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Highlights of the 2013 Cases

This section reviews some of the many legal, factual and medical issues which the Tribunal considered in 2013.

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 addition, the Tribunal considers and applies policy adopted by the Workplace Safety and Insurance Board. The substantive provisions and terminology contained in Board policies vary over time. This review uses the policy terms and concepts considered in the Tribunal decisions discussed in the review.

Appeals Under the WSIA

The WSIA provides for loss of earnings (LOE) benefits for workplace injuries and non-economic loss (NEL) benefits for permanent impairment. The amount of LOE benefits depends on the extent to which the worker can return to the workplace and replace pre-injury earnings. There are statutory provisions setting out a worker’s and employer’s obligations to co-operate in early and safe return to work. The WSIA also creates a re-employment obligation where workers have been continuously employed for at least one year. Labour market re-entry (LMR) or, under current Board policy, work transition (WT) services and LOE benefits may be available where a worker is unable to return to work with his employer. LOE benefits are reviewable on “material change in circumstances,” or annually at the Board’s discretion, for 72 months following the accident date. When the WSIA was initially enacted, LOE benefits could not generally be reviewed after 72 months; however, subsequent amendments in 2002 and 2007 allow for review in a number of circumstances. LOE and NEL appeals represent a large portion of the Tribunal’s case law.

As noted in previous Annual Reports, 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. Several 2013 decisions have noted that there are two lines of analysis in Tribunal decisions. Both approaches examine the circumstances surrounding the termination to determine whether there was a causal link between the termination and the injury. One approach finds that, even if the termination is unrelated to the injury, it is still necessary to enter into a secondary analysis to determine whether the compensable injury continued to make a significant contribution to the worker’s subsequent loss of earnings. The other approach finds that, if the termination is unrelated to the injury, the worker is not entitled to LOE benefits. Decision No. 2450/12, 2013 ONWSIAT 713, contains a good review of the case law but did not need to decide which analysis it preferred since the worker was not entitled to further LOE benefits on either analysis. In Decision No. 893/13, 2013 ONWSIAT 2241, the Panel preferred the first approach, finding that there should be a further analysis of the circumstances surrounding the termination to determine whether it broke the chain of causation between the workplace injury and the loss of earnings. A settlement under the Employment Standards Act in which the employer agreed to amend its records to reflect that the worker’s employment was terminated due to lack of suitable work, was found to be persuasive evidence that the compensable injury played a role in the termination of the worker’s employment. In Decision No. 1158/13, 2013 ONWSIAT 1564, on the other hand, the worker’s termination for unrelated reasons was found to be an intervening event such that the subsequent loss of earnings did not result from the workplace injury. The worker was still entitled, however, to LOE benefits for compensable surgery since he was not able to perform even the modified work from which he had been terminated during this period.

Decision No. 1869/09, 2012 ONWSIAT 2779, considered the effect of a plant closure on LOE benefits. The worker was not entitled to benefits as he had not co-operated in LMR and was terminated for cause while the employer was attempting to find suitable modified work. The employer subsequently closed. Decision No. 1869/09 held that this did not entitle the worker to further LOE benefits. Business closure after a termination is not described in Board policies as a reason for reopening LOE benefits after non-co-operation. The Vice-Chair commented that this is not necessarily an unfair result. Generally, a worker who has been out of the work force for a number of years is in a different situation from a worker who has co-operated in early and safe return to work and participated in modified work. Generally a worker’s work readiness after a delay of several years will not be the same as that of a worker who co-operated. The loss of earnings was due to the worker’s non-co-operation and not the business closure.

