) ) LINA LOCHNER Applicant – v. –, 2017 ONSC 6657

CITATION : Lochner v. WSIAT, 2017 ONSC 6657 DIVISIONAL COURT FILE NO.:168/17 DATE: 20171116 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT FRAGOMENI, PATTILLO AND FIRESTONE JJ. BETWEEN: ) ) LINA LOCHNER Applicant – and – WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL Respondent )) )) )) )) )) ) Silvano Lochner, on behalf of his mother, the Applicant, with leave Andrew Lokan , for the Respondent ) ) ) HEARD: October 25, 2017 L. A.

PATTILLO J.: Introduction [ 1 ] The Applicant, Lina Lochner, brings this Application for judicial review of the May 31, 2016 decision (the “Decision”) of the Workplace Safety and Insurance Tribunal (the “Tribunal”).

The Tribunal dismissed the Applicant’s appeal from a decision of an Appeals Resolution Officer (“ARO”) dated December 3, 2015 which, in turn, dismissed her appeal from the March 12, 2015 decision of a Non- Economic Loss (“NEL”) Clinical Specialist at the Workplace Safety and Insurance Board (“WISB” or the “Board”) which denied the Applicant’s request to have her NEL benefit, previously paid to her as a lump sum, converted to a monthly payment, retroactive to 1993 and ongoing. [ 2 ] The Applicant requested a reconsideration of the Decision which was denied by the Tribunal on May 26, 2017. [ 3 ] The Applicant subsequently commenced a further judicial review application of the reconsideration decision on September 20, 2017 (Court File No. 552/17).

The Respondent then brought a motion returnable October 20, 2017 for an order consolidating both the Application and application 552/17 in order that they be heard by the court at the same time. On October 17, 2017, prior to the motion being heard, the Applicant served and filed a notice of abandonment of application 552/17. Preliminary Matter [ 4 ] The Applicant is 87 years old and was in a wheelchair at the hearing. At the outset of the submissions, the court granted leave

to Silvano Lochner, the Applicant’s son, to make submissions on her behalf on the condition that he conducts himself in a proper manner. Mr. Lochner agreed to the condition and, for the most part, abided by it. Background [ 5 ] In order to consider the issues raised by the Applicant, it is first necessary to set out in some detail the background prior to the Applicant’s 2015 request to the Board to have her NEL benefit converted to a monthly payment, retroactive to 1993. [ 6 ] On May 21, 1993, the Applicant, who was 60 years old at the time, injured her back in a fall at her daycare.

The Applicant made a claim to the Board (then the Workers Compensation Board) and on June 4, 1993 she was granted a 20% NEL award for her Chronic Pain Disability (“CPD”). [ 7 ]

Section 42 of the Workers Compensation Act , R.S.O. 1990 c. W. 11 (“WCA”) which was in force during the material times, provided: 42(1) A worker who suffers permanent impairment as a result of an injury is entitled to receive compensation for non-economic loss in addition to any other benefit receivable under this Act. 42(2) The compensation for a worker's non-economic loss from an injury is determined by multiplying, (

a) the percentage of the worker's permanent impairment arising from the injury as determined by the Board; and (b) $45,000, (

i) plus $1,000 for each year of age of the worker under forty-five years at the time of the injury, to a maximum of $20,000, or (ii) minus $1,000 for each year of age of the worker over forty-five years at the time of the injury, to a maximum of $20,000. 42(3) If the compensation for non-economic loss is greater than $10,000, it shall be paid as a monthly payment for the life of the worker unless the worker elects to receive the compensation as a lump sum. 42(4) If the compensation for non-economic loss is less than or equal to $10,000, it shall be paid as a lump sum. [ 8 ] In accordance with Board Policy (Operational Policy Manual, Document No. 18-05-04) the $10,000 threshold was indexed annually from 1990 and is applicable for the year in which the worker reached maximum medical recovery (“MMR”).

In respect of the Applicant, the MMR year was 1992 and the threshold amount for that year was $10,941.33. [ 9 ] In the Applicant’s case, the compensation formulae in s. 42(2) of the WCA in respect of her NEL award produced a benefit amount of $7,241.25 which, because it was below the above threshold, was paid to her as a lump sum in accordance with s. 42(4) of the WCA. [ 10 ] The Applicant challenged the 20% rating. On July 21, 1993, a Board NEL Medical Coordinator concluded that the Applicant’s impairment should have been 25%.

The Applicant was advised of this decision on July 29, 1993, and the Board subsequently sent a cheque to her for $1,805.25 to reflect the increased award plus interest. [ 11 ] The Applicant further objected to the Board’s 25% award and appealed it to a Board Hearings Officer who denied the appeal and confirmed the 25% award. The Applicant then appealed to the Tribunal.

