|
In Decision No. 1529/04I, the Panel determined that the Board correctly applied Board policy to reduce the worker’s NEL award in accordance with the Combined Values Chart in the AMA Guides when the worker had a pre-existing compensable permanent impairment.In this decision, the Panel considered whether Board Operational Policy Manual, Document No. 18-05-05, violated s. 15 of the Canadian Charter of Rights and Freedoms or s. 2 of the Ontario Human Rights Code.After review of Supreme Court of Canada decisions, the Panel found that, to establish that a policy violates s. 15 of the Charter, an appellant must show: 1) the policy creates a distinction based upon an enumerated or analogous ground; and 2) the distinction is discriminatory in that it perpetuates disadvantage or stereotyping. In approaching these issues, the Panel recognized that it is appropriate to consider the relevant broader, social, political and legal context, and to avoid an overly technical approach to the analysis.It is necessary to choose an appropriate comparator group. The Panel used the comparator group suggested by the worker, which was workers eligible for a NEL award with no prior disability. The Panel rejected another comparator group, which was workers eligible for a NEL award with a prior non-compensable disability. (The Panel noted that there is a distinction in the workers’ compensation context between disability and impairment, and that s. 15 of the Charter refers to disability as a prohibited ground of discrimination. No party argued that a prior impairment is not a disability for the purpose of the Charter analysis. For purposed of this appeal, the Panel accepted that a worker with a prior compensable impairment has a disability for purposes of s. 15 of the Charter.) The Panel adopted the comparator group chosen by the worker for three reasons: 1) it mirrored the characteristics of the claimant relative to the benefit of advantage sought, except for the personal characteristic related to an enumerated ground; 2) the alternative group did not fit with the grounds pleaded by the claimant; and 3) the alternative group did not highlight an enumerated or analogous group.The Panel concluded that the distinction created in Board policy was not based on the enumerated ground of disability but, rather, on a neutral and rationally defensible policy goal of assessing permanent impairments in accordance with the prescribed rating schedule. One of the principles of that rating schedule is that each person begins from a whole of 100%, and a person cannot be found to have an impairment of greater than 100%. Accordingly, the Charter claim failed because it did not crease a distinction based on an enumerated ground.For the sake of completeness, the Panel went on to consider whether there was a distinction that perpetuated prejudice or stereotyping. To do so, the Panel looked at the four contextual factors set out by the Supreme Court: 1) pre-existing disadvantage of the claimant group; 2) correspondence between the differential treatment and the claimant group’s reality; 3) ameliorative purpose of effect; and 4) nature of the interest affected. Based on this analysis, the Panel found that the Board policy did not infringe s. 15 of the Charter.Regarding the human rights claim, the test is: 1) whether the complainant has established a prima facie case demonstrating that the service creates a distinction based on a prohibited ground; and 2) whether the respondent has established that the distinction does not create a disadvantage by perpetuating prejudice or stereotyping.The Human Rights Code contains a definition of disability which includes workplace injuries. Thus, for the purposes of the human rights claim, the appropriate comparator group is workers eligible for a NEL award with prior non-work-related disabilities.The Board policy provides for reducing the NEL awards of workers with prior work-related NEL awards. The NEL awards of workers with prior non-work-related NEL awards are not reduced in that fashion. The Panel found that there is a prima facie case demonstrating that the benefit payment creates a distinction based on the prohibited ground of workplace injury. However, the Panel found that the policy does not create a disadvantage by perpetuating prejudice or stereotyping. Rather, the distinction reflects the limits of the Board’s authority and jurisdiction over workplace injuries. Workers in the claimant’s group have previously received benefits from the Board whereas the comparator group has not received benefits from the Board for prior disabilities. The distinction in the...
|
