FSCO A09-00641
Dennis Ferguson (Applicant)
ING (Insurer)
February 22 & 23, 2010
Resons for Decision
Issues:
Mr. Ferguson was injured in a motor vehice accident on August 23, 2007. He applied and received SABs from ING payable under Schedule. An issue arose concerning the amount of income replacement benefits to which Mr. Ferguson was entitled and the parties were unable to resolve their dispute through mediation. Mr. Ferguson applied for arbitration at the FSCO.
The issues in this hearing are:
1. Was Mr. Ferguson an employee or self-employed at the time of the accident?
2. What is the amount of the income replacement benefit to which Mr. Ferguson is entitled pursuant to section 6 of the Schedule, from Aug. 30, 2007 onwards?
3. Is Mr. Ferguson entitled to interest for the overdue payment of income replacement benefits pursuant to section 46(2) of the Schedule?
Results:
1. Mr. Ferguson was employed as an employee at the time of the accident.
2. The amount of the income replacement benefit to which Mr. Ferguson is entitled is $294.12 per week from August 30, 2007.
3. Mr. Ferguson is entitled to interest for the overdue payment of the income replacement benefits, calculated in accordance with s. 46(2) of the Schedule.
Wednesday, September 8, 2010
FSCO, Kevin Tam and Wawanesa Mutual Insurance Company
FSCO A07-002163
Kevin Tam (Applicant)
Wawanesa Mutual Insurance Company (Insurer)
July 5, 2010
Decision on Expenses
Issues:
Mr. Tam was injured in a motor vehicle accident on July, 21, 2003. He applied for SABs from Wawanesa payable under the Schedule. Issues arose between the parties concerning the Applicant's entitlement to certain SABs.
Interim decisions in this matter on January 30, 2009 and December 2, 2009. Following about 32 hours of actual hearing time, spread out over eight days, on May 20, 2010 a decision was issued that decided the Applicant's claims for statutory accident benefits. The issues in that hearing were the following:
1. Is Mr. Tam entitled to receive a non-earner benefit.
2. Is Mr.Tam entitled to receive medical and rehabilitation benefits
3. Is Mr. Tam entitled to payments for the cost of Dr. Glickman's report, Dr. Kevin Rod's report, and Dr. Dana Wilson's report.
4. Is Mr. Tam entitled to interest for the overdue payment of benefits pursuant to section 46(2) of the Schedule?
5. Is Wawabesa liable to pay a special award pursuant to subsection 282(10) of the Insurance Act because it unreasonably withheld or delayed payments to Ms. Tam?
6. Is Wawanesa liable to pay Mr. Tam's expenses in respect of the arbitration under section 282(11) of the Insurance Act, R.S.O. 1990, c. I.8?
7. Is Mr. Tam liable to pay Wawanesa's expenses in respect of the arbitration under section 282(11) of the Insurance Act, R.S.O. 1990, c. I.8?
Results:
1. Mr. Tam is not entitled to receive a non-earner benefit.
2. Of the medical/rehabilitation benefits claimed, Mr. Tam is entitled to receive $25,546.02 for the cost of prescription medication purchased from November 27, 2003 through April 2, 2007.
3. Mr. Tam is not entitled to any of the amounts he claimed under section 24 of the Schedule.
4. Mr. Tam is entitled to interest for the overdue payment of the cost of the prescripption medication set out above.
5. Wawanesa is not liable to pay a special award pursuant to subsection 282(10) of the Insurance Act.
6. The decision on expenses is deferred at the request of the parties.
The issue in this further hearing is:
1. Is either party liable to pay the other party's expenses incurred in respect of this arbitration hearing?
Result:
The Applicant shall pay to the Insurer its expenses of this proceeding related to the aborted hearing of Jan. 26, 2009, fixed in the amount of $2000.00. With respect to all other expenses related to this proceeding, the parties shall otherwise each bear their own expenses.
Kevin Tam (Applicant)
Wawanesa Mutual Insurance Company (Insurer)
July 5, 2010
Decision on Expenses
Issues:
Mr. Tam was injured in a motor vehicle accident on July, 21, 2003. He applied for SABs from Wawanesa payable under the Schedule. Issues arose between the parties concerning the Applicant's entitlement to certain SABs.
Interim decisions in this matter on January 30, 2009 and December 2, 2009. Following about 32 hours of actual hearing time, spread out over eight days, on May 20, 2010 a decision was issued that decided the Applicant's claims for statutory accident benefits. The issues in that hearing were the following:
1. Is Mr. Tam entitled to receive a non-earner benefit.
2. Is Mr.Tam entitled to receive medical and rehabilitation benefits
3. Is Mr. Tam entitled to payments for the cost of Dr. Glickman's report, Dr. Kevin Rod's report, and Dr. Dana Wilson's report.
4. Is Mr. Tam entitled to interest for the overdue payment of benefits pursuant to section 46(2) of the Schedule?
5. Is Wawabesa liable to pay a special award pursuant to subsection 282(10) of the Insurance Act because it unreasonably withheld or delayed payments to Ms. Tam?
6. Is Wawanesa liable to pay Mr. Tam's expenses in respect of the arbitration under section 282(11) of the Insurance Act, R.S.O. 1990, c. I.8?
7. Is Mr. Tam liable to pay Wawanesa's expenses in respect of the arbitration under section 282(11) of the Insurance Act, R.S.O. 1990, c. I.8?
Results:
1. Mr. Tam is not entitled to receive a non-earner benefit.
2. Of the medical/rehabilitation benefits claimed, Mr. Tam is entitled to receive $25,546.02 for the cost of prescription medication purchased from November 27, 2003 through April 2, 2007.
3. Mr. Tam is not entitled to any of the amounts he claimed under section 24 of the Schedule.
4. Mr. Tam is entitled to interest for the overdue payment of the cost of the prescripption medication set out above.
5. Wawanesa is not liable to pay a special award pursuant to subsection 282(10) of the Insurance Act.
6. The decision on expenses is deferred at the request of the parties.
The issue in this further hearing is:
1. Is either party liable to pay the other party's expenses incurred in respect of this arbitration hearing?
Result:
The Applicant shall pay to the Insurer its expenses of this proceeding related to the aborted hearing of Jan. 26, 2009, fixed in the amount of $2000.00. With respect to all other expenses related to this proceeding, the parties shall otherwise each bear their own expenses.
FSCO, Julia Gordyukova and Dominion of Canada General Insurance Company
FSCO A08-002589
Julia Gordyukova (Applicant)
Dominion of Canada General Insurance Company (Insurer)
July 9, 2010
Issues:
Ms. Gordyukova was injured in a motor vechicle accident on November 9, 2001. She applied for and received SABS from Dominion, payable under the Schedule. Disputes arose regarding the payment of other benefits. In Sept. 2002, Ms. Gordyukova brought an action in the Ontario Superior Court of Justice for payment of those benefits. A dispute arose as to whether Ms. Gordyukova has sustained a catastropic impairment as a result of the accident, in Dec. 2008 she filed an Application for Arbitration to have the issue of catastropic impairment determined.
In the interim, Dominion disputed its obligation to pay accident benefits to Ms. Gordyukova on the basis that Certas Direct Insurance Company was the priority insurer. In May 2008 an Arbitrator found that Dominion was barred from disputing regulation its obligation to pay accident benefits for failing to comply with the priority dispute regulation. In May 2009, the Ontario Superior Court of Justice granted Dominion's appeal from the decision of the Arbitrator, which was then to make Certas responsible for payment of accident benefits to Ms. Gordyukova.
Ms. Gordyukova now seekd to add Certas as a party to the arbitration, however Certas opposes, maintaining that the issue of catastrophic impairment should be determined in the court action. Dominion seeks to be removed or replaced as a party to the arbitration.
Preliminary Issues Are:
1. Should Ms. Gordyukova's arbitration proceeding for a determination of catastropic impairment be stayed because the issue should be added to her outstanding court action?
2. If Ms. Gordyukova is permitted to proceed to arbitration, should medical and rehabilitation benefits, attendant care benefits, and income replacement benefits be added to the arbitration, or should arbitration and the court action be permitted to proceed separately?
3. Should Certas be added as a party to the arbitration?
4. Should Dominion be removed or replaced as a party to the arbitration?
Result:
1. Ms. Gordyukova is permitted to proceed to arbitration on the condition that she gives notice within 14 days that she has sought leave to withdraw or discontinue her court action.
2. The issues in the court action (medical/rehabilitation benefits, attendant care benefits, and income replacement benefits) may be added to their arbitration once Ms. Gordyukova has confirmed that she has sought leave to withdraw or discontinue her court action.
3. Certas is added as a party to the arbitration.
4. Dominion remains a party to the arbitration.
5. Ms. Gordyukova is entitled to her expenses of this preliminary issue hearing in an amount to be agreed upon or assessed in connection with the final disposition of the arbitration.
