Decision Summary by jolinmilioncherie

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									                         Decision Summary
                                2009
                               Week 3
Decision Search Results

Displaying 1 to 25 of 25 Summaries


Decision No. 2338 08                 28-Nov-2008                     J. Noble - M. Christie - K. Hoskin

 Diabetes
 Permanent impairment {NEL}

The worker suffered a fracture of one finger and a laceration of another finger when his hand
was caught in a pulley. The worker appealed a decision of the Appeals Resolution Officer denying
a NEL award for permanent impairment and denying entitlement for diabetes which the worker
related to stress encountered by the worker when he returned to work.

On the evidence, the worker did not suffer a permanent impairment to his fingers.

The worker did not have entitlement for diabetes. The diabetes was caused by obesity. A
Tribunal medical discussion paper did not emphasize the role of stress in development of
diabetes. In any event, the Panel found that the stress level experienced by the worker on his
return to work was not particularly significant or unusual.

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

  References:        Act Citation
                      WSIA

                     Other Case Reference
                      [w0309s]


      Neutral     2008 ONWSIAT 3094
     Citation:

Decision No. 2391 08                 28-Nov-2008                                                 E. Smith

 Second Injury and Enhancement Fund {SIEF} (preexisting condition) (predisposition)
 Second Injury and Enhancement Fund {SIEF} (psychological condition)

The worker suffered a mild concussion when three trays of mushrooms fell on her from a height
of 15 feet. She developed post-traumatic stress disorder and was granted a 15% NEL award for
psychotraumatic disability. The employer appealed a decision of the Appeals Resolution Officer
denying the employer SIEF relief.

In the case of psychological problems, the Board may grant SIEF relief if there is evidence to
support a predisposition to development of psychological disorder. It is not necessary for there to
have been a prior psychiatric illness or diagnosis.

In this case, the accident would not have been expected to result in PTSD. The serious nature of
the worker’s reaction to the injury together with evidence of his pre-existing character traits was
sufficient to infer that the worker was psychologically very vulnerable at the time of the accident.

The pre-existing vulnerability was major. The accident was moderate. The employer was entitled
to 75% SIEF relief.

The employer was also entitled to retroactive adjustment of its NEER account to reflect the SIEF
relief.

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

  References:        Act Citation
                      WSIA

                     Other Case Reference
                      [w0309s]
                      BOARD DIRECTIVES AND GUIDELINES: Operational Policy Manual,
                     Document No. 08-01-05
                      TRIBUNAL DECISIONS CONSIDERED: Decision No. 431/89 (1989), 11
                     W.C.A.T.R. 355 apld; Decision No. 1811/01 refd to

      Neutral     2008 ONWSIAT 3090
     Citation:

Decision No. 2471 07 R               28-Nov-2008                                           T. Mitchinson

 Reconsideration (representation)

The worker’s application to reconsider Decision No. 2471/07 was denied. The Vice-Chair found no
basis to support the worker’s claim that he was inadequately represented at the original hearing.
                                                                   View Full Decision Text 5 Page(s)

  References:        Act Citation
                      WCA
                      WSIA

                     Other Case Reference
                      [w0309s]
                      CROSS-REFERENCE: Decision No. 2471/07


      Neutral     2008 ONWSIAT 3096
     Citation:

Decision No. 970 08                  28-Nov-2008                                                 E. Smith

 Class of employer (trucking)
 Class of employer (freight forwarding)

The employer was classified in the voluntary classification Rate Group 958-03 for freight
forwarders (brokers) until an audit in December 2003. As a result of the audit, the classification
for 2004 was changed to Rate Group 570-01 for general freight trucking. As a result of changes
to the rate groups effective January 1, 2005, the employer was moved back to Rate Group 958-
03. The employer appealed the decision of the Appeals Resolution Officer confirming the
classification of the employer in Rate Group 570-01 for 2004.

The employer arranged for shipment of goods. Customers would contact the employer. The
employer would then arrange for a trucking company to go and pick up the freight. The rate for
the delivery was negotiated by the employer with the customer. There was no relation between
that rate and the rate charged by the trucking company. The employer would make a profit or
loss depending on the spread between what it charged the customer and what it paid the
trucking company.

Prior to September 2000, Rate Group 958-03 applied to business activities including arranging
transportation of goods for a fee when the freight forwarder neither owned nor operated
transportation equipment. Rate Group 570-09 applied when the forwarder did own or operate
the transportation equipment. Rate Group 570-01 applied to general freight trucking. The Vice-
Chair agreed with the ARO that, prior to September 2000, the employer would have been
classified in the voluntary Rate Group 958-03.

Under changes in September 2000, Rate Group 570-01 applied to contracts between an
employer and customer involving arranging for truck services to be provided by owner-operators
or other trucking subcontractors. Rate Group 958-03 was changed activities including acting on
behalf of customers to obtain the best contract price for the transportation of goods. It was also
added that the broker’s sole source of revenue is the fee for brokering. Rate Group 570-09 was
amended to include arranging for trucking services by subcontractors as an incidental activity.

There were some changes effective January 1, 2004, that did not have any substantive effect.

The Vice-Chair noted that the employer set the price with its customer, then found a trucking
firm to deliver the goods. The employer entered into two different contracts. It subcontracted the
delivery work. This was how it did its business. The subcontracting was not peripheral to its
business activity.

During 2004, Rate Group 958-03 applied only if the broker’s sole source of revenue was the fee
for brokering. That was not the situation with this employer, where the customer paid a fee for
the transportation of goods. Further, Rate Group 958-03 also expressly excluded business
activities that were included in Rate Group 570. Rate Group 570-01 including arrangement for
trucking services by other trucking subcontractors.

The Vice-Chair also noted s. 10 of O. Reg. 175/98, which provides that an employer is deemed
to be carrying out subcontracted activities for assessment purposes. Given this provision, it was
not inappropriate for the Board to classify the employer based on the substance of the work
being done through subcontracts.

The Vice-Chair considered a number of prior Tribunal decisions. Some of those decisions did not
properly distinguish between Rate Groups 570-01 and 570-09. The Vice-Chair distinguished
Decision No. 2356/06 on the basis that it involved a situation in which profit was made by
charging a premium to the shipper over the amount paid to the carrier. Also Decision No.
1539/00 involved a situation in which the employer charged an additional percentage to its
customers for its services. The Vice-Chair disagreed with the interpretation in Decision No.
1539/00 of the regulation which would have limited it to subcontracts for the purpose of avoiding
workers’ compensation payments.

After further changes to the rate groups as of January 1, 2005, the employer was classified again
in Rate Group 958-03. The Vice-Chair noted that there was now important distinctions in that
rate group as to business activities that are voluntarily covered and those that are mandatorily
covered.

The employer was correctly classified in Rate Group 570-01 in 2004. The appeal was dismissed.
                                                                 View Full Decision Text 25 Page(s)

  References:        Act Citation
                      WSIA

                     Other Case Reference
                      [w0309s]
                      REGULATIONS CONSIDERED: O. Reg. 175/98, s. 10
                      TRIBUNAL DECISIONS CONSIDERED: 1539/00 distd, 1541/06 consd,
                     1778/06 consd, 2356/06 distd, 2357/06 consd, 482/07 consd, 1749/07
                     consd, 1816/07 consd
      Neutral     2008 ONWSIAT 3092
     Citation:

Decision No. 2547 08                 28-Nov-2008                                               A. Baker

 Pensions (assessment) (chronic pain)

In Decision No. 1598/05, the Tribunal found that the worker was entitled to reassessment of her
pension for chronic pain. The Board then increased the pension from 10% to 20%.

In this decision, the Vice-Chair found that the worker was entitled to a 25% pension at the top of
Category 2 of the Board’s rating schedule.
                                                                     View Full Decision Text 9 Page(s)

  References:        Act Citation
                      WCA

                     Other Case Reference
                      [w0309s]
                      CROSS-REFERENCE: Decision No. 1598/05


      Neutral     2008 ONWSIAT 3098
     Citation:

Decision No. 2517 08                 28-Nov-2008                                                S. Ryan

 Carpal tunnel syndrome
 Chronic pain
 Disablement (repetitive work)

In Decision No. 847/88, the Tribunal found that the worker suffered a compensable back injury
in 1986. In 1995, the Board granted the worker entitlement for epicondylitis and right carpal
tunnel syndrome.

In this decision, the Vice-Chair found that the worker also had entitlement for left carpal tunnel
syndrome from performing the same repetitive, forceful work. In addition, the worker developed
chronic pain disability from the left carpal tunnel syndrome.
                                                                   View Full Decision Text 11 Page(s)

  References:        Act Citation
                      WSIA

                     Other Case Reference
                      [w0309s]
                      CROSS-REFERENCE: Decision No. 847/88


      Neutral     2008 ONWSIAT 3093
     Citation:

Decision No. 2425 08                 28-Nov-2008                     S. Ryan - M. Christie - J. Crocker

 Future economic loss {FEL} (review) (after sixty months)

The worker was granted a zero FEL award at D1, R1 and R2 on the basis that the employer was
providing suitable modified work at no wage loss. The worker appealed a decision of the Appeals
Resolution Officer denying FEL benefits after R2 when the worker took a severance package from
the employer and found other work at a wage loss.
The evidence did not establish that there was a significant deterioration of the worker’s
condition. Accordingly, the worker was not entitled to review of his FEL award after R2. In any
event, the worker’s wage loss resulted from his decision to accept the severance package, when
he could have exercised other options under the collective agreement to remain working with the
employer.

The appeal was dismissed.
                                                                     View Full Decision Text 8 Page(s)

  References:        Act Citation
                      WCA

                     Other Case Reference
                      [w0309s]


      Neutral     2008 ONWSIAT 3091
     Citation:

Decision No. 2463 08                 27-Nov-2008                                                B. Kalvin

 Fibromyalgia
 Loss of earnings {LOE} (termination of employment)

The worker had entitlement for fibromyalgia under the Board’s chronic pain disability policy. The
Board appeared to denying entitlement on the grounds that the worker’s pain was inconsistent
with the injury because it included areas of the body unaffected by the original injury. However,
the Vice-Chair noted that fibromyalgia, by definition, is a condition in which pain spreads
diffusely throughout the body rather than being confined to a specific or local site.
                                                                     View Full Decision Text 10 Page(s)

  References:        Act Citation
                      WSIA

                     Other Case Reference
                      [w0309s]


      Neutral     2008 ONWSIAT 3089
     Citation:

Decision No. 2336 08                 27-Nov-2008                  B. Alexander - E. Tracey - K. Hoskin

 Loss of earnings {LOE} (employability)

The Board granted a seamstress entitlement for epicondylitis. In Decision No. 1440/05, the
Tribunal found that the worker had entitlement for chronic pain. The Board then granted the
worker a 25% NEL award for chronic pain disability.

In this decision, the Panel found that the worker was competitively unemployable and entitled to
full LOE benefits.
                                                                    View Full Decision Text 7 Page(s)

  References:        Act Citation
                      WSIA

                     Other Case Reference
                      [w0309s]
                      CROSS-REFERENCE: Decision No. 1440/05
      Neutral     2008 ONWSIAT 3085
     Citation:

Decision No. 1574 99 R2                26-Nov-2008               E. Smith - M. Christie - D. Broadbent

 Parties (of record)
 Standing

In Decision No. 1574/99, the Tribunal denied the worker entitlement for symptoms related to
aluminum exposure. In Decision No. 1574/99R, the Tribunal granted the worker’s application to
reconsider. Before the rehearing of the worker’s appeal a Chicago company applied for standing
to participate in the appeal. In this decision, the Panel considered the application of the Chicago
company for standing.

The worker had been employed by a company. During the hearing of the worker’s case at the
Board, that company merged with a Toronto company. The Board treated the Toronto company
as the employer of record. The Toronto company was a wholly owned subsidiary of the Chicago
company. The Toronto company ceased carrying on business as of December31, 2005.

The Chicago company is not the employer of record. It never employed the worker. It is not a
successor employer. However, the Chicago company was in a position to assist the Panel if it
needs additional information about the workplace. The most expedient way to obtain the fullest
information is to allow the party with that information to participate. Further, participation of
employer is considered especially helpful in occupational disease cases.

The Chicago company did not have a direct financial interest in the earlier proceedings, but the
Toronto company was a wholly owned subsidiary, so that the Chicago company had an interest
in the financial affairs of the Toronto company. It also appeared that the Chicago company has
made some commitments with respect to ongoing liabilities of the Toronto company as part of
the winding-up arrangements.

When one company owns 100% of the shares of another, it is not useful from an adjudicative
point of view to make too fine a distinction between corporate entities with respect to recognition
of standing, especially in the case of a reopened appeal such as this.

