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					                          Decision Summary
                                 2009
                               Week 26
Decision Search Results

Displaying 1 to 23 of 23 Summaries


Decision No. 536 05                  07-May-2009                                        R. McCutcheon

   Chronic pain
   Future economic loss {FEL} (deemed earnings)
   Future economic loss {FEL} (review) (after sixty months)
   Rehabilitation, vocational (suitability of program)

A foundry worker suffered an arm injury in January 1995, for which he was granted a 2% NEL
award. The worker appealed a decision of the Appeals Resolution Officer denying entitlement for
chronic pain and denying an increase in his R2 FEL award in April 2002.

On the evidence, the worker had entitlement for chronic pain.

The Board sponsored the worker in academic upgrading in 1997, but VR services were closed
when the worker missed classes due to a death in the family. VR services were later reopened
with a job search but were terminated again in November 1997 when the Board found that the
worker was missing appointments and not complying with job placement. The worker found
temporary labouring jobs on his own. In December 2000, the worker requested further LMR
services. The Claims Adjudicator denied the request in June 2001, noting that workers are
generally limited to one LMR assessment and plan, and that the worker had previously
participated in VR and was found to be non-compliant. At R2, the Board based the worker’s FEL
award on deemed earnings in the SEB of customer service representative. In October 2002, the
ARO found that the SEB was appropriate, but granted further LMR services in the form of
academic upgrading. The worker participated in upgrading from December 2002 to October 2003
but was unsuccessful in completing the course.

By granting further LMR services in 2002, the ARO implicitly recognized that the worker had
been provided with an LMR plan that was not completed when the 60-month FEL review period
expired. This allowed the Board to review the worker’s FEL award after the 60-month period in
accordance with amendments to the WSIA.

The Board determined that the SEB was still suitable despite the worker’s inability to complete
the upgrading. However, the Vice-Chair found that the SEB was not suitable due to his chronic
pain and inability to acquire needed computer skills. In the circumstances, the Vice-Chair
concluded that the worker was only capable of working part-time at minimum wage.

At R2 in April 2002, the evidence did not establish that the worker was not capable of working
full-time. That was only evident when the worker was unsuccessful in the LMR upgrading in
October 2003. The worker was entitled to a FEL award based on part-time work at minimum
wage as of October 2003.

The appeal was allowed in part.
                                                                  View Full Decision Text 12 Page(s)

    References:       Act Citation
                       WCA
                      Other Case Reference
                       [w2609s]
                       CROSS-REFERENCE: Decision No. 536/05E


        Neutral    2009 ONWSIAT 1137
       Citation:

Decision No. 2520 08 I                07-May-2009                     J. Moore - M. Christie - A. Grande

   Board Directives and Guidelines (cooperation) (legitimate reasons)
   Intervening causes
   Early and safe return to work {ESRTW} (cooperation) (worker)
   Loss of earnings {LOE} (termination of employment)
   Benefits (reduction or suspension) (cooperation)

A lineman suffered head and neck injuries when he was knocked to the ground in December
2005. He returned to modified work in the office. In June 2006, he missed four days of work due
to a drinking binge. His employment was terminated for failure to report to work for four
consecutive days. The worker appealed a decision of the Appeals Resolution Officer denying LOE
benefits after June 2006.

The majority of the Panel interpreted the statutory provisions to mean that there is a threshold
to entitlement to benefits that is based on principles of causation. To the extent that loss of
earnings does not, or ceases to, result from a workplace injury, entitlement to benefits under s.
43(1) of the WSIA is stopped. In such circumstances, the Board may deem future loss of
earnings that result from the injury pursuant to s. 43(2). Examples of the threshold provision are
non-compensable illness, refusal of suitable employment or quitting a suitable job. Such
situations are seen as intervening events that break the causal link between the injury and the
loss of earnings, either completely or for a period of time.

The question then arises as to how entitlement to LOE benefits is determined if the intervening
event ceases and the worker continues to have a loss of earnings as a result of the workplace
injury. In the case of an LMR program that is interrupted due to a temporary illness, it is
common practice for the Board to reinstate both the LOE benefits and the LMR program after the
worker has recovered from the non-compensable illness. It would seem reasonable that the
same analysis should apply to the ESRTW process. This is also consistent with the concept in
Board policy of legitimate reasons. Board Operational Policy Manual, Document No. 22-01-03,
addresses the impact of benefits of failure of a worker to co-operate. It does not address other
intervening events that are not non-co-operation, such as non-compensable illness. However, it
is implied in the policy that illness or personal crisis will be viewed as legitimate reason for not
co-operating.

