FAQ's Cases - Stewart McKelvey

Rob confirmed the IW’s duties as described-he agreed the job may not be suitable for someone with a backinjury but said that was all he had available and the IW is willing totry the job[62] Mr. Castellano testified that his conversation with the WSIB case manager wasvery short, that he did not recall being given a list of the applicant’s job duties to confirmor that he indicated that the applicant’s job duties may not be suitable for the applicant.[63] I find the WSIB case manager’s notes to be corroborating evidence that supportsthe applicant’s contention that he performed tasks beyond his medical restrictions inApril and May. It is relevant, in my view, that the WSIB case manager is an independentthird party making contemporaneous notes of her phone conversation with the applicantand Mr. Castellano.2012 HRTO 1455 (CanLII)[64] I find that the fact that these prior statements were made goes to the consistencyof the applicant’s testimony and is evidence that contributes to my preferring thetestimony of the applicant that he was working beyond his restrictions. I find itparticularly significant that the WSIB case manager also records that Mr. Castellanoacknowledged that the applicant was working beyond his restrictions.[65] The respondent submits that the applicant should have called the WSIB casemanager if he wanted to rely on the case manager’s notes, particularly given that Mr.Castellano did not agree with the case manger’s account of their telephoneconversation on June 20. I do not agree that this was necessary. I am of the view thatthe applicant is entitled to admit these notes as evidence that the statements weremade and as discussed above, I am also of the view that it is reasonable for me toattach some weight to the WSIB case manager’s contemporaneous notes about aseries of related conversations about the specific issue of whether the applicant wasworking beyond his restrictions. This is particularly so in light of the testimony of Mr.Castellano who testified that he did not recall the particulars of his conversation with theWSIB case manager.20