WORKERS COMPENSATION APPEALS TRIBUNAL

WORKERS COMPENSATION APPEALS TRIBUNAL DECISION NO. 692/93 This appeal was heard in Timmins on October 15, 1993, by a Tribunal Panel consisting of: N. McCombie: Vice-Chair, S.L. Chapman: Member representative of employers, M. Cook : Member representative of workers. Post-hearing work was completed on November 17, 1994. THE APPEAL PROCEEDINGS The worker appeals the decision of Hearings Officer Y. St. Pierre, dated December 1, 1992. That decision accepted the WCB s apportionment policy and therefore found that the worker was not entitled to the full value of his hearing loss disability. The worker appeared and was represented by M. Dempsey. The last Ontario employer was notified of the hearing but did not participate. M. Quinn translated in the French language. THE EVIDENCE The Panel considered the material included in the Case Description prepared by the Tribunal Counsel Office (Exhibit #1). In addition, at the hearing we considered two Addenda (Exhibit #2 and #3) and documents relating to an Interjurisdictional Agreement ( IJA ) among Canadian Workers Compensation Boards (Exhibit #4). Following the hearing, the Panel and Mr. Dempsey received a new IJA, dated February 1993 (Exhibit #5) and a further Addendum, consisting of correspondence between the Tribunal Counsel Office and various Canadian Boards, including the Ontario Board (Exhibit #6). The Panel also heard oral evidence from the worker. Oral submissions were made by Mr. Dempsey at the time of the hearing. By letter dated November 14, 1994, Mr. Dempsey provided further written submissions. THE NATURE OF THE CASE There are no factual disputes in this case. The worker has an acknowledged occupational hearing loss which the WCB has estimated would normally attract a 4% permanent partial disability award. The worker, however, has been exposed to occupational noise in four jurisdictions: Manitoba, Ontario, Québec and Newfoundland and Labrador. The Ontario WCB estimated that the degree of occupational noise exposure in Ontario contributed no more than 60% to the worker s total hearing disability and therefore the worker s Ontario pension should be limited to 60% of 4%; that is, a 2.4% pension was payable by the Ontario Board. Mr. Dempsey is arguing that the Board has the authority under the IJA to pay the entire value of the pension; that is, the total 4%. 1

THE PANEL S REASONS (i) Background As is indicated, there is no disagreement concerning the facts of the case which can be summarized as follows: 1. The worker is a miner whose work history indicates that between 1956 and 1984 he worked a total of 15 years in Québec, 5 years in Ontario, 4 years in Newfoundland and Labrador and 1 year in Manitoba. Most of this work was with jack-leg drills. Between 1984 and 1991, the worker continued to have occupational noise exposure in Ontario. 2. The worker was diagnosed in 1984 as suffering from a noise-induced hearing loss. 3. The Ontario WCB initially determined that the worker was only entitled to medical aid benefits, citing the policy in place in 1984 which limited pensions to cases in which hearing loss was at 35 decibels or greater in both ears. 4. In this worker s case, the hearing loss was 35 db bilaterally, but it was determined that the worker was only employed in noise exposure for 55 months out of 218 in Ontario, or 25% of the total exposure. 5. In 1990, the Ontario Board determined that the total occupational deafness would result in a permanent partial disability of 2.4%. One quarter of that figure resulted in an Ontario pension of 0.6%. 6. In 1990 the worker s claim was again reviewed and it was determined that the total assessable disability had increased to 4.2%. It was felt that all of the increase in hearing loss had resulted from occupational noise exposure in Ontario, and therefore the difference between 2.4% and 4.2% - 1.8% - was added by the Ontario Board to the previous 0.6%. The result was that the Ontario Board granted a total award of 2.4%. 7. The worker applied for, and was denied, WCB benefits in the other jurisdictions in which he had occupational noise exposure. 1 8. The worker s representative argued before the Hearings Officer that the WCB policy which resulted in the worker s award being apportioned as it had, was ultra vires, and the Ontario Board should accept full responsibility for the total occupational hearing loss. The Hearings Officer, accepting the submissions of the WCB s then General Counsel, rejected the appeal. 9. At the hearing before this Panel, Mr. Dempsey pointed to section 134(13) and various interjurisdictional agreements among Canadian Workers Compensation Boards. In his submission, this section and these agreements gave the Board the authority to pay the worker the full value of his hearing loss disability. 1 Exhibit #6 contains correspondence from the Boards of Newfoundland and Labrador (August 16, 1994), Manitoba (August 17, 1994), and Québec (August 26, 1994), confirming this. The correspondence from Québec included an appeal decision dated October 26, 1981. 2

