CITATION: Campbell v. Workplace Safety and Insurance Appeals Tribunal, 2013 ONSC 6870
COURT FILE NO.: 116/11
DATE: 2013-11-25
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISONAL COURT
HIMEL, SACHS AND WARKENTIN J.J.
BETWEEN:
RICHARD CAMPBELL
Applicant
– and –
WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL
Respondent
Alan Patrick Wymes, for the Applicant
Gillian Shaw, for the Respondent
HEARD at Toronto: October 25, 2013
REASONS ON APPLICATION
warkentin j.
Nature of Proceeding
[1] This is an application for judicial review of Decision No. 1565/08 of the Workplace Safety and Insurance Appeals Tribunal (the “Tribunal”) together with its Reconsideration Decision, namely Decision No. 1565/08R. The Tribunal hears appeals from the decisions of the Workplace Safety and Insurance Board or WSIB (“the Board”), as it then was.
[2] The Appellant was injured in a workplace accident on June 4, 1990 and was awarded benefits for both his non-economic losses (“NEL”) as well as his future economic losses (“FEL”).
[3] The benefits in issue in this application are the FEL benefits and NEL benefits that were awarded to the Appellant by the Board and reassessed by the Tribunal on appeal. In his appeal to the Tribunal, the Appellant argued that the Board had erroneously discounted his NEL award due to his pre-existing disc degenerative disease. However, he abandoned this argument on his judicial review application. The Tribunal decision specifically stated that it had not discounted its NEL award due to the Appellant’s pre-existing condition.
[4] On this application, the Appellant argued that the Tribunal’s determination to uphold the NEL award of 18% that the Board had awarded was unreasonable. He also claimed that the Tribunal erred by not finding that he was totally disabled from his work-related injury when it considered a non-work related motor vehicle accident that occurred after his work-related injury in determining the quantum of his FEL award.
Legislation
[5] Because the accident that resulted in benefits to the Appellant occurred before 1997, the benefits available are those provided for by the Workers’ Compensation Act, R.S.O. 1990, c. W.11 (the "Act").
[6] FEL awards were provided for under s. 43 of the Act, which stated, in part:
43(1) A worker who suffers injury resulting in permanent impairment or resulting in temporary disability for twelve continuous months is entitled to compensation for future loss of earnings arising from the injury.
(3)…..,the amount of compensation payable to a worker for future loss of earnings arising from an injury is equal to 90 per cent of the difference between,
(a) the worker’s net average earnings before the injury; and
(b) the net average earnings that the worker is likely to be able to earn after the injury in suitable and available employment.
[7] By virtue of s. 43(13) of the Act, the Board was required to review, and if necessary modify, the amount of FEL compensation payable to a worker in the twenty-fourth and sixtieth months after the date of the initial determination.
[8] NEL awards were provided for under s. 42 of the Act, which stated, in part:
s. 42(1) A worker who suffers permanent impairment as a result of an injury is entitled to receive compensation for non-economic loss in addition to any other benefit receivable under this Act.
[9] The compensation for a worker’s NEL was determined with reference to “the percentage of the worker’s permanent impairment arising from the injury as determined by the Board”: s. 42(2)(a).
[10] The Board was required to determine the percentage of the impairment in accordance with:
• the medical assessment of the worker that was required to be completed after “maximum medical rehabilitation” was achieved (s. 42(9)); and
• the prescribed rating schedule, which was the American Medical Association Guides to the Evaluation of Permanent Impairment: (s. 42(5); Reg. 1102, s. 15(1)).
Nature of Benefits in Dispute
[11] Under the pre-1997 Act, injured workers were entitled to periodic benefits known as “temporary total disability” or “temporary partial disability” benefits. If the worker remained either partially or totally disabled twelve months after the injury, the worker was entitled to a FEL benefit. The FEL benefit is calculated by determining the worker’s net average earnings before the accident and subtracting the earnings that he or she is likely to be able to earn after the injury in suitable and available employment. The FEL award is reviewed by the Board 24 months after the date of its initial determination and again 60 months after the date of the initial determination.
