Highlights of Noteworthy Decisions
- Agreement (parties)
- Reconsideration (error of law)
The worker applied for reconsideration of Decision No. 1447/14. The worker had appealed on a number of issues. The appeal was allowed in part. The parties had made a joint submission for resolution of all outstanding issues. Included in the joint submission was an acceptance by the employer of evidence that the worker was struck in the back by a buggy. The hearing panel also considered new evidence that was not before the Appeals Resolution Officer. After the hearing, the panel also requested and received a further joint submission regarding LOE benefits and WT services. In Decision No. 1447/14, the hearing panel did not agree with the joint submission that the worker would receive full LOE benefits from November 2011 to April 2012. Rather, the panel found that the worker was entitled to WT services in the form of a four-week job search training program, with the goal of direct placement in a suitable occupation as a cement truck driver. Accordingly, the panel granted full LOE benefits for four weeks only. The parties had submitted that the WT plan should incorporate retraining as a transport truck driver but the panel found that the SO was that of cement truck driver, a job which the worker had performed for many years and which was available. The worker submitted that the parties should be able to rely on an indication from the hearing panel that the joint submissions would be accepted, as long as they were allowable under Board policy. However, that indicates a misunderstanding of the adjudicative role of the Tribunal, particularly its role in considering joint submissions. The Vice-Chair noted that the Board is responsible for payment of benefits but is not represented in the preparation or presentation of submissions for settlement. Joint submissions are often helpful in framing a decision and they often present an agreement on evidence that was previously in dispute. A panel would be inclined to accept such evidence, as would the Board. However, in its role as an adjudicator, a panel is required to satisfy itself that joint submissions for settlement are keeping with the provisions of the Act and Board policy. At the hearing, the panel advised that it would be considering the submissions in light of the Act and Board policy. The fact that the panel requested further submissions with respect to WT services and LOE benefits is clear indication that the panel did not see its role as simply to rubber stamp the proposed outcome in the joint submissions. In applying Board policy, a panel must exercise its judgement as to what is a reasonable interpretation of the policy. In this case, the hearing panel found that it was reasonable to identify the SO of cement truck driver with direct placement. Even if the more extensive WT program recommended by the parties in their joint submission did not violate Board policy, the Tribunal still had authority to apply the policy reasonably and appropriately in the circumstances of the case. The application to reconsider was denied.