) ) IDA HARY Applicant – v. –, 2010 ONSC 6795

CITATION : Hary v. Workplace Safety and Insurance Appeals Tribunal, 2010 ONSC 6795 DIVISIONAL COURT FILE NO.: 493/09 DATE: 20101208 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT JENNINGS, MOLLOY AND DALEY JJ.

BETWEEN: ) ) IDA HARY Applicant – and – HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO (WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL) Respondent )) )) )) )) )))) David Deluzio , for the Applicant Carol Zimmermann , for the Respondent ) ) ) HEARD at Toronto: December 8, 2010 MOLLOY J. (orally) [ 1 ] This case involves an application for judicial review of a decision of the Workplace Safety and Insurance Appeals Tribunal (“the Appeals Tribunal”) dated September 12, 2008 and its reconsideration by the Tribunal dated March 10, 2009, both of which refused benefits to the applicant under the Workplace Safety and Insurance Act, 1997, S.O. 1997, c.16, Sched.

A (“the Act”), on the grounds that her illness, interstitial lung disease, was not caused by work-related exposure to viruses. [ 2 ] Ida Hary was employed as a part-time registered practical nurse from 1991 to 2002 at the Hotel Dieu Grace Hospital in Windsor, Ontario. She submits that her position regularly put her in contact with patients who had respiratory diseases and viruses. In the fall of 2002, the applicant began to suffer shortness of breath, low energy and pain. She states that she applied for benefits in 2002 and was denied by the WSIB Appeals Resolution Officer.

There was a subsequent appeal to the Board from the Appeals Resolution Officer. The Appeals Resolution Officer held a hearing and found insufficient evidence had been given to confirm her claim of occupational exposure to dust, mould and viruses (subsequently the claim was amended to rely solely on viruses as the causation). [ 3 ] The applicant then appealed the decision of the Appeals Resolution Officer to the Appeals Tribunal, arguing essentially that she had been exposed to workplace viruses which caused her illness. A hearing was held on April 24, 2007.

The Appeals Tribunal heard testimony from the applicant and had a number of new medical reports before it. After making certain findings of fact in an interim decision, the Tribunal vice-chair sought to have an independent medical assessor, Dr. Cox, who holds expertise in this type of illness, answer specific questions after assessing the applicant’s condition and reviewing her reports and x-rays. [ 4 ] For written reasons dated September 12, 2008, the Appeals Tribunal denied Ms. Hary’s appeal.

The applicant sought reconsideration of that decision but was again unsuccessful. [ 5 ] The applicant submits that the Appeals Tribunal misinterpreted the medical opinion evidence that was before it or, alternatively, failed to reasonably weigh that evidence. She submits that the Appeals Tribunal abdicated its decision-making powers to its medical expert, Dr. Cox. Consequently, the applicant seeks an order quashing the Tribunal’s decision and a declaration that she is entitled to benefits under the Act , with a referral back to the Tribunal to assess the quantum of her claim.

[6] Both the Divisional Court and the Ontario Court of Appeal have confirmed that post-Dunsmuir v. New Brunswick, 2008 SCC9 , [2008] 1 S.C.R. 190, the applicable standard of review for decisions of the Appeals Tribunal is reasonableness: Rodrigues v.Ontario (Workplace Safety and Insurance Appeals Tribunal)

(2008) O.N.C.A. 719. As was held in Rodrigues there are no “furtherdegrees of reasonableness such as clearly irrational to be applied”; reasonableness is simply reasonableness, meaning that the test iswhether “there are no lines of reasoning supporting the decision that could have reasonably lead the Tribunal to reach the decision that itdid.” [7] In our opinion, the decision of the Appeals Tribunal meets the reasonableness standard and this application must therefore bedismissed. Relying largely on the opinion of Dr.

Cox, the Appeals Tribunal concluded that it was probable that the applicant’sinterstitial lung disease was idiopathic, whereas it was only speculative that the cause was exposure to viruses in the workplace. [8] We do not agree that in doing so the Appeals Tribunal misapprehended the medical evidence before it. The AppealsTribunal provided clear and compelling reasons for relying on the opinion of Dr. Cox when, except for the opinion of the family doctor,Dr. Sweet, the other medical reports in fact did not contradict his conclusion. Dr.

Sweet concluded that workplace exposure was themore likely cause but provided no medical analysis to support the opinion and she held no special knowledge of this type of illness. [9] The Appeals Tribunal’s reasons for this decision are clearly articulated and the conclusion is one that could reasonably havebeen reached on the evidence. The decision involved the weighing of various medical reports and conclusions with respect to the causeof the underlying illness. This is squarely within the Tribunal’s core area of expertise and is entitled to deference.

We see no basis tointervene. [10] The applicant argued that the Appeals Tribunal arrived at an unreasonable conclusion by improperly weighing the evidenceand then failing to apply s.119(2) of the Act. That

section requires the Tribunal to resolve a claim in favour of the applicant if theevidence, for and against, is approximately equal in weight. In our view, s.119(2) of the Act is not applicable to the present case becausethe Appeals Tribunal found on the evidence that it was more likely than not that the workplace did not contribute to her illness. Theevidence in this case was not found to be equal in weight and the Appeals Tribunal’s conclusion in this regard was reasonable. [11] We also do not accept the applicant’s submission that the Appeals Tribunal unreasonably abdicated its decision-making powerto Dr.

Cox, its medical assessor. It is clear from the reasons of the Appeals Tribunal that the evidence of Dr. Cox was only one piece ofthe total evidence considered and that the Appeals Tribunal did not feel bound to accept his opinion. Dr. Cox did not comment on thestandard of proof, legal causation or ultimate entitlement to benefits. [12] In the result, therefore, we find the decision of the Tribunal to be reasonable and this appeal is dismissed. JENNINGS J. [13] I have endorsed the Application Record, “Application is dismissed for oral reasons delivered today.

Costs not beingdemanded, no order as to costs.” MOLLOY J. JENNINGS J. DALEY J. Date of Reasons for Judgment: December 8, 2010 Date of Release: December 10, 2010

CITATION : Hary v. Workplace Safety and Insurance Appeals Tribunal, 2010 ONSC 6795 DIVISIONAL COURT FILE NO.: 493/09 DATE: 20101208 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT JENNINGS, MOLLOY AND DALEY JJ. BETWEEN: IDA HARY Applicant – and – HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO (WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL) Respondent ORAL REASONS FOR JUDGMENT MOLLOY J. Date of Reasons for Judgment: December 8, 2010 Date of Release: December 10, 2010