WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 843/07

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 843/07 BEFORE: B. Kalvin : Vice-Chair HEARING: April 10, 2007 at Toronto Oral DATE OF DECISION: April 13, 2007 NEUTRAL CITATION: 2007 ONWSIAT 1004 APPLICATION FOR ORDER REMOVING THE RIGHT TO SUE APPEARANCES: For the applicant(s): For the respondent(s): B. Murphy, Lawyer A. Sostarich, Lawyer For additional party: 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. 843/07 REASONS (i) Introduction [1] This is an application under section 31 of the Workplace Safety and Insurance Act, 1997 (the WSIA ) by the Defendant in an action filed in the Ontario Superior Court of Justice between Randall Ross and others, Plaintiffs, and Germaine Smith, Defendant. The Plaintiff Randall Ross, who is the Respondent to this application, commenced an action on August 2, 2002, seeking damages for personal injury resulting from a motor vehicle accident when a car he was driving collided with one driven by the Defendant. [2] The Defendant Germaine Smith has brought this application seeking a declaration from the Tribunal that the action commenced by the Respondent is one which is barred by the WSIA on the ground that the Respondent s injuries are not attributable to the motor vehicle accident, but rather to a prior work-related back condition for which the Respondent has been compensated by the Workplace Safety and Insurance Board (the Board ). Alternatively, the Applicant seeks a declaration that the amount she is liable to pay in the civil action is limited by the WSIA. (ii) Background [3] The background to this application is as follows. In the late 1980s, the Respondent was working for a floor covering business when he sustained a back injury. The Respondent applied for, and was granted entitlement to compensation benefits by the Board. Investigations done at the time revealed that in addition to a back condition caused by the workplace accident, the Respondent was also suffering from a pre-existing degenerative disc disease. There is also evidence that the Respondent had sustained a prior workplace injury to his back in 1980, for which he was also compensated by the Board. [4] In 1990, the Board determined that the Respondent s compensable back injury had left him with a permanent impairment of his back. Accordingly, he was granted a permanent disability award which was rated at 15%. This rating was based on the opinion of a Board Pensions Medical Advisor, Dr. E. G. Florentine, dated June 27, 1990, which reads, in part, as follows: I estimate permanent residual disability at 15% with minor pre-existing and I anticipate deterioration in the future. [5] Between 1990 and 2000, the Respondent continued to suffer with back problems. It was determined that there were permanent restrictions on the Respondent s ability to perform certain kinds of work. In 1997, the Respondent was diagnosed as suffering from chronic pain syndrome. In 1998, the Respondent reported to the Board that he had suffered continuous back pain since the 1988 accident. [6] In July 2000, a CT scan showed significant problems with the worker s back, including a bulging disc.

