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					                      Decision Summary
                             2011

Week 33

Decision Search Results
                            Displaying 1 to 30 of 30 Summaries


Decision No. 946 11              10-Jun-2011            T. Silipo - B. Davis - A. Signoroni

 Loss of earnings {LOE} (level of benefits)
 Permanent impairment {NEL} (degree of impairment) (back)

The worker suffered a low back injury, for which the Board granted a 19% NEL award, later
increased to 35%. In Decision No. 1046/06, the Tribunal found that the worker was entitled
to full LOE benefits from October 2003 until the Board restored LOE benefits in May 2005
and began an assessment for a second LMR program.

In this decision, the Panel confirmed the 35% NEL award and the Board's decision to grant
only partial LOE benefits after completion of the LMR program in November 2006. The
main barrier to the worker's employability at that time was the labour market.
                                                           View Full Decision Text 7 Page(s)

      References: Act Citation
                   WSIA

                  Other Case Reference
                   [w3311s]
                   CROSS-REFERENCE: Decision No. 1046/06

 Neutral Citation: 2011 ONWSIAT 1465

Decision No. 972 11              10-Jun-2011            S. Shime - V. Phillips - M. Ferrari

 Loss of earnings {LOE} (lay-off)
 Board Directives and Guidelines (LOE) (lay-off)
An ironworker suffered a knee injury in March 2008. He returned to work but was laid off
by the employer from July 2008 to September 2008. The employer appealed a decision of
the Appeals Resolution granting the worker LOE benefits during the short-term lay-off.

When the worker returned to work after the accident, he required a high degree of
accommodation. He was also awaiting knee surgery for a suspected partial ligament tear. In
the circumstances, it was not realistic to expect the worker to find a short-term job, either as
an ironworker or in the general labour market.

The appeal was dismissed.
                                                           View Full Decision Text 11 Page(s)

      References: Act Citation
                   WSIA

                   Other Case Reference
                    [w3311s]
                    BOARD DIRECTIVES AND GUIDELINES: Operational Policy
                   Manual, Documents No. 15-06-01, 15-06-02

 Neutral Citation: 2011 ONWSIAT 1476

Decision No. 779 10 R             10-Jun-2011                                         B. Kalvin

 Reconsideration (consideration of evidence)

The employer's application to reconsider Decision No. 779/10 was denied. The Vice-Chair
considered the evidence and came to a reasonable conclusion.
                                                        View Full Decision Text 11 Page(s)

      References: Act Citation
                   WCA

                   Other Case Reference
                    [w3311s]
                    CROSS-REFERENCE: Decision No. 779/10

 Neutral Citation: 2011 ONWSIAT 1471

Decision No. 2287 10              09-Jun-2011                                          A. Baker

 Aggravation (preexisting condition)
 Loss of earnings {LOE} (review) (after seventy-two months)
The worker suffered a right knee injury in January 2000. In Decision No. 559/07, the
Tribunal found that the worker had a permanent right knee impairment, for which he was
entitled to a NEL award, and a temporary aggravation of a pre-existing left knee condition.

In this decision, the Vice-Chair found that the worker did not have entitlement for further
aggravation of the left knee condition. However, the worker was entitled to redetermination
of his LOE benefits after 72 months in accordance with s. 44(2.1)(d) of the WSIA, based on
significant deterioration of his condition resulting in a determination of permanent
impairment after expiry of the 72-month period.
                                                            View Full Decision Text 11 Page(s)

      References: Act Citation
                   WSIA 44(2.1)(d)

                   Other Case Reference
                    [w3311s]
                    BOARD DIRECTIVES AND GUIDELINES: Operational Policy
                   Manual, Documents No. 18-03-03, 18-03-06
                    CROSS-REFERENCE: Decision No. 559/07
                    TRIBUNAL DECISIONS CONSIDERED: 280/08 consd

 Neutral Citation: 2011 ONWSIAT 1452

Decision No. 342 11              09-Jun-2011                                        J. Bigras

 Earnings basis (seasonal employment)
 Earnings basis (long-term)
 Board Directives and Guidelines (earnings basis) (permanent employment) (break in
employment pattern)

The worker suffered a back injury in June 2000. The Board determined that the worker was
a non-permanent seasonal employee and that, accordingly, his long-term earnings basis
should be recalculated using earnings from the two years prior to the accident. The worker
appealed, claiming that he was a permanent full-time employee.

The worker had been working for the employer for 10 years. He was one of 12 workers
during the busy season and one of six workers who was laid off in the off-season. However,
he was considered to replace retiring employees and was, in fact, retained continually during
1999 and 2000, so that he had been working for 16 consecutive months at the time of the
accident.

