Volume 11, No. 4 - May/Mai 2007

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The Fair Practices Commission — Administrative Fairness Benchmarks and Recent Issues
By Janice Sandomirsky
The Commission is the organizational ombudsman for the Workplace Safety and Insurance Board, addressing service delivery issues raised by workers, employers and service providers.

To Hear or Not to Hear?  An Employer's Workplace Safety and Insurance Guide to Noise-Induced Hearing Loss
By Luke T. Petrykowski
Luke discusses noise induced hearing loss in today's busy society in the context of workers' compensation and occupational health considerations.

Ask an Expert
By Michelle Bird
Recent decisions provide a framework for the qualification of expert witnesses at WSIAT.

Workers' Compensation Case Updates
By Michael Zacks
From coast to coast — Michael reviews three court cases and how the issues might compare if raised in Ontario.

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Ontario Bar Association | Association du Barreau de l'Ontario The Ontario branch of the Canadian Bar Association | La division ontarienne de l'Association du Barreau canadien

The articles that appear in this publication represent the opinions of the authors. They do not represent or embody any official position of, or statement by, the OBA except where this may be specifically indicated; nor do they attempt to set forth definitive practice standards or to provide legal advice. Precedents and other material contained herein are intended to be used thoughtfully, as nothing in the work relieves readers of their responsibility to consider it in the light of their own professional skill and judgment.

The Fair Practices Commission — Administrative Fairness Benchmarks and Recent Issues

Janice Sandomirsky*

The Fair Practices Commission is the organizational ombudsman for the Workplace Safety & Insurance Board. The Commission provides an independent, neutral and confidential service for injured workers, employers and service providers with complaints about the fairness of the service they receive at the WSIB.

The Commission also tracks complaint trends, identifies systemic issues and recommends improvements to the WSIB.

To help determine whether a complaint involves a fairness issue, the Commission applies the following administrative fairness benchmarks:

Delay:

Was there an unreasonable delay in taking action or in   making a decision? Was the affected party informed of the delay and the reasons for it? Was correspondence answered or were calls returned in a timely fashion? 

Communication: 

Was the decision or action communicated clearly? Were reasons provided to those affected? Did staff explain what the decision was based on? Were next steps or options explained?

Behaviour: 

Was the staff unbiased and objective when reviewing information? Did staff overlook any relevant information in their actions or in making a decision? Was the staff courteous and professional? Were wrongs acknowledged and apologies offered?

Decision-making process:

Did the person affected by the decision or action know it would happen? Did the person have input or an opportunity to correct or respond to information? Was information overlooked? Is there a policy or guideline related to the matter? If so, was it applied in a manner consistent with how it was applied in similar matters?

Many of the complaints brought by workers and employers identify systemic issues that the Commission looks into. If an issue is substantial, the Commission makes recommendations for improvements to the WSIB. 

Here are a few examples of the issues addressed by the Commission:

Guidelines for retroactive experience rating adjustments

An employer representative raised a concern about the lack of criteria when the WSIB decides whether to grant retroactive experience rating adjustments in allowed Second Injury and Enhancement Fund (SIEF) appeals.

The commissioner met with the director of prevention services and the chief corporate services officer. As a result of the review, the WSIB revised the Appeal System Practice and Procedures by adding a new Appendix F which sets out guidelines for appeals resolution officers to consider when deciding whether exceptional circumstances exist for granting retroactive experience rating adjustments.

The guidelines are similar to the criteria applied by the Workplace Safety & Insurance Appeals Tribunal and will help ensure that retroactive assessment adjustments for employers receive consistent treatment at the WSIB and at the Tribunal. The guidelines should also help reduce the number of appeals.

Delays in obtaining medical reports from a worker’s doctors

The Commission has found that significant delays in the adjudication of a worker’s file may occur when the worker’s doctors delay in providing necessary reports. To meet the goal of reducing delays, the commissioner recommended establishing protocols for decision-makers to follow when requesting and obtaining medical information.

The Program Development Division, with Clinical Services, drafted an escalation protocol which sets out timeframes for obtaining information and follow-up. The director of Clinical Services can also report serious delays to the Ontario College of Physicians and Surgeons under the protocol. The Escalation Protocol for Obtaining Outstanding Medical Information is available on the WSIB web site.

Transfer-of-cost employers’ access to worker files

Where the WSIB finds that a third-party employer is responsible for an accident, the WSIB may transfer all or part of the accident costs to that employer. Transfer-of-cost employers, however, were not allowed access to a worker’s claim file. The representative of a transfer-of-cost employer complained to the Commission that they had to pay the cost of the worker’s claim but could not participate meaningfully in the decision-making and appeal processes because they did not have access to the worker’s file.

The Commission raised the concern with the WSIB. As part of a review of its privacy policies, the WSIB developed revised access policies and included provisions that grant transfer-of-cost employers access to a worker’s claim file when there is an issue in dispute.

