COURT FILE NO.: 714/02

DATE: 20040419

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

MACFARLAND, THEN AND SWINTON JJ.

B E T W E E N:

JANE ROACH

Applicant

• and -

WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL

Respondent

Chris Paliare, for the Applicant

John C. Murray and Jeffrey Oliver, for the Respondent

HEARD: April 19, 2004

MACFARLAND J.: (Orally)

1In its Reasons, the Tribunal stated as follows at paragraphs 33, 40 and 56 of its decision:

33“Mr. Tascona argued that the affidavit provided by the worker’s co-worker proved that the worker had sustained both an injury to the front of her head and an injury to the back of her head. In Mr. Tascona’s view, this evidence significantly undermined the correctness of the essential finding in this case: that the worker had not suffered a traumatic injury to the back of her head so as to give rise to the kind of trauma necessary to trigger TVBI.

40Hence, we are not persuaded that the content of the co-worker’s affidavit is sufficiently weighty to contradict the substantial evidence on file regarding the initial reporting of the incident. We are not persuaded, therefore, that we erred in our finding that the worker did not likely sustain a second injury to the back of her head so as to provide a likely source for a TVBI injury.

56In the Panel’s view, this report provides the clearest evidence of the history of the worker’s symptoms and supports the Panel’s finding that the worker suffered a single blow to the head initially that did not cause a loss of consciousness, that she did not suffer a blow to the back of the head or neck, that the initial symptoms associated with this injury subsided, and that the worker developed a new constellation of symptoms in March 1992 that were substantially more debilitating than the symptoms she initially experienced from the injury.”

2In our view, the Tribunal focused on the issue of whether there was one blow or two to the applicant’s head, rather than the issue in this case which is, whether the injury of January 3, 1991 caused her to suffer TVBI. Where, as here, the Tribunal’s conclusion that the applicant suffered one blow was so critical to the decision there was an obligation to consider and clearly explain the basis for their rejection of the co-worker’s unchallenged sworn evidence. See Payne v. Ontario Human Rights Commission, 2000 5731 (ON CA), [2000] O.J. No. 2987 at para. 148.

3Even assuming the first issue resolved in favour of the applicant, there remained to be determined the conflict in the medical opinions, particularly those of Dr. Silver and Horsey on the one hand and Dr. Spence on the other. That conflict remains to be resolved.

4For the foregoing reasons, the decision is patently unreasonable and must be quashed. The matter is remitted to the Tribunal in accordance with these reasons.

5The endorsement will read: “For reasons given this day, the decision of the Tribunal is quashed. Costs to the applicant fixed in the sum of $6,000, inclusive of GST and disbursements.”

MACFARLAND J.

THEN J.

SWINTON J.

Date of Reasons for Judgment: April 19, 2004

Date of Release: April 23, 2004

COURT FILE NO.: 714/02

DATE: 20040419

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT