Canadian Safety Reporter - sample

CSR-April2019

Focuses on occupational health and safety issues at a strategic level. Designed for employers, HR managers and OHS professionals, it features news, case studies on best practices and practical tips to ensure the safest possible working environment.

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2 Canadian HR Reporter, a Thomson Reuters business 2019 April 2019 | News April 18, 1996, when Feather- stone was 27 years old, he was working on hydro lines in an el- evated bucket when he fell from the bucket. In the fall, Feather- stone fractured his upper jaw and sustained injuries to his teeth, neck, back, and legs. He later developed post-traumatic stress disorder (PTSD) stem- ming from the accident. Six years after the accident, in May 2002, the Ontario Work- place Safety and Insurance Board (WSIB) gave Featherstone an award for his non-economic loss stemming from his injuries and PTSD. One year after that, in May 2003, the WSIB deter- mined Featherstone's physical and mental injuries made him unemployable and granted him a 100-per-cent future economic loss benefit until the age of 65 and told him the benefit was locked in. Featherstone continued to receive the benefits without change for seven years. In 2010, the WSIB began evaluating his condition. Over the next three years, it kept track of any de- velopments and progress in his functional abilities and, in 2013, determined Featherstone's con- dition had improved to the point where he was capable of return- ing to full-time work with Hydro Ottawa in the position he had held at the time of his workplace accident. Benefits continued after return to full-time work Featherstone agreed with the finding and returned to work with Hydro Ottawa on April 18, 2013 — 16 years after he had stopped working due to his in- juries. However, even though he was back at work and earning income in the position he had held prior to his accident, Feath- erstone continued to receive future economic loss benefits because the benefits had been locked in a decade earlier. Hydro Ottawa objected to this arrangement and made a re- quest to the WSIB to discontinue Featherstone's ongoing benefits since he was back working. After an initial refusal, Hydro Ottawa appealed to the Ontario Work- place Safety and Insurance Ap- peals Tribunal, which denied the appeal. The tribunal found that the Ontario Workplace Safety and Insurance Act stipulated that the WSIB couldn't review any determination of compen- sation for future loss of earning more than 60 months after the determination was made. There were exceptions to this rule, but none of them applied to Feather- stone. As a result, Featherstone's fu- ture economic loss entitlement that had been locked in in May 2003 could not be reviewed or changed, "regardless of his re- turning to work in 2013 and his no longer suffering any ongoing economic loss," the tribunal said, noting that applicable WSIB policies — relating to material changes to workers' status and decision-making — confirmed the 60-month limit for review in any such cases. Hydro Ottawa appealed to the Ontario Divisional Court, argu- ing the tribunal erred in law when it found the act allowed a worker who no longer suffers a loss of earnings after the 60-month re- view window to still receive ben- efits until the age of 65. Hydro Ottawa also noted the court should evaluate the deci- sion on whether it was correct rather than reasonable, as the tribunal refused to exercise the discretion and authority given to it under the act for making a decision on the continuance of workers' compensation benefits. The Ontario legislature, through the act, "has recognized that the tribunal has the expertise to decide all issues relating to the workers' compensation and workplace safety and insurance benefits, including the review of future economic loss benefits," Hydro Ottawa argued. The court disagreed with Hydro Ottawa's assertion that the standard of review was cor- rectness rather than reasonable- ness, as the tribunal had "exclu- sive authority" to hear appeals from the WSIB and has the ex- pertise to make determinations based on its understanding of legislation, WSIB policies, and previous decisions. In this case, the issue of future economic loss benefits and when those benefits can be reviewed "is a topic fall- ing squarely within the tribunal's area of expertise" with which the court couldn't interfere. As a re- sult, the court could only deter- mine if the decision was reason- able and, if not, refer the matter back to the tribunal to take an- other look. The court found Hydro Ottawa didn't identify any discrepancy or inconsistency in the act or WSIB policies referred to by the WSIB and the tribunal; it just argued that there was only one possible interpretation of the act and policies — that Feath- erstone's future economic loss benefits be discontinued — and to find otherwise would lead to what Hydro Ottawa felt was an absurdity. Certainty key to workers' compensation system The court also found that the legislation and policies were "specific and unambiguous," and the tribunal's interpretation of them was "both reasonable and correct." It pointed to the tribu- nal's statement in its decision that "had the legislators intend- ed for the (WSIB) to continue to maintain administrative con- trol over injured workers per- petually, which could potentially cause large scale uncertainty, they would have done so explic- itly under the legislation." It was a key objective of the workers' compensation system to "pro- vide certainty to both employers and employees," the court said. "It was reasonable for the tri- bunal to interpret the legislative provisions and policy directives in a way that respected the legiti- mate legislative objective of fi- nality in the determination of an employee's entitlement to future economic loss benefits," said the court. "It was open to the tribu- nal to conclude that the (WSIB's) interpretation of the relevant provisions and policy directives had not led to an absurdity." The court dismissed Hydro Ottawa's appeal, finding the tri- bunal's decision allowing Feath- erstone's locked-in future eco- nomic loss benefits to continue until he reached the age of 65 while he worked for the utility was transparent, clear, and rea- sonable. For more information see: • Hydro Ottawa v. Ontario (Workplace Safety and Insur- ance Appeals Tribunal), 2019 CarswellOnt 694 (Ont. S.C.J.). Worker's return < pg. 1 Certainty an objective for workers' compensation system Credit: Shutterstock/Eric Buermeyer

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