The Vice-Chair concluded that the worker was a permanent worker. Board policy for
workers in permanent regular employment provides for recalculation of the long-term
earnings basis if there is a change in the employment pattern, including a change from full-
time to part-time or vice versa. Such a break in the employment pattern occurred in this case.
The worker's long-term earnings basis should thus be calculated in accordance with the
policy, using his earnings in the 12 months prior to the accident.

The appeal was allowed.
                                                         View Full Decision Text 6 Page(s)

        References: Act Citation
                     WSIA

                   Other Case Reference
                    [w3311s]
                    BOARD DIRECTIVES AND GUIDELINES: Operational Policy
                   Manual, Document No. 18-02-03

    Neutral Citation: 2011 ONWSIAT 1458

Decision No. 424 11                09-Jun-2011                                    S. Martel

 Psychotraumatic disability
 Loss of earnings {LOE} (employability)

The worker suffered a low back injury in March 1999. In Decision No. 425/08, the Tribunal
found that the worker also had entitlement for a recurrence in May 2003.

In this decision, the Vice-Chair found that the worker had entitlement for psychotraumatic
disability and ongoing LOE benefits.
                                                           View Full Decision Text 6 Page(s)

        References: Act Citation
                     WSIA

                   Other Case Reference
                    [w3311s]
                    CROSS-REFERENCE: Decision No. 425/08

    Neutral Citation: 2011 ONWSIAT 1445

Decision No. 651 11                09-Jun-2011          E. Smith - V. Phillips - A. Grande

   Corporation (piercing corporate veil)
   Executive officers
   Independent operator (computer services)
   Worker (test)
A company acted as a placement agency providing consultants for computer-related issues.
Generally, the projects with the clients of the company lasted for three to six months. The
company maintained a roster of consultants available for the work. The company appealed a
decision of the Appeals Resolution Officer finding that the consultants were workers of the
company.

The two key factors in determining worker or independent operator status were substantial
capital investment resulting in a meaningful opportunity for profit and loss and intention of
the parties.

The Panel first considered the status of the unincorporated consultants.

The intention of the parties was clearly that the consultants were not employees of the
company. While there was some capital investment on the part of the consultants, it was not
comparable to the investment of a trucker who buys a truck or a taxi driver who buys a taxi.
However, the consultants have invested extensively in their education and training to
develop their specialized skills, which could be considered comparable to professionals such
as lawyers or accountants who establish their own businesses. There was also opportunity
for profit or loss.

The Panel concluded that the unincorporated consultants were independent operators and not
workers.

The Panel next considered the status of the consultants who had incorporated companies.

Board policy states that it does not consider incorporation, on its own, as the sole factor in
determining status. The Panel was of the view that incorporation, while not the sole factor, is
relevant and important evidence of whether persons are operating their own business.

The policy appears to indicate that persons who have incorporated a company and are
operating their own business are independent operators. However, the Panel noted that
persons who have incorporated their own business are executive officers of the corporation.
Under the WSIA, the status of an independent operator and an executive officer is different.
Further, under the jurisprudence, the effect of incorporation is appropriately recognized
unless there is reason to pierce the corporate veil. To the extent that the policy appears to
apply the term "independent operator" to an executive officer of a corporation, that usage
may be technically inconsistent with the Act. However, nothing turns on the distinction in
this case.

In this case, the Panel found that the consultants who had incorporated were executive
officers of their corporations, and not workers.

The appeal was allowed.
                                                          View Full Decision Text 24 Page(s)
      References: Act Citation
                   WSIA

                   Other Case Reference
                    [w3311s]
                    BOARD DIRECTIVES AND GUIDELINES: Operational Policy
                   Manual, Document No. 12-02-01
                    CASES CONSIDERED: 671122 Ontario Ltd. v. Sagaz Industries
                   Canada Inc. (2001), 204 D.L.R. (4th) 542 (S.C.C.) consd; Joey's Delivery
                   Service v. New Brunswick (Workplace Health, Safety and Compensation
                   Commission), [2001] N.B.J. No. 222 (N.B. C.A.) consd; Wiebe Door
                   Services Ltd. v. Minister of National Revenue, [1986] 5 W.W.R. 450
                   (Fed. C.A.) consd
                    TRIBUNAL DECISIONS CONSIDERED: Decision No. 337/88
                   (1988), 10 W.C.A.T.R. 182 consd; Decisions No. 475/97 consd, 318/06
                   consd, 799/09 consd

 Neutral Citation: 2011 ONWSIAT 1450

Decision No. 795 11              09-Jun-2011             K. Cooper - B. Davis - J. Crocker

 Agreement (parties)
 Future economic loss {FEL} (review) (after sixty months) (significant temporary
deterioration)

The worker withdrew three of the four issues on appeal after the parties reached a settlement
on those issues. The Panel was satisfied that there was evidence to support the settlement
and that it was consistent with the Act and Board policy.

The remaining issue was the worker's FEL award. The worker underwent knee replacement
surgery in March 2008 as a result of his compensable knee injury. He had mostly recovered
from the surgery by August 2008. Under s. 44(2.1)(f) of the WSIA, the worker was entitled
to a full FEL award from March 2008 to August 2008 based on the significant temporary
deterioration of his condition.
                                                          View Full Decision Text 7 Page(s)

      References: Act Citation
                   WCA
                   WSIA 44(2.1)(f)

                   Other Case Reference
                    [w3311s]

 Neutral Citation: 2011 ONWSIAT 1449
Decision No. 1402 09 R            09-Jun-2011                                          S. Martel

   Injuring process
   Causation (thin skull doctrine)
   Reconsideration (error of law)
   Stress, mental (standard of proof)

The worker applied for reconsideration of Decision No. 1402/09, in which the hearing panel
denied the worker entitlement for traumatic mental stress related to her work as a registered
practical nurse.

The hearing panel found that the worker's complaints of an unequal workload distribution
and an unresponsive and cynical manager did not qualify as event traumatic events under the
Board's traumatic mental stress policy. Even under s. 13(1), the hearing panel found that
there was no objective evidence of the alleged injuring process. It was the findings under s.
13(1) that are the subject of the reconsideration request.

The hearing panel correctly found that the injuring process must be part of the worker's
employment and cannot be personal to the worker as having arisen out of the special
susceptibilities of the worker's mind and subjective perceptions. The decision did not
attribute the notion of fault, as submitted by the worker, but merely examined the facts in
order to determine whether there was an injuring process that was not personal to the
worker.

The worker relied on Decision No. 669/02. However, the Vice-Chair noted that Decision
No. 669/02 found that there was an injuring process in the workplace, whereas Decision No.
1402/09 found that the worker's problems were mainly a result of her personal inability to
obtain redress after she left the workplace.

The worker also submitted that the hearing panel failed to apply the thin skull doctrine.
However, the Vice-Chair noted that the hearing panel specifically accepted the thin skull
doctrine, but noted that, prior to application of the thin skull doctrine, there must be a finding
that an injuring process has occurred.

The application to reconsider was denied.
                                                             View Full Decision Text 8 Page(s)

        References: Act Citation
                     WSIA 13(1), 13(4), 13(5)

                    Other Case Reference
                     [w3311s]
                     TRIBUNAL DECISIONS CONSIDERED: Decision No. 2157/09I,
                    2010 ONWSIAT 2729 consd; Decisions No. 817/99 consd, 669/02 consd
 Neutral Citation: 2011 ONWSIAT 1447

Decision No. 1045 11             09-Jun-2011              E. Smith - E. Tracey - A. Grande

 Cancer (lung)
 Exposure (asbestos)
 Smoking

The worker's estate appealed a decision of the Appeals Resolution Officer denying the
worker entitlement for lung cancer.

The worker was a machinist working of the plant floor from 1968 to 1976. He worked about
20 to 30 feet away from a heat treat oven. That oven treated items that at times had the
remnants of asbestos lagging on them. The estate related the worker's lung cancer to asbestos
exposure.

There is a Board policy (Operational Policy Manual, Document No. 16-02-03) on lung
cancer in asbestos workers. Tribunal decisions have found that exposure to asbestos does not
make a worker an asbestos worker; rather, an asbestos worker is someone whose job is to
work directly with asbestos products. This is because both duration and intensity of exposure
are important in regard to lung cancer (as distinguished from mesothelioma, for which there
is no safe threshold level).

The worker in this case was not an asbestos worker within the meaning of Board policy.
Only the welders and, possibly, the furnace-men worked directly with products containing
asbestos. The worker did not work directly with asbestos.

Further, if welding did occur in proximity of the worker, it would have been an occasional
experience and unlikely to reflect an intensity or duration of exposure comparable to that of
a worker working directly with asbestos products.

The worker had a 40 pack year history of smoking. The smoking was the likely cause of the
worker's cancer.

The appeal was dismissed.
                                                         View Full Decision Text 11 Page(s)

      References: Act Citation
                   WCA

                   Other Case Reference
                    [w3311s]
                    BOARD DIRECTIVES AND GUIDELINES: Operational Policy
                   Manual, Document No. 16-02-03
                    TRIBUNAL DECISIONS CONSIDERED: Decision No. 600/97
                   (2003), 66 W.S.I.A.T.R. 1 consd; Decisions No. 1978/04 consd, 1815/05
                   consd

 Neutral Citation: 2011 ONWSIAT 1446

Decision No. 230 09 I            08-Jun-2011                N. Jugnundan - B. Wheeler - J.
                                                                                Crocker

 Time limits (appeal) (related issues)

The worker suffered a back injury in 2005. In a decision in 2007, an Appeals Resolution
Officer granted the worker entitlement for a neck injury and for fibromyalgia related to the
2005 accident, but denied some other benefits. The worker appealed that decision to the
Tribunal. The employer was advised of the appeal but did not respond.

The worker also appealed a decision of another ARO in 2009 regarding suitability of the
SEB and employability. The employer then indicated that it wanted to cross-appeal
regarding the 2007 decision to grant entitlement for fibromyalgia.

The employer's application for an extension of the time to cross-appeal the 2007 decision
was denied. There was a lack of diligence by the employer. The 2009 decision was not so
connected to the 2007 decision that failure to grant the extension would be prejudicial to the
employer's participation in the hearing of the appeal of the 2009 decision.
                                                            View Full Decision Text 9 Page(s)

      References: Act Citation
                   WSIA

                   Other Case Reference
                    [w3311s]

 Neutral Citation: 2011 ONWSIAT 1417

Decision No. 242 11              08-Jun-2011                                         S. Hodis

 Recurrences (compensable injury)
 Schedule 1 employer
 Second accident

The worker suffered a compensable injury in 2005. She was involved in another accident in
2007. The Vice-Chair found that the event in 2007 made a significant contribution to
worsening of the worker's condition. The event in 2007 was a new accident and not a
recurrence of the prior injury. However, the worker's employer at the time of the 2007
accident was not covered by the workplace insurance system. Accordingly, the 2007
accident is considered to be non-compensable and the worker is not entitled to any benefits
as a result of the 2007 accident.
                                                       View Full Decision Text 16 Page(s)

      References: Act Citation
                   WSIA

                  Other Case Reference
                   [w3311s]
                   BOARD DIRECTIVES AND GUIDELINES: Operational Policy
                  Manual, Document No. 15-03-01

 Neutral Citation: 2011 ONWSIAT 1428

Decision No. 267 11              08-Jun-2011                                 M. McKenzie

 Disablement (nature of work)
 Fracture (foot)

The worker had entitlement for stress fractures to her foot related to prolonged walking.
                                                          View Full Decision Text 15 Page(s)

      References: Act Citation
                   WSIA

                  Other Case Reference
                   [w3311s]

 Neutral Citation: 2011 ONWSIAT 1429

Decision No. 1083 08 R           08-Jun-2011                                 N. Jugnundan

 Reconsideration (consideration of evidence)

The worker's application to reconsider Decision No. 1083/08 was denied. The hearing panel
misread two FAFs but, considering all the evidence, correction of the error would not have
changed the result of the original decision.
                                                        View Full Decision Text 11 Page(s)

      References: Act Citation
                   WSIA
                   Other Case Reference
                    [w3311s]
                    CROSS-REFERENCE: Decision No. 1083/08

 Neutral Citation: 2011 ONWSIAT 1432

Decision No. 1008 11             08-Jun-2011                                   N. Jugnundan

 Permanent impairment {NEL} (degree of impairment) (knee)

The worker suffered a knee injury in 2004. In Decision No. 817/07, the Tribunal found that
the worker had ongoing entitlement. The Board granted the worker a 5% NEL award for
permanent impairment.

In this decision, the Vice-Chair confirmed the NEL award as granted by the Board.
                                                        View Full Decision Text 7 Page(s)

      References: Act Citation
                   WSIA

                   Other Case Reference
                    [w3311s]
                    CROSS-REFERENCE: Decisions No. 817/07E, 817/07

 Neutral Citation: 2011 ONWSIAT 1431

Decision No. 1060 11             08-Jun-2011                                       S. Darvish

 Arising out of employment (common activity)

The worker, a teacher, appealed a decision of the Appeals Resolution Officer denying
entitlement for a foot injury that the worker claimed she suffered while walking with the
children in her class.

The Vice-Chair found that the worker was simply walking, with no clear evidence of a twist
or other unusual exertion of her foot when she first felt symptoms of pain. There was
insufficient evidence that the act of walking significantly contributed to the fracture in her
foot. There was an absence of a discrete work-related injuring process.