[12] Under the pre-1997 Act, NEL benefits are awarded to a worker who suffers permanent impairment as a result of an injury. The degree of impairment is expressed as a percentage of total permanent impairment. A redetermination of the degree of permanent impairment can be sought by the worker if he or she has suffered a significant deterioration in his or her condition. This type of review is different than a review of an NEL determination, which is meant to assess whether or not the original determination was correct.
Facts
[13] The Appellant, a forklift operator, suffered a back injury at work in June 1990. Prior to this workplace accident, the Appellant suffered from degenerative disc disease that did not interfere with his ability to work. After the accident, and in spite of attempting to return to work on a couple of occasions, the Appellant was unable to return to his employment as a forklift operator.
[14] In 1991 the Appellant participated in a vocational assessment in order to ascertain whether or not he was able to participate in some form of re-training.
[15] In April, 1992, the Board granted him FEL benefits commencing May 1, 1992 based upon earnings he could make at jobs that the vocational assessment identified as being appropriate for him after re-training.
[16] In February of 1993, the Board assessed the Appellant’s NEL and awarded it at the rate of 18%.
[17] The Appellant was sponsored by the Board in a re-training program as a civil engineering technician at a community college that began on August 30, 1993.
[18] On September 2, 1993 the Appellant suffered further injuries in a non-work related motor vehicle accident. He was unable to continue with the re-training program and withdrew around September 14, 1993.
[19] At the first (24 month) review of the FEL in May 1994, the Board determined that the vocational goal of a civil engineering technician was appropriate for the Appellant due to the impairment resulting from the work-related injury. The Board assessed the projected earnings he would have made in that form of employment at the entry level.
[20] In March 1997, the second (60 month) review, the Board determined that the Appellant's ongoing problems after September 25, 1990 (approximately 3.5 months after the workplace injury) were due to his pre-existing disc degenerative condition and not the work injury. In making this finding, the Board retroactively revoked all of the Appellant’s benefits that had been previously granted after September 25, 1990.
[21] The Appellant appealed that decision to the Tribunal and in November 2006, the Tribunal found, in Decision No. 1110/06, that the Appellant's workplace injury had significantly contributed to his ongoing disability and ordered his benefits to be reinstated. The Tribunal made no finding regarding whether or not the workplace accident had rendered the Appellant partially or totally disabled from working, and remitted the issue of past and continuing benefits back to the Board.
Summary of Significant Events
[22] The adjudicative history of this matter is somewhat complex. There were a number of different proceedings before both the Board and the Tribunal between the date of the Appellant's workplace accident and this judicial review application.
[23] A summary of significant events is as follows:
• June 4, 1990, Appellant injured his back at work and received temporary disability benefits and vocational rehabilitation assistance from the Board.
• April 3, 1992, Appellant is granted a FEL award effective May 1, 1992 based upon earnings he could make at jobs identified in a vocational assessment conducted in 1991 that determined he could engage in re-training.
• February 1993, the Appellant is granted a NEL award of 18%.
• August 1993, the Appellant commences a program at Durham College for a civil engineering technician 2 year diploma program sponsored by the Board.
• September 3, 1993, Appellant is involved in a motor vehicle accident and suffers injuries.
• Mid-September, 1993, Appellant withdraws from Durham College re-training program due to having aggravated his back injuries as a result of the motor vehicle accident.
• May 1994, the Appellant's first FEL review was conducted (24 month review).
• March 1997, in the second FEL review (60 months) the Board retroactively terminated all of the Appellant's benefits from September 25, 1990 onward.
• June 7, 2001, The Board's Appeals Resolution Officer upholds the Board's decision to terminate benefits from September 25, 1990 onwards.
• November 2, 2006, on appeal to the Tribunal, the Tribunal restored the Appellant's benefits as they existed in September 1990, prior to the Board's decision to rescind them and directs the Board to determine the Appellant's entitlement to past and ongoing benefits.
• January 2007, the Board reviewed and confirmed that the 1993 award of 18% for NEL was correct and recommended that the Appellant be referred for a NEL re-determination to ascertain whether his condition had deteriorated since the 1993 award.
• January 4, 2007, the Board determined that as at May 1, 1997, the Appellant was entitled to a FEL award based upon the average wages of a fully experienced civil engineering technician (the re-training program in which the Appellant had been enrolled, but from which he withdrew.) In reaching this decision, the Board considered the motor vehicle accident in September 1993 as being a factor that prevented the Appellant from re-training and as contributing to his disability.
