Decision Nº ReleasedDecisionsWithSummaryAdded from Workplace Safety and Insurance Appeals Tribunal of Ontario, 24-06-2020

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• Judgment Date: 24 June 2020
• Neutral Citation: 2020 ONWSIAT 1197
• Hearing Date: 11 May 2020
• Judgment Number: 967/19
• Issuer: Workplace Safety and Insurance Appeals Tribunal of Ontario

--SUMMARY--

Decision No. 967/19R 24-Jun-2020 L.Gehrke

• Reconsideration (error of law)
• Reconsideration (procedural error)

The original decision confirmed the worker's LOE was to be offset by 100% of the worker's CPP.

The Vice-Chair found flaws in the test the vice-chair applied in considering the contribution of different conditions to the CPP allowance. As well, evidence that supported the worker's position did not appear to be addressed. The Vice-Chair found that had the medical evidence been considered differently, it may have led to a different outcome.

The Vice-Chair for this reconsideration found the worker ought to have an oral hearing on the merits with an interpreter to accommodate the self-represented worker's circumstances that he had a traumatic brain injury, psychological impairment and an English language barrier.

The Vice-Chair found the Tribunal's threshold test for granting a reconsideration was met. The worker's appeal was to be heard by teleconference or videoconference with an interpreter (it was during Covid-19) and that Tribunal Counsel Office would attend to assist with questioning of the worker and submissions. The Vice-Chair would remain seized of the matter.

Tribunal staff were also to provide the worker with a list of organizations providing advice and representation free of charge.

10 Pages

References:	Act Citation WSIA Other Case Reference [w3120s]k CROSS-REFERENCE: Decision No. 475/07, 967/19
Style of Cause:
Neutral Citation:	2020 ONWSIAT 1197

WORKPLACE SAFETY AND INSURANCEAPPEALS TRIBUNAL

Decision No. 967/19R

BEFORE: L. Gehrke: Vice-Chair

HEARING: May 11, 2020 at Toronto

Written

DATE OF DECISION: June 24, 2020

NEUTRAL CITATION: 2020 ONWSIAT 1197

DECISION(S) UNDER APPEAL: Worker request for reconsideration of Decision No. 967/19 dated August 14, 2019

APPEARANCES:

For the worker: Self-represented

For the employer: Not participating

Interpreter: Not applicable

REASONS

(i) Introduction to the reconsideration proceedings

1. The worker has requested a reconsideration of Decision No. 967/19 (the original decision), which concluded that the Board correctly determined that 100% of the worker’s Canada Pension Plan (CPP) disability benefits should be offset from his loss of earnings (LOE) benefits. In the original decision, the Vice-Chair confirmed that a written appeal process was appropriate, and that the worker’s LOE benefits should be offset by 100% of the worker’s CPP disability benefits.
2. The worker was injured in a motor vehicle accident (the MVA) on October 31, 2002. The MVA was found to be compensable and the worker’s right of action was taken away in Decision No. 475/07. The Board assessed a 70% whole person non-economic loss (NEL) award for permanent impairment sustained by the worker in the MVA. The NEL award was comprised of an award of 30% for the neck in 2005, 27% for the lumbar spine and pelvis in 2007, 10% for traumatic brain injury (TBI) in 2006; and 35% for psychotraumatic disability in 2005. He was also granted a personal care allowance and full LOE benefits. He applied for and received CPP disability benefits in 2004, retroactive to December 2003.

(ii) The reconsideration test

3. The Workplace Safety and Insurance Act and the Workers’ Compensation Act provide that the Appeals Tribunal’s decisions shall be final. However, section 129 of the Workplace Safety and Insurance Act and sections 70 and 92 of the Workers’ Compensation Act provide that the Tribunal may reconsider its decisions "at any time if it considers it advisable to do so." Because of the need for finality in the appeal process, the Tribunal has developed a high standard of review, or threshold test, which it applies when it is asked to reconsider a decision.
4. Generally, the Tribunal must find that there is a significant defect in the administrative process or content of the decision which, if corrected, would probably change the result of the original decision. The error and its effects must be significant enough to outweigh the general importance of decisions being final and the prejudice to any party...