This is a decision by an Appeals Tribunal (the WSIAT, in Ontario) See p.3, 4 and 6, for examples of -conciseness and thoroughness which promoted easier decision making -communication with clients by Tribunal Counsel

1. Workplace Safety and Insurance Tribunal d’appel de la sécurité professionnelle
Appeals Tribunal et de l’assurance contre les accidents du travail
505 University Avenue 7th
Floor 505, avenue University, 7e
étage
Toronto ON M5G 2P2 Toronto ON M5G 2P2
WORKPLACE SAFETY AND INSURANCE
APPEALS TRIBUNAL
DECISION NO. 2175/10R
BEFORE: S. J. Sutherland: Vice-Chair
HEARING: June 30, 2011, at Toronto
Written
DATE OF DECISION: July 5, 2011
NEUTRAL CITATION: 2011 ONWSIAT 1640
DECISION(S) UNDER REVIEW: Worker request for reconsideration of Decision No. 2175/10 dated
November 9, 2010
APPEARANCES:
For the worker: The worker represented himself
For the employer: The employer was not invited to take part at this stage of the
proceedings
Interpreter: N/A

2. Decision No. 2175/10R
REASONS
(i) Introduction to the appeal proceedings
[1] The worker has asked that the Tribunal reconsider Decision No. 2175/10, which was
released on November 9, 2010. In that decision, I denied the worker's request for entitlement to
benefits for bilateral knee injuries that he related to workplace events. My reasons for doing so
were:
As was set out above, the evidence is that the worker had an accident at work on June 1,
June 2, June 26, or June 27, 2007. Three people either witnessed the accident or knew
about it. None of the people who witnessed or knew about the accident was the person
that the worker testified was helping him at the time of the accident. The employer either
knew about the accident because he came out of the office shortly after it happened or did
not know about it until the Board fined him for not reporting it. The worker injured either
his left knee in June 2007, and his right knee some time later, or he injured both knees.
All of the witnesses called by the worker testified under oath that the worker was limping
before the claimed accident happened and none witnessed an accident.
It is undisputed that the worker had pre-existing degenerative disease in his knees and
osteoarthritis in his lumbar spine and hips. He worked, performing his regular job duties,
until the employer laid him off in February or March 2008. Dr. Collins’1
report dated
March 4, 2008 seems to indicate that the problems with the worker's knees began two
years earlier, or sometime in 2006. The meniscal tear in the worker's left knee was
diagnosed in June 2008 and the worker's claim was submitted after that.
Given the conflicting evidence, the fact that the worker continued to perform his regular
job duties until he was laid off, and the delay of a year between the happening of the
claimed accident and the worker reporting it to the Board, I am unable to find on a
balance of probabilities that the worker sustained an injury in the workplace in June
2007.
[2] The worker complained about his representative to the Law Society of Upper Canada on
November 6, 2010.
[3] The worker sent a note to the Tribunal by facsimile transmission on November 22, 2010.
In that note he said that he wanted to appeal the decision because his representative "did not
provide all the information in my possession and I feel that because of this I was denied." He
attached the Tribunal letter that accompanied the decision and the last page of the decision. The
Tribunal responded on December 8, 2010, provided a copy of the Practice Direction on
Reconsiderations, a Request for Reconsideration/Clarification form, encouraged the worker to
discuss his request with someone experienced in workers' compensation matters, and attached
information designed to help him find a representative.
[4] The worker submitted part of a form on March 7, 2011. "Schedule ‘A’", which appears
to have been written by a professional but the author is unidentified, was attached to the form.
The Schedule states that I overlooked critical information and that new information was
available. Had I considered all the information "a different result would have been rendered."
1
Dr. D.S. Collins, a rheumatologist

3. Page: 2 Decision No. 2175/10R
[5] The Schedule provided another version of how the worker injured his knees and some
information that either was not introduced at the hearing or that became available after the
hearing.
[6] In an "analysis" of Decision No. 2175/10, the Schedule stated "Some confusion about the
date is not unreasonable given when the worker applied for WSIB." It went on to say "the
worker's description of the events of that day, and in particular his attendance at both Dr. Palmer2
and Dr. Karson's3
offices, has been consistent throughout. Letters from Dr. Palmer and
Dr. Karson support the worker's version of events."