• July 24, 2007, the Board Appeals Resolution Officer upheld the Board's awards.
• July 25 and August 18, 2008, the Tribunal hears the Appellant's appeal from the Board awards for both FEL and NEL.
• September 9, 2008, the Tribunal hearing panel requested further information from the Appellant.
• May 13, 2010, the Tribunal delivered its decision No. 1565/08 in which it upheld the NEL award of 18%. With respect to the FEL award, the Tribunal found that it had been correctly determined by the Board for the period of May 1, 1992 through the first review of May 1, 1994. The Tribunal then found that the Appellant was entitled to a higher FEL than the Board had awarded after May 1, 1997 (the second review) by basing the award on the same entry level earnings that had been used for the review rather than based upon earnings of a fully experienced civil engineering technician.
• February 9, 2011, he Appellant's request for reconsideration was denied in Decision No. 1565/08R.
• March 2011, the Appellant seeks judicial review of the Tribunal’s decisions.
Board`s Redetermination of the FEL Award
[24] Because the Board had revoked the Appellant’s benefits retroactively, it was necessary for the Board, at the direction of the Tribunal, to reassess the quantum of the Appellant’s entire entitlement to benefits. In January 2007, the Board adjusted the Appellant`s FEL award as of May 1992 and based it on projected earnings associated with jobs that the 1991 vocational assessment had identified as suitable jobs that the Appellant could do without re-training. It then adjusted the FEL amount as at May 1, 1994 (the 24 month review) and based that amount on projected entry level wages of a civil engineering technician, the employment for which the Appellant had intended to train prior to the motor vehicle accident.
[25] The Board then had to make a determination of the Appellant’s entitlement to FEL as at May 1997 (the 60 month review). The Appellant argued that he was entitled to a full FEL award because he was unable to return to work due to his work-related injuries. The Board disagreed and determined that the Appellant was only partially disabled as a result of the work-related injuries and found that his inability to return to work was due to the effects of the motor vehicle accident in September 2003. As a result, the Board granted the Appellant a partial FEL award and based it on mid-level earnings that they determined he was capable of making as a fully qualified civil engineering technician.
Board`s Redetermination of the NEL Award
[26] In January 2007, the Board also reviewed the 18% NEL that had been awarded in 1993 and confirmed that it had been correctly determined. The NEL adjudicator did suggest that the Appellant apply for a NEL redetermination on the basis of a significant deterioration in his condition after 1993, which he did.
Appeal to the Appeals Resolution Officer
[27] The Appellant appealed the FEL award to the Appeals Resolution Officer. In July 2007, the Appeals Resolution Officer found the Appellant was not totally disabled prior to the non-work related motor vehicle accident and thus was not entitled to full FEL benefits. The Appeals Resolution Officer upheld the FEL awards made in the first instance, at the 24 month and 60 month reviews.
[28] The Appeals Resolution Officer also upheld the 18% NEL award.
Appeal to the Tribunal
[29] The Appellant then appealed both the FEL and the NEL determinations to the Tribunal. The Appellant argued again that he should be entitled to a full FEL because the workplace accident had rendered him unable to work prior to the motor vehicle accident.
[30] The Appeal was heard by a three member panel of the Tribunal on July 25 and August 18, 2008. Following the hearing, the Tribunal determined that it would benefit from additional information and issued post-hearing instructions to that effect. The majority of the information related to the Appellant’s medical records and other information regarding the motor vehicle accident. Unfortunately, some of the information that the Tribunal sought was no longer available from the Appellant’s family doctor and the Appellant refused to consent to the Tribunal receiving his Canadian Pension Plan file or information related to the lawsuit he commenced as a result of the motor vehicle accident. The Appellant did provide a copy of a Full and Final Release from his lawsuit that indicated he had received a $75,000.00 settlement.
[31] In May 2010, the Tribunal released a 23 page decision (Decision 1565/08, the subject of this judicial review), in which the Tribunal granted the Appellant's appeal in part. The Tribunal concluded that the Appellant was not totally disabled and unable to earn anything prior to the motor vehicle accident.
