COURT FILE NO.: 447/08

DATE: 20091027

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

JENNINGS, J. WILSON and CORBETT JJ.

B E T W E E N:

MAQSOOD AMIN

Applicant

• and -

WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL

Respondent

Yehuda Levinson, for the Applicant

Gillian Shaw, for the Respondent

HEARD at Toronto: September 24, 2009

JANET WILSON J.:

The Motion

1Maqsood Amin applies for judicial review of the decision of the Workplace Safety and Insurance Appeals Tribunal ("the Tribunal") dated February 22, 2008 ("the February WSIAT Decision"), and the reconsideration decision of the WSIAT dated July 17, 2008 (collectively, "the Decisions"). The Decisions confirmed the initial decision of the Appeals Resolution Officer ("the ARO") that terminated the applicant's benefits on August 5, 2004. The Decisions acknowledged a work-related injury, but denied the applicant's entitlement for any loss of earnings beyond August 5, 2004.

2The applicant seeks an order setting aside the Decisions and remitting the matter back to a differently constituted panel of the Tribunal for a hearing de novo. The applicant argues:

• Once a finding is made that there is a work-related injury causing a loss of income, the Tribunal must determine, in accordance with s. 43(1) of the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sched. A ("WSIA"), "the day on which the worker is no longer impaired as a result of the injury". The applicant argues that the Tribunal failed to apply this section in the WSIA.

• The Decisions to terminate benefits based upon a normal EMG study were arbitrary, and were made without regard to the undisputed medical evidence that the injuries of the applicant continued beyond the cut-off date chosen by the Tribunal.

• The applicant also raises issues of jurisdiction, procedural fairness and natural justice.

The respondent asserts that the Tribunal appropriately considered the evidence in determining that benefits for the applicant should terminate August 5, 2004, and that it acted fairly and within its jurisdiction.

Jurisdiction and Standard of Review

3The Divisional Court has jurisdiction to grant any relief to which the applicant may be entitled pursuant to the broad powers outlined in s. 2(1) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1.

4The Ontario Court of Appeal has confirmed that the appropriate standard of review to be applied to a decision of the Tribunal that is within its expertise is reasonableness. Borins J. states in Rodrigues v. Ontario (Workplace Safety and Insurance Appeals Tribunal) (2008), 2008 ONCA 719, 242 O.A.C. 95 at para. 16, that "[t]o interfere, the reviewing court must find that there are no lines of reasoning supporting the decision that could have reasonably led the tribunal to reach the decision that it did": see also para. 22 and Mills v. Ontario (Workplace Safety and Insurance Appeals Tribunal) (2008), 2008 ONCA 436, 237 O.A.C. 71.

Facts

5The applicant began his employment on May 19, 2004, as a lathe operator making hub caps with Eldale Machine and Tool Ltd. He worked for a period of 11 days. The applicant was expected to produce a certain number of units per day. The applicant testified that his supervisor was putting pressure on him to produce more quickly. It was not disputed that the supervisor was closely monitoring the applicant's work. It does not appear to be disputed that the employer was dissatisfied with the applicant's work and that the applicant received written notice that he was to be terminated during the probationary period, as he had misled the employer about his work experience.

6On June 5, 2004, the applicant sought medical attention at the Grand River Hospital emergency department for pain in his right hand, arm and back, which he attributed to his work. The emergency department notes diagnose the applicant as having repetitive strain injury. The notes provide:

Recently started working at Eldale Machine Tool

Repetitive hand work

Right arm numbness while at work x 2-3. now numbness is constant. Denies ? pain

Right arm swelling as well as hands. Pain Right scapula. Injury happened yesterday at work and overnight began to hurt more

7The emergency room physician prescribed medication, ice and heat for the applicant. He also said that the worker could continue to work with modifications to his right arm movement, and that he should follow up with his family doctor.

8The applicant saw his family physician, Dr. Bennett, on June 9, 2004, and again on June 15, July 17 and July 21, 2004. In his report dated July 27, 2004, Dr. Bennett diagnosed the applicant with the repetitive strain injury to his right arm and hand. Dr. Bennett referred the applicant to physiotherapy and prescribed Naprosyne.

