) ) VAL LIVERPOOL Applicant – v. –, 2023 ONSC 2286

CITATION : Liverpool v. (Ontario) Workplace Safety and Insurance Appeals Tribunal, 2023 ONSC 2286 DIVISIONAL COURT FILE NO.: 443/22 DATE: 20230426 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT Stewart, Baltman and Lococo JJ. BETWEEN: ) ) VAL LIVERPOOL Applicant – and – Workplace Safety and Insurance Appeals Tribunal Respondent ) ) ) ) ) ) ) ) ) ) Kevin Simms and John Bartolomeo , for the Applicant Chris G. Paliare and Douglas Montgomery , for the Respondent ) ) ) HEARD at Toronto: April 6, 2023, by video conference REASONS FOR JUDGMENT R. A. Lococo J. I.

Introduction [ 1 ] The applicant Val Liverpool brings an application for judicial review of two decisions of the respondent Workplace Safety and Insurance Appeals Tribunal (the “Tribunal”).

The decisions under review are the Tribunal’s initial decision dated November 29, 2021 (reported at 2021 ONWSIAT 1878 ) and its reconsideration decision dated July 7, 2022 (reported at 2022 ONWSIAT 1148 ) (the “Tribunal Decisions”). [ 2 ] The Tribunal Decisions address the applicant’s entitlement to workers’ compensation benefits for injuries he suffered after falling from a ladder at work in June 2015, injuring his left shoulder.

The Workplace Safety and Insurance Board (the “WSIB”) determined that the applicant had initial entitlement to workers’ compensation benefits for his left shoulder injury, but his entitlement was terminated as of September 2015.

In a decision dated November 26, 2019 (the “WSIB disposition decision”), a WSIB appeals resolution officer upheld the termination of benefits for the applicant’s left shoulder injury and declined to expand the scope of his initial entitlement for that injury beyond a sprain injury. [ 3 ] Upon appeal of the WSIB disposition decision, the Tribunal (in its initial decision) allowed the applicant’s appeal in part.

The Tribunal expanded the scope of the applicant’s initial entitlement for left shoulder injury beyond a sprain injury but denied entitlement for left shoulder impingement (and related surgery), which the Tribunal found was not work related. The Tribunal also upheld termination of benefits for left shoulder injury as of September 2015. In its reconsideration decision, the Tribunal declined to alter its initial decision. [ 4 ] The applicant submits that the Tribunal Decisions are unreasonable and the reasons inadequate. I disagree.

[ 5 ] For the reasons below, I would dismiss the application for judicial review. II. Factual Background [ 6 ] On June 26, 2015, the applicant worker, a window shade installer, fell backwards while coming down from a ladder, striking his left shoulder and lower back on the ground. He sought medical attention the same day and was diagnosed with soft tissue injuries to his lower back, left leg and left trapezius (shoulder muscle). [ 7 ] The applicant filed a claim with the WSIB for workers’ compensation benefits under the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sched. A , (the “ WSIA ”).

He was granted initial entitlement to benefits, including for his left shoulder injury. [ 8 ] A physiotherapist examined the applicant’s left shoulder in July 2015. The physiotherapist diagnosed a sprain/strain injury and rotator cuff tendinitis and recommended a course of physiotherapy treatment. By report dated September 23, 2015, after 14 physiotherapy sessions, the physiotherapist confirmed that the applicant had no further functional limitations and cleared him to return to his regular work duties.

In a decision dated December 8, 2015, a WSIB case manager found that the applicant was fully recovered from his left shoulder injury as of September 2015 and had no further entitlement to benefits for that injury. [ 9 ] In January 2016, the applicant reported left shoulder pain to his family physician, who sent the applicant for an ultrasound examination of his left shoulder and referred him to an orthopedic specialist.

The ultrasound report dated January 4, 2016 showed bicipital tendinitis. [ 10 ] The ultrasound report was sent to a WSIB medical consultant to provide an opinion about the compatibility between the findings in the ultrasound report and the history relating to the applicant’s June 2015 accident.

In his report, the medical consultant noted that “no shoulder symptomology” was reported until January 2016 and provided an opinion that the ultrasound findings were not compatible with “the mechanism of injury [the fall] or initial presentations” when the applicant was injured in June 2015: see WSIB case manager’s reconsideration decision dated March 3, 2016 (referred to below), p. 1. [ 11 ] The applicant sought reconsideration of the December 2015 decision of the WSIB case manager.

In the reconsideration decision dated March 3, 2016, the WSIB case manager, relying on the medical consultant’s opinion, confirmed the conclusions in the case manager’s initial decision relating to the applicant’s left shoulder injury. [ 12 ] Subsequent to the case manager’s March 2016 reconsideration decision, Dr. Guerra (the applicant’s orthopedic specialist) sent the applicant for an MRI examination of his left shoulder. The MRI report dated June 23, 2016 revealed “a low grade partial thickness tear of the left rotator cuff”: see WSIB disposition decision, pp. 2-6. [ 13 ] In October 2016, Dr.

Guerra performed arthroscopic decompression surgery on the applicant’s left shoulder. The purpose of the surgery was to alleviate “left shoulder impingement, which was the pre-operative and post-operative diagnosis provided by Dr. Guerra”: see WSIB disposition decision, pp. 5-6. [ 14 ] The applicant subsequently appealed the December 2015 case manager decision and the March 2016 reconsideration decision to a WSIB appeals resolution officer, the final level of decision within the WSIB. Among other things, the applicant sought (

i) reversal of the finding that the applicant had fully recovered from the sprain injury to his shoulder as of September 2015, (ii) initial entitlement for his left shoulder injury relating to bicipital tendinitis, rotator cuff tear and shoulder impingement (also referred to as impingement syndrome), (iii) entitlement for his October 2016 left shoulder surgery, and (iv) a finding that the applicant’s left shoulder injury was a work-related permanent impairment. [ 15 ] In the WSIB disposition decision, the WSIB appeals resolution officer upheld the WSIB case manager decisions relating to the applicant’s left shoulder, finding (among other things) that (

i) the applicant’s initial entitlement for his left shoulder injury was limited to strain injury, (ii) his entitlement for the left shoulder injury terminated September 18, 2015, (iii) the applicant did not have entitlement for bicipital tendinitis, rotator cuff tear or shoulder impingement, and (iii) the evidence did not support a work-related permanent impairment of his left shoulder. [ 16 ] The applicant appealed the WSIB disposition decision to the Tribunal. III. Tribunal Decisions A.

Initial Decision [ 17 ] In the Tribunal’s initial decision dated November 29, 2021 (the “Initial Decision”), the Tribunal allowed the applicant’s appeal in part. Among other things, the Tribunal found that (

i) in addition to the applicant’s initial entitlement for left shoulder strain injury, the applicant also had initial entitlement for bicipital tendinitis and rotator cuff tear, (ii) his entitlement for left shoulder injury terminated on September 18, 2015; (iii) the applicant did not have entitlement for left shoulder impingement, (iv) the applicant did not have entitlement for the October 2016 left shoulder surgery; and (

v) the applicant did not have entitlement for a permanent impairment of the left shoulder. [ 18 ] In reaching its conclusions with respect to initial entitlement for additional areas of left shoulder injury, the Tribunal considered, among other things, the Tribunal’s Medical Discussion Paper dated January 2020, which provided a broad overview of general medical information relating to the injuries at issue in the matter before the Tribunal: see Initial Decision, at paras. 22-25.

The Tribunal also considered the letter and opinion of the applicant’s family physician, which it found to be of little assistance on that issue. As a result, the Tribunal did not place any weight on the family physician’s opinion, deferring instead to the opinion of the applicant’s orthopedic specialist Dr. Guerra as to any diagnosis: Initial Decision, at para. 27. [ 19 ] To support its conclusion that the applicant’s bicipital tendinitis and rotator cuff tear were attributable to the June 2015

accident, the Tribunal indicated its preference for the opinion of Dr. Guerra over the contrary opinions of WSIB medical consultants: Initial Decision, at paras. 30-31. However, the Tribunal also found that Dr. Guerra’s opinion did not support the conclusion the applicant’s left shoulder impingement and subsequent surgery were related to the June 2015 fall: Initial Decision, at para. 32. [ 20 ] As well, after considering the applicant’s testimony and the medical evidence, the Tribunal found that the applicant’s entitlement for left shoulder injury did not extend beyond September 2015.

Among other things, the Tribunal noted the paucity of evidence of left shoulder symptoms between September 2015 (when the applicant was cleared to return to work) and January 2016 (when he complained of left shoulder pain to his family physician): see Initial Decision, at paras. 34-47. B. Reconsideration Decision [ 21 ] In the Tribunal’s reconsideration decision dated July 20, 2022 (the “Reconsideration Decision”), the Tribunal declined to reconsider the Initial Decision, finding that the threshold test for granting a reconsideration request had not been met.

In reaching that conclusion, the Tribunal found that the applicant did not show any fundamental error of law or process in the Initial Decision, nor did he raise significant new evidence that would not have been available at the time of the hearing. IV. Jurisdiction and standard of review [ 22 ] The applicant seeks judicial review of the Tribunal Decisions. The Divisional Court has jurisdiction to hear this judicial review application: Judicial Review Procedure Act , R.S.O. 1990, c. J.1, ss. 2 , 6(1) . [ 23 ] There is no dispute that the standard of review is reasonableness.

The burden is on the applicant to show that the Tribunal Decisions were unreasonable: Canada (Minister of Immigration) v. Vavilov , 2019 SCC 65 , [2019] 4 S.C.R. 653, at para. 100 . [ 24 ] A reasonableness review looks to whether the decision is transparent, intelligible and justified: Vavilov , at paras. 15, 81, 86, 94-96 . The focus of the review is on the decision actually made by the decision maker, considered as a whole, including both the decision maker's reasoning process and the outcome.

The reviewing court should, as a general rule, refrain from itself deciding the issue and should not “ask what decision it would have made in place of that of the administrative decision maker, attempt to ascertain the ‘range’ of possible conclusions that would have been open to the decision maker, conduct a de novo analysis or seek to determine the "correct" solution to the problem”: Vavilov , at para. 83 . [ 25 ] A reasonable decision is one that is based on an internally coherent and rational chain of analysis that is justified in relation to the facts and law that constrain the decision maker.

The reasonableness standard requires a reviewing court to defer to such a decision: Vavilov , at para. 85 . [ 26 ] In Vavilov , at para. 106 , the Supreme Court referred to some of the legal and factual considerations that could constrain an administrative decision-maker in a particular case and noted a number of elements that will generally be relevant in evaluating whether a decision is reasonable, as follows: … the governing statutory scheme; other relevant statutory or common law; the principles of statutory

interpretation; the evidence before the decision maker and facts of which the decision maker may take notice; the submissions of the parties; the past practices and decisions of the administrative body; and the potential impact of the decision on the individual to whom it applies. These elements are not a checklist for conducting reasonableness review, and they may vary in significance depending on the context.

They are offered merely to highlight some elements of the surrounding context that can cause a reviewing court to lose confidence in the outcome reached. [ 27 ] With respect to the evidence before the decision maker, the Supreme Court in Vavilov , at paras. 125-126 , noted as follows: 125. It is trite law that the decision maker may assess and evaluate the evidence before it and that, absent exceptional circumstances, a reviewing court will not interfere with its factual findings. The reviewing court must refrain from "reweighing and reassessing the evidence considered by the decision maker"…. 126.

That being said, a reasonable decision is one that is justified in light of the facts…. The decision maker must take the evidentiary record and the general factual matrix that bears on its decision into account, and its decision must be reasonable in light of them …. The reasonableness of a decision may be jeopardized where the decision maker has fundamentally misapprehended or failed to account for the evidence before it. [Citations omitted.] [ 28 ] Previous case law has consistently confirmed that on judicial review, a court owes significant deference to the Tribunal’s decisions within its area of expertise.

A relevant consideration is the Tribunal’s exclusive jurisdiction to hear appeals from decisions of the WSIB which, in turn, has exclusive jurisdiction to adjudicate all matters and questions arising under the WSIA , its home statute: WSIA , ss. 118(1) , 123(1) . The Tribunal’s decisions are subject to what the Court of Appeal has described as "the toughest privative clause known to Ontario law”: Rodrigues v. Ontario (Workplace Safety and Insurance Appeals Tribunal) , 2008 ONCA 719 , 92 O.R. (3d) 757, at para. 22 , leave to appeal refused, [2008] S.C.C.A No. 541. [ 29 ] In Morningstar v.

Ontario (Workplace Safety and Insurance Appeals Tribunal) , 2021 ONSC 5576 , 158 O.R. (3d) 739 (Div. Ct.), at para. 37 , the court stated as follows: As a specialized and expert tribunal which hears evidence, finds facts, decides questions of law, and deals with caselaw and policy in the area of workplace safety and the statutory insurance scheme under the Act, the WSIAT has been accorded the "highest level of deference" with respect to its decisions….

