SUMMARY DECISION NO. 1076/98I. Waiver (right to compensation) (settlement).

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1 SUMMARY DECISION NO. 1076/98I Waiver (right to compensation) (settlement). The worker and employer both appealed decisions of the Board regarding ongoing benefits and VR services. After following grievance procedures, the worker and employer signed a settlement which included an agreement that both would withdraw their appeals to the Tribunal. The parties sent notices of withdrawal to the Tribunal, but the worker later decided that he wanted to pursue the appeal. The hearing was adjourned. It will reconvene to hear submissions on the issue of the effect of the settlement. [5 pages] DECIDED BY: Bigras DATE: 06/08/98 ACT: WCA

2 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1076/98I [1] Hearing of these appeals was convened in Sudbury on July 20, 1998, by Tribunal Vice-Chair J.G. Bigras. THE APPEAL PROCEEDINGS [2] The employer appeals the decision of Reinstatement Officer P. Prummel, dated November 19, That decision concluded that the worker s benefits and vocational rehabilitation services were incorrectly closed on February 26, [3] The worker also appeals the decision of Reinstatement Officer P. Prumell, dated October 22, 1997, and the decision of Appeals Resolution Officer C. Cirrina, dated February 23, These decisions concluded that the employment offered to the worker on March 25, 1997, was suitable and denied him entitlement to further labour market re-entry (formerly vocational rehabilitation services) after that date. [4] The worker attended and was represented by E. Abitbol, of Injured Persons Rehabilitation Ltd. The Occupational Health and Safety Officer attended for the employer and was represented by S. VanClief, of the Separate Board Co-Op Inc. THE EVIDENCE [5] The material in the Case Description was considered. In addition, the Tribunal received as exhibits three addenda to the Case Description prepared by the Tribunal Counsel Office (TCO), as well as a letter dated July 9, 1998, from Tribunal Counsel S. Ryan to the employer, with copy to the worker. [6] Arguments on the preliminary issues were made by Mr. VanClief and Mr. Abitbol. THE ISSUES [7] On December 2, 1994, the worker sustained a back injury while in the course of his employment. There were several attempts to return to work, prior to surgery performed in May In September 1995, the Board determined that the worker had a permanent impairment and required modified employment. [8] Modified work was made available on January 10, 1996, but the worker refused to accept it on the grounds that the duties exceeded his physical restrictions. His benefits had been terminated by the Board caseworker, but were re-instated by the Reinstatement Officer on November 19, 1996, and the employer s appeal of this decision is at issue in this case.

3 Page: 2 [9] A second work trial was arranged and the worker returned to a modified job on April 22, The worker left the modified employment after working one and a half hours, and claims that the job was not suitable. However, in his decision dated October 22, 1997, the Reinstatement Officer found that the job was suitable. Subsequently, on February 23, 1998, the Appeals Resolution Officer found that the worker was not entitled to vocational rehabilitation services after February The worker s appeal of these two decisions is at issue in the present case. [10] On June 1, 1998, the worker and the employer signed a settlement agreement following grievance procedures and mediation pertaining to the worker s termination of employment. An amount of money was offered to the worker and, as part of the agreement, the employer and the worker agreed to withdraw their appeals pertaining to compensation. The worker s notice of withdrawal to the Tribunal was dated June 2, 1998, and the employer s notice followed on June 3, [11] However, the worker s representative subsequently informed the Tribunal that he wished to pursue the worker s appeals already scheduled to be heard on July 20, The employer immediately argued that the worker could not resile from his agreement of June 1, [12] Whether the worker can pursue the appeal procedures is the preliminary issue which the Tribunal will now consider. If the worker is successful in reinstating his appeal, the Vice-Chair who is seized with the case, will consider the merits of the appeals. [13] As stated at the hearing, mediation of the issues is available at the Tribunal under section 122 of the Act and was previously offered to the parties under the former Act, although there was no specific provision dealing with mediation. Such mediation is conducted when both parties and the Tribunal agree that issues at hand may be resolved by mutual consent. HOW THE ISSUE ARISES [14] As stated earlier, the worker and the employer had agreed, under a union-management agreement, to withdraw their appeals before the Tribunal. Notice was given to the Tribunal of each party s intention to withdraw the appeal. However, the worker changed his mind and states that he wishes to pursue such appeal. [15] The worker in this case was injured on December 2, 1994, and the procedures leading to the present appeal were initiated prior to January 1, [16] On January 1,1998, the Workplace Safety and Insurance Act (WSI Act) took effect. This legislation amends portions of the Workers Compensation Act, which continues to apply to injuries which occurred before January 1,1998. This would put into play in this case the provisions of section 18 of the pre-1997 Act, which states: 18 It is not competent for a worker to agree with his or her employer to waive or to forego any of the benefits to which the worker or his or her dependants are or may become entitled under this Part and every agreement to that end is void. [17] Similar provisions, although differently worded, appear in section 16 of the new Act.

