Court Information and Parties

CITATION: McQuoid v. Workplace Safety and Insurance Appeals Tribunal, 2022 ONSC 1629

DIVISIONAL COURT FILE NO.: DC-20-2590 DATE: 20220316

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

Swinton, McGee and Nieckarz JJ.

BETWEEN:

MICHAEL MCQUOID Applicant

– and –

WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL Respondent

COUNSEL: Wassim Garzouzi and Anna Rotman, for the Applicant Michelle A. Alton and Kayla Seyler, for the Respondent

HEARD at Ottawa (by videoconference): February 17, 2022

Reasons for Judgment

Swinton J.:

Overview

[1] The applicant, Michael McQuoid, seeks judicial review of a decision of the Workplace Safety and Insurance Appeals Tribunal (the “Tribunal”) dated September 9, 2019, that found he was not entitled to benefits under the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sched. A (“WSIA”), because he had not established that a workplace fall was a significant contributing factor to his low back injury.

[2] The applicant argues that the decision of the Tribunal is unreasonable because of the adjudicator’s treatment of the uncontradicted medical evidence and his discounting of a physiotherapist’s evidence. As well, he submits that the adjudicator unreasonably relied on factors such as the applicant’s delay in seeking medical treatment and the delay in the onset of pain in finding that the fall was not a significant contributing factor to the applicant’s back injury.

[3] For the reasons that follow, I would grant the application for judicial review, as the applicant has demonstrated that the decision of the Tribunal is unreasonable.

Factual Background

[4] The event that led to the present application for judicial review occurred on November 23, 2005. The applicant, then 38 years old, worked for Sears as a Service Technician. He repaired and installed appliances and other consumer electronic products. On that day, his supervisor asked him to mop up water on a washroom floor. While doing so, the applicant fell and hit his lower back on a toilet. He reported the accident to his supervisor, who made an incident report to the Workplace Safety and Insurance Board (“WSIB”).

[5] The applicant did not seek medical attention immediately. The evidence, as recited by the adjudicator, showed various explanations for the failure to obtain immediate medical attention – the applicant told his supervisor he was not hurting; he called the hospital and was told not to attend because of SARS; he could not get a doctor’s appointment until December 22; and he did not see the doctor immediately, as the pain gradually got worse. The applicant continued to work until December 15, 2005, when he went on a scheduled vacation that lasted from December 16 to 27.

[6] According to the applicant’s evidence, he primarily worked alone. On November 25, he worked with two others, and on December 9, he worked with one other worker. He did not complain to these co-workers about pain. He testified that he was not a “whiner”, and he modified his duties after the accident.

[7] There was evidence that the applicant led an active life before the accident, as a hobby farmer and a participant in activities such as archery, using an ATV and snowmobiling.

[8] The applicant saw his family physician, Dr. Blanchard, on December 22, 2005. He told the doctor that he had been sore since the accident. Dr. Blanchard diagnosed the applicant with a low back sprain/strain and left sciatica and gave the applicant a referral for physiotherapy and advised him on restrictions, such as no lifting. On January 19, 2006, Dr. Blanchard noted that the applicant reported that his back was worse, as he did again on February 7, 2006.

[9] The applicant started physiotherapy treatment on January 4, 2006. Mark Edwards, the physiotherapist, noted that the applicant’s back was in moderate to severe muscle spasm, and that he was suffering acute back pain. He also noted that the applicant was in extreme pain, and he struggled to walk into the clinic. He diagnosed the applicant with chronic lumbar spine injury with severe medial pain with radiation to the mid-posterior thigh. Mr. Edwards continued to treat the applicant for five years.

[10] The applicant filed a claim for benefits with the WSIB in early January 2006. In the claim, he responded to question 9, “when did you first start to have problems with this injury/condition”, by stating “several days later pain lower back and left leg.”

[11] The applicant was assigned modified duties at work in February 2006. On February 21, 2006, his claim for benefits was denied by the WSIB.

[12] In June 2006, he was seen by orthopedic specialist Dr. Yach, who found no evidence of neurological impingement.

[13] The applicant ceased working in 2008.

[14] On October 11, 2011, a request for reconsideration was rejected by the WSIB. This decision was upheld by an Appeals Resolution Officer on July 22, 2016.

