Martin v. Workplace Safety and Insurance Board, 2015 HRTO 540

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Daniel Martin

Applicant

-and-

Workplace Safety and Insurance Board

Respondent

DECISION

Adjudicator: David Muir

Date: April 28, 2015

Citation: 2015 HRTO 540

Indexed as: Martin v. Workplace Safety and Insurance Board

APPEARANCES

Daniel Martin, Applicant

Self-represented

Workplace Safety and Insurance Board, Respondent

Greg Bullen, Counsel

Introduction

1This Application alleges discrimination with respect to employment because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2A hearing in this case was held on March 5, 2015. I heard the evidence of the applicant and Ms. K. Shipley, the Case Manager of the applicant’s Workplace Safety and Insurance Act (“WSIA”) claim file at the material times.

The Dispute

3In his Application the applicant alleges that the respondent discriminated against him on the basis of age and disability when it terminated his benefits. In particular, the applicant alleges that he was advised by a specialist that he required surgery for his shoulder. The applicant alleges that Ms. Shipley told him that the specialist should not have told him that he required surgery and that his slow healing was due to his age and diabetes.

4The respondent filed a Response (Form 2). The respondent alleges that it made its decisions about the applicant’s entitlement to benefits based on the medical information it was provided. In particular it considered whether or not the ongoing issues the applicant was having were related to the work place injury which may have been compensable or other non-work related issues which were not. The respondent alleges that the case manager determined that the applicant’s on going issues were caused by the non-compensable issues such as arthritis and the adhesive capsulitis which was said to be related to the applicant’s diabetes. The respondent denied that the applicant was told by the case manager that he did not need surgery.

5At the outset of the hearing I reiterated the issues I had raised in a Case Assessment Direction I issued to the parties on February 26, 2015 the relevant text of which is reproduced here:

As the parties are aware this case went to a summary hearing where the question of whether or not the Application should be dismissed because it had no reasonable prospect of success was considered.

The summary hearing was held at a preliminary stage of the proceeding and prior to the respondent having filed a Response. At that time the Tribunal determined that it could not be said at that stage that the Application had no reasonable prospect of success. The respondent has filed a Response to which the applicant has not responded and the parties have produced the evidence they will be relying on at the hearing.

The applicant appears be intending to give evidence and an outline of his evidence has been provided. It is not clear that the applicant’s evidence addresses the issues in dispute, in particular the respondent’s positions in response to his claims. The applicant has also provided a number of documents which will be reviewed prior to the hearing. The applicant will be required to explain how they relate to the particular issues in dispute in this case.

As the Tribunal discussed in Pellerin v. Conseil scolaire de district catholique Centre-Sud, 2011 HRTO 1777, a full hearing is not appropriate in every case. The Code and the Tribunal’s Rules of Procedure give the Tribunal broad powers to structure hearings to ensure fair, just and expeditious adjudication of Applications. Having reviewed the materials filed by the parties it may be appropriate to reconsider the issue of whether or not this Application can proceed to a full hearing after hearing some or all of the applicant’s evidence.

6After hearing the evidence of the applicant I directed that the respondent call Ms. Shipley. I indicated that I wanted to hear her evidence with respect to her telephone interactions with the applicant as well as her evidence with respect to the decision to terminate the applicant’s benefits.

7The applicant claims that the decision to terminate his benefits was informed by the fact that he is an older worker and that he is a person with a disability, in his case diabetes.

8The applicant had been employed doing moderately heavy manual work when he suffered a workplace injury on July 10, 2012. He filed a claim for and received benefits for a low back and right shoulder strain. The applicant received health care benefits but no loss of earnings as the employer was able to accommodate the applicant.

9After a period of treatment that appeared to be ineffective the applicant was sent for a multi-disciplinary assessment on September 14, 2012. This assessment recommended further treatment which was granted. It was believed at the time that the applicant should be fully recovered by November 20, 2012. These conclusions were adopted by the respondent and communicated to the applicant in a decision dated September 21, 2012.

10The applicant was apparently still not responding to treatment and requested further physiotherapy on October 30, 2012. In response the applicant was referred for a second assessment at the shoulder clinic at the Hotel Dieu Hospital in Kingston.