[32] It was the Tribunal’s view that the preponderance of evidence established that, while the Appellant had a significant disability after the work-related injury, he was, more probably than not, capable of earning some amount in suitable and available employment. The Tribunal noted that this was consistent with the vocational assessment and the plan for rehabilitation; a plan that the Appellant had endorsed when he asked the Board to sponsor him in a re-training program and obtained medical clearance for the re-training (the civil engineering technician program).
[33] The Tribunal also acknowledged the Appellant’s evidence that the re-training program was only wishful thinking on his part. However, it did not accept the Appellant’s evidence on this point, instead accepting the evidence of the Appellant’s own doctors who supported his wish to engage in the re-training program as well as relying on the Appellant’s own expressed desire to engage in the program at that time.
[34] The Tribunal then concluded that it was more probable than not that, but for the motor vehicle accident, the Appellant would have been able to complete the vocational rehabilitation program and become employed as a civil engineering technician.
Panel’s finding re: FEL Entitlement
[35] With respect to the FEL award, the Tribunal determined that the Board had not correctly determined the quantum of the FEL award after the 60 month review. The Tribunal found that the Appellant was entitled to a higher FEL award based on the same entry-level earnings of a civil engineering technician as at the 24 month (May 1994) review rather than the mid-level earnings used by the Board. The Tribunal determined that a higher FEL was appropriate because the Appellant was already significantly disabled prior to the motor vehicle accident, such that he could not have been expected to earn the mid-level of earnings of a civil engineering technician that the Board had found.
[36] This resulted in a higher FEL amount than the Board had awarded from May 1, 1997 onwards, but was lower than the amount to which the Appellant believed he was entitled.
Panel’s finding re: NEL Entitlement
[37] The Tribunal found that the 18% NEL award that was originally awarded in 1993 was correct. In reaching this decision, the Tribunal reviewed the NEL medical examination that had taken place in 1992 and accepted the evidence from that examination and the calculation that resulted. The Tribunal also noted that, contrary to the Appellant’s submissions, there was no evidence that the NEL had ever been discounted due to the Appellant’s pre-existing condition.
Tribunal Reconsideration Decision No. 1565/08R
[38] The Appellant then asked the Tribunal to reconsider its decision on both the issue of the NEL and FEL awards.
[39] In the Reconsideration Decision No. 1565/08R at paragraphs 3 to 8, the Tribunal outlined the appropriate test for reconsideration. It is noted that in order to grant a reconsideration of one of its decisions, the Tribunal must find that there is a significant defect in the administrative process or content of the decision which, if corrected, would probably change the result of the original decision. The error and its effects must be significant enough to outweigh the general importance of decisions being final and the prejudice to any party of the decision being re-opened.
[40] The Reconsideration was denied in Decision No. 1565/08R (also the subject of this judicial review) when the Reconsideration Vice-Chair was “not persuaded that the worker ha[d] identified errors of such significance that their correction would likely result in a different outcome”, at para. 9 of that decision.
[41] The Appellant then commenced this application for judicial review.
Court’s Jurisdiction and Standard of Review
[42] The Divisional Court has jurisdiction to hear this case under the Judicial Review Procedure Act, R.S.O. 1990, c. J.1, ss. 2, 6(1).
[43] The standard of review for both the decision of the Tribunal and the Tribunal’s Reconsideration Decision is reasonableness: Roach v. Ontario (Workplace Safety & Insurance Appeals Tribunal) [2005] O.J. 1295 at para. 17.
Key Positions of the Parties
Appellant
[44] With respect to the FEL award, the Appellant took issue with the factual basis of the Tribunal’s decision and argued at length about evidence that he alleged the Tribunal “failed to acknowledge and/or consider”. The Appellant submitted that the Tribunal did not identify the evidence on which it based its decision and failed to consider relevant evidence.
[45] The Appellant took the same position before this court as he did before the Tribunal, namely that his workplace accident had already rendered him totally disabled prior to the motor vehicle accident and, as such, he is entitled to a full FEL award, because his loss of earnings is entirely attributable to his workplace accident.
[46] He argued that the evidence (including the medical evidence) demonstrated only minor differences between his complaints from his work related injury prior to the motor vehicle accident in 1993 and what he reported at the time of the motor vehicle accident or thereafter. It was his position that the same part of his back was injured in the compensable work related accident as in the motor vehicle accident and that the motor vehicle accident only caused a temporary exacerbation of the work related injury.