The Commission continues to raise systemic process issues with the WSIB through the Program Development Division. Examples of the issues currently under review include:

• Written and verbal notice to workers when a new adjudicator is assigned to their file
• Reducing delays in processing expense payments
• Follow up and protocol for cases sent back to the Operations Division by an Appeals Resolution Officer when there is action to be taken before the appeal proceeds
• Providing detailed payment explanation to workers

More information about the Commission’s activities is on its web site, including case summaries of individual complaints and their resolution and a complaint guide and complaint form. The two annual reports are on the web site and include outlines of all the systemic issues the Commission has raised with the WSIB.

* Janice Sandomirsky is a Specialist at the Fair Practices Commission.  She has worked with the Commission since its inception in 2003.  Previously she was a Vice Chair at the WSIAT.  You can reach Janice at the Commission at (416) 603-3016.  The Commission's web site is www.fairpractices.on.ca.

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To Hear or Not to Hear?  An Employer’s Workplace Safety and Insurance Guide to Noise-Induced Hearing Loss

Luke T. Petrykowski*

Introduction

The incidence and prevalence of noise exposure and noise-induced hearing loss (NIHL) in Canadian society cannot be underestimated. More so, from the particular perspective of occupational health, NIHL “remains one of the most prevalent occupational conditions, partly because of the fact that noise is one of the most pervasive occupational hazards found in a wide range of industries.”¹ 

The problem of NIHL resulting from occupational exposure has an enduring history. Occupational activities such as blacksmithing, mining, and church-bell ringing have been affected by this woe for many centuries. With the advent of mechanized industry, it should come as no surprise that the modern era has not eliminated the hazard of occupational noise exposure but has actually increased it. Stakeholders concerned with industrial productivity and the health and welfare of working populations should pay close attention to the existence of this entirely preventable malady.

Regulatory Changes to Occupational Noise Exposure Limits

In the province of Ontario, after consultation with stakeholders, the provincial government recently announced that it “is strengthening protection for industrial workers who are exposed to high levels of noise.”²  This will come in the form of a revised regulatory structure made pursuant to the Occupational Health and Safety Act, affecting the Regulations for Industrial Establishments³ and for Offshore Oil and Gas.⁴  Currently, workers who fall within the operational ambit of these regulations can be exposed to ninety decibels (dB) of noise for an eight-hour period of work.⁵  On July 1, 2007, however, the exposure allowance limit will drop from ninety to eighty-five dB. This will be of great importance to specific employers whose workplace environments operate near, at, or in excess of the current noise exposure allowance limit.

Many industry stakeholders rightly believed the change to occupational noise exposure limits was long overdue. In the province of Ontario, there has been no significant change to them in over three decades. By comparison, in most Canadian jurisdictions,⁶ the occupational noise exposure limit has been eighty-five dB for an eight-hour period of work.

The main impetus behind the impending change is the recognition that the auditory health of workers is an important piece of the health and welfare puzzle in the province of Ontario. An underlying force for the change, however, is largely economic and actuarial in nature. According to the Workplace Safety and Insurance Board (WSIB), NIHL resulting from occupational exposure resulted in an estimated $100 million in compensation costs being paid between 1995 and 2004.⁷ 

From an occupational epidemiological perspective, it has been noted that “[w]ith 10 or more years of noise exposure, 8% of workers exposed to 85dB A, 22% of workers exposed to 90dB A, 38% of workers exposed to 95dB A and 44% of those exposed to 100dB A are estimated to develop hearing impairment.”⁸  Hence, there is considerable scientific merit in shifting a great proportion of the working population in the province of Ontario to lower levels of occupational noise exposure to accomplish a decrease in the onset of hearing impairment and NIHL.

Workplace Safety and Insurance Law Considerations

When a worker claims that his or her NIHL is work-related, the claim should engage the workers’ compensation system in the province of Ontario as administered by the WSIB. The adjudication of entitlement to health care, lost time,⁹ and/or permanent impairment benefits is done in accordance with law and applicable WSIB policy. Occupational NIHL meets the requirements for occupational disease adjudication as found in the definition subsection 2(1) and the entitlement/causation section 15 of the Workplace Safety and Insurance Act, 1997.

According to WSIB Policy #16-01-04, entitled “Noise-Induced Hearing Loss, On/After January 2, 1990”, workers with occupational NIHL causing a hearing impairment may be entitled to benefits if their hearing loss attains 22.5 dB in each ear (bilateral). The WSIB understands this condition to be a “permanent loss of hearing in both ears resulting from sensorineural (inner ear) damage due to prolonged, continuous, hazardous noise exposure.”¹⁰ 

It should be pointed out that it is generally assumed that occupational NIHL manifests with symmetric or near-symmetric bilateral symptomology. Where unilateral hearing loss has been shown to exist, the three most likely explanations are 1) acoustic neuroma, a neoplasm of the auditory nerve (unlikely work-related), 2) acute acoustic trauma,¹¹ such as an explosion proximally situated to one ear (possibly work-related) and 3) peculiar occupational practice, such as truck-driving with an open window on the driver’s side leading to loss of hearing in the left ear (likely work-related). Discerning the work-relatedness of any alleged occupational NIHL in this manner is usually accomplished with the assistance of an internal WSIB medical consultant. 

