Decision Nº 1155/23 from Workplace Safety and Insurance Appeals Tribunal of Ontario, 15-09-2023

• Judge: R.M.J. Hoare: Vice-Chair
• Judgment Date: 15 September 2023
• Neutral Citation: 2023 ONWSIAT 1419
• Judgement Number: 1155/23
• Hearing Date: 22 August 2023
• Issuer: Workplace Safety and Insurance Appeals Tribunal of Ontario

--SUMMARY--

Decision No. 1155/23 15-Sep-2023 R.Hoare

• Aggravation (preexisting condition) (disc, degeneration) (cervical)

• Suitable employment (suitable for worker's capabilities)

• Loss of earnings {LOE} (eligibility) (impairment)

• Suitable employment (modified duties)

No Summary Available

14 Pages

References:	Act Citation WSIA ; Other Case Reference [w4523n] TRIBUNAL DECISIONS CONSIDERED: Decision No. 1592/01, 2001 ONWSIAT 2556 refd to
Style of Cause:
Neutral Citation:	2023 ONWSIAT 1419

WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL

DECISION NO. 1155/23

BEFORE: R.M.J. Hoare: Vice-Chair

HEARING: August 22, 2023 at Toronto Oral by Videoconference

DATE OF DECISION: September 15, 2023

NEUTRAL CITATION: 2023 ONWSIAT 1419

DECISION(S) UNDER APPEAL: WSIB Appeals Resolution Officer (ARO), dated August 23, 2021

and January 10, 2022

APPEARANCES:

For the worker: F. Van Dyke, Lawyer

For the employer: Not participating

Interpreter: Not applicable

Workplace Safety and Insurance Tribunal d’appel de la sécurité professionnelle Appeals Tribunal et de l’assurance contre les accidents du travail

505 University Avenue 7^th Floor 505, avenue University, 7^e étage

Toronto ON M5G 2P2 Toronto ON M5G 2P2

REASONS

1. Introduction

[1] The worker appeals two decisions of the two AROs, which concluded that the worker did not have initial entitlement to a neck injury, arising from a workplace accident which occurred on August 27, 2019. The worker also claimed he was entitled to Loss of Earnings (LOE) benefits for certain dates in September and October 2019, when he claimed to have missed work from modified work duties as a result of his claimed neck injury. The dates for which the worker claimed LOE benefits in September and October 2019 will be detailed below.

[2] In both decisions under appeal, the AROs rendered their decisions in writing without oral hearings.

1. Late disclosure issues

[3] I note that there was an issue of the late disclosure of two documents which

Mr. Van Dyke, the worker’s representative, provided to the Tribunal. The late disclosure consisted of two letters: the first was dated August 10, 2023, addressed to the Tribunal by Mr. Van Dyke, referring to his intention to call K.L., the worker’s wife, as a witness for the worker at the appeal hearing; the second document was another letter, dated August 16, 2023, and also from Mr. Van Dyke to the Tribunal, containing a Will Say statement, concerning the

proposed nature of K.L.’s testimony. Both of these letters were provided less than three weeks before the date of the hearing.

[4] As such, the documents were late disclosure under the Tribunal Practice Direction: Disclosure. Witnesses and the Three-Week Rule so I considered whether I would accept them as part of the appeal record. I note that the employer was not participating in the appeal hearing so potential required notice to them under the Practice Direction was not an issue. I also note that in the Confirmation of Appeal which Mr. Van Dyke filed, dated December 17, 2022, Mr. Van Dyke provided notice of his intention to call K.L. as a witness and provided a brief Will Say statement for her proposed testimony. As a result, some notice of the witness’s potential participation in the appeal hearing was provided as required by the Practice Direction.

[5] I addressed and considered the lateness of the two letters first noting there was no prejudice to another party participating in the appeal hearing and that the letters’ contents simply confirmed information already provided to the Tribunal in a timely fashion.

[6] As a result, I accepted the two letters as exhibits to the appeal record despite their late disclosure to the Tribunal and I permitted the worker’s spouse to testify.