Julia Gordyukova (Applicant)
Dominion of Canada General Insurance Company (Insurer)
July 9, 2010
Issues:
Ms. Gordyukova was injured in a motor vechicle accident on November 9, 2001. She applied for and received SABS from Dominion, payable under the Schedule. Disputes arose regarding the payment of other benefits. In Sept. 2002, Ms. Gordyukova brought an action in the Ontario Superior Court of Justice for payment of those benefits. A dispute arose as to whether Ms. Gordyukova has sustained a catastropic impairment as a result of the accident, in Dec. 2008 she filed an Application for Arbitration to have the issue of catastropic impairment determined.
In the interim, Dominion disputed its obligation to pay accident benefits to Ms. Gordyukova on the basis that Certas Direct Insurance Company was the priority insurer. In May 2008 an Arbitrator found that Dominion was barred from disputing regulation its obligation to pay accident benefits for failing to comply with the priority dispute regulation. In May 2009, the Ontario Superior Court of Justice granted Dominion's appeal from the decision of the Arbitrator, which was then to make Certas responsible for payment of accident benefits to Ms. Gordyukova.
Ms. Gordyukova now seekd to add Certas as a party to the arbitration, however Certas opposes, maintaining that the issue of catastrophic impairment should be determined in the court action. Dominion seeks to be removed or replaced as a party to the arbitration.
Preliminary Issues Are:
1. Should Ms. Gordyukova's arbitration proceeding for a determination of catastropic impairment be stayed because the issue should be added to her outstanding court action?
2. If Ms. Gordyukova is permitted to proceed to arbitration, should medical and rehabilitation benefits, attendant care benefits, and income replacement benefits be added to the arbitration, or should arbitration and the court action be permitted to proceed separately?
3. Should Certas be added as a party to the arbitration?
4. Should Dominion be removed or replaced as a party to the arbitration?
Result:
1. Ms. Gordyukova is permitted to proceed to arbitration on the condition that she gives notice within 14 days that she has sought leave to withdraw or discontinue her court action.
2. The issues in the court action (medical/rehabilitation benefits, attendant care benefits, and income replacement benefits) may be added to their arbitration once Ms. Gordyukova has confirmed that she has sought leave to withdraw or discontinue her court action.
3. Certas is added as a party to the arbitration.
4. Dominion remains a party to the arbitration.
5. Ms. Gordyukova is entitled to her expenses of this preliminary issue hearing in an amount to be agreed upon or assessed in connection with the final disposition of the arbitration.
FSCO, Sivakumaru Sinnapu and Economical Mutual Insurance Company
FSCO A09-000900
Sivakumaru Sinnapu (Applicant)
Economical Mutual Insurance Company (Insurer)
Heard January 28, 2010
Issues:
Mr. Sinnapu was injured in a motor vechicle accident on June 22, 2006. He applied for and received SABS from Economical, payable under the Schedule. Economical terminated weekly income replacement benefits. The parties were unable to resolve their disputes through mediation, and Mr. Sinnapu applied for arbitration at the FSCO under the Insurance Act, R.S.O. 1990, c.I.8, as amended.
The issue in this hearing is if Mr. Sinnapu is entitled to a special award.
Results:
Mr. Sinnapu is entitled to a special award.
Evidence and Analysis:
Sivakumaru Sinnapu (Applicant)
Economical Mutual Insurance Company (Insurer)
Heard January 28, 2010
Issues:
Mr. Sinnapu was injured in a motor vechicle accident on June 22, 2006. He applied for and received SABS from Economical, payable under the Schedule. Economical terminated weekly income replacement benefits. The parties were unable to resolve their disputes through mediation, and Mr. Sinnapu applied for arbitration at the FSCO under the Insurance Act, R.S.O. 1990, c.I.8, as amended.
The issue in this hearing is if Mr. Sinnapu is entitled to a special award.
Results:
Mr. Sinnapu is entitled to a special award.
Evidence and Analysis:
- A special award is unique to the arbitration process. It is a statutory award that is outlined in subsection 282 (10) of the Insurance Act
- The threshold for such an award, reasonableness, is rather low and is merely triggered by a withholding or delay of payments that is unreasonable. No ill-will, no intent to harm an insured, delay, or intentionally withhold payments is necessary, merely that the delay or withholding be "unreasonable."
- I find that there is no specific evidence of malice or intent to harm. Nor indeed was any specific malice alleged by Mr. Sinnapu. Rather, I find it more likely that Economical's efforts to adjust this file for some unknown reason went off the rails at the two-year mark, and as a result decisions were taken that ignored Mr. Sinnapu's reality and caused much tribulation to a vulnerable person.
- I find that in accepting Dr. Lexier's conclusions on employment, in the face of contradictory evidence from experts in that field, Economical acted unreasonably. It made no apparent attempt to reconcile conflicting reports, or to weigh the value of Dr. Lexier's opinion in an area that was clearly outside his claimed expertise.
- The decision to discontinue benefits, based on this opinion, was unreasonable, a conclusion that in accordance with subsection 282 (10) of the Insurance Act mandates a special award.
- Failure of the Insurer to comply with the Schedule in discontinuing benefits. While there may well still be the possibility of entitlement to ongoing benefits in the face of a flawed discontinuance of payments, what is important in the context of this special award is whether or not an insurer should have known that it was obliged to reinstate until such time as the defective notice is properly addressed. Given the inconsistencies in the jurisprudence and this most recent statement from the Court of Appeal, I cannot accept that the Insurer can be somehow deemed to have such knowledge. Consequently, a withholding of benefits in the face of a flawed termination process need not necessarily be found unreasonable and so attract a special award.
Wednesday, August 25, 2010
CanLII, Safai v. Bruce N. Huntley Contracting Limited, 2010 ONCA 545
Safai v. Bruce N. Huntley Contracting Limited
Sasha Safai (minor), Litigation Guardian, Leslie Anne Wilkes, Joebeen Safai, Parissa Safai, Hormoz Safai and Gity Safai (Appellants, Plaintiffs)
and
Bruce N. Huntley Contracting Limited (Respondent, Defendant)
and between
Sasha Safai, Leslie Anne Wilkes, Jeobeen Safai, Parissa Safai, Hormoz Safai, Gity Safai
and
Markham Property Services Ltd.
Introduction
The appellant, Gity Safai, slipped and fell on a patch of ice in a parking lot on February 17, 2000 and suffered a broken ankle. On Feb, 23, 2006, she and members of her family commenced an action against the owner of the parking lot and on Sept 27, 2006, they commenced a separate action against the company responsible for the winter maintenance of the parking lot. The defendants (respondents in the appeal) moved for summary judgement based on the expiry of the six year limitation period.
Ms. Safai and the other appellants raised the discoverability rule in response to the motions for summary judgement. Mullins J. of the Superior Court of Justice held that the discoverability rule had no application to either case and dismissed both actions.
The appellants appeal to this court and submit that the motion judge erred in concluding that the discoverability rule did not apply to extend the limitation period in respect of either action.
The Appeal:
(1) The motion judge erred by refusing to accept that the discoverability rule postpones the running of the limitation period.
(2) The motion judge erred in failing to conclude on the test for summary judgement that the respondents had failed to establish that the limitation period in both actions had expired.
Analysis:
The discoverability rule has been developed and discussed in a number of cases in courts since the mid-1980s. Refers to Consumers Glass Co. v. Foundation Co. of Canada (1985), Peixeiro v. Haberman (1997), Fehr v. Jacob (1993), and Coutance v. Napoleon Delicatessen (2004).
As I read the reasons for judgement of the motion judge, she correctly articulated the discoverability rule and fully understood that its effect is to postpone the running of a limitation period. I find no error in her articulation of the rule and would not give effect to the appellants' first ground of appeal.
As of the date of the accident, she was in a position to ascertain the name of the registered owner of the property. Reasonable diligence on her part and on the part of her lawyer produced the name of the registered owner of the building in due course. In my view, there is simply no reasonable basis in these circumstances to invoke the discoverability rule to postpone the commencement of the limitation period.
In my view, the motion judge erred in failing to consider the application of the discoverability rule in that situation. It would appear to me that there is a genuine issue for trial concerning the running of the limitation period and the application of the discoverability rule that should be left to the trial judge. It would appear to me that there is a genuine issue for trial concerning the running of the limitation period and the application of the discoverability rule that should be left to the trial judge.
Disposition:
I would dismiss the appeal from the order dismissing the action against Huntley. I would allow the appeal in respect of the action against Markham and set aside the order dismissing the action
Sasha Safai (minor), Litigation Guardian, Leslie Anne Wilkes, Joebeen Safai, Parissa Safai, Hormoz Safai and Gity Safai (Appellants, Plaintiffs)
and
Bruce N. Huntley Contracting Limited (Respondent, Defendant)
and between
Sasha Safai, Leslie Anne Wilkes, Jeobeen Safai, Parissa Safai, Hormoz Safai, Gity Safai
and
Markham Property Services Ltd.
