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Employer wins extension of Time Limit to Appeal and then successfully appeals Entitlement

 

The claim was initially allowed after the worker suffered multiple injuries (fracture and sprain) falling from a counter-top in the cafeteria in which the worker was employed. The incident occurred outside of the worker’s usual working hours and did not involve a task for which the worker was being compensated by the employer in any manner. The worker did however have permission of the employer to decorate the room after hours. The fact that the employer had granted permission to three employees to decorate the cafeteria for a colleague who was transferring to another department, that the injury took place on the employer’s premises and that the activity allegedly benefitted workplace morale led to the WSIB seeing the activity as “reasonably incidental” to the workplace.

The employer initially proclaimed their objection to entitlement on the Form 7, and later in a telephone conversation with the Eligibility Adjudicator, a conversation which was mentioned in the Adjudicator’s decision. They faxed their written objection the day the decision was received, but upon reviewing this claim as new employer representatives it was discovered that there had been an error message on the fax transmission sheet and that the written objection had never been received by the WSIB. A new objection was submitted, citing the employer’s intention to object as expressed in the Form 7 and over the phone. The Eligibility Adjudicator denied the employer’s right to object on the grounds that the timeline had not been met. We appealed this decision on the merits and justice of the case, asking that the employer’s clear intent to object be recognized in spite of their unfortunately unnoticed mistake. Nearly four years after the date of injury, the Appeals Resolution Officer agreed and allowed the employer to proceed with their objection.

Four months later, an Appeals Resolution Officer (ARO) overturned entitlement . The employer’s appeal focused on three elements of the case: 1) the worker was engaged in a personal activity not reasonably incidental to their employment, and 2) the incident happened outside of working hours and was not organized or paid for by the employer, and 3) the employer did not experience any direct benefit from the actions of the worker. In fact, this large employer (hospital) with approximately 2000 employees would suffer a detriment if workers were regularly granted permission to engage in this type of personal activity.The Director of Food Services, in granting permission for the workers to engage in this personal activity very wisely set out some clear guidelines which were: 1) it had to be done on their own time 2) It had to be done after work 3) the decorations had to be removed after the day was completed and 4) the decorations had to be acceptable to their public health and safety. Even with these very clear restrictions, the claim for an injury arising out of a personal activity after work was still allowed by the WSIB. This claim cost the employer over $80,000 which will now be refunded by way of a manual adjustment plus interest.  

The ARO found particularly convincing that the employer had no involvement in the activity other than providing permission, that the worker was acting to satisfy a personal need rather than a professional one and that the activity engaged in by the worker was not at all typical for employees but rather if conducted at all, would be performed by management.  Both of these employer appeals were done by written submission only.

 

 

The Adjudication of Occupational Disease Claims and PTSD Claims by the WSIB: What Employers should know

Cézanne will be guest speaking on Tuesday November 17 at the Casablanca Winery Inn in Grimsby Ontario.

Although you would think that the Adjudication of Occupational Disease claims at the WSIB would be completed by some medically and/or legally trained Claims Adjudicators due to the complexity of both the legal and medical issues that must be assessed. They are not. One Ontario employer’s experiences with three terribly adjudicated Occupational Disease claims causing death is shocking. Read about how Charlebois Associates overturned these three claims and how vigorously the Board resisted even acknowledging their errors. In fact they never did.  Now, there appears to be a similar trend of inadequate adjudication regarding PTSD claims by the WSIB. Clinically, these claims are very easy for doctors to misdiagnose because they are based exclusively on the symptomology presented by patients. There is no objective medical test to refute or confirm the diagnosis. The WSIB fails to provide the assessing doctors with  sufficient information, concerns raised by the employer, or enough valid accurate collateral information upon which feigning and malingering could even be considered. In one of our recent cases, a Psychiatrist who had been seeing an injured worker for the past two years noted one year earlier in a written report that the worker was involved in a ‘fatal MVA’ and was suffering from PTSD since then.  Not a single person from the Board noticed this important piece of incorrect and highly relevant mis-information provided by the worker. The worker had been in a single vehicle, at-fault incident and there were no fatalities. The worker had also been in numerous other at-fault incidents and was already told that he would be dismissed from employment if there were any more. This information was never provided to any of the many assessing health care professionals over the two years that the worker had been receiving full LOE benefits. PTSD claims adjudication at the WSIB needs much improvement and costs employers in Ontario hundreds of thousands of dollars. Skilled surveillance is just about the only tool available to employers for refuting these diagnoses. Even then, the employer will likely be met with more bureaucratic resistance.  The Claim’s Manager is very likely to tell the employer that he or she is not willing to reverse all the previous decisions made in the claim despite the overwhelming evidence the employer presented because he or she is not allowed to create such an “unrecoverable overpayment or debt”. Of course this is unacceptable and contrary to Board Policy. 

More Information on 3 Overturned Occupational Disease Claims...

More Information on Guest Speaking Nov 17...