More so, the fundamental evidence of work-relatedness required by the WSIB for allowance of an occupational NIHL claim is “continuous exposure to 90 dB(A) of noise for 8 hours per day, for a minimum of 5 years, or the equivalent.”¹²  Thus, WSIB claim adjudication for occupational NIHL requires extensive information being obtained about occupational noise exposure from the claimant’s current and/or previous employers before a decision can be made. This would be especially appropriate if the worker’s occupational history included military service, where extreme noise exposures are quite common.

WSIB claim adjudication efforts also require non-occupational information concerning the worker for the proper adjudication of occupational NIHL claims. This would usually require investigating the worker’s history of non-occupational activities such as hobbies involving the use of power tools and firearms, which could have significantly contributed to their hearing loss.

The WSIB claim adjudication process also involves an audiometric assessment, carried out by an audiometric technician. An audiologist usually reviews the resulting audiogram. The most characteristic and objective sign of NIHL is a declination in the audiogram at the 4000 Hz frequency, frequently referred to as an “audiometric notch”. This audiometric notch would be particularly revealing if the employer routinely employed audiometric testing at the initial stage of a worker’s employment to set a “baseline” of hearing capacity that could be compared to future audiometric results. This is a double-edged sword for employers, however, in that it can provide evidence of their ‘guilt’ or ‘innocence’ in the case of an individual worker’s hearing loss on a historical basis.

The WSIB claim adjudication process shares many of the features involved in the clinical aspects of NIHL. The clinical approach to hearing loss requires that three attributes be ascertained to describe an individual’s hearing loss: type of hearing loss (the location of the damage in the auditory pathway), degree of hearing loss (the extent to which hearing is impaired), and configuration of the hearing loss (the frequencies affected).¹³

If an occupational NIHL claim is accepted by the WSIB, the claim adjudication process will eventually evolve into determining whether or not the hearing loss has resulted in a permanent impairment. If it has, a non-economic loss (NEL) award would be granted in accordance with the prescribed rating system found in the American Medical Association Guides to the Evaluation of Permanent Impairment, 3rd edition (revised).

According to WSIB Policy #16-01-04, entitled “Noise-Induced Hearing Loss, On/After January 2, 1990”, workers are granted a NEL medical assessment to determine their NEL award where a minimum bilateral hearing loss of 26.25 dB exists in each ear (or where 32.5 dB hearing loss exists in the first ear and 25 dB hearing loss exists in the second ear).

The NEL assessment process logically takes into account two auditory conditions of great importance to occupational NIHL compensation. The first is making a downward adjustment to the quantum of hearing loss on account of presbycusis (a non-compensable, natural hearing loss condition experienced with the onset of age) depending on the age of the worker. The second is making an upward adjustment for the permanent impairment rating on account of tinnitus (a condition characterized by the hearing of sounds that do not actually exist in the external environment, that can accompany occupational NIHL), when it is symptomatic.¹⁴

Fortunately, workers in the province of Ontario with an approved claim with the WSIB for occupational NIHL are also eligible for a specialized Program of Care. This includes an initial audiometric assessment, treatment plan, hearing aid dispensing/fitting/verification,¹⁵ and follow-up.¹⁶

In this vein, when a worker is returning to work with a hearing aid, the employer generally receives an information package clearly outlining the proper use of hearing aids in the workplace and any functional limitations that the worker may have directly resulting from the NIHL.¹⁷  An employer would be wise to review a worker’s functional abilities information concerning NIHL to effectively understand the risks posed by any re-employment efforts. During re-employment, it is also safe and prudent for employers to believe that “workers with evidence of hearing loss require an individualized approach that takes into account the need to communicate safely and effectively, and the need for protection from additional damage due to noise.”¹⁸

The Need for an Employer-Directed Hearing Conservation Program

1. Audits performed to determine needs of work environment, labour, and management.
2. Assessment of noise exposures.
3. Engineering and administrative control of noise exposures.
4. Audiometric evaluation and monitoring of hearing.
5. Appropriate use of personal hearing protection devices.
6. Education and motivation.
7. Record keeping.
8. Evaluation of program effectiveness.¹⁹

Hearing conservation programs would not only protect the health and welfare of working populations, they would ensure an employer’s compliance with internal standards and external regulatory requirements. Given that occupational NIHL is an irreversible condition that affects workers, their families and the communities they live in, hearing conservation programs should be of paramount importance to employers.

One of the over-arching technical deficiencies found in most hearing conservation programs is that they do “not take into account the potential risk to hearing posed by chemical exposures in the workplace.”²⁰  Greater research needs to be done in this important but undervalued area of interest. Current research has proposed and substantiated that occupational exposure to particular chemical agents found in the workplace can cause hearing loss among exposed workers, on an additive or synergistic basis with occupational exposure to noise.²¹ 

Conclusion

This discussion piece has attempted to catalogue some of the important occupational health and workers’ compensation considerations surrounding NIHL. Given the looming regulatory changes on the horizon of occupational noise exposure in the province of Ontario, it is a momentous time for employers to understand their legislative, regulatory and moral obligations in providing safe working environments for a future generation of workers who value their auditory health.

* Luke T. Petrykowski, B.Sc., LL.B. D.O.H.S., is a member of the Ontario Bar. He can be reached at lukepetry@hotmail.com.

¹  Council on Scientific Affairs, American College of Occupational and Environmental Medicine, Evidence-Based Statement “Noise-induced Hearing Loss” Journal of Occupational and Environmental Medicine 2003; Vol. 45, No. 6: 579-581 at 579.
²  Government of Ontario, Ministry of Labour, News Release, January 2, 2007 entitled “Industrial Noise Exposure Limits”.
³  R.R.O. 1990, Regulation 851.
⁴  R.R.O. 1990, Regulation 855.
⁵  Employers whose workers do not fall within the ambit of the new regulatory scheme, such as those found in the construction or mining industry, will not be constricted by these occupational noise exposure limits but remain responsible for providing their workers with the reasonable safety protections envisioned by the general duty clause in subsection 25(2)(h) of the Occupational Health and Safety Act.
⁶  This excludes the provinces of Quebec and Ontario whose occupational noise exposure limit currently remain at ninety dB for a time-weighted eight-hour work period.
⁷  Government of Ontario, Ministry of Labour, News Release, January 2, 2007 entitled “Industrial Noise Exposure Limits”.
⁸  Morata T.C. “Promoting hearing health and the combined risk of noise-induced hearing loss and ototoxicity” Audiological Medicine 2007; 5: 33-40 at 33.
⁹  Lost time associated with occupational NIHL is a very rare occurrence as the functional limitation associated with hearing impairment does not normally result in a worker being totally disabled from pre-accident or modified employment.
¹⁰  WSIB Policy #16-01-04, entitled “Noise-Induced Hearing Loss, On/After January 2, 1990”.
¹¹  The WSIB has a particular policy to provide direction in the adjudication of noise-induced hearing loss as it relates to acute trauma: WSIB Policy #15-04-01, entitled “Traumatic Hearing Loss”.
¹²  WSIB Policy #16-01-04, entitled “Noise-Induced Hearing Loss, On/After January 2, 1990”.
¹³  Fausti S.A. et al. “Current needs in hearing conservation and hearing loss prevention and hearing conservation practices” Journal of Rehabilitation Research & Development 2005; Vol. 42, No.4: 45-62 at 46-47.
¹⁴  The WSIB has a particular policy, WSIB Policy #16-01-08, entitled “Tinnitus” which explains that “according to the prescribed rating schedule, tinnitus is not measurable, and therefore, the physician should assign a degree of impairment that is based on severity and importance, and is consistent with established values. A permanent impairment of 2% for tinnitus is judged to be consistent with established values.”
¹⁵  The WSIB has a particular policy to provide direction for the allowance of health care benefits related to hearing aids and rehabilitation: WSIB Policy #17-07-04, entitled “Hearing - Prosthetic and Assistive Devices”.
¹⁶  WSIB Reference Guide for the Program of Care for NIHL.
¹⁷  WSIB Reference Guide for the Program of Care for NIHL at 12.
¹⁸  Supra note 1 at 580.
¹⁹  Supra note 13 at 51.
²⁰  Supra note 8 at 38.
²¹  See for example, Morata T.C. et al. “Occupational exposure to organic solvents and noise: effects on hearing” Scandinavian Journal of Work and Environmental Health 1993; 19: 245-254, Morioka I. et al. “Evaluation of combined effect of organic solvents and noise by the upper limit of hearing” Ind Health 2000; 38: 252-257, Sliwinska Kowalska M. et al. “Ototoxic effects of occupational exposure to styrene and co-exposure to styrene and noise” Journal of Occupational and Environmental Medicine 2003; 45: 15-24, Sliwinska-Kowalska M. et al. “Effects of coexposure to noise and mixture of organic solvents on hearing in dockyard workers” Journal of Occupational and Environmental Medicine 2004; 46: 30-38.
 

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Ask an Expert

New WSIAT Decisions Provide a Framework for the Qualification of Expert Witnesses at the Tribunal

Michelle Bird*

Appeals at the WSIAT often involve complex medical issues, and the input provided by medical experts can be invaluable. Under the Act the Tribunal may “accept such oral or written evidence as (it) considers proper, whether or not it would be admissible in a court.”¹ The Tribunal is not, therefore, bound by the same strict rules of evidence which apply to courts. Nonetheless, principles relating to the rules of evidence outlined by the Supreme Court and the Courts of Appeal can be instructive when considering whether or not a witness should be certified as an “expert” before an administrative Tribunal. Recent WSIAT decisions have conducted such an analysis, using established case law as a framework to decide whether a witness is qualified to provide an “expert” opinion on a particular issue.

In Decision No. 2106/03,² the worker’s representative sought to have an expert witness testify for the purpose of expressing opinions about the medical etiology of fibromyalgia. The witness had both a masters of arts and a masters of science degree, was an Adjunct Professor for the Institute of Molecular Medicine at Huntington Beach, and had carried out a research project on fibromyalgia in 1995. The witness had previously testified as an expert in Decision No. 2390/01. The Vice-Chair offered a thorough analysis of the case law surrounding expert testimony, and found that the witness was not qualified to testify as an expert in this matter.

The Vice-Chair considered the Supreme Court decision of R. v. Mohan³ which sets out the following criteria for the admissibility of expert evidence:

1. the evidence must be relevant
2. the evidence must be necessary to assist the trier of fact
3. there must be no exclusionary rule otherwise prohibiting the receipt of the evidence
4. the evidence must be given by a properly qualified expert.

The Vice-Chair also noted that the case law had considered situations in which evidence to be admitted constituted “novel” science. Using these legal principles as guidance, the Vice-Chair broke down her analysis into three parts: whether the testimony was relevant and necessary to the decision; whether the witness had the appropriate expertise to offer the proposed testimony; and whether the testimony offered constituted “novel” science.⁴

In deciding whether the testimony was necessary or relevant, the Vice-Chair looked to both Mohan and the Supreme Court decision of R v. J-L.J⁵ which stand for the principle that expert evidence must be more than merely helpful, and must provide information which is outside the experience and knowledge of the trier of fact. The Vice-Chair noted that, while the etiology of fibromyalgia was outside the experience and knowledge of a Vice-Chair, this was not at issue in this case. Fibromyalgia has been extensively adjudicated by the Tribunal, and Board policy does not require the acceptance of any particular theory of the etiology of this condition.

The Vice-Chair also had concerns about the witness’ expertise, in that the witness was offering evidence on an issue of medical causation, but was not a medical doctor. The Vice-Chair considered the comments of the Ontario Superior Court of Justice in Dulong,⁶ where the Court stated that an expert may acquire the necessary knowledge through various means, however went on to say that certain areas of expertise, such as medical expertise, require formal study. The Vice-Chair distinguished cases in which the Tribunal accepted the evidence of professionals who were not doctors, such as industrial hygienists and ergonomists, in that the evidence offered in those cases was not directly related to issues of medical theory and causation.

Finally, the Vice-Chair noted that the witness’ theory regarding the causation of fibromyalgia had not been published in any peer-reviewed medical journals, and thus may constitute “novel” science. The case law has established that novel science should be subject to special scrutiny with respect to its reliability.⁷

Given the above considerations, the Vice-Chair declined to certify the witness as an expert, finding that the evidence fell well short of the standards set in Mohan.⁸ In doing so, the Vice-Chair noted that, while the Tribunal certainly is an “expert Tribunal”, the expertise of its adjudicators lies in determining how to weigh the qualifications of experts, and in weighing evidence to determine whether the assumptions of experts are consistent with the adjudicator’s findings of fact. Adjudicators do not, generally, have the necessary knowledge to substitute their opinions for those of experts, in the absence of other medical evidence. In the view of the Vice-Chair, this is precisely why experts must be properly qualified: to ensure that the decision maker is not misled.

Subsequently, Decision No. 2106/03 has been followed in Decision No. 2451/06.⁹ In that case, the employer’s representative was seeking to call the company’s physician to explain his medical notes; to clarify the meaning of reports appearing in the case materials, including reports from other physicians; and to explain medical terminology. The employer’s representative felt it was unnecessary to have the physician qualified as an expert witness, arguing that the procedure at the Tribunal was investigatory in nature and that it should be permissible to have opinion evidence in the case record, such as that provided by a Board Medical Consultant, commented upon by another doctor of equal qualification. The Vice-Chair looked to Decision No. 2106/03 for its discussion on the admissibility of expert evidence and ruled that the physician could not give his opinion on items written by other physicians without first being qualified as an expert witness.¹⁰ The Vice-Chair further ruled that, as a family doctor, the physician could not give expert testimony with respect to matters which he would normally refer to a specialist, and that opinions regarding causation would have to be limited to his own notes. The Vice-Chair allowed the physician to give opinion evidence with respect to medical terminology but noted that, since the Tribunal regularly reviews medical evidence, it was questionable to what extent this opinion evidence would be necessary.

* Michelle Bird holds a Bachelor of Arts degree from York University and an LL.B. from Osgoode Hall Law School of York University. She is currently articling at the Ontario Workplace Safety and Insurance Appeals Tribunal.

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Workers’ Compensation Case Updates

Michael Zacks*

The western and maritime provinces provide an ongoing source of interesting and provocative workers’ compensation cases.  Unlike Ontario, many other provinces have a right of appeal to the courts from the final decision of their respective external appeal tribunal on a question of law or jurisdiction.  Issues of mixed fact and law, or pure fact, are subject to judicial review.  The Buckley¹ and Nabor² decisions, both from the Alberta Court of Appeal, illustrate this.  I have also included the recent decision of Laronde³ which was a New Brunswick Charter challenge to the age 65 ceiling on the receipt of wage replacement benefits.

Nabors

The Nabors case considers a fundamental question of whether a worker must know that he is in the course of employment in order to receive benefits.  This is an unusual case, as noted by the following facts.

Sitler was employed in rural British Columbia with H & R Drilling, the predecessor in law to the Appellant Nabors.  At the end of his two-week shift, Mr. Sitler left the camp with the intention of driving his personal vehicle to his home in Camrose, Alberta.  He agreed to give rides to four co-workers, including Wayne Benoit.  Mr. Benoit was carrying oil samples in a small package for his employer.  In addition to the oil samples, the following work-related materials were loaded onto Mr. Sitler's vehicle: pack tong⁴ springs, a hydraulic unit switch light indicator, a used hole fill coupler, a pair of scratched safety glasses and an envelope.  Mr. Benoit intended to drop the samples off at a later date at H & R Drilling's office in Nisku, Alberta.  There was no direct evidence whether Sitler knew about the materials being transported n his vehicle. 

Sitler dropped Benoit off at the latter’s home, and continued on his way.  The fatal motor vehicle accident occurred thereafter.  The WCB denied Mrs. Sitler's application for survivor benefits on the basis that Mr. Sitler was not in the course of his employment at the time of the accident.  The external review Commission overturned the Board’s decision and allowed Mrs. Sitler's claim.

The latter decision was appealed on a question of law or jurisdiction to the Court of Queen's Bench.  The appeal was dismissed, and Nabors appealed to the Court of Appeal.

The Court of Appeal gave a split decision.  It divided on how to determine the standard.  Whether the law requires that that the Pushpanathan⁵ test be applied in every case, or whether a reviewing court can rely on previous judicial determinations of the appropriate standard for the same tribunal.⁶  All three judges agreed that the standard to be applied to the Appeals Commission on an appeal on a question to determine a question of law is reasonableness.⁷  

From a substantive compensation issue perspective, the Court was looking at interesting entitlement issues:

19 The sole issue before the Commission was whether the accident took place in the course of Mr. Sitler's employment.  The relevant inquiries are the following:

(a) Must the worker himself be engaged in a work-related activity while in transit so as to be deemed to be engaged in a work-related activity?

(b) Must the worker have knowledge of a work-related activity occurring in the vehicle in which he commutes so as to be deemed to be engaged in a work-related activity?

The majority answered the questions as follows.

(a) The court concluded that the worker did not himself have to be in the course of employment. It was sufficient if the co-worker who was travelling with Mr. Sitler was.

(b) It is sufficient that the worker is providing service to the employer, even if he is not aware that he is doing so, to be in the course of his employment:

26 If Mr. Benoit was in the course of employment, was Mr. Sitler?  I conclude he was.  That which governs is the knowledge of the employer, not that of the employee.  The obligations and expectations of employment in this case were defined in no small measure by custom and practice.  Counsel for the Appellant concedes that it was not uncommon for the Appellant to ask employees to drop off material from the work site at the Nisku head office.  In my opinion, it matters not that there is no evidence as to whether Mr. Sitler knew that Mr. Benoit was transporting material to the head office.

Given the close similarity between the Alberta and Ontario policies describing when a worker is in the course of employment while traveling on employer business, it is likely that a similar outcome will occur in Ontario.

Buckley

Buckley was an employee of H & R Transport.  On the day of the accident, August 12, 1998, he was assigned to drive a tractor-trailer with a load of bananas to Calgary.  He received his instructions about noon, but then spent four hours drinking in a cocktail lounge before he returned to the H & R premises to pick up the tractor-trailer unit.  Buckley was severely intoxicated. 

Meanwhile back at the ranch, Entz was finishing loading his truck with a load of hay purchased from a third party by Jack Indenbosch, Entz’s employer.  The tractor unit he was driving was owned by Indenbosch.  The trailer on which the hay was loaded was owned by Bosch Excavating Ltd., a company owned by Indenbosch.  The Indenbosch’s farming and construction activities were not kept distinct.  It is noteworthy that farming is an excluded industry in Alberta. 

Several bales of hay fell off Entz’s trailer onto the passing lane and the median of a four lane highway.  A RCMP constable arrived, and positioned his cruiser behind the hay truck, with its emergency lights flashing.  The constable and Entz were sitting in the cruiser when Buckley drove his truck and trailer unit into the back of the cruiser at full speed.  Entz and the RCMP constable were killed.  Buckley received minor injuries, and filed a no lost time claim.  He was subsequently convicted of two counts of impaired driving causing death.

The two cases of Entz and Buckley were appealed to the appeals commission, the final level of appeal.  The Appeals Commission concluded that Entz was engaged in farming at the time of the accident, and therefore had no entitlement. 

The Appeals Commission held that Buckley was clearly driving the transport truck as an employee of H & R Transport, which was engaged in a covered industry.  However, the Commission found that Buckley's conduct of driving while extremely intoxicated was so inconsistent with his duties as a trucker that he had taken himself outside "the course of his employment" at the time of the accident.  Accordingly, he was not entitled to immunity from law suit, which was the basis of his appeal.

The Appeals Commission distinguished between risks that are personal to a worker, and risks that are positional to the work.  It held that Buckley's intoxication was a personal risk, and that it outweighed his positional risk as a worker at the time of the accident, even though it was his employment that "positioned" him in the driver's seat of his truck.  In weighing Buckley's "personal risk", the Appeals Commission essentially weighed his moral culpability for driving while impaired, and concluded that he was not entitled to immunity from suit by the Entz Estate.  The matters moved to the courts as judicial review applications.

Much of the decision considered the appropriate standard of review from a decision of the Appeals Commission.  Unlike in the Nabors decision which dealt with a pure question of law, the issue in Buckley was the appropriate standard to apply in reviewing a decision on the application of WCB policy.  The Court concluded that it was patent unreasonableness: 

32 The Entz decision turns on whether Entz was a farm labourer or a truck driver at the time of the accident.  As mentioned, this is primarily a question of fact or policy lying at the heart of the workers' compensation system, ….  To the extent it involves a mixed question of fact and law, the factual and policy aspects of the question outweigh the legal aspects.  There was no right of appeal from this decision, which is protected by the full privative clause.  This decision should accordingly be reviewed on a standard of patent unreasonableness, which was the standard chosen by the chambers judge.

The Court concluded Entz was in the course of his employment. However, the much more interesting issues relate to Buckley, and how the Court interpreted the impact of moral turpitude on entitlement.

The Alberta WCB applied a policy similar to the Ontario WSIB’s policy⁸ on removing oneself from employment, although much more extensive than the Ontario version:

36 The outer boundaries of the workers' compensation system are defined by the phrase "arising out of and in the course of employment".  This phrase is used to define events covered by the system.  WCB policy 02-01 discusses this concept (emphasis added):

………..

Application 5: Removing Oneself from the Course of Employment Compensation is not payable if the worker's actions at the time of accident have, in the WCB's opinion, removed the worker from the course of employment.

The WCB must first examine whether or not the action has removed the worker from employment.  The claim will be denied if there is a substantial deviation from employment.

If the worker is found to be in the course of employment, the WCB may still determine under Section 19(1)(a) that the injury is attributable primarily to the serious and wilful misconduct of the worker.

Any of the actions below will be considered to have removed the worker from the course of employment: Page 12

* a criminal act with gainful intent

* intoxication, when drinking is not permitted or condoned by the employer and intoxication is the sole cause of the accident

* an intentional self-inflicted injury

* fighting, when the issue is purely personal with no employment relationship

* horseplay, if the worker is the instigator and it is a serious deviation from or abandonment of employment duties

* activities which are exclusively personal and have no relationship, directly or indirectly, to the worker's employment duties or the employer's operations.

The above list is not intended to be all-inclusive.  Each case will be judged on its own merits.

The Court of Appeal made some strong statements about the historic trade-off and the underlying principles of no fault.  It reached the conclusion that moral turpitude can not deny a worker entitlement:

69 The direct question that remains is whether elements of moral turpitude can be brought into play in determining whether an employee is "in the course of employment".  To do so would undermine the no-fault basis of the workers' compensation system, and would be inconsistent with other provisions of the Act.  As previously discussed, the Act gives moral turpitude only a very limited role.  Section 19 denies compensation to workers who engage in serious and wilful misconduct, but only with respect to their own minor injuries.  The inference of s. 19 is clearly that other employees who are injured by that serious and wilful misconduct are covered.  This conclusion is reinforced by the definition of "accident", which includes wilful conduct as an "accident" as far as the innocent injured worker is concerned.  As part of the historic trade-off those innocent workers should not be able to sue and also get compensation under the Act, suggesting that the morally blameworthy worker is still within the system.

70 A second problem is that s. 19 only purports to bar compensation to blameworthy workers if they are not seriously injured.  If they are seriously injured, they are to be compensated notwithstanding their misconduct.  If the Board's interpretation of s. 18 is correct, it would mean that if a worker like Buckley were seriously injured, he would get compensation under s. 19.  However, if his misconduct took him "out of the course of his employment", he would not be immune from suit.  Thus the seriously injured morally blameworthy employee would get compensation under the system, but would not be immune from suit.  This is completely inconsistent with the historic trade-off that underlies the Act.  It is also inconsistent with ordinary principles of statutory interpretation.  Where morally blameworthy conduct is specifically mentioned in one section, but not in another, one assumes that it is not a factor in the latter section.  Accordingly, it is an error to interpret s. 18 by reading into it the misconduct provisions of s. 19. 

….

75 In summary, the question is whether issues of moral turpitude can be brought to play in deciding whether a worker is engaged in the course of his employment.  Specifically, will a worker and his employer be denied the protection of the statutory bar against actions by injured co-workers if their conduct is blameworthy?  The Appeals Commission's decision that issues of moral blameworthiness can be brought into the analysis in s. 18 is in my view unreasonable.  This conclusion is fundamentally incompatible with the no-fault nature of the workers' compensation scheme.  The workers' compensation scheme is designed to provide compensation to injured workers.  It is not intended to pass judgment on morally blameworthy conduct, nor to deter irresponsible and criminal activity like impaired driving.  Its purpose is to compensate injured workers, and to protect workers and their employers against suits, in exchange for the premiums paid.  H & R Transport had a strict policy against drinking and driving (including random testing) and it paid premiums in the expectation it would not be sued in these circumstances, yet the Board suggests it should now be stripped of that protection because of Buckley's misconduct.  To preserve the integrity of the scheme, the statutory bar against actions by injured workers must be maintained, even where the conduct of the employee or employer is morally reprehensible.  This interpretation of s. 18 is reinforced by the merely subordinate and conditional role that moral turpitude is allowed to play in s. 19 of the Act.  This conclusion is consistent with the decision of the Newfoundland Supreme Court, Court of Appeal in Gellately.⁹  As a result, the chambers judge was correct in determining that the decision of the Appeals Commission was unreasonable.

This case raises serious questions on whether the Ontario WSIB’s own policy on moral blameworthiness would stand up to judicial review.

Laronde

Laronde was injured in 1989 and continued receiving disability benefits until they stopped when he turned 65. The worker brought a s. 15 Charter challenge.  The Court did a detailed analysis of the issues.  It concluded that s. 15 was not breached.  A particular paragraph that I thought struck the right note was the following:

27 In my view, s. 38.2(5) is closely tailored to the reality of the affected group (those 65 and over).  It is not a provision that denies a benefit on account of presumed or unjustly attributed characteristics.  Once you accept that the primary object or purpose of the Workers' Compensation Act is to compensate workers for lost wages, due to a work-related injury, it necessarily follows that compensation payments must terminate at some point.  The Legislature chose age 65.  After age 65, the object of the legislation changes.  Compensation is to be paid with respect to the loss of pension benefits occasioned by the inability of the worker to make contributions to public and private pension plans.  Above all else, it is clear that the Legislature did not intend that the workers' compensation scheme would remain a life-time long-term disability insurance program.  That is why the Act was amended in 1982.

* Michael Zacks is Acting Director and General Counsel with the Office of the Employer Advisor.

¹  Buckley v. Entz Estate, [2007] A.J. No. 31(C.A)
²  Nabors Canada LP v. Alberta (Workers' Compensation Appeals Commission), [2006] A.J. No. 1507 (C.A)
³  2007 NBCA 10 (CanLII)
⁴  A tong is a device used to hold a drill pipe in place.
⁵  Pushpanathan v. Canada (Minister of Citizenship & Immigration), [1998] 1 S.C.R. 982
⁶  It is established law in Ontario that the applicable standard of review is patent unreasonableness.   See Roach v. Ontario (Workplace Safety and Insurance Appeals Tribunal, [2005] O.J. No. 1295 and Klimczak v. Ontario (Workplace Safety and Insurance Appeals Tribunal), [2005] O.J. No. 5219.
⁷  OPM 15-03-08:  An accident shall be considered to occur in the course of the employment when it happens on the employer's premises as defined, unless at the time of the happening of the accident the worker is performing an act not incidental to the work or employment obligations.
⁸  (1995), 126 D.L.R. (4th) 530 (Nfld. C.A.)
 

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