Several cases in 2013 considered entitlement to LOE benefits during a strike when the employer offers suitable modified work but the worker refuses to cross the picket line. Decision No. 1118/12, 2013 ONWSIAT 1546, contains the most detailed analysis of this issue. It reasoned that the Board’s policy on strikes is subject to the condition precedent in section 43 that the loss of earnings must result from the injury. The policy provides that, generally, benefit entitlement remains the same during a strike. The policy requires a determination of whether the worker is not able to continue working due to the strike. This is a similar analysis to that under section 43. If the worker chooses not to cross a picket line for personal reasons, the inability to continue working is the result of a personal choice, not the work-related injury. While there could be situations where the job is not available because the worker cannot cross the picket line due to repercussions or penalties, the modified work in Decision No. 1118/12 was suitable and available to the worker during the strike. Other employees were crossing the picket line without problem and the worker did not contact the employer to discuss safety concerns. Decisions No. 1908/12, 2012 ONWSIAT 2707, and 538/13, 2013 ONWSIAT 1183, reached a similar result. In Decision No. 865/13, 2013 ONWSIAT 1167, on the other hand, the worker was entitled to benefits during the strike since the evidence established that the worker’s ability to work during the strike was not sustainable due to delayed medical treatment.

Where a worker is receiving entitlements under other schemes, disputes may arise about what should be included in the worker’s post-accident earnings basis for the purposes of determining LOE benefits. A number of decisions in 2013 considered such issues. Decision No. 644/13, 2013 ONWSIAT 812, agreed with earlier decisions that severance benefits should not be factored into the calculation of LOE benefits since severance benefits are not earnings from post-injury employment. Decision No. 748/13, 2013 ONWSIAT 1525, agreed with this analysis and concluded that severance benefits should also not be deducted from payments made under section 41(13) for an employer’s failure to fulfill its re-employment obligations. Decision No. 1666/12, 2013 ONWSIAT 1866, agreed with earlier decisions that Canada Pension Plan (CPP) disability benefits should not be included in earnings basis, and also found that Old Age Security (OAS) benefits should not be included since they are not related to a worker’s employment. OAS is a monthly benefit available to all Canadians aged 65 or over who fulfill certain residence requirements. Employment history is not a factor in determining eligibility for OAS benefits.

There are also specific provisions in the WSIA requiring consideration of other statutory entitlements. Section 43(5) provides that LOE benefits “must reflect any disability payments paid to the worker under the Canada Pension Plan or the Quebec Pension Plan in respect of the injury.” A question has arisen as to whether there should be a full offset of CPP disability benefits if the worker also has some less significant non-compensable conditions. Decision No. 207/13, 2013 ONWSIAT 922, applied Decision No. 1311/11, 2011 ONWSIAT 2422, which offset LOE benefits by only 90% of the CPP disability benefits when the predominant complaint related to the compensable injuries and the worker was able to work with the non-compensable problems; however, more recently Decisions No. 1738/13, 2013 ONWSIAT 2467, and 233/13, 2013 ONWSIAT 1428, reasoned that CPP disability benefits are only granted when a worker cannot work. Where the worker was previously able to work despite significant non-compensable conditions, the LOE should be reduced by the full amount of the CPP disability benefits since the workplace injury is the predominant cause of the subsequent inability to work.

A similar argument was considered under section 48(23) which governs survivors’ death benefits. Section 48(23) states that “the Board shall have regard to any payments of survivor benefits for death caused by injury that are received under the Canada Pension Plan or the Quebec Pension Plan in respect of the deceased worker.” Decision No. 699/13I, 2013 ONWSIAT 2391, upheld the Board’s policy of offsetting 100% of CPP survivor benefits caused by a compensable injury in order to avoid double compensation. The Panel noted that the Weiler Report stated that the Canada Pension Plan is intended to establish a minimum floor for all Canadian workers and that provincial workers’ compensation should serve as the last insurer that makes up remaining income losses.

In Decision No. 946/13, 2013 ONWSIAT 1085, the worker had a high income, well above the statutory maximum. He submitted that his CPP disability benefits should be offset from his actual earnings rather than the statutory maximum so that the amount of under-compensation arising from the statutory maximum would be reduced. In rejecting this argument, Decision No. 946/13 found that the WSIA deems the worker’s earnings to be at the statutory maximum. It follows that any calculation required by the Act or policy involving pre-accident earnings must be based on the statutory maximum. This is consistent with section 43(5) para. 2, which requires that the net average earnings that a worker is able to earn after an injury reflect CPP disability benefits. The merits and justice provision did not warrant a departure from the application of the law and policy in this case. The provisions are not ambiguous or unclear. The intent of section 54 is to limit entitlement for persons with earnings that exceed the statutory maximum.

