CITATION: Ferreira v. Workplace Safety and Insurance Appeals Tribunal, 2019 ONSC 3437

DIVISIONAL COURT FILE NO.: 293/18

DATE: 2019/05/06

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Ellies R.S.J., Sachs and Thorburn JJ.

BETWEEN:

Dean Ferreira

Applicant

– and –

Workplace Safety and Insurance Appeals Tribunal

Respondent

H.J. Yehuda Levinson, for the Applicant

Chris G. Paliare and Emily Home, for the Respondent

HEARD at Toronto: May 15, 2019

H. sachs j.

Introduction

[1] The Applicant, Dean Ferreira, applies to judicially review two decisions of the Respondent, the Workplace Safety and Insurance Appeals Tribunal (the “Tribunal”) dismissing his appeal of the denial of his entitlement to loss of earnings benefits. The initial decision that denied his appeal was on July 14, 2015 and the decision refusing his request to reconsider that decision was on February 14, 2018.

[2] In December of 2006 the Applicant was diagnosed with Chronic Pain Disorder (“CPD”). In 2010 he was found to be entitled to Non-Economic Loss (“NEL”) benefits based on a “whole person percentage” of 35%. In 2011 the Applicant requested a review of his entitlement to Loss of Earning (“LOE”) benefits based on the fact that his NEL assessment indicated a significant impairment that impacted on his ability to earn income. LOE benefits are benefits paid to injured workers in place of the income they lost as a result of their work-related injuries. Ultimately, the Applicant’s request for LOE benefits was denied.

[3] The basis for the Applicant’s judicial review application is that in denying him LOE benefits the Tribunal unreasonably went beyond its expertise and made findings as to the his credibility without taking into account the uncontroverted evidence from all the medical professionals who had assessed the Applicant as to the nature of his disability.

[4] For the reasons that follow, I agree with the Applicant and allow the application.

Factual Background

Events Preceding the Decisions Under Review

[5] The Applicant was employed as a labourer at a wall forming business, Formcrete. He started his employment in 2002, and in April of 2005 (when he was 31 years old) he was injured in a workplace accident when he struck his knee with a hammer. He suffered a soft tissue injury, remained off work, and began to receive LOE benefits.

[6] During this time, Formcrete made efforts to provide the Applicant with modified work (for example, work that could be performed in a sitting position). The Applicant returned to work sporadically in May of 2005 and then stopped attending entirely, despite being assured by his employer that modified work remained available. The Applicant has not returned to any kind of work since May of 2005.

[7] Initially, the Workplace Safety and Insurance Board (the “Board”) terminated the Applicant’s LOE benefits effective May 6, 2005, due to his refusal to perform modified work. However, following an appeal by the Applicant, a Board Appeals Resolution Officer (an “ARO”) found that the Applicant was entitled to full LOE benefits through to September 2, 2015, as he was totally impaired. No LOE benefits were to be provided beyond that date as it was determined that the Applicant was only partially impaired and Formcrete had offered suitable modified work.

[8] Over a year later, in December of 2006, the Applicant was diagnosed with CPD, associated primarily with psychological factors. On January 31, 2008, a second ARO determined that the Applicant had no permanent organic impairment and no entitlement for a chronic pain disability.

[9] The Applicant appealed both of the ARO decisions: the one denying LOE benefits beyond September 2, 2005 and the one denying him CPD benefits. On May 18, 2010 the Applicant’s appeal was allowed in part. He was found to have met the entitlement for CPD arising from his workplace injury. However, the Tribunal denied him any further entitlement to LOE benefits beyond September 2, 2005, finding that many of the Applicant’s treating physicians had recommended that he attempt a gradual return to work, that Formcrete continued to offer him modified duties and a workplace assessment, that the Applicant demonstrated no real desire to return to work, and that his conduct was demonstrative of an uncooperative attitude. The Tribunal also determined that the Applicant’s evidence was generally lacking in reliability, to the point where it lacked confidence in his credibility. In conclusion, the Tribunal decided that the Applicant’s loss of earnings since September 2, 2005 was not due to his injury but due to “his view of himself as being totally disabled”.

