Gouthro v. Workplace Safety and Insurance Appeals Tribunal (ON WCB) - Negative Case
Decision issued by the Ontario Superior Court of Justice - Judicial Review
I have setup this page to provide cases involving injured workers who have challenged the discriminatory practice of punishing injured workers simply because of their age.
There are two common examples of this that I know of, but if you know of more please let me know. The first is a Non-Economic Loss Award – NEL or as I like to say an award for being permanently injured. The second is when workers reach age 65 the WCB/WSIB/WorkSafe stops paying their workers compensation benefits.
Non-Economic Loss Award – NEL
An NEL award is when an injured worker is being awarded for a permanent injury, some refer to this as a Non-Economic Loss Award – NEL. This is because it is NOT based on your income but on your physical body. How it is done is that there is a chart which says how much an injured worker would receive for permanent injury. The base amount is set at the age of 30. For every year younger an amount is added. For every year older than 30 the amount is deducted. Then based on your percentage of permanent impairment you are paid this amount.
The basis steps in determining an NEL award as follows:
The first step is having the injured worker assessed based on a percentage of whole-body impairment.
The second step is that the age of the injured worker is determined at the time of injury. This may not be right, as I think some WCB/WSIB/WorkSafe probably intentionally delay the determination of the permanent impairment for this reason, but I could be wrong on this.
The third step is to determine the amount of the NEL the injured worker would receive if they were 100% disabled based on their age. Whether the base amount is increased or decreased based on the injured worker’s age.
The fourth and final step is the NEL is calculated by multiplying the percentage of injury by the NEL base amount calculated in the third step.
So, for example Bill is a worker at 35 years of age and suffers a work injury, which becomes a permanent impairment.
The First step would be to determine Bill age, which we stated was 35 years old at the time of the accident.
The Second step is to have Bill evaluated by a WCB/WSIB/WorkSafe doctor to determine the percentage of his whole-body impairment. Bill is assessed at 15% whole body impairment.
The Third step is the base amount is determined. This is amount set by Law and is adjusted for inflation. for our example with Bill we will say the base amount is $100. Then this amount is increased for every year the worker is under the age of 30 and reduced for every year the worker is over the age of 30. The amount that is increase or reduced is also set by the Law for our case we will say it is increased or reduced by $5 for each year of age under or over age 30. So, for Bill he is age 35 which means he is five years over 30 and his amount will be reduced by the set amount times five. So, in our example it would be five years at $5 which is $25. Therefore, Bill if he was 100% disabled, he would receive an NEL award of $75 in our example.
The Fourth step is where NEL calculated in step three is multiplied by the percentage of impairment, which was determined in the second step above. So, in our example Bill was determined to be 15% disabled and as a result he would receive $75 multiplied by 15%, which mean basically Bill NEL award would be $11.25.
As you can now see age is a HUGE factor in this award, as it financially rewards young workers and punishes older workers. Moreover, it also provides no bearing on the actual health of the worker, meaning they could take careful of their body as opposed to another who is a drinker, smoker, and does not exercise.
Suspension of Benefits at age 65 The second common issue with age is when the WCB/WSIB/WorkSafe stops paying an injured worker benefits once they reach the age of 65. In some cases, injured workers receive a separate award called a retirement award, but I can guarantee you it is never close to what an injured worker was receiving prior to age 65.
Another concern with this is when workers continue working past the age of 65, which believe it is becoming more common. So, if a worker over the age of 65 suffers a work accident and injury they do not get any income benefits. They only receive healthcare benefits. However, I am not sure this is completely accurate and common in all WCB/WSIB/WorkSafe across Canada. So, if you know any information on this let me know but provide me with reference to the law/policy.
Know that I will be looking into this more as it is a very interesting subject. I will post what I learn here as far as case law and additional information
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Gouthro v. Workplace Safety and Insurance Appeals Tribunal
Gouthro v. Workplace Safety and Insurance Appeals Tribunal et al., 2014 ONSC 7289
Deals with challenging the constitutionality of a WCB/WSIB/WorkSafe law as it discriminates based on age.
The injured worker had brought a Charter Challenge to the was at the WSIAT - the tribunal. The injured worker had argued that the law suspending benefits to an injured worker at age 65 was unconstitutional base don’t he grounds it discriminated against an individual based on age, which is in contravention of Section 15, of the Charter of Rights and Freedoms. . The tribunal agreed with the injured work that the law preventing an injured worker receiving workers compensation benefits after the age of 65 was an infringement of s. 15 of the Charter of Rights and Freedoms. However, the tribunal found that the infringement could be justified in a free and democratic society under section 1, of the Charter of Rights and Freedoms .
Application for Judicial Review:
The injured worker then applied to the Ontario Superior Court of Justice - Divisional Court for an application for Judicial Review. The injured worker argued the WSIAT/tribunal decision was unreasonable. The Panel of the Divisional Court disagreed and dismissed the application.
I will be looking to this more as I am wondering if the argument was made the workers compensation benefits are NOT taxpayer funded and are private. Moreover, that it may cause a financial burden to taxpayers. Thus, removing the argument of justification in a free and democratic society. I will let you know here if I learn any more on this case or others like it.
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