[7] The author of the Schedule reviewed Dr. Karson's letters dated September 11, 2008 and
May 21, 2009; stated that the worker spoke with the doctor's secretary on June 27, 2007 and
provided details about the content of that conversation; reviewed Dr. Palmer's letter dated
January 19, 2009, a letter from a drugstore dated January 15, 2009, and a June 29, 2007 knee x-
ray with handwritten comments by the radiologist. The author stated that these documents
supported the worker's version of events and submitted "Such a factual error, on which the
decision appears to be found, provides grounds for the decision to be set aside, and a
reconsideration granted."
[8] The author of the Schedule said that the decision "failed to consider the explanation of
the worker regarding the confusion regarding dates… failed to consider the large amount of
evidence supporting the worker's version of events… overlooks several important pieces of
evidence, which results in a significant defect in the content of the decision which, if corrected,
would likely change the result of the original decision."
[9] The author of the Schedule said that the decision "overlooks and failed to consider the
worker's explanation for his return to work."
[10] The author refuted the statement that "the worker had pre-existing degenerative disease in
his knees and osteoarthritis in his lumbar spine and hips." S/he reviewed the medical evidence
that s/he said indicated the worker had no prior problems, other than shin splints and plantar
warts and said that the condition of the worker's knees was consistent with his claimed injuries.
[11] The author stated that even if the worker had a pre-existing impairment, there was no
evidence that he had lost time or that it affected his ability to perform his job duties. If he had a
pre-existing impairment, then the June 27, 2007 injury aggravated the impairment. In that
circumstance, I "erred in law when the decision failed to consider the possibility of entitlement
based on an aggravation basis."
[12] The author provided a handwritten note from Dr. Palmer dated January 19, 2009: a report
from Dr. Palmer dated May 20, 2009; reports from Dr. Karson dated May 21, 2009, and
January 14, 2010; a note dated September 8, 2008 from a pharmacist; an x-ray report dated
June 28, 2007; a note dated January 15, 2009, from a pharmacist; a letter the worker wrote on
2
Dr. C. Palmer, a chiropractor
3
Dr. S. Karson, the worker's family physician

4. Page: 3 Decision No. 2175/10R
January 8, 2009 that was commissioned by a Justice of the Peace; an MRI of the worker's right
hip, the date of which is unclear but appears to be August 13, 2010; a physiotherapy progress
report dated September 20, 2010; a note referring the worker to physiotherapy that Dr. Karson
wrote on December 18, 2009; statements alleged to have been written by the company owner on
July 23, 2009 and a co-worker on January 25, 2010; a psychiatric assessment report prepared by
Dr. B. Bergstrome on March 8, 2011; and a document titled "Attention" that listed the
chronology of events in the claim.
[13] D. Hachem, of the Tribunal's Reconsideration Services, acknowledged receipt of the
materials on April 1, 2011. In that letter, Ms. Hachem said: "Your correspondence received on
March 15, 2011 includes a business card from Ms. Wallace at Derek Friend Law Firm." I
assume, therefore, that Ms. Wallace was the author of Schedule “A”.
[14] Ms. Hachem asked for clarification of a number of points in the materials the worker
submitted. The worker responded in an undated letter to which he appended reports from
Dr. Karson dated September 11, 2008 and February 27, 2009; Dr. Collins dated March 4, 2008;
Dr. J. Delaney, an orthopaedic surgeon, dated October 28, 2008 and March 9, 2009; as well as an
MRI of his left knee dated June 27, 2008; an MRI of his right knee dated May 10, 2009; an
operative report for arthroscopic surgery that Dr. Delaney performed on the worker's right knee
on June 19, 2009; an MRI of the worker's right hip that was done on August 13, 2010; an article
titled Hip Mobility and Hip Arthroscopy: A Patient's Guide to Correcting Femoral-acetabular
Impingement that was taken from the Internet; documents titled INTRODUCTION: Why to
reconsider [the worker]'s claim, WSIAT TRIBUNAL - WHY TO RECONSIDER MY CLAIM,
WHY RECONSIDER MY CLAIM; a facsimile transmission form dated November 3, 2010 with
an attached statement by a co-worker; copies of the Board's policies titled “Secondary
Conditions Resulting from Work-Related Disability”; and “Work-Relatedness Definition of an
Accident”; and additional copies of several of the documents that were included in the
March 7, 2011 submission.