Turning to NEL awards, these often require the Tribunal to interpret the complicated and technical American Medical Association, Guides to the Evaluation of Permanent Impairment (3rd edition revised) (AMA Guides), which is the prescribed NEL rating schedule under Ontario Regulation 175/98. Decision No. 2421/12, 2013 ONWSIAT 1335, considered an argument that the NEL award for the worker’s left elbow impairment should take into account loss of grip and pinch strength and the worker should have received a higher rating on a whole person basis, because he had a congenital right arm problem. Decision No. 2421/12 found that in general, grip and pinch measurements are functional tests and are not used for evaluating impairment under the AMA Guides. However, if loss of strength represents an additional impairing factor not already taken into account, it may be measured and the loss rated. Since it appeared that the worker’s loss of strength had not already been considered, the worker was entitled to recalculation of the NEL awards. The worker was not entitled to an increase to take into account his non-compensable congenital right arm problem, however, since the Act intends a NEL assessment to compensate only for permanent impairment resulting from a workplace injury. It would also be contrary to Board policy, which provides a mechanism for factoring out pre-existing non-compensable injuries.

The WSIA introduced limits on entitlement for mental stress and the Board has adopted policy on these limits. 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 employment; however, the worker is not entitled to benefits for mental stress caused by an employer’s decisions relating to employment. During 2013, the Tribunal continued to consider mental stress appeals under the WSIA and Board policy. Under Board policy, a traumatic event must be clearly and precisely identifiable, objectively traumatic and unexpected in the normal course of the worker’s employment. Appeals often involve police or emergency workers and there may be an issue about what is routine or unexpected in their jobs. Decision No. 147/10, 2013 ONWSIAT 186, is an example of such a case. The worker was a dispatcher for a police department who had taken a call from a person who was wanted by the police and wanted to turn himself in. The worker initiated a possible pick-up of the caller but the caller did not turn himself in and, one week later, killed two men. Decision No. 147/10 found that there was a linear and strong connection between the worker taking the routine call and the killing of the two men by the caller one week later. While it was not uncommon or unexpected for the dispatcher to receive calls about imminent or actual violence, it was unexpected that there would be delayed and grievous consequences. The worker later came to understand that she was not to blame for what the caller did, but it was objectively traumatic at the time and not an event that would be normally encountered in daily routine.

Decision No. 1098/13, 2013 ONWSIAT 2313, is another example of the type of situation which meets the statutory and policy requirements for traumatic mental stress. The worker was a correctional officer who had developed a psychiatric condition following the death of a prisoner in circumstances where prison guards had been given instructions to act in a way that resulted in a risk of death. There was no evidence that the instructions were provided for the purpose of protecting guards or other prisoners. The prisoner’s death was sufficiently unusual that it fell within the requirements of section 13(5). It was not necessary to determine whether the worker was correctly diagnosed with post-traumatic stress disorder. As discussed in Decision No. 483/11, 2011 ONWSIAT 2257, Board policy on stress is not limited to a diagnosis of PTSD nor is it limited to situations in which the worker witnessed the event. It was also not necessary to determine whether section 13(4) and (5) of the WSIA was incorporated into the federal Government Employees Compensation Act (GECA), because the worker was entitled to benefits even if section 13(4) and (5) of the WSIA applied.

The question of whether the section 13 limits on entitlement for mental stress apply to appeals for chronic occupational stress that are subject to GECA also arose in Decision No. 1354/07, 2013 ONWSIAT 360. Extensive submissions were made on the development of GECA and workers’ compensation, the application of GECA to disablement claims and the application of GECA to stress claims, including an analysis of Tribunal decisions regarding GECA and disablement, and of case law regarding GECA and stress. Since Decision No. 1354/07 found that the worker was not entitled to benefits for stress in any event, it was not necessary to decide the GECA issue; however, the summary of submissions in Decision No. 1354/07 should be of use in future decisions.