Introduction
The appellant, Gity Safai, slipped and fell on a patch of ice in a parking lot on February 17, 2000 and suffered a broken ankle. On Feb, 23, 2006, she and members of her family commenced an action against the owner of the parking lot and on Sept 27, 2006, they commenced a separate action against the company responsible for the winter maintenance of the parking lot. The defendants (respondents in the appeal) moved for summary judgement based on the expiry of the six year limitation period.
Ms. Safai and the other appellants raised the discoverability rule in response to the motions for summary judgement. Mullins J. of the Superior Court of Justice held that the discoverability rule had no application to either case and dismissed both actions.
The appellants appeal to this court and submit that the motion judge erred in concluding that the discoverability rule did not apply to extend the limitation period in respect of either action.
The Appeal:
(1) The motion judge erred by refusing to accept that the discoverability rule postpones the running of the limitation period.
(2) The motion judge erred in failing to conclude on the test for summary judgement that the respondents had failed to establish that the limitation period in both actions had expired.
Analysis:
The discoverability rule has been developed and discussed in a number of cases in courts since the mid-1980s. Refers to Consumers Glass Co. v. Foundation Co. of Canada (1985), Peixeiro v. Haberman (1997), Fehr v. Jacob (1993), and Coutance v. Napoleon Delicatessen (2004).
As I read the reasons for judgement of the motion judge, she correctly articulated the discoverability rule and fully understood that its effect is to postpone the running of a limitation period. I find no error in her articulation of the rule and would not give effect to the appellants' first ground of appeal.
As of the date of the accident, she was in a position to ascertain the name of the registered owner of the property. Reasonable diligence on her part and on the part of her lawyer produced the name of the registered owner of the building in due course. In my view, there is simply no reasonable basis in these circumstances to invoke the discoverability rule to postpone the commencement of the limitation period.
In my view, the motion judge erred in failing to consider the application of the discoverability rule in that situation. It would appear to me that there is a genuine issue for trial concerning the running of the limitation period and the application of the discoverability rule that should be left to the trial judge. It would appear to me that there is a genuine issue for trial concerning the running of the limitation period and the application of the discoverability rule that should be left to the trial judge.
Disposition:
I would dismiss the appeal from the order dismissing the action against Huntley. I would allow the appeal in respect of the action against Markham and set aside the order dismissing the action
Tuesday, August 10, 2010
FSCO, D'Ettorre and Coachman Insurance Company
Appeal P09-00029
Coachman Insurance Company (Appellant)
Alex D'Ettorre (Respondent)
Published: July 28, 2010
Hearing Date: January 18, 2010
Nature of Appeal:
Coachman Insurance Company (CIC) appeals the Arbitrator's order that The Nordic Insurance Company of Canada (The Nordic) is not precluded from proceeding in the name of Mr. Alex D'Ettorre.
Background:
Mr. D'Ettorre was injured in a motor vehicle accident on November 7, 2001 in a collision between his pickup truck and a trackor-trailor. CIC insured him, and The Nordic insured the trackor-trailer. Mr. D'Ettorre received income replacement benefits under the SABS 1996 from Coachman until it ceased payment in October 2005. Mr. D'Ettorre sought their reinstatement in mediation and then in arbitration. Mr. D'Ettorre also commenced a third-party tort claim against The Nordic's insureds.
On August 22, 2008, Mr. D'Ettorre settled his tort action, entered into minutes of settlement with The Nordic and signed a release. The release included an assignment to the Nordic of his SABS claim against Coachman. The Nordic recieved a concent judgment dated September 5, 2008, which repeated the terms of the settlement and the assignment and dismissed the action.
The Nordic purported to pursue the arbitration proceeding in Mr. D'Ettorre's name pursuant to the assignment, despite the provision in s. 65(1) of the SABS that the assignment of the right to pursue an arbitration proceeding is void. Coachman moved to prevent The Nordic from proceeding, on the basis that there had been no trial but merely a consent order, so the purported assignment was void.
The Arbitrator held that the consent judgement consituted an assignment pursuant to s. 267.8(12) and that Coachman's motion was an invalid collateral attack on the order, and that Nordic could continue with the arbitration. Coach then filed an appeal.
Analysis:
For the reasons that follow, I find there was no assignment pursuant to s. 267.8(12) of the Act that allows The Nordic to pursue arbitration in Mr. D'Ettorre's name and that the motion by Coachman was not a collateral attacj on the consent order.
The legislative context of the SABS and the Act does not provide that a consent order constitutes a judicially authorized assignment for the purposes of the exception to the assignment ban. Coachman’s motion to defend its rights was therefore not a collateral attack on the order.
I agree with Smith J.’s analysis in Stokes v. Desjardins groupe d’assurances générales. Stokes dealt with subs. (9) of s. 267.8, which requires the plaintiff to hold collateral funds received after the trial of the tort action in trust for the tort insurer. The parties in the tort action in Stokes reached an agreement and settled without a trial. The plaintiff then started a first-party
action, and the tort insurer sought to apply subs. (9), meaning that any funds Mr. Stokes obtained in his first-party action would have to be held for Group Desjardins. However, Smith J. held that subs. (9) only applies where a plaintiff recovers damages after a trial of the action.
The requirement for there to be a trial of the tort action in which the court awards damages is identical in subs. (12). An assessment of damages by a court means that the parties do not know beforehand what damages will be awarded, so even in an ex parte hearing the plaintiff has to prove them. That is not what happened here, as the parties agreed to the damages and settled on them before going to court. By its very nature, a settlement is different from a full assessment of damages, as noted in Stokes.
It is also not necessary to interpret the consent order as an order made after the trial of the action as part of the goal of preventing double recovery.
The Arbitrator therefore erred in finding that the consent order qualified as an order made under section 267.8 of the Act and thus qualified as an exception to the general ban on assignment under s. 65 of the SABS. The appeal is allowed, and the order is amended to show that The Nordic is precluded from proceeding in Mr. D’Ettorre’s name.
Expenses:
If the parties are unable to agree about expenses of this appeal, an expense hearing to determine the parties’ legal fees and disbursements may be arranged in accordance with Rule 79 of the Dispute Resolution Practice Code.
Coachman Insurance Company (Appellant)
Alex D'Ettorre (Respondent)
Published: July 28, 2010
Hearing Date: January 18, 2010
Nature of Appeal:
Coachman Insurance Company (CIC) appeals the Arbitrator's order that The Nordic Insurance Company of Canada (The Nordic) is not precluded from proceeding in the name of Mr. Alex D'Ettorre.
Background:
Mr. D'Ettorre was injured in a motor vehicle accident on November 7, 2001 in a collision between his pickup truck and a trackor-trailor. CIC insured him, and The Nordic insured the trackor-trailer. Mr. D'Ettorre received income replacement benefits under the SABS 1996 from Coachman until it ceased payment in October 2005. Mr. D'Ettorre sought their reinstatement in mediation and then in arbitration. Mr. D'Ettorre also commenced a third-party tort claim against The Nordic's insureds.
On August 22, 2008, Mr. D'Ettorre settled his tort action, entered into minutes of settlement with The Nordic and signed a release. The release included an assignment to the Nordic of his SABS claim against Coachman. The Nordic recieved a concent judgment dated September 5, 2008, which repeated the terms of the settlement and the assignment and dismissed the action.
The Nordic purported to pursue the arbitration proceeding in Mr. D'Ettorre's name pursuant to the assignment, despite the provision in s. 65(1) of the SABS that the assignment of the right to pursue an arbitration proceeding is void. Coachman moved to prevent The Nordic from proceeding, on the basis that there had been no trial but merely a consent order, so the purported assignment was void.
The Arbitrator held that the consent judgement consituted an assignment pursuant to s. 267.8(12) and that Coachman's motion was an invalid collateral attack on the order, and that Nordic could continue with the arbitration. Coach then filed an appeal.
Analysis:
For the reasons that follow, I find there was no assignment pursuant to s. 267.8(12) of the Act that allows The Nordic to pursue arbitration in Mr. D'Ettorre's name and that the motion by Coachman was not a collateral attacj on the consent order.
The legislative context of the SABS and the Act does not provide that a consent order constitutes a judicially authorized assignment for the purposes of the exception to the assignment ban. Coachman’s motion to defend its rights was therefore not a collateral attack on the order.
I agree with Smith J.’s analysis in Stokes v. Desjardins groupe d’assurances générales. Stokes dealt with subs. (9) of s. 267.8, which requires the plaintiff to hold collateral funds received after the trial of the tort action in trust for the tort insurer. The parties in the tort action in Stokes reached an agreement and settled without a trial. The plaintiff then started a first-party
action, and the tort insurer sought to apply subs. (9), meaning that any funds Mr. Stokes obtained in his first-party action would have to be held for Group Desjardins. However, Smith J. held that subs. (9) only applies where a plaintiff recovers damages after a trial of the action.
