Ron Ellis Award On September 7, 2007, the Workers' Compensation Section sponsored a very special evening where the Section's Ron Ellis Award was presented to Harvard Professor Paul Weiler. Professor Weiler played a major role in law reform, carrying out a wide-ranging review of Ontario's workers' compensation system in the 1980s. His recommendations included the creation of an external tribunal to hear appeals of Board's decisions. Remarks by David Brady and Ron Ellis detail the extent and importance of Professor Weiler's contribution. Remarks from Professor Paul Weiler
Case Comments By Michael Zacks An Overview of Workers' Compensation By John F. Burton, Jr. Professor John Burton provides a comprehensive overview of the American Workers' Compensation system that highlights the many similarities with the Ontario system, and the very significant differences.
Workers' Compensation is published by the Workers' Compensation Section of the Ontario Bar Association. Members are encouraged to submit articles or suggest story ideas.
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.
Ron Ellis Award: Remarks from Professor Paul Weiler
I am delighted to be here with all of you and to have this opportunity to express my gratitude for the honor of receiving the Ron Ellis Award. I can hardly think of a more gratifying reason to return to Toronto where I spent so many wonderful years and which is home to so many family members and friends. Several of whom are here tonight.
Ron Ellis, Mike Johnston and Florence Darwin with the
2008 Ron Ellis Award winner Professor Paul Weiler.
It has actually been several years since I was actively involved in workers compensation policy issues. Back in 1979 during my first year teaching at Harvard Law School I met Ontario Premier Bill Davis who had come to Harvard as a guest speaker in the Canada Seminar which I had created. That year Premier Davis asked me to conduct a study and make recommendations concerning the restructuring of workers compensation systems in Ontario. Although I had done academic work in tort law and labour law, this was my introduction to the world of workplace safety and compensation for injured workers.
This project, which lasted several years, has enriched my life professionally and personally in many ways. Not the least of which is the honor you have given me tonight.
I had the opportunity to meet and work with many people in the Ontario government including Bob Elgie, Minister of Labour at the time, who became a great friend.
My work on this project also resulted in my meeting Ron Ellis with who I am very happy to renew acquaintance with this evening.
Thanks in part to the Ontario Workers Compensation study I was appointed lead reporter to the broad reaching American Law Institute project on Tort Reform in the mid 1980’s. I was also I charge of a studies session on “Reforming Legal Policy for Workplace Injuries.”
Later, with my Harvard labour mentor, the late great John Dunlop I worked on another reform project which resulted in another publication titled “Workers Compensation the Process for Meaningful Reform in the States.” Unfortunately, neither the A.L.I. proposals nor the Dunlop/Weiler Proposals gained much traction in the United States in contrast with the profound changes that the earlier study had produced in Canada.
Another collateral effect of the Ontario Study evolved from the fact that Florie Darwin, who is now my wife worked for me as a researcher in the early days, when I was pulling together data about workers compensation systems from many jurisdictions from around the world. Florie was interested in Health Care Policy and her enthusiasm for this projected motivated her to apply to law school. She went on to get her law degree at Harvard and she is now teaching there.
If I were accepting an award tonight for an area of law in which I had been actively engaged in recent years I would make some remarks about directions that policy makers should be considering or about interesting developments in that legal domain. But, in this case I will simply share with you an insight that my changing health situation has allowed me to have about the importance of the work that you do and of effective workers compensation policy.
In the last few years, over what seemed like a very short time, I went from being a healthy and active guy, an avid golfer, tennis and squash player, cyclist, swimmer and jogger to moving about slowly and painstakingly with the use of a walker and then to being wheelchair bound. One by one activities that had been great joys in my life became forever inaccessible to me. Eventually, I even lost the ability to speak which meant that teaching and not to mention effortless casual conversation was no longer possible. Nevertheless, I consider myself very lucky. I have an excellent health plan through Harvard and I am still able to work and write thanks to the technology that the law school has provided me. I can zip around Cambridge in my electronic wheel chair and I can speak to you tonight with the help of sophisticated electronic devices.