[10] Following this decision, the Tribunal sent the matter back to the Board for an expert determination as to the level of his NEL entitlement for CPD. NEL benefits are granted to workers who suffer permanent impairments due to work-related injuries. The Board must determine the worker’s “whole person impairment percentage”, which is the degree to which the worker’s whole body is impaired as a result of the work-related impairment. The monetary value of a NEL benefit is based on a calculation involving the impairment percentage, a base dollar value set out in the legislation and the worker’s age at the time of the injury.

[11] The Applicant was assessed by two psychiatrists and their reports were reviewed by the Board’s NEL Clinical Specialist. The Board determined that the Applicant’s CPD was an eligible permanent impairment and that he was entitled to a NEL benefit based on the “whole person impairment percentage” of 35%.

[12] The Board subsequently arranged for comprehensive psychological and psychiatric assessments of the Applicant, which were competed in January of 2011. As a result of these assessments, the Board attempted to arrange for psychological treatment for the Applicant. However, the Applicant did not respond to the Board’s attempts to contact him, and his mother informed the treatment provider that the Applicant would not be attending.

[13] On June 10, 2011, the Applicant again appealed to the Board for LOE benefits after September 2, 2005. The Board rejected his request.

[14] The Applicant appealed the Board’s rejection of his request to the Tribunal and in January of 2012 the Tribunal held that the Board could review the Applicant’s entitlement to LOE benefits “following a NEL redetermination that demonstrates a significant deterioration in the worker’s compensable condition relative to his previous NEL award.”

[15] The Board’s case manager for the Applicant reviewed his entitlement to further LOE benefits and confirmed that he was not entitled to any such benefits beyond September 2, 2005.

[16] In 2012, the Applicant was referred to a Function and Pain program, which he attended for two sessions in October of 2012. He was assessed at a pain management centre in July of 2013, which made various recommendations, none of which the Applicant followed.

[17] In February of 2013, the Applicant appealed his NEL impairment rating of 35% and again appealed his entitlement to further LOE benefits. An ARO determined that his NEL rating was appropriate and that he was not entitled to any further LOE benefits. The Applicant appealed the ARO’s decision to the Tribunal. The decisions made by the Tribunal on that appeal are the subject of the application before us.

The Decisions Under Review

[18] In its July 14, 2015 decision, the Tribunal identified the three issues:

(a) Whether the 35% NEL benefit for the Applicant’s CPD was proper;

(b) Whether the Applicant was able or is able to perform modified work on a full-time basis;

(c) Whether the Applicant is entitled to LOE benefits after September 2, 2005.

[19] At the beginning of the hearing the Tribunal advised the Applicant that it could find that he was entitled to less than a 35% NEL benefit. As a result, the Applicant chose to withdraw this aspect of his appeal.

[20] The Tribunal found that modified work was made available to the Applicant by his employer and that he did not accept that work. It also found that the Applicant did not co-operate in the treatment the Board offered him over the years and continued to be uninterested in rehabilitation. While the Tribunal accepted that the Applicant had a permanent impairment as a result of his work-related injury, it held that his inability to work was due to his “firmly-entrenched position over the last ten plus years that he has been unable to work in any capacity”, not to his impairment. Thus, the Tribunal held that he was not entitled to LOE benefits after September 2, 2005.

[21] In its decision the Tribunal made several negative credibility findings. It decided that the Applicant’s testimony and the record before the Tribunal of his statements to others (including his doctors) contained evidence of exaggeration and embellishment, including evidence that he overstated his pain and impairment. The Tribunal found the Applicant’s testimony regarding his symptoms and impairments to be exaggerated and unreliable.