[47] He also argued that the Tribunal's decision was inconsistent with the Board's finding in 1991 that there was no chance of further improvement in his condition and that maximum medical recovery had been reached. Furthermore, the Appellant submitted that the Tribunal did not explain how it determined the extent to which he had allegedly recovered from the effects of the compensable injury or identify any evidence to support its finding that he had recovered from total disability prior to the motor vehicle accident in 1993.
[48] With respect to the NEL issue, the Appellant cited evidence that he claimed showed that the original 1993 calculation of NEL was incomplete and, therefore, unreliable. He argued that, among other things, the Tribunal's decision failed to consider all of his impairments and that the Tribunal failed to comply with the Board policy Document No. 18-05-03 and failed to use the prescribed rating schedule. It was his position that the Tribunal then failed to properly apply the definition of “permanent impairment” and failed to consider all of the relevant medical information in reaching its decision.
[49] The Appellant argued that his percentage disability, properly calculated, based upon the evidence presented at the Tribunal hearing, is greater than 18%, and thus, he is entitled to a higher NEL award.
[50] Based upon these arguments, the Appellant submitted that the Tribunal’s decisions were unreasonable.
Respondent
[51] The Respondent argued that determining the relative contribution of workplace and non-workplace events is squarely within the Tribunal's expertise. It was the Respondent's position that the Tribunal carefully reviewed, explained and applied the law and Board policies concerning the effect of the motor vehicle accident on the Appellant's FEL award and that its interpretation of the law and policy was reasonable.
[52] The Respondent noted that the law pertaining to post workplace accident events was reviewed in both Decision No. 1565/08 and the Reconsideration Decision No. 1565/08R. The Respondent argued that, in reaching its determination, the Reconsideration Vice-Chair properly cited the following principle from the case of Athey v Leonati [1996] 3 S.C.R. 459 at para 32:
It is… necessary not only to determine the plaintiff's position after the tort but also to assess what the "original position" would have been. It is the difference between these positions, the "original position' and the "injured position' which is the plaintiff's loss. In the cases referred to above, the intervening event was unrelated to the tort and therefore affected the plaintiff's "original position". The net loss was therefore not as great as it might have otherwise seemed, so damages were reduced to reflect this.
[53] The Reconsideration Vice-Chair also referred to the Tribunal’s Decision No. 1390/98 at paragraph 36, in which the Tribunal stated:
As we interpret [the Athey] reasoning, the ultimate responsibility of the adjudicator or finder-of-fact is to determine the point past which the Plaintiff or Claimant is fully and fairly compensated for the consequences of a particular injury. If the evidence establishes that a determinable portion of a disability is a result of an intervening event, the original injury ceases to have responsibility for that additional disability.
[54] It was the Respondent's position that the Tribunal went through the very exercise of determining the Appellant's level of disability before and after the motor vehicle accident that it was required to consider. The Respondent submitted that the evidence demonstrated that the Appellant had asked for and received vocational re-training after the workplace accident which was supported by his own doctors. As a result of its review of this evidence, the Tribunal concluded that while the Appellant had a significant injury from the work related accident, he was not totally disabled prior to the motor vehicle accident.
[55] The Respondent submitted that this judicial review application was simply an attempt by the Appellant to have the same evidence that was before the Tribunal re-considered and re-weighed. Counsel argued that this is not the function of this Court.
[56] The Respondent maintained that the Tribunal properly weighed all the evidence and concluded that the evidence enabled it to distinguish the loss of earnings that resulted from the workplace accident from the loss of earnings that resulted from the motor vehicle accident. The Respondent also argued that there was ample evidence to support its findings, rendering its conclusions regarding the determination of the FEL award reasonable.
[57] With respect to the NEL issue, the Respondent argued that the Tribunal applied the appropriate methodology in determining the percentage of the Appellant’s disability and that its decision was, therefore, reasonable.
[58] In support of this position, counsel for the Respondent argued that the NEL was calculated in 1993 by the Board based upon medical evidence at the time and by using the proper prescribed rating criteria. This was then reviewed by the Tribunal together with other medical evidence from the Appellant's physicians.