Co-operation in the context of ESRTW is defined in s. 40(2) in what appears to be exhaustive
terms that do not include illness or person crisis. However, the majority of the Panel was of the
view that the Board’s authority to reinstate benefits after a non-compensable event exists
equally for non-co-operation and for intervening events such as illness.

Section 43(7) reflects a legislative intent to give the Board the discretion to limit disentitlement
where the intervening event has ceased to be a significant factor. Such discretion is consistent
with other provisions of s. 43.

The majority noted that there are a number of Tribunal decisions that have allowed the
permanent termination of benefits where an employer has terminated a worker’s employment for
just cause or for reasons unrelated to the workplace injury. The majority of the Panel was of the
view that the appropriate test is not just cause but, rather, whether the injury was a factor in the
decision to terminate the worker’s employment.

The majority concluded that the legislation does not reflect an intent to terminate benefits
automatically and permanently whenever an intervening event occurs.
In this case, the worker’s employment was terminated for failure to report to work for four days.
The absence was related to stress in the worker’s personal life and alcohol abuse, not the
workplace injury. This was an intervening non-compensable factor that broke the chain of
causation with the workplace injury. It was appropriate for the Board to suspend benefits
because the loss of earnings did not result from the injury. However, the intervening event
ended after the worker completed an alcohol rehabilitation program. The loss of earnings
resulting from the workplace accident continued after the intervening event ended. The worker
was not able to return to modified work with the employer because the employer refused to
rehire him, thus ending the ESRTW process.

When the worker explained his reasons for absence, the employer treated the situation as an
illness. The employer encouraged the worker to get treatment and, apparently, indicated that it
was prepared to rehire the worker after completion of treatment. However, that did not occur.

The worker was not entitled to LOE during the four-day absence or the period of treatment.
However, he was entitled to reinstatement of LOE benefits after that intervening event ceased.

The hearing was adjourned to allow the worker to decide whether he wanted to pursue a human
rights issue.

The Employer Member, dissenting, agreed that the worker’s loss of employment was an
intervening event but would not have found that the intervening event ceased. The Employer
Member distinguished between personal action of the worker which caused the termination in
this case and external factors, such as strikes and closures over which the worker has no control,
that are contemplated by Board policy.
                                                                   View Full Decision Text 17 Page(s)

  References:        Act Citation
                      WSIA 40(2), 43(1), 43(2), 43(7)

                     Other Case Reference
                      [w2609s]
                      BOARD DIRECTIVES AND GUIDELINES: Operational Policy Manual,
                     Documents No. 15-05-04, 15-06-03, 19-02-03, 19-03-10, 22-01-03
                      CROSS-REFERENCE: Decision No. 2520/08
                      TRIBUNAL DECISIONS CONSIDERED: Decision No. 2035/00 (2003), 63
                     W.S.I.A.T.R. 60 consd; Decision No. 2474/00 (2004), 69 W.S.I.A.T.R. 57
                     consd; Decision No. 605/05 (2005), 73 W.S.I.A.T.R. 220 consd; Decisions
                     No. 398/05 consd, 610/08 refd to, 2540/08 refd to

      Neutral    2009 ONWSIAT 1140
     Citation:

Decision No. 802 09                 06-May-2009                                              J. Parmar

 Permanent impairment {NEL}
 Benefits (reduction or suspension) (cooperation)

The worker suffered a neck and shoulder injury in February 1991 for which a 26% NEL award in
December 1992. In 2003, the Board learned that the worker had been involved in a non-
compensable motor vehicle accident in March 1992. In 1994, the Board requested further
information from the worker. The worker advised that she had already provided the information.
In 2005, the Board determined that the worker had not co-operated with the Board
investigation, and rescinded the NEL award. The worker appealed.