[15] Ms. Hachem acknowledged receipt of the above materials on May 11, 2011. She noted
that the worker spoke of misrepresentation in his documents and referred him to "Tribunal Dec.
Nos. 237/05R, 3/09E, 305/04ER and 76/08E which provide useful reference regarding the
question of inadequate representation." Ms. Hachem summarized her understanding of the
grounds for reconsideration, which were:
• evidence supporting your version of events was overlooked;
• the decision overlooks and fails to consider your explanation for your return to work;
• there is little or no evidence supporting a pre-existing injury relating to your knee;
• there is evidence supporting that the injury is consistent with the accident as you described
it;
• that, even in the event that you did have a pre-existing impairment, there is no indication
that it affected your ability to complete your work or that you were absent from work as a
result of this impairment; that your work-related injury "would qualify for entitlement
based on the aggravation basis, as there is an increased degree of impairment";

5. Page: 4 Decision No. 2175/10R
• that the Vice-Chair failed to consider the possibility of entitlement based on an aggravation
basis (OPM [Operational Policy Manual] 11-05-15);
• that you sustained an injury in June 2007, on the balance of probabilities, and should be
granted benefits arising from your work injury;
• that you were not adequately represented.
[16] Ms. Hachem noted that the worker submitted only part of the Request for
Reconsideration/Clarification form and the form was not complete. She provided him with a
blank copy of the form which she asked him to complete. He did so on May 20, 2011. He also
provided a copy of his agreement with his previous representative and the complaint he had
made to the Law Society of Upper Canada.
(ii) The reconsideration test
[17] The Workers’ Compensation Act and the Workplace Safety and Insurance Act provide
that the Appeals Tribunal’s decisions shall be final. However, sections 70 and 92 of the
Workers’ Compensation Act and section 129 of the Workplace Safety and Insurance Act provide
that the Tribunal may reconsider its decisions "at any time if it considers it advisable to do so."
Because of the need for finality in the appeal process, the Tribunal has developed a high standard
of review, or threshold test, which it applies when it is asked to reconsider a decision.
[18] Generally, the Tribunal must find that there is a significant defect in the administrative
process or content of the decision which, if corrected, would probably change the result of the
original decision. The error and its effects must be significant enough to outweigh the general
importance of decisions being final and the prejudice to any party of the decision being re-
opened. The threshold test has been discussed in some detail in Decision Nos. 72R (1986),
18 W.C.A.T.R. 1; 72R2 (1986), 18 W.C.A.T.R. 26; 95R (1989), 11 W.C.A.T.R. 1; and 850/87R
(1990), 14 W.C.A.T.R. 1.
[19] As discussed in Decision No. 871/02R2, one of the fundamental concepts which guides
the entire Tribunal process is a duty of fairness. The Tribunal has gone to considerable lengths,
in spite of limited resources, to promote a fair process. The threshold test and the role of the
reconsideration process must be understood in the context of the Tribunal’s processes generally.
Most parties have the option of an oral hearing, which is a hearing “de novo” at the Tribunal.
This is very unusual at the final level of appeal within any adjudicative system. The Tribunal
invests considerable resources in preparing cases for hearing and assisting parties to identify the
issues in dispute so that parties can in turn be fully prepared for the hearing. The reconsideration
process should not be so generally available that it undermines the important role of the original
hearing or the finality of decisions which are reached after a fair hearing process.
[20] Because of limited resources, the Tribunal must also carefully balance its processes to
ensure that parties awaiting their first hearing are not penalized because of the expenditure of
scarce resources on reconsideration requests.
