Highlights of Noteworthy Decisions

Decision 110 23
E. Smith
  • Domestics
  • Earnings basis (concurrent employment)
  • Health care (appliances or apparatus)
  • Non-economic loss {NEL}
  • Permanent impairment {NEL}
  • Strains and sprains (cervical)
  • Recurrences (compensable injury) (strains and sprains) (lumbar)
  • Independent operator (dependent contractor)

The issues under appeal were: a) entitlement to the inclusion of concurrent earnings in the worker's earnings basis; b) entitlement to a recurrence of the worker's low back injury and a NEL assessment; and, c) entitlement to ongoing benefits for a cervical injury, and to a NEL assessment and a permanent impairment award.

The appeal was denied.
The worker had cared for a disabled man at the same time as working for the accident employer as a residential counselor. Vice-Chair agreed that the information provided was insufficiently clear to form a basis to include the amount shown as paid to the worker, as a worker, in the calculation for the earnings basis for this accident claim. The Vice-Chair also found it likely that this was not a worker/employer relationship. OPM Document No. 18-02-08 states explicitly that to be considered a dependent contractor, the worker must be covered under the contractor's WSIB account at the time of the injury. The provisions applicable to dependent contractors in this policy therefore did not apply to this worker.
It was noted that the ARO has not directly addressed the Board's policies and guidelines that cover domestic workers or attendants. The Vice-Chair's understanding was that the Board has established a threshold of 24 hours a week of work for persons who fall into this category, and contract to work in residential households, before it is required that the householder register as an employer with the Board. When a worker/employer relationship is recognized, the employer is required to withhold taxes, make payments into employment insurance and Canada Pension Plan (CPP) plans, and register with the Board and pay premiums. With respect to the requirements of the Board, below the 24 hour threshold, the person providing services may obtain optional insurance but is otherwise considered an independent operator. If the person is providing services through an agency, the agency is the employer. The information provided was insufficient to establish an employment relationship in any event.
With respect to the worker's low back, the medical reporting suggested that there were underlying degenerative factors in the spine that had become symptomatic because of a previous accident. The Vice-Chair found it likely that the later symptoms reflected the progression of the underlying degenerative changes and not the impact of the 2015 low back strain, which likely resolved in March of 2016 as determined by the Board. Entitlement for a recurrence and assessment for a permanent impairment was denied. In addition, the Vice-Chair found it likely that the worker's later cervical symptoms after April 8, 2019 were due to the natural progression of the degenerative cervical symptoms in the worker's neck, and not the result of the workplace accident. The worker therefore did not have entitlement for a permanent impairment or NEL assessment for the neck. The health care benefits that the worker sought on a secondary basis were also denied.