The worker did not fail to co-operate with the Board. The Board did already have information
about the motor vehicle accident. The worker’s response did not amount to non-co-operation.
Later, when the worker became aware that the additional information was required in order for
benefits to be maintained, the worker contacted her doctor, who told her to have the Board
contact him directly. She relayed this information to the Board.
On the evidence, the motor vehicle accident did not have an impact on the compensable injury.
The worker was entitled to reinstatement of the NEL award. The appeal was allowed.
                                                                View Full Decision Text 10 Page(s)

  References:        Act Citation
                      WCA

                     Other Case Reference
                      [w2609s]
                      BOARD DIRECTIVES AND GUIDELINES: Operational Policy Manual,
                     Document No. 11-01-02

      Neutral     2009 ONWSIAT 1126
     Citation:

Decision No. 2580 08 R               06-May-2009                                            R. Hartman

 Reconsideration (consideration of evidence)

The worker’s application to reconsider Decision No. 2580/08 was denied. The Vice-Chair
considered the evidence and came to a reasonable conclusion.
                                                                  View Full Decision Text 7 Page(s)

  References:        Act Citation
                      WSIA

                     Other Case Reference
                      [w2609s]
                      CROSS-REFERENCE: Decision No. 2580/08


      Neutral     2009 ONWSIAT 1130
     Citation:

Decision No. 833 09                  06-May-2009                                               M. Cohen

 Supplements, transitional provisions (permanent)

The worker suffered a shoulder injury in 1989. In Decision No. 2028/98, the Tribunal granted
temporary benefits for a period in 1993 but denied entitlement for chronic pain or low back
disability.

In this decision, the Vice-Chair found that the worker was not entitled to supplementary benefits
under s. 147(4) of the pre-1997 Act after 1993. Evidence indicated that the worker was fit to
return to the modified work that was offered by the employer.
                                                                     View Full Decision Text 6 Page(s)

  References:        Act Citation
                      WCA

                     Other Case Reference
                      [w2609s]
                      CROSS-REFERENCE: Decision No. 2028/98


      Neutral     2009 ONWSIAT 1128
     Citation:

Decision No. 784 09                  06-May-2009                                             B. Doherty
 Benefit of the doubt
 Board Directives and Guidelines (psychotraumatic disability) (five year guideline)
 Psychotraumatic disability

The worker suffered a back and leg injury in 1999. Applying the benefit of doubt in favour of the
worker, the Vice-Chair found that the accident was a significant contributing factor to
development of a major depressive disorder in 2005. There is a general rule in Board policy that
a psychotraumatic disability must become manifest within five years of the accident. Board policy
recognizes this as a general rule, which implies that there will be exceptions. In this case, there
were recurrences a number of years after the accident, after which the psychotraumatic disability
developed. There was reason to depart from the general rule. The worker had entitlement for the
psychotraumatic disability.
                                                                     View Full Decision Text 15 Page(s)

    References:       Act Citation
                       WSIA

                      Other Case Reference
                       [w2609s]
                       BOARD DIRECTIVES AND GUIDELINES: Operational Policy Manual,
                      Document No. 15-04-02
                       TRIBUNAL DECISIONS CONSIDERED: Decision No. 51/06 (2006), 78
                      W.S.I.A.T.R. (online) consd; Decisions No. 215/02 consd, 1547/03 refd to,
                      941/04 refd to, 1837/06 refd to, 832/08 refd to, 1318/08 consd


        Neutral    2009 ONWSIAT 1122
       Citation:

Decision No. 2990 01                  06-May-2009                R. McCutcheon - D. Jago - F. Jackson

   Benefit of the doubt
   Cancer (lung)
   Exposure (asbestos)
   Medical report (opinion of medical assessor)

The worker was a miner starting in 1967. He was diagnosed with lung cancer in 1995 and died in
1996. The worker’s estate appealed a decision of the Appeals Resolution Officer denying
entitlement.

The worker had significant exposure to asbestos from 1974 to 1977. However, the worker did
not have asbestosis. The worker was a non-smoker.

There were conflicting medical opinions in this case on the issue of whether the presence of
asbestosis is a prerequisite for entitlement for lung cancer when the primary exposure is
asbestos. This has been an ongoing medical debate which has been referred to in Tribunal
decisions. The issue is still not resolved in medical literature.

Decision No. 266/93 stated that there are five factors to consider with respect to probability of
causation of lung cancer. The two most important factors are latency period and intensity of
exposure to asbestos. The three other more controversial factors of lesser importance are
fibrositic changes, location of the cancer and type of cancer.