Without the safety nets that I have been fortunate enough to fall into, my life would have been reduced to a sadly minimal existence. Yet, in spite of my disabilities I have a rich and active life and I relish each new day.
Likewise, thanks to the Workers Compensation system backed up of course by the Ontario Health Care System, citizens of this province can also count on the kind of support that ensures they will be protected from the most catastrophic consequences, even when they are injured or subject to a serious illness.
As you can imagine I could not have appreciated fully in 1980 as I do today how much this support means on a day to day basis. Along with its tangible benefit as significant value of the workers compensation flows from the fact that you who work in this area care so deeply about making sure that the system is humane, adequate, equitable and effective. The implicit message this sends to all workers is that their well being, security and dignity are a concern to everyone in this province.
Thank you again for the great honor of this award and for the enormous pleasure of sharing this evening with you.
Ron Ellis Award: Introduction Speech by David Brady
It is a pleasure to be in the presence of Paul Weiler, his friends, and the members of his family on a night when he is being honoured by the Ontario Bar Association Workplace Safety and Insurance Law Section. Paul Weiler is being honoured for his significant contributions to workplace safety and insurance law. In Paul Weiler’s case, this honour isn’t limited to his making significant contributions to the law. It is for creating the platform upon which workplace safety and insurance law stands.
Without Paul Weiler’s vision, his knowledge of labour law and administrative law, his clarity in terms of the problems to be solved, and his clarity about workable and sustainable solutions, we would not all be participating in this annual tradition of celebrating workplace safety and insurance law and its institutions. Paul Weiler’s three reports to Government in the 1980’s, the first entitled: “Reshaping Workers’ Compensation for Ontario” modernized what was a well-intentioned, but paternalistic WCB appeals and adjudication system:
where worker permanent disability pensions were determined by WSIB doctors using methodology only they could apply;
where there was no independent appeals body;
where there were no reported decisions;
where there was uneven and inconsistent decision-making; and
where workers and small employers had difficulty finding competent and affordable advocates.
Paul Weiler changed all this.
Out of his thoughtful and practical reports came legislation that established the Workers’ Compensation Appeals Tribunal (now Workplace Safety and Insurance Appeals Tribunal) and the Office of the Worker Adviser and the Office of the Employer Adviser, both of whom offer capable advocacy to the workplace parties.
The Tribunal celebrated its twentieth anniversary last year. Under its first Chair, Ron Ellis, and its current Chair, Ian Strachan, the Tribunal is one of the most sophisticated and well respected administrative law bodies in Canada. Its decision-making is of high quality. It is consistent and rigorous. Its law lives well within the larger body of law that includes torts and causality, constitutional law in mapping the boundaries between Provincial and Federal jurisdictions, and administrative law with its rules of procedural fairness and natural justice. The Tribunal’s caselaw sets the standard for workplace safety and insurance law for all of the other Provinces of Canada and is well respected beyond Canadian borders.
The Tribunal represents the “Rule of Law” in the field of workers’ compensation.
We have Paul Weiler to thank for this.
We also have Paul Weiler to thank for the creation of this section of the Ontario Bar Association and for the creation of the Law Society of Upper Canada’s Workplace Safety and Insurance Specialty Law Certification Program.
A little bit about the person of Paul Weiler.
He is from Thunder Bay, a protégé of Bora Laskin, who convinced Paul to go to law school instead of pursuing a PhD in philosophy.
He graduated from Osgoode Hall Law School in 1964 and received his LLM from Harvard in 1965.
Paul Weiler established the Canadian Studies Program at Harvard as its MacKenzie King Professor in 1978.
From 1993 to 2006, he was the Henry J. Friendly Professor of Law at Harvard Law School.
Paul Weiler continues to teach at Harvard Law School today.
At Harvard, he has taught and mentored many many outstanding students, some of whom he may speak about tonight. I know of one particular student of Paul’s who intends to be the next President of the United States.
Paul Weiler has been the advisor to US presidents and Canadian prime ministers. Paul Weiler travels among people who make a difference, because Paul Weiler is a person who makes a difference.