[22] On August 29, 2016 the Applicant applied for reconsideration of the Tribunal’s July 2015 decision. The Tribunal dismissed his request, finding that it was sent more than a year after the initial decision was released (contrary to the Tribunal’s Practice Direction not to reconsider a decision more than six months after it has been released) and that the Applicant had not demonstrated that there was a significant defect in the administrative process or content of the July 2015 decision which, if corrected, would probably change the result of that decision. The Tribunal also found that this was not a case where it would be appropriate to exercise its discretion to reconsider a decision.

Standard of Review

[23] The parties agree that the standard of review applicable to the decisions at issue is reasonableness. The Respondent also noted that the Tribunal’s decisions are subject to what the Ontario Court of Appeal has described as “the toughest privative clause known to Ontario law.” (Rodrigues v. Ontario (Workplace Safety and Appeals Tribunal), 2008 ONCA 719, 242 O.A.C. 95 at para. 22).

Analysis

[24] As noted in the introductory portion of these reasons, the focus of the Applicant’s position on this application is that the Tribunal’s assessment was unreasonable because it failed to take into account the depth and breadth of his illness, an illness about which there was no conflicting medical evidence.

A Summary of the Medical Evidence

[25] The Applicant was first diagnosed with CPD by the Director of the Comprehensive Pain Management program, Dr. A Mailis-Gagnon, and her clinical fellow Dr. J. Sandoval. In December of 2006 they opined that non-physical factors played a major role in the Applicant’s pain disability and made the diagnosis of chronic pain disorder. They stated that what had started as a soft-tissue injury had evolved, and now non-physical factors were responsible for the Applicant’s pain.

[26] NEL assessments were conducted by Dr. L. Kiraly and Dr. A. Joglekar (both NEL roster psychiatrists) in late 2010 and early 2011. Dr. Kiraly diagnosed the Applicant with major depression that he described as severe, chronic, and treatment-resistant. He also diagnosed him as suffering from a mixed chronic pain syndrome due to psychological factors and a medical condition. He assessed Mr. Ferreira’s Global Assessment of Functioning at 50% and found that his prognosis was not good. Dr. Kiraly also found that the Applicant’s impairment fell into Class III on the Board’s rating scale, which is a moderate impairment. Dr. Joglekar diagnosed the Applicant with a chronic pain disorder with psychological factors and as suffering from a major depressive episode secondary to a workplace injury. She agreed that the Applicant’s impairment fell within Class III on the Board’s rating scale, but indicated that he was at the higher level of Class III.

[27] In the fall of 2010, Dr. S. Librach at the Wasser Pain Management Centre described the Applicant as a “mess”. He noted that part of the Applicant’s problem was “the fact that he has taken to bed and is continually depressed and anxious… [his mother] is also part of the problem, advising him that he needs surgery and other things.” Dr. Librach opined that the Applicant needed a full rehab assessment to get to the bottom of his pain, noting that in his opinion the Applicant had not “had a consistent approach.”

[28] In late 2010, early 2011, the Board arranged for comprehensive psychological and psychiatric assessments of the Applicant through a Function and Pain Program at a Toronto hospital. The psychological assessment was conducted by Dr. P. Pajouhandeh over three days, during which the Applicant was given a number of psychological tests. Dr. Pajouhandeh found that the Applicant’s symptoms were consistent with (1) a Major Depressive Disorder, Moderate to Severe, and (2) a Pain Disorder associated with psychological factors and a general medical condition, chronic. Dr. Pajouhandeh assessed the Applicant’s Global Assessment of Functioning at 50-55%. Furthermore, he noted that there were significant psychosocial barriers that might impact the Applicant’s participation and progress in treatment or the Functional Restoration Program.

[29] The psychiatric assessment was conducted by Dr. Nathanson, who provided two DSM-IV diagnoses: (1) Pain Disorder Associated with both Psychological Factors and the General Medical Condition; and (2) Major Depressive Disorder, current episode severe to moderate. He assessed the Applicant’s Global Assessment of Functioning at 40-50%.

