Decision Nº Released_Decisions from Workplace Safety and Insurance Appeals Tribunal of Ontario, 27-03-2012

• Judge: R. McCutcheon : Vice-Chair S. T. Sahay : Member Representative of Employers F. Jackson : Member Representative of Workers
• Judgment Date: 27 March 2012
• Judgement Number: Released_Decisions
• Hearing Date: 06 March 2012
• Issuer: Workplace Safety and Insurance Appeals Tribunal of Ontario

WORKPLACE SAFETY AND INSURANCEAPPEALS TRIBUNAL

Decision No. 435/12I

BEFORE: R. McCutcheon : Vice-Chair

S. T. Sahay : Member Representative of Employers

F. Jackson : Member Representative of Workers

HEARING: March 6, 2012 at

hearing

DATE OF DECISION: March 27, 2012

NEUTRAL CITATION: 2012 ONWSIAT 659

DECISION UNDER APPEAL: WSIB N. Kissoore decision dated March 24, 2011

APPEARANCES:

For the worker’s surviving spouse: Ms. A. Serra,

For the employer: Ms. E. Kosmidis,

REASONS

(i) Introduction to the appeal proceedings and the issues

1. The employer appeals a decision of the , which concluded:

1. the death benefit paid to the deceased worker’s surviving spouse was correctly calculated; and
2. the independent living allowance was correctly paid on January 1, 2010

3. At the hearing, the employer's representative stated that the employer was withdrawing its appeal regarding the payment of the independent living allowance in 2010. Therefore, the only issue in this appeal is the calculation of the death benefit paid to the worker’s surviving spouse.
4. The deceased worker’s surviving spouse testified under oath at the Tribunal hearing and the representatives made submissions.
5. This appeal raises the issue of the correct calculation of death benefits paid to a surviving spouse where the deceased worker was retired from the work force at the time of diagnosis with a long latency occupational disease. Similar issues have been addressed by this Tribunal in previous decisions, for example, Decision Nos. 1581/06 (2008) 85 W.S.I.A.T.R. (online) and 2360/08R (August 17, 2011). Generally speaking, these decisions stand for the proposition that death benefits ought to be based upon the statutory minimum set out in subsection 48(3) if the worker was not earning at the time of the diagnosis (the deemed accident date).
6. The respondent’s representative, however, argues that this case is distinguishable because the surviving spouse lost the benefit of the worker’s retirement benefits upon his death. The Panel notes that the issue of the calculation of death benefits is distinct from the calculation of loss of earnings (LOE) benefits payable to a worker after retirement. In this appeal, LOE benefits are not in issue.
7. For the reasons set out in this interim decision, the Panel finds it appropriate to obtain legal submissions from the Tribunal Counsel Office in this appeal. The parties will have an opportunity to file further written submissions in reply before the Panel renders a final decision in this appeal.

(ii) Background

8. The worker was born in 1932 and began employment with the accident employer as a caretaker in April 1957. He was later promoted to head caretaker and worked at different school locations until his retirement on May 1, 1993.
9. The worker was diagnosed with mesothelioma in October 2009 and filed a claim with the Workplace Safety and Insurance Board. The worker died on January 5, 2010.
10. Following an investigation, the WSIB accepted that the worker’s occupational asbestos exposure made a significant contribution to the development of his mesothelioma. For the purposes of the...