COURT FILE NO.: 188/04

DATE: 20050406

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

LANE, JENNINGS AND SWINTON JJ.

B E T W E E N:

ANGELA VITULANO

Applicant

• and -

WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL and RCP INC.

Respondents

Avril Hasselfield, for the Applicant

Daniel S. Revington, for the Workplace Safety and Insurance Appeals Tribunal

HEARD at Toronto: April 6, 2005

SWINTON J.: (Orally)

1The applicant seeks judicial review of a decision of the Workplace Safety and Insurance Appeals Tribunal, dated December 30, 2003, in which it rejected her appeal of a denial of two claims for benefits. The parties are agreed that the standard of review is patent unreasonableness, and we agree.

2There were two claims before the Tribunal: an issue of whether she was disabled as a result of her work conditions that caused her absence from January 15, 1999 to February 1, 1999 and whether she suffered a specific accident at work on March 15, 1999.

3The Tribunal did not find the applicant to be a credible witness. It considered the ergonomist’s report and the medical findings of her treating physician, Dr. Rittenberg, and concluded that her job duties did not significantly contribute to the worker’s injury and time off work from January 15 to February 1, 1999.

4The Tribunal then considered the March 19, 1999 claim, which occurred the day of her return from a disciplinary suspension for smoking. After reviewing the medical reports and the surrounding circumstances, including events surrounding the smoking suspension that preceded the alleged incident on March 15, the Tribunal concluded that no accident occurred.

5The circumstances and timing of the reporting of the accidents, the compatibility of the medical diagnosis and the applicant’s credibility were crucial factors in the Tribunal’s decision. There is evidence on which the Tribunal could conclude that she did not report that her absence in January was for a work-related injury until her return to work in February.

6The panel found that all the medical reports after Dr. Rittenberg were based on the applicant’s own version of events, a version which the panel rejected on the evidence before it. These medical reports are therefore based on the incorrect premise that the applicant’s disability was caused either by a difficult job or by a specific accident which the panel found did not occur. The panel was acting reasonably in making the determination not to rely on these medical reports to establish a cause of the disability.

7In our view, the Tribunal carefully reviewed the evidence and gave reasons for its decision. The decision it reached on the basis of the evidence was not patently unreasonable. For these reasons, the application is dismissed.

LANE J.

JENNINGS J.

SWINTON J.

Date of Reasons for Judgment: April 6, 2005

Date of Release: April 20, 2005

COURT FILE NO.: 188/04

DATE: 20050406

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT