Benefits were locked in when worker was deemed unemployable; Decision not reviewable after five years
An Ontario employer has lost its appeal to discontinue ongoing future loss-of-earnings benefits that were locked in until the age of 65 for an injured worker, despite the fact the worker receiving the benefits was able to return to work full-time after 16 years off work recovering from a workplace injury.
Doug Featherstone, 50, was an employee of Nepean Hydro — currently operating as Hydro Ottawa — dating back to the ‘90s. On April 18, 1996, when Featherstone was 27 years old, he was working on hydro lines in an elevated bucket when he fell from the bucket. In the fall, Featherstone fractured his upper jaw and sustained injuries to his teeth, neck, back, and legs. He later developed post-traumatic stress disorder (PTSD) stemming from the accident.
Six years after the accident, in May 2002, the Ontario Workplace Safety and Insurance Board (WSIB) gave Featherstone an award for his non-economic loss stemming from his injuries and PTSD. One year after that, in May 2003, the WSIB determined Featherstone’s physical and mental injuries made him unemployable and granted him a 100-per-cent future economic loss benefit until the age of 65 and told him the benefit was locked in.
Featherstone continued to receive the benefits without change for seven years. In 2010, the WSIB began evaluating his condition. Over the next three years, it kept track of any developments and progress in his functional abilities and, in 2013, determined Featherstone’s condition had improved to the point where he was capable of returning to full-time work with Hydro Ottawa in the position he had held at the time of his workplace accident.
Benefits continued after return to full-time work
Featherstone agreed with the finding and returned to work with Hydro Ottawa on April 18, 2013 — 16 years after he had stopped working due to his injuries. However, even though he was back at work and earning income in the position he had held prior to his accident, Featherstone continued to receive future economic loss benefits because the benefits had been locked in a decade earlier.
Hydro Ottawa objected to this arrangement and made a request to the WSIB to discontinue Featherstone’s ongoing benefits since he was back working. After an initial refusal, Hydro Ottawa appealed to the Ontario Workplace Safety and Insurance Appeals Tribunal, which denied the appeal. The tribunal found that the Ontario Workplace Safety and Insurance Act stipulated that the WSIB couldn’t review any determination of compensation for future loss of earning more than 60 months after the determination was made. There were exceptions to this rule, but none of them applied to Featherstone.
As a result, Featherstone’s future economic loss entitlement that had been locked in in May 2003 could not be reviewed or changed, “regardless of his returning to work in 2013 and his no longer suffering any ongoing economic loss,” the tribunal said, noting that applicable WSIB policies — relating to material changes to workers’ status and decision-making — confirmed the 60-month limit for review in any such cases.
Hydro Ottawa appealed to the Ontario Divisional Court, arguing the tribunal erred in law when it found the act allowed a worker who no longer suffers a loss of earnings after the 60-month review window to still receive benefits until the age of 65.
Hydro Ottawa also noted the court should evaluate the decision on whether it was correct rather than reasonable, as the tribunal refused to exercise the discretion and authority given to it under the act for making a decision on the continuance of workers’ compensation benefits. The Ontario legislature, through the act, “has recognized that the tribunal has the expertise to decide all issues relating to the workers’ compensation and workplace safety and insurance benefits, including the review of future economic loss benefits,” Hydro Ottawa argued.
The court disagreed with Hydro Ottawa’s assertion that the standard of review was correctness rather than reasonableness, as the tribunal had “exclusive authority” to hear appeals from the WSIB and has the expertise to make determinations based on its understanding of legislation, WSIB policies, and previous decisions. In this case, the issue of future economic loss benefits and when those benefits can be reviewed “is a topic falling squarely within the tribunal’s area of expertise” with which the court couldn’t interfere. As a result, the court could only determine if the decision was reasonable and, if not, refer the matter back to the tribunal to take another look.
The court found Hydro Ottawa didn’t identify any discrepancy or inconsistency in the act or WSIB policies referred to by the WSIB and the tribunal; it just argued that there was only one possible interpretation of the act and policies — that Featherstone’s future economic loss benefits be discontinued — and to find otherwise would lead to what Hydro Ottawa felt was an absurdity.
The court also found that the legislation and policies were “specific and unambiguous,” and the tribunal’s interpretation of them was “both reasonable and correct.” It pointed to the tribunal’s statement in its decision that “had the legislators intended for the (WSIB) to continue to maintain administrative control over injured workers perpetually, which could potentially cause large scale uncertainty, they would have done so explicitly under the legislation.” It was a key objective of the workers’ compensation system to “provide certainty to both employers and employees,” the court said.
“It was reasonable for the tribunal to interpret the legislative provisions and policy directives in a way that respected the legitimate legislative objective of finality in the determination of an employee’s entitlement to future economic loss benefits,” said the court. “It was open to the tribunal to conclude that the (WSIB’s) interpretation of the relevant provisions and policy directives had not led to an absurdity.”
The court dismissed Hydro Ottawa’s appeal, finding the tribunal’s decision allowing Featherstone’s locked-in future economic loss benefits to continue until he reached the age of 65 while he worked for the utility was transparent, clear, and reasonable.
• Hydro Ottawa v. Ontario (Workplace Safety and Insurance Appeals Tribunal), 2019 CarswellOnt 694 (Ont. S.C.J.).
