2019 was yet another busy year for the Workplace Safety and Insurance Appeals Tribunal (the “WSIAT”)!
This article covers some of the noteworthy cases released by the WSIAT last year.
I. Chronic Mental Stress Claims and Workplace Harassment
In one of the most significant workers’ compensation law decisions of the last year, the WSIAT held that a worker’s right to sue for harassment-based constructive dismissal could be taken away by the Workplace Safety and Insurance Act, 1997 (“WSIA”).
In Decision No. 1227/19, 2019 ONWSIAT 2324, a worker was found precluded from seeking damages in civil court as the facts underpinning her civil action were inextricably linked to a chronic mental stress claim. The worker’s civil action had been based on allegations of constructive dismissal arising from workplace harassment and a poisoned work environment.
The WSIAT held that the worker’s constructive dismissal action was barred by the WSIA. If the worker’s allegations were proven, the alleged workplace harassment would be causally connected to the worker’s claimed mental distress. This, in turn, would mean that the worker’s mental distress was a compensable injury arising out of, or in the course of, employment. Accordingly, the substance of the worker’s civil action was exclusively within the WSIA’s jurisdiction—even though some of the civil remedies sought by the worker were not available under the WSIA.
II. Charter Rights and the Fatal Claim Premium Adjustment
In 2019, the WSIAT concluded its adjudication of the constitutionality of the Fatal Claim Premium Adjustment Policy. At present, and as a result of the WSIAT jurisprudence, employers cannot use occupational health and safety prosecution to escape Workplace Safety and Insurance Board (“WSIB”) penalties arising from workplace fatalities.
The material events in Decision No 2346/12, 2019 ONWSIAT 616, date back to 2008, when the employer was set to receive a NEER rebate amounting to nearly $1.1 million. Prior to the rebate issuance date, an accident occurred at the employer’s worksite: a 276-pound piece of material dislodged from a machine and fatally injured a worker. The employer pleaded guilty to charges under the Occupational Health and Safety Act (“OHSA”) and was fined $300,000. However, as a result of the fatality, the WSIB denied the employer’s rebate.
The employer appealed the denial of its NEER rebate, on the basis that the WSIB’s Fatal Claim Premium Adjustment Policy violated sections 7 and 11(h) of the Canadian Charter of Rights and Freedoms (the “Charter”)—i.e. the rights to security of the person and protection against double jeopardy. Following lengthy interim proceedings, the WSIAT finally dismissed the appeal in March 2019.
The key obstacle to the employer’s section 7 argument was the nature of Fatal Claim Premium Adjustment as a financial penalty. Although all persons (including corporations) should not be subjected to coercive proceedings or sanction authorized by an unconstitutional law, the WSIAT held that the imposition of a financial penalty did not constitute an interference with anyone’s life, liberty, or security of person.
The WSIAT also rejected the employer’s section 11 argument. The employer qualified for protection under section 11(h) of the Charter because of its earlier OHSA conviction. However, the imposition of a Fatal Claim Premium Adjustment did not violate the employer’s section 11(h) rights, as the Adjustment was not a punishment for the same offence that underpinned the employer’s OHSA conviction. The OHSA prosecution was a method of enforcing specific workplace health and safety standards. In contrast, the Fatal Claim Premium Adjustment aimed to avoid rewarding employers with WSIB rebates if the employer was responsible for a workplace fatality. In this regard, the Fatal Claim Premium Adjustment was a separate and non-penal consequence flowing from the same accident, and did not violate the Charter prohibition against double jeopardy.
III. Wilful Misconduct as an “Intervening Event” Resulting in Benefit Disentitlement
Before last year, the workers’ compensation jurisprudence contained several different approaches to adjudicating post-termination entitlement to loss of earnings (“LOE”) benefits. Some decisions looked at whether the employer was motivated by anti-injured-worker animus in terminating employment. Other decisions looked at whether the termination was a result of a compensable injury for which suitable and sustainable work could have been offered. Yet another line of cases focused on whether the worker’s employment was terminated as a result of an intervening event. Hybrid approaches also were occasionally used to resolve post-termination entitlement issues.
In Decision No 2816/18, 2019 ONWSIAT 1266, the WSIAT affirmed that the “intervening event” approach is most appropriate for determining post-termination entitlement to LOE benefits. The worker in that case received entitlement for psychotraumatic disability in relation to three work-related accidents. Following the third accident, the worker took time off work. During the period of the worker’s leave, the employer commenced an investigation into a complaint of patient abuse filed by another worker. The worker was interviewed as a witness as part of the investigation, but she did not report any wrongdoing by her co-workers. Ultimately, two other workers were dismissed following the investigation’s conclusion. When the worker returned to work months later, her employment was terminated for failing to report incidents of abuse by her two dismissed co-workers.
The WSIAT determined that the conduct resulting in the worker’s dismissal introduced an intervening event, such that the worker could be held responsible for her lost employment opportunity and, thus, found disentitled to LOE benefits. After concluding that the worker likely had witnessed and failed to report inappropriate behaviour by her co-workers, the WSIAT held the worker had acted inconsistent with her responsibility to minimize post-injury wage loss and negating the significance of her compensable injury. Materially, the worker’s suppression of patient abuse constituted a breach of the employer’s code of conduct and, more critically, a fundamental and essential term of her employment contract.
IV. Apportionment of Claims Costs Between Construction Employers
Decision No 1051/17, 2019 ONWSIAT 1990, clarifies the proper test for assessing the appropriateness of a transfer of costs. Specifically, it is no longer sufficient to look solely at whether an employer or its workers acted negligently; the relevant inquiry requires there to be a causal link between an employer’s negligence and the compensable injury for which a transfer of costs is sought.
In the case, the general contractor of a construction site had hired a concrete contractor and a mechanical contractor to perform, respectively, concrete forming and installation of heating, cooling, and plumbing systems. As part of the concrete forming work, the concrete contractor installed and maintained reshoring posts on the site. A worker employed by the mechanical contractor sustained injuries after a reshoring post fell and struck him on the head. An adjuster of the WSIB found the general contractor to be liable for 25% of the claims costs and assigned the remaining 75% to the concrete contractor.
In determining on appeal whether a transfer of costs was warranted under the WSIA’s transfer of costs provisions, the WSIAT was required to determine whether: (1) the employers or their workers failed to do something which a reasonable and prudent person would do, or if they did something which a reasonable and prudent person would not do; and (2) the accident giving rise to the compensable injury was caused by the omission or commission.
After applying this test, the WSIAT assigned 20% of the claim costs to the concrete contractor, 40% of the costs to each of the mechanical contractor and the general contractor. The reasons for this allocation were:
- The most likely and proximate cause for the accident was that the mechanical contractor’s employees had moved the reshoring post and improperly reinstalled it. The employees had commenced installation-related work at building level while reshoring posts were still installed, and the posts had created physical obstacles to the installation work. The mechanical contractor ought to have monitored its employees’ activities in a manner that would have prevented risk of accident.
- The general contractor was negligent by allowing the mechanical contractor to commence installation-related work at the building level where reshoring posts were still installed, contrary to industry best practice. The general contractor also had been aware that reshoring posts were being moved without the concrete contractor’s permission, but had taken no steps to ameliorate this issue.
- The concrete contractor had been aware that reshoring posts were being moved without its permission and ought to have inspected its posts with increased frequency to prevent such activity from occurring.
V. Determining Entitlement Following Death by Suicide
Workers’ compensation legal practitioners are familiar with the survivor benefit entitlement, which arises when a worker’s death results from a compensable injury. Decision No 1211/16, 2019 ONWSIAT 620, grappled with the difficult issue of when survivor benefits must be granted in cases where a worker commits suicide following a compensable injury.
The WSIAT held that the estate was entitled to survivor benefits after finding, on a balance of probabilities, that the worker’s death was linked to his compensable injury. The evidence established that the worker was a high-functioning, social individual prior to injuring his left shoulder in a workplace accident. However, following surgery on his left shoulder, the worker had become significantly depressed and anxious. Medical records indicated that the depression and anxiety were emotional reactions that the worker developed in response to the lack of improvement in his condition after the surgery. Accordingly, the worker’s depression, chronic pain, and shoulder impairment were factors causing the worker to take his own life.
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As we proceed into 2020, there are sure to be many new and challenging issues tackled by workers’ compensation practitioners and, in turn, landing before the WSIAT. In this ever-evolving legal landscape, one thing is for certain: workers’ compensation remains one of the most quirky and dynamic areas of law practice!
About the Author
Cassandra Ma is a management-side labour and employment lawyer with Filion Wakely Thorup Angeletti LLP. She represents employers in respect of all workplace issues, with a specialization in issues relating to workers’ compensation, collective agreement interpretation, and human rights. At the time of publication, Cassandra is a proud member of the Ontario Bar Association's Workers' Compensation Law Section Executive.
Any article or other information or content expressed or made available in this Section is that of the respective author(s) and not of the OBA.