[21] It is instructive to refer to Decision No. 871/02R2’s analysis of the threshold test that a
reconsideration request must meet and the reasons for this:

6. Page: 5 Decision No. 2175/10R
Section 123 of the Workplace Safety and Insurance Act provides that a decision of the
Appeals Tribunal under the Act is final. While the Appeals Tribunal does have the
discretionary power to reconsider its decision under section 129 of the Act, this remedy is
an exceptional one. Because the integrity of the appeal process and the finality of
Tribunal decisions are important considerations in any reconsideration application, the
standard of review or threshold which must be met in the reconsideration process is a
high one. Although some representatives may advise their clients that a reconsideration
application is merely a routine step in the WSI appeal process, this advice is wrong. The
reconsideration process is a special remedy and the Tribunal’s power to reconsider is
invoked only in unusual circumstances; it is not intended as a routine process for any
party or representative unhappy with a Vice-Chair or Panel decision. To treat
reconsiderations as a routine, insignificant process would effectively undermine the
statutory principle of finality, suggest that parties could routinely discount the original
hearing process, and put successful parties at risk of multiple proceedings. To be
successful on a reconsideration application, an applicant must discharge the onus to
satisfy the Tribunal that an otherwise final decision should be reopened. Essentially, an
applicant must:
(a) demonstrate that there was a fundamental error of law or process which, if corrected,
would likely produce a different result, or
(b) introduce substantial new evidence which was not available at the time of the original
hearing and which would likely have resulted in a different decision had this substantial
evidence been introduced at the original hearing.
Any error and its resulting effects must be sufficiently significant to outweigh the
importance of decisions being final and the prejudice to any party of the decision being
re-opened. [emphasis in original]
[22] The Divisional Court has reviewed and upheld the Tribunal’s reconsideration process in
Gowling v. Ontario Workplace Safety and Insurance Appeals Tribunal, [2004] O.J. No. 919
(Div.Ct). In particular, the Court found that:
because a reconsideration is distinct from an appeal, a high threshold test is required to
balance the interests of the Tribunal and other parties, and the original adjudicator is in
the best position to evaluate the proceedings to address natural justice allegations.
[23] With respect to the substantial new evidence test, the Panel in Decision No. 871/02R2
provided the following very useful explanation of what must be demonstrated to satisfy this
ground:
When an Applicant files for a reconsideration on the grounds of “substantial new
evidence” (which, if introduced at the original hearing, would “likely” have produced a
different result), there is a significant onus on that Applicant to demonstrate that the
“new” evidence would, on a balance of probabilities, have been sufficiently persuasive or
“substantial” to effectively outweigh all of the evidence which led to the original finding.
While Tribunal decisions have not generally used the words “practically conclusive” to
describe this “substantial” new evidence, obviously the new evidence must be very
powerful and persuasive in order to overcome all other evidence which led to the original
conclusions of the Vice-Chair or Panel…For evidence to be sufficiently substantial that it
would likely have produced a different result at the original hearing, that substantial
evidence must be of superior quality and so logically persuasive that it could be
described as “practically conclusive” of the issue under appeal. It must obviously also
be relevant to the issue in dispute... [emphasis added]

7. Page: 6 Decision No. 2175/10R
[24] In determining whether new evidence is “significant new evidence” that makes it
advisable to reconsider the original decision, the relevant test is described in
Decision No. 762/91R3 as follows:
The harder problem arises with respect to medical evidence that is new in the sense that it
has come into existence after the Tribunal’s original decision. With respect to evidence of
that kind, a distinction we think should be made between new evidence that can be fairly
characterised as more evidence on the same issue (evidence that is commissioned for the
purpose of refuting some aspect of the decision, evidence that might usefully be
characterised as reply evidence) and new medical evidence in the nature of discovery of
some new and unexpected organic or psychological fact that is of basic importance to the
case.
In our view, in an application for reconsideration medical evidence that comes into
existence after the Tribunal’s original decision has been issued should only be admissible
-should only be taken into account -if it is of the latter nature. Reply evidence should not
be admissible.
[25] Where the evidence submitted at the reconsideration was available prior to the
completion of the hearing, the diligence of the parties in presenting this evidence may be
considered. For example, in Decision No. 1674/00R, the worker did not indicate that he had a
copy of the evidence that was specifically requested post-hearing. He did not present the
evidence until the time of his reconsideration request. The Vice-Chair reviewed the due
diligence test as set out in R. v. Palmer [1980] 1. S.C. R. 759 and denied the reconsideration on
the basis that:
The Tribunal is not bound by the rules of a Court, and the rules of procedure referred to
above are not relevant. An application for reconsideration is not an appeal. However, the
Tribunal’s threshold test for reconsideration reflects the importance of the principle of
finality in Tribunal decision making. In the case of the Tribunal, also, it would not be in
the interests of justice to permit a party to reopen appeals at will to the general detriment
of the administration of justice.