The Panel granted standing to the Chicago company.
                                                                     View Full Decision Text 7 Page(s)

  References:           Act Citation
                         WCA

                        Other Case Reference
                         [w0309s]
                         CROSS-REFERENCE: Decision No. 1574/99I; Decision No. 1574/99
                        (2001), 58 W.S.I.A.T.R. 41; Decision No. 1574/99R
                         TRIBUNAL DECISIONS CONSIDERED: 672/97 consd, 599/98 refd to,
                        622/98I consd, 262/99I consd, 170/06 consd

                        Reporter Citation
                         87 W.S.I.A.T.R. (online)


      Neutral     2008 ONWSIAT 3063
     Citation:

Decision No. 3022 07                   26-Nov-2008                     E. Smith - E. Tracey - M. Ferrari

 Stress, mental (effect of employment decisions)

The worker was employed by a large public sector employer at a plant located in a small
northern town. The worker appealed a decision of the Appeals Resolution Officer denying
entitlement for stress-related disability which the worker related to harassment by co-workers
and her supervisor.

The types of traumatic events that may form the basis for entitlement are broader that those
listed in Board policy but the list in the policy should be considered instructive, although not
necessarily exhaustive, of the kinds of events that fall within the policy. The items on the list
suggest that entitlement applies when the circumstances are very serious, and where a threat to
personal security is at least implicit. This must be considered from an objective perspective and
not solely from the perspective of the aggrieved party. The policy does not apply when the facts
amount only to unpleasant or hostile interactions between co-workers. Further, management
actions must go beyond an employer’s decisions that are part of the employment function. The
actions of management would have to be egregious or carried out in bad faith. Overzealous
scrutiny carried out for the purposes of accomplishing work functions is insufficient to come
within the provisions of the Act for entitlement.

In this case, the worker was a major contributor to friction with her co-workers. As the situation
deteriorated, she became isolated, but she was not harassed by her co-workers. Further, the
worker’s difficulties with her supervisor were labour relations matters. The actions of the
supervisor did not amount to egregious or malicious conduct that would exclude those actions
from the management function.

The appeal was dismissed.
                                                                    View Full Decision Text 36 Page(s)

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

                     Other Case Reference
                      [w0309s]
                      BOARD DIRECTIVES AND GUIDELINES: Operational Policy Manual,
                     Document No. 15-02-02
                      TRIBUNAL DECISIONS CONSIDERED: Decision No. 422/96 (1999), 51
                     W.S.I.A.T.R. 6 consd; Decision No. 620/08 (2008), 85 W.S.I.A.T.R. (online)
                     apld; Decisiosn No. 2056/03 consd, 929/04 consd

                     Reporter Citation
                      87 W.S.I.A.T.R. (online)


      Neutral     2008 ONWSIAT 3061
     Citation:

Decision No. 309 08                  26-Nov-2008                                              J. Dimovski

 In the course of employment (parking lots)
 In the course of employment (plazas and malls)
 Right to sue

The plaintiff in a civil case was a worker in a retail store. The plaintiff was injured when she
slipped on ice in the parking lot. The plaintiff brought the action against the owner of the parking
lot and the company that was hired to clear the snow. The defendant applied to determine
whether the plaintiff’s right of action was taken away.

A worker is generally considered to be in the course of employment while in the employer’s
parking lot. However, in this case, the plaintiff’s employer did not own the parking lot and did not
demonstrate a sufficiently high degree of control over the parking lot to accept that it effectively
controlled the spaces where the worker slipped. The lease provided that the store pay a pro-rata
share of maintenance but that did not establish control. The store may have encouraged its
workers to park in a specific area but there was no such requirement in the lease.

The plaintiff was not in the course of employment at the time of the accident. Her right of action
was not taken away.
                                                                   View Full Decision Text 13 Page(s)

  References:          Act Citation
                        WSIA

                       Other Case Reference
                        [w0309s]
                        BOARD DIRECTIVES AND GUIDELINES: Operational Policy Manual,
                       Documents No. 15-02-02, 15-03-04
                        TRIBUNAL DECISIONS CONSIDERED: Decision No. 764/91 (1991), 21
                       W.C.A.T.R. 348 consd; Decision No. 755/02 (2002), 61 W.S.I.A.T.R. 334
                       consd; Decisions No. 1437/98 distd, 210/99 consd, 983/02 distd, 1764/03
                       consd

      Style of    Cundle v. D & L Digging
       Cause:


      Neutral     2008 ONWSIAT 3078
     Citation:

Decision No. 140 08                   25-Nov-2008                       R. McCutcheon - B. Young - M.
                                                                                              Ferrari

 Executive officers

The employer appealed a decision of the Appeals Resolution Officer finding that four individuals
were workers and not executive officers.