The requirement for there to be a trial of the tort action in which the court awards damages is identical in subs. (12). An assessment of damages by a court means that the parties do not know beforehand what damages will be awarded, so even in an ex parte hearing the plaintiff has to prove them. That is not what happened here, as the parties agreed to the damages and settled on them before going to court. By its very nature, a settlement is different from a full assessment of damages, as noted in Stokes.
It is also not necessary to interpret the consent order as an order made after the trial of the action as part of the goal of preventing double recovery.
The Arbitrator therefore erred in finding that the consent order qualified as an order made under section 267.8 of the Act and thus qualified as an exception to the general ban on assignment under s. 65 of the SABS. The appeal is allowed, and the order is amended to show that The Nordic is precluded from proceeding in Mr. D’Ettorre’s name.
Expenses:
If the parties are unable to agree about expenses of this appeal, an expense hearing to determine the parties’ legal fees and disbursements may be arranged in accordance with Rule 79 of the Dispute Resolution Practice Code.
Sunday, August 8, 2010
WSIAT website, June 1, 2010
Decision No. 877 10
- Experience rating (NEER)
- Negligence
- Transfer of costs (NEER)
The appellant employer was a placement agency. A worker of the appellant employer was injured while placed in temporary assignment. The Board determined that two other employers were responsible for the accident and that this employer was not responsible for any negligence.
The first other employer was a Schedule 1 employer, and the Board transferred 50% of the accident costs to the account of the first other employer. The second other employer was not registered with the board. The Board pursued an action against the second other employer but has not recovered any money. The appellant employer was not provided with any relief for the portion of the claim costs. The employer appealed the decision denying removal of the full costs of the claim from its account for NEEr purposes.
When the Board attributed negligence to the two other employers, it was not implicitly making a finding that no costs should be included in the appellant employer's cost records for NEER purposes. Section 84 of the WSIA provides for transfer costs, but it applies only to transfers between Schedule 1 employers, thus it did not apply to the second other employer.
Board policy provides for removal of costs only if and when the Board recovers from the second other employer, which has not happened yet. The appellent employerwas not entitled to removal of 100% of the costs of the claim. The appellant employer was not in a position to benefit effectively from this provision because it has already benefitted from the transfer of costs provision. The appeal was dismissed.
CanLII, Tembec Inc. v. Wilson., 2010 ONCA 504
Tembec Inc. v. Wilson
Gordon Wilson, Applicant (Respondent)
Tembec Inc., Defendant (Appellant)
August 3, 2010
Facts:
1. Mr. Wilson worked at Tembec since 1st July 1997. He worked as a general manager of operation at the Tembec's sawmill in Kapuskasing. In Nov. 2001, Mr. Wilson was promoted to rank of Director General mills Northern Ontario West, a position that entitles him to oversee the operation of sawmills located Tembec in Kapuskasing, Hearst and Opasatika.
2. In May 2003, Mr. Bastien, a vice-chairpersons of Tembec, became the direct supervisor of Mr. Wilson. Up to this point, Mr. Wilson had recieved very positive performance evaluations. Bastien by cons reduces overall efficiency rating of Mr. Wilson ensuring that it undergoes a reduction of premiums in the short term, as well, Mr. Bastien insists that Mr. Wilson learn French. Mr. Wilson resisted this pressure. In short, Mr. Bastien and Mr. Wilson do not get along.
Circumstances surrounding the dismissal:
3. The chain of events began towards the end of 2004. Tembec decided to close its sawmill in Opasatika and Mr. Wilson is the manage responsible for the accomplished under supervision of Mr. Bastien.
4. Following the closure, Tembec should provide some severance pay to its employees. The status of a worker, Paul Nadeau, was not clearly defined. Mr. Wilson recommended he was an employee and Mr. Bastien is of the opinion that Mr. Nadeau is a contractor. The letters to each employee of the mill are prepared for the signature of Mr. Bastien; Mr. Bastien refused to sign the letter to Mr. Nadeau.
5. Wilson and Guylaine Coulombe, a lawyer and employee of the Department of Human Resources, Tembec meet. Since the letter is in French, Ms. Coulombe helping Mr. Wilson to amend the letter Mr. Nadeau to treat differently from other employees. A few months later Mr. Bastian learned of a letter signed by him to Mr. Nadeau. Initally Mr. Wilson did not remember that he signed the name of Mr. Bastien on this letter but, after ascertained, Mr. Wilson admits that he forged the signature. Mr. Bastien to the matter to Tembec superiors, and on June 21, 2005, Mr. Wilson was dismissed without Tembec investigations about the facts of the case.
Conclusion of Trial Judge:
(a) Mr. Wilson did not attempt to conceal the fact that he had forged the signature of Mr. Bastein on the letter and did not try to convince Mr. Bastien that he had personally signed the letter.
(b) Mr. Wilson believed he was in the best interest of Tembec to grant Mr. Nadeau severance of employment. This belief was objectively reasonable in the light of the totality of the evidence.
(c) Mr. Wilson was concerned about a confrontation and the animosity that surrounded him, and believed that he was not in the best interest of Tembec's refusal to pay severance to Nadeau.
(d) Even if the conduct of Mr. Wilson proved dishonest and insubordinate, the imitation of the signature was an isolated act, and did not reveal a character so flawed that it would make Mr. Wilson untrustworthy. Misconduct was not fraudulent in nature deeply, and was therefore compatible with the maintenance of an employer-employee Tembec. Ultimately the greatest obstacle to this relationship was a clash of personalities and communication problems between Mr. Wilson and Mr. Bastien.
Provision:
6. For the foregoing reasons, we dismiss the appeal.
7. We order that the appellant pay the respondent 20,000.00 US dollars for the costs of the appeal.
Gordon Wilson, Applicant (Respondent)
Tembec Inc., Defendant (Appellant)
August 3, 2010
Facts:
1. Mr. Wilson worked at Tembec since 1st July 1997. He worked as a general manager of operation at the Tembec's sawmill in Kapuskasing. In Nov. 2001, Mr. Wilson was promoted to rank of Director General mills Northern Ontario West, a position that entitles him to oversee the operation of sawmills located Tembec in Kapuskasing, Hearst and Opasatika.
2. In May 2003, Mr. Bastien, a vice-chairpersons of Tembec, became the direct supervisor of Mr. Wilson. Up to this point, Mr. Wilson had recieved very positive performance evaluations. Bastien by cons reduces overall efficiency rating of Mr. Wilson ensuring that it undergoes a reduction of premiums in the short term, as well, Mr. Bastien insists that Mr. Wilson learn French. Mr. Wilson resisted this pressure. In short, Mr. Bastien and Mr. Wilson do not get along.
Circumstances surrounding the dismissal:
3. The chain of events began towards the end of 2004. Tembec decided to close its sawmill in Opasatika and Mr. Wilson is the manage responsible for the accomplished under supervision of Mr. Bastien.
4. Following the closure, Tembec should provide some severance pay to its employees. The status of a worker, Paul Nadeau, was not clearly defined. Mr. Wilson recommended he was an employee and Mr. Bastien is of the opinion that Mr. Nadeau is a contractor. The letters to each employee of the mill are prepared for the signature of Mr. Bastien; Mr. Bastien refused to sign the letter to Mr. Nadeau.
5. Wilson and Guylaine Coulombe, a lawyer and employee of the Department of Human Resources, Tembec meet. Since the letter is in French, Ms. Coulombe helping Mr. Wilson to amend the letter Mr. Nadeau to treat differently from other employees. A few months later Mr. Bastian learned of a letter signed by him to Mr. Nadeau. Initally Mr. Wilson did not remember that he signed the name of Mr. Bastien on this letter but, after ascertained, Mr. Wilson admits that he forged the signature. Mr. Bastien to the matter to Tembec superiors, and on June 21, 2005, Mr. Wilson was dismissed without Tembec investigations about the facts of the case.
Conclusion of Trial Judge:
(a) Mr. Wilson did not attempt to conceal the fact that he had forged the signature of Mr. Bastein on the letter and did not try to convince Mr. Bastien that he had personally signed the letter.
(b) Mr. Wilson believed he was in the best interest of Tembec to grant Mr. Nadeau severance of employment. This belief was objectively reasonable in the light of the totality of the evidence.
(c) Mr. Wilson was concerned about a confrontation and the animosity that surrounded him, and believed that he was not in the best interest of Tembec's refusal to pay severance to Nadeau.
