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First time WSIAT has ever been overturned by the Divisional Court in Ontario

First time WSIAT has ever been overturned by the Divisional Court in Ontario

In Amin v WSIAT [2009] O.J. No. 4715 the Divisional Court finally reversed the first WSIAT ever. Unfortunately, this case illustrates the tremendous challenges faced by employers especially as they relate to “probationary” employees who are not performing well.  The worker had only been employed for 11 days and was a probationary employee. The worker had been given notice (the first mistake by the employer) by the company that they were going to terminate him for poor performance and for mis-representing his experience. Shortly after that on June 5, 2004 (unknown and unreported to the employer) the worker sought medical attention for pain in his right hand, arm and back. His employment was terminated on June 9, 2004 prior to any form or WSIB claim being filed.  He received full LOE benefits for almost two months following his termination until August 5, 2004 and then appealed the denial of ongoing LOE past August 5, 2004.  Four years later,  after working 11-days, the worker claimed that he was still feeling the effects of the gradual disablement type injury that he sustained and for this reason, he indicated that he was unable to find employment. He spent his time tending to his children, and giving advice to new immigrants.

The WSIAT Reconsideration Decision dated July 17, 2008 (390/08R) revealed that this worker had reported another injury of right sided back pain in 2003 (before his employment with the accident employer) on his second day on a job where he was sorting light metal parts weighing not more than five or six pounds in total and wherein the worker complained the job was too fast paced and was repetitive work.  His claim was denied.  “As I reviewed this matter for reconsideration, I found the description of events by the worker to be strikingly similar to the present claim-works for a very short period, complains that the work is too fast paced and repetitive, does not involve heavy products, and does not report an injury to his employer” see para [25] of WSIAT Decision No. 390/08R.

This case reminds employers to:

  • Do an intensive and thorough background check on every employee;
  • Quickly, make the decision to terminate (without notice) during the probationary period when it becomes apparent that an employee has mis-represented his or her skill level;
  • Have written documentation to verify performance issues on a daily basis for probationary employees;
  • Seek out the advice of a lawyer who specialize in management side workers’ compensation law  to conduct Independent Medical Examinations (IME) or a disability related surveillance investigation to assist with decision making by adjudicators, Appeals Resolution Officers and Divisional Court Justices.

There is absolutely no medical evidence to substantiate any ongoing impairment in this case and a whole lot of medical resources were wasted trying to verify this workers’ continuity of subjective complaint (which is not one of the criteria for entitlement in workers’ compensation).  Both the WSIAT Panel and the Divisional Court appeared to reluctantly admit that the worker did sustain a minor repetitive strain injury over a very short period of time.  However,  the Divisional Court allowed the worker’s appeal and referred the matter back to another WSIAT Panel because the end date for LOE benefits was not substantiated by evidence (just like the worker’s complaints for the following four years).  This should have been established by the Case Manager long before it went to WSIB Appeals Branch, WSIAT and the Divisional Court.   An application for leave to appeal to the Court of Appeal was dismissed on February 3, 2010. And the application for leave to appeal to the Supreme Court of Canada was dismissed on June 3, 2010. We are certainly looking forward to how the new WSIAT Panel will determine the date on which the worker’s injury is no longer work-related.

Link: WSIAT Decision 390/08 (now overturned)

Link: Ontario Superior Court of Justice – Divisional Court Decision

Posted by: Cézanne Charlebois

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