11The assessment report made recommendations with respect to further treatment and identified degenerative changes in the applicant’s right shoulder likely associated with age and perhaps the diabetes.

12The respondent denied the claim for further benefits reiterating its decision made on September 21, 2012. The decision dated December 21, 2012 provided in part as follows:

The available medical reports reveal a minor pre-existing condition which appears to have impacted recovery related to the low back and right shoulder injuries. In particular, note is made of underlying degenerative tendinosis affecting the right rotator cuff, some AC joint degeneration, and sloping of the acromion. As well, the worker's underlying Type II diabetes could be a contributing or aggravating factor to the suspected right shoulder adhesive capsulitis. Note is also made of some disc degenerative in the lumbar spine, but it appears that the lumbar strain/mechanical low back pain responded to conservative treatment, without ongoing issues. Overall, therefore, there appears to be a minor pre-existing condition which has likely impacted recovery in this case.

13The applicant also alleges that he spoke with Ms. Shipley after the Kingston assessment in November and relayed the assessor’s advice that he needed surgery. The applicant alleges that Ms. Shipley stated that the doctor should not have told him that and the respondent would not pay for any surgery. Ms. Shipley does not recall this conversation but does recall a later interaction with the applicant in December in which the issue of surgery was discussed and agrees that it is possible that she told the applicant that the respondent would not pay for surgery in his case.

DECISION

14There is no question that the fact that the applicant was a person with a disability as defined in the Code, and that he may have had age related changes in his back and right shoulder, were issues that were considered by the respondent in its decision making to discontinue benefits, however there is no evidence that the applicant lead or could point to that would tend to establish that his claim was adjudicated in an adverse manner because of these factors.

15The decision the respondent was required to make was whether or not his ongoing impairments, which they do not dispute, were attributable to a work place injury or were attributable to other issues not connected to the workplace. The decision that was made was that the impairments flowing from the workplace injury had resolved. The other issues identified by the physicians who assessed the applicant for the respondent were not attributable to the workplace injury and therefore were not compensable.

16There is also no question that from the applicant’s perspective he has been treated unfairly in this case. He was able to work and then something happened to him while on the job and as a result he claims to still have impairments. Whatever his state of health now, it is clear from the medical information contained in his claim file that when his benefits were terminated he was still significantly impaired and would have been unable to return to his pre-injury duties. However whether or not the applicant remains entitled to benefits under the WSIA is a question for the respondent to determine.

17In my view I have no jurisdiction to deal with the case because it is simply an attack on the decision of the respondent to deny him benefits. The Tribunal has had the occasion to consider the issue of its jurisdiction in dealing with disputes arising out of the claims adjudication of this respondent. In Seberras v. Workplace Safety and Insurance Board, 2012 HRTO 115, the Tribunal summarized its approach as follows at paragraph 5 :

Our conclusions on the applicable principles can be summarized as follows:

• The Tribunal has jurisdiction over an Application alleging that the denial of WSIB or other statutory financial benefits violates the Code, even if this was done by decision. The provision of such benefits is a “service” under s.1 of the Code.

• The Tribunal does not have jurisdiction over an Application against a neutral third party deciding a dispute between others when the doctrine of judicial immunity applies.

• The Tribunal is not precluded from hearing this Application on the basis that the WSIB and WSIAT have exclusive jurisdiction.

• 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 re-evaluate the substantive or procedural correctness of a decision under another statutory scheme.

18In my view this case clearly falls into the category described immediately above. The dispute here is essentially whether or not the respondent made the correct decision when it discontinued the Applicant’s WSIA benefits. The allegations of the applicant are that they misunderstood the medical evidence and misapplied its own policies in determining the issue. These allegations cannot reasonably be considered to amount to a violation of the Code. The applicant’s remedy, if he has one, is with an objection to the respondent’s decision in his case.

19As regards the allegation that the applicant was told that the respondent would not pay for surgery, I note that in his report the assessor makes no reference to surgery. In any case the respondent’s position, which the applicant acknowledges, was that it would not pay for any surgery for issues that were not related to the workplace injury. For the same reasons set out above this allegation cannot be considered to be a violation of the Code.

20For all of these reasons the Application is dismissed.