9Dr. Bennett's report dated July 27, 2004, confirms:

I examined Mr. Amin and found that he did have physical signs of a repetitive strain injury to the right arm and hand, with pain on movement and pressure over the arm, wrist and hand and reduced grasp strength with reduced sensation.

He was assessed again in my office on June 15^th, 2004 and on July 07 and 21. He continues to complain of pain, sensation changes and grip strength weakness. He says there has been some improvement, but not yet at the stage where he is able to return to work.

He has not had any previous complaints of repetitive strain injury nor of any medical problems which would have predisposed to this injury.

He continues to receive therapy, and while he has improved, he is nowhere near recovered.

When he is well enough to return to the workforce, he must avoid any conditions which require frequent, rapid repetitive actions of his right arm, wrist and hand.

(Emphasis added)

10After June 4, 2004, the applicant did not return to work. He advised the employer of his injury on June 7, 2004. Shortly thereafter, the employer discharged the applicant from his employment without cause, as he was still within his probationary period.

11The applicant attended physiotherapy treatment for right arm repetitive strain injury. The physiotherapy report dated June 15, 2004, recommended daily treatment for eight to ten weeks. The report also indicates that complete recovery was expected in approximately ten to 12 weeks. This is the only document providing an anticipated date for recovery.

12The family doctor then sent the applicant to a neurologist, Dr. Carleton, for tests and diagnosis. Dr. Carleton diagnosed the applicant with tendonitis in his report dated August 5, 2004. Dr. Carleton stated that he did not expect to find evidence of nerve entrapment, but conducted the EMG tests as requested. His report dated August 5, 2004, states:

This 44 year old right handed man, as you know, has had problems with his right arm for about two months now. Apparently he was doing a repetitive job at work and he developed pain and swelling in the arm. The symptoms appear to be fairly constant. Strength he says he is "not powerful". He has been having physio on his neck and shoulder and arm. He complains that the sensation of his fifth digit and the palm of the hand tends to be reduced. No problems with the left hand and arm, nor with his feet or legs. He has been taking TYLENOL or TYLENOL #3 occasionally for pain.

Past history is entirely clear.

OPINION: think that this man probably has tendonitis in his right arm. I do not think that we are going to find any evidence of nerve entrapment. We will do nerve conduction studies today as requested.

13Dr. Carleton confirms on August 5, 2004, that as expected, the EMG nerve conduction studies were normal:

EMG: Studies were performed on the right arm. In the median nerve distribution, no abnormalities of motor or sensory conduction were seen. In the ulnar nerve distribution, no abnormalities of motor or sensory conduction were seen. Radial sensory potential and conductor velocity was normal.

EMG on the right brachioradialis and first dorsal interosseous, showed no evidence of denervation, normal appearing motor units and a generally reduced effort.

OPINION This is a normal study.

The Findings of the Tribunal

14There was considerable evidence called before the Tribunal about the nature of the work required of the applicant, the degree of pressure exerted upon the applicant to produce, as well as an ergonomic analysis of the requirements of the lathe operator job. In the February WSIAT Decision, the Tribunal preferred the evidence of the employer when there were inconsistencies between the witnesses called on behalf of the employer and the applicant.

15The Tribunal in the February WSIAT Decision somewhat reluctantly concluded that the applicant had experienced a minor repetitive strain injury as a result of his employment, based upon the emergency hospital report and the medical report of the family doctor.

16However, the Tribunal confirmed the decision of the ARO that granted the applicant benefits that terminated on August 5, 2004, based upon the normal EMG study. The key findings relevant to this application for judicial review are in the February WSIAT Decision at paras. 45, 47 and 48:

45 I find the only fact going for the worker of any significance is that the June 5, 2004 medical report was filled out on the day of assessment and the physician identified a repetitive strain and accepted that there had been a work related injury at that time. He recorded that the worker had acknowledged that he had not informed the employer and the worker did call in to report on Monday June 7. In June the family physician indicated that the worker could not work while participating in treatment at that time and that an appropriate return to work could be coordinated with the employer and there was information that complete recovery was expected in ten to 12 weeks.