On April 21, 1995, following a hearing, the Tribunal released a decision which offered the Applicant two options: she could return to the Board to have her NEL rating reviewed, as the Board had gained additional experience in rating CPD NEL awards since 1993; or she could proceed with her appeal. [ 12 ] The Applicant chose the former option and was subsequently referred for another NEL assessment by the Board on September 26, 1995. Following the assessment, the Applicant’s NEL award was increased to 35%.

In December, 1995, the Applicant was paid $4,974.11 which amount represented the increase in her NEL award from 25% to 35% plus accrued interest. [ 13 ] Excluding interest, the total NEL payments made to the Applicant were $11,488.75. [ 14 ] In 2015, almost 20 years later, the Applicant contacted the Board and asked that the NEL benefit, previously paid out to her as a lump sum, be converted to monthly payments, retroactive to 1993 and ongoing. The ARO Decision

[ 15 ] On March 12, 2015, an NEL Clinical Specialist denied the Applicant’s request. The Applicant did not agree with the decision and the matter was eventually referred to an ARO who, on September 3, 2015, also denied the Applicant’s request. The ARO rejected the Applicant’s submission that her total compensation exceeded the threshold as provided by s. 42(3) of the WCA and Board Policy and accordingly should have been paid as a monthly payment for life. The ARO concluded that each of the NEL payments must be paid in accordance with the applicable legislation and policy at the time the benefit was issued.

As each of the three payments was below the threshold, they were properly paid as lump sums. The Tribunal Decision [ 16 ] The Decision of the Tribunal was given by Vice-Chair Nairn. After setting out s. 42 of the WCA and the applicable Board Policy concerning compensation for NEL and the submissions of the Applicant, Vice-Chair Nairn stated at para. 36 of the Decision: While I acknowledge the submissions made by the worker’s representative, I cannot agree with them. In my view, the worker received entitlement for CPD on only one occasion.

As noted by the ARO [WSIB Appeals Resolution Officer], following the initial granting of entitlement, the amounts were subsequently re-determined and increased by $1805.25 in July 1993 and $4,974.11 in December 1995. Like the ARO, I do not accept that the worker’s NEL compensation was paid in installments. The Board would have reviewed the worker’s NEL entitlement being satisfied that there had been a significant deterioration in her condition. I do not interpret the Board’s policy to suggest that the payment options are dependent upon the cumulative total of benefits paid to the worker.

In my view, the use of the word “automatically” in Board policy (i.e. where the NEL benefits are at or under the threshold, the amount is automatically paid to the worker as a lump sum”, suggests there was no intention to revisit initial payment options on redeterminations or reconsiderations, particularly when the NEL was correctly paid initially under the Act, and the amounts paid upon redeterminations are under the threshold.

The emphasis seems to be on efficient and expeditious payment of smaller NELs. [ 17 ] Vice-Chair Nairn found, like the ARO, that the required legislative and policy thresholds for the monthly payments were not met for each award and the amounts were appropriately paid as lump sums. [ 18 ] Finally, Vice-Chair Nairn found the facts of the case were not sufficiently exceptional such that it would be manifestly unfair to apply Board policy which required the Applicant to receive her NEL benefits in a lump sum.

The Reconsideration Decision [ 19 ] The Applicant’s request for reconsideration was heard by the Tribunal on May 10, 2017. In a decision dated May 26, 2017, Vice-Chair Martel dismissed the Applicant’s request on the ground that Vice Chair Nairn’s

interpretation of s. 42 of the WCA was reasonable, practical and consistent with Board policy (the “Reconsideration Decision”). [ 20 ] Vice-Chair Martel stated at paras. 24 of the Reconsideration Decision: Subsection 42(3) of the pre-1997 Act states that if compensation for non-economic loss is greater than $10,000, it shall be paid as a monthly payment for the life of the worker unless the worker elects to receive the compensation as a lump sum. While one possible

interpretation of this provision is that the reference to “compensation” is intended to mean the total amount after any reconsiderations and/or appeals, another possible

interpretation is that the threshold amount refers to the amount of compensation as it is awarded. This latter

interpretation is consistent with Board policy, which requires that a NEL benefit under the threshold amount is “automatically” paid as a lump sum. The term “automatically” indicates that the method of payment is determined when the initial payment is made and not at the end of a potentially lengthy appeal and/or reconsideration process. The Board’s

interpretation and its policy avoid the impracticality of a situation like this case where the Board would have to request that a worker pay back a previously paid lump sum because a successful reconsideration has now resulted in a higher NEL award such that the compensation should now be paid monthly. I doubt that in 1995 the worker would have appreciated being asked to repay the prior lump sums paid to her so that the Board could then start paying her a monthly benefit.