In this case, the late filed clinical notes are directly relevant to the issue determined by
the Panel. I also do not doubt that these are the clinical notes…which the Panel was
seeking in its post-hearing request.
However, with respect to the worker’s due diligence, I consider this a particularly
egregious case. The evidence was in the worker’s possession, as opposed to that of the
doctor or hospital. The worker failed to produce it in the face of extensive post-hearing
efforts by the Panel to obtain it, which highlighted the need for this information.
(iii) Analysis
[26] For convenience, I have considered the worker's submissions under the categories listed
by Ms. Hachem in her May 11, 2007 letter to the worker.
(a) The worker's claim that I overlooked evidence that supported his version
of events
[27] The worker's Board file contained the following versions of the accident said to have
happened in June 2007:
• in his Report of Injury dated August 15, 2008, the worker said that he tripped on a
sawhorse and injured both knees while carrying a 12" x 12" x 14' beam on June 1, 2007.

8. Page: 7 Decision No. 2175/10R
He also said that his supervisor "JH" and two co-workers, "DW" and "DB" were witnesses
to, or knew about, the accident;
• the worker told the claims adjudicator on July 17, 2008, that he twisted his left knee when
he tripped on a sawhorse on June 1, 2007 and injured his right knee while carrying wood "a
couple of weeks later." He could not remember either the date or the month in which the
injury to his right knee happened. The adjudicator recorded that the worker "stated that he
was just carrying wood that caused excessive strain on his right knee because his left knee
was weak."
• Dr. Karson recorded, in his Physician's First Report, that the worker's history of injury was
"twisted left knee carrying a heavy timber" and the date of accident was June 26, 2007;
• Dr. J. Delaney, an orthopaedic surgeon, reported on October 29, 2008 that the worker
twisted his left knee while carrying a 12" x 12" x 14' timber. The worker's right knee "has
also been uncomfortable." Dr. Delaney did not report any history of injury for the worker's
right knee; and
• in a letter dated January 30, 2009, the worker said that the injury happened "on the morning
of June 27th, 2007"; "I caught my foot on a sawhorse, my leg twisted caused me to fall
with the full weight of the load"; he left work early and telephoned Dr. Karson's office. He
was told that Dr. Karson could not see him right away so he consulted Dr. S. Palmer, a
chiropractor.
[28] The worker's description of the accident when he testified before me was he and "DJ"
were moving a beam. He could not get any leverage on his end of the beam. It fell and he
grabbed it. He tripped and fell sideways, hanging onto the beam and injuring his knees.
[29] In addition to the above, the worker told the adjudicator on July 17, 2008, that he sought
medical attention from Dr. Karson on June 1, 2007. In an undated letter that the worker sent to
the Board by facsimile transmission on August 8, 2008, he said that he saw Dr. Karson about his
left knee on June 2, 2007. Dr. Karson reported that he first treated the worker for a knee injury
on November 28, 2007. However, on September 11, 2008, Dr. Karson said he saw the worker
on June 27, 2007 with complaints of aching knees. In a letter dated January 14, 2010,
Dr. Karson said his clinical notes for June 27, 2007, was:
S - knees ache, hurts to bend, legs ache, feeling like they give way sometimes, saw
Sherry Palmer, prescribed orthotics4
,
O - bilateral knee crepitus, no effusion, hips normal, BP 130/80 chest clear
A - osteoarthritis knees
P - Mobicox 15 mgs OD (30) no NSAIDS, x-ray knees
[30] It is useful to note that Dr. Karson did not record any history of injury.
[31] The accident version in Schedule "A" was:
4
In a letter dated May 20, 2009, Dr. Palmer said "orthotics were fitted on January 17, 2007 for the purpose of correcting
anterior tibial tendinitis (Shin Splints) for [the worker]."