Finally, the WSIA introduced a six-month time limit for appealing most Board decisions within the Board, as well as a six-month time limit for appealing final Board decisions to the Tribunal. In some cases, there may be a dispute whether a Board letter is a “decision” for the purposes of the time limit. Decision No. 422/13, 2013 ONWSIAT 638, is one of the first to consider the Board’s policy definition of a “decision letter” as one that explains the rationale including any applicable policies, outlines the information used to make the decision, and advises both parties of their right to object to the decision. In applying this policy, Decision No. 422/13 commented that when a letter involves an important legal issue for which a time limit applies, fairness requires that the letter identify this so that the letter may be directed for appropriate action.

Board Policy Under the WSIA

While the Tribunal has always considered Board policy, section 126(1) of the WSIA expressly states that, if there is an applicable Board policy, the Tribunal shall apply it when making a decision. Section 126(2) provides that the Board is to notify the Tribunal of applicable policy and section 126(4) 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. Policy issues may also arise in other circumstances; for example, the Board may ask the Tribunal to reconsider a decision in light of Board policy or it may be necessary for the Tribunal to interpret Board policy or to decide which version of a policy applies.

In 2013, there were no new section 126(4) referrals. In 2012, Decision No. 1057/09I2, 2012 ONWSIAT 1547, had referred the 1996 clothing allowance policy to the Board under section 126(4) of the WSIA. At the close of 2013, the post-hearing activity in this matter was completed and a decision was pending.

Previous Annual Reports have noted that the Board did not have a policy on entitlement to LOE benefits for workers who develop occupational diseases after retiring from the workplace. Since LOE benefits are tied to the loss of earnings resulting from a compensable accident, Tribunal cases have held that LOE benefits are not payable to retired workers unless the worker intends to keep working despite his retirement. Tribunal decisions have also held that the payment of spousal benefits does not require that the worker be entitled to LOE benefits and that spousal benefits should be based on the statutory minimum in such circumstances. The Tribunal continued to apply this analysis in 2013. See, for example, Decisions No. 716/13, 2013 ONWSIAT 1650, and 717/13, 2013 ONWSIAT 1225. These decisions are also of interest for their discussion of the Board’s policy on what constitutes a “decision letter” for the purposes of meeting the time limit to appeal.

Previous Annual Reports have also noted that 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 since the Tribunal must apply it and, accordingly, the presumption against retroactivity applies. Decision No. 1164/13, 2013 ONWSIAT 2068, is of interest for its application of this principle in the context of the new work reintegration policies, which introduced the concepts of work reintegration (WR) and suitable occupation (SO) in place of labour market re-entry (LMR) and suitable employment or business (SEB). These policies have been amended since their initial adoption. The issue in Decision No. 1164/13 was whether the worker was entitled to FEL supplementary benefits under section 43(9) of pre-1997 Act while conducting a job search in 2011. Decision No. 1164/13 found that the applicable Board policy was the policy in place at the time of the operating level decision, notwithstanding any intervening amendments. Although the applicable Board policy did not provide explicitly for job searching as a work transition or labour market re-entry activity, Decision No. 1164/13 found that the worker’s job search activity was a reasonable work transition activity which would likely assist the worker in obtaining employment. While the Board cannot be expected to sponsor a job search over a prolonged period, the period was not unreasonable, particularly given the labour market at the time.

In interpreting Board policy, the Tribunal will consider the governing statutory provisions as well as the Ontario Human Rights Code and the Canadian Charter of Rights and Freedoms. Board policy provides that in determining entitlement to LMR plans, the Board must have regard to the worker’s rights under the Code, that workers are entitled to equal treatment and that the Board considers any non-work-related disability when conducting an LMR assessment. In Decision No. 838/13, 2013 ONWSIAT 1809, the worker argued that this policy entitled her to full LOE benefits because she could not participate in an LMR plan due to a non-compensable post-accident injury. Decision No. 838/13 found, however, that the policy applies to LMR services and does not directly address LOE benefits. To be suitable, an LMR plan must accommodate both compensable and non-compensable conditions. The worker also argued that the wording of section 43(4)(a) entitled her to full LOE benefits until she completed the plan and that no reduction for failure to complete the plan due to post-accident non-compensable problems was allowed. Decision No. 838/13 rejected this on the grounds that section 43(4) has to be interpreted in the context of section 43(1), which provides benefits for loss of earnings resulting from the injury.