[30] The Applicant was referred by the Board for a multidisciplinary comprehensive assessment by a psychiatrist, a psychologist, and a chiropractor. The assessment took place in September of 2012 and the report that resulted from that assessment confirmed the two diagnoses that had been previously identified, namely (1) Pain Disorder with both Psychological Factors and a General Medical Condition (Chronic) and (2) Major Depressive Disorder (moderate to severe). The overall prognosis for functional improvement was poor, even with treatment. The assessors were unable to identify any strengths, and there were “multiple barriers to functional improvement and a return to work.”

[31] On April 10, 2013, Dr. A.L. Russell, the Applicant’s treating pain specialist, wrote “I cannot see a breakthrough in dealing with this man’s pain, he has been seen by a number of specialists, including the Wasser Clinic, without any significant benefit…Mr. Ferreira has neuropathic pain, intrusive, developed a chronic pain syndrome with overlay and psychological features that have been explored by [WSIB] physicians to no end. There is no doubt that neuropathic and cartilage injury is a primary trigger.”

[32] In July of 2013, Dr. R. Jovey from a pain management centre in Mississauga, identified (1) post-traumatic neuropathic pain of the right knee, possible Complex Regional Pain Syndrome; (2) degenerative arthritis of the knee; (3) high psycho-social needs; and (4) low- risk addiction.

[33] In December of 2013, the Applicant saw Dr. McGonigal, an orthopaedic surgeon. Dr. McGonigal reported to the Applicant’s family physician that the working diagnosis was chronic regional pain syndrome and that the Applicant did not require orthopaedic care.

[34] In April of 2015, the Applicant was assessed by a psychologist, Dr. K. Marek. His report provided two DSM IV diagnoses: (1) Major Depressive Disorder, severe with Anxiety; and (2) Pain Disorder, Chronic, Associated with both Psychological Factors and General Medical Condition. He assessed the Applicant’s Global Assessment of Functioning at 50%. He also opined that it was not in the Applicant’s best interests to attempt any form of employment at this time due to his emotional volatility.

Board’s Operational Policy Manual’s Description of the Functioning Associated with a 35% Impairment Rating for CPD

[35] Section 126(1) of the Workplace Safety and Insurance Act 1997, S.O. 1997, c. 16, Sched. A. directs the Tribunal to apply Board policies in its decision-making. These policies are contained in the Board’s Operational Policy Manual (“OPM”). OPM Document No. 18-05-11 provides a rating scale with descriptors for the assessment of permanent impairment benefits such as chronic pain disability. Class 3, Moderate impairment (20-45%) is described as follows:

There is a degree of impairment to complex integrated cerebral functions such that daily activities need some supervision and/or direction. There is also a mild to moderate disturbance under stress.

In the lower range of impairment the worker is still capable of looking after personal needs in the home environment, but with time, confidence diminishes and the worker becomes more dependent on family members in all activities. The worker demonstrates a mild, episodic, anxiety state, agitation with excessive fear of re-injury, and nurturing of strong passive dependency tendencies.

The emotional state may be compounded by objective physical discomfort with persistent pain, signs of emotional withdrawal, depressive features, loss of appetite, insomnia, chronic fatigue, mild noise intolerance, mild psychomotor retardation, and definite limitations in social and personal adjustment within the family. At this stage, there is clear indication of psychological regression.

In the higher range of impairment, the worker displays a moderate anxiety state, definite deterioration in family adjustment, incipient breakdown of social integration, and longer periods of depression. The worker tends to withdraw from the family, develops noise intolerance, and a significantly diminished stress intolerance. A phobic pattern of conversion reaction will surface with some bizarre behaviour, tendency to avoid anxiety-creating situations, with everyday activities restricted to such an extent that the worker may be homebound or even roombound at frequent intervals.