9. Page: 8 Decision No. 2175/10R
At work on June 27, 2007, the worker and another employee [X], attempted to move a
log. The log, however, hit the worker in his side, causing him to trip on the legs of the
saw horse next to the worker. The worker initially believed that he had only pulled a
muscle, and that his injury was not serious. The worker then attempted to continue to
work, and assisted another worker [Y], with loading a forklift. The spacer, however,
flipped and turned sideways under the worker's foot, causing him to fall…
[32] The author of Schedule "A" acknowledged that there was no accident at work on
June 1, 2007. She commented that all the dates were in June 2007 and said that any confusion
was "not unreasonable given when the worker applied for WSIB." She went on to say "The
worker's statements about the treatment he sought, however, have remained consistent with the
worker's version of events following the accident, namely that he saw Dr. Karson the day of the
accident."
[33] That statement is relatively accurate. In an undated letter sent from the constituency
office of the worker's MPP, the worker said that he left work early, telephoned Dr. Karson's
office when he got home, was told that Dr. Karson could not see him right away, so he went to
see Dr. Palmer. When he testified before me, the worker said that he saw Dr. Palmer before he
saw Dr. Karson and both visits were on the day of the accident. I accept that the worker saw
Dr. Palmer and Dr. Karson on June 27, 2007. I also accept the evidence that the worker had a
prescription filled on June 27, 2007 and that his knees were x-rayed on June 28, 2007. The x-ray
is mentioned in Decision No. 2175/10. However, there was no mention of a workplace accident
in any of the contemporaneously produced documents.
[34] In a note dated January 19, 2009, Dr. Palmer said she had a conversation with the worker
on June 27, 2007. "He had a work injury - tripped over timber." The worker's case file
contained a copy of the x-ray report dated June 28, 2007. There was no notation by the
radiologist on that report. However, the copy that was submitted with the reconsideration
request has an undated handwritten note that said: "I verify that [the worker] was in our
department on 28/06/07. We discussed him falling at work while carrying a heavy wood beam."
[35] Since I do not know the circumstances in which these notes were produced, I prefer the
contemporaneously produced documentation as more accurately reflecting events as they
unfolded.
[36] In his submissions, the worker did not say which version of events was supported by the
evidence. The injury happened on June 1, 2, 26, or 27, 2007; the worker tripped and injured his
knees; he only injured his left knee in the June 2007 accident; he injured his right knee while
carrying wood on a date that he could not remember; he twisted his left knee while carrying
timber; he twisted his leg and fell, taking the full weight of the beam after catching his foot on a
sawhorse; he could not get a grip on the beam that he and a co-worker were carrying and it fell.
When he grabbed it, he tripped and fell sideways, injuring his knees; and a log hit him in the
side, which caused him to trip on the sawhorse on June 27, 2007 and he fell later in the day when
helping a co-worker load a forklift.

10. Page: 9 Decision No. 2175/10R
(b) The worker's claim that I did not consider his explanation for his return
to work
[37] I have reviewed the notes I made at the hearing. I did not record any testimony in which
the worker explained why he returned to work. In fact, the employer testified that the worker did
not lose any time from work and there was no other evidence to indicate that the worker lost any
time from work after the alleged incident. I did record that the worker said he did not make a
claim when the accident happened for a number of reasons, one of which was to keep his job.
[38] The author of Schedule "A" said that the worker "reported back to work, as he was
concerned that he would be fired if he did not attend."
[39] There are no submissions that addressed the question of how an explanation for returning
to work would have changed the decision.
(c) The worker's claim that there was little or no evidence supporting a pre-
existing injury relating to his knee
[40] The author of Schedule "A" took issue with the statement "it is undisputed that the
worker had pre-existing degenerative disease in his knees and osteoarthritis in his lumbar spine
and hips." She noted that Dr. Karson said, on May 21, 2009, that the worker did not make any
complaints about his lower extremities prior to June 27, 2007. Dr. Palmer also said the worker
had no hip or knee injuries before June 2007. It was her position that there was no indication
that the worker's knees "ever gave out prior to the accident date of June 27, 2007"and "any
degenerative or arthritic problems occurred following and as a result of the June 27, 2007
injury."