(d) Even if the conduct of Mr. Wilson proved dishonest and insubordinate, the imitation of the signature was an isolated act, and did not reveal a character so flawed that it would make Mr. Wilson untrustworthy. Misconduct was not fraudulent in nature deeply, and was therefore compatible with the maintenance of an employer-employee Tembec. Ultimately the greatest obstacle to this relationship was a clash of personalities and communication problems between Mr. Wilson and Mr. Bastien.
Provision:
6. For the foregoing reasons, we dismiss the appeal.
7. We order that the appellant pay the respondent 20,000.00 US dollars for the costs of the appeal.
Wednesday, July 14, 2010
Decision No. 701 09, April 29, 2010, WSIAT, Highlights of Noteworthy Decisions
Decision No. 701 09
- Employer (job placement)
The worker was placed at a library through a federal government agency employment creation program. The worker was injured while working at the library, near the end of the one-year placement. The Board charged the costs of the claim to the library. The library appealed, claiming that the federal government agency should be the employer of record.
The worker had been employed by the library, pursuant to the federal placement, for almost one year, when the accident occurred. After the accident, the library hired the worker on a short-term basis to compete the project on which he had been working.
As a general principle, an employer who hires a worker is responsible for WSIB costs. It would only be on an exceptional basis, either through applicable Board policy or a clearly understood lawful agreement that an entity other than the employer would be responsible for WSIB cost. The agreement between the library and the federal agency in this case makes no reference to WSIB costs. It does, however, identify the employer as the library. Thus, there were no exceptional circumstances in this case.
The library is the accident employer, and is responsible for WSIB costs of the claim. The appeal was dismissed.
Decision No. 107 10, May 6, 2010, WSIAT, Highlights of Noteworthy Decisions
Decision No. 107 10
· Independent operator (truck driver)
· Jurisdiction, Tribunal (right to sue) (statutory accident benefits)
· Right to sue (statutory accident benefits)
· Worker (test)
The driver of a truck was injured in a motor vehicle accident in March 2008. He received statutory accident benefits from the vehicle’s insurer. He did not claim workplace insurance benefits and he did not commence an action. The insurer applied under s. 31 of the WSIA to determine whether the driver’s right of action was taken away and whether the driver was entitled to claim workplace insurance benefits.
The relationship between the driver and transport companies was intricate. On the evidence, the majority of factors point to an employment relationship. The Vice-Chair concluded that the driver was a worker, notwithstanding efforts to describe the driver as an owner-operator.
There has been some divergence in Tribunal decisions whether the Tribunal’s jurisdiction in this type of application is derived from s. 31(1)(a) or (c) of the WSIA. Decision No. 1362/06I found that there was jurisdiction even in cases where a SABs claimant had not commenced an action. That decision found that the word “plaintiff” in s. 31(1)(c) included a claimant for statutory accident benefits. Decision No. 14/06 took a different approach, finding that the applicable provision in such circumstances is s. 30(1)(a) as to whether the right of action is taken away, because that provision does not refer to a plaintiff.
The Vice-Chair preferred the approach in Decision No. 1362/06I, since it did not depend on the right to commence an action as the basis for jurisdiction to address the issue. Although it may be premature to conclude that there is a consensus emerging from recent Tribunal decisions, the Vice-Chair applied the approach in Decision No. 1362/06I and found that “plaintiff” in s. 31(1)(c) including an claimant for statutory accident benefits.
The Vice-Chair concluded that the driver was entitled to claim workplace insurance benefits under the WSIA.
· Independent operator (truck driver)
· Jurisdiction, Tribunal (right to sue) (statutory accident benefits)
· Right to sue (statutory accident benefits)
· Worker (test)
The driver of a truck was injured in a motor vehicle accident in March 2008. He received statutory accident benefits from the vehicle’s insurer. He did not claim workplace insurance benefits and he did not commence an action. The insurer applied under s. 31 of the WSIA to determine whether the driver’s right of action was taken away and whether the driver was entitled to claim workplace insurance benefits.
The relationship between the driver and transport companies was intricate. On the evidence, the majority of factors point to an employment relationship. The Vice-Chair concluded that the driver was a worker, notwithstanding efforts to describe the driver as an owner-operator.
There has been some divergence in Tribunal decisions whether the Tribunal’s jurisdiction in this type of application is derived from s. 31(1)(a) or (c) of the WSIA. Decision No. 1362/06I found that there was jurisdiction even in cases where a SABs claimant had not commenced an action. That decision found that the word “plaintiff” in s. 31(1)(c) included a claimant for statutory accident benefits. Decision No. 14/06 took a different approach, finding that the applicable provision in such circumstances is s. 30(1)(a) as to whether the right of action is taken away, because that provision does not refer to a plaintiff.
The Vice-Chair preferred the approach in Decision No. 1362/06I, since it did not depend on the right to commence an action as the basis for jurisdiction to address the issue. Although it may be premature to conclude that there is a consensus emerging from recent Tribunal decisions, the Vice-Chair applied the approach in Decision No. 1362/06I and found that “plaintiff” in s. 31(1)(c) including an claimant for statutory accident benefits.
The Vice-Chair concluded that the driver was entitled to claim workplace insurance benefits under the WSIA.
Decision No. 991 09, May 6, 2010, WSIAT, Highlights of Noteworthy Decisions
Decision No. 991 09
A. Baker - M. Trudeau - M. Ferrari
· Expenses (child care)
· Human rights (discrimination) (family status)
· Earnings basis (child care)
The worker suffered a compensable injury in May 2006, and received LOE benefits until October 2006. The worker appealed a decision of the Appeals Resolution Officer denying payment of child care expenses. The worker also claimed that the denial of child care expenses was a breach of the Ontario Human Rights Code.
As an Ontario Works client, the worker selected a licensed day care, then applied for a subsidy through the Day Nurseries Act. Entitlement to the subsidy was tied to the worker’s employment status. The subsidy was cancelled after the worker’s injury. Neither the WSIA nor Board policy explicitly provides for child care expenses as a benefit. The worker argued that the child care expenses were a benefit that should be included as part of her income.
The Panel found that the worker was claiming benefits that simply do not exist, and have not been contemplated, under the WSIA. Child care expenses did not come within the definition of earnings in s. 2(1) of the WSIA. A broad interpretation of earnings to include other forms of non-employment-related compensation not specifically provided for under the WSIA would be outside of what was contemplated by the WSIA and outside of the historic trade-off that is embodied in the compensation scheme.
In order to find that a benefit has been denied in a discriminatory manner in violation of the Human Rights Code, there must first be an obligation, in this case a benefit owing to the worker. There has been a deliberate exclusion of child care benefits from the WSIA, with no language that could be described as potentially giving rise to such benefits. There was no reasonable interpretation that would allow granting of child care benefits under the WSIA. It follows that denial of such benefits is not a violation of the Human Rights Code.
The appeal was dismissed.
A. Baker - M. Trudeau - M. Ferrari
· Expenses (child care)
· Human rights (discrimination) (family status)
· Earnings basis (child care)
The worker suffered a compensable injury in May 2006, and received LOE benefits until October 2006. The worker appealed a decision of the Appeals Resolution Officer denying payment of child care expenses. The worker also claimed that the denial of child care expenses was a breach of the Ontario Human Rights Code.
As an Ontario Works client, the worker selected a licensed day care, then applied for a subsidy through the Day Nurseries Act. Entitlement to the subsidy was tied to the worker’s employment status. The subsidy was cancelled after the worker’s injury. Neither the WSIA nor Board policy explicitly provides for child care expenses as a benefit. The worker argued that the child care expenses were a benefit that should be included as part of her income.
The Panel found that the worker was claiming benefits that simply do not exist, and have not been contemplated, under the WSIA. Child care expenses did not come within the definition of earnings in s. 2(1) of the WSIA. A broad interpretation of earnings to include other forms of non-employment-related compensation not specifically provided for under the WSIA would be outside of what was contemplated by the WSIA and outside of the historic trade-off that is embodied in the compensation scheme.
In order to find that a benefit has been denied in a discriminatory manner in violation of the Human Rights Code, there must first be an obligation, in this case a benefit owing to the worker. There has been a deliberate exclusion of child care benefits from the WSIA, with no language that could be described as potentially giving rise to such benefits. There was no reasonable interpretation that would allow granting of child care benefits under the WSIA. It follows that denial of such benefits is not a violation of the Human Rights Code.
The appeal was dismissed.
Tuesday, July 13, 2010
Decision Number: 20100058, 2010 CanLII 31581 (ON W.S.I.B.)
Appeals Resolution Officer Decision
OBJECTION BY: Worker
WORKER: Participating
EMPLOYER: Participating
REPRESENTATIVES: Worker, Employer
HEARING DATE: April 16, 2010
Issue:
The worker is seeking additional entitlement for a hernia. This was denied in the Eligibility Adjudicator's decision letter of May 19, 2009.