Summary of the Expert Evidence Regarding the Applicant’s Condition

[36] All of the expert evidence filed before the Tribunal, including the evidence from Board roster experts, confirmed that the Applicant suffers from two psychiatric disorders – a chronic pain disorder associated with psychological factors and his general medical condition and a major depressive disorder. His condition is long-standing and chronic and those who comment on his future note that his overall prognosis is poor, even with treatment.

[37] The Board’s policy for a 35% impairment rating for CPD describes the impact of that condition as an emotional state characterized by anxiety, depression, withdrawal, and agitation with excessive fear of re-injury. That state can result in “significantly diminished stress tolerance”, a breakdown in social relationships, increased dependency on family members, insomnia, chronic fatigue, some bizarre behaviour, and a “tendency to avoid anxiety-creating situations, with everyday activities restricted to such an extent that the worker may be homebound or even roombound at frequent intervals.”

The Applicant’s Testimony Regarding His Condition

[38] In its decision the Tribunal stated that the Applicant testified that he “sleeps poorly”, suffers from severe pain in his knee, walks as little as possible, his mother pushes him in a wheelchair, he is very dependent on his mother as she does everything for him, he is easily stressed, can have bizarre outbursts such that he has threatened his mother with a knife, he does not socialize, has no life, and wants to kill himself.

[39] All of these symptoms are consistent with the medical diagnoses of chronic pain disorder and major depressive order and the Board’s description of the symptoms that a person with a 35% impairment of CPD can experience.

The Tribunal’s Assessment of the Applicant’s Reliability and Credibility

[40] The Tribunal commenced its assessment of the Applicant’s reliability by noting that he had an obvious interest in the outcome of the appeal. Thus, according to the Tribunal, it was necessary to assess his credibility by applying the test set out by the British Columbia Court of Appeal in Faryna v. Chorney (1951), 4 W.W.R. (N.S.) 171, namely, is what the interested witness reported as his or her truth in harmony with the “preponderance of the probabilities which a practical and informed person would readily recognize as reasonable.”

[41] The Tribunal then considered whether the Applicant’s testimony was in harmony with the preponderance of probabilities and determined that it had “significant concerns about the reliability of what the worker reports and how he presents.” The Tribunal found that both in the records and in his testimony the Applicant had exaggerated and embellished his pain and impairment. Its reasons for making this finding were as follows:

(a) The Applicant told psychiatrist, Dr. Nathanson, that if anyone touches his knee, he is bedridden for a week. In the absence of an explanation as to why this would be the case, the Tribunal found that this was a clear example of an embellishment.

(b) The Applicant testified that he threatened his mother with a knife and had threatened self-harm, yet neither the police nor any emergency health workers had been called.

(c) None of the medical experts appeared to have administered testing designed to assess the validity of the Applicant’s responses to see if he was malingering a psychiatric illness.

(d) There was very little in the reports of the mental health professionals as to any negative experiences in the Applicant’s life other than his right knee injury in 2005. His pre injury life was described in very positive terms.

[42] The Tribunal paid particular attention to the report of Dr. K. Marek, the psychologist who assessed the Applicant in April of 2015. Dr. Marek expressed the opinion that the Applicant was incapable of being employed on a full or part time basis due to his psychological and physical state. In his report Dr. Marek described the Applicant’s pain from a psychological point of view as:

…excruciating, unabating and debilitating. It completely undermines his ability to function on a daily basis due to emotional volatility and or memory as well as lack of focus and attention span. The pain is so intense at times that he screams, punches the wall, and displays fits of rage and anger. This has been confirmed by his mother. Furthermore, he is incapable of driving due to his physical condition and pain.

[43] The Tribunal rejected Dr. Marek’s opinion that the Applicant was unable to return to work because of his compensable condition. It did so for the following reasons:

(a) Dr. Marek’s description of the Applicant was at odds with what the Tribunal observed of the Applicant during the hearing, which lasted several hours. According to the Tribunal, during the hearing, although the Applicant was in a wheelchair, he did not appear to be in significant distress. He appeared attentive and focus and demonstrated good recall of “matters that were helpful to his claim.”