As a consequence, this Court has assumed a highly deferential attitude towards WSIAT decisions and has indicated that a Court will only interfere where there are no lines of reasoning that would support the decision under review…. [Citations omitted.] V. Issues to be determined

[ 30 ] The applicant submits that the Tribunal Decisions were unreasonable and the Tribunal’s reasons inadequate. The applicant seeks to set aside the Tribunal decisions to the extent that they deny his initial entitlement to benefits for left shoulder impingement and his ongoing entitlement for left shoulder injuries, consisting of shoulder impingement, bicipital tendinitis and rotator cuff tear.

He requests an order that he is entitled to those benefits or, in the alternative, an order remitting the issue to the Tribunal to be determined in accordance with the court’s direction. [ 31 ] Among other things, the applicant submits that the Tribunal erred by: a. Failing to explain the incoherence of finding work-related left shoulder injuries in in 2016, despite deciding he had completely recovered in 2015; b. Failing to explain how the applicant had ongoing left shoulder impairments that are not work-related; c. Failing to consider the applicant’s testimony with respect to his ongoing left shoulder pain; d.

Failing to properly consider the Tribunal’s Medical Discussion Paper; and e. Denying the applicant’s reconsideration request when the evidence demonstrated internal inconsistencies in the Initial Decision. [ 32 ] With that background, the applicant submits that the judicial review application raises two broad issues: A. In the Initial Decision, was the Tribunal unreasonable in finding that the applicant’s left shoulder impingement and his ongoing left shoulder symptoms were not related to the June 2015 fall? B.

In the Reconsideration Decision, did the Tribunal err in finding that the Initial Decision was reasonable when the evidence demonstrated internal inconsistencies in the Initial Decision? VI. Analysis [ 33 ] As explained below, I have concluded that the Initial Decision was reasonable, and that the Tribunal did not err in the Reconsideration Decision by declining to alter the conclusions in the Initial Decision.

In the Initial Decision, was the Tribunal unreasonable in finding that the applicant’s left shoulder impingement and his ongoing left shoulder symptoms were not related to the June 2015 fall? [ 34 ] The applicant submits that in the Initial Decision, the Tribunal was unreasonable in finding that the applicant’s left shoulder impingement and his ongoing left shoulder symptoms were not related to the June 2015 fall. [ 35 ] In that regard, the applicant argues that: a. The Tribunal’s reasons were not internally coherent; b.

The Tribunal failed to explain apparently inconsistent findings relating to entitlement to benefits for left shoulder injury; and c. The Tribunal’s conclusions were not supported by the statutory scheme, the case law, the record of proceedings, or consideration of the decision’s impact on the applicant. [ 36 ] Among other things, the applicant argues that the Initial Decision made two findings that, when considered together are logically incoherent: (

i) the applicant had two unhealed conditions in his left shoulder that were work-related, that is, bicipital tendinitis and rotator cuff tear; and (ii) both conditions resolved as of September 18, 2015. To support the conclusion that the rotator cuff tear was work-related, the Tribunal cited the opinion of Dr. Guerra based on the June 2016 MRI of the applicant’s left shoulder, which also confirmed bicipital tendinitis.

The applicant says that the Tribunal failed to explain how evidence of injury arising after September 2015 (the MRI) can be reconciled with the Tribunal’s conclusion that the applicant’s injury had resolved by September 2015. [ 37 ] The applicant also submits that there were unresolved logical inconsistencies relating to the Tribunal’s findings about the applicant’s initial entitlement for bicipital tendinitis and rotator cuff tear but not left shoulder impingement.

The applicant says that the Initial Decision failed to provide adequate reasons to explain how these three conditions do or do not relate to one another. The applicant notes that to support the Tribunal’s decision to deny entitlement for shoulder impingement, the Initial Decision cited references to impingement syndrome in the Medical Discussion Paper and in Dr.

Guerra’s medical opinion but argues that in doing so the Tribunal’s reasons failed to “meaningfully grapple with key issues or central arguments raised by the parties”, which the applicant submits is a hallmark of an unreasonable decision: see Vavilov , at para. 128 . [ 38 ] I do not agree with the applicant’s analysis. I am not persuaded that the applicant has met his onus of establishing that the Initial Decision fell below the required standard of reasonableness.

Considering the Initial Decision as a whole, I find the Tribunal’s lengthy reasons to be justified, intelligible and transparent. [ 39 ] Addressing first left shoulder impingement, the applicant asked the Tribunal to draw a causative link between the applicant’s June 2015 fall and Dr. Guerra’s diagnosis of left shoulder impingement in 2016.