Finally, Decision No. 8/13, 2013 ONWSIAT 66, considered the Board’s guidelines for dealing with appeal time limits for appeals within the Board. While Board guidelines and Adjudicative Advice documents are not “policies” for the purposes of section 126, they provide useful guidance and the Tribunal may consider them. The guideline in force at the time set out several factors to consider on time extensions and provided that broad discretion will be applied where appeals are brought within one year of the date of the decision. The guideline was interpreted to mean that, where a delay is not lengthy, a time extension will be granted. The phrase “broad discretion” makes it clear that it is not mandatory to grant an extension where the delay is less than one year but, in the absence of factors such as bad faith that would make it inappropriate to grant an extension, the time extension will be granted and no further explicit reasons are needed.

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 in Ontario and other jurisdictions.

In Decision No. 1383/13, 2013 ONWSIAT 2002, the issue was whether the defendants, a transport company and truck driver who were both resident in New Brunswick, had a “substantial connection” to Ontario so as to fall within the scope of the WSIA. Decision No. 1383/13 relied on Decision No. 382/10, 2011 ONWSIAT 707, which held that the object of the WSIA is to secure a civil right within the province. If an employer has one or more workers engaged in work in or about in industry Ontario, it is an “employer” under the WSIA, regardless of its location. Decision No. 1383/13 also considered the Board’s policy on non-resident workers, which identifies the major consideration as the amount of time that a worker spends working in Ontario. Generally, a worker who works in Ontario for 11 or more days a year has a substantial connection to Ontario. While there were some factors that did not support a connection to Ontario, the defendant driver spent more than 11 days in Ontario. Accordingly, the defendants had a substantial connection to Ontario and the plaintiff’s right of action was taken away.

Decision No. 1138/12, 2013 ONWSIAT 1159, considered another right to sue application arising out of a motor vehicle accident. Two teachers were killed while driving back from a workshop organized by their union. They had travelled about 40 kilometres to attend the workshop and then had gone shopping at a location about seven kilometres from the workshop. Decision No. 1138/12 found that the fundamental inquiry was whether the employer had some role in the activities being performed at the time of the accident. The fact that workers undertake professional development does not necessarily put them in the course of employment where the employer has no direction or control with respect to the professional development. Pursuant to the collective agreement, the employer’s only role was to allow the teachers to attend without loss of pay or benefits. Accordingly, the two teachers were not in the course of employment. Even if they had been while attending the workshop, they made a distinct departure from their employment when they undertook a shopping trip for personal reasons.

Family businesses present unique considerations because the arrangements with family members are often casual, unwritten and implied. This is particularly a concern where children are involved in an accident. In Decision No. 2064/12, 2013 ONWSIAT 452, the plaintiff was the 18-year-old stepson and brother of co-owners of a convenience store. He was injured when he was asked to mind the cash register while his stepfather visited a friend in hospital. Even when an individual performs a role related to the purposes of the employer’s industry, Decision No. 2064/12 held that some form of employment relationship must be present to justify workers’ compensation coverage and remove the right to sue. Decision No. 2064/12 applied Decision No. 577 (November 20, 1986), an early Tribunal decision which identified remuneration, intention and control as three factors to consider in deciding whether an individual is a worker. Considering these factors, the plaintiff was performing a favour for his stepfather and was not in an employment relationship.

Employer Issues

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

The Board has developed three experience rating programs for employers, which are based on the size of the employer and whether they are engaged in construction. The MAPP program was most recently created for smaller employers. Decision No. 1562/12, 2013 ONWSIAT 881, is the first case to consider an appeal arising from the migration of an employer from MAPP to CAD-7, the experience rating program for the construction industry, because the employer’s annual premiums exceeded $25,000. As a preliminary matter, Decision No. 1562/12 found that the Tribunal has jurisdiction to consider appeals under section 83(3) dealing with the application of an experience rating program to a particular employer, even though section 123(2) para. 4 provides that the Tribunal does not have jurisdiction on appeals from decisions under section 81(1) to (6) and section 83(1) and (2). Decision No. 1562/12 rejected an argument that the Board’s policy provides that when a firm migrates from MAPP to CAD-7, the calculation of a surcharge or refund is done by rating the accident costs of the valuation year only. The Board’s chief actuary had submitted that there was no authority to differentiate the calculation for firms which had migrated from firms which had not migrated. Decision No. 1562/12 found that the actuary’s position was the more correct application of Board policy.

