Workplace Safety and Insurance Law

The worker appealed a decision denying entitlement to a permanent impairment for a 2002 right shoulder strain and denying entitlement for right rotator cuff tears and surgery.

The Appeals Resolution Officer allowed the appeal, finding that the worker's shoulder symptoms had never abated since the 2002 injury, entitling the worker to a Non-Economic Loss assessment.

Furthermore, the Officer found that the overhead lifting required in the worker's modified duties significantly contributed to the development of the rotator cuff tears, granting entitlement to the tears and surgery as a secondary condition.

The employer objected to a field auditor's decision denying an extension of time to appeal earlier classification decisions from 2008 and 2012.

The employer argued that it was not properly notified of the time limits and that the WSIB made an egregious error in classifying its business activities, resulting in a significant overcharge of premiums.

The Appeals Resolution Officer found that the employer was properly notified of the time limits and that there were no exceptional circumstances to justify an extension.

The appeal was denied.

The appellant employer appealed a conviction under s. 25(1)(c) of the Occupational Health and Safety Act arising from a workplace accident where a worker fell more than three metres from a sawmill catwalk while clearing a conveyor jam without fall arrest protection.

The trial court had acquitted the employer on a guardrail-related charge but convicted on a fall-arrest charge.

On appeal, the employer argued the trial judge made inconsistent findings on foreseeability and lacked evidence supporting the conclusion that workers would cross the guardrail to access the conveyor.

The Superior Court held that the trial judge’s reasoning distinguished between the guardrail and fall-arrest charges and properly found that accessing the conveyor to clear jam-ups was foreseeable.

The court concluded that the employer failed to establish due diligence because it did not implement reasonable safety precautions or training requiring fall arrest protection.

The conviction was upheld.

The applicant sought declarations that operational policies adopted under the Workplace Safety and Insurance Act were unconstitutional and contrary to s. 8 of the Canadian Charter of Rights and Freedoms.

The issue before the court was whether the Superior Court had jurisdiction to determine the matter by application or whether it had to proceed as a judicial review before the Divisional Court.

The court held that the impugned policies constituted the exercise of statutory power under the Judicial Review Procedure Act.

Because the applicant sought only declarations regarding the legality of those policies and no civil action was pending, the matter properly fell within the jurisdiction of the Divisional Court by way of judicial review.

The worker's estate appealed the denial of entitlement for the worker's lung cancer, arguing it was caused by occupational exposure to the sinter plant or asbestos during his employment as a mill operator.

The Appeals Resolution Officer found insufficient objective evidence to establish that the worker was employed in the sinter plant or had significant asbestos exposure.

Relying on epidemiological evidence regarding the worker's 50-year smoking history, the Officer concluded that the lung cancer was not causally related to workplace exposures.

The objection was denied.

The worker appealed the closure of Loss of Earnings (LOE) benefits, the denial of additional treatment, the denial of left shoulder entitlement, and the denial of Chronic Pain Disability following a workplace head injury.

The Appeals Resolution Officer found that the worker was entitled to partial LOE benefits until her actual return to full-time hours and granted entitlement for the left shoulder injury as a recurrence.

However, the denial of additional treatment was confirmed due to a lack of recent medical evidence, and Chronic Pain Disability was denied because the worker did not meet all five required criteria, specifically lacking an extended healing time and impaired earnings capacity.

The worker appealed the WSIB's decisions regarding his earnings basis and Labour Market Re-entry (LMR) plan following a workplace injury.

The worker argued his earnings basis should reflect an apprentice journeyman's wages and requested a change in his training venue from a 51-week program at Everest College to a three-year program at Cambrian College.

The Appeals Resolution Officer denied the appeal, finding no evidence the worker was hired as an apprentice, and upholding the current Suitable Employment or Business (SEB) and training venue as suitable, reasonable, and cost-effective.

The employer objected to the acceptance of a January 2010 claim as a new injury, arguing it was a recurrence of a 1997 lower back injury claim.

Alternatively, the employer sought cost relief under the Second Injury and Enhancement Fund (SIEF).

The Appeals Resolution Officer found that the 2010 incident, which involved pushing a 65-kilogram carton, was a significant new work-related accident and not a recurrence.

The request for SIEF cost relief was also denied, as there was no evidence that the worker's pre-accident disability made him more likely to develop a more severe impairment or prolonged his recovery.

The worker appealed a decision denying entitlement for left carpal tunnel syndrome (CTS).

The worker had an accepted claim for a right shoulder injury and argued that the bilateral CTS arose from note-taking during a Labour Market Re-Entry program or as a secondary condition to the original injury.

The Appeals Resolution Officer found insufficient evidence that the note-taking was repetitive and forceful enough to cause CTS, and noted a significant delay between the start of the program and the onset of symptoms.

The objection was denied.

The worker objected to the denial of full loss of earnings (LOE) benefits from November 30, 2009, following a workplace injury to her neck and left shoulder.

The employer offered permanent modified work as a Store Greeter, which the worker claimed she was unable to perform due to pain.

The Appeals Resolution Officer found that the medical evidence did not support a total inability to work and that the modified work offered was suitable and within the worker's restrictions.