In light of the evidence before the Tribunal, including the applicant’s testimony, the Medical Discussion Paper, and various records and opinions of medical practitioners, the Tribunal concluded that the evidence did not support the conclusion that the shoulder impingement was related to the fall. In addition, contrary to the WSIB disposition decision, the Tribunal also found that the applicant’s initial entitlement for left shoulder injury should extend beyond shoulder strain to include bicipital tendinitis and rotator cuff tear.

As well, the Tribunal concluded the apparent resolution of the applicant’s left shoulder symptoms by September 2015 interrupted any entitlement that would have flowed from the fall. There was evidence before the Tribunal to support those conclusions. Contrary to the applicant’s submissions, the Tribunal clearly “grappled” with the (sometimes contradictory) evidence in the course of its analysis in order to reach the conclusions it did.

[ 40 ] In my view, what the applicant in substance asks this court to do is to interfere with the Tribunal’s factual findings by reweighing and reassessing the evidence the Tribunal considered. Absent exceptional circumstances (that are not present here), it is beyond the permitted scope of the reviewing court to do so: Vavilov , at para. 125 . [ 41 ] The applicant also submits that the Tribunal’s conclusions were not supported by the statutory scheme, the case law, the record of proceedings, or consideration of the decision’s impact on the applicant.

Among other things, the applicant draws a parallel between the current matter and the recent Divisional Court decision in McQuoid v. Workplace Safety and Insurance Appeals Tribunal , 2022 ONSC 1629 (Div. Ct.). In that case, the court overturned a Tribunal decision that denied workers’ compensation benefits for a back injury that the worker sustained at his workplace. The court determined that the Tribunal’s decision was unreasonable in that it (

i) placed too much weight on the worker’s delay in seeking medical treatment, (ii) discounted the worker’s testimony about his pain (despite making no negative finding about the worker’s credibility), and (iii) failed to consider medical records about the worker’s pain, including “the uncontradicted medical evidence of both the family doctor and the physiotherapist” of the worker’s chronic back pain: McQuoid , at paras. 50, 54 . [ 42 ] By way of parallel to the current case, the applicant argues that the Tribunal unreasonably relied on the applicant’s delay in reporting left shoulder pain between September 2015 (when he was cleared to return to work) and January 2016 (when he reported shoulder pain to his family doctor) to reach the conclusion that he had no further entitlement to benefits after September 2015.

The applicant submits that the Tribunal made that finding in the face of the applicant’s evidence about the pain he experienced, without making a negative finding about his credulity or reliability as a witness. [ 43 ] Contrary to the applicant’s submissions, I do not consider the McQuoid decision to be of assistance in this case. That decision does not stand for the proposition that the Tribunal must make an explicit credibility finding in every case nor for the proposition that a reporting delay is not relevant to the issue of causation.

Rather, the decision in McQuoid was based on the well-established principle that the “reasonableness of a decision may be jeopardized where the decision maker has fundamentally misapprehended or failed to account for the evidence before it:” McQuoid , at para. 55 ; Vavilov , at para. 126 . Determining whether that principle applies will be case-specific and will not require credibility findings in each case in which some evidence is given more weight than other evidence.

In the present case, the Tribunal accepted and relied on independent medical evidence relating to the shoulder injury’s apparent resolution in September 2015 and the absence of symptoms until January 2016. In the circumstances of this case, it was reasonable to do so on the evidence before the Tribunal, without making an explicit negative finding about the applicant’s credibility or reliability.

In the Reconsideration Decision, did the Tribunal erred in finding that the Initial Decision was reasonable when the evidence demonstrated internal inconsistencies in the Initial Decision? [ 44 ] Given the above conclusion that the Initial Decision was reasonable, it follows that the Reconsideration Decision was likewise reasonable. VII. Disposition [ 45 ] Accordingly, I would dismiss the application for judicial review. Neither party requested costs, and therefore none will be ordered. ___________________________ Lococo J. ___________________________ Stewart J. ___________________________ Baltman J.

Date of Release: April 26, 2023 CITATION : Liverpool v. Ontario (Workplace Safety and Insurance Appeals Tribunal), 2023 ONSC 2286

DIVISIONAL COURT FILE NO.: 443/22 DATE: 20230426 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT Stewart, Baltman and Lococo JJ. BETWEEN: VAL LIVERPOOL Applicant – and – Workplace Safety and Insurance Appeals Tribunal REASONS FOR JUDGMENT R. A. Lococo J. Date of Release: April 26, 2023