[15] In the meantime, the applicant had been referred to a pain clinic in 2012. Dr. G. Kolbe provided a diagnosis of chronic lower back pain with degenerative changes.

The Tribunal’s Decision

[16] Subsection 13(1) of the WSIA states that “A worker who sustains personal injury by accident arising out of and in the course of his or her employment is entitled to benefits under the insurance plan.”

[17] The adjudicator followed the Tribunal’s jurisprudence with respect to causation, stating that the test is whether the accident is a “significant contribution” to the worker’s injury (Decision at para. 7). The accident must have considerable effect, but it need not be the sole contributing factor.

[18] Pursuant to s. 126 of the WSIA, the Tribunal must apply policies of the WSIB – here, policies relating to “Initial Entitlement” and “Decision Making/Benefit of Doubt/Merits and Justice”. The adjudicator noted that the Operational Policy Manual, Document No. 11-01-1, “Adjudicative Process”, states that an allowable claim must have five points: an employer, a worker, personal work-related injury, proof of accident and compatibility of diagnosis to accident history (Record of Proceedings, p. 712; Caselines B-1-940). He explained that two of those points, proof of accident and compatibility of diagnosis to accident history, were at issue before him.

[19] The adjudicator then looked at the factors set out in the policy that should be considered in determining proof of accident. The policy states, under a heading “proof of accident”, that “decision-makers may consider the following when examining proof of accident”:

• Does an accident or disablement situation exist?

• Are there any witnesses?

• Are there any discrepancies in the date of accident and the date the worker stopped working?

• Was there any delay in the onset of symptoms or in seeking health care attention?

[20] I note that there is a separate heading in this policy paper headed “diagnosis”, with the following guidance provided:

If it is not clear that the (injury or disablement) diagnosis provided is the result of an accident or disablement history prescribed, a decision-maker may consult with the WSIB’s clinical staff to assist in making this determination.

[21] The adjudicator was satisfied that the applicant fell in the washroom and hit his back on the toilet. He noted that the employer had completed an incident report at the time of the accident, and he accepted the applicant’s evidence that he had fallen (Decision at para. 45).

[22] The adjudicator then stated that the issue before him was the delay in both the onset of symptoms and in the applicant’s search for health care attention. He noted that the applicant waited a month to seek medical attention and provided inconsistent explanations for this delay. The applicant also told the WSIB that he was performing the regular duties of his position prior to going on vacation.

[23] The adjudicator quoted from a medical discussion paper on low back pain prepared for the WSIB, as he was entitled to do. In the “Frequently Asked Questions” section, there is a question as to whether there can be a delay in the onset of symptoms after a back injury. The adjudicator quoted the following response:

This depends on the symptoms. Back pain presents acutely very shortly after the injury. In some patients who develop a radiculopathy (radiating leg pain and leg symptoms arising from the nerves), the onset of leg symptoms may be more gradual typically presenting within 2 weeks from the onset of the injury – however the onset of back pain from the injury is also immediate in these individuals.

[24] The adjudicator stated that Dr. Blanchard gave the opinion that the applicant’s injury was consistent with the reported accident, but he commented that the doctor did not explain the delay in pain and how the injury was consistent with the accident. He observed that the doctor seemed not to be aware that there was a reported delay in the onset of back pain.

[25] The adjudicator discounted the opinion of the physiotherapist given in 2018 because of an inconsistency in the evidence about the incident. The physiotherapist had stated that the toilet bowl broke into pieces when the applicant fell, which was not supported by the other evidence. The physiotherapist also stated that the applicant had reported severe pain immediately, but the adjudicator stated that the applicant had testified that the pain gradually increased.

[26] The adjudicator then listed a number of factors that led him to the conclusion that the accident was not a significant contributing factor to the injury: the onset of pain was not immediate; the applicant was able to continue with his regular duties; the failure to report any pain to his co-workers; and the delay in seeking medical attention for a month.

[27] While acknowledging that there was no other explanation for the injury, the adjudicator concluded that the applicant failed to establish on a balance of probabilities that the accident was a contributing factor to his low back condition.

Issues on this application for judicial review

[28] The applicant argues that the Tribunal’s decision was unreasonable, because the adjudicator discounted uncontradicted and unanimous medical evidence regarding the applicant’s injury; he misconstrued and inappropriately discounted the physiotherapist’s evidence; and he relied on factors that were inconsistent with the case law and unreasonable – namely, delay.