The worker's objection was denied.

The worker appealed decisions regarding his non-economic loss (NEL) permanent impairment rating, entitlement for high blood pressure, closure of his labour market re-entry (LMR) plan, reduction of loss of earnings (LOE) benefits, and continuation of psychiatric treatment.

The Appeals Resolution Officer denied the worker's appeal, finding that the 4% NEL rating for the left hand was correct, the high blood pressure was not accident-related, the worker failed to co-operate in his LMR plan, and further psychiatric treatment was not beneficial.

The reduction of LOE benefits was confirmed.

The worker appealed the quantum of a 25 per cent chronic pain disability non-economic loss (NEL) award and the denial of loss of earnings benefits from November 14, 2006 onwards.

The Appeals Resolution Officer found that the 25 per cent award accurately reflected the worker's residual impairment under the chronic pain disability policy, as physical findings were limited and symptoms did not meet the criteria for a higher award.

The Officer also determined that the employer had offered suitable modified work that accommodated the worker's restrictions, justifying the denial of further loss of earnings benefits.

The worker's objection was denied.

A bus driver was assaulted at work and suffered physical injuries and psychological trauma.

The worker sought loss of earnings (LOE) benefits for a period of absence following a brief return to work.

The Appeals Resolution Officer found that the medical evidence, including a diagnosis of post-traumatic stress syndrome and recommendations for rest and counseling, supported total disability during the disputed period.

The worker's objection was allowed, and full LOE benefits were granted.

The worker suffered a compensable low back and hip injury after tripping and falling at work.

He initially attempted full-time modified duties but found he could only tolerate four hours per day due to increased pain, supported by his family doctor's recommendation.

The WSIB initially denied partial loss of earnings (PLOE) benefits, concluding he was capable of full-time modified work.

On appeal, the Appeals Resolution Officer found the worker credible and determined he had cooperated with the early and safe return to work process by attempting full-time hours before reducing them based on medical advice.

The appeal was allowed, and PLOE benefits were granted for the period in question.

The worker appealed a decision setting September 20, 2007, as the date of accident for their occupational asthma claim, arguing it should be adjusted to October 26, 2001, when they first sought medical attention for breathing concerns.

The Appeals Resolution Officer found that while the worker experienced symptoms earlier, there was no objective medical evidence or confirmed diagnosis of occupational asthma prior to September 20, 2007, when pulmonary function tests were ordered.

The worker's pre-existing conditions, including a long history of smoking and allergies, complicated the medical continuity.

The appeal was denied, and the date of accident was upheld.

The worker suffered a low back strain at work and was placed on modified duties.

He subsequently experienced a flare-up of pain, including new sciatica symptoms, and was authorized off work by his family physician.

The WSIB adjudicator denied lost time benefits, finding the worker should have participated in the employer's early and safe return to work (ESRTW) program.

On appeal, the Appeals Resolution Officer found that the flare-up was a recurrence related to the original injury and that the medical evidence supported a finding of total disability during the disputed period.

The worker's objection was allowed.

The worker appealed the denial of lost time benefits for two days following a workplace exposure to air freshener fumes that triggered a migraine headache.

The initial denial was based on the worker's failure to seek immediate medical attention and obtain medical authorization for the time off.

The Appeals Resolution Officer allowed the appeal, finding that the delay in seeking medical attention was reasonable as the incident occurred over a weekend.

Given the worker's long-term employment, lack of prior claims, and the employer's confirmation of the exposure, the lost time entitlement was granted.

The employer objected to an adjudicator's decision granting initial entitlement and loss of earnings benefits for a worker's low back injury.

The worker claimed he injured his back while lifting boxes, but the employer argued the injury was not reported immediately and questioned the worker's credibility due to his subsequent termination for alleged fraudulent behaviour.

The Appeals Resolution Officer found that the worker's account of the injury was consistent and corroborated by initial statements from a co-worker and the store manager.

The brief delay in seeking medical attention was deemed reasonable.

The adjudicator's decision was upheld and the employer's objection was denied.

The worker appealed a case manager's decision denying reimbursement for a computer purchase and a licensing fee related to her self-directed Labour Market Re-entry (LMR) activities.

The Appeals Resolution Officer allowed the appeal in part, finding that although the worker could not produce the original 1999 invoice for the computer, an invoice for a replacement computer purchased in 2003 was a reasonable estimate of the cost.

The worker was awarded $1,007.24 for the computer.

The Officer also ordered reimbursement of the initial $175 licensing fee required for the worker's new employment in automotive sales, but held that ongoing renewal fees were the worker's responsibility.

The worker appealed the 9 percent non-economic loss (NEL) award for a repetitive strain injury resulting in bilateral trigger thumb.

The Appeals Resolution Officer reviewed the medical evidence and the application of the AMA Guides to Evaluation of Permanent Impairment.

The officer found that the loss of range of motion was correctly measured and converted to a whole person impairment rating of 5 percent for the left hand and 4 percent for the right hand, combining for a total of 9 percent.

The objection was denied and the NEL award was confirmed.