regulation has since been amended to include volunteer firefighters who have also served for at least 20 years. In Decision No. 2531/08, 2011 ONWSIAT 496, the worker died of NHL after working for 19 years as a volunteer firefighter. Decision No. 2531/08 reviewed the literature and determined that the requirement of 20 years appeared to be based on elevated risks identified for firefighters with over 20 years of service. The major epidemiological studies regarding firefighting and lymphomas have identified several problems, as lymphomas are uncommon and contribute to a small number of deaths. Studies also do not generally distinguish between various types of lymphomas. On the particular facts of the case, including the facts that the worker had developed NHL at a young age and had also had exposure to wood products as a lumberman, the Tribunal was satisfied that the workplace exposures made a significant contribution to the NHL.

Section 94 of the WSIA contains provisions dealing with entitlement for occupational disease that may have occurred as a result of employment by more than one Schedule 2 employer. Section 94(7) provides that a Schedule 2 employer is not liable to make payments if there is "insufficient information" concerning the worker's prior employers. Decision No. 2360/08, 2011 ONWSIAT 944, found that the reference to "insufficient information" does not refer to insufficient information about other employers but, rather, to insufficient information about other exposure. In this case, there was sufficient information about the workplace exposure to asbestos; it was likely that the worker was exposed to asbestos in all of his employment as a merchant seaman. Accordingly, section 94(7) was not applicable; section 94(6) applied. It requires the Board to determine the obligations of each employer and provides that employers are liable to make such payments as the Board considers just to the employer who is liable to pay. Decision No. 2360/08 found that the Board's enforcement of an apportioned obligation is limited to Schedule 2 employers who are registered with the Board.

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 unlicensed paralegals who do not appear to be covered by one of the exceptions in the Law Society Act and By-Laws.

The By-Law provision which is considered most frequently at the Tribunal applies to relatives, neighbours and friends. Decision No. 657/11I, 2011 ONWSIAT 2077, considered this provision in a case where the representative was a retired lawyer who had not held a licence to practice for over 15 years. Tribunal decisions have held that all four criteria in section 30(1) paragraph 5 of the By-Law must be met. The representative did not meet the requirement of providing the services only for a friend or neighbour. While the representative knew the worker for 35 years, their relationship was solely constituted by their prior lawyer-client relationship. There was no evidence of family or neighbourly friendship. Accordingly, the representative was not allowed to represent the worker on the appeal.

The Highlights of the 2010 Cases discussed Decision No. 1222/10I, 2010 ONWSIAT 2155, which considered the provisions affecting Canadian Registered Safety Professionals (CRSPs) in section 30(1) paragraph 7 of the By-Law. Decision No. 1222/10I focused on the requirement that the CRSP provide legal services only "occasionally" and noted that 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. In 2011, Decision No. 386/09I, 2011 ONWSIAT 2032, considered a similar situation but took a somewhat narrower interpretation of the By-Law.

Decision No. 386/09I considered information from the Law Society that there is a distinction between being exempt from the paralegal licensing requirement and being permitted to provide occasional advocacy services. Section 30(1) paragraph 7 permits representatives who are CRSPs to provide occasional advocacy services. The issue is not a question of the individual's status but relates to the specific occasional advocacy services. In Decision No. 386/09I, the representative provided safety services consistent with her role as a safety professional on other files, but did not do so for this employer. The file was transferred to her for the sole purposes of her advocacy work. One of the criteria in section 30(1) paragraph 7 is that the occasional legal services are provided as "ancillary" to the carrying on of a specified profession. Decision No. 386/09I found that the services were not supplementary or supportive of any duties that the CRSP was providing as a safety professional. Accordingly, the CRSP was not allowed to represent the employer. The By-Law is not intended to provide an avenue for safety professionals to become, in effect, unlicensed paralegals who provide only legal services on particular files.

Other Legal Issues

The application of the Canadian Charter of Rights and Freedoms and the Ontario Human Rights Code arose in several cases in 2011. Decision No. 512/06, 2011 ONWSIAT 2525, considered whether section 43(1)(c) of the WSIA contravenes section 15 of the Charter by limiting LOE entitlement to two years worth of benefits for workers who are over 63 years of age on the date of injury. In upholding the legislation, the majority applied a two-part analysis: whether the law creates a distinction based on an enumerated or analogous ground; if so, whether the distinction creates a disadvantage by perpetuating prejudice or stereotyping. While the majority found that section 43(1)(c) creates a distinction on the enumerated ground of age, it did not create a disadvantage by creating prejudice or stereotyping. The two-year limit on benefits reflected an appreciation for and understanding of older workers who continue to work past the expected retirement age of 65. While there is no longer a mandatory retirement age, there was evidence that 90% of workers retire by age 65. This is an age when they become eligible for other sources of income such as CPP. Insurance schemes are premised on actuarial probabilities and these probabilities underpin the statutory limit on benefits after age 65. Section 43(1)(c) provides a not insubstantial bridge of two years that allows for a worker to reach MMR, make arrangements for retirement, or return to work. Viewed contextually, the two-year limit did not perpetuate prejudice or negatively stereotype the individual. In any event, the majority found that section 43(1)(c) constitutes a reasonable limit under section 1 of the Charter.