He played a critical role in the drafting of our Charter. The “Notwithstanding Clause” is a creation of Professor Weiler and was instrumental in gaining the acceptance of the Provinces to repatriate the Constitution.
He was also an advisor to Pierre Elliot Trudeau and his Government respecting criminal law and social policy.
On the labour law side of Paul Weiler’s accomplishments, he has spoken and written and advised on labour policy and collective bargaining and is an expert in problem-solving labour relations. His labour arbitration cases still have currency today.
From 1973 to 1978, he was the Chair of the British Columbia Labour Relations Board. He was appointed to bring respectful labour solutions to a Province which was strikebound. BC has a workforce of less than a million people clocking nearly two and a half million days of lost work due to strikes. Labour Board Chair Weiler did the job.
In 2005, Paul Weiler was presented with the Bora Laskin Award for outstanding contribution to labour law in Canada.
I believe Paul Weiler’s knowledge of labour law and his deep appreciation of labour policy led him to his groundbreaking “Reshaping Workers’ Compensation for Ontario” report.
The Weiler Reports were commissioned by Dr. Robert Elgie, the then Minister of Labour, who was one of the first two recipients of the Ron Ellis Award. Appropriately, the other recipient, with Dr. Elgie, was Gary Newhouse, a worker side lawyer and advocate.
My second last comment about Professor Paul Weiler is of a personal kind. Paul Weiler was my first year law school criminal procedure professor. In his class, he made first year law school less intimidating and possibly even fun, though I don’t quite remember it that way.
What was clear is that he cared for his students. He was there for them.
One last bit of information, Paul Weiler can tell you nearly all there is to know about major league baseball and the Red Sox.
It is my great honour to introduce to you Professor Paul Weiler.
Ron Ellis Award: Speaking Notes by Ron Ellis I don’t see you very often, Paul. I think the last time may have been 17 years ago. And it struck me as I arrived this evening, that here was, finally, an opportunity, not to be missed, for speaking my mind to you about your Tribunal concept as I actually experienced it.
I spent 12 years as the first Chair of your Tribunal – I refer to it as your Tribunal, since tonight you must take full responsibility for it – 12 years trying to implement your recommendations and meet your expectations and I have to tell you, Paul, that, frankly, it was never easy.
Do you remember the following sentence from your 1980 report?
“The ingredient crucial to the success of the new Appeals Tribunal is the person who heads it, and he should have a high legal profile and should be the kind of person we would want appointed to the Supreme Court bench.”
And do you remember how you described the kind of person who should be appointed as Vice-Chair of the Tribunal? Persons
“with the talent and training to conduct fair and orderly hearings and write, clear, principled decisions”.
I ask you, how did you think we were going to find or attract 20 or 30 such persons? We did, we did it in spades, but it wasn’t easy.
And, then, who did you insist should be appointed as the worker and employer members? They were to be younger union or management officials who were to be, and I quote, “prepared to make a balanced judgment about the merits of the case before them”.
Where did you think we would find such persons? Why did you think they existed? As it happened, it turned out they did exist and we did find them, but it wasn’t easy.
And what helpful suggestion did you have regarding tribunal staff? They were to be, and I quote, “bright young legal and administrative assistants who were to help the Chair to preserve coherence in decision-making across the many panels”.
“Help the Chairpreserve coherence in decision-making across the many panels”. And who were these panels whose decisions the Chair was to cohere? Intelligent, highly skilled Vice-Chairs fully impressed with your insistence on their independence, and union and management gun-slingers whom you had licenced to make a balanced judgment on the merits of each case. Who was the assisting staff to be? Bright young things. Who was the Chair? The head of the Bar Admission Course.
I ask you, Paul, did you think this was a reasonable plan? And what were we to do with those decisions if we were ever to get them cohered? According to you, we were to make them into a “coherent jurisprudence of workers’ compensation”.