(ii) The Interjurisdictional Agreements It is apparent that since at least 1979 the Canadian Workers Compensation Boards have been considering cost-sharing arrangements in cases involving workers who are exposed to occupational hazards in more than one province. An agreement known as the Interjurisdictional Agreement for the Avoidance of Duplicate Assessments was negotiated through the Association of Workers Compensation Boards of Canada ( AWCBC ) and signed by 10 of 12 jurisdictions in 1979. That agreement was effective as of January 1, 1979. Nova Scotia and Prince Edward Island did not sign the agreement as those Boards did not have the statutory authority to enter into such an agreement. The agreement was signed by officials of the Ontario Board, pursuant to the authority found in section 6(8) of the Act then in effect. That section, as it then read, provides: 6(8) With a view to avoiding duplication of assessments to which an employer may be liable on the earnings of employees who are employed part of the time in Ontario and part of the time in another province or territory of Canada, the Board may make an agreement with the employees compensation authority of that province or territory for such adjustment of assessments as is equitable and may reimburse such other authority for any payment of compensation, rehabilitation or medical aid made by it under such agreement, and may, in order to give effect to any such agreement, relieve any such employer from assessment or reduce the amount thereof. 2 Item 6.6 of the 1979 agreement stated that the agreement did not apply to, among other things, industrial deafness, which cannot be causally related exclusively to the worker s period of employment in the jurisdiction in which the worker was temporarily employed outside his own jurisdiction. [emphasis added] At the August 1983 AWCBC convention, a new IJA was presented ( the 1983 IJA ). At that time, it was noted that this agreement would, among other things, also provide a basis for interjurisdictional co-operation on claims for industrial diseases. 3 The agreement, Interjurisdictional Agreement on Workers Compensation, was then signed by the Chairs of all the Boards (except for the Manitoba Chair), subject to later approval of the Appendices for Section 8, Responsibility for Adjudication and Payment for Occupational Diseases. It might be noted in passing that the chair of the AWCBC committee was the Vice-Chairman of Administration of the Ontario Board, who noted that he had been involved in all the committees on this subject for close to fifteen years. 4 2 3 4 There have been no substantial changes to what is now section 8(8) of the current Act since 1979. Report of the Board Members General Agenda Session, AWCBC, August 23, 1983, p.5. Ibid. 3

