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.

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.

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.

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.

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.

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:

• 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:

• 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.

Conslusion:
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.

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.