[41] The worker's knees were x-rayed on June 28, 2007. The x-ray showed "mild joint space
narrowing involving the medial compartment bilaterally." Such degenerative changes do not
appear instantly.
[42] Both the accident employer and "DJ" advised the Claims Adjudicator, on July 28, 2008,
that the worker had been complaining of bilateral knee pain since he started working for the
employer.
[43] The accident employer, "DW", and "DJ" all testified at the hearing that the worker was
limping prior to the alleged incident in June 2007. The author of Schedule "A" states that the
limping was due to shin splints and plantar warts. That may be so but it does not explain either
the x-ray evidence of degenerative changes in the worker's knees or the evidence that the worker
complained to the employer and co-workers of bilateral knee pain before June 2007.
[44] Finally, in his letter dated January 14, 2010, Dr. Karson said that he diagnosed
osteoarthritis in the worker's knees on June 27, 2007. As I noted above, degenerative changes do
not appear immediately.

11. Page: 10 Decision No. 2175/10R
(d) The worker's claim that there is evidence supporting that the injury is
consistent with the accident as he described it
[45] The author of Schedule "A" referred to a letter written by Dr. Karson on
February 27, 2009 that "indicates that the injury suffered by the worker is consistent with the
accident described by the worker" and a concurring opinion found in a consultation note
prepared by Dr. Delaney on October 29, 2008.
[46] The history of injury that Dr. Delaney recorded in his note of October 29, 2008 was: "he
twisted his left knee at work back in June ‘07. He was carrying a 12 inch by 12 inch timber that
was 14 feet long and he said that he got his foot caught on a saw horse.… he has had ongoing
pain in this knee ever since. … The only history he has is that of an injury at work and I must
therefore assume that this is work-related. "
[47] In his February 27, 2009 report, Dr. Karson said: "It is possible that the type of injury he
sustained, specifically a rotational twisting force, could cause a meniscal tear."
[48] For an appeal to succeed, it is not sufficient to show that there is a possible connection
between an injury and a workplace accident. There must be evidence to show that the
relationship is more probable than not. (See, for example, Decision No. 389/92R.)
[49] Given the various accident histories provided by the worker and all the other evidence
before me, I was unable to find, on a balance of probabilities, that the worker sustained any
injury in the workplace in June 2007. The two medical reports referred to above only suggest a
possible connection, not a probable one. Therefore, they do not constitute sufficiently significant
evidence to reconsider the decision.
(e) The worker's claim that, even in the event that he had a pre-existing
impairment, there was no indication that it affected his ability to complete his
work or that he was absent from work as a result of this impairment; The
worker's claim that, if he had a pre-existing impairment, his work-related
injury "would qualify for entitlement based on the aggravation basis, as there
is an increased degree of impairment"; The worker's claim that I failed to
consider the possibility of entitlement based on an aggravation basis (OPM
[Operational Policy Manual] 11-05-15)
[50] The worker has never raised the question of entitlement to benefits on an aggravation
basis at the Board and it was not raised when he appeared before me. Since the Tribunal gets its
jurisdiction from final decisions by the Board, I would not have had jurisdiction to deal with that
issue, had it been raised.
(f) The worker's claim that he sustained an injury in June 2007, on the
balance of probabilities, and should be granted benefits arising from his
work injury
[51] None of the witnesses identified by the worker confirmed his claim that he had an
accident in June 2007. Specifically, the accident employer and "DJ" told the adjudicator on
July 28, 2008 that they did not witness an accident and were unaware of the worker injuring
himself at work.

12. Page: 11 Decision No. 2175/10R
[52] When they testified before me, the accident employer, "DW", and "DJ" all said they did
not witness an accident in the workplace.
[53] It should be recalled that the worker testified that he and “DJ” were moving a beam when
he was injured.
[54] The other evidence before me does not establish on a balance of probabilities that the
worker sustained an injury in the workplace in June 2007.
(g) The worker's claim that he was not adequately represented
[55] This is an unsubstantiated allegation with no evidence to support it, other than the
worker's complaint to the Law Society of Upper Canada. There were no allegations in the
complaint form. The worker simply wrote "I only want WSIAT to know I was misrepresented."