A Tribunal medical assessor preferred the literature supporting a link between asbestosis and
asbestos-related lung cancer, and that Board medical consultants were of the view that
entitlement should not be granted in the absence of asbestosis. However, the Panel noted that
Board policy sets out only two criteria: length of exposure and latency period.

Neither Tribunal decisions nor Board policy has definitively adopted one side or the other in the
debate regarding asbestosis in asbestos-related lung cancer. The issue is still a subject of debate
in the medical community. The Panel found that this was an appropriate case to apply the benefit
of doubt. The Panel also noted other factors such as the non-smoking history, lack of family
history of cancer, the intense and significant exposure, and the meeting of the latency period.

The Panel noted that the worker was suffering from adenocarcinoma. The assessor did not
accept adenocarcinoma as indicative of asbestos-related lung cancer, as it was now the leading
cell type in persons suffering from lung cancer in North America. However, the Panel found the
evidence to indicate that cell type is not a particularly accurate indicator of causation.

The Panel applied the benefit of doubt in favour of the claim. The appeal was allowed.
                                                                   View Full Decision Text 24 Page(s)

  References:        Act Citation
                      WCA

                     Other Case Reference
                      [w2609s]
                      BOARD DIRECTIVES AND GUIDELINES: Operational Policy Manual,
                     Document No. 04-04-16
                      CROSS-REFERENCE: Decision No. 2990/01E
                      TRIBUNAL DECISIONS CONSIDERED: Decision No. 375/92 (1993), 28
                     W.C.A.T.R. 32 consd; Decision No. 1443/04 (2005), 75 W.S.I.A.T.R.
                     (online) consd; Decisions No. 266/93 consd, 690/99 consd, 802/01 consd,
                     600/04 distd


      Neutral     2009 ONWSIAT 1129
     Citation:

Decision No. 217 09                  05-May-2009                                             B. Doherty

 Aggravation (preexisting condition)
 Benefit of the doubt
 Significant contribution (of compensable accident to ongoing condition)

The Board granted the worker entitlement for a low back injury. The employer appealed
regarding initial entitlement. The worker appealed regarding ongoing entitlement.

The worker had a significant pre-existing condition. He did fall at work and could have injured his
back. The evidence as to whether the worker injured his back in the workplace fall was
approximately equal in weight. Applying the benefit of doubt in favour of the worker, the Vice-
Chair concluded that the worker had entitlement for aggravation of his pre-existing low back
condition.

Regarding ongoing entitlement, the issue was not whether the worker’s condition returned to its
pre-accident state but whether the accident affected the natural course of the underlying low
back condition. On the evidence, the Vice-Chair found that the exacerbation of the worker’s
condition ceased. The worker was not entitled to further ongoing benefits beyond those granted
by the Board.

The appeals were dismissed.
                                                                   View Full Decision Text 16 Page(s)

  References:        Act Citation
                      WSIA

                     Other Case Reference
                      [w2609s]
                      TRIBUNAL DECISIONS CONSIDERED: 2040/98 consd, 754/99 consd


      Neutral     2009 ONWSIAT 1121
     Citation:
Decision No. 369 09                  05-May-2009                       J. Noble - M. Trudeau - J. Crocker

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

The worker was a police officer for 28 years, from 1973 until he retired in 2001. In 2004, he
sought treatment for psychological problems. The worker appealed a decision of the Appeals
Resolution Officer denying entitlement for traumatic mental stress.

According to Board policy, there must be a sudden and unexpected traumatic event. That could
include witnessing a fatality or horrific accident. The worker did witness accidents that involved
fatalities and could reasonably be described as horrific. However, the majority of those events
occurred in the 1970s and 1980s, about 15 to 20 years before the worker’s retirement and about
20 years before the worker sought treatment. The Panel concluded that the worker did not suffer
an immediate or a delayed acute reaction to the work-related traumatic events.

Board policy also provides entitlement in the case of cumulative effect. According to the policy, if
a worker has an acute reaction to the most recent unexpected traumatic event, entitlement may
be in order even if the worker was able to tolerate past traumatic events. A final reaction to a
series of sudden and traumatic events is considered to be the cumulative effect. However, in this
case, there was no acute reaction to any work-related traumatic event.