[29] The Tribunal has taken no position on the merits of the case, and the employer has not participated in the matter.

The standard of review

[30] The standard of review of the Tribunal’s decision is reasonableness. In applying the reasonableness standard, the reviewing court must consider the administrative decision-maker’s reasoning process and the outcome (Canada (Minister of Employment and Immigration) v. Vavilov, 2019 SCC 65 at paras. 83 and 87).

[31] The applicant bears the burden to show the decision is unreasonable. As the Supreme Court of Canada has stated (at para. 100 of Vavilov), “the reviewing court must be satisfied that there are sufficiently serious shortcomings in the decision such that it cannot be said to exhibit the requisite degree of justification, intelligibility and transparency.” The Supreme Court went on to describe two types of fundamental flaws in a decision: “a failure of rationality internal to the reasoning process” and “a decision is in some respect untenable in light of the relevant factual and legal constraints that bear on it” (at para. 101).

Analysis

[32] There is no dispute that the applicant suffered an accident by falling and striking his back on a toilet while he was at work on November 23, 2005, as found by the adjudicator. In other words, the applicant proved that there was a workplace accident, one of the requirements for an allowable claim.

[33] The medical evidence is clear that he was suffering from a back injury subsequent to that incident. Indeed, on December 22, 2005, his family physician, Dr. Blanchard, diagnosed him with a low back sprain/strain and left sciatica and gave the applicant a referral for physiotherapy. The adjudicator does not appear to take issue with the fact that the applicant suffered a back injury.

[34] Thus, the central issue before the adjudicator was causation – was the workplace fall a significant contributor to the applicant’s back condition? For the adjudicator, the delay in reporting any pain after the accident and the delay in attending his physician led to the conclusion that the applicant had not established the fall was a significant contributing factor to his back injury.

[35] While a reviewing court owes deference to an administrative decision-maker’s findings of fact, there are serious problems with the adjudicator’s treatment of the evidence and his analysis that render his conclusion on causation unreasonable.

[36] First, the adjudicator failed to engage adequately with the uncontradicted medical evidence before him, in particular the opinion of Dr. Blanchard. Instead, he focused on the factor of delay in the onset of pain and in obtaining medical treatment.

[37] The medical evidence was summarized by the adjudicator in his reasons. At para. 34, he referred to Dr. Blanchard’s opinion of July 2010, given during the review process before the WSIB:

He stated that the reported symptoms were consistent with the described injury. He also noted that it would have been possible for the worker to continue with his work duties until December 15, 2005 (his last day of work prior to his holiday). He noted that it was “certainly possible” that a worsening of the worker’s symptoms on December 15, 2005 was related to the original injury of November 23, 2005: “This is certainly most likely to be the case.”

[38] In his notes of the applicant’s first visit in December 2005, Dr. Blanchard had diagnosed the applicant with a low back sprain/strain and left sciatica. The applicant’s back condition was noted to be worse in visits in January and February, 2006.

[39] When the applicant first saw the physiotherapist on January 4, 2006, the physiotherapist’s note stated that the applicant presented with acute back pain following a fall at work. He diagnosed the applicant with a chronic lumbar spine injury with severe medial pain with radiation to the mid- posterior thigh (Decision at para. 26).

[40] In an opinion dated October 3, 2018, the physiotherapist opined that the injuries were completely consistent with a fall.

[41] There was no contradictory medical evidence, and no suggestion in the record that there had been some other intervening cause of the back pain.

[42] The adjudicator discounted the physiotherapist’s opinion (Decision at para. 51). In my view, his reasons for doing so are illogical. First, he does so because the physiotherapist relied on an accident history in the 2018 opinion said to be inconsistent with all the evidence about the incident – namely, he stated that the toilet bowl broke on impact. However, whether the toilet bowl broke or did not break at the time of the fall is insignificant to the issue of causation of the injury. It was clearly established and accepted by the adjudicator that the applicant had suffered a workplace accident by falling against a toilet. It was unreasonable to reject all the evidence of the physiotherapist because of a minor inconsistency concerning whether the toilet bowl broke.