The four individuals were the vice-president of sales, controller, vice-president of product
marketing and general manager. The employer was a family run mid-size company with an
informal management structure in which major decisions were made by a small group of
individuals. They were all first tier management and directing minds. The substance of their
responsibilities outweighed their titles or designations in the corporate minute book.

The Panel was satisfied that all four individuals were executive officers. The appeal was allowed.
                                                                     View Full Decision Text 10 Page(s)

  References:          Act Citation
                        WSIA

                       Other Case Reference
                        [w0309s]
                        BOARD DIRECTIVES AND GUIDELINES: Operational Policy Manual,
                       Document No. 12-03-03
                        TRIBUNAL DECISIONS CONSIDERED: 54/97 apld


      Neutral     2008 ONWSIAT 3067
     Citation:

Decision No. 2476 08                  25-Nov-2008                                                T. Silipo

 Chronic pain

In Decision No. 194/04, the Tribunal found that the worker had entitlement for a shoulder injury
but not for a back injury in 2000.

In this decision, the Vice-Chair found that the worker had entitlement for chronic pain and
ongoing benefits.
                                                                     View Full Decision Text 7 Page(s)

  References:        Act Citation
                      WSIA

                     Other Case Reference
                      [w0309s]
                      CROSS-REFERENCE: Decision No. 194/04


      Neutral     2008 ONWSIAT 3068
     Citation:

Decision No. 127 98 R                25-Nov-2008                                                 J. Moore

 Reconsideration (consideration of evidence)

The worker’s application to reconsider Decision No. 127/98 was denied. The worker was
essentially trying to re-argue the case.
                                                                  View Full Decision Text 4 Page(s)

  References:        Act Citation
                      WSIA

                     Other Case Reference
                      [w0309s]
                      CROSS-REFERENCE: Decisions No. 127/98, 1180/06, 1180/06R


      Neutral     2008 ONWSIAT 3070
     Citation:

Decision No. 2395 08                 25-Nov-2008                                                 E. Smith

 Experience rating (NEER) (three year window)

The employer was not entitled to retroactive adjustment of its NEER account to reflect SIEF relief
granted in 2007 related to an accident that occurred in 2000. The Board claims adjudicator has a
responsibility to review the file for SIEF. However, the failure of the Board to review a file for
SIEF can be considered, at its highest, a Board error. There is a deadline for bringing Board error
to the attention of the Assessment Branch. The employer did not bring the error to the attention
of the Assessment Branch until two and a half years after the deadline.
                                                                       View Full Decision Text 5 Page(s)

  References:        Act Citation
                      WSIA

                     Other Case Reference
                      [w0309s]


      Neutral     2008 ONWSIAT 3064
     Citation:

Decision No. 1180 06 R               25-Nov-2008                                                 J. Moore

 Reconsideration (consideration of evidence)

The worker’s application to reconsider Decision No. 1180/06 was denied. The worker was
essentially trying to re-argue the case.
                                                                  View Full Decision Text 5 Page(s)
  References:        Act Citation
                      WSIA

                     Other Case Reference
                      [w0309s]
                      CROSS-REFERENCE: Decisions No. 127/98, 127/98R, 1180/06


      Neutral     2008 ONWSIAT 3069
     Citation:

Decision No. 914 06                  24-Nov-2008                                               J. Moore

 Psychotraumatic disability

The worker suffered a back injury in 1990 and another back injury in 2000. In Decision No.
915/06, the Tribunal found that the accident in 1990 was a new accident and not a recurrence of
the 1990 accident.

In this decision, the Vice-Chair found that the worker had entitlement for psychotraumatic
disability resulting from the 2000 accident, and that he was entitled to an LMR assessment and
further LOE benefits.
                                                                     View Full Decision Text 8 Page(s)

  References:        Act Citation
                      WSIA

                     Other Case Reference
                      [w0309s]
                      CROSS-REFERENCE: Decisions No. 915/06, 915/06R


      Neutral     2008 ONWSIAT 3051
     Citation:

Decision No. 2015 08                 24-Nov-2008                   J. Moore - B. Wheeler - M. Ferrari

 Maximal medical rehabilitation
 Accident (date) (occupational disease)

The Board granted the worker entitlement for mesothelioma, with an accident date of January 6,
2004. The worker’s estate appealed regarding the determination of the accident date.

