Court File and Parties

CITATION: Todde v. Workplace Safety and Insurance Appeals Tribunal, 2022 ONSC 1909

DIVISIONAL COURT FILE NO.: 299/21

DATE: 20220330

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: SUSIE TODDE, Applicant

AND:

WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL, Respondent

BEFORE: Swinton, Lederer and Mew JJ.

COUNSEL: Susie Todde, applicant (self-represented)

Michelle Alton, for the respondent

HEARD at Toronto by videoconference: 3 March 2022

Endorsement

[1] On 18 August 1998, Susie Todde, who worked as an airline services representative, caught her foot in a blue box and fell off her chair, twisting her left knee and hurting her left forearm. She was initially granted Workers’ Compensation benefits for a left medial collateral ligament strain. However, subsequent diagnoses, including a torn or damaged meniscus and chondromalacia/patellofemoral syndrome, resulted in the Workplace Safety and Insurance Board (“WSIB”) recognising a permanent impairment and a seventeen per cent non-economic loss award being made on 23 January 2001.

[2] Ms. Todde also sought, but was ultimately denied, compensation for secondary conditions involving the right hip, right knee and low back.

[3] In November 2016, the Workplace Safety and Insurance Appeals Tribunal (“WSIAT”), noting that there had been a measurable change in the clinical findings with respect to the chondromalacia patella and a significant deterioration in that aspect of her compensable condition, concluded that Ms. Todde was entitled to a redetermination of her non-economic loss award: Decision No. 2870/16, 2016 ONWSIAT 3235. That award was subsequently increased to eighteen per cent on 13 January 2017.

[4] In the meantime, Ms. Todde also sought entitlement for psychotraumatic disability arising out of the compensable injury to her left knee. Her claim was denied by a WSIB case manager in April 2018, and that decision was upheld by an appeals resolution officer in July 2018. She appealed to the WSIAT. A three-person panel (the “Panel”) denied her appeal on 20 January 2020 (2020 ONWSIAT 143). Ms. Todde then requested a reconsideration of that decision. In a decision dated 7 December 2020 (2020 ONWSIAT 1961) (the “Reconsideration Decision”), the panel declined to reconsider its previous decision.

[5] Ms. Todde now seeks orders, by way of judicial review, setting aside these decisions of the WSIAT.

[6] Decisions of the WSIAT are subject to a robust privative clause, contained in s. 123(4) of the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sched. A., which provides:

Finality of decision

(4) An action or decision of the Appeals Tribunal under this Act is final and is not open to question or review in a court.

[7] The parties agree that the WSIAT decisions should be reviewed on a reasonableness standard.

[8] The WSIB’s Operational Policy Manual Document No. 15-04-02 (the “Policy”), specifies, among other things, that entitlement for psychotraumatic disability is available provided that it is attributable to the injury, and that the psychotraumatic disability impairment became manifest within five years of the injury.

[9] Although it has been held that the five-year requirement in the Policy should not be rigidly applied and instead each case must be judged on its own merits, there must nevertheless be some compelling reason to make an exception to the five-year policy requirement.

[10] In its initial decision, the WSIAT Panel set out the legal and policy framework and reviewed the evidence, including testimony from Ms. Todde and her daughter D.G., a letter from Ms. Todde to her Adjudicator in 1999, and evidence from Drs. Dammermann, Pendharkar, and Masalic.

[11] The Panel found that Ms. Todde’s depression had manifested more than five years after the injury, noting that her initial experience with psychiatric treatment occurred on 24 May 2017, when she went to a local hospital emergency in a state of crisis. This was nineteen years after the compensable accident. The Panel found no compelling reason to make an exception to the five-year requirement.

[12] The Panel also found that there was insufficient evidence to support a finding that the accident had been a significant contributing factor in relation to Ms. Todde’s depression, especially given the numerous contributing conditions and stressors subsequent to the accident, both medical (e.g. diagnosed personality disorder) and non-medical (e.g. marriage breakdown), which it found “overwhelmed” the accident’s contribution.

[13] At para. 4 of the Reconsideration Decision, it is noted that the WSIAT has developed a high standard of review, or threshold test, which must be met before a decision will be reconsidered:

Generally, 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.

[14] The Panel found that the threshold test for granting a reconsideration request had not been met. Specifically, the Panel concluded that it had not committed any errors of fact and law that would have resulted in a different decision because:

a. it had not made an error of fact or law regarding the application of the Policy;

b. it had properly considered and weighed the evidence, including a 2019 letter from Dr. Masalic (Ms. Todde's family doctor);

c. its application of the "significant contributing factor" test to the evidence was reasonable;

d. its evaluation of the evidence on the issue of causation was reasonable; and

e. it was justified in preferring "an objective analysis" over Ms. Todde's explanation for why she had not sought medical help for her depression;

f. it had not erred in its application of the "benefit of the doubt" principle set out in s. 124(2) of the Act, which requires the benefit of the doubt to be resolved in favour of the claimant where it is impracticable to decide an issue because the evidence for and against the issue is approximately equal in weight; and

g. the applicant had not submitted any new evidence on reconsideration that would lead it to decide the case differently.