(b) Dr. Marek accepted the information he was provided by the Applicant and his mother without scrutinizing it to see if it made sense. For example, Dr. Marek stated that the Applicant was incapable of driving. The Tribunal held that if this was true, some physician would have reported the Applicant to the Ministry of Transportation and it would have suspended the Applicant’s license. Yet the Applicant testified that his license had not been suspended.

(c) Dr. Marek did not discuss the work opportunities that were available to the worker following his workplace accident, did not consider whether the Applicant’s lack of interest in returning to work played a role in the development of his impaired functioning, and did not discuss the treatment options that the Board had made available to the Applicant.

[44] In the end the Tribunal accepted that the Applicant would have encountered significant difficulty in returning to work in 2015, but found that this was not because of his compensable CPD, but because of his personality.

[45] The Tribunal found that “pain itself does not make a job unsuitable” and that the Applicant was offered suitable modified work by his employer after the accident. It also found that the Applicant did not co-operate with the Board’s efforts to rehabilitate him and that he was uninterested in rehabilitation.

[46] The Tribunal concluded its reasons with the following:

Although it has been accepted that the worker has a permanent impairment as a result of his work-related injury, I find that his firmly-entrenched position over the last ten plus years – that he has been unable to work in any capacity – renders the contribution of his compensable condition to his loss of earnings insignificant. His loss of earnings since early September 2005 is not causally related his compensable condition, but rather his ongoing refusal to entertain the notion of returning to the workforce, and he is accordingly not entitled to LOE benefits.

Was the Tribunal’s Decision Reasonable?

[47] A reasonableness review requires the court to accord substantial deference to a tribunal’s findings of credibility. The court’s task is not to reweigh the evidence or to make its own findings of credibility. However, this does not mean that a tribunal’s factual or credibility findings are immune from review. If the tribunal’s reasons disclose that it ignored or failed to take into account relevant evidence or that its reasons cannot “stand up to a somewhat probing examination”, the decision may be set aside. (See Rodrigues v. Ontario (Workplace Safety & Insurance Appeals Tribunal), 2008 ONCA 719, 92 O.R. (3d) 757; Canada (Director of Investigation & Research) v. Southam Inc., 1997 CarswellNat 368, [1997] 1 S.C.R. 748 at para. 56).

[48] In this case, the Tribunal rejected the Applicant’s claim because it found that his evidence was not in harmony with the preponderance of the evidence. In the Tribunal’s view, the preponderance of the evidence disclosed that the Applicant had exaggerated and embellished his symptoms and his impairment both before the Tribunal and to the medical professionals who had assessed him.

[49] The Tribunal expressed its view that the medical evidence could not be relied upon because none of the medical experts appeared to have administered tests designed to assess if the Applicant’s responses to their questions were valid or whether he was malingering a psychiatric illness. This was of particular concern to the Tribunal because its own observations of the Applicant at the hearing did not accord with how the experts described the Applicant’s symptoms. In the end the Tribunal came to its own conclusion about why the Applicant could not return to work; it was not because of his compensable condition, it was because of “his personality”.

[50] In coming to this conclusion, the Tribunal made two errors that rendered its findings unreasonable. First, while it adverted in detail to all the medical evidence, it discounted that evidence (which was not controverted) and substituted its own opinion as to the cause of the Applicant’s inability to work. The problem with this (as the Tribunal’s jurisprudence has recognized) is that “Tribunal adjudicators are not medical experts and are not acting in the role of medical experts. In considering an issue of medical causation, we must rely on medical evidence.” (Decision No. 1678/04, 2006 ONWSIAT 899, 2006 CarswellOnt 9856 at para. 76).

