THE WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20090003
OBJECTION BY: Worker
EMPLOYER: Not Participating
HEARING DATE: September 7, 2008
ATTENDEES: Worker Representative
ISSUE
The worker argues the Workplace Safety and Insurance Board’s (WSIB) decision to apply the combined values chart (CVC) of the American Medical Association (AMA) Guides (Guides) to reduce benefits for unrelated work-related impairments violates the Canadian Charter of Rights and Freedoms (Charter).
The worker argues the above WSIB approach set out in policy also violates the Ontario Human Rights Code (Code).
The worker also submits that if it is determined the Guides mandate the use of the combined values chart, the Guides themselves violate both the Charter and the Code.
The procedural requirements arising out of s.109 of the Courts of Justice Act, that a notice of constitutional question be forwarded to the federal and provincial attorneys general, has been met in this case.
HOW THE ISSUE ARISES
On August 14, 2002, while employed as a custodian with the employer, the worker injured his low back and right shoulder when he was lifting risers with a co-worker.
The worker received either full or partial loss of earnings (LOE) benefits from August 15, 2002 until August 23, 2004.
Subsequently, the WSIB recognized the worker had suffered a permanent impairment associated with his work-related injuries.
Effective January 7, 2005, the worker was granted a 37 percent (%) non-economic loss (NEL) award.
The employer objected to this determination, arguing the WSIB had not offset for the underlying non-work-related condition, as is the WSIB practice.
On June 15, 2005, the worker was advised his NEL award had been reduced to 31 %, in part due to his prior 12 % NEL award for noise-induced hearing loss (NIHL) and in part due to a pre-existing non-work-related impairment of the worker’s right shoulder, determined to be a 2 % impairment.
The worker has disputed the reduction of the NEL award as it relates to the 12 percent NEL award, based on the submission this approach, as set out in WSIB policy, violates both the Charter and the Code.
EXHIBITS:
- The Worker’s Factum
- Selected Book of Authorities
- Ontario Secondary School Teachers’ Federation v. Upper Canada District School Board 2005 CanLII 34365 (ON SCDC), [2005] O.J. No. 4057
- Re Ontario (Ministry of Health) and O.P.S.E.U. (1993), 1993 CanLII 16786 (ON GSB), 31 L.A.C. (4th), 129 (Ont.Arb.Bd.)
- Nova Scotia (Workers’ Compensation Board) v. Martin, [2003] 2.S.C.R. 504, 2003 SCC 54
- Law v. Canada (Minister of Employment and Immigration), 1999 CanLII 675 (SCC), [1999] 1 S.C.R. 497
- Hodge v. Canada (Minister of Human Resources Development) [2004] 3. S.C.R. 357, 2004 SCC 65
- Auton (Guardian Ad Litem of) v. British Columbia (Attorney General), 2004 SCC 78, [2004] 3 S.C.R. 657
- Workplace Safety and Insurance Appeals Tribunal Decision 1529/04I2
AUTHORITY
18-05-03 “Assessing Permanent Impairment”
18-05-05 “The Effect of a Pre-Existing Impairment”
s.47(2) of the Workplace Safety and Insurance Act (WSIA)
Ontario Regulation 175/98, Section 18
American Medical Association Guides to the Evaluation of Permanent Impairment, Third Edition (Revised) (the Guides)
ADDITIONAL CASE LAW REVIEWED
Zurich Insurance Co. v. Ontario (Human Rights Commission) 1992 CanLII 67 (SCC), [1992] 2 S.C.R. 321 (Zurich)
ASSESSMENT OF THE EVIDENCE
File Documentation
On January 7, 2005, the worker was awarded a 37% NEL award to account for a permanent impairment to his right shoulder and low back. The accident employer objected to this decision.
The NEL Clinical Specialist reconsidered the earlier decision on June 15, 2005. She concluded the measurable pre-existing non-work-related right shoulder disability should be rated at 2%, and that in applying the combined values chart of the AMA Guides, and taking into account the prior 12% NEL award for NIHL, the worker’s NEL award should be 31%, instead of the original award of 37%.
Worker Representative Submissions
The worker representative provided the following documentation in support of her position:
Written submission dated November 9, 2007
Worker’s Factum
Selected case law and WSIAT decisions.
She organized her arguments in the context of a number of questions, both related to the Charter and/or the Code, and to the application of the Guides themselves. I will summarize her submissions in the context of these questions.
Does the Appeals Branch have the jurisdiction to apply the Code and/or the Charter?
The representative noted the jurisdiction analysis is very similar for both the Charter and the Code.
