CITATION: Domenic Chiocchio v. Canada Post, 2024 ONSC 2788

DIVISIONAL COURT FILE NO.: 803/21

DATE: 2024-05-23

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

E. Stewart, Sutherland and Nishikawa JJ.

BETWEEN:

Domenico Chiocchio

Applicant

– and –

Workplace Safety & Insurance Appeals Tribunal and Canada Post Corporation

Respondents

Domenico Chiocchio, Self-Represented

Chris G. Paliare and Mariam Moktar, for the Respondent, Workplace Safety and Insurance Appeals Tribunal

Hashim Syed, for the Respondent, Canada Post Corporation

HEARD: December 11, 2023

E. STEWART J.

REASONS FOR DECISION

Nature of the Application

[1] The Applicant Dominico Chiocchio (“Chiocchio”) brings this application seeking judicial review of decisions dated May 8, 2020 and August 13, 2021 of the Workplace Safety and Insurance Appeals Tribunal (“WSIAT”). Chiocchio submits that the decisions are incorrect and unreasonable. He seeks an order quashing both decisions and substituting a finding by this Court that affirms his entitlement to ongoing permanent disability pensions commencing from the dates advanced by him.

[2] The Respondents Canada Post Corporation (“Canada Post”) and WSIAT submit that both decisions sought to be reviewed are reasonable. Accordingly, they ask that the application be dismissed.

Background Facts

[3] In the fall of 1985, Chiocchio (then 44 years old) was working as a maintenance mechanic for Canada Post. While he was drilling, he twisted his right arm, causing a strain in his right forearm. He went off work in October 1985, but was cleared to return in July 1986.

[4] The Workplace Safety Insurance Board (“WSIB”) recognized Chiocchio’s entitlement for compensation for a right forearm impairment. He therefore received temporary disability benefits covering the period between October 1985 and July 1986.

[5] After returning to work in July 1986, Choicchio claimed that he had injured his right wrist, shoulder, and elbow in the previous accident. He also claimed injuries to these areas on a disablement basis that had resulted from his job duties between September 25 and October 8, 1985, as well as from fibromyositis under the WSIB’s Chronic Pain Disability (“CPD”) policy. Chiocchio was off work from October 31 to November 25, 1986 purportedly due to these injuries.

[6] Chiocchio was then involved in an additional workplace accident in 1988. He applied for and was granted entitlement to benefits for a permanent right knee injury.

[7] Chiocchio (now 83 years old) has established a lengthy and significant history of claims, appeals and reconsideration requests pursued at the WSIB and WSIAT. This history provides a backdrop to the circumstances in which the decisions that are currently under review arose.

[8] In particular, three past decisions are of note to this present application that provide background to it, as follows:

(a) A decision dated May 27, 1994 following a work accident on October, 1985 that denied Chiocchio’s claim for entitlement to benefits for chronic pain disorder and temporary total disability benefits;

(b) A decision dated January 3, 1996 denying Chiocchio entitlement to benefits for alleged injuries to his right shoulder, right shoulder, right elbow, and right wrist on a disablement basis resulting from his job duties between September 15 and October 8, 1985; and

(c) A decision dated July 30, 2015 which determined that the arrears date for the permanent disability pension flowing from Chiocchio’s right shoulder injury was August 27, 2002.

[9] Chiocchio appealed these three decisions to WSIAT.

[10] On February 10, 2018 WSIAT denied Chiocchio’s appeal due to, among other things, what it considered to be a lack of evidence causally connecting the injury or injuries to the various accidents and duties referred to in Chiocchio’s applications for benefits.

[11] Chiocchio’s request for reconsideration of this decision was successful. As a result, a full hearing de novo proceeded before WSIAT with respect to the matters dealt with in the May 27, 1994, January 3, 1996, and July 30, 2015 decisions.

[12] In its decision dated May 8, 2020 WSIAT again dismissed Chiocchio’s appeal. In doing so, it found that:

(a) Chiocchio had not established a causal connection between the October 8, 1985 accident and the alleged injuries to his right wrist, elbow and shoulder;

(b) There was insufficient evidence to support a finding that Chiocchio’s job duties between September 15 and October 8, 1985 had caused any injuries to his right wrist, elbow, and shoulder on any disablement basis;

(c) Chiocchio had not established that the fibromyositis he says he suffers from had been caused by the injury to his right forearm on October 1985, not did the evidence in that regard satisfy the criteria set out the Board’s policy concerning chronic pain disorder;

(d) Chiocchio had no entitlement to wage loss benefits from October 31 to November 25, 1986, or from June 25, 1987 as any lost time incurred during those periods had not been shown to have been caused by any injury sustained in the October 1985 accident;

(e) The date for the arrears from the right shoulder permanent disability benefits was confirmed to be August 27, 2002 being three months prior to the date of the physician’s report of the applicable medical report of November 27, 2002 identifying the nature and cause of the injury.

[13] Chiocchio did not agree with this decision and requested a reconsideration of it. In its decision dated August 13, 2021 WSIAT denied Chiocchio’s request. After reviewing all of Chiocchio’s submissions, WSIAT concluded that his request for reconsideration was merely an effort to re-argue the facts already addressed and determined at the full hearing that had taken place. No error or issue in the decision warranting reconsideration had been identified. Accordingly, the test for granting reconsideration had not been met.

[14] It is these two decisions of WSIAT – one decision delivered following a de novo hearing, and the other delivered following a request for re-consideration of that decision – that are now the subject of this application for judicial review.

Jurisdiction

[15] This Court has jurisdiction to judicially review these decisions pursuant to ss. 2(1) and 6(1) of the Judicial Review Procedure Act, R.S.O. 1990, c J.1.

