A recent blog post by lawyer Antony Singleton questions the way a recent decision by the Workplace Safety and Insurance Appeals Tribunal (WSIAT) has handled the legal presumption of entitlement in the Workplace Safety and Insurance Act.
The presumption of entitlement for injuries at work has existed since the first draft workers compensation legislation proposed by Sir William Meredith in his 1913 Report. Basically, the presumption says that if an injury happens while the person is working it is presumed to be work related unless it is proven to be unrelated to work.
Why this fundamental legal principle was introduced
The idea was first discussed at the hearings of the Meredith Royal Commission in an exchange with Andrew Miller, Business Agent for the Brotherhood of Carpenters, and Fred Bancroft, Vice President of the Trades and Labour Congress of Canada:
The Commissioner: “Now, one of these things that has created trouble under the British Act is where there is nothing to show how it did happen, and therefore it is left in doubt as to whether it happens in the course of a man’s employment. Now, it seemed to me that possibly it might be proper to provide that where the accident happened that there should be a presumption that it arose out of the employment unless the contrary be shown by the employer. Under the present law a good deal of hardship is created. A man is killed, nobody being present, and the death may have happened in two or three different ways, and sometimes a man’s representatives have failed because there was nothing from which a court or jury could draw properly the inference that he was killed owing to something that he was not himself responsible for. Do you follow what I mean?”
Mr. Miller: “A man being killed, without witnesses.”
The Commissioner: “Without witnesses. Ought it not fairly to be presumed that that accident arose out of his employment unless the employer shows the contrary.”
Mr. Bancroft: “Certainly. I would say the inference is if he was killed he was following his employment.”
[Ontario. Workmen’s Compensation Commission. Interim Report On Laws Relating to the Liability of Employers To Make Compensation to their Employees for Injuries received in the course of their employment which are in force in other countries. Toronto: King’s Printer, 1912. pp: 207-208. ]
How the Appeals Tribunal has applied it
This very type of accident was considered by the Workers’ Compensation Appeals Tribunal (now WSIAT) in a leading case decision in 1989 (Decision 42/89 ). The worker’s widow was appealing a decision by the Workers Compensation Board (now Workplace Safety and Insurance Board, WSIB) denying compensation for the death of her husband. The case arose out of the death by heart attack of the worker while working alone at a remote logging road work site. Nothing was known about the actual circumstances surrounding the worker’s death other than that he was found dead in the cab of his truck on the work site some six hours after he had last been seen by a co-worker.
The Tribunal found that the presumption had not been rebutted in this case because it was clearly possible that in the period prior to his heart attack the worker could have been involved in some especially stressful physical activity. And there was also a significant possibility that, had the heart attack not occurred while the worker was alone at a remote work site, he would have received CPR treatment that might have saved his life. In these circumstances it could not be shown that the employment was not a significant causative factor in the worker’s death. The appeal was allowed and the widow was entitled to survivors benefits.
The Tribunal’s decision built on a 1986 leading case on the definition of “accident” in workers’ compensation law (Decision No. 72). A sewing machine operator with pre-existing degenerative disc disease suffered a sudden unexpected escalation of pain symptoms while bending over to reach a piece of cloth on the floor. Since the injury occurred while she was working, her injury arose in the course of employment. This finding triggered the presumption that the injury arose out of her employment unless the contrary was shown.
The Tribunal said where there was a sudden unexpected injury in the course of employment, thus triggering the presumption, the question to be answered is:
- Has it been shown that the employment made no significant contribution to the occurrence of the injury?
In that case the question was difficult because there was a pre-existing degenerative disc disease and no obvious external employment-related cause. But the Tribunal considered the evidence and concluded that the evidence did not show that the employment made no significant contribution to the occurrence of the injury.
A need to uphold the purpose and legislative intent
However, in the recent WSIAT decision noted by Antony Singleton, the Panel did not take such careful consideration of the definition of “accident” and the presumption. The case involved a worker who suffered a serious knee strain while descending a set of stairs at her workplace (Decision No. 2986/17). She heard a loud popping sound while she walked down the stairs and her leg gave out, but nothing else was unusual about her descent—she didn’t slip, twist or fall.
The WSIAT panel denied workers’ compensation for the injury – they said there was no evidence the injury “arose out of her employment.” They did not ask the question described by the earlier Appeals Tribunal panel in Decision 72: has it been shown that the work made no significant contribution to the injury?
They asked the opposite question: is there evidence of an identifiable event that constituted a “work injuring process.” Although we have a presumption in the law for cases where there is no evidence either way, the panel is requiring evidence. Although they referred to the presumption, their interpretation effectively ignores it. The panel decided the accident did not arise from the worker’s employment.
As Singleton notes:
The absence of the purposive approach in the Stairs decision(No. 2986/17), and the Tribunal’s caselaw more generally, is a problem for workers. The WSIA (Workplace Safety and Insurance Act) and WSIB policy are complex. If important statutory provisions are unmoored from the “scheme” and “object” of the WSIA, it’s all too easy for appeals to become exercises in technical legal arcana that forget the fundamental principles of workers’ compensation that protect workers. We lose sight of the forest for the trees. That can only be to workers’ disadvantage.”
Change is Possible at WSIAT
The WSIAT made a similar decision in 2015. The worker was a caretaker at an office building. He was found dead from a heart attack in the washroom of the building at 8:43 am. There were no witnesses to when the worker arrived at work but he usually arrived around 7 am. It had snowed, it was minus 15 degrees Celsius. There were no witnesses to the worker’s activities that morning but the Panel found that he shoveled snow that morning but did not know how much.
In the first Decision 667/13 the Panel felt the worker was not engaged in unusual physical exertion at the time of his death and that his employment duties did not contribute significantly to his sudden cardiac death. The WSIAT denied compensation.
The worker’s estate requested the WSIAT to reconsider the decision. In Decision 667/13R WSIAT Chair D. Corbett noted that the first decision focused its analysis on the balance of probabilities, and only referred to the Statutory Presumption in passing. He felt that the worker’s unwitnessed death during working hours in the workplace is the type of situation which the Statutory Presumption was intended to address and this was an error of law which calls for a reconsideration. The Chair went back to Meredith’s interim report as quoted above and reviewed the case law and concluded that the worker’s death was compensable.
Let’s hope the WSIAT takes another look at the “stairs” Decision 2986/17.