[59] Similarly, the Respondent submitted that the Reconsideration Decision was reasonable.
Conclusion
[60] Decisions of the Tribunal are entitled to deference. The Tribunal is a specialized tribunal which finds facts, decides questions of law and applies its understanding of the body of case law, policy and jurisprudence that has developed around Ontario's worker's compensation/workplace safety and insurance system. The Tribunal has exclusive jurisdiction to determine entitlement to benefits on an appeal from a Board decision.
[61] The Tribunal's decisions were based upon an assessment of the facts and an interpretation of its home statute and Board policy. The Tribunal has exclusive jurisdiction to determine an appeal about a worker's NEL and FEL entitlements. Therefore, when a Court is reviewing the Tribunal's findings of fact, or an inference made on the basis of evidence, the Court is not weighing the evidence as if the matter were before it for the first time. Toronto (City) Board of Education v. O.S.S.T.F., District 15, 1997 378 (SCC), [1997] 1 S.C.R. 487 at para. 48.
[62] When a tribunal is engaged in interpreting a provision with which it has familiarity, its interpretation is entitled to considerable deference, as it is directly within the tribunal's expertise. The issues decided by the Tribunal in this case fall squarely within the Tribunal’s area of experience and expertise. Rodrigues v. Ontario (Workplace Safety and Insurance Appeals Tribunal), 2008 ONCA 719, 92 O.R. (3d) 757.
[63] We find that the decisions of the Tribunal in Decision No. 1565/08 and the Reconsideration Decision No. 1565/08R were reasonable. The Tribunal considered the decisions of the Board and rendered a carefully reasoned 23 page decision that set out the background facts in detail, including the medical evidence, and reviewed the Board adjudication on both the FEL and the NEL findings.
[64] In coming to its decision to uphold the Board’s findings regarding the FEL award, the Tribunal reviewed the medical and related evidence and concluded that, while the Appellant had a significant disability prior to the motor vehicle accident, he was not totally disabled. There was ample evidence to support its findings. The Tribunal’s decision on this point was reasonable. The reasoning is justifiable, transparent and intelligible and the conclusion reached “falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”: Dunsmuir v. New Brunswick, 2008 SCC 9, 2008 S.C.C. 9, [2008] 1 S.C.R. 190, at para. 47.
[65] In upholding the NEL award of 18%, the Tribunal reviewed the NEL assessment and contemporaneous medical evidence of the Appellant’s doctors. It also considered the Board’s calculations of the Appellant’s NEL in 1993 and the criteria upon which that award was based. The Tribunal concluded that the assessment of the NEL at 18% was correct and its decision on this issue was also reasonable.
[66] After the Tribunal upheld the Board’s findings, the Appellant then asked the Tribunal to reconsider its decision, arguing that the Tribunal had committed several procedural errors that contributed to the errors it made in its findings on the FEL and the NEL issues. The Vice-Chair at the Reconsideration hearing, after reviewing the Appellant's lengthy submissions, concluded that there was no significant defect in the administrative process or content of the original decision, which, if corrected, would probably change the result of the original decision. On that basis, it denied the reconsideration request.
[67] We find that the Reconsideration Decision carefully and reasonably dealt with the Appellant’s arguments, thoroughly analyzed both the facts and the existing jurisprudence and that its decision to uphold the Tribunal’s findings was reasonable.
[68] On this application for judicial review, the Appellant has not raised any new issues. Rather he sought to re-argue the evidence that was heard by the Board and considered on appeal to the Tribunal in the hope that this court would re-evaluate and re-weigh that evidence and come to a different conclusion. It is not the function of this court to re-weigh evidence.
[69] For these reasons, the Appellant's application for judicial review is dismissed.
[70] The parties agreed that no costs would be payable and therefore there is no order as to costs.
Warkentin J.
Himel J.
Sachs J.
Released: November , 2013
CITATION: Campbell v. Workplace Safety and Insurance Appeals Tribunal, 2013 ONSC 6870
COURT FILE NO.: 116/11
DATE: 20131125
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
HIMEL, SACHS AND WARKENTIN J.J.
B E T W E E N:
RICHARD CAMPBELL
Applicant
– and –
WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL
Respondent
REASONS FOR JUDGMENT
WARKENTIN J.
Released: November 25, 2013