She suggested that in Martin, the court held there is a presumption that tribunals empowered to determine questions of law may go beyond the bounds of their enabling statute and decide issues of common law. She noted the court in Tranchemontagne took a similar approach in the context of the Code.
The representative suggested that under the WSIA, the Appeals Branch has implicit jurisdiction to decide questions of law, having the same powers and duties as the Workplace Safety and Insurance Appeals Tribunal (WSIAT).
She noted as well there is nothing in our enabling legislation that restricts the jurisdiction of the Appeals Branch to apply the law beyond the WSIA.
She also argued that pursuant to Tranchemontagne, the Appeals Branch does not have the authority to decline to hear an appeal which is properly before the WSIB, and given that a violation of the Code is an issue for which the Appeals Branch has jurisdiction, the Branch has a duty and an obligation to address this issue.
Do WSIB benefits constitute a service under the Code?
The worker representative noted that Section 1 of the Code states that every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of disability or any of the enumerated grounds. Services is not defined, except in an exclusionary manner under Section 10, where it states:
‘services’ does not include a levy, fee, tax or periodic payment imposed by law.
She noted that the SCC in Zurich, concluded that human rights legislation should be given a broad and purposive interpretation, and since the Code does not define ‘services”, a dictionary definition is helpful:
supply, arrangements for supplying something useful or necessary.
She argued the worker’s compensation scheme and all benefits conferred thereunder could be considered arrangements for supplying something useful or necessary or work done in the service of others.
The representative suggested as well that WSIB benefits should not be considered within the Section 10 exception set out above as people would not consider WSIB benefits to be things “imposed” by law; rather it would be considered something given, granted or allowed.
She also found persuasive the fact that by determining that a section of the legislation dealing with Ontario disability support payments contravened the Code, the court in Tranchemontagne was inferring that such benefits, which are similar in nature to WSIB benefits, constituted ‘services’ and were subject to the Code.
She also commented on the fact a recent WSIAT panel, in Decision No. 1529/04I2, found that WSIB benefits are ‘services’ within the definition of the Code.
Do the Guides Mandate the use of the CVC?
The representative submitted I must decide whether the Guides mandate the use of the CVC. If they do, then the human rights challenge will be to the Guides. If they do not, then the human rights challenge will be to OPM 18-05-05, “The Effect of a Pre-existing Impairment”.
She argued that while the WSIB must use the Guides to rate permanent impairments because this is the prescribed rating schedule, the Guides do not mandate the use of the CVC. She suggested the wording in the forward of the Guides, that “practically all impairment values of the same system should be combined using the Combined Values Chart unless the text gives other instructions”, indicates that the Guides prefer but do not require that the CVC be used.
The worker representative noted that WSIAT case law has been very mixed on this point, but argued the above approach is consistent overall with what the WSIB does, as the Board does not apply the CVC for prior permanent disability awards, prior non-work-related impairments that are non-measurable, along with prior non-work-related impairments to other body parts. As such, she concluded the WSIB has already determined the CVC is not essential.
The representative also noted the Guides are a medical text, and to espouse the philosophy surrounding whether impairments should be expressed as impairments of the whole person, strays into the sphere of legal theory of compensation. She argued it is a question of law and public policy whether or not regard is had to a prior disability. She views this as a decision the WSIB has the discretion to make.
The worker representative submitted the appropriate determination to make is that the Guides do not mandate the use of the CVC and therefore it is the relevant WSIB policy that is in contravention of the Code.
Does the Application of the CVC in the Guides or Policy Contravene the Code?
The representative suggested a preliminary item to consider under this question is whether, for the purposes of evaluation of a possible contravention of the Code, a full analysis consistent with the Law analysis is required. She argued that the answer is no in this case because of the different language between the Code and the Charter, that is the fact the Code contains a specific section which prohibits discrimination due to the work-related injuries:
s.10(1)(e) an injury or disability for which benefits were claimed or received under the insurance plan established under the Workplace Safety and Insurance Act, 1997.
She suggested that given this wording, the full analysis under Law is not required as it relates to the need to determine a comparator group. She submitted that based on the specific wording set out in the Code, the only option is to compare the group claiming discrimination (the worker) with injured workers who have not previously claimed or received benefits under workers’ compensation legislation.
She submitted the policy indicates the CVC is only used when calculating NEL benefits for a worker with a prior NEL award, not when a worker has a non-work-related permanent impairment to a different body part, and suggested this is discriminatory.
On the above point, the representative outlined a Grievance Settlement Board decision in 1993 where the Board suggested that s.10(1)(e) has a distinct purpose of protecting persons who have suffered compensable injuries.