[43] Second, the adjudicator stated that the physiotherapist erroneously reported severe pain immediately, while the applicant reported that the pain gradually increased. Third, the physiotherapist reported the pain was constant and continuous, but that was based on the first assessment, over a month after the accident.

[44] Again, the total rejection of the physiotherapist’s evidence on these grounds is unreasonable. Whether in the 2018 opinion or the contemporaneous medical notes in 2006, the physiotherapist reported that the applicant was in severe and constant pain when first seen on January 4, 2006. While this was some weeks after the fall, this is still important evidence about the applicant’s condition that should have been addressed and not totally disregarded.

[45] The uncontradicted medical evidence before the adjudicator was that the applicant was suffering severe back pain when he saw his doctor on December 22, 2005, and the pain was constant and severe when he saw the physiotherapist on January 4, 2006. Even if the adjudicator had misgivings about the 2018 opinion of the physiotherapist, the contemporaneous notes provide relevant and important medical evidence that should have been addressed.

[46] The adjudicator’s explanation for discounting the medical evidence of Dr. Blanchard was delay: the lack of complaint of pain to co-workers with whom the applicant worked on two occasions prior to going on vacation and the delay of four weeks in getting medical attention. Ultimately, the adjudicator stated (at para. 52): “The delay in seeking medical attention is better explained by the fact that the worker was not having back pain symptoms that would have arisen shortly after the accident, if the symptoms were related to the accident.” In coming to this conclusion, he seems to be drawing on the Discussion Paper he quoted at para. 49 of his reasons (quoted above in these reasons at para. 23). That brief quotation states that “back pain presents acutely very shortly after the injury”, leg symptoms may be more gradual, “typically” presenting within two weeks after the onset of injury. “Very shortly” is not defined.

[47] The problem with the adjudicator’s explanation is that it ignores the medical evidence of the applicant’s treating physician and physiotherapist relevant to causation in favour of general guidance in a discussion paper. That medical evidence showed the applicant suffered from severe back pain when seen by these two individuals. Dr. Blanchard gave the opinion that the reported symptoms were consistent with the described injury, that it would have been possible for the applicant to continue working until December 15, and that the worsening of symptoms after that date was most likely to have been caused by the original injury. There is no medical evidence to the contrary.

[48] The adjudicator also assumes that there was a significant delay in the onset of symptoms. However, he makes no reference to the applicant’s evidence about the onset of symptoms in his analysis – for example, the applicant, in his report of the accident to the WSIB in early January 2006, said that he noticed pain in his low back and left leg several days after the accident. Dr. Blanchard’s notes of the December 22, 2005 visit state that the applicant reported he had been sore in the lower back ever since the fall, and the pain radiates down the posterior aspect of his leg to his calf (Record of Proceedings, p. 120, Caselines B-1-128).

[49] The adjudicator appears to rely on a general statement about the onset of back pain in the Discussion Paper respecting when back pain and onset of leg symptoms occur. I note that while that brief excerpt states that back pain is immediate, leg symptoms (which the applicant had) “may be more gradual typically presenting within 2 weeks from the onset of the injury.” Again, this is a discussion paper, designed to provide an overview of a medical topic. However, the adjudicator was required to consider the actual evidence before him concerning the injury. That evidence is not inconsistent with the information set out in the Discussion Paper. The applicant’s version of events was that there was immediate pain, within days of the accident, and that pain got worse. Both Dr. Blanchard and the physiotherapist noted that the applicant was in severe back pain radiating into his leg within weeks of the accident.

[50] In my view, the adjudicator unreasonably concluded that there was a delay in the onset of symptoms that was significant. He failed to deal with the applicant’s version of events, without making any adverse finding of credibility, and he failed to consider the medical records about the pain suffered.

[51] The adjudicator also focused on delay in a manner that is noticeably different from other cases. I acknowledge that he was not bound by precedent, but he was required to decide the case on the merits and justice of the case (see s. 124(1) of the WSIA) and on the basis of the evidence before him. It is noteworthy that other cases have not denied entitlement to benefits because of a failure to complain about pain immediately. For example, in Decision 466/10, the worker did not seek medical treatment for a back injury caused by a falling tree for several months, but the Tribunal accepted that there had been an accident that significantly contributed to his back pain. That makes logical sense. Serious pain may come on gradually, or a worker may initially try to work through the pain, as the applicant testified he tried to do here before going on vacation a few weeks after the accident.

