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SAMPLE APPEAL WORK

1. SECTION 257 APPLICATION – BRITISH COLUMBIA

Summary: A plaintiff passenger in a tractor trailer moving freight on behalf of a third party transportation company commenced legal action against the defendant tractor trailer operator and the defendant tractor trailer owner after he sustained injuries in a motor vehicle accident. The defendants subsequently registered a section 257 Application with the Workers’ Compensation Appeals Tribunal (WCAT) seeking to statute-bar the plaintiff’s cause of action. Stephen Hellsten represented the interests of the third party transportation company.

Client Risk: The Application exposed the third party transportation company to workers’ compensation claim cost liability and a possible breakdown in their existing independent contractor relationships with trucking companies if WCAT classified the plaintiff as a worker sustaining injuries in the course of employment with the third party transportation company.

Decision: In a binding WCAT decision the Vice-Chair agreed with the positions advanced by the plaintiff and the third party transportation company that at all materials times the plaintiff was neither a worker nor did he sustain injuries arising out of and in the course of employment within the meaning of Part 1 of the Workers’ Compensation Act.

Impact: As a consequence of the WCAT decision the third party transportation company did not incur claim cost liability and their existing independent contractor relationships with trucking companies remain intact.

 

2. LABOUR MARKET RE-ENTRY – NEWFOUNDLAND

Summary: In 2001 a courier reported a workplace back injury. The Commission accepted the claim. Shortly thereafter the worker underwent the first in a series of five functional assessments conducted over the subsequent twelve year period with all but one confirming that a return to pre-injury courier duties was not sustainable. Despite the functional assessment results between 2001 and 2013 the injured worker repeatedly returned to work for short periods reporting at least 18 new claims for various anatomical areas of injury, thirteen of which included lost time from work, while receiving over 117 weeks of lost time and 85 weeks of rehabilitation benefits. Finally in 2013 the Commission concluded that a return to work was not sustainable and referred the worker for a labour market re-entry (LMR) assessment. He appealed to the Review Division arguing he was fit for work and seeking confirmation that the Commission erred in referring him for an LMR assessment. Stephen Hellsten represented the interests of the Courier Company.

Client Risk: The worker’s history of successive workplace injuries following return to work resulted in significant claim cost consequences to the Courier Company over many years. If the worker succeeded on appeal, a return to work virtually assured further claim cost liability either by way of recurrence or by way of new injury. In addition the worker had advanced various labour relations – human rights challenges to his employer and he was hoping to use a favourable decision from the Review Division to strengthen his arguments against the Courier Company is parallel proceedings.

Decision: In the Review Division decision the presiding Review Commissioner confirmed that the Commission appropriately referred the injured worker for a labour market re-entry assessment.

Impact: As a consequence of the decision the Courier Company’s significant and protracted claim cost liability associated with this former employee ceased. In addition by securing a favourable decision, the their negotiating position in parallel proceedings was strengthened rather than weakened.

 

3. TRANSFER OF COSTS – ONTARIO

Summary: A piece of angle iron fell down an elevator shaft impaling a contruction worker below. The injured worker’s employer, a Flooring Company, requested and the Workplace Safety and Insurance Board agreed to transfer all claim costs to the Demolition Company working above the injured worker in the elevator shaft citing negligence on their part. The Demolition Company appealed seeking a transfer of claim costs to two firms including the Constructor. Stephen Hellsten represented the interests of the Constructor.

Client Risk: The Constructor confronted significant claim cost liability should the transfer of costs appeal succeed. In addition the Demolition Company suggested costs should be transferred to the Constructor based on circumstances akin to occupiers’ liability. Such a broad interpretation of transfer of costs criteria exposed the Constructor to similar liability for accidents elsewhere.

Decision: The Appeals Branch denied the transfer of costs appeal confirming the accident was causally related to a breach of a duty of care by the Demolition Company. They alos rejected the propistion that the Constructor was negligent for failing to ensure that the Demolition Company’s own employees were not acting negligently.

Impact: As a consequence of the appeal decision the Constructor incurred no claim cost liability and no precedent was set that a Constructor can be negligent simply because of its health and safety oversite role.

 

4. SIEF COST RELIEF AWARD – ONTARIO

Summary: The Board’s Operations Level and Appeals Branch refused to grant a Courier Company SIEF cost relief in a neck-shoulder claim. The worker had a history of prior injury to the neck-shoulder; there was diagnostic testing evidence identifying significant degenerative pathology to the same anatomical areas; the worker’s symptoms predated the date of injury; her claim arose without evidence of a new accident; there was a failed return to work; and she received a large non-economic loss award for a permanent pain condition despite considerable evidence of longstanding organically-based pre-existing degenerative pathology that would reasonably explain her level of disability and failed recovery. Stephen Hellsten represented the interests of the Courier Company in an SIEF cost relief appeal to WSIAT.

Client Risk: The nature and extent of this worker’s pathology precluded a return to gainful employment with the Courier Company and thus the Courier Company incurred claim cost liability amounting to several hundred thousand dollars for what was essentially non-compensable pathology. The only means to attain monetary recovery was to convince the Tribunal not only that the Board had erred in denying cost relief but that a significant quantum of cost relief was in order.

Decision: WSIAT agreed that the Board erred in denying SIEF cost relief and acknowledged that the Courier Company is entitled to relief of 75% of the claim costs.

Impact: As a consequence of the WSIAT decision the Courier Company’s investment of less than $5,000.00 in fees resulted in a return to the company of more than $250,000.00.