She noted this analysis is on point with this case, as the decision to reduce the worker’s NEL award because he has a prior unrelated NEL award is to treat him adversely simply on the basis of his prior work-related injury.
The representative referenced as well the SCC decision in Gibbs and the conclusion of the court that the first step in the consideration of whether discrimination had occurred was to determine the purpose of the disability plan; if benefits are allocated pursuant to the same purpose but differ as a result of characteristics that are not relevant to this purpose, discrimination may exist.
She went on to describe the purpose of the NEL award, as outlined on the WSIB website, that the benefit is to compensate workers for the physical, functional, or psychological loss the permanent impairment causes. In this context, the representative argued it should be irrelevant that the worker has a prior NEL award for an unrelated body part.
She argued it is clearly discriminatory to say the worker’s physical, functional, or psychological loss due to his low back and shoulder impairment should be reduced because of a prior NEL award for hearing loss; instead, it could be argued that the subsequent NEL award should be increased due to the fact the worker needs now to deal with more than one impairment.
The worker representative recognized that the WSIB policy does not discriminate against all workers with prior unrelated compensable injuries, as the CVC is not used when a worker has a prior pension for an unrelated body part and is being assessed for a NEL award. However, as outlined by the SCC in Martin, a violation of human rights can be found where there is discrimination against one group within a class.
Does the Application of the CVC in the Guides or Policy Contravene S.15(1) of the Charter?
The worker representative outlined that in answering the above more general question there are a few preliminary issues surrounding the concept of “comparator group”; what are the legal principles that apply to the selection of comparator group, what is the appropriate comparator group, and are the Guides subject to the Charter?
Regarding the issue of the legal principles for the comparator group concept, the representative submitted that discrimination under the Charter is a comparative concept and, as noted by the court in Law:
It is impossible to evaluate a s.15(1) claim without identifying specific personal characteristics or circumstances of the individual or group bringing the claim, and comparing the treatment of that person or group to the treatment accorded to a relevant comparator.
The representative focused on the SCC decision in Hodge, related to the issue of comparator group. She described the fact situation in that case and then outlined the numerous points made by the court in that decision (referencing other case law):
The comparator group is not a threshold issue as each step in the s.15(1) analysis requires a comparison,
While a claimant makes the initial choice of comparator group, this is a question of law and a court can determine the correctness of the choice,
The appropriate group is one which mirrors the characteristics of the claimant relevant to the benefit or advantage except for the inclusion of a personal characteristic that violated the Charter,
One must identify the universe of people potentially entitled to equal treatment in relation to the subject matter of the claim,
There must be proper alignment between the benefit sought and the ground of discrimination alleged, and
The ground has to be a personal characteristic enumerated or analogous to those listed in s.15(1).
The representative noted that in a subsequent SCC decision in Auton, the court refined the comparator group analysis by describing the four tenets of the Hodge analysis:
The choice of the correct comparator is crucial since the comparison between the claimants and this group permeates the analysis,
The court must ensure the comparator is appropriate and should substitute an appropriate comparator if the one chosen by the claimants is not appropriate,
The comparator group should mirror the characteristics of the claimant group relevant to the benefit or advantage sought, except for the personal characteristic related to the enumerated or analogous ground raised as the basis for the discrimination, and
A claimant relying on a personal characteristic related to the enumerated ground of disability may invite comparison with the treatment of those suffering a different type of disability, or a disability of greater severity.
The representative referenced the writings of Canadian constitutional law expert Peter Hogg, where he distinguished Auton from Martin, suggesting it is natural to make a comparison between those who are denied benefits and those who are granted benefits in the context of a comprehensive scheme. She noted this worker’s situation is like the situation in Martin, in that a workers’ compensation scheme is at issue, a scheme which purports to provide comprehensive coverage for all work-related injuries and the worker is being denied a full benefit.
On the question of the appropriate comparator group, the worker representative referenced the criteria set out above and sought to apply the criteria to the fact circumstances of this case.
She suggested the specific purpose of a NEL award must be considered in light of the overall purpose of the legislative scheme, and given the comment above regarding the provision of comprehensive coverage for all work-related injuries, it is appropriate to compare the worker, who has been denied a full NEL benefit, to those who have been granted a full NEL benefit; the appropriate comparator group is injured workers eligible for a NEL award who do not have a pre-existing disability. She argued this group mirrors the characteristics of the worker, except for the personal characteristic of a prior disability.
She noted as well that this comparator group aligns with the benefit and the universe of people potentially entitled to the benefit.
She argued that workers who have a permanent disability (p.d.) award do not fit within the universe of people potentially entitled to equal treatment in relation to the subject matter of the claim. As well, using the comparator group of injured workers with non-work-related prior disabilities, does not meet the standard of proper alignment between the benefit sought and the ground of discrimination alleged.
