HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Peter Blair McGuin
Applicant
-and-
Workplace Safety and Insurance Board
Respondents
DECISION
Adjudicator: Brian Cook
Indexed as: McGuin v. Workplace Safety and Insurance Board
APPEARANCES
Peter McGuinn, Applicant
Shawn Weston, Paralegal
Workplace Safety and Insurance Board, Respondent
Greg Bullen, Counsel
1This Application alleges discrimination with respect to services because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant is an injured worker who suffers from a work-related bilateral shoulder condition. He also has a neck condition that arose after the work-related shoulder condition and which the Workplace Safety and Insurance Board (“WSIB”) has determined is a non-compensable condition. The alleged discrimination relates to decisions of the WSIB and things that were allegedly said to him by the WSIB Claims Manager concerning his entitlement to benefits and services as a result of the neck condition.
2In particular, the applicant alleges that the Claims Manager initially told him that if he had the surgery, his loss of earnings benefits would be terminated and he would not be entitled to further return to work assistance. According to the applicable WSIB policy, this is not what should happen when a worker is temporarily unable to continue in a Work Transition program (“WT”). The policy provides that there may be no reduction in benefits for a short-term temporary inability to continue in a WT program and a reduction of benefits if the inability is longer term. The applicant alleges that the Claims Manager misinformed him and that in so doing she discriminated against him because of disability.
3The Application was heard in Windsor on October 17, 2014. I heard evidence from the applicant and the Claims Manager.
BACKGROUND
4As a result of the work-related bilateral shoulder condition, the applicant was not able to return to his pre-injury occupation. The WSIB developed a WT Plan which involved determining a Suitable Occupation and a plan to allow him to develop the skills necessary to perform that occupation. Ultimately, a Suitable Occupation of Construction Estimator was identified. The WT Plan involved a period of educational upgrading followed by a retraining program at a college.
5As part of that process, the applicant was referred to a Functional Work Capacity Assessment in April 2012. The applicant experienced increased symptoms after the assessment which he initially attributed to his shoulder condition.
6The applicant was referred for an MRI test in August 2012 which revealed that he had a disc protrusion in his cervical spine with associated spinal stenosis. The applicant contends that the disc protrusion happened as a result of physical activity during the Functional Work Capacity Assessment. If this were the case, the neck condition would be a compensable condition and the applicant would be entitled to benefits for it. However, the Claims Manager determined that the neck condition was the result of a pre-existing degenerative condition and not related to the Functional Work Capacity Assessment. The applicant objected to that decision. A WSIB Appeals Resolution Officer denied the objection. The applicant has appealed that decision to the Workplace Safety and Insurance Appeals Tribunal and is waiting an appeal date.
7For the purpose of this decision, therefore, the applicant had a cervical disc condition that was not work-related and therefore non-compensable.
8The applicant was eventually seen by Dr. Morassutti, a neurosurgeon, on April 17, 2013. He reviewed the benefits and risks of surgery. The applicant testified that he was told that if he did not have the surgery, the condition could progress leading to paralysis or even death. He was told that there were similar risks if he did have the surgery. The applicant decided to proceed with the surgery. However, when he called the Claims Manager to discuss how his benefits would be affected she allegedly told him that his benefits would cease. On this basis, he canceled the surgery. Surgery was eventually performed in February 2014.
9As a result of the surgery, the applicant was temporarily totally disabled and unable to participate in the WT Plan. Given the nature of the surgery, the period of incapacity was surprisingly short, lasting for only about four weeks.
10Both parties agree that the WSIB Operational Policy Manual Document No. 15-06-08 applies with respect to the impact on benefits when a worker requires treatment for a non-work-related or non-compensable condition that arises after the work-related condition. This is a comprehensive policy that deals with a myriad of scenarios that may arise. The policy states:
In cases where a worker is temporarily unable to participate in health care or WR activities for a brief period of time (e.g., up to 4 weeks while undergoing minor surgery for a non-work-related condition, severe flu/illness, jury duty, etc.), full benefits should be maintained.