What is the Ontario Court of Appeal’s jurisprudence on workers’ compensation over the past 20 years? Two decisions, maybe three? By the time I left the Tribunal, anyone interested in the Tribunal’s jurisprudence could flip through 20,000 Tribunal decisions, and the number is now, I understand, approaching 70,000.
And let’s look at that independence. You said that was really important, you emphasized it, you kept on about it. And I was impressed; I took that to heart. I can’t tell you the trouble that that idea has caused me ever since.
Do you remember that you made me a member of the new representative WCB Board of Directors? You sent me to lunch with that bunch at least once a month for 10 years. The Tribunal issues its first chronic pain decision today, I lunch with the Board members tomorrow; the Tribunal calls the Board’s integrity into question today, I lunch with the Board members tomorrow; the Tribunal decides to compensate chronic stress cases today, I lunch with the Board members tomorrow.
In fact, improbably, the Board members and I grew to respect and like each other, but, I ask you, was it likely?
And, then, how did you characterize the relationship that was to exist between your Tribunal and the Board? They were, you said, to be “partners in the common enterprise of providing fair and decent workers’ compensation in this Province”. I took that to heart too, but the Board not so much. And then, the final indignity: you took the partner, who already had all the money and gave it the final say, too. Who, you asked rhetorically, should have the final say? The corporate board of the WCB, you answered.
In retrospect, one can see that your final-say recommendation in your 1980 report was probably the first public evidence of the kind of thinking that two years later would lead to the “notwithstanding” clause in the Charter.
If there were any justice in this world, Paul, you would have been the one to chair that tribunal. The real truth is that your reports on workers’ compensation in Ontario set a standard for creative thinking and lucid insight that, in my opinion, has seldom if ever been matched. You laid the foundation for a radically restructured decision-making process in workers’ compensation that has achieved much of what you had expected.
I had the amazing good luck to be given the opportunity, along with my colleagues, to implement the concept and it was a wonderful professional challenge and a transformative personal experience for us all.
Since the Ron Ellis award was established eight years ago, there have been a number of great people who have accepted it, including on the first occasion of its presentation, Dr. Robert Elgie and Gary Newhouse, and on the last occasion, Ian Strachan. Adding the name of Paul Weiler to that list is a special pleasure.
Professor Weiler, your presence here tonight to accept this award for excellence in the field of workers’ compensation cannot help but be seen by me, by my former associates at WCAT, by the current members and staff of WSIAT, and by the former and current workers’ compensation counsel and advocates that are gathered here tonight, as a conspicuous mark of respect on your part for what we do, and what we have done, in this field. And I wanted to be sure that you knew that that aspect of this evening’s proceedings had by no means escaped my attention, or the attention of others.
It is with the greatest pleasure and personal pride that I ask you to accept this award.
The decision concerned s. 25, a rarely litigated, but important section of the Workplace Safety and Insurance Act for both injured workers and employers:
25. (1) Throughout the first year after a worker is injured, the employer shall make contributions for employment benefits in respect of the worker when the worker is absent from work because of the injury. However, the contributions are required only if,
(a) the employer was making contributions for employment benefits in respect of the worker when the injury occurred; and
(b) the worker continues to pay his or her contributions, if any, for the employment benefits while the worker is absent from work.
(2) If the employer fails to comply with subsection (1),
(a) the employer is liable to the worker for any loss the worker suffers as a result of the failure to comply; and
(b) the Board may levy a penalty on the employer not exceeding the amount of one year's contributions for employment benefits in respect of the worker.
….
(4) Subsection (1) does not apply to an employer who participates in a multi-employer benefit plan in respect of the worker if, when the worker is absent from work because of the injury during the first year after it occurs,
(a) the plan continues to provide the worker with the benefits to which he or she would otherwise be entitled; and
(b) the plan does not require the employer to make contributions during the worker's absence and does not require the worker to draw upon his or her benefit credits, if any, under the plan during the absence.
(5) Every multi-employer benefit plan shall contain or be deemed to contain provisions that are,
(a) sufficient to enable all employers who participate in the plan to be exempted under subsection (4) from the requirement to make contributions; and
(b) sufficient to provide each worker with the benefits described in sub-section (4) in the circumstances described in that subsection.
