Sunday, 13 October 2013

If A Worker Falls in the Forest and No One is Around to See It, Does He Still Get WSIB Benefits?

What happens when an Ontario worker, covered by Ontario's workers' compensation program, gets hurt at work, but no one is around to witness it? Unfortunately, this question is all to relevant as more and more Ontario workers are asked to work alone in potentially dangerous situations.

In a decision released July 2, 2013 by the Ontario Workplace Safety and Insurance Appeals Tribunal (the "WSIAT"), Decision 570/13, 2013 ONWSIAT 1423 (CanLII), the WSIAT affirmed the approach set-out in Decision 835/11 to deal with circumstantial evidence of proof of a workplace accident.

What I Mean by Circumstantial Evidence and Why it Matters

If you look at the Wikipedia definition of circumstantial evidence, what you will find is this:
Circumstantial evidence is evidence that relies on an inference to connect it to a conclusion of fact—like a fingerprint at the scene of a crime. By contrast, direct evidence supports the truth of an assertion directly—i.e., without need for any additional evidence or inference.
As the example above explains, a fingerprint at the scene of a crime is circumstantial evidence that the accused was at the crime scene, because how else would the fingerprint have gotten there? Direct evidence would be a witness' testimony that the accused was seen at the scene.

The reason that WSIAT's approach to circumstantial evidence is important is two-fold. First, the law requires proof of "a personal injury by accident arising out of and in the course of [the worker's] employment." (Ontario Workplace Safety and Insurance Act, 1997, SO 1997, c 16, Sch A, section 13) Second, as was explained by Vice-Chair Sutton in Decision 835/11:
It is often the situation in disputed initial entitlement cases that there are no direct witnesses to the event other than the worker involved. In these instances, [the WSIAT] must have regard for the circumstantially compelling evidence.
Vice-Chair Sutton then went on to list the three items that she felt would be persuasive that an unwitnessed workplace accident occured:
(1) Was the medical diagnosis compatible with the injury sustained;
(2) Was there mention to co-workers or a supervisor within a short time; and
(3) Does the accident history correspond with the work being performed or is it reasonably congruent with what might be expected to occur in the particular workplace?
In Decision 835/11 the worker was moving a heavy piece of equipment, by himself, and sustained a back injury. Because the injury was not witnessed the issue in that case was proof of accident. With reference to the three questions enumerated above, Vice-Chair Sutton found that that worker had, in fact, sustained a workplace injury and awarded benefits.

In the more recent decision, 570/13, the Tribunal (Vice-Chair S. Netten, and Members A. Lust, and K. Hoskin) endorsed and employed the approach from Decision 835/11, but found the witness was not credible and had given conflicting accounts of the accident. The finding on credibility was fatal to the applicant's appeal.

Why This Case is Important for Ontario Workers

Even though the applicant in Decision 570/13 was ultimately unsuccessful in her application, the law is still helpful. What the case means is that workers do not have to have their accident witnessed in order to have proof that their accident happened.

Furthermore, workers in Ontario who have been denied benefits by the WSIB should be aware that just because one person at the WSIB has denied benefits, because he or she feels that there is no evidence of a workplace accident, does not mean that the Appeals Tribunal will accept that position. The WSIAT will look to circumstantial evidence for proof of a workplace injury.

If you are an Ontario worker, and your claim for WSIB benefits has been denied because the Board feels that there is a lack of evidence of a workplace injury - or for any other reason - the employment lawyers at Ottawa's Kelly Santini LLP may be able to help. We would be happy to speak to you about your case and the services that we can offer.

As always, everyone’s situation is different. The above is not intended to be legal advice for any particular situation and it is always prudent to seek professional legal advice before taking any decisions on one’s own case.

Sean Bawden, publisher of the law blog for the suddenly unemployed, can be reached by email at or by phone at 613.238.6321.

Sean P. Bawden is an Ottawa, Ontario employment lawyer and wrongful dismissal lawyer practicing with Kelly Santini LLP, and part-time professor at Algonquin College teaching Trial Advocacy for Paralegals. He is a trustee of the County of Carleton Law Association for 2013.

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