4 Page: 3 [18] I will hear arguments on whether the former Workers Compensation Act applies on the narrow issue of whether the agreement can be enforced notwithstanding the section 18 which states that agreements pertaining to a worker s agreement to waive or forego benefits are void. [19] Also at issue in this regard is whether the worker s decision to reinstate his appeal subsequent to his withdrawal of such appeal on June 2, 1995, constitutes a new appeal which must be heard anew and consequently in accordance with the provisions of the new Act for injuries occurring prior to December 31, [20] I will hear submissions and arguments on these issues at a reconvened hearing. Should the decision find that the appeal or appeals may continue, I will convene a hearing on the merits of this case. THE PROCESS [21] The employer in the present case asked that legal counsel for professional organization representing the employer in this case be allowed to present submission on the issues at hand. Mr. VanClief argued that the time period extending from the worker s decision to pursue the appeals notwithstanding the June 1, 1998, agreement and the hearing did not allow time for preparation of arguments on this issue. [22] The Tribunal was also informed by Mr. VanClief that the Canadian Union of Public Employees (CUPE) also wanted to present legal arguments on the issue of the applicability of the agreement which this union and the employer reached in this case. [23] The worker s representative, an experienced person in workers compensation matters, stated that he was not experienced in law and would appreciate intervenors who could make legal submissions on the issue of the applicability of the agreements of June 1, He asked that the Office of the Workers Adviser (OWA) be invited to act as interested intervenor. [24] I agree with the employer s and the worker s motion to grant standing to the two intervenors which requested such standing. I also agree to the worker s request that I invite the Office of the Worker Adviser to participate as intervenors, and I am also inviting the Office of the Employer Adviser, the OWA s counterpart in compensation representation, also to act as an interested intervenor. [25] The Tribunal Counsel Office (TCO) is also asked to prepare legal and case law reviews on the issues of the applicability of the two Acts with regard to the timing of the agreement and withdrawals at issue, the effects of section s18 of the Workers' Compensation Act R.S.O. 1990, c. W.11 with regard to waiving benefits, and the legal implications of a withdrawal, both in terms of procedural law, the Workplace Safety and Insurance Act, and/or the pre-1997 Act, and Tribunal directions and practices. [26] Given that the worker who is presently unemployed and awaiting a decision on entitlement to rehabilitation assistance and benefits, it is important that the preliminary issue be resolved as expediently as possible. I am asking the parties and the intervenors to be ready to present their arguments at a reconvened hearing three months from the date of this decision.

5 Page: 4 THE DECISION [27] Hearing of the issues arising from the present appeals is adjourned. [28] The Tribunal will reconvene a hearing on the preliminary issue of the effects of the June 1, 1998, agreement between the parties in three months from the date of this interim decision. At the request of the parties, I am granting standing to legal counsel for the Separate Boards Coop Inc., the Canadian Union of Public Employees (CUPE). Due to the generic and substantive nature of the issues at hand, I am also inviting the Office of the Worker Adviser and the Office of the Employer Adviser to participate in this issue as interested intervenors. [29] Tribunal Counsel is also requested to prepare background legal reviews and case law on the preliminary issues as stated above. DATED: August 6, 1998 SIGNED: J.G. Bigras

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