Outar v. Workplace Safety and Insurance Appeals Tribunal, 2013 ONSC 1697

Overview

The applicant seeks judicial review of a decision of the Workplace Safety and Insurance Appeals Tribunal dated February 15, 2012. The Tribunal upheld a decision denying her entitlement to loss of earnings (“LOE”) benefits because of her failure to accept offers of modified duties from her employer. However, the Tribunal allowed the appeal in part by ordering that the benefits cease October 18, 2007 rather than September 17, 2007.

[2]

Standard of Review

The standard of review of this decision on entitlement to benefits is reasonableness (see Rodrigues v. Workplace Safety and Insurance Appeals Tribunal, 2008 ONCA 719 at para. 22).

[3]

Analysis

The applicant argues that she was not given proper notice of the possible permanent termination of her benefits if she did not co-operate with the employer concerning her return to work. The Tribunal found that the applicant was given proper notice having regard to a letter from the claims adjudicator dated September 28, 2007 and a conversation of October 3, 2007 (see para. 34 of the Tribunal reasons). In both communications, the applicant was advised of her obligation to accept modified duties and the adjudicator’s decision to terminate the LOE benefits because of the applicant’s failure to accept the employer’s offer of suitable work.

4The Tribunal also held that the applicant’s failure to attend the continuation of the back-to-work mediation on October 19, 2007 was effectively a refusal of the employer’s offer of modified duties and this was a ground for terminating her LOE benefits. The Tribunal took particular notice of the opinion of Dr. Binhammer, seen on October 17, 2007, who concluded that the applicant’s condition allowed sedentary duties (see para. 45 of the reasons).

5The applicant has not identified any error of law by the Tribunal. There was ample evidence to support its finding of notice. As well, the Tribunal relied on longstanding jurisprudence holding that a refusal of suitable work is a ground for ceasing LOE benefits. Its finding that the applicant was capable of trying to do the modified work was reasonable based on the evidence and its finding respecting the applicant’s credibility.

6We reject the argument that the case law relating to the obligations of private insurers with their insureds has any application to the obligations of the Workplace Safety and Insurance Board, which operates under a specialized statutory regime.

[7]

Conclusion

As the Tribunal’s decision fell within a range of possible acceptable outcomes, defensible in light of the evidence and the applicable law, the application for judicial review is dismissed.

BROWN R.S.J.

[8]

Endorsement

On behalf of the panel, I have endorsed the Application Record, “For oral reasons given, application is dismissed. No order as to costs.”