I note in this respect that the worker did not request that the NEL award be converted to a monthly payment until 2015, twenty years later when she had the benefit of hindsight as to the best financial option, which also more than likely did not result in any onerous return of monies previously received. The Issues [ 21 ] The Applicant raises the following issues before us: 1. Vice-Chair Nairn’s finding of fact that that there were subsequent re-determinations of the Applicant’s NEL benefit was unreasonable in light of the fact there was only one determination of the Applicant’s entitlement; and 2.

The Vice-Chair erred in law in interpreting s. 42(1) to (4) of the WCA and Board Policy; The Standard of Review [ 22 ] The parties agree and the existing jurisprudence concurs that the standard of review for a decision of the Tribunal is reasonableness. See: Roach v. Ontario (Workplace Safety & Insurance Appeals Tribunal) , [2005] O.J. No. 1295 (Ont. C.A.) . [ 23 ] In Dunsmuir v. New Brunswick , 2008 SCC 9 at para. 47 , [2008] 1 SCR 190 , the Supreme Court discussed the standard of

reasonableness: 47. Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standards ofreasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particular result.Instead, they may give rise to a number of possible, reasonable conclusions. Tribunals have a margin of appreciation within the range ofacceptable and rational solutions.

A court conducting a review for reasonableness inquires into the qualities that make a decisionreasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concernedmostly with the existence of justification, transparency and intelligibility within the decision-making process.

But it is also concernedwith whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. [24] In respect of the case where the Tribunal is interpreting its own statute, the court stated at par. 54 of Dunsmuir: 54. Guidance with regard to the questions that will be reviewed on a reasonableness standard can be found in the existing case law.Deference will usually result where a tribunal is interpreting its own statute or statutes closely connected to its function, with which itwill have particular familiarity: Canadian Broadcasting Corp. v.

Canada (Labour Relations Board), (SCC), [1995] 1S.C.R. 157, at para. 48; Toronto (City) Board of Education v. O.S.S.T.F., District 15, (SCC), [1997] 1 S.C.R. 487, atpara. 39. Deference may also be warranted where an administrative tribunal has developed particular expertise in the application of ageneral common law or civil law rule in relation to a specific statutory context: Toronto (City) v. C.U.P.E., at para. 72. Adjudication inlabour law remains a good example of the relevance of this approach. The case law has moved away considerably from the strictposition evidenced in McLeod v.

Egan, (SCC), [1975] 1 S.C.R. 517, where it was held that an administrative decisionmaker will always risk having its

interpretation of an external statute set aside upon judicial review. [25] Prior jurisprudence has established that the Tribunal which has exclusive authority to review matters of workplace safety andinsurance is entitled to substantial deference from the reviewing court. See: Rodrigues v. Ontario (Workplace Safety and InsuranceTribunal), 2008 ONCA 719 (C.A.) at para. 22; Kamara v. Ontario (Workplace Safety & Insurance Appeals Tribunal), [2009] O.J. No.2080 (Div. Ct.) at para. 3. Analysis i.

Error of Fact [26] In paragraph 36 of the Decision, Vice-Chair Nairn stated: “The Board would have reviewed the worker’s NEL entitlementbeing satisfied that there had been a significant deterioration in her condition.” [27] The Applicant submits that Vice-Chair Nairn incorrectly indicated that the initial permanent impairment rating of 20% and thesubsequent increase to 25% were correct and furthermore that the second medical assessment was a redetermination of the NEL awardbased on “significant deterioration in her condition”. [28] The Respondent concedes that the statement that the second medical assessment was a redetermination of the NEL awardbased on “significant deterioration in her condition” was factually incorrect but submits that, having regard to the Decision as a whole,nothing turns on the error.

I agree. The issue is really the Vice-Chair’s use of the term “redetermination”. [29] In that regard, I also do not consider that Vice-Chair Nairn’s reference to the awards being “redeterminations” as opposed to“reconsiderations” had any impact on his final conclusion. I agree with the comments of Vice-Chair Martel who addressed the issue atpara. 25 of the Reconsideration Decision as follows: 25.

I also note that while Decision No. 224/16 incorrectly referred to the worker’s increased NEL awards as redeterminations, thedecision also indicated at paragraph 36 that the legislation and the Board’s policy suggested that there was no intention to revisit initialpayment options on “redeterminations or reconsiderations” (emphasis added).

