Decision Nº Released_Decisions from Workplace Safety and Insurance Appeals Tribunal of Ontario, 13-12-2023

• Judge: N. M. Perryman : Vice-Chair C. Sacco : Member Representative of Employers M. Tzaferis : Member Representative of Workers
• Judgment Date: 13 December 2023
• Judgement Number: Released_Decisions
• Hearing Date: 24 July 2023
• Issuer: Workplace Safety and Insurance Appeals Tribunal of Ontario

WORKPLACE SAFETY AND INSURANCEAPPEALS TRIBUNAL

Decision No. 1029/23I

BEFORE: N. M. Perryman : Vice-Chair

C. Sacco : Member Representative of Employers

M. Tzaferis : Member Representative of Workers

HEARING: July 24, 2023 at

DATE OF DECISION: December 13, 2023

NEUTRAL CITATION: 2023 ONWSIAT 1886

DECISION UNDER APPEAL: WSIB dated January 25, 2022

APPEARANCES:

For the worker: J. Bartolomeo,

For the employer:

Interpreter: N/A

REASONS

(i) Introduction

1. The worker appeals the ARO decision, dated January 25, 2022, giving rise to the following issues:

1. September 24 September 30, 2019
2. Ongoing entitlement to benefits for the organic injuries arising from the compensable May 2019 motor vehicle accident beyond the maximum medical recovery date (MMR) of February 13, 2020
3. Entitlement to full LOE benefits on February 10 and from February 18 to March 2, 2020; and
4. Ongoing entitlement under the psychotraumatic disability policy beyond February 13, 2020, including recognition of permanent impairment and entitlement to a non-economic loss (NEL) assessment

2. As a preliminary matter, Mr. Bartolomeo requested an adjournment of a fifth issue – entitlement to full LOE benefits from March 19 to April 16, 2020 – which was also addressed in the January 25, 2022 ARO decision currently before the Tribunal.
3. Mr. Bartolomeo expressed concern that a decision from this Tribunal regarding the worker’s LOE entitlement for the period in question would adversely impact the worker’s application before the Human Rights Tribunal of Ontario (HRTO). Mr. Bartolomeo provided both written and oral submissions on this issue to the Tribunal explaining that the worker had filed an application with the HRTO, with the Workplace Safety and Insurance Board (WSIB) as a respondent, alleging a breach of the worker’s rights under the Human Rights Code, R.S.O. 1990, c. H. 19 (herein referred to as “the Code”).
4. Mr. Bartolomeo referenced Halder v. Workplace Safety Insurance Board, 2023 HRTO 344 (CanLII) in submitting his concerns regarding the viability of an application before the HRTO once this Tribunal releases a decision regarding benefits pertaining to the same or similar period as identified in HRTO application.
5. In Halder v. Workplace Safety and Insurance Board the member, citing Zhang v. Human Rights Tribunal, 2018 ONSC 3987, concluded that the issues before the HRTO were “essentially the same” as the issues before the WSIAT, which has “concurrent jurisdiction to apply the Code when making its determinations.”
6. Mr. Bartolomeo submits that the worker would like the ability to pursue an application before the HRTO and suggests deferring a decision on the worker’s entitlement to LOE benefits for the period in question until HRTO has released a decision.
7. Mr. Bartolomeo submits that there is nothing in the Tribunal’s Practice Directions that would prevent the Panel from deferring the issue. He also cites Access Health Care Services Inc. v. Kelly Villeneuve, 2022 CanLII 83382 (ON LRB) to support this position. In Access Health Care Services Inc. v. Kelly Villeneuve, the Ontario Labour Relations Board (OLRB) recognized that there were parallel proceedings involving the HRTO and ordered that the application be held in abeyance pending the outcome of the applicant’s HRTO application.
8. It is important to note that the OLRB held the application in abeyance in accordance with the OLRB’s test for deferral of applications filed with the Board under section 50 of the Occupational Health and Safety Act¸ RSO 1990, c 0.1 which deals with reprisals of workers by employers or persons acting on behalf of an employer. It is unclear whether the same policy could be applied outside a section 50 matter which makes Access Health Care Services Inc. v. Kelly...