How the Issue Arose:
On January 10, 2008 this now 49 year old worker fell a short distance, was caught by his safety harness, but hit his back on a skid. Entitlement was allowed for a mid back strain, there was no medical indication for lost time, and the employer was able to provide regular work not involving heights. Further medical investigations due to a hip pain indicated mild degenerative changes bilaterally; osteoarthritis is greater in the right hip, mild sclerosis involved the acetabulum bilaterally. A CT scan of the head was normal compared to a prior scan in May of 2006. In September 2006 the worker was diagnosed with a hernia which he related to the mid back accident. Entitlement was denied. This was surgicallt corrected in December 2008. The worker had surgery on April 8, 2009 for an unspecified condition.
Assessment of the Evidence:
The employer representative was surprised that the doctor related the hernia to the January work incident. This was not diagnosed until 10 months after the work incident and there is no medical continuity about a hernia. The doctor has not accurately documented any history of hernia or its development, nor was there any mention of an accident in September. There was notification of a new work injury and there were no medical forms completed documenting any incident. There is no contemporaneous medical data to support a new accident or any aggravating incident.
I am unable to substantiate that any new work injury or aggravating incident occurred in September 2008. The worker is a poor historian and was unable to provide any accurate or convincing evidence of an event that supposedly happened in September 2008. There is no report of a new injury or a recurrence of a prior injury and the employer has no records of a new work event. There is no claim file data to support such a view.
It is also unlikely that the worker experienced a hernia on the day of accident on January 10, 2008. On that day the worker injured his mid back and he did not require time off work or medical precautions. It was a minor incident without permanent impairment. This view is supported by the objective medical observations of the rheumatologist, dated October 24, 2009.
This specialist states that the worker discovered a small soft lump over the right inguinal area at the beginning of October 2008. The hernia did not arise from the workplace incident in January, it developed in the autumn of 2008 several months later.
It was noted that this worker had a prior, non-compensable hernia in the same location
a number of years ago. Also, it is curious to note that the worker had a CT scan of his head two years prior to the work accident. There is insufficient data to medically connect the hernia to the work accident.
Conclusion:
The worker's objection is denied, there is no entitlement for a hernia.
OBJECTION BY: Worker
WORKER: Participating
EMPLOYER: Participating
REPRESENTATIVES: Worker, Employer
HEARING DATE: April 16, 2010
Issue:
The worker is seeking additional entitlement for a hernia. This was denied in the Eligibility Adjudicator's decision letter of May 19, 2009.
How the Issue Arose:
On January 10, 2008 this now 49 year old worker fell a short distance, was caught by his safety harness, but hit his back on a skid. Entitlement was allowed for a mid back strain, there was no medical indication for lost time, and the employer was able to provide regular work not involving heights. Further medical investigations due to a hip pain indicated mild degenerative changes bilaterally; osteoarthritis is greater in the right hip, mild sclerosis involved the acetabulum bilaterally. A CT scan of the head was normal compared to a prior scan in May of 2006. In September 2006 the worker was diagnosed with a hernia which he related to the mid back accident. Entitlement was denied. This was surgicallt corrected in December 2008. The worker had surgery on April 8, 2009 for an unspecified condition.
Assessment of the Evidence:
The employer representative was surprised that the doctor related the hernia to the January work incident. This was not diagnosed until 10 months after the work incident and there is no medical continuity about a hernia. The doctor has not accurately documented any history of hernia or its development, nor was there any mention of an accident in September. There was notification of a new work injury and there were no medical forms completed documenting any incident. There is no contemporaneous medical data to support a new accident or any aggravating incident.
I am unable to substantiate that any new work injury or aggravating incident occurred in September 2008. The worker is a poor historian and was unable to provide any accurate or convincing evidence of an event that supposedly happened in September 2008. There is no report of a new injury or a recurrence of a prior injury and the employer has no records of a new work event. There is no claim file data to support such a view.
It is also unlikely that the worker experienced a hernia on the day of accident on January 10, 2008. On that day the worker injured his mid back and he did not require time off work or medical precautions. It was a minor incident without permanent impairment. This view is supported by the objective medical observations of the rheumatologist, dated October 24, 2009.
This specialist states that the worker discovered a small soft lump over the right inguinal area at the beginning of October 2008. The hernia did not arise from the workplace incident in January, it developed in the autumn of 2008 several months later.
It was noted that this worker had a prior, non-compensable hernia in the same location
a number of years ago. Also, it is curious to note that the worker had a CT scan of his head two years prior to the work accident. There is insufficient data to medically connect the hernia to the work accident.
Conclusion:
The worker's objection is denied, there is no entitlement for a hernia.
Decision Number: 20100071, 2010 CanLII 35728 (ON W.S.I.B.)
Appeals Resolution Officer Decision, No. 20100071
OBJECTION BY: Worker
WORKER: Participating
EMPLOYER: Participating
REPRESENTATIVES: Worker, Employer
Issue:
1. The employer is objecting to the allowance of initial entitlement. The claim was allowed in the decision letter of January 29, 2009 and upheld in thr review letter of June 24, 2009.
2. The worker is objecting to the discontinuation of LOE benefits after August 24, 2009. This was determined in the claims adjudicator's decision of July 3, 2009.
How the Issue Arose:
On December 2, 2008, this now 55 year old worker injured his back while lifting boxes and was diagonsed with an upper back strain. The treatment consisted of rest, analgesics, and muscle relaxants. X-rays of the thoracic spine were normal while an x-ray of the right shoulder showed osteoarthritic changes of the AC joint. Return to work restrictions included avoiding lifting floor to waist, waist to shoulder, and above shoulder lifts. Prolonged positioning should also be avoided. Due to the worker's claim of being unable to work, he was referred to a Regional Evaluation Centre (REC) on June 25, 2009. The worker was diagnosed with resolving thoracic strain, he had partially recovered, and a full recovery was expected in 8-10 weeks with continuing threapy. Entitlement to therapy and continuing benefits stopped on August 24, 2009. The employer relationship ended due to unrelated reasons. The working is claiming to be totally disabled and unable to perform any work.
Assesment of the Evidence:
The accident history as described by the worker remains consistent with the contemporaneous claim file and medical documentation and have no reason to doubt that an injury occured on December 2, 2008. The worker was involved in both heavy and repetitive lifting, this task is normally performed by more than one person. The worker performed this work on his own, was injured, sought medical attention, and reported a workplace injury. The claim remains allowed.
The findings of the REC assessment remain valid and there is no objective basis to allow any continuing entitlement beyond August 24, 2009. There are no significant findings to account for the worker's purported pain levels or to support his claim to be unable to work.
There are a number of complicating factors of a non-compensable nature that may account for the worker's continuing pain. It is noted that the worker had a multi-level lumbar decompression almost 3 decades ago and a history of right shoulder pain. The source of his pain no longer seems to be in relation to the upper back strain that be experience on Dec 2, 2008.
Conclusion:
1. The employer’s objection is denied. The claim remains allowed for an upper back strain on December 2, 2008.
2. The worker’s objection is denied. The claim was appropriately finalled on August 24, 2009. There is no additional entitlement to LOE benefits.
OBJECTION BY: Worker
WORKER: Participating
EMPLOYER: Participating
REPRESENTATIVES: Worker, Employer
Issue:
1. The employer is objecting to the allowance of initial entitlement. The claim was allowed in the decision letter of January 29, 2009 and upheld in thr review letter of June 24, 2009.
2. The worker is objecting to the discontinuation of LOE benefits after August 24, 2009. This was determined in the claims adjudicator's decision of July 3, 2009.
How the Issue Arose:
On December 2, 2008, this now 55 year old worker injured his back while lifting boxes and was diagonsed with an upper back strain. The treatment consisted of rest, analgesics, and muscle relaxants. X-rays of the thoracic spine were normal while an x-ray of the right shoulder showed osteoarthritic changes of the AC joint. Return to work restrictions included avoiding lifting floor to waist, waist to shoulder, and above shoulder lifts. Prolonged positioning should also be avoided. Due to the worker's claim of being unable to work, he was referred to a Regional Evaluation Centre (REC) on June 25, 2009. The worker was diagnosed with resolving thoracic strain, he had partially recovered, and a full recovery was expected in 8-10 weeks with continuing threapy. Entitlement to therapy and continuing benefits stopped on August 24, 2009. The employer relationship ended due to unrelated reasons. The working is claiming to be totally disabled and unable to perform any work.
Assesment of the Evidence:
The accident history as described by the worker remains consistent with the contemporaneous claim file and medical documentation and have no reason to doubt that an injury occured on December 2, 2008. The worker was involved in both heavy and repetitive lifting, this task is normally performed by more than one person. The worker performed this work on his own, was injured, sought medical attention, and reported a workplace injury. The claim remains allowed.
The findings of the REC assessment remain valid and there is no objective basis to allow any continuing entitlement beyond August 24, 2009. There are no significant findings to account for the worker's purported pain levels or to support his claim to be unable to work.
