Highlights of Noteworthy Decisions

Decision 737 20
22/07/2020
J. Smith
  • Hearing (alternative techniques)
  • Hearing (oral)

The worker suffered a left wrist injury in April 2015, for which the Board granted the worker an 8% NEL award. The worker appealed a decision of the Appeals Resolution Officer denying entitlement for permanent psychotraumatic disability and denying LOE benefits after December 2015.

In a preliminary matter, the Vice-Chair considered the objection of the worker's representative to proceeding with the appeal by way of teleconference.
The representative's objection was largely due to the use of the assistance of an interpreter and a concern about not having the ability to observe and assess the interaction between the worker and the interpreter, to assess the credibility of the worker's testimony and to fully understand her testimony in respect of her ongoing issues with respect to psychotraumatic disability. He submitted that it was a breach of natural justice to proceed with the hearing as a teleconference for these reasons. The representative requested a videoconference or an in-person hearing.
Under the Hearings in Tribunal Proceedings (Temporary Measures) Act, 2020 (HTPA), which came into force on March 25, 2020, the Government has made it clear that the public must continue to have access to justice through administrative tribunals during the COVID-19 pandemic. Pursuant to the WSIA, the Tribunal is already empowered to do most of what the HTPA authorizes. The HTPA provides tribunals with the broad power to control the nature of their proceedings with regard to process, format and conduct. Under the HTPA, a tribunal may conduct a hearing in person, electronically, in writing or by a combination of these methods, as deemed appropriate by the tribunal. Furthermore, the HTPA provides tribunals with the power to make any orders or give any directions that it considers appropriate in the circumstances regarding the format and conduct of the hearing.
The objection was heard as a preliminary issue pursuant to the Tribunal's COVID-19 Interim Practice Guideline Objections to Alternative Hearing Methods. The Vice-Chair reviewed the factors set out in the guideline for determining the appropriate hearing format.
The Vice-Chair noted that the Tribunal has successfully conducted many hearings by teleconference in which the assistance of an interpreter was used, and that demeanour and body language are generally considered to be unreliable factors in assessing credibility. Further, the principles of natural justice require that a person be provided with an opportunity for a fair hearing by an unbiased decision-maker but do not prescribe a particular hearing format in order to achieve fairness.
The Vice-Chair denied the request for a change in the hearing format.
On the evidence, the worker's psychological issues resolved without permanent impairment. However, the worker was entitled to LOE benefits until she commenced new employment in May 2019. The appeal was allowed in part.