Standard of Review

[16] The standard of review of these decisions is one of reasonableness (see: Rodrigues v. Ontario (Workplace Safety and Insurance Appeals Tribunal), 2008 ONCA 719; Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65).

Discussion

[17] Chiocchio submits that the WSIAT decisions are incorrect and unreasonable, and that the reasons for those decisions are inadequate.

[18] In large part, Chiocchio argues that WSIAT failed to consider the alleged lack of credibility of Canada Post’s evidence and witnesses. In that regard, he seeks to highlight and criticize the conduct of Canada Post and its various employees in order to challenge the credibility of that evidence.

[19] Canada Post submits that both decisions, when read in their entirety, are reasonable. The first decision demonstrates over sixteen pages of reasons a logical and justifiable explanation as to why Chiocchio was not deemed eligible for the benefits he sought under the applicable legislation. More specifically, WSIAT correctly applied the pre-1980 Workers Compensation Act where appropriate. Given that the hearing of the appeal commenced after January 1, 1998 it applied where apt the relevant provisions of the Workplace Safety and Insurance Act, 1997 correctly and appropriately where necessary in light of the evidence before it.

[20] Canada Post submits that, although it appears that Chiocchio seeks to review the decision on the basis that WSIAT did not rule on the arguments of credibility, bias, and prejudice raised by him in its December 2017 hearing leading to the WSIAT decision of February 10, 2018, there is no basis for the granting of any such relief on this application for judicial review. Indeed, that hearing resulted in a decision which has been set aside and has been superseded by these subsequent decisions.

[21] WSIAT also submits that both decisions are reasonable. The decisions reflect a careful review of the significant medical information and a reasonable application of established policies. Further, the decisions provide a reasonable level of detail to support the conclusions arrived at to allow for meaningful review.

[22] Regarding the decision to not grant any entitlement for injuries to the right wrist, elbow and shoulder from the October 1985 incident, WSIAT submits that the decision reflects a logical and transparent chain of analysis to come to that conclusion. The decision considered the medical evidence submitted by Chiocchio and reasonably concluded that the medical opinion demonstrated no apparent causal connection between the drilling incident and Chiocchio’s alleged injuries.

[23] In terms of the entitlement claimed by Chiocchio regarding injuries arising from his job duties between September 15, 1985, WSIAT submits that the decision again reflects a rational chain of analysis. In particular, the decision concludes that there was insufficient evidence to support any finding that the injuries asserted were caused by Chiocchio’s job duties.

[24] With regards to Chiocchio’s claim for entitlement to benefits for fibromyositis under the Board’s CPD policy, WSIAT highlights that the decision outlines the test for entitlement for CPD, and clearly shows how each of the criteria were not met on the facts of this case. To do this, the medical reports were reviewed and considered. It was reasonably concluded by WSIAT that the preponderance of medical opinion did not support the establishment of any causal connection between the accident sustained by Chiocchio and his stated condition.

[25] Regarding the claims for temporary or total benefits and arrears, both Respondents point to the decision which carefully considered all medical reports and the appropriate policies. The decision arrived at logical and rational conclusions based on the evidence tendered at the hearing.

[26] Finally, both Respondents submit that the reconsideration decision by WSIAT was likewise reasonable. Consideration was given to all the additional submissions and documents provided by Chiocchio. It was reasonably determined by WSIAT that these submissions and documents were not relevant to the issues on appeal nor did they meet the threshold for reconsideration established by the applicable WSIAT Practice Direction. Those issues dealt largely with questions whether any workplace duties or accidents had caused the various injuries of which Chiocchio complained. Unsurprisingly, the answers to those questions depended to a great degree upon WSIAT’s assessment of the nature of the accidents and the quality of the medical reports and opinions adduced by the parties. All of these matters fall squarely within the expertise of WSIAT and their conclusions are accordingly entitled to considerable deference.

[27] I agree with all of these submissions made by the Respondents. As set out in the entirely adequate reasons for the decisions under review, as well as in painstaking detail in the facta filed on behalf of the Respondents, each of the assertions advanced by Chiocchio failed on the basis of a fair consideration of the evidence tendered and a proper application of the legislation and policies promulgated thereunder. These determinations, made by a tribunal with manifest experience and expertise, are entitled to a high level of deference (see: Mills v. Ontario (Workplace Safety and Insurance Appeals Tribunal) 2008 ONCA 436 (C.A.)).

[28] Although Choicchio is undoubtedly disappointed with the result, I cannot find any basis in the materials presented or the decisions under review upon which it might be concluded that interference with those decisions would be justified. In my opinion, the decisions under review have addressed the relevant issues fairly and comprehensively and were amply supported by the record of evidence, including medical opinion.

[29] Accordingly, Chiocchio has failed to show that either decision is unreasonable. Even if the standard of review were correctness, which it is not, he would have failed to demonstrate any error supporting interference by this Court with the result.

Conclusion

[30] For these reasons, this application is dismissed.

Costs

[31] The Respondents have advised the Court that they do not seek any costs of this application. Accordingly, no costs will be ordered.

E. Stewart J.

I agree _______________________________

Sutherland J.

I agree _______________________________

Nishikawa J.

Released: May 23, 2024

CITATION: Domenic Chiocchio v. Canada Post, 2024 ONSC 2788

DIVISIONAL COURT FILE NO.: 803/21

DATE: 2024-05-23

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

E. Stewart, Sutherland and Nishikawa JJ.

BETWEEN:

Domenico Chiocchio

Applicant

– and –

Workplace Safety & Insurance Appeals Tribunal and Canada Post Corporation

Respondents

REASONS FOR DECISION

E. Stewart, Sutherland and Nishikawa JJ.

Released: May 23, 2024