In summary, she argued the appropriate comparator group in this case is injured workers without a pre-existing disability eligible for a NEL award.
The worker representative then focused on the question of whether the Guides are subject to the Charter?
On this question she pointed me to a generic submission forwarded to the claim file. She quoted the writings of Professor Peter Hogg, one of Canada's leading experts on constitutional law, writings that confirmed that administrative tribunals are one of the bodies exercising statutory authority that are bound by the Charter. Professor Hogg went on to say in part:
Thus, the limitations on statutory authority which are imposed by the Charter will flow down the chain of statutory authority and apply to regulations, by-laws, orders, decisions and all other action (whether legislative, administrative or judicial) which depends for its validity on statutory authority.
The Charter applies to the exercise of statutory authority regardless of whether the actor is part of the government or is controlled by the government.
Based on the above, the representative argued that any action the WSIB takes pursuant to its statutory authority, such as the importation on the non-governmental Guides into the NEL scheme must comply with the Charter.
The representative then went on to ask and answer questions regarding the application of S.15(1) of the Charter.
What is the Law Analysis of Section 15(1)?
The representative referenced the leading case of the SCC on S.15(1) and noted the court had established a three step approach/legal test to determining discrimination under that section; that is three questions that must be answered in the affirmative.
Is There Differential Treatment in the Claim?
She argued the question about differential treatment requires a comparison to an appropriate comparator group, which in this case is injured workers eligible for a NEL award who do not have a pre-existing disability.
She noted that in the circumstances of this case, the worker is treated differently, because any other worker with the same degree of impairment to his low back and shoulder would receive greater recognition of the physical, functional or psychological loss their impairment caused. She suggested that the use of the CVC to reduce the worker's NEL award for this impairment constitutes differential treatment.
Is this Differential Treatment on an Enumerated Ground?
The representative noted the second question to be answered is whether the differential treatment was on the basis of one or more of the enumerated and analogous grounds. She submitted the worker's differential treatment is due to his physical disability and noted the SCC in Martin made a decision exactly on point. She noted the court considered the argument that the distinction based on chronic pain was not based on an enumerated ground of physical disability because both the claimant and comparator group suffered from physical disabilities. She noted the conclusion in Martin:
This Court has long recognized that differential treatment can occur on the basis of an enumerated ground despite the fact that not all persons belonging to the relevant group are equally mistreated.
Does this Differential Treatment Constitute Discrimination?
The worker representative noted that the final question required by Law is whether the differential treatment is discriminatory in a substantive sense. This evaluation is informed by the purpose of S.15(1) which is to prevent the violation of essential human dignity and freedom through the imposition of disadvantage, stereotyping, or political or social prejudice, and to promote a society in which all persons enjoy equal recognition at law as human beings or as members of Canadian society, equally capable and equally deserving of concern, respect and consideration.
In answering the above question, there are four contextual factors that must be considered and Ms. Gianfelice considered these in her submissions by setting them out and making arguments about how each of them apply.
- Do the Claimants suffer from pre-existing disadvantage, stereotyping, prejudice, or vulnerability?
The representative noted the court in Law determined that although the claimant's association with a historically more advantaged or disadvantaged group is not per se determinative of an infringement, the existence of these pre-existing factors will favour a finding that s.15(1) has been infringed. On the facts of this case, the worker representative argued it is clear that people with disabilities are vulnerable members of society.
- Is there correspondence between the grounds of discrimination and the actual need, capacity, or circumstances of the claimant or others?
The representative noted it will be more difficult to establish discrimination when the impugned provision takes into account the claimant's actual situation in a manner that respects his or her value as a human being.
She referenced the fact the court in Martin recognized that classification and standardization are in many cases necessary evils, but still must be implemented in a way that preserves the essential human dignity of individuals. On the facts of this case, the worker representative argued there was no analysis of the worker's actual needs or circumstances when the CVC was used to reduce his NEL award; the process did not allow for any analysis of whether the worker might be suffering a greater physical, functional or psychological loss due to his impairment. She suggested the worker was assessed as being less than a whole person and his losses are worth less because he had a prior disability.
She noted as well that in addressing the second contextual factor, the court in Martin indicated that a vital consideration was the overall purpose of the legislative scheme; on the facts of this case it is submitted the use of the CVC for a worker with a prior NEL award is not supported by the larger objectives of the legislation, which include providing compensation to injured workers for their work-related impairments.
- Does the impugned provision have an ameliorative purpose or effect for a more disadvantaged person or group in society?
