Highlights of Noteworthy Decisions

Decision 2018 17
E. Smith
  • Accident (definition of)
  • Benefit of the doubt
  • Chance event (interpretation)
  • Disablement
  • Presumptions (entitlement) (applicability)

A truck driver suffered a severe low back strain when he stepped down from a truck in June 2010. The worker appealed a decision of the Appeals Resolution Officer denying entitlement.

According to Board policy, an injury itself is not a chance event. A disablement is a condition that emerges over time or is an unexpected result of working duties. In order to avoid confusion between the provisions of the policy, the Vice-Chair understood the reference to an unexpected result of working duties to be an unexpected result of working duties that is not a chance event.
Generally, sudden onset injuries that occur as the result of a specifically identifiable work-related duty would be adjudicated as chance events. The presumption in s. 13(2) of the WSIA applies to chance event claims and not disablements. It is now rare that the presumption will make a difference in the outcome of a claim, as it was clarified by the Supreme Court of Canada in F.H. v. McDougall that there is only one test applicable in civil law and that test is the balance of probabilities. As stated in Decision No. 1672/04, the presumption is generally only determinative of an appeal when the key facts of what happened are unknown and there is insufficient evidence to apply the benefit of the doubt.
In this case, there was sufficient evidence to apply the balance of probabilities and the benefit of the doubt. Thus, it was not necessary to consider whether the presumption applied. The worker suffered a severe strain injury while descending from a truck at work. It was not known precisely what movement of his body caused the strain but the Vice-Chair found that the act of descending from the truck likely caused him to place his body in an awkward or twisted position. Despite the lack of clarity about the precise movement that caused the strain, the evidence was sufficient to attract the benefit of the doubt.
The worker had entitlement for the back injury. The appeal was allowed.