The appeal was dismissed.
                                                                    View Full Decision Text 24 Page(s)

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

                      Other Case Reference
                       [w2609s]
                       BOARD DIRECTIVES AND GUIDELINES: Operational Policy Manual,
                      Document No. 15-03-02

        Neutral    2009 ONWSIAT 1117
       Citation:

Decision No. 877 09                  05-May-2009                                                M. Crystal

 Supplements, transitional provisions (benefit from rehabilitation)
 Temporary disability (beyond pension level)
 Temporary partial disability

The worker suffered a back injury in 1986, for which he was granted a 15% pension. He suffered
a recurrence in May 2000 and received temporary benefits until October 2000. In Decision No.
2133/04, the Tribunal granted the worker supplementary benefits under s. 147(4) of the pre-
1997 Act as of October 2000. The worker now appealed a decision of the Appeals Resolution
Officer denying additional temporary benefits after October 2000.

The worker submitted that a worker who does not qualify for benefits under s. 147(2) because
the worker is not likely to benefit from a VR program which would assist in restoring pre-accident
earnings might still benefit from VR to the lesser extent of assisting the worker in obtaining
gainful employment. Board Operational Policy Manual, Document No. 18-06-03, states that a
worker who has a temporary partial disability and who has not returned to work is entitled to full
benefits provided that the worker is willing to co-operate in a program that will assist in
returning the worker gainful employment. The worker claimed temporary benefits under this
provision.
The Vice-Chair noted that the policy applies to a worker who has a temporary partial disability.
In this case, however, the worker had a permanent disability. Further, Decision No. 2133/04
indicated that the worker did not want to be retrained. The Vice-Chair was bound by that finding,
from which it follows that the worker was not willing to co-operate with VR. In addition, the Vice-
Chair noted that temporary benefits are generally provided to workers who have not yet been
awarded a pension. There is an exception for worker’s whose condition has worsened below the
pension level. They will be awarded temporary benefits until the worsened condition stabilizes. In
this case, the worker’s condition was no longer below his pension level by October 2000.

The worker was not entitled to further temporary benefits. The appeal was dismissed.
                                                                  View Full Decision Text 8 Page(s)

  References:        Act Citation
                      WCA 147(2), 147(4)

                     Other Case Reference
                      [w2609s]
                      BOARD DIRECTIVES AND GUIDELINES: Operational Policy Manual,
                     Document No. 18-06-03
                      CROSS-REFERENCE: Decisions No. 2133/04, 2133/04R


      Neutral     2009 ONWSIAT 1113
     Citation:

Decision No. 633 09                  05-May-2009                A. Patterson - M. Christie - A. Grande

 Class of employer (trucking)
 Class of employer (freight forwarding)
 Parties (representation) (paralegal) (legal services)

The employer appealed a decision of the Appeals Resolution Officer classifying the employer in
Rate Group 570 for general freight trucking rather than Rate Group 958 for freight forwarders
(brokers).

In a preliminary matter, the Panel considered the status of the employer’s representative. The
representative was not a licensed paralegal.

The representative had been retained by the employer prior to the coming into force of the
legislation regarding paralegals. However, there was no grandfathering of representation based
upon prior representation in the same matter.

The representative was an applicant to become a member of the Board of Canadian Registered
Safety Professionals. A member of that Board is one of the exemptions to licensing. However,
the representative was only an applicant to become a member and had not yet taken her
examinations.

Representation with respect to employer classification constitutes the provision of legal services
within s. 1(5) and (6) of the Law Society Act.

The representative was not allowed to represent the employer. The employer decided to proceed
with the appeal without representation.

The employer did not own or operate trucks or trucking equipment, and also did not own a
terminal or storage facility. The employer arranged transportation of goods for its customers. It
contacted carriers to perform the carriage. The employer paid for the transportation and billed its
customers. The employer’s revenue was a fee that it charged its customers.

There is an exclusion from Rate Group 958 for activities carried on in conjunction with or under
the same contract as a contract to provide or arrange for trucking services in Rate Group 570.
Considering the illustrative examples that have been added to the rate group description, the
Panel found that the existence of a contract is not determinative of the application of the
exclusion but, rather, the mixing of brokering and performance of transport. In this case, the
employer was a pure brokerage which did not perform any transport of freight.