The Tribunal frequently considers SIEF appeals, including issues of interpretation and application of the Board’s SIEF policy. For example, Decision No. 244/13, 2013 ONWSIAT 630, considered whether the medical impact of an accident on a specific worker should be the basis for determining the severity of an accident under the SIEF policy. Consistent with more recent decisions, which have placed more emphasis on interpreting Board policy, the focus should be on the general case and not the specific facts. Decision No. 1033/13I, 2013 ONWSIAT 1287, is one of the few cases to consider an employer’s right to access information in a worker’s file for the purposes of appealing a retroactive adjustment of its CAD-7 experience rating account to reflect an increase in SIEF relief. The information generally consisted of medical documentation about the worker’s condition and how it affected his functional abilities with respect to return to work, and two related claim files. Decision No. 1033/13I noted that entitlement to retroactive experience rating adjustment depends centrally on the employer’s diligence in pursuing SIEF relief in a timely way. The question of when and how the worker’s symptoms manifested themselves over time is relevant to this issue. Accordingly, access was granted, except for a few pages containing personal information which were not relevant to the claim. The related claims files were also relevant, given that SIEF relief was granted in relation to injuries resulting from the prior accidents.

Finally, Decision No. 200/13, 2013 ONWSIAT 2087, is of interest for its discussion of cost transfers. Section 84 and Board policy allow the Board to transfer the cost of a claim from an accident employer to a third party employer if the accident was caused by the negligence of another Schedule 1 third party worker or employer. There is also policy which provides cost relief for motor vehicle accidents involving a negligent third party who is not covered under Schedule 1. This policy was introduced to provide a method of cost relief for employers when Ontario enacted no-fault motor vehicle insurance.  The worker in Decision No. 200/13 was a bus driver who witnessed an accident between an unidentified car and an unidentified pedestrian and subsequently developed a significant mental disorder. The Board had disallowed the request for cost relief because it found there was no duty of care on the part of the pedestrian or car driver to the worker. In allowing the employer’s appeal for 100% cost relief, Decision No. 200/13 found that the accident was due to the negligence of either the driver or the pedestrian and that they were likely not covered by Schedule 1. Even if they were covered by Schedule 1, Board policy would apply to transfer costs from the bus driver’s employer to the employer of the negligent individual. The standard for cost transfers under both policies is negligence and does not involve considerations of foreseeability and duty of care.

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.” The WSIA contains various statutory presumptions for specified occupational diseases and exposures and the Board has adopted policy on other diseases and exposures.

Section 134 of the WSIA allows the Tribunal to “establish a list of health professionals upon whom the tribunal may call for assistance in determining matters of fact in a proceeding.” These health professionals, or medical assessors, are often called on to provide a medical opinion in cases which are not covered by Board policy or statutory presumptions. For example, in Decision No. 1355/11, 2012 ONWSIAT 2878, the worker was diagnosed with acute myelogenous leukemia (AML) after working for 12 years as a firefighter. The Board policy on cancer and firefighters provided a presumption for AML if the duration of employment as a firefighter was 15 years. Since the worker did not meet this criteria, Decision No. 1355/11 considered the case on the merits based on the evidence. It accepted the report of the Tribunal medical assessor that there is a strong association between benzene and AML. The worker likely had exposure to benzene while working as a firefighter. The assessor also stated that the worker was a firefighter for 12 years which exceeded the reasonable average latency of 11 years cited in the literature. The medical assessor also noted that the timing of exposure to benzene was significant since the worker was a firefighter for the most critical 10 years prior to diagnosis. While the worker had been a smoker, he was smoke-free for seven years prior to the diagnosis.