3 Page: 2 Decision No. 843/07 [7] On September 3, 2000, the Respondent was driving a car which collided with one driven by the Applicant. Following the accident, the Respondent went to an after-hours clinic. The report of the treating physician records that the Respondent had been involved in a motor vehicle accident several hours previously, and was suffering from neck, mid, and low back pain, as well as a cervical strain. He was advised to take medication, apply ice and heat, and seek further treatment from his family physician. [8] At the time of the September 3, 2000 motor vehicle accident, the Respondent was not a worker for the purposes of the WSIA. For the previous five years he had been self-employed as a plastic welder. Self-employed persons are not entitled to compensation benefits under the WSIA unless they apply to the Board for optional insurance coverage under section 12. There is no evidence, nor is it alleged that the Respondent had taken out optional insurance under section 12, and accordingly, the Respondent was not a worker as defined by the WSIA at the time of the September 3, 2000 motor vehicle accident. [9] On November 20, 2000, the Respondent was involved in a second motor vehicle accident. No civil action has been commenced with respect to this second motor vehicle accident. [10] In October 2001, the Respondent s treating neurosurgeon, Dr. F. A. Ogundimu, advised the Respondent to undergo back surgery. Two procedures were recommended, namely a compression and a fusion. [11] Following this advice, the Respondent contacted the Board to inquire whether he would be entitled to further compensation benefits following his surgery. The Board responded by indicating to the Respondent that he would be compensated for those parts of his surgery which were attributable to his prior compensable back condition, but not for those which were attributable to the motor vehicle accidents, which the Board regarded as non-compensable under the workers compensation scheme. The Board indicated that its medical investigations revealed that the Respondent s compression surgery was related to his prior compensable injury, but that the fusion surgery was attributable to the non-compensable motor vehicle accidents, and therefore the Respondent would be compensated for the former, but not the latter. This information was conveyed to the Respondent in a letter from a Board Claims Adjudicator dated May 15, 2002, which reads, in part, as follows: You currently receive a fifteen per cent permanent disability for your low back condition. In view of two non-compensable motor vehicle accidents, your claim was listed with investigations to obtain details of these motor vehicle accidents and to obtain all medical information pertaining to your low back condition. Your claim file, including all the medical information, was referred to our medical consultants to determine compatibility between your compensable low back condition, the motor vehicle accidents and the surgery being recommended. The medical consultant felt you would have come to a decompression for the spinal stenosis with or without the motor vehicle accident. However, as far as the fusion goes, that appears to be related to the retrolisthesis and is probably more related to the motor vehicle accident than to the compensable condition.

4 Page: 3 Decision No. 843/07 In view of the medical opinion, expressed, the spinal decompression surgery for the spinal stenosis is considered related to your compensable injury; however, the motor vehicle accident also appears to have caused some additional pathology, which requires an extension of the surgery to include the fusion. The disc herniation at the L5-S1 level requiring a fusion is not considered related to your compensable injury. [12] In August 2002, the Respondent filed a statement of claim suing the Applicant for damages arising from the motor vehicle accident on September 3, The Respondent Statement of Claim alleges that the motor vehicle accident was caused by the Applicant s negligence and has left the Respondent with a variety of permanent disfigurements and impairments which include: headaches injuries to the neck injuries to the shoulders injuries to the back fatigue nervousness, depression, anxiety and irritability considerable pain and suffering and will continue to experience pain and suffering in the future loss of enjoyment of life and will continue to suffer from loss of enjoyment of life in the future other injuries which are not known but will be available prior to trial. [13] In October 2002, the Respondent had the decompression and fusion surgical procedures on his spine. [14] The Applicant responded to the Respondent s civil action by bringing this application under section 31 of the WSIA for a declaration that the Respondent s right to sue the Applicant is taken away, or alternatively, that the amount which the Applicant is liable to pay in that suit, is limited by the WSIA. (iii) Issue [15] As noted, the Applicant responded to the Respondent s civil action against it by bringing this application pursuant to section 31 of the WSIA. That provision reads as follows: 31(1) A party to an action or an insurer from whom statutory accident benefits are claimed under section 268 of the Insurance Act may apply to the Appeals Tribunal to determine, (a) (b) (c) whether, because of this Act, the right to commence an action is taken away; whether the amount that a person may be liable to pay in an action is limited by this Act; or whether the plaintiff is entitled to claim benefits under the insurance plan. (2) The Appeals Tribunal has exclusive jurisdiction to determine a matter described in subsection (1).