The representative noted this factor is more relevant when the s.15(1) claim is brought by a more advantaged member of society. The representative was clear in stating this factor does not apply to the facts of this case.
- What is the nature and scope of the interest affected by the impugned law?
It was argued the more severe and localized the consequences of the legislation for the affected group, the more likely that the differential treatment responsible for these consequences is discriminatory within the meaning of s.15(1). She argued there is an economic interest involved, but the bigger issue is the assault on the worker's human dignity. She noted the premise underlying the CVC is that an individual with a prior unrelated impairment is not a “whole” person. She referenced the analysis of the court in Martin where the court made clear that even in circumstances where the interest affected was solely economic in nature, it could still be viewed as impacting human dignity. The court stated in part:
In many circumstances, economic deprivation itself may lead to a loss of dignity. In other cases, it may be symptomatic of widely held negative attitudes towards the claimants and thus reinforce the assault on their dignity.
The worker representative argued that in this case the use of the CVC to reduce a worker's NEL award because of a pre-existing and unrelated impairment leads a reasonable person to conclude that his essential dignity has been adversely affected. She suggested the use of the CVC suggests to the worker and others like him that his impairment is worth less than others because he already had an unrelated impairment. It reinforces the stigma attached to physical and mental disabilities and runs counter to all fundamental human rights principles.
The representative argued that based on all of the above, the use of the CVC when assessing different areas of impairment does constitute substantive discrimination on the basis of disability.
Is the Discrimination Saved under Section 1?
The representative indicated that S.1 of the Charter guarantees its rights and freedoms subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. On this question, the worker representative referenced the four part test established by the SCC in R. v. Oakes. The court outlined the objective of the legislation must be pressing and substantial, and the means chosen to attain this legislative end must be reasonable and demonstrably justifiable in a free and democratic society. In order to satisfy the second requirement the rights violation must be rationally connected to the aim of the legislation, the impugned provision must minimally impair the Charter guarantee, and there must be a proportionality between the effect of the measure and its objective so that the attainment of the legislative goal is not outweighed by the abridgement of the right. The burden of proof for the government is on a balance of probabilities.
The representative argued there is no pressing and substantial objective which would warrant the use of the CVC when dealing with unrelated impairments. At the hearing, she noted S.1 cannot be addressed in a vacuum and the burden of proof is on the government, to be established on a factual basis with justification. Therefore, she suggested that if I, as the decision-maker, review additional evidence or invite further submissions from the WSIB she would need to be offered the opportunity to respond.
In terms of a remedy, she argued the worker seeks a declaration that the use of the CVC to reduce benefits for unrelated work-related impairments violates the Charter and/or the Code and that the NEL award in this case should be determined without reference to the CVC.
Analysis
Applicable Legislation
It is important to begin the analysis by recalling the statutory and policy provisions at issue. S.47(2) of the WSIA mandates that the determination of the degree of permanent impairment be made in accordance with the “prescribed rating schedule”. Ontario Regulation 175/98, S. 18 establishes the prescribed rating schedule is the Guides.
WSIB policy 18-05-05 sets out in part:
If a worker with a pre-existing NEL benefit has a new permanent impairment that affects another area of the body the WSIB determines the second NEL benefit by
Rating the new impairment independently of the prior impairment
Combining the old and new ratings using the Combined Values Chart (see 18-05-04, “Calculating the NEL Benefit”) and
Subtracting the prior impairment’s rating from the combined value.
I note as well that while Code and Charter challenges need to be made pursuant to a particular case, it is true to say that the facts of the particular case are no longer the focus, but instead the focus turns to the legislative provisions/policies themselves.
Jurisdiction to apply the Code and Charter
I have reviewed the evidence relied on by the worker representative and have also considered a number of other items of evidence.
Regarding my jurisdiction to address Charter questions, I find relevant S.118(1) of the WSIA, which states the WSIB has exclusive jurisdiction to examine, hear, and decide all matters and questions arising under this Act, except where the Act provides otherwise.
As well, I have reviewed WSIAT Decision 794/97, the SCC decision in Martin, and find it is currently well established in law that the WSIB has the jurisdiction to determine Charter challenges to its enabling legislation.
Regarding the Code, I reference the recent SCC decision in Tranchemontagne, a case which clearly establishes that an organization such as the WSIB has both the authority and the obligation to interpret and apply human rights legislation.
It is also relevant that the WSIAT Practice Direction document sets out procedures to address both Code and Charter issues.
Therefore, as a decision-maker in the Appeals Branch at the WSIB, I have the jurisdiction to address the issues presented to me in this case in relation to the Charter and the Code.
Does the Code apply in this case – are WSIB benefits a “service” under the Code?