2. Jurisdiction regarding LOE benefits entitlement after October 15, 2019

[7] In a revised Hearing Ready Letter, dated April 27, 2023, the Tribunal listed the issues on appeal as those set out in the Issues section below. These issues did not include entitlement to LOE benefits after October 15, 2019.

[8] Prior to the hearing, the worker’s representative advised the Tribunal that he intended to raise at the appeal hearing the issue of the worker’s entitlement to LOE benefits from

October 15, 2019. This was set out in his letter to the WSIAT, dated April 14, 2023.

[9] In the revised Hearing Letter, the Tribunal noted to Mr. Van Dyke that the WSIB had determined that the worker had no initial entitlement to a neck injury and that he had returned to modified work from October 15, 2019. As a result, the WSIB concluded the worker had no compensable income loss after that date. It also noted that the issue agenda for the appeal hearing was ultimately the decision of the Vice-Chair or Panel hearing the appeal.

[10] Having reviewed the above-noted correspondence in the record, I raised the issue of my jurisdiction with Mr. Van Dyke at the start of the hearing. Mr. Van Dyke submitted that I had implicit jurisdiction to consider the issue of the worker’s LOE benefits entitlement after

October 15, 2019, as the WSIB determination that the worker was recovered and able to return to work after that date indicated that the WSIB had considered the issue, although they had determined that the worker did not have entitlement to a neck injury in the claim.

[11] I noted to Mr. Van Dyke that the two ARO decisions before me did not explicitly deal with the issue of the worker’s LOE benefits entitlement, if any, after October 15, 2019, as they had determined that the worker’s compensable head laceration had resolved by that date. As the worker was found to have no initial entitlement to his neck in various WSIB decisions, and it was asserted that his income loss after October 15, 2019 flowed from that injury, this important point regarding ongoing entitlement had not been addressed with a final decision by the WSIB in the ARO decisions before me.

[12] I also noted that there was a further WSIB Case Manager’s decision, dated

August 26, 2022, which did not appear to have been appealed by the worker and did explicitly deal with potential LOE benefits entitlement after October 15, 2019. Mr. Van Dyke could not confirm if that decision had been appealed by the worker. Therefore, I noted my concern that I did not have a final decision before me to establish my statutory jurisdiction, regarding the issue of LOE benefits entitlement after October 15, 2019.

[13] In summary, my concern about assuming jurisdiction over this additional issue was threefold:

[14] From my review, I concluded that there was no final decision from the WSIB on this aspect of LOE benefits entitlement after October 15, 2019, before me as required by the WSIA to establish my jurisdiction over that issue. Additionally, it appeared that the issue was adjudicated explicitly by the Case Manager in August of 2022, in a separate line of adjudication which may not have been appealed by the worker to an ARO.

[15] Also, the appeal record contained little evidence about the nature of the worker’s work duties after October 15, 2019 and his potential income loss, if any, after that date. The appeal record also lacked updated medical evidence to assist me in evaluating the nature and level of the worker’s disability for the purposes of ongoing entitlement, if any, to LOE benefits.

[16] Finally, the issue of ongoing entitlement to LOE benefits after October 15, 2019, had not been part of the notification to the employer of the issues on appeal. As a result, I determined that if I assumed jurisdiction over this issue, it could create a problem of insufficient notice to the employer of an additional appeal issue which could raise the problem of a denial to the employer of its right to participate in an appeal hearing on this additional issue should I proceed to hear it.

[17] As a result of all these factors, I declined to assume jurisdiction over the issue of the worker’s entitlement to LOE benefits after October 15, 2017. Subject to any time limits

considerations, the worker is at liberty to raise the issue of further LOE benefits entitlement after October 15, 2019 at the WSIB.

	(ii)	Issues
[18]	The	issues under appeal are as follows:
[19]		From the ARO decision, dated August 23, 2021:
	1.	Entitlement to a neck injury due to the August 27, ...