47. Notwithstanding the weakness of the worker's evidence, there is proof of accident based upon the medical report of June 5, 2004 which reports a repetitive strain injury from work performed. It is not unusual for there to be a delay in the development of what might be a gradual onset. The worker's family physician declared the worker unable to work. Neither party entertained any further communication. The ARO allowed [loss of earnings] benefits to the date of the EMG studies which were found to be normal on August 5, 2004. Beyond that date the worker had ongoing problems none of which could be medically substantiated.

48. I find that the worker suffered a minor repetitive strain injury over the very short period of time that he worked for the employer. Any lasting effects were not likely from the work routine. While there is satisfactory proof by medical confirmation of initial entitlement, the full [loss of earnings] benefits should be payable from Monday, June 7, 2004 to August 5, 2004 without further responsibility on the part of the employer. I am satisfied that the worker's subsequent problems, whatever the source be, were not caused by the worker's short period of employment with the employer.

(Emphasis added)

17It is not disputed upon a review of the medical evidence that the applicant's symptoms continued well beyond August 5, 2004, although it is equally clear that the various doctors were unable to pinpoint a physical cause for the ongoing symptoms. The Tribunal appeared to accept the presence of an ongoing injury. The reasons state, "I am satisfied that the worker's subsequent problems, whatever the source be, were not caused by the worker's short period of employment with the employer". The applicant argues that there is no evidence before the Tribunal supporting this conclusion.

Section 43(1) of the WSIA

18Once there is a finding of a work-related injury that entitles a worker to payments for loss of earnings, the Tribunal is required by s. 43(1) of the WSIA to determine the day on which the worker is no longer impaired as a result of the injury:

43(1) A worker who has a loss of earnings as a result of the injury is entitled to payments under this section beginning when the loss of earnings begins. The payments continue until the earliest of,

(a) the day on which the worker's loss of earnings ceases;

(b) the day on which the worker reaches 65 years of age, if the worker was less than 63 years of age on the date of the injury;

(c) two years after the date of the injury, if the worker was 63 years of age or older on the date of the injury;

(d) the day on which the worker is no longer impaired as a result of the injury.

(Emphasis added)

Conclusions

19The issues referred to in the applicant's factum including questions of jurisdiction, procedural fairness and natural justice were not pursued in argument. There is no merit to the suggestion that the Tribunal exceeded its jurisdiction, was unfair or failed to respect principles of due process.

20The issue is whether the Tribunal's decision to terminate the benefits on August 5, 2004 is reasonable. This court owes considerable deference to a decision of the Tribunal within its area of expertise as confirmed in Rodrigues at para. 16.

21The conclusions of the Tribunal cannot be reconciled with the undisputed medical evidence filed by applicant, and hence are not reasonable. The following are the conclusions of the Tribunal that are problematic:

• "The ARO allowed [loss of earnings] benefits to the date of the EMG studies which were found to be normal on August 5, 2004. Beyond that date the worker had ongoing problems none of which could be medically substantiated."

• "I am satisfied that the worker's subsequent problems, whatever the source be, were not caused by the worker's short period of employment with the employer."

The report of Dr. Carleton confirmed on August 5, 2004 - the very day that the benefits were terminated - that the applicant probably had tendonitis. It states, "OPINION: think that this man probably has tendonitis in his right arm. I do not think that we are going to find any evidence of nerve entrapment. We will do nerve conduction studies today as requested."

The medical brief discloses a continued litany of problems experienced by the applicant after August 5, 2004, although there is no definitive diagnosis of the cause of these problems. The reports include:

• The Report of Dr. Hanna, a rheumatologist, dated November 6, 2004, suggesting a diagnosis of de Quervain's tenosynovitis.

• The Report of Dr. Bennett dated January 15, 2005, confirming ongoing difficulties and explaining the onset of repetitive strain injury.

• The Report of Dr. Elmarghy dated January 26, 2005, confirming "upper extremity tremor with uncertain etiology".

• The Report of the Waterloo HSO Mental Health Services dated March 23, 2005, confirming depression, anxiety, distress and that Mr. Amin "had a tendency to obsess about small details of his experiences since the injury and about the denial of his WSIB claim.… He has difficulty coping and pacing his activities. He is upset that he is having difficulty getting back to where he was before his injury." This report recommends psychotherapy for pain management.