(6) For the purpose of determining a worker's entitlement to benefits under a benefit plan, fund or arrangement, the worker shall be deemed to continue to be employed by the employer for one year after the date of the injury.
(7) In this section,
"contributions for employment benefits" means amounts paid in whole or in part by an employer on behalf of a worker or the worker's spouse, child or dependant for health care, life insurance and pension benefits.
Mr. Rodrigues was a sheet metal worker who suffered multiple injuries in a fall in March 1998, for which he was granted a 37% NEL award. The significant issue was whether the employer’s contribution to a multi-employer benefit plan, should be factored into calculating the worker’s earnings once the year of receiving workplace benefits ended.
In this regard, it is important to note that the WSIA defines earnings to exclude an employer’s s. 25 contributions:
"earnings" or "wages" include any remuneration capable of being estimated in terms of money but does not include contributions made under section 25 for employment benefits;
The Vice-chair reviewed the policies and arguments made by the worker’s representatives and by intervenors invited to make written submission on this issue. She concluded that based on the evidence and analysis employer contributions were not earnings under the Act. The worker applied for judicial review.
The Court noted that part of the worker’s argument focused on the legislative history of Bill 162:
17 Prior to 1990, the definition of "earnings" and "wages" was broad and included any remuneration capable of being estimated in terms of money without reference to contributions for employment benefits: Workmens' Compensation Act R.S.O. 1980, c. 539, s. 1(1)(i). 18 In 1984, the Workmens' Compensation Act was amended by S.O. 1984, c. 58, s. 44(1). At that time, the notion of "net average earnings" was introduced and the Board was then required to deduct the probable Canada Pension Plan (CPP) and Employment Insurance (EI) premiums payable by the worker as well as the probable amount of income tax from his or her earnings. 19 In 1990, the Workmen's Compensation Act was amended again by the Workers' Compensation Amendment Act S.O. 1989, c. 47, otherwise known as Bill 162. 20 In its First Reading, Bill 162 included s. 1(2) which amended the definition of "earnings". It contained the phrase, "but does not include contributions for employment benefits". Therefore, the proposed amendment at First Reading would exclude all contributions for employment benefits. 21 This was not the final version of the Bill that passed, however. Section 1(2) of Bill 162 was then itself amended at Second Reading in May 1989 with the phrase, "but does not include contributions made under section 5(a) for employment benefits". 22 The amendment was accompanied by the following statement by the government. It explained that the exclusion was intended to be restricted to contributions made under s. 5(a) only, which is limited to one year, commencing from the date of the injury:
This amendment will correct an oversight in Bill 162. Under the current Act, employers are to report to the WCB their costs of any calculable benefits extended to the worker. Since Bill 162 extends the actual benefit protection to the worker for certain benefits, the employer was relieved from the obligation to include them in the wage or salary calculation. Thus the employer would not have to bear the cost twice. But what the Bill does, as drafted, is delete the obligation to report those costs even after the obligation to continue the benefit protection expires.
This amendment will correct that oversight by restricting the exclusion for the costs of those benefits just to the required period of benefit maintenance.
For example if the injured worker remains on temporary compensation for 18 months, then during the first 12 months, the employer will not include as part of the worker's wages or salary reported to the WCB the employer's costs associated with those benefits being maintained as a result of Bill 162. But, during the last 6 months the employer would report the value of the employer's costs for those benefits which he had previously maintained for the injured worker. These would then be reflected in the temporary compensation paid to the injured worker.
Subsection 1(2)
Purpose
23 Section 5(a) was the clause in the Act that required employers or multi-employer benefit plans to maintain the contributions that had been made by the employer prior to the injury, for one year from the date of the injury. The exclusion of s. 5(a) contributions in the definition of earnings, according to applicant's counsel, was meant to avoid an employer from paying twice - once by the employer under s. 5(a) and secondly, by having the same contributions included in the earnings basis.
….