The appeal was dismissed.
                                                          View Full Decision Text 12 Page(s)

      References: Act Citation
                     WSIA

                    Other Case Reference
                     [w3311s]
                     TRIBUNAL DECISIONS CONSIDERED: Decision No. 1672/04
                    (2009), 88 W.S.I.A.T.R. (online) consd; Decisions No. 615/02 consd,
                    1798/06 consd, 1849/06 consd, 2471/10 consd

    Neutral Citation: 2011 ONWSIAT 1430

Decision No. 897 09              08-Jun-2011                                         B. Kalvin

   In the course of employment (personal activity)
   In the course of employment (reasonably incidental activity test)
   In the course of employment (takes self out of employment) (dangerous driving)
   Right to sue (statutory accident benefits)

The worker left the employer's premises, using the employer's vehicle, to go about 500
metres to a nearby convenience store to buy a sandwich to take back to the premises. While
driving back, he drove the wrong way down a one-way street and struck a motorcycle,
killing the driver of the motorcycle and a passenger on the motorcycle. He was charged
under the Criminal Code with dangerous driving causing death, and pled guilty.

The worker was receiving statutory accident benefits. The insurer applied to determine
whether the worker was entitled to claim benefits under the WSIA.

There was nowhere on the employer's premises to get food other than from a vending
machine. The employer did not permit workers to leave the premises to purchase food
without permission.

It is difficult to reconcile all the Tribunal jurisprudence on the issue of whether a worker
injured while on a break will be found to be in the course of employment. However, the
Vice-Chair was satisfied that, generally, a worker who is injured while on an unpaid break
off the employer's premises will not be found to be in the course of employment. Even
accepting this as a general principle, it is not determinative of the issue in this case because
the worker was not on a schedule break. He left the employer's premises in order to buy food
that he intended to eat during his lunch break on the premises later on.

If a worker went to get food from a vending machine on the employer's premises, he would
have been found to be performing an activity that was reasonably incidental to employment
and would, thus, have been in the course of employment. The only difference in this case is
that the worker drove a short distance off the employer's premises in order to obtain the
food. This brief excursion occurred during a 12-hour shift, all of which was paid time. Thus,
both the time and the activity were indicative of being in the course of employment.
The fact that the outing to get food was very brief was significant. He was not gone for an
extended period of time and did not go to a remote location.

Many cases which have found workers in similar circumstances not to be in the course of
employment focus on the fact that the injury did not occur as a result of a risk that was
intrinsically related to the work process; rather, they focus on the fact that the worker was
exposed to a risk no greater than faced by the general public. However, that appears to
sidestep to some extent the principle of the notion of being reasonably incidental to
employment. A worker who is injured by slipping on a wet washroom floor is not exposed to
greater risk than any person who walks on any washroom floor but is entitled to benefits
because the activity of going to the washroom is reasonably incidental to employment.

The Vice-Chair concluded that the worker was in the course of employment when he made
the brief excursion, while on duty, to get a sandwich to bring back and eat on site. The
breach of the company rule against leaving the premises without permission was not
sufficient to take the worker out of the course of employment.

The insurer's application was granted. The worker was entitled to claim benefits under the
WSIA.
                                                        View Full Decision Text 18 Page(s)

      References: Act Citation
                   WSIA

                   Other Case Reference
                    [w3311s]
                    BOARD DIRECTIVES AND GUIDELINES: Operational Policy
                   Manual, Documents No. 15-02-02, 15-03-03, 15-03-05, 15-03-08
                    CROSS-REFERENCE: Decision No. 897/09I, 2009 ONWSIAT 2323;
                   Decision No. 897/09IR
                    TRIBUNAL DECISIONS CONSIDERED: 485 consd, 817/87 consd,
                   585/93 consd, 62/94 consd, 833/95 consd, 117/98 consd, 1416/98 consd,
                   2124/99 consd, 777/02 consd, 1403/02 consd, 2310/03 consd, 1988/04
                   consd, 1786/06 consd, 1208/08 consd, 2388/08 consd

 Neutral Citation: 2011 ONWSIAT 1441

Decision No. 2190 06 R2          08-Jun-2011                                       T. Carroll

 Reconsideration (error of fact)

In Decision No. 2190/06, the Vice-Chair granted the worker entitlement for fibromyalgia as
a result of an accident in 2001 but denied LOE benefits from 2002 to 2006. The worker
applied to reconsider Decision No. 2190/06 regarding the denial of LOE benefits.
In denying the LOE benefits, the Vice-Chair found a lack of evidence that the worker was
unable to return to work during the period in question. However, the Vice-Chair was
mistaken in noting that an application for CPP disability benefits was completed by the
worker's doctor in 2006. In fact, the application had been made in 2003. This error raised an
arguable case that there was a significant defect in the original decision.