I accept that the SCC in Zurich concluded that human rights legislation should be given a broad and purposive interpretation. I also find a similarity between the nature of WSIB benefits and disability support payments at issue in Tranchemontagne, and the SCC in that decision concluded disability payments constitute a “service” and were subject to the Code. I note as well that a recent WSIAT panel, in Decision No. 1529/0412, determined that WSIB benefits are “services” as defined by the Code.
I find that the Code applies in the case before me.
Interaction between the Charter and the Code
I would like to deal with the preliminary question of the interaction between the Code and the Charter in terms of their interpretation and application. In Secondary Teachers’ Federation, the Ontario Divisional Court described the history of “cross-fertilization between S. 15 of the Charter and human rights legislation and commented that from the first major case interpreting the Charter onwards (Andrews), the “concept of equality and discrimination in human rights codes has reflected the developing equality jurisprudence under the Charter...it is also noted that both S.15 and the codes pursue the same objective—namely the protection of human dignity…” In Secondary Teachers’ Federation, the court concluded that the arbitration board did not err in applying the legal test/analysis set out in Law.
I am thus not persuaded by the argument of the representative that a full analysis consistent with the tenets under Law, is not required for the purposes of evaluating a possible contravention of the Code or her suggestion the two statutes must be analyzed separately.
Based on the above, I find that the legal test for both the Charter and the Code is the same, and as such, this decision will focus on the Charter analysis. The conclusions reached, but for S. 1 of the Charter, will apply to the claims of discrimination under both the Charter and the Code.
Do the Guides Mandate the use of the CVC?
In the unique circumstances of this case it is also helpful to resolve the preliminary question of whether the WSIB is required to apply the CVC or whether it has the discretion not to do so.
The Guides operate on the basis that all impairments affect the individual as a whole and that all impairments should be expressed as impairments of the “whole person”. This is accomplished through the use of the CVC and the WSIB has accepted this philosophy by determining that the Guides are the prescribed rating schedule.
The worker representative referenced the wording in the forward to the Guides as evidence the WSIB has the authority not to apply the CVC as the Guides only suggest a preference for the use of the CVC, not a clear requirement that it be used:
Practically all impairment values involving several organ systems or multiple parts of the same system should be combined using the Combined Values Chart unless the text give other instructions.
With due respect, I interpret the above statement differently. I find the compelling wording of the forward establishes the WSIB has no discretion to not apply the CVC.
What is being challenged?
Based on the above conclusions, I find that given the application of the CVC is reflected in WSIB policy 18-05-05, it is the policy for which I will be drawing a conclusion, related to the claim of discrimination pursuant to both the Charter and the Code.
Application of the Charter – Section 15
Section 15(1) of the Charter specifies:
Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
The case law has clearly established a three part test associated with the application of s.15 of the Charter. The test requires the following inquiry: 1) Was there differential treatment? 2) Was the differential treatment based on an enumerated or analogous ground? and 3) Did it result in substantive discrimination? I will address each component of the legal test.
Differential Treatment
When considering the question of whether the statutory provision at issue leads to differential treatment for a group claiming discrimination and disadvantage, the core of the analysis is a comparison to others who would not be so disadvantaged.
Therefore, it is necessary to establish both the group claiming discrimination as well as the group they should be compared to, known as the comparator group.
It is clear in this case the group claiming discrimination are workers entitled to a NEL benefit who have a prior work-related permanent impairment (NEL award) affecting another area of their body. These workers have their NEL awards reduced by virtue of the application of the CVC.
What is less certain is the most appropriate choice of comparator group. On this question, it is worthwhile to canvas a number of court cases that discussed the concept of comparator group, many of which were commented on by the worker representative in her submission.
The SCC has considered this issue extensively in both Hodge and Auton, but this decision will focus on Hodge as it established a number of principles that the court in Auton subsequently approved. At paragraphs 23, 25, 26, and 31 in Hodge, the highest court suggested the comparator group should mirror the characteristics of the claimant group relevant to the benefit or advantage sought, except for the personal characteristic regarding the enumerated or analogous ground raised as the basis for the discrimination, and the comparator must align with both the benefit and the universe of people potentially entitled to it and the alleged ground of discrimination. It is also necessary to identify the purpose of the legislative provision.
In considering the notion of comparator group in the context of the Hodge tenets, I find it helpful to review the decisions made in the Martin case about the choice of comparator group.
In Martin, the group alleging discrimination, work-related chronic pain sufferers, chose as a comparator group chronic pain sufferers whose injuries were not work-related. The court concluded there was no proper alignment between the two because benefits under the workers’ compensation scheme were not available to people who had suffered their injuries outside of the workplace.