(h) Information in Schedule "A" that was not before me at the hearing
[56] The author of Schedule "A" stated that the worker was the first person to sustain an injury
while working for the accident employer, as a result of which the employer was "unfamiliar with
the required procedures." She did not provide any evidence to support that statement.
[57] The author submitted "an update regarding the worker's injuries." She provided an MRI
report dated October 13, 2010, which showed "extensive cystic change with collapse of the
weight-bearing surface of the femoral head. Cystic changes present on the acetabular side of the
joint as well." In the author's submission, "it now appears that the accident June 27, 2007, has
also affected the worker's hips."
[58] There were letters ostensibly written by the employer on July 23, 2009 and a co-worker
on January 25, 2010, attached to Schedule "A". The employer's letter said: "I agree with the
claim. Doctor's report proves [the worker]'s claim." The letter said to have been written by "DJ"
stated that he did not see the worker's accident on June 27, 2007 but was told about it afterwards
by other employees. When he testified before me, "DJ" said he was told that a gust of wind blew
a door open and knocked the worker over.
[59] I give little weight to either letter because: they were not produced before or at the
hearing of the worker's appeal on November 5, 2010; since they were not before me, I was
unable to ask the alleged authors about them at the hearing; and I do not know the circumstances
in which they were written.
(iv) Conclusions
[60] It is useful to consider the Board's criteria for determining whether a worker sustained an
accident in the course of her or his employment. The Board's Operational Policy Manual,
Document No. 11-01-01, titled "Adjudicative Process" states:
All decision-makers use the same criteria for ruling on initial entitlement to WSIB
benefits. This system is known as the "five point check system."
An allowable claim must have the following five points
• an employer (see 12-01-01, Who is an Employer?)

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• a worker (see 12-02-01, Workers and Independent Operators)
• personal work-related injury
• proof of accident, and
• compatibility of diagnosis to accident or disablement history.
Proof of accident
Decision-makers may consider the following when examining proof of accident,
• Does an accident or disablement situation exist?
• Are there any witnesses?
• Are there discrepancies in the date of accident and the date the worker stopped working?
• Was there any delay in the onset of symptoms or in seeking health care attention?
[61] The worker claimed he was injured in June 2007. He sought medical attention on
June 27, 2007 but neither Dr. Karson nor Dr. Palmer recorded at the time that the worker had a
workplace accident. He performed his regular job duties until he was laid off in February 2008.
He filed the claim with the Board on August 15, 2008. Because the worker told so many
different stories about how the injury happened, it is impossible to determine whether there was
compatibility between the condition of his knees and a workplace accident. The people that the
worker claimed witnessed the accident denied doing so.
[62] The author of Schedule "A" provided an explanation for the delay in reporting the injury
to the Board, that being that the worker was misinformed about the requirements to claim
benefits. The worker has been consistent in making that statement.
[63] The author seemed to take the position that I based Decision No. 2175/10 on the
confusion surrounding the date of the worker's alleged accident. That is only partially correct. I
also considered the various versions of how the accident happened, the conflicting evidence with
respect to the report to the employer, the worker's other medical conditions, the testimony of the
witnesses, the fact that the worker continued to perform his regular job duties until he was laid
off in February 2008, and the delay of more than a year between the alleged accident and his
report to the Board. Taking all those into account, my conclusion was "I am unable to find on a
balance of probabilities that the worker sustained an injury in the workplace in June 2007."
[64] The submissions reviewed in some detail above do not demonstrate an error in the
original decision, which, if corrected, would likely have affected the outcome of the appeal.
[65] Having again reviewed all the materials thoroughly, I am satisfied that there was no
fundamental error of evidence, law or process which, if corrected, would likely produce a
different result. The new materials provided with the reconsideration request do not outweigh
the evidence on which Decision No. 2175/10 was based and would not have resulted in a
different decision had they been introduced at the hearing.
[66] Accordingly, I find that the Tribunal's threshold test for granting a reconsideration
request has not been met.

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DISPOSITION
[67] The worker's application to reconsider Decision No. 2175/10 is denied.
DATED: July 5, 2011
SIGNED: S. J. Sutherland