11The policy goes on to discuss what the WSIB will do if a worker is temporarily unable to participate in a WT program for a period of longer duration. In that event, the policy states that the worker is not entitled to full benefits because the worker is temporarily unable to participate in the program for non-compensable reasons. The worker’s benefits will be based on deemed earnings from employment that the worker could do without retraining.
12There are additional provisions if the worker cannot participate in the WT program indefinitely or permanently.
13The applicant alleges that the Claims Manager told him in April that his benefits would cease entirely. The respondent agrees that if the Claims Manager told this to the applicant, it was not correct. The applicant had a further conversation with the applicant in September 2013 and he agrees that at that time, she told him that he would remain on full benefits for up to four weeks but that his benefits would be cut completely after that.
14In November 2013, after Mr. Weston became involved, the Claims Manager applied the policy. She identified Customer Service Representative as a Suitable Occupation with earnings of $10.40 an hour.
15If the applicant’s benefits had been adjusted pursuant to the policy, he would have been entitled to benefits based on the difference between his pre-injury earnings and earnings based on $10.40 an hour.
16However, as it happened, his benefits were not reduced at all because the recovery period was approximately four weeks, and the policy contemplates no reduction of benefits if the period that the worker is unable to participate in the WT Plan lasts less than four weeks.
17In this Application, the applicant alleges in the period from April 2013 to November 2013, the Claims Manager incorrectly told him that his benefits would be cut off completely if he underwent the surgery. On the basis of this information, he felt that he would be unable to have the surgery because the financial consequences would be too severe. He alleges that the Claims Manager also told him incorrectly that his WT Plan would be terminated and that he would not be allowed to continue it. When he found out that his benefits would be reduced but not cut off completely, and that he would still be entitled to a WT Plan, he had the surgery. In the meantime, he was able to participate in the WT program. As noted, as it happens, the applicant received full benefits for the entire period, including the time that he was temporarily totally disabled following the surgery.
18The Claims Manager does not agree that she told the applicant that his benefits would be cut off or that his WT Plan would be terminated. She says that she told him that his benefits would be “adjusted” although she does concede that she did not say what they would be adjusted to until November 2013. She says that she told the applicant that the WT Plan would be suspended. In her testimony she indicated that in fact, if a worker is unable to participate in a WT Plan for an extended period, the WT file is closed until the worker is able to participate and that it is then re-opened. She agreed that she might have explained this and that the applicant could have taken from this that his WT Plan would be ended.
19I heard evidence from the applicant and the Claims Manager about their interactions in the period from April to November 2013. It is not however necessary to review all of this because, for the reasons that follow, I find that the applicant has not established an infringement of the Code even if his version of what was said is accepted.
ANALYSIS
20It is important to note that the applicant does not contend that the policies that were applied to his case are discriminatory. He does not, for example, dispute that it is appropriate for the WSIB to reduce a worker’s benefits in certain circumstances where the worker is unable to participate in a WT Plan for non-compensable reasons.
21Essentially, the applicant alleges that the Claims Manager misled him about what would happen if he had the surgery. The correct answer was that, depending on the recovery period, his benefits could be reduced and that his WT program could be suspended. The applicant alleges that the Claims Manager told him that his benefits would be suspended completely and that his entitlement to a WT program would end.
22For the Application to succeed, the applicant must show that the Claims Manager did in fact mislead him and that misleading him was discriminatory.
23The Tribunal’s power to determine whether a decision about entitlement to benefits under a statutory scheme like the Workplace Safety and Insurance Act has been considered in a number of cases.