The decision therefore considered the possibility of aworker receiving a greater NEL award on reconsideration and rejected the submission that the initial payment option could be revisited. [30] When the Decision is considered as a whole, I do not consider the reference to “redetermination” or the factual error by Vice-Chair Nairn to have had any bearing on his final conclusion which was that the threshold amount in s. 42(3) of the WCA refers to theamount of compensation as it’s awarded by the Board. ii. The

interpretation of s. 42 of the WCA and Board Policy [31] As noted, in dismissing the Applicant’s appeal with respect to her NEL award, Vice-Chair Nairn interpreted s. 42 of the WCAto provide that the threshold amount of $10,000 in s. 42(3) which determines whether the NEL benefit will be paid as a lump sum or amonthly payment for life, is applied when the amount of NEL benefit is awarded as opposed to cumulatively at the end of allproceedings.

In reaching that conclusion, Vice-Chair Nairn relied on the Board Policy and specifically the requirement that if the amountawarded is equal or less than the applicable threshold, it is “automatically” paid to the worker.

He concluded that the Board Policyemphasized efficient and expeditious payment of NEL benefits to workers. [32] The Vice-Chair specifically rejected the Applicant’s submission that s. 42 should be interpreted to require that in determiningwhether the threshold had been exceeded, the cumulative total of benefits paid to the worker must be considered. [33] In Rizzo & Rizzo Shoes Ltd., Re, (SCC), [1998] 1 S.C.R. 27 (S.C.C.) at para. 21, the Supreme Court statedthat the prevailing approach to statutory

interpretation requires that “the words of

an Act are to be read in their entire context and in theirgrammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.” [34] I consider Vice-Chair Nairn’s

interpretation of s. 42(3) was in keeping with the above approach. In reaching his decision, Vice-

Chair Nairn had regard to the wording of s. 42 within the context of the WCA and the WCA’s overall objective which is to provide “fair compensation to workers who sustain personal injury arising out of and in the course of their employment” in a “financially responsible and accountable manner.” His

interpretation also referred to and was consistent with the Board Policy applicable to s. 42 . [ 35 ] Further, I consider that Vice-Chair Nairn’s

interpretation of Board Policy and specifically the meaning of the term “automatically” to be reasonable having regard to both the ordinary grammatical meaning of the term and the overall objectives of the WCA as referred to above. [ 36 ] As noted by Vice-Chair Martel in the Reconsideration Decision, the word “compensation” in s.42(3) is capable of more than one reasonable

interpretation. As Dunsmuir points out, however, at para. 47, tribunals have a margin of appreciation within the range of acceptable and rational solutions. In my view, Vice-Chair Nairn’s

interpretation of s. 42(3) that the threshold amount refers to the amount of compensation as its awarded as opposed to the final amount awarded after any reconsiderations and/or appeals is “within the range of acceptable and rational solutions.” [ 37 ] The Applicant submitted before us that in reaching the Decision, Vice-Chair Nairn failed to mention or address s. 42 of the WCA . I reject that submission.

The Decision sets out both s. 42 and the Board Policy in their entirety and it is clear from reading the reasons for the Vice-Chair’s conclusion in para. 36 of the Decision that the Vice-Chair was clearly referring to the provisions of s. 42 of the WCA. [ 38 ] Under the reasonableness standard, a tribunal’s decision is unreasonable “only if there is no line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived”: see Law Society of New Brunswick v.

Ryan , 2003 SCC 20 , [2003] 1 S.C.R. 247 , at para. 55 . [ 39 ] For the above reasons, therefore, I am unable to conclude that the Tribunal’s Decision was unreasonable. The Application is accordingly dismissed. [ 40 ] The Tribunal seeks its costs of the Application. In support it has submitted a Costs Outline indicating partial indemnity costs of $25,983.78.

Before us, counsel for the Tribunal advised that, if successful, the Tribunal was only seeking $2,500 in costs. [ 41 ] The Applicant submitted that if unsuccessful, there should be no costs award against her. [ 42 ] The Tribunal was successful and is entitled to its costs. Given the circumstances, there is no basis for a no costs award. In my view, $2,500 is more than fair and reasonable given the issues. Costs to the Tribunal fixed at $2,500 in total. Payable by the Applicant within 30 days. L. A. Pattillo J. I agree Fragomeni J. I agree Firestone J. Released: CITATION : Lochner v.

WSIAT, 2017 ONSC 6657 DIVISIONAL COURT FILE NO.:168/17 DATE: 20171116 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT FRAGOMENI, PATTILLO AND FIRESTONE JJ. BETWEEN:

LINA LOCHNER Applicant – and – WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL Respondent REASONS FOR JUDGMENT L. A. PATTILLO J. Released: November 16, 2017