The Board appeared to base its decision on the absence of any evidence of impairment prior to
January 6, 2004. On January 6, 2004, the worker underwent diagnostic imaging that showed the
presence of the condition subsequently diagnosed as mesothelioma.

The estate submitted that there was radiological evidence of damage to the worker’s lungs as
early as 1995. However, the Panel found that that damage was incidental and not related to the
subsequently diagnosed mesothelioma. X-rays taken on November 4, 2002, found the clinically
inconsequential scattered calcification that was noted in earlier x-rays but also found a subtle
density that was not present in earlier x-rays. The Panel was satisfied that the x-rays from
November 4, 2002 were the first medical evidence of physical abnormality in the worker’s lung.

The worker had entitlement with an accident date of November 4, 2002. The worker’s condition
only deteriorated after that time. The MMR date should be the day after the accident, that is,
November 5, 2002.

The appeal was allowed in part.
                                                                    View Full Decision Text 5 Page(s)
  References:        Act Citation
                      WSIA 2(1) "impairment"

                     Other Case Reference
                      [w0309s]
                      BOARD DIRECTIVES AND GUIDELINES: Operational Policy Manual,
                     Document No. 11-01-04

      Neutral    2008 ONWSIAT 3046
     Citation:

Decision No. 2398 08                24-Nov-2008                       S. Ryan - B. Wheeler - D. Felice

 Consequences of injury (suicide)
 Death (suicide)
 Pensions (assessment) (psychotraumatic disability)

The worker suffered a low back injury in 1987, for which he was granted a 20% pension for
psychotraumatic disability. The worker committed suicide in September 1997. The worker’s
estate appealed a decision of the Appeals Resolution Officer denying an increase in the 20%
pension and denying survivor benefits on the grounds that the suicide was not causally related to
the worker’s compensable back condition or psychotraumatic disability.

On the evidence, the worker was entitled to a 50% pension for psychotraumatic disability.

The worker experienced significant non-compensable stressors in his life that contributed to his
suicide, such as the death of his daughter and granddaughter in a traffic accident and
progression of vascular disease that led to amputation of his left foot. However, the Panel was
satisfied that the compensable psychotraumatic disability was also a significant contributing
factor to the worker’s suicide.

The appeal was allowed.
                                                                  View Full Decision Text 16 Page(s)

  References:        Act Citation
                      WCA

                     Other Case Reference
                      [w0309s]
                      BOARD DIRECTIVES AND GUIDELINES: Operational Policy Manual,
                     Document No. 03-04-02
                      TRIBUNAL DECISIONS CONSIDERED: 2453/00 consd


      Neutral    2008 ONWSIAT 3057
     Citation:

Decision No. 2468 08                21-Nov-2008                                               S. Martel

 Notice of accident (by worker)

The worker suffered an accident on June 4, 2004, but did not file a claim until March 24, 2005.
The worker appealed a decision of the Appeals Resolution Officer denying entitlement on the
grounds that the worker did not file the claim within six months of the injury.

The worker reported the accident to the employer at the time, and the employer filed a Form 7.
The worker also sought medical attention at the time. There were also language difficulties that
played a part in the worker’s failure to file a Form 6.

The Vice-Chair found that there were exceptional circumstances in this case. The appeal was
allowed.
                                                                      View Full Decision Text 6 Page(s)

  References:        Act Citation
                      WSIA 22

                     Other Case Reference
                      [w0309s]
                      BOARD DIRECTIVES AND GUIDELINES: Operational Policy Manual,
                     Document No. 15-01-03

      Neutral     2008 ONWSIAT 3035
     Citation:

Decision No. 1360 08                 21-Nov-2008                                                      M. Keil

 In the course of employment (parking lots)
 In the course of employment (reasonably incidental activity test)
 Right to sue

The plaintiff and defendant in a civil case were both workers of the same employer. The
defendant was the plaintiff’s supervisor. The supervisor’s car would not start when he was going
home. He went back into the building and asked the plaintiff to help him jump start his car. The
plaintiff did not punch out. They used the company van to jump start the defendant’s car. While
the plaintiff was between the vehicles, the car started and lurched forward, hitting the plaintiff.
The plaintiff brought an action against the defendant. The defendant applied to determine
whether the plaintiff’s right of action was taken away.

The Vice-Chair found that both the plaintiff and defendant were in the course of employment.
The parking lot was part of the employer’s premises. When a supervisor asks for assistance, it is
not the same as a friend asking for a favour. The activity was reasonably incidental to
employment.