Decision No. 25/13, 2013 ONWSIAT 437, provides a good illustration of the role of Board policy in an occupational disease appeal where the policy requirements are met. The worker had colorectal cancer and had worked as an asbestos worker for over 20 years. While the employer made various submissions, there was no conflicting evidence. Decision No. 25/13 foundthat it was not necessary to undertake further investigations since the policy requirement of 20 years latency was met. Board policy is developed to avoid the necessity of addressing complex science in each case. The Board will have reviewed the epidemiology and determined what exposure facts are sufficient for it to be likely that work exposure has been a significant contributing factor. The Board will also have been aware of other possible etiologies when developing the policy. If the facts described in the policy are not established, claims may still be considered on the merits and justice.

Decision No. 248/13, 2013 ONWSIAT 1009, considered an amendment to Board policy on sinter plant exposure, which deleted a requirement of six months work exposure. As of 1994, Board policy provides that it is “persuasive evidence” that a worker’s lung cancer is work-related if the worker worked in any process in the sinter plant as practiced at any time. There was evidence that Board practice was to interpret the new policy as providing for more discretion, rather than meaning that any exposure was sufficient. Internal guidelines for the Medical and Occupational Disease Policy Branch (MODPD) indicated that only claims by non-smokers would be allowed for less than six months exposure. The appeal was denied as the worker had cumulatively less than one month exposure and Decision No. 248/13 agreed with the MODPD that the epidemiology did not support a relationship for exposure of less than one month. The Tribunal, however, did not necessarily accept the recommendation to deny entitlement to workers with fewer than six months of exposure unless they were non-smokers. This strict limit might not be consistent with Board policy and it might be appropriate to consider the specific facts of the exposure between one and six months.

Decision No. 556/13, 2013 ONWSIAT 851, is an example of a case where there is no applicable Board policy. In denying the worker’s appeal that her non-Hodgkin’s lymphoma was related to workplace exposure to second-hand smoke for eight years, Decision No. 556/13 noted that the only expert evidence on causation was a review of the epidemiology by a respirologist retained by the Board. The epidemiological evidence suggested a low relative risk with respect to the relationship between second-hand smoke and cancers other than lung cancer and, possibly, nasal or maxillary sinus cancer. While there was no Board policy directly on non-Hodgkin’s lymphoma, the Panel considered it relevant to keep in mind the criteria used in other policies. There is a well-recognized relationship between lung cancer and asbestos, but Board policy requires 10 years of clear and adequate asbestos exposure and a 10-year latency period.

Other Legal Issues

Previous Annual Reports have noted several outstanding proceedings which raise Charter challenges to the section 13 limitations on traumatic mental stress and policy under section 13. While no decision has yet issued on the merits, several decisions addressed interesting preliminary matters. In Decision No. 665/10I, 2010 ONWSIAT 1283, the Tribunal had previously found that the worker did not have entitlement for acute mental stress pursuant to section 13(4) and (5) of the WSIA. In 2013, Decision No. 665/10I2, 2013 ONWSIAT 1630, commented on the “average worker test” in the course of deciding whether the worker would have had entitlement if not for section 13(4) and (5). The test asks whether it is reasonable that workers of average mental stability would perceive the workplace events to be mentally stressful and, if so, whether such average workers would be at risk of suffering a mental reaction to such perceptions. Decision No. 665/10I2 noted that while Tribunal decisions have justified the average worker test on the basis that it assists in identifying whether there is a work-related injury process, it could conflict with the thin skull doctrine if used vigorously and mechanically. Decision No. 665/10I2 found that there was no good reason to consider the average worker test in finding that the worker would have had entitlement but for section 13(4) and (5). The hearing will reconvene to consider the Charter challenge to section 13(4) and (5).

It appears that the average worker test will also be addressed in proceedings in Decision No. 480/11I3, 2013 ONWSIAT 1876, which found that, subject to Charter and Code issues, the worker was not entitled to benefits for traumatic mental stress under section 13.  The Panel will now consider whether the worker suffered a “disablement” under the WSIA. Submissions were invited on the appropriate test, including any Charter values or Code submissions on the average worker test. Decision No. 1945/10I2, 2013 ONWSIAT 2172, another appeal involving a Charter challenge to section 13(4) and (5) of the WSIA, is of interest for its procedural rulings, particularly with respect to the role of an intervenor.