There are a number of complicating factors of a non-compensable nature that may account for the worker's continuing pain. It is noted that the worker had a multi-level lumbar decompression almost 3 decades ago and a history of right shoulder pain. The source of his pain no longer seems to be in relation to the upper back strain that be experience on Dec 2, 2008.
Conclusion:
1. The employer’s objection is denied. The claim remains allowed for an upper back strain on December 2, 2008.
2. The worker’s objection is denied. The claim was appropriately finalled on August 24, 2009. There is no additional entitlement to LOE benefits.
Decision Number: 20100073, 2010 CanLII 35604 (ON W.S.I.B.)
Appeals Resolution Officer Decision, No. 2010073
OBJECTION BY: Worker
EMPLOYER: Not Participating
REPRESENTATIVES: Worker
Issue:
The worker objects to the denial of entitlement to Loss of Earnings (LOE) benefits between March and June, 2009 for medical treatment/physiotherapy.
How the Issue Arises:
On January 23, 2001, the worker, who was employed as a Mechanical Maintainer, injured his low back when he bent over and moved a soot blower. He was dianosed with a lumbar strain. Entitlement was granted and benefits were paid in accordance with the medical evidence received. Initially there was no loss of time however the worker laid off on June 28, 2001 as a result of ongoing problems and this recurrence was accepted. Recurrences were further accepted from June 20 to July 2, 2006 and July 11 to 17, 2006, as well as lost time in November and December of 2006. On October 11, 2007 a WSIB Chiropractic Consultant reviewed his file but it was unclear whether or not this was a care for further entitlement. An Independent Medical Examination was done in November 2007 and the worker was referred for a Non-Economic Loss (NEL) assessment. The worker subsequently had further recurrences from Feb, 2007 to May, 2008. He claimed further lost time to attend medical treatment/physiotherapy for various days between March 26, 2009 and June 12, 2009. The workers request for reimbursement for lost time to attend medical appointments between March and June, 2009 was denied. In the meantime, the worker was granted a 14% NEL award in June, 2009.
Assessment of the Evidence:
What is important to note is that this case was at the 72 month final review stage as of Janurary 23, 2007. LOE benefits may be extended beyond the 72 month lock-in date if the worker is either co-operating in a Labour Market Re-entry (LMR) plan or there is a significant deterioration in the worker's condition subsequent to the 72 month mark. The worker was not involved in an LMR program as he remained employed by the employer. Thus benefits cannot be considered on the first basis.
When reviewing the policy for payment of LOE benefits when there is a significant deterioration, in the case of the worker, he was considered to have reached a point of Maximum Medical Rehabilitation in November, 2007. Medical documentation on file both before and after March, 2009 does not confirm that his condition was significantly worse in either March, April, May or June.
Conclusion:
The worker's objection is denied.
OBJECTION BY: Worker
EMPLOYER: Not Participating
REPRESENTATIVES: Worker
Issue:
The worker objects to the denial of entitlement to Loss of Earnings (LOE) benefits between March and June, 2009 for medical treatment/physiotherapy.
How the Issue Arises:
On January 23, 2001, the worker, who was employed as a Mechanical Maintainer, injured his low back when he bent over and moved a soot blower. He was dianosed with a lumbar strain. Entitlement was granted and benefits were paid in accordance with the medical evidence received. Initially there was no loss of time however the worker laid off on June 28, 2001 as a result of ongoing problems and this recurrence was accepted. Recurrences were further accepted from June 20 to July 2, 2006 and July 11 to 17, 2006, as well as lost time in November and December of 2006. On October 11, 2007 a WSIB Chiropractic Consultant reviewed his file but it was unclear whether or not this was a care for further entitlement. An Independent Medical Examination was done in November 2007 and the worker was referred for a Non-Economic Loss (NEL) assessment. The worker subsequently had further recurrences from Feb, 2007 to May, 2008. He claimed further lost time to attend medical treatment/physiotherapy for various days between March 26, 2009 and June 12, 2009. The workers request for reimbursement for lost time to attend medical appointments between March and June, 2009 was denied. In the meantime, the worker was granted a 14% NEL award in June, 2009.
Assessment of the Evidence:
What is important to note is that this case was at the 72 month final review stage as of Janurary 23, 2007. LOE benefits may be extended beyond the 72 month lock-in date if the worker is either co-operating in a Labour Market Re-entry (LMR) plan or there is a significant deterioration in the worker's condition subsequent to the 72 month mark. The worker was not involved in an LMR program as he remained employed by the employer. Thus benefits cannot be considered on the first basis.
When reviewing the policy for payment of LOE benefits when there is a significant deterioration, in the case of the worker, he was considered to have reached a point of Maximum Medical Rehabilitation in November, 2007. Medical documentation on file both before and after March, 2009 does not confirm that his condition was significantly worse in either March, April, May or June.
Conclusion:
The worker's objection is denied.
Monday, July 12, 2010
Decision Number: 20100072, 2010 CanLII 35733 (ON W.S.I.B.)
Appeals Resolution Officer Decision
OBJECTION BY: Worker
EMPLOYER: Not Participating
REPRESENTATIVES: Worker
Issue:
The worker objects to the denial of entitlement for a recurrence of May 7, 2009.
How the Issue Arises:
On April 18, 2003, the worker had an onset of low back pain while lifting roll shafts and diagnosed with an acute back strain. Entitlement was granted and benefits were paid in accordance with the medical evidence received. He returned to work May 8, 2003.
On April 27, 2009 a WSIB nurse received a message requesting the the file be reviewed to determine whether or not the worker would have coverage for an MRI. The worker followed up on May 7, 2009 indicating he had been laid off from work and attributed this to the injuries sustained on April 18, 2003. The recurrence was denied in a latter of August 11, 2009, and the worker objected the adverse decision and his file was referred to the Appeals Branch.
Assessment of the Evidence:
Confirm the denial of ongoing entitlement subsequent to a recurrence of May 7, 2009. The reasons are as follows:
OBJECTION BY: Worker
EMPLOYER: Not Participating
REPRESENTATIVES: Worker
Issue:
The worker objects to the denial of entitlement for a recurrence of May 7, 2009.
How the Issue Arises:
On April 18, 2003, the worker had an onset of low back pain while lifting roll shafts and diagnosed with an acute back strain. Entitlement was granted and benefits were paid in accordance with the medical evidence received. He returned to work May 8, 2003.
On April 27, 2009 a WSIB nurse received a message requesting the the file be reviewed to determine whether or not the worker would have coverage for an MRI. The worker followed up on May 7, 2009 indicating he had been laid off from work and attributed this to the injuries sustained on April 18, 2003. The recurrence was denied in a latter of August 11, 2009, and the worker objected the adverse decision and his file was referred to the Appeals Branch.
Assessment of the Evidence:
Confirm the denial of ongoing entitlement subsequent to a recurrence of May 7, 2009. The reasons are as follows:
- The injury sustained in 2003 was not considered major, and complete recovery was expected within tow to four weeks.
- An x-ray taken on April 24, 2003 proved to be normal.
- The worker was able to return to regular duties on May 8, 2003.
- He sought medical treatment in November and December of 2003, and both time the back was not mentioned, suggesting that it was not problematic for the worker at that time and confirming that the incident of April 18, 2003 was not a significant contributing factor to the worker's subsequent problems.
- An March 21, 2005 x-ray showed disc space narrowing at the L4-5 level that was not present in 2003, and as such the connection of the worker's problem to the April 18, 2003 injury is unlikely.
- An April 19, 2005 doctor's report noted the worker's significant problem was calf muscle pain and there were trigger points within the gastrocnemius and more likely soleus muscle on the right. At the time of the accident, the worker reported radiation of pain in the left area greater than the right and as such, once again, it is difficult to make a connection between his ongoing symptoms and the initial injuries.
Conclusion:
The worker's objection is denied.
Decision Number: 20100067, 2010 CanLII 35735 (ON W.S.I.B.)
Appeals Resolution Officer Decision
OBJECTION BY: Worker
EMPLOYER: Not Participating
REPRESENTATIVES: Worker
Issue:
The worker objects to the payment of partial Loss of Earning (LOE) benefits from October 22, 2009 based on 40 hours per week instead of 20 hours per week.
How The Issue Arises:
On September 21, 2006, the worker lifted a countertop and had an onset of seve stabbing pain in his hip, and down his leg. He was diagnosed with a disc herniation on the L5-S1 on the left with radiculopathy. Entitlement was granted and benefits were paid in accordance with the medical evidence received. He received conservative medical management but was left with a permanent impairment and thus unable to return to his pre-accident job as a labourer.
