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

• Judge: L. Gehrke: Vice-Chair
• Judgment Date: 24 June 2020
• 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 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. 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 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. 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 of the decision being re-opened. The threshold test has been discussed in some detail in Decision Nos. 72R (1986), 18 W.C.A.T.R. 1; 72R2 (1986), 18 W.C.A.T.R. 26; 95R (1989), 11 W.C.A.T.R. 1; and 850/87R (1990), 14 W.C.A.T.R. 1. As discussed in Decision No. 871/02R2, one of the fundamental concepts which guides the entire Tribunal process is a duty of fairness. The Tribunal has gone to considerable lengths, in spite of limited resources, to promote a fair process. The threshold test and the role of the reconsideration process must be understood in the context of the Tribunal’s processes generally. Most parties have the option of an oral hearing, which is a hearing “de novo” at the Tribunal. This is very unusual at the final level of appeal within any adjudicative system. The Tribunal invests considerable resources in preparing cases for hearing and assisting parties to identify the issues in dispute so that parties can in turn be fully prepared for the hearing. The reconsideration process should not be so generally available that it undermines the important role of the original hearing or the finality of decisions which are reached after a fair hearing process. Because of limited resources, the Tribunal must also carefully balance its processes to ensure that parties awaiting their first hearing are not penalized because of the expenditure of scarce resources on reconsideration requests. It is instructive to refer to Decision No. 871/02R2’s analysis of the threshold test that a reconsideration request must meet and the reasons for this: Section 123 of the Workplace Safety and Insurance Act provides that a decision of the Appeals Tribunal under the Act is final. While the Appeals Tribunal does have the discretionary power to reconsider its decision under section 129 of the Act, this remedy is an exceptional one. Because the integrity of the appeal process and the finality of Tribunal decisions are important considerations in any reconsideration application, the standard of review or threshold which must be met in the reconsideration process is a high one. Although some representatives may advise their clients that a reconsideration application is merely a routine step in the WSI appeal process, this advice is wrong. The reconsideration process is a special remedy and the Tribunal’s power to reconsider is invoked only in unusual circumstances; it is not intended as a routine process for any party or representative unhappy with a Vice-Chair or Panel decision. To treat reconsiderations as a routine, insignificant process would effectively undermine the statutory principle of finality, suggest that parties could routinely discount the original hearing process, and put successful parties at risk of multiple proceedings. To be successful on a reconsideration application, an applicant must discharge the onus to satisfy the Tribunal that an otherwise final decision should be reopened. Essentially, an applicant must: (a) demonstrate that there was a fundamental error of law or process which, if corrected, would likely produce a different result, or (b) introduce substantial new evidence which was not available at the time of the original hearing and which would likely have resulted in a different decision had this substantial evidence been introduced at the original hearing. Any error and its resulting effects must be sufficiently significant to outweigh the importance of decisions being final and the prejudice to any party of the decision being re-opened. [emphasis in original] The Divisional Court has reviewed and upheld the Tribunal’s reconsideration process in Gowling v. Ontario
• Judgement Number: ReleasedDecisionsWithSummaryAdded
• Hearing Date: 11 May 2020
• 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...