In Decision No. 2190/06R, the hearing was adjourned so that the employer could be invited
to provide submissions on the threshold issue of whether the test for reopening Decision No.
2190/06 has been met.

In this decision, the Vice-Chair concluded that the threshold test had been met. There was
very little medical evidence for the period in question. Thus, the evidence regarding
application for CPP benefits was relevant and important. The error was a significant defect
in the original decision that, if corrected, would probably change the result.

The application to reconsider was granted.
                                                           View Full Decision Text 4 Page(s)

      References: Act Citation
                   WSIA

                   Other Case Reference
                    [w3311s]
                    CROSS-REFERENCE: Decisions No. 2190/06I, 2190/06, 2190/06R,
                   67/12

 Neutral Citation: 2011 ONWSIAT 1433

Decision No. 2435 08             08-Jun-2011                                      M. Crystal

 Consequences of injury (iatrogenic illness) (medication)
 Cirrhosis

The worker's estate appealed a decision of the Appeals Resolution Officer denying the
worker entitlement for cirrhosis of the liver.

The estate related the cirrhosis to acetaminophen (Tylenol 3), which the worker was taking
for a compensable back condition. However, the Vice-Chair accepted the opinion of a
Tribunal medical assessor the acetaminophen does not cause cirrhosis. The appeal was
dismissed.
                                                          View Full Decision Text 8 Page(s)

      References: Act Citation
                   WCA
                   Other Case Reference
                    [w3311s]
                    CROSS-REFERENCE: Decisions No. 2435/08E, 2435/08I, 2435/08R

 Neutral Citation: 2011 ONWSIAT 1437

Decision No. 396 10              07-Jun-2011            S. Clement - B. Young - K. Hoskin

 Hearing loss (traumatic)

Evidence did not support entitlement to right-sided hearing loss resulting from exposure to a
sudden loud noise, which the worker described as being analogous to a shotgun blast. The
pattern of hearing loss in the lower frequencies was not in keeping with an acoustic trauma.
Rather, evidence indicated that the worker's hearing loss was more consistent with
autoimmune disorder and reflective of Meniere's disease.
                                                          View Full Decision Text 15 Page(s)

      References: Act Citation
                   WCA

                   Other Case Reference
                    [w3311s]
                    CROSS-REFERENCE: Decision No. 396/10R

 Neutral Citation: 2011 ONWSIAT 1418

Decision No. 698 11              07-Jun-2011                  N. Jugnundan - D. Purdy - A.
                                                                                Signoroni

 Continuity (of symptoms)

In Decision No. 1903/08, the Tribunal found that the worker had entitlement for an accident
in November 2003.

In this decision, the Panel found that the worker did not have entitlement to ongoing benefits
for the accident, considering a lack of continuity and a lack of supportive medical evidence.
                                                            View Full Decision Text 8 Page(s)

      References: Act Citation
                   WSIA

                   Other Case Reference
                    [w3311s]
                    CROSS-REFERENCE: Decision No.1903/08

 Neutral Citation: 2011 ONWSIAT 1423

Decision No. 858 11              07-Jun-2011                    C. MacAdam - S. Sahay - R.
                                                                                   Lebert

 Labour market re-entry {LMR} (eligibility) (lay-off)

The worker suffered a low back injury in May 2004. The worker stopped working for the
accident employer in September 2004, after experiencing further back problems. In Decision
No. 1671/07, the Tribunal granted the worker entitlement for the recurrence in September
2004.

The worker worked for a different employer from 2005 until she was laid off for economic
reasons in 2009. In this decision, the Panel found that the worker was not entitled to LMR
services or LOE benefits in 2009. The accident employer had been offered suitable modified
work after the recurrence in 2004. She had been able to work in other employment for four
years. Her inability to work after the lay-off was not related to her compensable injury.
                                                             View Full Decision Text 7 Page(s)

      References: Act Citation
                   WSIA

                   Other Case Reference
                    [w3311s]
                    CROSS-REFERENCE: Decision No. 1671/07

 Neutral Citation: 2011 ONWSIAT 1421

Decision No. 2379 10 R           07-Jun-2011                                     V. Marafioti

 Reconsideration (consideration of issue)
 Recurrences (compensable injury)
 Second accident

The employer applied for reconsideration of Decision No. 2379/10R, in which the Vice-
Chair found that the worker had entitlement for an accident under a new claim.