5 Page: 4 Decision No. 843/07 [16] Because the Respondent is suing with respect to a motor vehicle accident that occurred in 2000, this application is governed by the provisions of the WSIA, rather than by earlier incarnations of that statute. Accordingly, the issue which arises for determination on this application is whether the Respondent s right to sue the Applicant for damages arising from the motor vehicle accident of September 3, 2000 is taken away, or whether the amount which the Applicant is liable to pay in that action is limited by the WSIA. (iv) Analysis [17] Having considered the evidence and submissions put forward at the hearing of this application, I find that the application must be dismissed. My reasons for this conclusion are as follows. [18] The provisions of the WSIA which extinguish and limit the right to sue are set out in sections 27 to 31. Section 27 makes clear that the limits and restrictions on the right to sue only apply in situations where a worker sustains an injury which entitles that worker to benefits under the insurance plan established by the WSIA. Section 27 reads as follows: 27(1) Sections 28 to 31 apply with respect to a worker who sustains an injury or a disease that entitles him or her to benefits under the insurance plan and to the survivors of a deceased worker who are entitled to benefits under the plan. [19] In the instant case, the Respondent is suing with respect to damages which he alleges resulted from a motor vehicle accident on September 3, In my view, the Respondent is not entitled to benefits under the insurance plan for any injuries which he sustained as a result of that accident. The Respondent was not a worker at the time that the accident occurred. As noted earlier, he was self-employed. Further, there is no evidence that the Respondent was a deemed worker at the time, that is, a self-employed person who had taken out optional insurance coverage under section 12 of the WSIA. [20] There are circumstances in which a non-work-related second accident may give rise to compensation. Those circumstances are described in the Board s policy entitled Non-Work Related Second Accidents, contained in Operational Policy Manual Document # The policy reads as follows: Second accident If an injured worker has a second accident while receiving WSIB benefits, but the second accident is not caused by a work-related injury, there is no entitlement for the second accident. If the second accident is not caused by the work-related impairment/disability, but does aggravate it, one of the following may apply If the work-related impairment/disability is at, or near, full recovery, benefit payments may cease, with the concurrence of the WSIB medical consultant, or If the work-related impairment/disability is not at, or near, complete recovery, (e.g., a recently reduced fracture in which the second accident has caused a re-fracture at the same site), the aggravation of the work-related impairment/disability may be accepted with clinical concurrence.

6 Page: 5 Decision No. 843/07 [21] The policy allows entitlement to benefits for a non-work related second accident in two instances. First, if the compensable work-related injury caused the second non-work related accident. Second, if the non-work-related second accident aggravates the compensable work injury and the compensable work injury was not at or near complete recovery. [22] In this case, I find that the motor vehicle accident of September 3, 2000 would not entitle the Respondent to benefits from the Board under this policy. With respect to the first ground of entitlement, there is no evidence, or allegation, that the Respondent s compensable back condition caused the September 3, 2000 motor vehicle accident. [23] With respect to the second ground of entitlement under the policy, the Respondent had recovered from his 1988 compensable back injury as completely as he was ever going to. He had reached what in compensation terminology is referred to as maximum medical rehabilitation or recovery from the 1988 injury. The Board granted the Respondent a 15% permanent disability award following his 1998 injury. The Board would only have done this after determining that the Respondent had recovered as completely from that accident as he was going to and was still left with a permanent impairment. The Respondent s entitlement to benefits for his 1988 injury is governed by the pre-1989 Workers Compensation Act. Subsection (12) of that statute (since amended) reads as follows: For the purposes of this section, permanent disability means any physical or functional abnormality or loss, and any psychological damage arising from such abnormality or loss, after maximal medical rehabilitation has been achieved. [24] The fact that the Respondent never did recover completely from the 1988 work-related accident, but was left with a permanent impairment, does not mean, in my view, that he is entitled to benefits for any non-work-related aggravation of that condition forever. While the policy referred to above refers to complete recovery it is clear from the context that it intends to provide benefits for a non-work-related second accident if it occurs while the compensable injury is still in the recovery process. When the recovery process is at or near completion, then a subsequent non-work-related accident will not be compensable. [25] Two cases referred to in the Applicant s Section 31 Statement confirm me in the interpretation I have taken above. In Decision No. 307/04, a worker suffered a low back injury at work on November 17, Six days later, on November 23, 1986, the worker was involved in a non-work-related motor vehicle accident. The Panel ruled that the worker was entitled to benefits for the aggravation which the motor vehicle accident caused to his compensable work injury because the worker was not at or near full recovery from his compensable injury when the motor vehicle accident occurred six days later. In coming to that conclusion, the Panel noted that during the six days between the compensable and non-compensable accidents, the worker was actively being treated by his doctor and that his compensable injury was nowhere near resolution. In the instant case, there is a 12-year gap between the Respondent s compensable work injury and the motor vehicle accident. In my view, the Respondent s 1988 compensable injury had fully resolved by the time the motor vehicle accident occurred: it had been determined that he had reached maximum medical recovery from that injury, that he was permanently disabled, and that his condition might continue to worsen. It cannot be said, in my view, that the effects of his 1988 injury were still nowhere near resolution.