In the development of the Appendices, there was a concern about the various Boards statutory authority to enter into an agreement to share responsibilities for occupational diseases inter-provincially. The Ontario Act at that time contained provisions for cost sharing for two diseases. Section 122(12) deals with silicosis claims. Section 122(13), deals with hearing loss claims, and reads: 122 (13) Notwithstanding any other provision of this Act, the Board may enter into an agreement with the appropriate authority in any other province or territory of Canada to provide for the sharing of costs of industrial noise induced hearing loss claims in proportion to the actual or estimated amount of exposure in Ontario to industrial noise which contributed to the hearing loss. 5 In other words, while there may have been no explicit statutory authority to enter into a general interjurisdictional agreement on occupational disease, there was explicit authority to do so with respect to silicosis and hearing loss. Meanwhile, the implementation of the appendices to section 8 of the agreement continued to be deferred, pending legislative changes in the various jurisdictions. In 1984, the Ontario Act was amended to remove the reference to silicosis in what was then section 122(12) and replace it with a general provision, proclaimed in force as of April 1, 1985: (12) Notwithstanding any other provision of this Act, the Board may enter into an agreement with the appropriate authority in any jurisdiction in Canada to provide for the apportionment of the costs of the claims for industrial diseases for workers who have had exposure employment in more than one Canadian jurisdiction. These legislative changes did not alter section 122(13), now section 134(14). On December 18, 1985, the Acting Secretary of the Ontario Board wrote to the Executive Director of the AWCBC indicating that the Ontario Board subscribes fully to the provision of Section 8 of the Agreement. In a letter from the Executive Director to the Chair of the Ontario Board, dated April 26, 1988, it was noted, Section 8 did not become operative until January 1, 1986, when a majority of member jurisdictions could participate fully or in a limited way. Workers Compensation Acts are, generally speaking, within the jurisdiction of the provinces and territories. This means that, absent such an interprovincial agreement, a worker whose job takes him or her to employers in different provinces would not be entitled to compensation for the cumulative effects of workplace exposure in the same way as a worker whose exposure history is all within one province. Section 8 of the IJA was intended to correct this situation. Under its provisions, a worker could file a claim in the jurisdiction of residence, and the cumulative exposure from all participating jurisdictions would be considered in adjudicating entitlement. If benefits were payable, they would be paid by the Board in the jurisdiction of residence. That Board would then seek reimbursement from any 5 Found in the current Act at section 134(14). 4

other participating jurisdiction (or jurisdictions), in proportion to the worker s exposure in that jurisdiction. The underlying principle is summarized in section 8.7: (iii) Each of the Boards party to this agreement undertake to ensure that through the provisions of this agreement and mutual co-operation, that no worker disabled as a result of disease causally related to employment in Canada, is denied fair and equitable compensation. The Ontario Board s position concerning the 1983 IJA The application of the 1983 IJA arose in Decision No. 62/91I (April 21, 1992). That interim decision directed that the Board be asked a number of questions concerning its policy. (The facts in Decision No. 62/91, it should be noted, dealt with vibration-induced white finger disease, not hearing loss.) In response to that Panel s questions, G. Perry, the WCB s then General Counsel provided extensive submissions in a letter dated May 31, 1993. These submissions, which were included in the material before this Panel, outlined a history of the development of section 8 of the 1983 IJA. Ms. Perry quoted from minutes of a meeting of WCB Chairs, held on January 15, 1987. Those minutes report that section 8 had still not been formally ratified but that the provisions had a de facto application since they reflect the current working practice in Alberta, Saskatchewan, Ontario Quebec and Newfoundland. These minutes, prepared by the then Executive Director of the AWCBC, K. Harding, went on to note that: In such claims those Boards have given written assurance that they will administer on the basis of the terms of the Agreement which provides as a first principle that, if a worker has had sufficient exposure to facilitate some entitlement in that jurisdiction, then that Board will accept the claim in its entirety without seeking to shift bits and pieces of the liability to other Boards on the basis of fragments of exposure over the worker s lifetime. Ms. Perry noted that, despite this, the Ontario Board had been unable to find any evidence of such current working practice, nor the written assurances referred to by Mr. Harding. According to these submissions, and keeping in mind that they were in response to an interim decision dealing with vibration-induced white finger disease, it was the position of the Ontario Board that, while the 1983 IJA was signed by the Chairman and Vice-Chairman of Administration, the Ontario Board did not at that time have the authority to enter into such an agreement. The only statutory authority to enter into an agreement concerning occupational disease claims at that time dealt with claims for silicosis and noise-induced hearing loss. According to Ms. Perry the two Ontario Board officials could approve section 8 of the agreement in principle only. This approval, it was noted, was not ratified by the then governing body of the Ontario Workers Compensation Board, the commissioners of the Board. 5

Ms. Perry s submissions go on to note that after the Act was amended in 1985 to provide the general authority to enter into such an agreement, it was the sole authority of the new governing body -- the board of directors -- to approve the IJA. This authority had never been delegated and had never been exercised. Therefore, according to Ms. Perry s submissions, section 8 of the 1983 IJA was never formally approved by the Ontario Board, no policies or guidelines were ever promulgated and no mechanisms for cost sharing ever established. The question of the IJA application was therefore, in Ms. Perry s submission, moot. In response to these submissions to the Decision No. 62/91I Panel, D. Revington from the Tribunal Counsel Office submitted that the Board s position was confusing. He noted, among other things, that there was an indication in 1984 that, section 8 had not been ratified by a reasonable number of Boards, and that In the meantime, the old Agreements on industrial diseases will remain in effect although in reality they are never used. 6 Mr. Revington wondered what the old agreements had to say. And this Panel would add, why were they never used? As noted, the issue in Decision No. 62/91 was entitlement for vibration-induced white finger disease. The Panel concluded on the facts before it that the worker's exposure to occupational vibration within Ontario alone was such as to allow for entitlement and the Panel did not have to consider the effects of the IJAs. (iv) Recent developments -- the new IJA In the early 1990s the Canadian Boards adopted yet another IJA, effective October 1, 1993. Section 7 of the 1993 IJA, deals with Responsibility for Adjudication and Payment for Occupational Diseases -- exactly the same title as section 8 of the 1983 IJA. The provisions of section 7 of the 1993 IJA are similar to those found in section 8 of the 1983 IJA. As noted, the effective date of the 1993 agreement is October 1, 1993. As of that date, the 1979 and 1983 IJAs shall cease to have effect 7. In a post-hearing enquiry, the Panel sought clarification from the Ontario Board as to whether there was any retroactive or retrospective effect of this agreement on a case similar to the one before the Panel. In a letter from WCB Legal/Policy Analyst N. Norvack, dated July 27, 1994, it is indicated that the Ontario Board takes the position that the agreement only applies to claims with a date of diagnosis on or after March 1, 1992. This date is said to be the effective date of the Reimbursement Guidelines, appended as Appendix C to the 1993 IJA, although there is nothing in the IJA or Appendix C itself to indicate such an effective date, or indeed any date. Of direct relevance in the present case is the Board s interpretation of the application of the 1993 IJA. Mr. Norvack s letter indicated that, 6 7 From the minutes of the 58th AWCBC convention, July 22, 1984. Section 15.3 of the 1993 IJA. 6

...as the worker s claim was registered with the Ontario Board in 1984, the date of diagnosis was not on or after March 1, 1992. As a result, the Reimbursement Guidelines do not apply to this case. The Reimbursement Guidelines, as the name implies, deal with inter-board accounting procedures and not with claims adjudication or benefit payments to workers. Despite this, we assume the Board s position to mean that not only should the worker not get the benefit of the change in policy retroactive to the date that the claim was filed, but that he should not get the benefit of the change in policy from the date of the change onward. In other words, a worker would receive the full value of a pension if a hearing loss diagnosis was made after March 1, 1992, while a co-worker, with the same work history, whose hearing loss was diagnosed in February 1992, would not only receive only a proportion of the full value, but that pension would not be adjusted from March 1, 1992, onward. (v) The Panel s conclusions As will be seen from the above, there has been a long and convoluted trail taken by the various Canadian Workers Compensation Boards in their attempt to provide protection for workers who work, such as this worker did, in more than one jurisdiction. The Boards appear to have been working since around 1968 on what seems, on the face of it, a fairly simple proposition: occupational exposure in all participating jurisdictions would be considered in adjudicating occupational disease claims and the cost of the claim would be distributed among the participating Boards on a pro rata basis. It is of some interest to note the 1988 letter from the AWCBC Executive Director. This letter noted the principle involved in section 8 of the 1983 IJA, then continued: There is to be generally no cost sharing or reimbursement in these types of claims between member jurisdictions as such was done away with in 1982 under the Agreement for Avoidance of Duplicate Assessments. The rationale for not cost sharing is that there are very few dollars involved and considerable administrative work would be required to trace costs. 8 For reasons that still are not clear, the general principle of country-wide protection does not seem to have been achieved until the 1993 IJA. It seems clear on the face of it that a worker who is today diagnosed as suffering from an occupational hearing loss arising from occupational noise exposure in various Canadian jurisdictions, would receive full value of any ensuing benefits and would not have his or her entitlement apportioned by the Ontario Board. 9 This does not apply, however, in the current case, in which the hearing loss diagnosis was given in 1984. Mr. Dempsey takes the position that even if the 1993 agreement does not apply due to the 8 9 Letter from J. Wisocky to R.C. Elgie, then Ontario WCB Chair, April 26, 1988. Emphasis added. This should not necessarily be taken as a given, however. The Operational Policy Manual deals with adjudication of noise-induced hearing loss claims in two documents, #04-03-06 and #04-03-10. The latter policy deals with claims after January 2, 1990. This policy, in part, flatly states, Hearing loss attributable to out-ofprovince exposure is non-compensable. This policy is dated July 23, 1993, and has not been amended as of Transmittal No. 37 of the Operational Policy Manual, October 1995. 7