The employer should be classified in Rate Group 958. The appeal was allowed.
                                                                 View Full Decision Text 9 Page(s)

  References:        Act Citation
                      WSIA

                     Other Case Reference
                      [w2609s]
                      OTHER STATUTES CONSIDERED: Law Society Act, R.S.O. 1990, c. L.8,
                     ss. 1(5), 1(6); Law Society By-Law 4, s. 30(1) para. 7

      Neutral    2009 ONWSIAT 1118
     Citation:

Decision No. 770 09                  04-May-2009                                           A. Patterson

 Time limits (appeal) (staleness)

The worker’s estate appealed a decision of the Board denying an extension of the time to appeal
a decision made in 1986.

The deadline to appeal was June 30, 1998. The first correspondence indicating a desire to appeal
was not dated until three and one-half years after the deadline. In any event, the matter was
now so stale that it could not be reasonably adjudicated.

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

  References:        Act Citation
                      WSIA

                     Other Case Reference
                      [w2609s]
                      NOTE: This decision was released in French with an English translation.


      Neutral    2009 ONWSIAT 1108
     Citation:

Decision No. 294 08 R                04-May-2009                                             M. Crystal

 Reconsideration (new evidence)

The worker’s application to reconsider Decision No. 294/08 was denied. New medical evidence
submitted by the worker did not provide any information to indicate that the original decision
should be changed.
                                                                   View Full Decision Text 7 Page(s)

  References:        Act Citation
                      WSIA

                     Other Case Reference
                      [w2609s]
                      CROSS-REFERENCE: Decision No. 294/08


      Neutral    2009 ONWSIAT 1107
       Citation:

Decision No. 2961 07 R                04-May-2009                                           V. Marafioti

 Reconsideration (consideration of evidence)

The worker’s application to reconsider Decision No. 2961/07 was denied. The hearing panel
considered the evidence and came to a reasonable conclusion.
                                                                  View Full Decision Text 5 Page(s)

    References:       Act Citation
                       WSIA

                      Other Case Reference
                       [w2609s]
                       CROSS-REFERENCE: Decision No. 2961/07


        Neutral    2009 ONWSIAT 1104
       Citation:

Decision No. 299 09                   04-May-2009                                               J. Moore

   In the course of employment (distinct departure test)
   Independent operator (courier)
   Right to sue
   Worker (test)

The plaintiff in a civil action was a courier who was injured when he was struck by a vehicle. The
defendant applied to determine whether the plaintiff’s right of action was taken away.

The plaintiff had three packages that had to be delivered within a deadline on the morning of the
accident. The plaintiff delivered one of those packages but not the other two. The location of the
accident was not sufficiently close to the delivery sites to suggest that the plaintiff was in the
process of making a delivery to either of those sites. Rather, the Vice-Chair concluded that the
plaintiff had made a distinct departure from his business activities in order to pursue some
personal activity. The plaintiff was not in the course of employment at the time of the accident.

Further, the Vice-Chair found, on the evidence, that the plaintiff was independent operator and
not a worker of a courier company.

The plaintiff’s right of action was not taken away.
                                                                    View Full Decision Text 9 Page(s)

    References:       Act Citation
                       WSIA

                      Other Case Reference
                       [w2609s]


        Style of   Baygan v. Dufferin Construction
         Cause:


        Neutral    2009 ONWSIAT 1102
       Citation:

Decision No. 1676 07 R                01-May-2009                                               E. Smith

 Reconsideration (consideration of evidence)
The worker’s application to reconsider Decision No. 1676/07 was denied. The worker submitted
that the vice-chair hearing the original appeal did not give sufficient weight to a report which
found that the worker was unlikely to be able to maintain more than part-time employment due
to his vocational make-up and barriers. However, the Vice-Chair found that the report merely
stated that certain jobs that were available part-time might affect the worker’s earning capacity.
The report gave no explanation for why that is the case. It did not state that it was because of
his vocational make-up and barriers. It did not address the availability of part-time work or the
ability of the worker to find more than one part-time job. There was no error by the vice-chair
regarding the weight to be given to the report as related to the worker’s ability to work 40 hours
per week.
                                                                     View Full Decision Text 11 Page(s)