• The Medical Report of Dr. Schuringa dated June 1, 2005, confirms negative findings for pathology, but confirms some tenderness along the flexor tendons in the distal forearm. He states, "I am not certain we are going to [identify] any specific lesion or pathology that is responsible for this man's symptoms. I think we need to rule out the essential problems that precipitate such pain but I am not optimistic that we are going to find any correctable pathology."

22The conclusion of the Tribunal that beyond August 5, 2004, "the worker had ongoing problems none of which could be medically substantiated" is not in accordance with the medical reports. The medical reports substantiate the ongoing injury, but are unable to pinpoint a definitive cause.

23Until this work related injury, the applicant has no prior contributing history and there is no suggestion that the cause of the ongoing symptoms is a new or unrelated cause.

24The Tribunal appears to limit the period of benefits to August 5, 2004, for two reasons.

• The first reason relied upon by the Tribunal is that on August 5, 2004, there was a normal EMG study. There is no evidence whatsoever that a normal EMG study means that the repetitive strain injury is resolved. This conclusion of the Tribunal is in conflict with the medical report of Dr. Bennett, the family doctor, who confirmed on July 27, 2004, that "[h]e continues to receive therapy, and while he has improved, he is nowhere near recovery", as well as the medical report of Dr. Carleton dated August 5, 2004, that confirmed ongoing difficulties.

• The second reason relied upon by the Tribunal is that the applicant only worked for the company for 11 days, and this very short period of employment could not give rise to an injury of some duration. A worker may be injured at any time on the job, regardless of whether he or she is a long term employee. It is of note that the applicant worked for the same agency through which he found employment with Eldale Machine and Tool Ltd. for a period of six years without incident.

25There is no suggestion in any of the medical reports that the applicant is exaggerating or making up symptoms for secondary gain to obtain continued benefits.

26Once there is a finding of a work-related injury, as in this case, the Tribunal must determine the date on which the worker is no longer impaired as a result of the injury, based upon all of the evidence, and with particular regard to the medical reports.

27The Tribunal did not conclude that the applicant was exaggerating or fabricating symptoms for secondary gain after August 5, 2004, and that for this reason August 5, 2004 was the "day on which the worker is no longer impaired as a result of the injury".

28The only suggestion of a timeframe for the applicant's recovery is in the form filled in by the physiotherapist on June 15, 2004, which recommends daily treatment for eight to ten weeks and states that the physiotherapist anticipated recovery in ten to 12 weeks. The Tribunal relies upon this statement at para. 45 of the February WSIAT Decision, which states, "there was information that complete recovery was expected in ten to 12 weeks". Yet this statement cannot reasonably found the conclusion of the Tribunal and effectively trump the detailed medical reports filed after this date by the applicant's treating physicians, which confirm the continued injury.

29For these reasons I conclude that the finding of the Tribunal in the Decisions are unreasonable and are not supported by the evidence, having regard to the test in Rodrigues. This matter should be sent to another Tribunal to determine the date, on or after August 5, 2004, when the applicant no longer had a work-related injury.

30It may be, as suggested by counsel for the applicant, that this is a thin skull situation with the applicant suffering a genuine ongoing injury, or it may be, as suggested by the respondent, that the applicant may be exaggerating for secondary gain.

31If the Tribunal is dissatisfied with the medical evidence provided in this matter to date, the Tribunal can require the applicant to submit to a health examination. This power if provided for in s. 134 of the WSIA.

Health examination

32If the chair or a vice chair of the Appeals Tribunal determines that an issue on an appeal concerns the Board's decision on a health report or opinion, the chair or vice chair may require the worker to submit to an examination by a health professional (selected by the chair or vice chair) and the worker shall do so.

33It is important for the applicant to provide medical reports that not only outline symptoms, observations and physical findings, but answer the question as to whether the ongoing symptoms or findings are probably caused by the work-related injury in June, 2004, or by another cause.

34For these reasons, the application for judicial review is allowed, and the matter is referred back to a differently constituted Tribunal to determine the date when the applicant no longer had a work-related injury, on or after August 5, 2004.

Costs

35At the conclusion of the hearing counsel made their submissions as to costs. [Counsel for the applicant requested $11,233.99 in his bill of costs.] Costs fixed payable to the applicant in the amount of $4500.00 inclusive. [ I had written down 4000-5000 in my notes was that what we thought????]