Lawson v. Workplace Safety and Insurance Board, 2015 HRTO 850

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

David Lawson

Applicant

-and-

Workplace Safety and Insurance Board

Respondent

INTERIM DECISION

Adjudicator: Brian Cook Date: June 24, 2015 Citation: 2015 HRTO 850 Indexed as: Lawson v. Workplace Safety and Insurance Board

APPEARANCES

David Lawson, Applicant Christine Lundy, Paralegal

Workplace Safety and Insurance Board, Respondent Greg Bullen, Counsel

1This Application alleges reprisal and discrimination in services because of disability, contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). Specifically, the applicant alleges that the Workplace Safety and Insurance Board (WSIB) reprised against him because of an earlier Application to this Tribunal and has discriminated against him in the way that it interacts with him as an injured worker with a psychological disability. The Application also alleged discrimination with respect to various decisions of the WSIB regarding the applicant’s entitlement to benefits under the Workplace Safety and Insurance Act 1997, S.O. 1997, c. 16, as amended (WSIA).

2The Tribunal scheduled a telephone conference call in October 2014 to clarify the applicant’s allegations and to determine whether the Tribunal has jurisdiction to deal with some or all of the allegations. The conference call hearing was reconvened on April 2, 2015. At the time of the first conference call hearing the applicant was self-represented. At the time of the second conference call hearing the applicant was represented by Christine Lundy, a paralegal. The respondent is represented by Greg Bullen, counsel.

THE EARLIER APPLICATION

3The applicant filed an Application in May 2009 because of problems he was having regarding his receipt of benefit cheques from the respondent. That Application was settled between the parties, following which the applicant began to receive his benefits by direct deposit rather than by cheque.

THE CURRENT APPLICATION

4The present Application was filed on March 13, 2014. It concerns various issues that the applicant has regarding decisions that the respondent has made regarding his entitlement to benefits, and also regarding interactions he has had with the respondent.

5The allegations regarding benefit entitlement include:

• entitlement to various medications that have been prescribed and which the respondent has not paid for;
• entitlement to travel expenses for visits to doctors;
• entitlement for psychological treatment;

6In addition to allegations regarding benefit entitlement, the Applicant alleges discrimination with regard to:

• refusal to accept medical opinions provided to the WSIB by the applicant’s health care providers;
• an inability to find a family doctor because of excessive demands for information;
• failure on at least two occasions to direct deposit his benefits.

7In addition to these allegations, the Application refers to the applicant’s frustration in dealing with the respondent. He alleges that his psychological disability is “exacerbated to dangerous and harmful levels” when he is required to deal with the respondent. On this point, the applicant attached to the Application a letter dated February 10, 2010, from Dr. Peter Corbin, a psychologist. That letter catalogues the applicant’s psychological difficulties, although it does not include any Diagnostic and Statistical Manual (DSM) diagnosis. Dr. Corbin advised:

Of all of my clients over the years [the applicant’s] ability to cope with any stress is one of the most limited, if not the most limited, which I have encountered. He reacts extremely negatively when faced with stressful situations. This tendency makes all of his other psychological problems worse, in that his depressive, anxiety and pain related symptoms get magnified quite substantially during one of these episodes (which appear to occur on a regular basis).

8A suggestion offered by Dr. Corbin was that the WSIB could commute the applicant’s loss of earnings benefit and pay it in a lump sum. Dr. Corbin surmised that this might reduce the applicant’s contact with the respondent and this might be beneficial in terms of reducing the psychological distress associated with the applicant’s dealings with the respondent.

9The applicant’s difficulties in dealing with the respondent were elaborated upon in a Request to Amend the Application (“the Request”) that was filed with Ms. Lundy’s assistance. The Request states that the substance of the Application is not based on the entitlement decisions that the WSIB has made but rather on the manner in which the decisions were made and communicated to the applicant, and the manner in which the applicant was treated by various employees of the respondent with whom he has had dealings. The Request states that the respondent has considered and addressed the applicant’s psychological condition only in so far as it has been required to do to make decisions about entitlement to benefits. The Request asserts that the respondent has ignored requests for accommodation that the applicant has made in regard to his psychological disability.

10The respondent has issued a “No Trespass” letter to the applicant that requires him to not contact the respondent or any of its employees directly, but only through a representative. This letter was issued in response to conversations between the applicant and WSIB staff that the respondent felt were not appropriate. The letter itself has not yet been filed with the Tribunal. The applicant asserts that the No Trespass letter was not an appropriate response to his expressions of frustration and that it has further exacerbated his disability.

11The respondent submits that the Tribunal does not have jurisdiction to deal with the applicant’s allegations as they all pertain to issues over which the WSIB and the Workplace Safety and Insurance Appeals Tribunal (WSIAT) have exclusive jurisdiction. The respondent notes that this Tribunal has been clear that it does not have jurisdiction over allegations that are fundamentally allegations about entitlement to benefits under statutory schemes like the WSIA. In its Response, the respondent notes that many of the events and allegations referred to in the Application occurred more than one year before the Application was filed and submits that those allegations should be dismissed for delay. The respondent also indicated that the Application should be deferred if there was ongoing adjudication at the WSIB.

12The respondent opposed the Request to Amend the Application.

13In a Case Assessment Direction dated October 14, 2014, the Tribunal directed that a telephone conference call hearing would be scheduled to deal with the following:

a. Clarification of the nature of any ongoing adjudication at the WSIB b. The respondent’s request that the Application be deferred because of that ongoing adjudication c. Clarification of how this Application relates to the earlier Application filed by the applicant which was apparently settled between the parties. d. Clarification about the Request to Amend as it pertains to things that happened more than one year before the Application was filed and the respondent’s request that the allegations about things that happened more than one year before the Application was filed be dismissed as untimely. e. Discussion about proposed witnesses for the hearing scheduled on February 11, 2015. f. Discussion of any other issues that the parties may wish to raise in regard to the processing of the Application.

14Following that hearing, I issued a Case Assessment Direction dated January 20, 2015. It noted that it appeared that there was no ongoing adjudication at the WSIB relevant to the issues in the Application and that there was therefore no reason to defer the Application.

15During the October 14, 2014 hearing it was not possible to fully canvass all of the issues. The January 20, 2015 Case Assessment Direction provided the following direction regarding the remaining issues:

a. Should the allegations about events that occurred more than one year before the Application was filed be dismissed under section 34 of the Code? b. Should the Application be dismissed in whole or in part as having no reasonable prospect of success because it is essentially a complaint about adjudicative decisions made by the WSIB? c. Should the applicant be permitted to amend the Application? d. What specific accommodations does the applicant want the respondent to make?

ALLEGATIONS THAT ARE DISMISSED

16It is clear that some of the applicant’s allegations relate to matters that are within the exclusive jurisdiction of the WSIB/WSIAT and that relate to benefit entitlement decisions of the respondent. These include the allegations about entitlement to medications, travel expenses and psychological treatments.

17In Seberras v. Workplace Safety and Insurance Board, 2012 HRTO 115 at paragraph 5, a Panel of the Tribunal concluded:

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.

18In this case, the allegations relating to benefit entitlement issues are not matters that this Tribunal has the jurisdiction to deal with. The allegations relating to the benefit entitlement issues are dismissed as having no reasonable prospect of success on that basis.

19The allegation that the respondent refused to accept the opinions of his doctors regarding his entitlement to benefits for medications and treatments relates to the allegations relating to benefit entitlement issues. This is also not an issue that this Tribunal has jurisdiction to deal with.

20The suggestion that the respondent discriminated against the applicant by refusing to commute his loss of earnings benefits as a form of accommodation and as recommended by Dr. Corbin, is also dismissed as having no reasonable prospect of success. As noted in the January 20, 2015 Case Assessment Direction, the WSIB does not have the legislative authority to commute the applicant’s benefits.

21Section 62 of the WSIA reads in part:

62. (1) Periodic payments under the insurance plan shall be made at such times as the Board may determine.

(2) Subject to subsection (3), the Board may commute payments to a worker under section 43 (loss of earnings) and pay him or her a lump sum instead,

(a) if the amount of the payments is 10 per cent or less of the worker’s full loss of earnings; and

(b) if the 72-month period for reviewing payments to the worker has expired or if the Board is not permitted to review the payments.

22The respondent says that this section allows it to commute loss of earnings benefits only if the loss of earnings is 10 per cent or less. The applicant receives 100% loss of earnings benefits. The duty to accommodate under the Code does not require a respondent to do something that it does not have the legislative authority to do.