The SCC instead chose as the comparator group, the group of workers subject to the legislation who do not have chronic pain and who are eligible for compensation for their work-related injuries.
The same approach should be taken in the case before me on the question of alignment. The comparator group needs to be one in which the workers are subject to the legislation and have the right to have their injuries adjudicated under the legislation.
The purpose of the legislative scheme is the payment of compensation benefits for workers who have suffered a work-related injury.The purpose of the NEL provisions and policy 18-05-05 is to recognize the permanent effects of work-related injuries. As such, the comparator group ought to be those who are eligible for worker's compensation benefits.
It is then necessary to consider which group most closely mirrors the characteristics of the claimant group relevant to the benefit sought (NEL award) except for the personal characteristic of the enumerated ground of discrimination, that being physical disability.
Based on all of the above factors, I recognize the appropriate comparator group in this case is injured workers eligible for a NEL award who do not have a pre-existing disability. This group most closely mirrors the characteristics of the worker (the person alleging discrimination), except for the characteristic of a prior disability.
After establishing the appropriate comparator group, it is still necessary to consider whether there is differential treatment between the group claiming discrimination and the comparator group.
The differential treatment in this case is established by a distinction in the manner in which NEL awards are calculated between a worker with a prior work-related permanent impairment and a worker with a prior non-work-related impairment. The values of the two impairments will be combined in the case of the former worker but will not be so combined in the case of the latter worker.
I find that on its face, WSIB policy 18-05-05 results in differential treatment between the minority and comparator group. I find that this component of the legal test has been met.
Enumerated or Analogous Grounds
This component of the legal test has also been met, as the differential treatment at issue in this case is based on physical disability, which is an enumerated ground of discrimination as outlined in s.15 of the Charter.
The worker representative made the argument that discrimination can be found when the discrimination is against one group within an enumerated class not against the whole class; that is, when the unequal treatment among people with disabilities, as opposed to between people with disabilities and those without.
The worker representative referenced the Martin decision in support of this position, and in particular, one conclusion reached:
This court has long recognized that differential treatment can occur on the basis of an enumerated ground despite the fact that not all persons belonging to the relevant group are equally mistreated.
I accept it is no answer to this part of the legal test to argue that because other injured workers can be compensated for their permanent impairment without reduction, that the differential treatment for those who have their permanent impairment award reduced, is on that basis alone, non-discriminatory.
Substantive Discrimination
Within the larger three part legal test that was set out by the SCC in Law in 1999, the analysis required under the concept of substantial discrimination contains a further subset of four factors that need to be considered/four questions to be answered in the affirmative. However, it is important to note that the overriding principle to be evaluated related to the question of substantive discrimination is whether the differential treatment has the effect of unfairly withholding benefits available to others in a manner that demeans the essential human dignity of the group.
The first question to be answered is whether there are pre-existing disadvantages or stereotypes that are reflected in the challenged legislation.
The worker representative on this issue simply asserted that people with disabilities are vulnerable members of our society. It seems a reasonable assertion to make that the disabled are stereotyped as less “able”, and are vulnerable, often not willing to assert their rights or protest injustices.
However, it is important to note that in the circumstances of this case, where the differential treatment at issue is between the benefits available to workers suffering a permanent impairment dependent upon whether their pre-existing disability was work-related or non-work-related, the concept of stereotyping and historical disadvantage must be evaluated somewhat differently, as I do not see, on its face, that injured workers (disabled workers) have been historically more disadvantaged based solely on the nature of their pre-existing impairments.
As well, I note the following statement made by the court in Law, which was also referenced by the worker representative:
I also do not wish to suggest that the claimant's association with a group which has historically been more disadvantaged will be conclusive of a violation under S.15(1) where differential treatment has been established. This may be the result, but whether or not it is the result will depend upon the circumstances of the case and, in particular, upon whether or not the distinction truly affects the dignity of the claimant.
The differential treatment between the minority and comparator group in this case suggests that within the broader enumerated ground of discrimination, physical disability, there is a distinction made on something other than pre-existing disadvantage or stereotype. I will elucidate more on this finding below.
The differential treatment established in the policy, does not, in my view, reflect or reinforce existing inaccurate understandings of the merits, capabilities and worth of a particular person or group within Canadian society, resulting in further stigmatization of that person or the members of the group or otherwise in their unfair treatment (Law, paragraph 64).
I find that the pre-existing disadvantage contextual factor weighs against the discrimination plea made in this case.