  References:        Act Citation
                      WCA

                     Other Case Reference
                      [w2609s]
                      CROSS-REFERENCE: Decisions No. 1676/07E, 1676/07


      Neutral     2009 ONWSIAT 1095
     Citation:

Decision No. 665 09                  01-May-2009                  M. Crystal - M. Christie - J. Crocker

 Chronic pain
 Earnings basis (long-term)
 Board Directives and Guidelines (earnings basis) (non-permanent or irregular employment)
(non-earning period)
 Board Directives and Guidelines (earnings basis) (permanent employment) (break in
employment pattern)

The worker appealed a decision of the Appeals Resolution Officer regarding the long-term
earnings basis for calculation of benefits resulting from accident in September 2000 and April
2003, and regarding other benefits.

In September 2000, the worker was working for a fast food restaurant. She started working for
the restaurant in November 1999. Prior to that, she had not been working regularly because she
was recuperating from a non-compensable condition. The Panel found that the worker was
permanently employed at the restaurant. There was a break in the worker’s employment pattern
in November 1999 when she started working for the restaurant. Accordingly, the recalculation
period for the long-term earnings basis would be from November 1999. The earnings basis
calculated in that manner was very similar to the worker’s short-term earnings basis. The Panel
concluded that the worker’s long-term benefits should be continued using the short-term
earnings basis.

In April 2003, the worker was working for a temporary personnel agency. This was non-
permanent employment. Her long-term benefit should be based on her earnings in the 24
months prior to the accident. There were some non-earning periods during the 24 months that
were not part of the employment pattern, such as a period when the worker was off work due to
the 1999 accident and a period when she was off work due to a non-compensable condition, that
should be factored out, in accordance with Board policy.

On the evidence, the worker did not have entitlement for chronic pain or psychotraumatic
disability or for additional LOE benefits.

The appeal was allowed in part.
                                                                   View Full Decision Text 29 Page(s)

  References:        Act Citation
                        WSIA 53(1), 53(3)

                       Other Case Reference
                        [w2609s]
                        BOARD DIRECTIVES AND GUIDELINES: Operational Policy Manual,
                       Documents No. 18-02-03, 18-02-04
                        TRIBUNAL DECISIONS CONSIDERED: Decision No. 1157/02 (2003), 64
                       W.S.I.A.T.R. 146 consd


      Neutral     2009 ONWSIAT 1101
     Citation:

Decision No. 401 09                   30-Apr-2009                                              J. Noble

 Psychotraumatic disability
 Rehabilitation, vocational (suitability of program)

The worker suffered a neck and right shoulder injury in 1995. In Decision No. 2462/03, the
Tribunal dealt with a number of issues including other areas of entitlement and redetermination
of the worker’s NEL award.

In this decision, the Vice-Chair found that the worker did not have entitlement for
psychotraumatic disability, that the VR goal established for the worker was appropriate and that
the worker was not entitled to a full FEL award at R2.
                                                                   View Full Decision Text 17 Page(s)

  References:          Act Citation
                        WCA

                       Other Case Reference
                        [w2609s]
                        CROSS-REFERENCE: Decisions No. 2462/03E, 2462/03


      Neutral     2009 ONWSIAT 1083
     Citation:

Decision No. 2676 08                  30-Apr-2009                 B. Kalvin - B. Wheeler - A. Grande

 Executive officers
 Personal coverage

On the evidence, the appellant was an executive officer and not a worker of the employer. The
fact that the appellant’s earnings were included in the general payroll reported to the Board did
not make the appellant a worker.
                                                                    View Full Decision Text 8 Page(s)

  References:          Act Citation
                        WSIA

                       Other Case Reference
                        [w2609s]
                        BOARD DIRECTIVES AND GUIDELINES: Operational Policy Manual,
                       Document No. 12-03-03
                        TRIBUNAL DECISIONS CONSIDERED: 1830/07 consd


      Neutral     2009 ONWSIAT 1085
     Citation:
Decision No. 2616 08 R               30-Apr-2009                                                S. Martel

 Reconsideration (consideration of evidence)

The worker’s application to reconsider Decision No. 2616/08 was denied. The Vice-Chair
considered the evidence and came to a reasonable conclusion.
                                                                  View Full Decision Text 6 Page(s)