25 Applicant's counsel submits that Bill 162 as enacted - restricting exclusion from earnings only those contributions for benefits made for one year under s. 5(a) (now s. 25) - clearly establishes that the definition of earnings does not exclude the contribution for employment benefits at issue in this case as they were no longer being paid on behalf of the applicant as s. 25 benefits.
The worker argued in the Divisional Court that because the Vice-chair did not mention the legislative history argument, the decision was fatally flawed.
The majority noted in its decision that relying on the legislative history of a statutory provision is a recognized tool of statutory interpretation:
28 The use of legislative history as a tool for determining the intention of the legislature is an entirely appropriate exercise and one which has often been employed by the Supreme Court of Canada: see Re Rizzo and Rizzo Shoes Ltd., [1998] 1 S.C.R. 27 at para. 31. Having said that, however, one must be very careful in utilizing it for the purposes of statutory interpretation and must consider its context before placing too much weight and reliability upon it.
The majority concluded the vice-chair accordingly made a patently unreasonable error of law, and the matter had to go back to the Tribunal for a new hearing:
29 What is striking in this case is the total failure by either the WSIB or the WSIAT to take the legislative history and the government's explanatory purpose into account in any way. The Vice-Chair was engaged in an exercise of statutory interpretation and she considered a variety of factors in determining the purpose of the statutory provision and the nature of the legislature's intention. She specifically found that it could not have been the legislature's intention to turn the employment contributions into non-taxable pre-accident earnings or intended the result of the legislation to be that workers would receive non-taxable earnings. Having considered a multitude of factors with respect to legislative purpose and intention, she also should have weighed the evidence of the government's explanatory purpose which on its face makes it clear that the definition of earnings would not exclude the contribution for employment benefits at issue in this case. That is not to say that had the legislative history and purpose been considered, the Vice-Chair might not have found it determinative and given it less weight in comparison to the other factors that she did consider. She erred in ignoring the stated purpose altogether, particularly since it plainly suggests an interpretation opposite to the conclusion at which she arrived. The failure to consider it, as it was evidence before her, and to assess its overall weight in the context of the factual and legal matrix is a legal error which deprives the decision of deference.
30 Accordingly, in these circumstances, I must conclude that the failure to consider relevant evidence that might have had a significant impact on the Vice-Chair's findings renders her decision patently unreasonable.
The WSIAT has applied for leave to appeal to the Court of Appeal. This is a very significant issue for all employers and workers who pay into s. 25 benefit plans.
2. Alberta (Workers’ Compensation Board) v. D.W.4
The D.W. case is the flip side of the question of whether the WSIB can deal with a human rights issue. This is the first case I'm aware of where a human rights commission thought it had the right to adjudicate a WCB case.
The facts are relatively simple – for a comp claim. The worker got entitlement for a workplace injury that caused a sprain to his neck, back and shoulders. He subsequently became concerned that he may have also suffered a head injury. He saw 15 doctors about this possible head injury, and the weight of the medical evidence was that he didn’t have one. Following an MRI that showed he was “normal”, the WSIB denied his head injury claim. He then filed a claim with the provincial human rights commission.
The Chief Commissioner of the Alberta Human Rights and Citizenship Commission (AHRCC) decided that the WCB may have breached the worker’s human rights because the Board refused to grant him entitlement as there was in the Commissioner’s opinion “a reasonable basis in the evidence indicating that D.W. did suffer a brain injury”.
The WCB appealed. After the usual determination of the appropriate standard of review for the Commissioner’s decision (correctness), the court did an analysis of principles of competing jurisdiction contained in Morin5
7 There is no easy answer to the question of which of two possible tribunals should decide disputes that arise in the labour context where legislation appears to permit both to do so. As explained in Weber v. Ontario Hydro, [1995] 2 S.C.R. 929, three outcomes are possible.
8 The first possibility is to find jurisdiction over the dispute in both tribunals. This is called the "concurrent" jurisdiction model. On this model, any labour dispute could be brought before either the labour arbitrator or the courts or other tribunals.