[52] In the present case, the adjudicator did not take issue with the applicant’s credibility. He found that there was an accident that the applicant reported on the day it happened. However, the adjudicator focused on the delay in seeking medical treatment and in the onset of pain. He mentioned that there was no evidence of any other contributing accident, but gave this no weight. Most importantly, he did not address the medical evidence about the existence of serious and continuous back pain when the applicant attended his doctor and the physiotherapist.

[53] The adjudicator also relied on the absence of complaint to co-workers. Again, the evidence was that the applicant generally worked alone. On two occasions when he worked with others between the accident and December 15, the date he went on vacation, he did not complain about pain to co-workers. His evidence was that he was not a whiner, again evidence that the adjudicator did not address, nor did he reject it.

[54] Deference is owed to the decision of an administrative decision-maker. However, in the present case, the adjudicator has rendered a decision with serious deficiencies in the reasoning process. He has focused on delay in reporting pain and delay in the apparent onset of pain. However, in doing so, he has failed to apply the uncontradicted medical evidence of both the family doctor and the physiotherapist about the serious pain the applicant was experiencing in late December and early January. There is no evidence of any other contributing cause. There is no finding that the applicant and his wife were not credible witnesses. The adjudicator has also concluded that the onset of pain was delayed without making reference to the applicant’s application for benefits that stated he experienced pain within a few days of the accident and Dr. Blanchard’s note. And finally, there is no question that there was a workplace accident on November 23 reported to the employer and by the employer to the WSIB, and that the applicant suffered from a back injury.

[55] As the Supreme Court said in Vavilov (at para. 126), “[t]he reasonableness of a decision may be jeopardized where the decision maker has fundamentally misapprehended or failed to account for the evidence before it.” Here, the cumulative problems – the treatment of the medical evidence, the rejection of the physiotherapist’s evidence, the failure to deal with the applicant’s own evidence, and the total focus on delay of pain and delay in obtaining treatment - demonstrate that the decision suffers from serious logical flaws, with the result that the outcome is unreasonable, based on the record. Accordingly, the decision should be set aside.

Remedy

[56] While the normal remedy in judicial review is to set aside an unreasonable decision and to return the matter to the tribunal, the Court has a discretion to decline to remit the matter (Vavilov at paras. 141, 142). As the Supreme Court stated at para. 142:

Declining to remit a matter to the decision maker may be appropriate where it becomes evident to the court, in the course of its review, that a particular outcome is inevitable and that remitting the case would therefore serve no useful purpose.

The reviewing court may also consider factors such as delay and fairness to the parties.

[57] The applicant asks that this Court set aside the Tribunal’s decision but not remit the issue of entitlement to the Tribunal. He asks this Court to declare he is entitled to benefits, given the lengthy delay in the determination of the applicant’s claim.

[58] I note that the delay in resolving the applicant’s claim is largely attributable to the period when the file was before the WSIB, not the Tribunal. Nevertheless, the lengthy delay in determining this claim is a serious concern (see Guiguère v. Chambre des notaires du Québec, 2003 SCC 1 at para. 34). The accident occurred in November 2005. It is now March 2022. The only issue in dispute before the Tribunal, were this to be sent back, is causation of the back injury – that is, did the accident on November 23, 2005 make a significant contribution to the applicant’s back injury?

[59] Given the uncontradicted medical evidence, including that of the physiotherapist; the applicant’s own evidence, that was neither rejected by the Tribunal nor found not to be credible; and the absence of any evidence of any other cause, the evidence establishes, on a balance of probabilities, that the accident significantly contributed to the applicant’s injury. Moreover, pursuant to s. 124(2) of the WSIA, if the evidence is evenly balanced, the benefit of the doubt goes to the worker.

Conclusion

[60] For these reasons, the application for judicial review is granted, and the decision of the Tribunal is set aside. The matter is referred back to the Tribunal to assess the applicant’s claim in light of the determination of this Court that pursuant to s. 13(1) of the WSIA, he is entitled to benefits for the back injury arising out of the accident of November 23, 2005.

[61] The parties have agreed that there will be no costs.

Swinton J.

I agree

McGee J.

I agree

Nieckarz J.

Date of Release: March 16, 2022