The plaintiff’s right of action was taken away.
                                                                      View Full Decision Text 9 Page(s)

  References:        Act Citation
                      WSIA

                     Other Case Reference
                      [w0309s]
                      BOARD DIRECTIVES AND GUIDELINES: Operational Policy Manual,
                     Documents No. 15-20-02, 15-03-03
                      TRIBUNAL DECISIONS CONSIDERED: 672/07 consd


      Style of    Shaw v. Turnbull
       Cause:


      Neutral     2008 ONWSIAT 3040
     Citation:

Decision No. 2469 08                 21-Nov-2008                                                 S. Martel

 Time limits (appeal) (related issues)
 Time limits (return to work or labour market re-entry)

The worker was entitled to an extension of the time to appeal an LMR issue, which he had not
appealed within the 30-day time limit for such issues. The issue was closely related to an LOE
issue which he did appeal within the six-month time limit.
                                                                    View Full Decision Text 6 Page(s)

  References:        Act Citation
                      WSIA

                     Other Case Reference
                      [w0309s]
                      TRIBUNAL DECISIONS CONSIDERED: Decision No. 2199/04 (2005), 72
                     W.S.I.A.T.R. 277 refd to; Decision No. 673/06E (2006), 79 W.S.I.A.T.R.
                     (online) refd to; Decision No. 305/08 consd

      Neutral     2008 ONWSIAT 3038
     Citation:

Decision No. 2045 08                 21-Nov-2008                   C. MacAdam - J. Robb - J. Crocker

 Loss of earnings {LOE} (retirement) (early)

The worker suffered a shoulder injury on August 28, 2000. In Decision No. 2045/08, the Tribunal
found that the worker had entitlement for aggravation of a pre-existing shoulder condition. The
worker returned to work on October 16, 2000, with no medical restrictions. She took early
retirement on November 15, 2000.

In this decision, the Panel found that the worker did not have entitlement to LOE benefits from
November 15. The compensable shoulder condition was not a significant contributing factor to
the worker’s decision to retire. The worker was able to perform the light duties that the employer
gave to the worker. The employer would have continued to accommodate the worker, but for her
decision to retire. Non-compensable cancer was the primary reason for the worker’s retirement.
                                                                     View Full Decision Text 6 Page(s)

  References:        Act Citation
                      WSIA

                     Other Case Reference
                      [w0309s]
                      CROSS-REFERENCE: Decision No. 1576/04


      Neutral     2008 ONWSIAT 3039
     Citation:

Decision No. 1025 08                 21-Nov-2008                        A. Patterson - B. Wheeler - J.
                                                                                             Crocker

 Environmental hypersensitivity
 Psychotraumatic disability

The worker was employed by a graphics company for 27 years starting in 1976. The worker
appealed a decision of the Appeals Resolution Officer denying entitlement for environmental
hypersensitivity, which the worker related to exposure to film processing chemicals.

The worker had the greatest exposure to chemicals between 1976 and 1980 when he worked as
a cameraman and between 1981 and 1985 when he worked as a film stripper. From 1985 to
2003, exposure occurred at lower concentrations and less frequency, as his jobs and the nature
of the processes used changed.

Reports of treating medical practitioners could not find an organic explanation for the worker’s
symptoms. The doctors suggested that there might be a psychological origin for the symptoms.

Based on the medical evidence, the Panel found that the worker did not have entitlement on an
organic basis. The Panel further concluded that the worker did not have entitlement on a non-
organic basis. The worker’s symptoms first appeared more than five years after his exposure as
a film stripper, at a time when his exposure was diminishing. The worker did not relate his
symptoms to employment exposure until 2000. Thus, his anxiety reaction could not have been
related to his perceived inability to control workplace exposure, given that he did not consider
workplace exposure to be the source of his symptoms until at least five years after the
symptoms appeared. The Panel also noted that the worker’s symptoms did not improve after he
left work in 2003.

The appeal was dismissed.
                                                                  View Full Decision Text 23 Page(s)

  References:        Act Citation
                      WSIA

                     Other Case Reference
                      [w0309s]
                      TRIBUNAL DECISIONS CONSIDERED: Decision No. 545/96 (2000), 54
                     W.S.I.A.T.R. 1 refd to; Decision No. 977/05 consd


      Neutral    2008 ONWSIAT 3043
     Citation:

								
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