CA 250

WSIB Law for Employers

First time WSIAT has ever been overturned by the Divisional Court in Ontario

In Amin v WSIAT [2009] O.J. No. 4715 the Divisional Court finally reversed the first WSIAT ever. Unfortunately, this case illustrates the tremendous challenges faced by employers especially as they relate to “probationary” employees who are not performing well.  The worker had only been employed for 11 days and was a probationary employee. The worker had been given notice (the first mistake by the employer) by the company that they were going to terminate him for poor performance and for mis-representing his experience. Shortly after that on June 5, 2004 (unknown and unreported to the employer) the worker sought medical attention for pain in his right hand, arm and back. His employment was terminated on June 9, 2004 prior to any form or WSIB claim being filed.  He received full LOE benefits for almost two months following his termination until August 5, 2004 and then appealed the denial of ongoing LOE past August 5, 2004.  Four years later,  after working 11-days, the worker claimed that he was still feeling the effects of the gradual disablement type injury that he sustained and for this reason, he indicated that he was unable to find employment. He spent his time tending to his children, and giving advice to new immigrants.

The WSIAT Reconsideration Decision dated July 17, 2008 (390/08R) revealed that this worker had reported another injury of right sided back pain in 2003 (before his employment with the accident employer) on his second day on a job where he was sorting light metal parts weighing not more than five or six pounds in total and wherein the worker complained the job was too fast paced and was repetitive work.  His claim was denied.  “As I reviewed this matter for reconsideration, I found the description of events by the worker to be strikingly similar to the present claim-works for a very short period, complains that the work is too fast paced and repetitive, does not involve heavy products, and does not report an injury to his employer” see para [25] of WSIAT Decision No. 390/08R.

This case reminds employers to:

  • Do an intensive and thorough background check on every employee;
  • Quickly, make the decision to terminate (without notice) during the probationary period when it becomes apparent that an employee has mis-represented his or her skill level;
  • Have written documentation to verify performance issues on a daily basis for probationary employees;
  • Seek out the advice of a lawyer who specialize in management side workers’ compensation law  to conduct Independent Medical Examinations (IME) or a disability related surveillance investigation to assist with decision making by adjudicators, Appeals Resolution Officers and Divisional Court Justices.

There is absolutely no medical evidence to substantiate any ongoing impairment in this case and a whole lot of medical resources were wasted trying to verify this workers’ continuity of subjective complaint (which is not one of the criteria for entitlement in workers’ compensation).  Both the WSIAT Panel and the Divisional Court appeared to reluctantly admit that the worker did sustain a minor repetitive strain injury over a very short period of time.  However,  the Divisional Court allowed the worker’s appeal and referred the matter back to another WSIAT Panel because the end date for LOE benefits was not substantiated by evidence (just like the worker’s complaints for the following four years).  This should have been established by the Case Manager long before it went to WSIB Appeals Branch, WSIAT and the Divisional Court.   An application for leave to appeal to the Court of Appeal was dismissed on February 3, 2010. And the application for leave to appeal to the Supreme Court of Canada was dismissed on June 3, 2010. We are certainly looking forward to how the new WSIAT Panel will determine the date on which the worker’s injury is no longer work-related.

Link: WSIAT Decision 390/08 (now overturned)

Link: Ontario Superior Court of Justice – Divisional Court Decision

Posted by: Cézanne Charlebois

Sometimes a swimming pool is just a swimming pool

In 2007, a guest at Blue Mountain Resorts died while swimming in an unattended pool at the resort.

The Ontario Ministry of Labour issued orders against the employer for failing to report this death under subsection 51 (1) of the Occupational Health and Safety Act.

The employer argued that they should not be required to report the death of a guest in a swimming pool, because the pool was not a “workplace” and there was no “worker” even present when this tragic accident occurred.

The Ministry of Labour disagreed and issued orders against the employer.

Throughout Ontario, employers were stunned when both the OLRB and the Divisional Court upheld the orders of the MOL.

With the Dofasco case in 2007, the Court of Appeal told us that “due diligence” required employers to literally have eyes on the backs of their heads as they contemplated even the “rogue and defiant worker” in their legal responsibilities.

The Blue Mountain decisions by the MOL, the OLRB and the Divisional Court resulted in a shuddering wave of resignation by employers.

The Court of Appeal for Ontario has thankfully restrained and limited the broadening reach of the MOL in saying that their interpretation of this section “would make virtually every place in the province of Ontario (commercial, industrial, private or domestic) a “workplace” because a worker may, at some time, be at that place“.

They set aside the decisions of the Divisional Court and the Board.

This is great reading for employers! Read the Court of Appeal for Ontario decision.

Mining Health and Safety Conference - April 14-16, 2015

Location: Holiday Inn, Sudbury, ON

Cézanne will be presenting Managing Complex WSIB Claims at the Workplace Safety North’s Mining Health and Safety Conference. More details to follow.

 

MORE INFO

Warner v. Moore | WSIB Wars - January 2015

Truck News Coverage

HRPA Coverage Toronto Star Coverage

Read more about the Warner v Moore Brothers Transport Ltd, 2014 Decision on CanLII

 

 

Current Issues in Workplace Safety and Insurance Law - May 28, 2014

Date: Wednesday, May 28, 2014 | 9:00 am – 4:30 pm Location: 20 Toronto Street Conferences and Events                 2nd Floor | Toronto, ON | M5C 2B8

Attend one of the OBA’s most unique CLE programs and ensure that you are on top of the latest changes and developments in Workplace Safety and Insurance Law and Policy. This hugely popular annual review of current issues and practical strategies features an expert faculty of leading counsel, and medical expert Dr. Michel Lacerte, who will give you the insights, background and tools you need to provide superior representation for your clients at the WSIB and WSIAT.

You will walk away with:

Practical tips for dealing with the new WSIB policies including the proposed Benefits Policies

A clear understanding of the medical tests on a neck examination, and assessing pre-existing conditions

Expert advice on the law of evidence

An explanation of the WSIB’s new approach to adjudicating psychological issues including psychotraumatic disability and chronic pain claims

A guide for understanding when workplace violence, disasters and assaults are workplace accidents

Strategies for dealing with self-represented parties, vexatious litigants, and vulnerable parties

Our annual update on important new WSIAT Decisions

This program sold out weeks in advance last year!

REGISTER NOW to take advantage of this unique opportunity to get up to date on the latest developments in workplace safety and insurance law. We look forward to seeing you there!

 

To view the full Program Agenda, please CLICK HERE.

Managing & Appealing Complex WSIB Claims - March 26, 2014

When employers encounter complex, costly and poorly or incorrectly adjudicated claims, it often causes them to give up, accepting the outcome as inevitable. Cézanne will discuss how to persist with these challenging claims (all the way up the Appeals ladder). Attendees will learn about proactive, collaborative & effective Claims Management Tools to assist with moving claims towards successful Return to Work, Appeals, or Work Transition Services, while keeping costs as low as possible.

 

 

Staff Safety in Hospitals - October 30, 2013

A few years ago, the introduction of Bill 168 by the Provincial Government of Ontario changed everything about workplace violence and harassment. Lawyer Cezanne Charlebois will discuss the impact of Bill 168 on health-care security professionals and the valuable lessons she has learned over the years in preventing workplace violence. She will talk about the duty of security and management to rise above organizational tolerance.

Speaker: Cézanne Charlebois is a lawyer who practices almost exclusively in management-side workers’ compensation law and occupational health and safety. In her previous capacity as a Probation and Parole Officer, she acquired extensive experience in assessing and managing the risks associated with violence and harassment. Specifically, she has direct experience in working with psychotic, mentally ill, substance abusing and behaviour disordered offenders to achieve balancing public safety, enforcement, and non-violent crisis intervention, de-escalation and rehabilitation programs. Cézanne offers employers tremendous insight into working with Bill 168.

Seminar in London ON - November 13, 2012

Cézanne Charlebois will be the moderator and guest speaker at an all-day seminar in London Ontario on Workplace Safety and Insurance Law.

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Workshop October 2, 2012

Cézanne Charlebois will be hosting a 4-hour workshop on Managing Complex WSIB Claims Health, Safety & Environment Conference and Trade Show (HSE Canada 2012) in Toronto.

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Canadian Occupational Safety Magazine (VIDEO CLIP) "CODE WHITE" - Feb 2009

"Incidents of violence occurring in the workplace are very high in the health care sector, many of them go unreported, and very few even turn fatal. In this eye opening COS special report, workers tell their own story of the violence and abuse they endure at their workplace on a daily basis. Is it part of the job?" ...

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