9 The second possibility is the "overlapping" jurisdiction model. On this model, while labour tribunals consider traditional labour law issues, nothing ousts the jurisdiction of courts or other tribunals over matters that arise in the employment context, but fall outside traditional labour law issues.
10 The third possibility is the "exclusive" jurisdiction model. On this model, jurisdiction lies exclusively in either the labour arbitrator or in the alternate tribunal, but not in both. …
In reaching its conclusion that the WCB had exclusive jurisdiction, the Court stated:
58 The essential character of this dispute is whether the AHRCC has any jurisdiction over the issue of whether the Complainant sustained a compensable brain injury; the full factual context being a claim for compensation under the WCA over and above a claim which had already been accepted by the WCB.
59 This issue is complicated because it is acknowledged by the WCB that the AHRCC has an overarching jurisdiction over the WCB. Thus, the issue arises as to whether on the factual record before me the overarching jurisdiction of the AHRCC can be invoked on a principled basis.
60 There is no evidence that the WCB discriminated against the Complainant with respect to providing him with services for the degree of disability he was assessed by the WCB. Indeed, it was acknowledged that he has received all benefits to which he is entitled for the 15% disability he was assessed.
61 The Chief Commissioner appears to have concluded that there may have been discrimination because there was some information which supported the Claimant's assertion that he sustained a brain injury, which assertion is contradicted by a large number of professional opinions which overwhelmingly concluded that no such brain injury existed.
62 A conflict in medical opinions, standing alone, surely cannot amount to discrimination; otherwise, every such conflict would give rise to a claim of discrimination. There is no legal obligation on the WCB to accept every claim advanced.
63 Counsel for the Chief Commissioner candidly conceded that he has no experience dealing with medical issues and no resource base to rely on. In particular, he has no expertise in assessing compensable injuries under the WCA. He conducted a document review only, but it was acknowledged that this document review did not comprise the complete WCB file, nor was there any reference made to applicable WCB policies.
64 Conflicts in medical opinions are not unusual, and surely must be resolved by decision-makers with expertise who are able to make decisions considering all medical evidence pertinent to a claim.
65 On the evidence before me, no principled basis exists which would justify invoking the overarching jurisdiction of the AHRCC respecting the claim of the Complainant for additional benefits under the WCA.
66 In considering all of the foregoing principles, I have concluded that the Legislature intended that the WCB have exclusive jurisdiction over the issue of whether workers covered by the WCA have sustained compensable injuries. Given that the goal is to determine which tribunal is the "better fit”, I have concluded that overwhelmingly the better fit rests with the WCB to determine the complex issue of whether the Complainant sustained a compensable brain injury.
This is a useful case for dealing with competing claims between the WSIB and the Ontario Human Rights Commission, and by analogy, any other tribunal that attempts to assert a competing jurisdiction on workplace insurance matters.
* Michael Zacks is Director (A) and General Counsel at the Office of the Employer Adviser, (416) 314-8735. The opinions expressed in this article are his, and are not to be attributed to the OEA, or Ministry of Labour.
This month, we are providing an article (click here) written for the Workers’ Compensation Policy Review by Professor John Burton on the American Workers’ Compensation system. The article provides an excellent overview of how workers’ compensation functions in the US. It is reproduced with the kind permission of Professor Burton.
The Compensation Policy Review is the pre-eminent American newsletter on workers’ compensation policy edited by John Burton Jr. Professor Burton is currently Professor Emeritus in the School of Management and Labor Relations (SMLR) at Rutgers University. He is a member of the Executive Board of the National Academy of Social Insurance (NASI) and is also a member of the NASI Workers’ Compensation Steering Committee. More information about the newsletter can be found at http://www.workerscompresources.com/
I believe you will find this article as interesting and informative as I did. I would also appreciate your comments on the article, and whether you found it useful.
Michael Zacks, Director (A) and General Counsel, Office of the Employer Adviser, (416) 314-8735, www.employeradviser.ca.
Volume 12, No. 1 - February/Février 2008 
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