7 Page: 6 Decision No. 843/07 [26] The second case is Decision No. 878/02. In this case, a worker suffered a knee injury at work. She was expected to recover in three to six weeks. Approximately one month later, she re-injured her right knee in a non-related incident when she moved quickly to avoid traffic while crossing a street. In this case, the Panel ruled that the worker was entitled to benefits for the aggravation caused by the non-work-related accident because the work-related injury caused, at least in part, the subsequent accident. As noted earlier, in the instant case, there is no evidence or allegation that the Respondent s compensable 1988 back injury was a cause of the motor vehicle accident of September 3, In both Decision Nos. 307/04 and 878/02, there was a close temporal relationship between the work-related accident and the subsequent non-work-related accident. In neither case had the worker reached maximum recovery from the work-related accident, in the sense that the work-related injury was not going to get any better, when the second non-work-related accident occurred. [27] I find that any injuries which the Respondent sustained as a result of the motor vehicle accident of September 3, 2000, are injuries for which he would not be entitled to benefits under the insurance plan established under the WSIA. As noted earlier, the Board has already determined that the Respondent is not entitled to benefits for any injuries which were caused by the motor vehicle accident. In its letter of May 15, 2002, the Claims Adjudicator classified the Respondent s injuries which are attributable to the motor vehicle accidents as noncompensable. While the Tribunal is not bound by the Board s determination for the purposes of this application, I agree with the Claims Adjudicator s conclusion. [28] Since any injuries which the Respondent suffered as a result of the September 3, 2000 motor vehicle accident are not injuries for which he is entitled to benefits under the plan, sections 28 to 31 of the WSIA do not apply with respect to those injuries. Accordingly, there is nothing in those sections which removes or limits the Respondent s right to sue for any injuries which he sustained in that accident. [29] What has confused matters to some degree in this application, in my view, is that there is conflicting evidence in this case with respect to whether or not the Respondent sustained any significant injury, at least as far as his back is concerned, as a result of the September 3, 2000 motor vehicle accident. Some of the medical evidence suggests that the motor vehicle accident did worsen his back condition, whereas other medical evidence suggests that the Respondent s back condition is virtually solely attributable to his prior compensable workplace accident and pre-existing degenerative disease. However, this conflict in the evidence is not relevant to the issue to be determined on this application. The Respondent is entitled to sue for injuries which he sustained as a result of the September 3, 2000 motor vehicle accident. Whether or not, or to what extent he was injured in that accident is a matter to be resolved in the civil action. [30] The Tribunal has stated on several occasions that the truth or legitimacy of allegations contained in a Statement of Claim is not relevant to a right-to-sue application. It is not the Tribunal s function to make findings of fact with respect to those allegations. Rather, the Tribunal assumes that the harm alleged is true, and then determines whether there is anything in the WSIA which takes away or limits the plaintiff s right to sue for that alleged harm. In this case, the Respondent alleges that he suffered significant injuries, including injuries to his back, in the September 3, 2000 motor vehicle accident. Assuming that is true, there is nothing in the WSIA which prevents the Respondent from suing the Applicant with respect to those injuries. If

8 Page: 7 Decision No. 843/07 the Applicant believes that the Respondent s injuries are not attributable to the September 3, 2000 motor vehicle accident, but rather to some other cause, then that is a matter to be raised in defence at the civil trial. It is not a basis on which the civil action can be barred or limited by the WSIA.

9 Page: 8 Decision No. 843/07 DISPOSITION [31] The application is dismissed. DATED: April 13, 2007 SIGNED: B. Kalvin