A Charter challenge based on age discrimination has been raised with respect to sections 43(1)(c) and 45(1) in Decision No. 273/10I, 2013 ONWSIAT 1700. Section 43(1)(c) limits LOE benefits to two years entitlement where the worker is 63 years or older at the time of the accident. Section 45(1) limits retirement benefits for workers who are 64 years of age or older on the date of the injury. Decision No. 273/10I found that the worker would have continued working past age 67 but for his compensable injury. But for his age, he met the other legislative requirements for LOE benefits and loss of retirement income benefits. The hearing will reconvene to consider the constitutional challenge. This is the first time that such a challenge has been raised with respect to section 45(1). The majority in Decision No. 512/06, 2011 ONWSIAT 2525,previously found that section 43(1)(c) did not violate section 15(1) of the Charter and, even if it did, it was a reasonable limit under section 1. In 2013, Decision No. 512/06R, 2013 ONWSIAT 2621, denied a reconsideration request on the grounds that new evidence presented on the reconsideration would not change the result of the original decision and no defect had been identified in the reasons on the application of the Charter to the facts of that case.

Since the 2007 amendments to the Law Society Act (LSA), 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 into the status of unlicensed paralegals who do not appear to be covered by one of the exceptions in the LSA and Bylaw 4. Section 1(8) para. 4 of the LSA contains an exemption for “[a]n employee or volunteer representative of a trade union who is acting on behalf of the union or a member of the union in connection with a grievance, a labour negotiation, an arbitration proceeding or a proceeding before an administrative tribunal.” Decision No. 1696/13I, 2013 ONWSIAT 2105, found that this provision applies to a union employee acting on behalf of a member of the same union, but not on behalf of a member of a different union or a non-union member. Neither the Law Society Act nor Bylaw 4 provides for any “fairness” exceptions to the licensing and prescribed exemption requirements.

When a worker dies without a will, disputes may arise about who has authority to pursue the appeal on behalf of the worker’s estate. The Tribunal is guided by the Succession Law Reform Act (SLRA). Where the worker has left no will, the persons entitled to a share of the estate are the spouse and children of the deceased as defined in the SLRA. The SLRA definition of spouse does not include a common law spouse. In Decision No. 173/05I, 2013 ONWSIAT 467, the common law spouse of the deceased worker applied for authority to pursue the appeal; however, the application was rejected. The Vice-Chair found that the most important factor to consider was the applicant’s effort to notify the deceased’s sons and obtain their consent. It did not appear that the applicant had made any direct attempt to contact the sons and the applicant’s representative had only attempted to telephone them. This did not meet the requirements of the Tribunal’s Practice Direction on Appeals Involving Deceased Workers. The decision did not bar the applicant from obtaining additional evidence and reapplying to the Tribunal.

In Decision No. 468/08R,2103 ONWSIAT 1493, a request for reconsideration was made about four years after the release of the original decision. The Tribunal’s Practice Direction on Reconsiderations provides that, generally, it is not advisable to reconsider a decision after more than six months from the date of the decision. A delay of more than six months is a factor which may be weighed in deciding whether it is advisable to reconsider a decision. The relevant delay is the date from the original decision to the date the reconsideration request was made, not the date the reconsideration decision is issued. While a four-year delay did not preclude reconsideration, considerable weight was given to it in this case. Unlike several reconsideration requests which had been granted despite a similar delay, there was no lack of a full hearing process, nor was there any evidence that was not previously available.

Finally, Decision No. 2381/12, 2012 ONWSIAT 2796, is of interest for its discussion of how to approach medical information obtained from various Internet sites. The Vice-Chair stated that great caution must be applied when considering information from Internet sites. Three factors should be considered in deciding the probative value of such information: the nature of the website (implicit or explicit pecuniary gain, promotion of a particular perspective); the author of the document (qualifications, pecuniary interest); and the nature of the document (controversial issues, different perspectives, and whether it was peer-reviewed).

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