24In Zaki v. Ontario (Community and Social Services), 2011 HRTO 1797 at paragraph 15, the following was said:
[T]he prohibition against discrimination because of disability in the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) does not give this Tribunal the power to review decisions under disability-based benefit programs to determine whether they are correct under the legislation, regulations, or policies governing the program; this would be giving an appeal function to the Tribunal that the Legislature did not intend. Of course, as the Tribunal has recognized in other cases, discrimination in government and other benefit programs may be found in other ways such as policies, systemic practices, or considerations based on prohibited grounds irrelevant to the decision being made.
25In Smith v. Workplace Safety and Insurance Board, 2011 HRTO 896 (“Smith”), the applicant was an injured worker who alleged that decisions by WSIB adjudicators about his entitlement to benefits were discriminatory. His allegations included that the staff at the WSIB deliberately delayed a medical assessment, deliberately ignored relevant information and deliberately gave the wrong instructions to a doctor. In that case, the Tribunal stated as follows:
The essence of discrimination is unequal treatment. Leaving aside constructive discrimination, which does not apply here, section 1 of the Code, on which this Application is based, guarantees the “right to equal treatment” in the sense of a right not to be treated adversely because of one of the listed personal characteristics. It does not provide a general guarantee of fair treatment or protection against arbitrary, uncaring or even deceitful conduct. There may be other remedies for such wrongdoing, but unless an applicant can show that he or she was treated adversely in this manner because of a personal characteristic protected by the Code, there is no basis for a remedy under the Code.
In the case before me, the applicant’s argument in essence is that the conduct about which he complains is so egregious that it must be discriminatory. He also claims that while a single incident of poor customer service may not amount to discrimination, a pattern of poor service is discriminatory. But he has not stated how the alleged poor service was related to his disability, other than the fact that he, along with other WSIB claimants, qualifies as a person with a disability under the Code [section 10(1)(e)]. That fact alone cannot support a claim of discrimination. It cannot be said that there is a disadvantage being imposed on the applicant that is not being imposed on others receiving the same service from the WSIB.
26In Seberras v. Workplace Safety and Insurance Board, 2012 HRTO 115 (“Seberras”), a panel of the Tribunal held as follows:
This Tribunal does not have the power to review decisions under benefit programs, including those based on disability, to determine if they are correct under the legislation, regulations, or policies governing the program. An Application related to a denial of benefits should be dismissed if there is not an allegation of discrimination under the Code. A Code application alleging merely that a decision-maker misapplied the rules of a program or misinterpreted medical documentation cannot be reasonably considered to amount to a Code violation and has no reasonable prospect of success. In addition, under s. 45.1 of the Code, the Tribunal cannot reevaluate the substantive or procedural correctness of a decision under another statutory scheme.
27The Tribunal has found discrimination in respect of certain matters related to the WSIB system. In Seberras, above, the Tribunal found that it has concurrent jurisdiction with the WSIB and Workplace Safety and Insurance Appeals Tribunal to consider an allegation that a distinction in the legislation and WSIB policies between different types of work-related stress.
28In Frankson v. Workplace Safety and Insurance Board, 2011 HRTO 2107, the Tribunal found that the WSIB had discriminated against an injured worker who was participating in a labour market re-entry program. After the worker started the program, it was determined that he had a learning disability that meant that he would have difficulty completing the program. The WSIB determined that the worker was entitled to a different labour market re-entry program. The worker alleged that the WSIB should have allowed him to continue in the original labour market re-entry program by accommodating his disability. In that case, the Vice-chair found that the discrimination resulted from a failure on the part of the WSIB to consider whether the worker could have been accommodated in the original program. The Vice-chair recognized that the Tribunal has no jurisdiction to determine an appropriate labour market re-entry (now WT) plan. The Tribunal’s jurisdiction was limited to the issue of whether the WSIB had considered whether the worker’s disability could be accommodated in the original plan. At paragraph 107, the Vice-chair said:
I find that although the dispute arises out of the WSIB’s determinations in relation to Mr. Frankson’s LMR plan, it is not about the appropriateness of one or another LMR plan; is about whether the WSIB discriminated against him by failing to take into account accommodation of his disability in devising the LMR plan.
