Canadian Employment Law Today

Canadian Employment Law Today | 7 Canadian HR Reporter, a Thomson Reuters business 2015 More Cases Hypertension following workplace accident not related to accident THE oNTArio Workplace Safety and Insurance Appeals Tribunal has denied a worker's claim for hypertension stemming from a work-related injury. e 43-year-old worker started his em- ployment as an assembler for a bus company in September 1997. On Nov. 3, 2010, he was working on the roof of a bus assembling parts when he was struck on the neck and head by a metal door and fell on his neck. e worker was taken to the hospital, where he was diag- nosed with whiplash and hypertension. e worker spent six weeks in the hos- pital and when he was released he began suffering from dizziness and nausea along with pain in his neck. However, after vari- ous tests were performed, no significant long-term injury was found. e worker re- ceived loss of earning benefits for the neck injury, but the Ontario Worker's Safety and Insurance Board (WSIB) found his hyper- tension was not work-related. e worker continued to have ongoing symptoms such as dizziness and nausea and insisted he didn't have them before the ac- cident. He said he couldn't lie down or look up or down without getting nauseated and vomiting. He was also limited to driving no more than 15 minutes at a time. He saw an inner-ear specialist and had several other tests that came back normal. None could find the cause of the worker's symptoms. In July 2011 the worker reported vomiting three times per day and he had gained 28 pounds since leaving the hospital. An assessment in August 2011 reported the worker engaging in "pain behaviour" and complaining about nausea, as well as dry heaving but not vomiting. He eventu- ally had to stop the testing. In November 2011, the board determined the worker had fully recovered from the injury and was able to perform the duties of his assembler position. A graduated return- to-work was approved with the intention of him performing his full duties and not requiring any benefits by Jan. 9, 2012. e worker worked for three hours on Nov. 18 and then said he had to go home to rest. He never returned to work, claiming his condition prevented him from working "in any capacity." He claimed he was at the point where he could only move around for 20 minutes a day. He challenged the deter- mination that he was fully recovered and argued his hypertension – which was still a problem – was related to the injury since he hadn't had it before the workplace accident. A WSIB medical consultant examined the worker and said it wasn't clear how the worker's head and neck injury could con- tribute to the development of hyperten- sion. ere was no other medical evidence supporting a causal connection between the worker's injury and his hypertension. Two medical reports – one in December 2011 and one in January 2012 – indicated the worker had "a number of medically un- explained symptoms" but no "significant abnormalities." e WSIB denied the worker's claim for hypertension and the worker appealed to the tribunal. e tribunal acknowledged that the worker suffered a neck injury in a workplace accident, but noted that "cardiovascular conditions of this nature (hypertension and high blood pressure) are usually underlying and the fact that it may only have been de- tected following the worker's accident does not necessarily mean that it arose out of and in the course of his employment." Further, the tribunal found the worker had undergone numerous tests and treat- ment, none of which could link the work- er's hypertension to his neck injury. e WSIB and its medical experts even gave the worker clearance to return to work in November 2011, said the tribunal. e tribunal also noted the documented instances of vomiting during assessments were really more like retching and dry heaving, and the fact the worker gained 28 pounds in the wake of the accident could have been a contributing factor to his state. "e worker received numerous special- ized medical investigations, including ob- jective diagnostic testing, which could not determine any diagnosis that was respon- sible for (the symptoms)," said the tribunal. e tribunal found on a balance of prob- abilities that the worker had not established entitlement to benefits for his hyperten- sion, nausea and dizziness in relation to his workplace injury. See Ontario Workplace Safety and Insurance Appeals Tribunal Decision No. 1950/14, 2014 CarswellOnt 16204 (Ont. W.S.I.A.T.). indicated CEVA stock no longer had value and it was unlikely shareholders would be able to recover their investment. Rodgers sued for wrongful dismissal, adding that CEVA induced him from se- cure and long-term employment and then terminated him without cause or reason- able notice. CEVA disagreed that Rodgers was induced and argued the employment contract specified his notice would be de- termined by his length of service, which was less than three years. e court found the employment con- tract did not give special emphasis to Rodg- ers' length of service, as it only stated notice should be determined based on "all appli- cable legal principles," and didn't mention only length of service. e court also found there was "some measure of inducement" that led Rodgers to leave his previous employment, as CEVA wooed him with an attractive financial package and signing bonus while he was still employed. In addition, the court found Rodger's age, the seniority of his position at CEVA and the fact he had worked in the industry for his whole career – thereby limiting his options of finding something similar after he left his old job – meant both sides could expect finding similar employment after his termination would be difficult. In ad- dition, the fact Rodgers was required to purchase CEVA shares made it evident long-term employment was expected. "I find that the required investment in CEVA Investments was intended to cre- ate the impression in the mind of (Rodg- ers) that by accepting employment with (CEVA) he would have a degree of job secu- rity beyond what would normally be antici- pated," said the court. Given these factors, despite the fact Rodgers was employed with CEVA for less than three years, the court found he was entitled to 14 months' notice. Based on his salary and bonuses, this was equal to more than $400,000, but with the severance pay he actually received and income from four months of employment he eventu- ally found, the actual amount of damages CEVA was ordered to pay was $345,985. See Rodgers v. CEVA Freight Canada Corp., 2014 CarswellOnt 16177 (Ont. S.C.J.). Some measure of inducement « from firEd ExEC on page 1 Cardiovascular conditions of this nature are usually underlying and the fact it was detected after the worker's accident doesn't mean it arose in the course of his employment.

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