  References:        Act Citation
                      WSIA

                     Other Case Reference
                      [w2609s]
                      CROSS-REFERENCE: Decision No. 2616/08


      Neutral     2009 ONWSIAT 1086
     Citation:

Decision No. 514 09                  30-Apr-2009                                                J. Moore

 Overpayment
 Retirement benefits

The worker was injured in 1990. The Board made adjustments to his benefits in 1998 and 2004.
These adjustments had the effect of reducing the amounts to be set aside for the worker’s
retirement pension. However, the Board continued to set aside for the worker’s fund as though
the adjustments had not been made. When it came time for the worker’s retirement, the Board
discovered the over-contributing, and paid the actual amount to which the worker was entitled.

The worker submitted that the over-contribution by the Board should be treated as an
overpayment that created a benefit-related debt that should not be recovered.

The Vice-Chair noted that the worker did not actually receive any retirement benefits in excess of
what he was entitled to receive. Thus there was no benefit-related debt to trigger the Board
policy regarding non-recovery of an overpayment.
                                                                    View Full Decision Text 5 Page(s)

  References:        Act Citation
                      WCA

                     Other Case Reference
                      [w2609s]
                      BOARD DIRECTIVES AND GUIDELINES: Operational Policy Manual,
                     Document No. 18-01-04


      Neutral     2009 ONWSIAT 1089
     Citation:

Decision No. 328 09                  30-Apr-2009                      S. Martel - S. Sahay - K. Hoskin

 Harassment (sex)
 Psychotraumatic disability
 Stress, mental

The worker appealed a decision of the Appeals Resolution Officer denying entitlement for
psychotraumatic disability or traumatic mental stress, which the worker claimed resulted from
harassment in the workplace.

Psychotraumatic disability entitlement is usually granted as a secondary condition arising out of a
physical injury or exposure to toxic chemicals. In this case, there was no physical injury,
although the worker was grabbed on the chin by a co-worker. This incident could possibly be
characterized as an assault and arguably an accident. In any event, the Panel granted
entitlement for this incident under the traumatic mental stress policy. There was, accordingly, no
entitlement for any other psychotraumatic disability.

Under the traumatic mental stress policy, the event or events must be objectively traumatic and
the worker must have suffered an acute reaction to the objectively traumatic event or events. In
this case, being grabbed on the chin by the co-worker was the only objectively traumatic event
that resulted an acute reaction by the worker. The incident occurred on August 29, 2005, and
resulted in immediate medical attention and lay-off from work until September 25, 2005. The
worker had entitlement for this period of time.

Other incidents of harassment alleged by the worker were much more vague. The lack of
specificity was evidence that they were not objectively traumatic. They also did not result in any
ongoing reaction.

The worker had entitlement only for the period in September 2005 following the specific chin
grabbing incident. The appeal was allowed in part.

                                                                    View Full Decision Text 14 Page(s)

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

                     Other Case Reference
                      [w2609s]
                      BOARD DIRECTIVES AND GUIDELINES: Operational Policy Manual,
                     Documents No. 15-03-02, 15-04-02


      Neutral     2009 ONWSIAT 1081
     Citation:

Decision No. 494 09                  30-Apr-2009                   R. McClellan - V. Phillips - D. Felice

 Labour market re-entry {LMR} (self-directed program)

The worker suffered a crush injury when his arm was caught in a machine. The Board granted a
10% NEL award for psychological disability. The worker appealed a decision of the Appeals
Resolution Officer denying a NEL award for organic impairment and denying LOE benefits from
June 2000 to August 2004. In Decision No. 2556/06, the Tribunal found that the worker did not
have a permanent organic impairment. However, he was unable to work near machinery due to
his psychological condition. The worker was entitled to ongoing LOE benefits during the period in
question.

In this decision, the Panel found that the worker was entitled to LMR services as of June 2000,
that his self-directed education and training activities constituted a valid LMR plan, that the
worker was entitled to full LOE benefits during the period in question and to reimbursement of
tuition costs.
                                                                      View Full Decision Text 10 Page(s)

  References:        Act Citation
                      WSIA

                     Other Case Reference
                      [w2609s]
                      CROSS-REFERENCE: Decision No. 2556/06


      Neutral     2009 ONWSIAT 1075
     Citation:

				
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