CONCLUSIONS
29The applicant’s allegation in this case is that the Claims Manager misled him about what would happen if he had to stop the WT program to have neck surgery. He alleges that she gave him information that was wrong and contrary to WSIB’s policies. As a result of this allegedly misleading information, he postponed surgery for several months for a potentially extremely serious medical condition that could have resulted in paralysis. Once he found out the correct information, he proceeded to have the surgery. It is not difficult to appreciate why the applicant feels that this was very unfair.
30His sense of unfairness is significantly aggravated because he and his treating physicians believe that the neck condition for which the surgery was required is in fact compensable. If this had been recognized at the time, there would have been no issue about his benefits as he would have continued to receive full benefits for the surgery and recovery. This is an issue that will be dealt with by WSIAT.
31On behalf of the applicant, Mr. Weston advanced a theory that the WSIB policies about what happens when a worker temporarily cannot participate in a WT program because of a non-compensable condition, were developed by the WSIB in recognition of the Board’s duty to accommodate disability. As I understand this theory, it posits that the WSIB policy that allows benefits to remain unreduced for a period of up to four weeks is intended as a form of accommodation for workers who have a short-term non-work-related disability. Similarly, the policy that provides for a reduction but not complete suspension of benefits for longer term temporary inability to participate in a WT Plan is a form of Code-related accommodation. If this is so, then Mr. Weston submits that the alleged misinformation was in effect a failure to accommodate the applicant.
32As Mr. Bullen points out, there is no evidence to support the theory that the policies in question were developed specifically as a Code-mandated accommodation of non-compensable disability. While the policies may be consistent with the Code it does not follow that they are a Code-related benefit, as opposed to policies of the WSIB reflecting its view of the statute and defining its discretion under the statute. In any event, the issue is not whether the policies are a form of Code-mandated accommodation. The issue is whether the alleged failure on the part of the Claims Manager to accurately inform the applicant of the policies was discriminatory.
33To show that the Claims Manager discriminated against the applicant it seems to me that the applicant must show that the Claims Manager intentionally or unintentionally misled the applicant because of a Code-protected ground.
34It is possible to imagine such discrimination. For example, in the unlikely event that it could be shown that a Claims Manager misled a worker about benefit entitlement because of the worker’s race or colour or other Code-protected ground, discrimination contrary to the Code could be established.
35While this seems clear enough with respect to a Code-protected ground like race or colour, it becomes much less clear when the allegation is that the WSIB discriminated against a worker because of disability. Although disability is a Code-protected ground, by definition, every injured worker has a disability or a claim of disability. One of the central adjudicative decisions the WSIB is required to make is whether a worker’s disability is work-related. As in this case, a worker’s entitlement to benefits depends in large part on that determination.
36In a certain sense, any decision by the WSIB that denies entitlement to benefits because a disability is found to be non-compensable is a decision based on disability. A worker at the WSIB is treated differently depending on whether the worker’s disability is work-related or not. However, this is not sufficient to establish discrimination under the Code. To show discrimination because of disability, it is necessary to show that there was something about the applicant's particular disability that caused the decision-maker to treat the applicant differently than other injured workers with a similar disability.
37As the Panel said in Seberras, this Tribunal does not have the power to review decisions under benefit programs, including those based on disability, to determine if they are correct under the legislation, regulations, or policies governing the program. As noted in Smith, above, this is true even if it is alleged that the benefit decision-maker was arbitrary, uncaring or even deceitful.
38In this case, while I appreciate and understand the applicant’s feeling that he was treated unfairly, I cannot find that this resulted from discrimination under the Code. For all of these reasons, the Application is dismissed.
DECISION
39The Application is dismissed. The applicant has not shown that he was discriminated against on the basis of disability.
Dated at Toronto, this 27th day of January, 2015.
“Signed by”
Brian Cook
Vice-chair