The constitutionality of section 13 of the WSIA on traumatic mental stress and the Board's traumatic mental stress policy has arisen in several cases in 2011. While no case has yet determined whether there is a violation of the Charter or the Code, several interesting decisions issued on procedural issues. Decision No. 2157/09I2, 2011 ONWSIAT 1886, invited the Office of the Worker Adviser and the Office of the Employer Adviser to participate as intervenors due to the systemic and widespread implications of the proceedings, the lack of participation by an employer and the ability of the OWA and the OEA to provide the Tribunal with information and insight from a broad range of perspectives.

In Decision No. 480/11I, 2011 ONWSIAT 1032, the worker's representative provided notice to the Attorneys General of Canada and Ontario of challenges to section 13 of the WSIA and the Board's mental stress policy under the Charter and the Code, and indicated an intention to raise an alternative argument that the Tribunal's "average worker test" also violated the Charter and the Code. Decision No. 480/11I considered the preliminary issue of whether notice to the Attorneys General is required under section 109 of the Courts of Justice Act and the Tribunal's Practice Direction on Procedure When Raising a Human Rights or Charter Question for the challenge to the "average worker test." It was agreed that a Charter values argument does not require notice if the statutory provision is genuinely ambiguous and the submission does not challenge the validity of the legislation. Decision No. 480/11I found that the intention, depending on the Panel's later rulings, to challenge the disablement provision in the WSIA was sufficient to require notice to the Attorneys General. There is also an interrelationship between the challenge to the "average worker test" and section 13 of the WSIA. Section 109 of the Courts of Justice Act should be interpreted broadly and notice should be given when Charter values submissions require the Tribunal to address a serious and substantive issue about the constitutional applicability of the WSIA.

In Decision No. 485/10R, 2011 ONWSIAT 2223, a worker who had been denied entitlement for traumatic mental stress raised a number of arguments on reconsideration, including the original decision's failure to consider the Code provisions that prohibit harassment. The representative refused to give notice to the Ministry of the Attorney General. Decision No. 485/10R found that notice was not required as there was no harassment under the Code. Notice to the Attorney General is only required if the threshold test is met and the Code issue will be addressed. Since Tribunal decisions have found that a Code argument is not properly raised for the first time on reconsideration, such a finding will likely only be made in exceptional circumstances.

Decision No. 382/10, 2011 ONWSIAT 707, considered the scope of coverage under the WSIA where a worker is a resident of Ontario but works out of an American company's office in Michigan, and travels on business to a number of locations, including ones in Ontario. The WSIA is focused on the health and safety of Ontario workers and their compensation and rehabilitation in the event of injury. Board policy, which defines "employer" to include non-resident employers in specified circumstances, complies with the legislative purpose of the WSIA. The policy clearly provides the residence of a worker who works in a compulsorily covered operation in Ontario is determinative of whether the worker is subject to the WSIA, without regard to the employer's base of operations. In other cases the Board will look for a substantial connection to the province. With respect to the employer's argument that it provides workers' compensation insurance in its home jurisdiction, Decision No. 382/10 commented that the WSIA only contemplates interjurisdictional agreements with Canadian jurisdictions. The employer's concerns were more in the nature of a legislative or policy initiative and not appropriate for change by Tribunal decisions.

Under the WSIA, the Tribunal's decisions are final, although there is a statutory discretion to reconsider if the Tribunal determines that it is "advisable" to do so. Several 2011 decisions emphasized the need to apply a high threshold test to avoid undermining the finality of the Tribunal's decisions and the integrity of the original hearing. In Decision No. 1897/98R, 2011 ONWSIAT 1877, for example, the original decision was based on a settlement proposed by the worker's representative and agreed to by the original Vice-Chair. Decision No. 1897/98R rejected an argument that the worker did not understand the settlement agreement. There would have to be compelling evidence to set aside a final decision on the basis of an alleged misunderstanding. The onus of proof is on the party seeking reconsideration to demonstrate that there is a fundamental error in the process.

Posted: May 16, 2012

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