WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1432/10

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1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1432/10 BEFORE: S. Martel: Vice-Chair HEARING: July 22, 2010 at Toronto Oral DATE OF DECISION: August 3, 2010 NEUTRAL CITATION: 2010 ONWSIAT 1799 APPLICATION FOR AN ORDER REMOVING THE RIGHT TO SUE APPEARANCES: For the applicants The Corporation of the Town of Lambton et al.: For the respondent Mr. McMillan: K. L. Denny, Lawyer Self-represented For the interested parties The Corporation of the City of Sarnia et al.: Did not participate For the interested party, System 55 Transport Inc.: Did not participate Workplace Safety and Insurance Appeals Tribunal Tribunal d appel de la sécurité professionnelle et de l assurance contre les accidents du travail 505 University Avenue 7 th Floor 505, avenue University, 7 e étage Toronto ON M5G 2P2 Toronto ON M5G 2P2

2 Decision No. 1432/10 REASONS (i) Introduction [1] This is an application under section 31 of the Workplace Safety and Insurance Act (WSIA) for a determination as to whether Mr. McMillan s legal action against the applicants is barred by operation of section 28 of the WSIA. [2] The applicants, The Corporation of the Town of Lambton, The County of Lambton Emergency Medical Services, Ms. Jessica Maitland and Mr. Todd Martin seek a determination as to whether Mr. McMillan s right to commence and maintain Action No in the Superior Court of Justice against them is taken away by section 28 of the WSIA. Ms. Denny represented the applicants at the Tribunal hearing. The other defendants in this action, The Corporation of the City of Sarnia and the Sarnia Fire Department, were notified of this proceeding but did not participate in the application. Mr. McMillan s alleged employer, System 55 Transport Inc., was also notified of the proceeding but did not participate in the application. Mr. McMillan attended the hearing and represented himself. [3] Ms. Denny and Mr. McMillan made submissions at the Tribunal hearing. I also entered 2 exhibits. (ii) Background [4] Most of the background facts are uncontested. [5] Mr. McMillan suffered serious injuries in an unfortunate motor vehicle accident that occurred just before 9:00 a.m. on April 21, 2004 on highway 402 in the City of Sarnia, County of Lambton. Mr. McMillan was driving a 1998 Mack trailer truck when his vehicle collided with the last vehicle in a line of commercial motor vehicles waiting to enter the United States via the Bluewater Bridge. [6] The Corporation of the County of Lambton operated ambulance services in the County of Lambton, otherwise known as The County of Lambton Emergency Medical Services. They responded to a 911 call made as a result of the accident. Ms. Maitland and Mr. Martin were dispatched to the scene where they assessed Mr. McMillan and provided him with medical care and treatment. They also requested a helicopter air ambulance. Ms. Maitland and Mr. Martin could only provide treatment to Mr. McMillan s upper body as his legs and feet were pinned in the cab of the truck. Ultimately, the firefighters had to extricate the worker from the truck. In his Statement of Claim, Mr. McMillan pleads that the firefighters negligently extricated him from the cab causing the structure of the cab to collapse and crush his legs. The Statement of Claim also pleads that after extrication, the paramedics refused to pick him off the ground forcing him to hoist himself up onto the stretcher on his own. [7] At the time of the accident, Mr. McMillan was an employee of System 55 Transport Inc., a Schedule 1 employer, in the course of making a delivery. The truck he was driving was owned by System 55 Transport Inc. [8] On the day of the accident, Ms. Maitland and Mr. Martin were paramedics employed by The Corporation of the County of Lambton.

3 Page: 2 Decision No. 1432/10 [9] Mr. McMillan is receiving benefits from the Workplace Safety and Insurance Board (WSIB) as a result of his injuries. (iii) Law and policy [10] Subsections 28(1)-(3) of the WSIA state: 28(1) A worker employed by a Schedule 1 employer, the worker s survivors and a Schedule 1 employer are not entitled to commence an action against the following persons in respect of the worker s injury or disease: 1. Any Schedule 1 employer. 2. A director, executive officer or worker employed by any Schedule 1 employer. (2) A worker employed by a Schedule 2 employer and the worker s survivors are not entitled to commence an action against the following persons in respect of the worker s injury or disease: 1. The worker s Schedule 2 employer. 2. A director, executive officer or worker employed by the worker s Schedule 2 employer. (3) If the workers of one or more employers were involved in the circumstances in which the worker sustained the injury, subsection (1) applies only if the workers were acting in the course of their employment. (iv) Issues [11] As submitted by Ms. Denny, this application raises the following issues: 1. Was System 55 Transport Inc. a Schedule 1 employer on the date of the accident? 2. Was Mr. McMillan a worker in the course of his employment with a Schedule 1 employer at the time of the accident? 3. Was The Corporation of the County of Lambton a Schedule 1 Employer at the time of the accident? 4. Were Ms. Maitland and Mr. Martin workers in the course of their employment with a Schedule 1 employer? 5. Are Mr. McMillan s injuries as a consequence of an accident in the course of his employment with a Schedule 1 employer? (v) Conclusions [12] The application is allowed for the following reasons. [13] As noted in the background portion of this application, most of the relevant facts are uncontested. Mr. McMillan does not dispute that he was an employee of System 55 Transport Inc. and that he was driving one of their trucks in the course of his employment at the time of the accident. He was carrying a load of black rubber mats for the automotive industry. His Statement of Claim states that at all material times he worked as a professional truck driver for System 55 Transport Inc. The WSIB has accepted his claim and is paying him benefits. I am

4 Page: 3 Decision No. 1432/10 therefore satisfied that Mr. McMillan was a worker in the course of his employment at the time of the accident. Mr. McMillan indicated at the Tribunal hearing that while he understood the purpose of this application, he simply cannot let go the issues he has with the extrication and the care he received after the extrication. While I am sensitive to these concerns, they are not directly relevant to this application. [14] The information the WSIB provided to the Tribunal with respect to The Corporation of the County of Lambton and System 55 Transport Inc is that they were both active Schedule 1 employers at the time of the accident. The applicants materials also include a WSIB Clearance Certificate for The Corporation of the County of Lambton, which indicates that one of its covered services is ambulance operation. There was no evidence or submissions contradicting the information from the WSIB. Accordingly, I am satisfied that The Corporation of the County of Lambton and System 55 Transport Inc. were Schedule 1 employers at the time of the accident and that The County of Lambton Emergency Medical Services are included in The Corporation of the County of Lambton s Schedule 1 account and therefore also protected by the WSIA. [15] With respect to Mr. McMillan s injuries, Ms. Denny submitted that the worker s injuries from the alleged negligent medical treatment occurred within a matter of hours of the initial collision and were reasonably foreseeable and part of the work injury. She relied in particular on Decision No. 2126/07 (October 25, 2007). I agree with Ms. Denny s submission. The further injuries that allegedly occurred in this claim happened within a matter of hours of the first injuries suffered at impact and should be considered part of the compensable injury. They occurred as a result of the initial accident pinning the worker in his truck. It is as a result of being pinned in the cab of his truck that the worker required extrication. It is also as a result of the impact and extrication that the worker required treatment from the paramedics. In accepting the worker s claim, the WSIB has itself not separated any injuries suffered as a result of any alleged negligent treatment as being non-compensable. As noted in Decision No. 2127/07, Tribunal jurisprudence has generally held that where further injury results from negligent medical treatment of the initial compensable injury, any such further injury is considered to be foreseeable and hence compensable under the WSIA. I agree with and adopt this principle. [16] Mr. McMillan s injuries were therefore as a result of a compensable accident that occurred while he was a worker in the course of his employment with a Schedule 1 employer. Accordingly, his right of action against The Corporation of the County of Lambton and The County of Lambton Emergency Medical Services is taken away because they are Schedule 1 employers. His right of action is also taken away against Ms. Maitland and Mr. Martin, who were workers of a Schedule 1 employer at the time of the accident.

5 Page: 4 Decision No. 1432/10 DISPOSITION [17] The application is allowed. [18] Mr. McMillan s right of action against The Corporation of the County of Lambton, The County of Lambton Emergency Medical Services, Ms. Jessica Maitland and Mr. Todd Martin is taken away by the WSIA. DATED: August 3, 2010 SIGNED: S. Martel