Following an Assesment, a Suitable Employment or Business (SEB) of Customer Service was deemed to appropriate. The work became involved in upgrading, computer training, and GED training, and following a placement, was offered a job at Color Your World to commence effective October 22, 2009. He commenced working 20 hours per week as he indictated he could not tolerate full-time employment. As the worker found a suitable job, LMR services were closed and the worker's partial LOE benefits were adjusted as of October 22, 2009 based on a full-time job of 40 hours per week. The worker objected to the adverse decision claiming that he remains only capable of part-time work.
Assessment of the Evidence:
The work is found to be capable of more than 20 hours per week, but not capable of full time employment. The reasons are as follows:
I am not granting the worker’s request to pay partial LOE benefits based on 20 hours per week, I am directing that partial LOE benefits from October 22, 2009 be based on working 25 hours per week, as I am not satisfied he is able to maintain full-time employment
OBJECTION BY: Worker
EMPLOYER: Not Participating
REPRESENTATIVES: Worker
Issue:
The worker objects to the payment of partial Loss of Earning (LOE) benefits from October 22, 2009 based on 40 hours per week instead of 20 hours per week.
How The Issue Arises:
On September 21, 2006, the worker lifted a countertop and had an onset of seve stabbing pain in his hip, and down his leg. He was diagnosed with a disc herniation on the L5-S1 on the left with radiculopathy. Entitlement was granted and benefits were paid in accordance with the medical evidence received. He received conservative medical management but was left with a permanent impairment and thus unable to return to his pre-accident job as a labourer.
Following an Assesment, a Suitable Employment or Business (SEB) of Customer Service was deemed to appropriate. The work became involved in upgrading, computer training, and GED training, and following a placement, was offered a job at Color Your World to commence effective October 22, 2009. He commenced working 20 hours per week as he indictated he could not tolerate full-time employment. As the worker found a suitable job, LMR services were closed and the worker's partial LOE benefits were adjusted as of October 22, 2009 based on a full-time job of 40 hours per week. The worker objected to the adverse decision claiming that he remains only capable of part-time work.
Assessment of the Evidence:
The work is found to be capable of more than 20 hours per week, but not capable of full time employment. The reasons are as follows:
- Considering the worker on a holistic basis, in total he has a 50% combined award and this is a rather significant award that must be taken into consideration.
- Dr .Mailis noted that the worker’s left leg pain is worse than the low back pain and is constant. In his job in customer service, the worker would be required to stand quite a bit over a 40 hour work week and given the leg pain, this would be difficult for the worker on a full-time basis.
- The doctor also noted the worker was unable to sustain a school program due to pain, however the worker did appear to attempt to co-operate in him LMR program.
- A Functional Restoration Program was recommended to help the worker manage his pain, but this was not done.
- The worker was able to tolerate and complete his LMR program. In terms of schooling, he lost quite a bit of time due to the amount of sitting. A job that is more flexible and suitable to his restrictions would not be unreasonable.
- A May 13, 2009 LMR report noted that the worker had concerns over working on a full-time basis, but committed to completing 30 hours per week with his sponsor. The sponsor noted flexibility with respect to hours and the willingness to accommodate the workers restrictions.
- By September 19, 2009 it was reported that the worker was working 25 hours per week. While he attempted to increase his hours, he was unable to reach the 30 hours he had expected to in May, 2009.
I am not granting the worker’s request to pay partial LOE benefits based on 20 hours per week, I am directing that partial LOE benefits from October 22, 2009 be based on working 25 hours per week, as I am not satisfied he is able to maintain full-time employment
Law Times, Vol.21, No. 21, July 21, 2010
Motor Vehicles: Impaired Driving and "Over 80" (Sec. Case Law, p. 19)
R. v. Narinesingh (2010), Ont. C.J., West J.
Accused charged with impaired driving and driving "over 80". Due to admissions by counsel for accused the only issue in case was whether accused was in care or control of his motor vehicle at the time the police officers arrived on the scene. Officers found the accused standing outside of his vehicle while it was being loaded on tow truck. The accused had hit the curb, slashed his passenger tires, and called CAA. The accused admitted to having a couple of drinks. Police officer observed a faint odour of alcohol, administered a ASD test, the accused failed and was arrested.
Accused was acquitted on both charges. As accused was not in drivers seat when police arrived the Crown had to adduce evidence of actual care and control. Court accepted accused assertion that he did not intend on driving and that he called CAA to tow his car home. There was no risk of the accused putting car in motion or doing anything else that would pose risk of danger to the public.
R. v. Narinesingh (2010), Ont. C.J., West J.
Accused charged with impaired driving and driving "over 80". Due to admissions by counsel for accused the only issue in case was whether accused was in care or control of his motor vehicle at the time the police officers arrived on the scene. Officers found the accused standing outside of his vehicle while it was being loaded on tow truck. The accused had hit the curb, slashed his passenger tires, and called CAA. The accused admitted to having a couple of drinks. Police officer observed a faint odour of alcohol, administered a ASD test, the accused failed and was arrested.
Accused was acquitted on both charges. As accused was not in drivers seat when police arrived the Crown had to adduce evidence of actual care and control. Court accepted accused assertion that he did not intend on driving and that he called CAA to tow his car home. There was no risk of the accused putting car in motion or doing anything else that would pose risk of danger to the public.
The Lawyers Weekly, Vol.30, No.9 July 2, 2010
Civil Procedure
Richardson v. Sanayhie, (2010) O.J. No.2195, Ont. S.C.J., Belobaba J. May 26/10.
Motion to strike paragraphs of the statement of claim that alleged that defendant, as a designated driver, was required to monitor and control plaintiff's consumption of alcohol and supervise her behaviour. The parties lived together as common law spouses and the defendant agreed to be the designated drive before attending a house party. At the party the plaintiff became intoxicated and on the way home the the parties began to argue and the plaintiff jumped out of the moving vehicle suffering catastrophic injuries.
Motion Granted. Even though the parties lived together, it did not mean that the defendant as designated driver, had a duty to monitor and curtail plaintiff's consumption of alcohol. There was no evidence that the plaintiff relied on the defendant to supervise and control her alcohol intake whenever they went out. There was insufficient proximity between the parties on the facts as pleaded. Further, the allegations imposing supervisory and control duties on defendant simply because he was the designated driver did not disclose a reasonable cause of action.
Insurance (Motor Vehicle)
Petrasso v. State Farm Insurance Co., (2010) O.J. No. 2281, Ont. S.C.J., Allen J., May 26/10.
Motion by defendant insurer for summary judgement dismissing plaintiff''s action. Plaintiff was injured in a motor vehical accident. The plaintiff settled her claim with the other driver far below the limit and then commenced an action to recover under her excess insurance policy with defendant on basis the at-fault driver lacked sufficient coverage to respond to her loss. Defendant argued the plaintiff did not exhaust that policy limit and was thus not entitled to claim excess coverage.
Motion Dismissed. Plaintiff settlement at less than the policy limit did not preclude the claim against defendant. Plaintiff's thinking or intentions during the settlement were not entirely clear. Plaintiff's settlement should not operate to redefine the tortfeasor as not being adequately insured and permit defendant to avoid an excess claim for that reason.
Richardson v. Sanayhie, (2010) O.J. No.2195, Ont. S.C.J., Belobaba J. May 26/10.
Motion to strike paragraphs of the statement of claim that alleged that defendant, as a designated driver, was required to monitor and control plaintiff's consumption of alcohol and supervise her behaviour. The parties lived together as common law spouses and the defendant agreed to be the designated drive before attending a house party. At the party the plaintiff became intoxicated and on the way home the the parties began to argue and the plaintiff jumped out of the moving vehicle suffering catastrophic injuries.
Motion Granted. Even though the parties lived together, it did not mean that the defendant as designated driver, had a duty to monitor and curtail plaintiff's consumption of alcohol. There was no evidence that the plaintiff relied on the defendant to supervise and control her alcohol intake whenever they went out. There was insufficient proximity between the parties on the facts as pleaded. Further, the allegations imposing supervisory and control duties on defendant simply because he was the designated driver did not disclose a reasonable cause of action.
Insurance (Motor Vehicle)
Petrasso v. State Farm Insurance Co., (2010) O.J. No. 2281, Ont. S.C.J., Allen J., May 26/10.
Motion by defendant insurer for summary judgement dismissing plaintiff''s action. Plaintiff was injured in a motor vehical accident. The plaintiff settled her claim with the other driver far below the limit and then commenced an action to recover under her excess insurance policy with defendant on basis the at-fault driver lacked sufficient coverage to respond to her loss. Defendant argued the plaintiff did not exhaust that policy limit and was thus not entitled to claim excess coverage.
Motion Dismissed. Plaintiff settlement at less than the policy limit did not preclude the claim against defendant. Plaintiff's thinking or intentions during the settlement were not entirely clear. Plaintiff's settlement should not operate to redefine the tortfeasor as not being adequately insured and permit defendant to avoid an excess claim for that reason.
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