The second question is whether there is correspondence between the needs of the group claiming discrimination and the manner in which they are treated within the challenged legislation? Put more plainly, does the distinction in NEL award calculations between the minority and comparator group take into account the actual needs, capacity or circumstances of those who suffer from work-related permanent impairments in a manner that respects their value as human beings and members of Canadian society? The overall purpose of the legislative scheme is relevant to this consideration as well.
On its face, the use of the CVC in calculating NEL awards does not take into account the actual needs, capacity or circumstances of workers who have their award reduced simply by virtue of the fact their pre-existing impairment is also work-related.
As noted by the SCC in Martin, there are circumstances where distinctions, classifications and standardization are necessary and are established in a manner that respects the needs of the group and maintains a positive purpose. But the question must always be asked as to whether the distinction is, as described in Martin, “implemented in such a way as to preserve the essential human dignity of individuals”.
On this contextual factor, the representative argued the use of the CVC in the worker's case did not allow for any analysis of whether the worker might be suffering a greater physical, functional or psycholgical loss due to his impairment. As well, the representative submitted the use of the CVC is not supported by the larger objectives of the legislation, which include providing compensation to injured workers for their work-related impairments.
With due respect, I disagree with the worker representative's characterization of the larger objectives of the legislation, as least in relation to the use of the CVC in calculating NEL awards. The WSIB only has jurisdiction over work-related injuries and diseases. It has no legal authority to evaluate or compensate for non-work-related injuries. As such, the WSIB considers entitlement to benefits solely on the basis of work-related injuries or impairments.
I distinguish the facts of this case from the facts in Martin. In the case before me, the WSIA and policy does not preclude workers with a prior work-related impairment from access to a NEL award; it simply applies a prescribed rating schedule and use of the CVC to calculate NEL benefits for workers with prior work-related injuries. This approach is consistent with the WSIB's legal authority to concern itself only with work-related injuries.
The philosophy of the AMA Guides is that all physical impairments affect the “whole person” and that, as such, impairment ratings should be combined so as to be expressed as an impairment of the whole person. The use of the CVC is the manner in which this philosophy is applied in the context of work-related impairments. The fact it is not applied in circumstances where a worker has a prior non-work-related condition is based solely on the fact the WSIB lacks jurisdiction over such conditions.
I find that overall, the use of the CVC in the circumstances set out in WSIB policy 18-05-05 does not treat the individuals claiming discrimination in a manner that fails to preserve their essential human dignity.
The third question/factor relates to whether the differential treatment has an ameliorative purpose, that is, does it attempt to improve the circumstances of some other more disadvantaged group? There is no evidence to support that the differential treatment has such a purpose and therefore it is reasonable to accept that the purpose of the limitation is not to provide a greater benefit to a more deserving group. This contextual factor weighs in favour of a finding of discrimination.
The last factor relates to the nature of the interest affected by the differential treatment; how significant is the interest and does it result in a loss of human dignity?
I recognize there is an economic interest that is affected in this case, based on the reduction of the monetary amount of a worker's NEL award through the application of the CVC. However, the current legal test requires more than an impact on an economic interest, no matter how considerable. The interest that is negatively impacted must result in a loss of human dignity for the group claiming discrimination.
I note that the court in Martin accepted that an economic interest (economic deprivation) may on its own lead to a loss of human dignity as it “may be symptomatic of widely-held negative attitudes towards the claimants and thus reinforce the assault on their dignity”.
It is important to remember in terms of the interest affected here that while the workers at issue have their NEL awards reduced, the differential treatment does not deny access to a NEL award nor does it completely disregard the needs of the particular group.
This is very different from the Martin case, where chronic pain sufferers were denied the opportunity to access the benefits under the scheme that were available to other injured workers.
I also wish to comment on the fact that the economic impact is minimized by virtue of the fact the policy in question, and the approach to the application of the CVC, does not disadvantage workers with prior non-work-related permanent impairments.
Based on my conclusions on this factor as well as above under the “correspondence” factor, I do not find the use of the CVC is stereotypical and arbitrary in its approach or undermines the essential human dignity of the group claiming discrimination.
Based on all of the above, I do not find the balance of evidence supports a finding of discrimination under either s.15(1) of the Charter or s.1 of the Code.
Application of s.1 of the Charter
Based on the above conclusions, it is not necessary to evaluate and/or apply S.1 of the Charter.
CONCLUSION
I find the balance of evidence supports that WSIB policy 18-05-05 as it relates to the application of the CVC when calculating NEL awards, does not violate either s.15(1) of the Charter or s.1 of the Code.
Therefore, the determination made on June 15, 2005 related to the quantum of the worker's NEL award remains in effect.
The worker’s appeal is denied.
DATED February 17, 2009
K. Wuori Appeals Resolution Officer Appeals Branch