timing of the claim, the 1983 IJA does apply. Mr. Dempsey also argues that there is no statutory authority for the Ontario Board to apportion a hearing loss pension on the grounds that a portion of noise exposure occurred with employers outside of Ontario. He argues that as section 134(13) provides for the sharing of costs among jurisdictions, the full value of the disability should be recognized by the Ontario Board. In considering this case, it is worthwhile to review some fundamental principles concerning the Workers Compensation Act. The Act is provincial in scope and generally speaking has no application beyond the jurisdiction of the province of Ontario. In Decision No. 462/88 (November 23, 1988), for example, the Panel read in the words in Ontario to what is now section 17. It noted that there is a presumption that a provincial legislature does not intend its legislation to operate beyond its territorial limits. That being said, the Legislature has included specific provisions aimed at various combinations of employers, workers and accident sites being out of province. These are catalogued in section 8 of the current Act 10. Section 8(7), however, specifically provides that: 8(7) Except as provided in this section, no compensation is payable under this Part where the accident to the worker happens while the worker is employed elsewhere than in Ontario. This is a clear direction that, barring a specific direction to the contrary, compensation benefits are limited to workers, employers and accident locations within Ontario. This basic premise has had long-standing judicial endorsement, for example: The scheme of the (Workers Compensation) Act is not one for interfering with rights outside the Province. It is in substance a scheme for securing a civil right within the Province. 11 We must therefore start from the premise that the Act, in a case such as this, only applies to a worker s Ontario exposure. While Mr. Dempsey argues that this approach would violate the thin-skull rule, we do not agree. Section 43(1) of the pre-1985 Act provided that permanent partial disability compensation is payable when a disability results from the injury. In those circumstances the impairment of earning capacity of the worker shall be estimated from the nature and degree of the injury, and, general constitutional and judicial principles would add, of the injury in Ontario. That being said, it is obvious that there are provisions that give the Ontario Board the authority to enter into agreements with other Canadian jurisdictions that would allow it to pay the costs of an entire claim and to share the costs of such claims. Specifically there are the provisions found in subsection 8(8), subsection 134(13) and, most importantly, subsection 134(14). There is no doubt that the Ontario WCB has had the ability throughout the life of this worker s claim to, 10 11 Formerly section 6. Viscount Haldane in Workmen s Compensation Board v. C.P.R.. Co. (1919), 48 D.L.R. 218 at p 222. 8