In the original decision, the Vice-Chair failed to consider the issue of whether entitlement
should have been granted as a recurrence of a previous accident. This was a significant
defect in the original decision.
The application to reconsider was granted.

The Vice-Chair went on to consider the merits of the employer's appeal and concluded that
the worker had entitlement on a recurrence basis.
                                                         View Full Decision Text 5 Page(s)

      References: Act Citation
                   WSIA

                   Other Case Reference
                    [w3311s]
                    CROSS-REFERENCE: Decision No. 2379/10

 Neutral Citation: 2011 ONWSIAT 1425

Decision No. 379 11               06-Jun-2011              N. Jugnundan - M. Trudeau - F.
                                                                                 Jackson

 Presumptions (entitlement)
 Loss of earnings {LOE} (attending treatment)

The worker suffered a shoulder disablement in April 2005. The worker appealed a decision
of the Appeals Resolution Officer denying entitlement for a neck injury and denying benefits
for a number of specific days in May and June 2005.

The Panel noted that the presumption in the Act and Board policy applies to the question of
whether there was a work-related accident. However, that was not the issue in this case. The
worker suffered an accident in April 2005 resulting in a shoulder injury. There is no
presumption that all medical conditions result from that accident. The question of which
injuries were caused by the work-related accident is determined on the balance of
probabilities, and subject to the principle of the benefit of doubt.

On the balance of probabilities, the Panel found that the worker's neck condition did not
result from the compensable accident in April 2005, neither on a chance event nor a
disablement basis.

On the specific days in question, the worker was attending physiotherapy or chiropractic
treatment. The Panel was satisfied that the treatment was not just for the non-compensable
neck condition but was also for the compensable shoulder condition. However, the worker
did not need to take off the entire day for the treatment. He could have worked half days
when he attended for treatment. He was entitled to partial LOE benefits for those days.

The appeal was allowed in part.
                                                         View Full Decision Text 10 Page(s)
      References: Act Citation
                   WSIA 13(2)

                   Other Case Reference
                    [w3311s]

 Neutral Citation: 2011 ONWSIAT 1410

Decision No. 622 11              06-Jun-2011                 S. Shime - B. Davis - A. Grande

 Permanent impairment {NEL}
 Labour market re-entry {LMR} (eligibility) (lay-off)
 Labour market re-entry {LMR} (assessment)

The worker suffered a low back injury in 2007.

On the evidence, the worker was entitled to a NEL assessment for permanent impairment.

A worker is entitled to an LMR assessment is unable to continue working with the accident
employer. In this case, the employer closed down shortly after the worker returned to
modified duties. Given the worker's age, lack of transferable skills, limited education and
physical restrictions, it was unlikely that the worker would benefit from an LMR plan.
However, he was entitled to an LMR assessment for the purposes of determining LOE
entitlement.
                                                            View Full Decision Text 8 Page(s)

      References: Act Citation
                   WSIA 42

                   Other Case Reference
                    [w3311s]

 Neutral Citation: 2011 ONWSIAT 1400

Decision No. 949 11              06-Jun-2011               R. McCutcheon - M. Christie - J.
                                                                                Crocker

 Stress, mental
 Board Directives and Guidelines (stress, mental) (traumatic event)

The worker appealed a decision of the Appeals Resolution Officer denying entitlement for
traumatic mental stress.

As a general principle an Act is to interpreted as being remedial and is to be given such fair,
large and liberal interpretation as best ensures the attainment of its objectives. However, that
does not permit the Tribunal to disregard the plain meaning of the language in the WSIA and
Board policy. It is clear that the Legislature intended to provide entitlement for acute mental
stress caused by clearly identifiable traumatic events and to exclude chronic or gradual-onset
stress. Negative interactions in the workplace are not necessarily unexpected or
extraordinary. To be characterized, there usually must be an element of threatening or
violent action, either implicitly or explicitly. The Panel agreed with Decisions No. 620/08
and 3022/07, which advanced the interpretation in accord with the plain meaning of the
WSIA and Board policy.

In this case, the evidence created a picture of chronic stress, overwork and lack of
managerial support. The worker's condition gradually emerged as a result of cumulative
work stresses, and was not triggered by a clearly identifiable traumatic event.