23As further noted in the January 20, 2015 Case Assessment Direction, even if there was a statutory basis to commute the applicant's benefits, it is not clear how commutation of the applicant’s benefits would reduce his contact with the respondent. The applicant's contact with the respondent arises principally from ongoing adjudication of various entitlement issues and commutation would not reduce these contacts in any way.

24For these reasons, the allegation that the WSIB discriminated against the applicant by not agreeing to commute his loss of earnings benefits is dismissed as having no reasonable prospect of success.

25I also find that the allegations relating to the two occasions when a benefit payment was not direct deposited on time have no reasonable prospect of success. On both occasions, the problem arose from changes to the applicant’s banking arrangements. Even if, as the applicant suggests, the respondent could have done more to make the changes and to better facilitate his getting the benefits after the direct deposit did not work, the applicant did not point to any evidence that would establish that the delay in payment was discriminatory as opposed to arising from error or administrative delay.

26The applicant alleges that the respondent may have engaged in reprisal when the cheques were delayed. He refers to a memo from a Claims Manager that mentions the earlier agreement that the applicant would receive his benefits through direct deposit. This does not appear to be evidence that the delay was related to reprisal as it only shows that it was understood that the applicant was supposed to get benefits through direct deposit. I find that the applicant has not established the existence of any evidence to show that the delays in payment was related to reprisal and that allegation is dismissed as having no reasonable prospect of success.

27There is also no evidence identified by the applicant that might show that anything else that has happened in the applicant’s dealings with the respondent had anything to do with reprisal for his having brought the earlier Application. The allegation of reprisal is therefore dismissed as having no reasonable prospect of success.

28The allegation that the respondent has made it impossible to find a family doctor is also dismissed as having no reasonable prospect of success. Apart from his assertion that he has been unable to keep a family doctor because of excessive demands for information, there is no evidence that this is the reason he has difficulty keeping a family doctor and the applicant did not point to any such evidence that might be available.

ALLEGATIONS NOT DISMISSED

29The applicant’s allegation that the respondent has failed to accommodate his disability in the way that it has dealt with him as an injured worker is not dismissed at this time.

30At this stage of the processing of the Application, the question with regard to this issue is whether there is no reasonable prospect of success that the applicant could show that the respondent has not appropriately accommodated his disability in regard to the way that is has dealt with him as an injured worker.

31Based on the information currently before me, I find that it cannot be said that there is no reasonable prospect that this this allegation can succeed.

32As a general principle, a service provider may be required to change the way it communicates with a person to whom it provides a service in order to accommodate a disability.

33In this case, the applicant has provided evidence from Dr. Corbin that supports the applicant’s assertion that his dealings with the WSIB exacerbates his disability and that he may require the respondent to communicate with him in ways that recognize this as a form of accommodation.

34It is important to emphasize that the fact that this allegation is not dismissed at this time does mean that the applicant has established that his disability requires accommodation or that the respondent has failed to provide suitable accommodation. It only means that further information, evidence and submissions are required in order to determine this issue.

35At the hearing, the applicant clarified that this allegation is distinct from allegations about his entitlement to benefits. This distinction may prove to be difficult to clearly establish. There is some indication that some of the applicant’s psychological reactions to his dealings with the respondent arises because he does not agree with the WSIB’s adjudicative decisions. This is not an aspect of the situation that the respondent can accommodate because the WSIB is obviously not required to accommodate the applicant by granting him entitlement to benefits to which he is not entitled.

36However, part of the allegation is that the respondent has failed to sufficiently appreciate the nature of the applicant's disability and how that disability is affected by the manner of communication. The applicant asserts that he requires accommodation in respect of how his disability is affected by his communications with the respondent, and that the respondent has failed to accommodate his disability in regard to those communications. I conclude that further evidence and submissions are required to determine if the respondent has failed to accommodate in the way that it has communicated with the applicant.

NEXT STEPS

37In my view, the appropriate next step is a telephone case conference call to hear from the parties about how they wish to proceed. This would include a discussion about the nature and extent of evidence that may be required to determine the issues of whether the applicant required accommodation in regard to the way the WSIB communicated with him, and whether the respondent has failed to accommodate the applicant.

38The option of seeking a resolution of some or all of these issues through a mediation process under the Tribunal’s mediation/adjudication process can also be discussed at the telephone conference call.