[51] In this case, all of the medical experts (including the Board experts) agreed that the Applicant suffered from CPD. There was no medical opinion that disagreed with this diagnosis. While the Tribunal appeared to accept that the Applicant had CPD, it found that the medical opinions about this diagnosis could not be trusted because those experts had not tested the Applicant to see if he was malingering a psychiatric disease. It is also clear that the Tribunal’s own observations of the Applicant caused it to believe that this is what was really going on.

[52] The essence of a chronic pain disorder of the kind that the Applicant is suffering from is that there are psychological factors that contribute to the symptoms experienced. Assessing whether someone is suffering from the disorder or simply malingering a psychiatric illness is an essential aspect of making the diagnosis in question. All of the medical professionals who assessed the Applicant made the diagnosis and did not express a concern that he was malingering or that further tests needed to be administered to see if he was malingering. The Tribunal made its own observations and decided that malingering was a concern and that the Applicant was exaggerating and embellishing his condition. It did not have the medical expertise to make this assessment, and there was no medical opinion before it that it could rely on in support of its conclusion.

[53] In the absence of a medical opinion, the Tribunal relied on factors such as the failure of the Applicant’s mother to call the police or emergency personnel when she was threatened by the Applicant or the fact that no doctor had reported the Applicant to the Ministry of Transportation so that it could take away his driver’s license. In relying on these factors the Tribunal engaged in speculation, not legitimate fact finding. There was no evidence as to why the Applicant’s mother had not called the police when she was threatened by her son, but it cannot be assumed from the evidence that was before the Tribunal that this was because the Applicant never threatened his mother. Similarly there was no evidence as to why the medical professionals had not reported the Applicant to the Ministry of Transportation. Certainly, it cannot be assumed that this was because they thought that the Applicant was, in fact, capable of driving.

[54] The second problem with the Tribunal’s analysis of the evidence and the Applicant’s credibility is that it failed to take into account the Board’s own description of the symptoms that a person suffering from a 35% impairment of CPD will experience. The Tribunal carefully included the policy, but then failed to take it into account in its assessment of the Applicant’s credibility. For example, the Board did not accept that the Applicant had engaged in bizarre behaviour such as threatening his mother with a knife. Yet, the Board’s own policy makes it clear that a person with the Applicant’s condition has significantly diminished stress tolerance and can engage in bizarre behaviour. The Board did not accept that the Applicant had threatened to kill himself, but in doing so failed to advert to the fact that the Applicant had been diagnosed with a major depressive disorder. The Board found that the Applicant’s failure to seek employment and pursue treatment for his disorder was due to his personality, not to his compensable condition. In making this finding it did not take into account the fact that the Applicant’s compensable condition is characterized by anxiety, depression, withdrawal, an excessive fear of re-injury, and tendency to avoid any anxiety-creating situations such that the sufferer’s everyday activities become so restricted that they cannot leave the house for frequent intervals. The Applicant testified that he experienced all of these symptoms, symptoms that might well account for why he has not followed up with treatment or pursued work opportunities.

Conclusion

[55] For these reasons I find that the Tribunal’s initial decision was unreasonable. In view of this finding the reconsideration decision cannot stand. I order that both decisions be set aside and the matter remitted back to a differently constituted panel of the Tribunal for a new hearing in accordance with these reasons. Pursuant to the agreement of the parties, the Applicant is entitled to his costs of the application, fixed in the amount of $3500.00, all inclusive.

H. Sachs J.

I agree _______________________________

Ellies R.S.J.

I agree _______________________________

Thorburn J.

Released: June , 2019

CITATION: Ferreira v. Workplace Safety and Insurance Appeals Tribunal, 2019 ONSC 3437

DIVISIONAL COURT FILE NO.: 293/18

DATE: 2019/05/06

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Ellies R.S.J., Sachs and Thorburn JJ.

BETWEEN:

Dean Ferreira

Applicant

– and –

Workplace Safety and Insurance Appeals Tribunal

Respondent

REASONS FOR JUDGMENT

H. SACHS J.

Released: June 6, 2019