The appeal was dismissed.
                                                          View Full Decision Text 15 Page(s)

      References: Act Citation
                   WSIA 13(4), (5)

                   Other Case Reference
                    [w3311s]
                    BOARD DIRECTIVES AND GUIDELINES: Operational Policy
                   Manual, Document No. 15-03-02
                    TRIBUNAL DECISIONS CONSIDERED: Decision No. 3022/07
                   (2008), 87 W.S.I.A.T.R. (online) apld; Decision No. 141/08I, 2009
                   ONWSIAT 2648 consd; Decision No. 620/08 (2008), 85 W.S.I.A.T.R.
                   (online) apld; Decision No. 2685/01 distd

 Neutral Citation: 2011 ONWSIAT 1405

Decision No. 1010 11             06-Jun-2011                     B. Kalvin - M. Christie - M.
                                                                                     Ferrari

 Stress, mental (effect of disciplinary action)
 Board Directives and Guidelines (stress, mental) (traumatic event)

The worker appealed a decision of the Appeals Resolution Officer denying entitlement for
traumatic mental stress.

The worker filed a grievance after he was unsuccessful in his application for a job opening.
The worker made two enquiries from the human resources department as to whether there
had yet been a response to his grievance. After the second enquiry, he was called to a
meeting with the plant manager, his supervisor and his union representative. At the meeting,
the plant manager became angry and accused the worker of harassing the human resources
department.

While it was undoubtedly unsettling when the worker was yelled at by the plant manager,
the incident was not objectively traumatic and did not involve any threat to the personal
security of the worker. The Panel found that the incident was not objectively traumatic for
the purposes of Board policy.

Further, the incident involved nothing more than a reprimand by the plant manager. Even if
the plant manager had proposed to discipline the worker, the worker would not have been
entitled to benefits because there is no entitlement for employer's decisions that are part of
the employment function.

The appeal was dismissed.
                                                           View Full Decision Text 7 Page(s)

      References: Act Citation
                   WSIA 13(5)

                   Other Case Reference
                    [w3311s]
                    BOARD DIRECTIVES AND GUIDELINES: Operational Policy
                   Manual, Document No. 15-03-02
                    TRIBUNAL DECISIONS CONSIDERED: Decision No. 620/08
                   (2008), 85 W.S.I.A.T.R. (online) consd

 Neutral Citation: 2011 ONWSIAT 1409

Decision No. 1111 11             06-Jun-2011               M. Butler - B. Davis - M. Ferrari

 Chance event

A groundskeeper had entitlement for being struck by lightning. The worker suffered an
accident in the form of a chance event occasioned by a natural cause.
                                                          View Full Decision Text 7 Page(s)

      References: Act Citation
                   WSIA 2(1) "accident"

                   Other Case Reference
                    [w3311s]
                    BOARD DIRECTIVES AND GUIDELINES: Operational Policy
                   Manual, Documents No. 15-02-01, 15-02-02

 Neutral Citation: 2011 ONWSIAT 1402
Decision No. 1167 11              06-Jun-2011                                  T. Mitchinson

 Aggravation (preexisting condition) (osteoarthritis)
 Disablement (strenuous work)
 Dental hygienist

A dental hygienist appealed a decision of the Appeals Resolution Officer denying
entitlement for low back, neck and hand conditions.

Evidence did not support entitlement for the low back or neck. However, the Vice-Chair was
satisfied that the worker aggravated a pre-existing osteoarthritic condition in her hands as a
result of strenuous work, in particular scaling and sealing duties which required forceful use
of dental tools.

The appeal was allowed in part.
                                                           View Full Decision Text 8 Page(s)

      References: Act Citation
                   WSIA

                   Other Case Reference
                    [w3311s]

 Neutral Citation: 2011 ONWSIAT 1408

Decision No. 2031 06              06-Jun-2011            M. Doyle - M. Meslin - A. Grande

 Aggravation (preexisting condition)
 Dependency benefits (death results from an injury)
 Renal failure

The worker worked in a foundry from 1950 to 1975, where he was exposed to various
chemical substances. The worker's estate appealed a decision of the Appeals Resolution
Officer denying the worker entitlement for autosomal dominant polycystic kidney disease
(ADPKD) and denying survivor benefits to the estate.

The Panel accepted the opinion of a Tribunal medical assessor that AKPKD was a hereditary
condition unrelated to the worker's occupational exposure could accelerate the renal disease
progression. The worker had entitlement for the condition.

The accelerated condition precipitated the worker's premature death. Accordingly, the estate
had entitlement to survivor benefits.
The appeal was allowed.
                                               View Full Decision Text 10 Page(s)

      References: Act Citation
                   WCA

                 Other Case Reference
                  [w3311s]
                  CROSS-REFERENCE: Decision No. 2031/06I
                  TRIBUNAL DECISIONS CONSIDERED: Decision No. 94/87 (1989),
                 11 W.C.A.T.R. 20 consd; Decision No. 2062/07R consd

 Neutral Citation: 2011 ONWSIAT 1411

				
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