enter into an agreement with the appropriate authority in any other province or territory of Canada to provide for the sharing of costs of industrial noise induced hearing loss claims in proportion to the actual or estimated amount of exposure in Ontario to industrial noise which contributed to the hearing loss. There is also no doubt that, as of August 1983, when the agreement was signed in principle, or at least December 1985, when the Acting Secretary of the Board confirmed adherence to the section 8 provisions, senior officials from the Ontario Board had entered into such an agreement. It is implicit that this agreement was on behalf of the Workers Compensation Board and one would expect to be able to rely on the undertakings of the WCB Chair, Vice-Chair of Administration and Acting Secretary to the Board. The initial response of the current Board, when questioned in later years, was by way of a memo from G. Perry to the Hearings Officer in this case, dated August 5, 1992: As far as I have been able to ascertain, the Board has not implemented section 8 of the Agreement and does not have a mechanism in place to recover the costs associated with the out-of-province portion of an industrial disease claim in which the worker has suffered exposure in more than one Canadian jurisdiction. Ms. Perry then refers to the Operational Policy Manual, Document #08-01-06. This document does specifically exclude, claims for industrial disease from its application. It is not clear, however, to what this policy document refers. Dated September 1989, it makes reference to an interjurisdictional agreement, signed under the authority of section 8(8), the section which deals with avoiding the duplication of assessments, not section 134(14) which deals with hearing loss. The interjurisdictional agreement in question is not identified and we have no idea which one it is. 12 In her submissions to the Decision No. 62/91I Panel, dated May 31, 1993, Ms. Perry takes the position, as we understand it, that the Chairman and Vice-Chairman of Administration who signed the IJA in 1983, did not have the delegated authority to do so, and neither the pre-1985 commissioners of the Board, nor the post-1985 board of directors approved the agreement. Ms. Perry s submissions do not cite the statutory source of this contention. It is worthwhile to note that the pre-1985 Act provides that the Chairman is the full-time chief executive officer of the Board, and the Vice-Chairman of Administration is the full-time chief administrative officer of the Board and shall perform his duties under the general supervision of the chairman. In addition to these two positions, there was the position of Vice-Chairman of Appeals and between two and four commissioners of appeals. This group of five to seven constituted the 12 Again, as of Transmittal No. 37 of the Operational Policy Manual, October 1995, there has been no amendment to this document that would reflect the adoption of the 1993 IJA. The policy authorities that are referred to in this document are the former Claims Services Divisional Administrative Guidelines, dated May 1958 and February 1963, and a Board minute dated November 1961. 9

Board. 13 The duty of the commissioners, was to assist the vice-chairman of appeals in the performance of his duties. Those duties were to be the full-time chief appeals officer of the Board. 14 In reviewing the above we conclude the following: 1. The general application of the Act is to employment, and therefore exposure, within Ontario. 2. The Ontario WCB has the authority to enter into agreements with other Canadian jurisdictions. It had the specific authority in 1984 to enter into an agreement concerning the sharing of costs in claims involving occupational hearing loss. 3. In August 1983, a responsible authority from the Ontario Board -- the Chairman -- signed an agreement in principle to eliminate provincial barriers to the payment of workers compensation claims. In December 1985, the Ontario Board s Acting Secretary had indicated that this agreement include acceptance of section 8 which covered occupational disease claims exposure at a national level. While the authority to make these agreements has been called into question, there is no evidence that these authorities were not acting on behalf of the Board and we assume, lacking evidence to the contrary, that these agreements were entered into legitimately and in good faith. 4. We are not convinced that the failure by the Ontario Board to implement the agreement or the failure to arrange cost transfer mechanisms among the Boards, renders the agreement void. We note the 1988 letter from the Executive Director of the AWCBC and his indication that the agreement became operative [as of] January 1, 1986. This is particularly true given the contention in this letter that there were very few dollars involved. 5. A plain reading of section 8.7 of the 1983 IJA provides that the worker in the current case would be entitled to the full value of the 4% assessed permanent partial disability. He was a worker whose disease was causally related to employment in Canada who was denied fair and equitable compensation. 6. We accept that the IJA cannot be seen to be retroactive and that a worker is only entitled to the full value of a pension as of the date that the agreement was accepted by all participating jurisdictions. 7. This full value should commence as of the date that the 1983 IJA was said to have become operative; that is, January 1, 1986. THE DECISION The appeal is allowed in part. The worker is entitled to the full value of his hearing loss pension as of January 1, 1986. 13 14 Respectively, sections 63(1), 63(2) and 57 of the pre-1985 Act. Respectively, sections 63(4) and 63(3) of the pre-1985 Act. 10

DATED: November 30, 1995 SIGNED:N. McCombie, S.L. Chapman, M. Cook 11