[15] Ms. Todde argues that the WSIAT’s decisions are unreasonable and that the Panel committed a number of errors:

a. She had a "valid explanation" for not seeking help until her crisis and hospitalization in 2017, as revealed by her testimony and that of her daughter.

b. The Panel misconstrued the evidence of her daughter.

c. The Panel erred in its weighing of the evidence, including a letter she sent to her employer in 1998, another to a WSIB Adjudicator in 1999, and the evidence from Drs. Dammermann, Masalic and Pendharkar.

d. A member of the Panel erred, in the questions she put to Ms. Todde, by placing an "improper focus" on whether Ms. Todde had received counselling from a registered psychiatrist or psychologist (as opposed to a family doctor).

e. The Panel applied the wrong test on the issue of manifestation of illness. Its interpretation of the Policy was unreasonable, since it does not require that "the manifestation take place by way of medical confirmation, or that the medical confirmation exist within the 5 years time [frame]". The Panel erred in discounting her evidence and that of her doctors on this basis.

f. The Panel erred in its application of the contributing factor test. The WSIAT concluded that the accident was not more than a de minimis cause of Ms. Todde's depression and anxiety, but Ms. Todde claims that the evidence shows that the work accident "made a difference" or that there was "at least a 'de [minimis]' contribution": paras. 40-42, 44-9 [A14-A17]. She also submits that the Panel reversed cause and effect and that the accident in fact preceded her family and marital difficulties.

g. The Panel failed to apply the "benefit of the doubt" principle to certain evidence or elements (e.g. her explanation for her delay in seeking treatment) and to "its overall assessment of the proof and evidence".

h. The Panel failed to apply the Act - remedial legislation designed to protect workers and their dependents - in a liberal manner.

[16] In our view, none of these arguments support setting aside the WSIAT decisions.

[17] As the respondent’s factum explained, one of the purposes of the five-year rule is to ensure that compensable psychological problems do not manifest themselves at a time so remote from the original injury as to make causality suspect. As more time goes by after the work-related injury, it becomes increasingly likely that the psychological disability is related to other intervening factors, and not the work-related injury.

[18] The Panel was clearly alive to this concern, but nevertheless carefully analysed Ms. Todde’s post accident medical history as well as the testimony of Ms. Todde, her daughter and the evidence of the doctors.

[19] In its decision, the Panel explained its reasons for concluding that the evidence did not establish that the 1998 work-related knee injury was a significant contributing factor to the development of Ms. Todde’s psychotraumatic disability, namely:

a. the lengthy gap in medical reporting without any mention of psychiatric/psychological problems between 2000 and 2014 by itself made it difficult to conclude that there was a causal link between the applicant’s 1998 compensable injury and her subsequent psychological disability:

b. the applicant’s psychological diagnosis was made at a time when she was suffering from a number of other non-compensable medical conditions, including fibromyalgia and degenerative osteoarthritis in multiple joints;

c. the medical reports did not establish a causal link between the accident and Dr. Masalic had not addressed the significant gap in the medical reporting regarding the applicant’s claimed depression and had not treated the applicant during the period when she claims her depression became manifest;

d. having regard to the applicant’s explanation for the delay in seeking medical attention for her psychological condition, if the depression was as severe as she alleged, it was likely that she would have required or sought medical attention earlier, regardless of what her family of origin’s views were, and not wait over sixteen years; and

e. the daughter’s evidence that she was “shocked” when her mother had to be hospitalised for severe depression and suicidal ideation in 2017 was not a state she recognised from her mother’s past behaviour and thus was not found to be supportive of the applicant’s claim.

[20] In her request for reconsideration of the initial decision, the applicant raised many of the same concerns as she does on this application for judicial review. Each of those concerns was comprehensively addressed.

[21] We find that the impugned decisions were reasonable. They dealt with questions of fact and law which fell squarely within the WSIAT’s area of experience and expertise, they were comprehensive, and they bore all of the hallmarks of reasonableness – justification, transparency and intelligibility – most recently described by the Supreme Court of Canada in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, at para. 99.

[22] The applicant effectively asks us to ignore the WSIAT’s findings and conclusions in their entirety and to substitute a different outcome in their place. That is not the function of a reviewing court applying the reasonableness standard.

[23] The respondent does not seek costs.

[24] The application is, accordingly, dismissed without costs.

Swinton J.

Lederer J.

Mew J.

Released: 30March 2022